Here are some of the regulatory developments of significance to broadcasters from the past two weeks, with links to where you can go to find more information as to how these actions may affect your operations.
- The FCC adopted a Report and Order establishing rules implementing the January 2023 Low Power Protection Act, which provides LPTV stations in very small television markets a limited window of opportunity to apply for status as a Class A television station. Class A status gives these stations protection from being displaced by new or modified full-power stations and also protects their spectrum rights in any future repacking of the broadcast band like that which occurred after the recent incentive auction. Eligibility for this filing window is limited to LPTV stations located in Designated Market Areas ranked 178 (Elmira-Corning, New York) through 210 (Glendive, Montana). We previously discussed the draft order here, which has not substantively changed in its adopted form.
- The FCC adopted a Notice of Proposed Rulemaking which proposes to eliminate video service “junk fee” practices by cable and direct broadcast satellite (DBS) service providers. The NPRM proposes, among other things, customer service protections that prohibit cable operators and DBS service providers from imposing a fee for the early termination of a cable or DBS video service contract. We previously wrote about the draft NPRM here, which has not substantively changed in its adopted form. In the adopted NPRM, however, the FCC is now requesting more detailed comment on how cable and DBS service providers currently impose junk fees on customers.
- After the LPFM filing window closed at 12:00 pm on Friday, December 15 (which, as we discussed on our Broadcast Law Blog, the FCC’s Media Bureau extended until that date due to perceived issues with the FCC’s electronic filing system), the Bureau issued a Public Notice announcing a temporary freeze on the filing of any amendments to new LPFM applications filed during the window. The freeze will continue until 6:00 pm EST on January 31, 2024, to give the Bureau time to identify any mutually exclusive applications (conflicting applications which cannot all be granted consistent with the FCC’s technical rules) filed during the window. The Public Notice also noted that it will set out the procedures for resolving mutual exclusivity among LPFM applications in a future public notice. When the Bureau extended the application filing window, it also extended the freeze on LPFM and FM translator minor modification applications until December 18 at 12:01 am EST.
- FCC Commissioner Starks and 27 members of Congress called (see here, here, and here) for the FCC to reinstate broadcast workforce diversity data collection by requiring broadcasters to again file the Annual Employment Report (FCC Form 395-B). That report detailed the gender, race, ethnicity, and job function of all station employees. Starks asserted that the FCC was statutorily obligated to collect such information to ensure that broadcasters provide programming that is responsive to the needs and interests of their communities of license through the employment of a diverse workforce. As we discussed earlier this year here, Form 395-B was suspended over 20 years ago when a court suggested that its use was discriminatory because the FCC was penalizing stations that did not meet specific racial or gender quotas in their workforce. The question of how to collect that information without using it for enforcement purposes has delayed any reinstatement of the filing obligation.
- The FCC’s Enforcement Bureau continued its use of the PIRATE Radio Act, which allows greater penalties on those involved in unauthorized radio operations (see our article on the adoption of the Act), by issuing three Notices of Illegal Pirate Radio Broadcasting to two landowners in New York City and a landowner in Puerto Rico for apparently allowing illegal broadcasting from their properties. The Bureau warned each landowner that the FCC may issue fines of up to $2,316,034 if the FCC determines that the landowner continues to permit any individual or entity to engage in pirate radio broadcasting from their property. The notices can be found here, here, and here.
- The FCC has until December 27th to comply with a court order requiring the agency to conclude its still-pending 2018 quadrennial review of its local broadcast ownership rules (see our blog article for more on the Court order and on the issues under consideration in that proceeding, including a review of the local radio ownership limits, the restrictions on combinations of two of the Top 4 TV stations in any market, and the dual network rule forbidding common ownership of two of the Top 4 TV networks). With that deadline rapidly approaching, lobbying at the FCC on how the FCC should conclude the proceeding continued during the past week. The NAB again urged (see here and here) the FCC to reject the pay TV industry’s proposal to expand the rule against owning two of the Top 4 stations in a market to apply to multicast channels and LPTV stations – noting that the FCC is statutorily obligated in its quadrennial review either to eliminate the Top-4 rule or to make it less, not more, restrictive. Similarly, Fox, Paramount, and Disney noted that expanding the rule would harm smaller markets by endangering the availability of free, over-the-air network programming and depriving viewers in such markets of diverse programming. Gray also echoed these concerns by pointing out that expanding the rule would only exacerbate the problem of news deserts outside the top fifty media markets.
- The FCC’s Public Safety and Homeland Security Bureau granted (see here and here) two extension requests of the December 12, 2023 deadline for compliance with the new Emergency Alert System (EAS) rules requiring that, when a station receives an EAS alert over-the-air, it wait at least 10 seconds to see if that alert arrives by the internet-delivered IPAWS system, and if it does, broadcast that internet-delivered alert that uses the Common Alerting Protocol (see our discussion on this obligation, here). The requests were filed by an Alaska cable operator and a group of CBS-affiliated TV stations, which all requested an extension of the deadline because they needed new EAS hardware to comply with the requirements, and delivery of that equipment was delayed due to supply chain issues. The Bureau granted the cable operator an extension of time until March 11, 2024, and the TV stations until January 10, 2024, to comply with the new EAS rules. The Bureau’s decisions follow its recent grants to other broadcasters of extensions to comply with the new EAS rules due to unique issues in meeting the December 12 deadline (decisions we noted in prior updates here and here).
- The FCC’s Media Bureau entered into a Consent Decree with a New York noncommercial FM station to resolve issues arising from the Bureau’s review of the station’s license renewal application. The Bureau imposed a $500 penalty and required a compliance plan to protect against future violations. The penalty was imposed because the station filed its license renewal application two months late.
- The House Energy & Commerce Committee held a hearing on governmental regulation of AI. The hearing included witnesses from the Department of Energy, Department of Health and Human Services, and Department of Commerce who were questioned about the federal government’s role in addressing the use of AI in the marketplace. A recording of the hearing can be found here, a summary of the hearing’s scope can be found here, and the witnesses’ written testimonies can be found here, here, and here.
On our Broadcast Law Blog this week, we reminded broadcasters that special elections and state and local elections trigger political obligations for broadcasters – including lowest unit charges, equal opportunities, public file requirements and, for federal candidates, reasonable access.
With the upcoming holidays, we do not plan to publish this weekly update for the next two weeks. Watch for our next summary of regulatory actions relevant to broadcasters on January 7, 2024. We will write about any significant regulatory actions on our Broadcast Law Blog in the interim. Also watch our Blog this coming week for a look ahead at January regulatory dates for broadcasters and for and for our calendar of regulatory deadlines for all of 2024.
Courtesy Broadcast Law Blog
