This Week in Regulation for Broadcasters: July 23, 2022 to July 29, 2022

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.

  • A bill was introduced in the US Senate proposing to prohibit any FCC or criminal action against a broadcaster who ran ads for a cannabis business legal in the state in which the station is licensed. We wrote, on our Broadcast Law Blog, about the three different legislative efforts now underway to lift any prohibitions on broadcasters running these ads from businesses in states where marijuana has been legalized.
  • Federal Register publication of the FCC’s Notice of Proposed Rulemaking to modify the Nielsen reports that are specified in the FCC’s rules to determine what a station’s local market is for cable and satellite carriage purposes occurred this week. As the Nielsen report currently specified in the rules is being phased out, another Nielsen report is proposed to be substituted in these rules.  Comments are due on this proposal on August 29, with reply comments due by September 26.  FCC Public Notice of these filing dates was published this week.
  • The FCC’s Video Division issued a Memorandum Opinion and Order and Notice of Apparent Liability to an LPTV station in Reno, Nevada for failing to file a license application following the completion of the construction of new facilities and for operating without authorization. The station claimed to have started operating in digital in 2016 on its old analog channel, even though it had a construction permit to operate on another channel.  In 2021, it modified its construction permit for retroactive approval to make its “flash-cut” to digital on its existing channel, but then failed to file a covering license for those digital operations until a 2022 inquiry from the FCC staff as to the status of the station. A fine of $6500 is proposed.  We noted a similar case two weeks ago.  It appears that the Commission is contacting LPTV stations that have not shown that they are operating in digital to see if their licenses are still valid.  The FCC is apparently discovering stations that converted before last year’s deadline for the digital conversion but did not, after completing the conversion, file the required paperwork seeking a license.  With very limited exceptions, all broadcast stations need to get FCC approval before making changes to their transmission facilities, and then file an application for a license to cover after they complete construction demonstrating to the FCC that construction was completed as authorized.
  • In a Second Order on Reconsideration, the FCC upheld a decision allowing the holder of a construction permit for a new FM station to change city of license from a community in the Longview, Washington Urbanized Area (UA) to one outside that UA. This case discussed the UA Service Presumption (UASP), which is a part of the FCC’s Rural Radio policy.  The UASP considers a station licensed to any city in an urbanized area, or one that can provide city-grade service from any fully spaced transmitter site to 50% of the urbanized area, to be licensed to the urbanized area unless a showing can be made rebutting the presumption.  The presumption would be rebutted by a showing that the community really is independent of the UA and has its own needs for a broadcast radio service. The presumption is important in applying the criteria of Section 307(b) which seeks to make a preferential distribution of broadcast services among the states and communities by giving a preference to proposals for a first local service to a community.  A community considered to be in a UA gets no preference because the application of the UASP means that all other stations in the UA are deemed to serve that community.  A station outside the UA (except when the community is an extremely small “quiet village”) gets a preference if there are no other stations licensed to that community (see our article here for more information about this preference and how the UASP affects it). In this case, the applicant moving out of the UA could do so without removing the only broadcast service to its community because, applying the UASP, the other stations in the Longwood market were deemed to meet the needs of the community.  The challenger objecting to this move argued that the initial community was independent from the rest of the Longwood UA and had its own local needs for a broadcast service that should be met by the station’s continued service to that initial community.  The FCC found that the challenger’s pleadings did not rebut the application of the UASP by providing enough evidence of the independence of the initial community from the rest of the UA, so moving the station to a new community without a local service and located outside the UA was a preferred arrangement of allotments.  The FCC provided a detailed analysis of the factors that can go into rebutting the UASP and the evidentiary burdens that proponents and challengers to such a showing must provide. The case is worth reading if you are contemplating a city of license change.
  • The Federal Trade Commission published in the Federal Register its request for comments on its revised guide to The Use of Endorsements and Testimonials in Advertising. Any media company creating commercials using celebrities or experts designed to promote commercial goods and services should be familiar with the guide and should review the FTC’s proposed changes.  Comments on the proposed changes are due by September 26.
  • On Friday, we published our monthly article highlighting regulatory dates and deadlines for the coming month. August Regulatory Dates for Broadcasters is now available.
  • With the final political primaries occurring in August and early September, and as advertising is already heating up for the November election, we published an article on the Political File requirements for federal and state “issue” ads, i.e., those ads not bought by candidates or their authorized campaign committees. The article talks about the more detailed public file obligations required for a federal issue than for ads about state and local issues.

Courtesy Broadcast Law Blog