This Week in Regulation for Broadcasters: March 27 to March 31, 2023

Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC released a Notice of Proposed Rulemaking (“NPRM”) to implement the Low Power Protection Act (“LPPA”), which was signed into law by President Biden on January 5, 2023.  The LPPA directs the FCC to open a limited opportunity window for certain LPTV stations to apply for Class A TV status, giving them primary status that protects against being knocked off the air by a change in operations by a full-power station (or any further repacking of the TV spectrum like that following the incentive auction). Under the LPPA, an LPTV station will be eligible to convert to Class A if (i) between October 7, 2022 and January 5, 2023 (the “Eligibility Period”), the station operated a minimum of 18 hours per day, aired an average of 3 hours per week of locally-produced programming, and was otherwise in compliance with the LPTV rules; (ii) the station causes no interference; and (iii) the station operates in a DMA of 95,000 households or fewer.  The FCC’s proposed rules would impose additional limits on eligibility including excluding LPTV stations which were silent during the Eligibility Period; and proposes to define “locally-produced programming” as that produced within the station’s noise-limited contour or the contiguous contours of commonly owned stations. Interested parties can comment on these questions and other FCC proposals advanced in the NPRM. Comments and reply comments will be due 30 days and 60 days, respectively, after the NPRM is published in the Federal Register.
  • The FCC’s Media Bureau announced that the FCC’s Further Notice of Proposed Rulemaking proposing to extend the FCC’s audio description rules to DMAs below the top 100 has been published in the Federal Register, and therefore comments and reply comments are due April 28 and May 15, 2023, respectively.  Audio description provides narrated descriptions of a television program’s key visual elements during natural pauses in the program’s dialogue, for the benefit of individuals who are blind or visually impaired. The full text of the Further Notice is available here.
  • Action continued this week on the FCC’s Media Bureau’s hearing designation order referring questions about Standard General Broadcasting’s proposed acquisition of the TEGNA broadcast stations to an Administrative Law Judge (ALJ) for an evidentiary hearing.  Two weeks ago, we wrote about the parties to the sale filing an Application for Review, asking the Commission to overturn the Media Bureau’s decision to designate the transaction for hearing.  Because that request has not been granted and the commitment for the acquiror’s financing ends soon, the parties this week asked the US Court of Appeals to immediately intervene to stop the hearing and order the grant of the application. Even though no appeal to the Court is routinely permitted until an FCC action is final, the parties asked that the Bureau’s hearing designation be treated by the Court as if it was a denial of the application, or that the Court take extraordinary action to order FCC action on the application. The Court ordered immediate briefing by the parties; all submitted this past week. The NAB submitted a brief in support of the parties arguing that the bases for the hearing designation were not supported by FCC precedent and would upset marketplace expectations.
  • The FCC’s Media Bureau continued to process late filed license renewals, proposing to impose a $10,500 fine on the licensee of seven Nevada television translator stations that without explanation filed its renewal applications nearly four months late. Ordinarily, the FCC’s rules require a fine of $3,000 per station for such a violation. The Bureau reduced the fine to $1,500 per station in recognition of the fact that translator stations only provide a secondary service, but often provide important “fill-in” service to areas that otherwise may be unable to receive over-the-air television signals. Likewise, the Bureau proposed to impose a $12,000 “late renewal” fine on a second licensee of eight Nevada television translator stations, and proposed to impose a similar $1,500 fine on a low power television station in Alaska.
  • The Media Bureau, jointly with the FCC’s Managing Director, issued an Order to Pay or to Show Cause to an AM station that had not fully paid its annual regulatory fees for 2010, 2012, 2013, 2014, 2016, 2017, 2020 and 2022.  The Order directs the station to either provide the Bureau with evidence of full payment (or, alternatively, a showing as to why payment is inapplicable or should be waived or deferred) in 60 days or risk revocation of its license.
  • The Bureau issued a Report and Order substituting FM channel 288A for vacant channel 237A at South Padre Island, Texas to allow the use of channel 237A by an existing station at Port Isabel, Texas.  The South Padre Island channel will be available for application in a subsequent FM filing window.
  • The Media Bureau rescinded its grant of a construction permit for a new NCE FM station at Golinda, Texas, which it had awarded via its “points system” for selecting among mutually exclusive applicants for NCE FM stations filed in the 2021 window for new NCE stations.  The winning applicant had received its construction permit for its greater technical service by claiming that it would provide second NCE service to 14,178 people but, as pointed out in a challenge filed by a competing applicant, the applicant would actually provide second NCE service to only 1,706 people, not enough to warrant a preference.  As a result, the Bureau rescinded the winning applicant’s grant and returned its application to pending status so that the Bureau can re-compare the applications.
    • The Bureau also upheld the award of a construction permit to an applicant for a new NCE FM station at Weeki Wachee, Florida. 
  • On our Broadcast Law Blog, we highlighted the upcoming regulatory dates and deadlines for broadcasters in April. We also wrote about some of the policy issues for media and music companies that arise from the growth of Artificial Intelligence.

Courtesy Broadcast Law Blog