This Week in Regulation for Broadcasters:  May 22 to May 26, 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 Biden Administration nominated Anna Gomez to be an FCC Commissioner.  She will fill the open seat to which Gigi Sohn had been nominated until she asked that her nomination be withdrawn after a prolonged debate over her confirmation.  Gomez is experienced in government circles, having worked at NTIA (a Department of Commerce agency dealing with spectrum and other communications matters) and recently at the State Department preparing for international meetings on telecommunications issues.  She has also a history in private law practice. The President also renominated Commissioners Starks and Carr with the intent that Congress consider all three nominations simultaneously and vote on them as a package. If all are confirmed, the FCC would, for the first time under the Biden Administration, be at full strength with a 3-2 Democratic majority.  For a more detailed analysis of the issues that a full Commission could consider, see our Broadcast Law Blog article here.
  • We previously reported that the FCC had sought comment on NAB’s petition for an extension of the existing waiver of the requirement that television broadcasters aurally describe visual but non-textual emergency information, such as maps or other graphic displays. That requirement, from Section 79.2(b)(2)(ii) of the Commission’s rules, requires that emergency information provided visually during non-newscast video programming be made audibly accessible to individuals who are blind or visually impaired through the use of a secondary audio stream.  Compliance with the rule has been waived as there is no technology to automate the audio description of this visual emergency information.  The FCC’s Media Bureau this week issued a Memorandum Opinion and Order extending the waiver by 18 months (less than the two years NAB had requested), subject to the condition that NAB file quarterly reports that include information about the efforts to find a solution to implement the requirements and the steps that the NAB and broadcast industry are taking to assist those that are blind or visually impaired to have access to emergency information while new technologies are being developed.    
  • In our last weekly update, we reported that the AM For Every Vehicle Act was introduced in both the US Senate and the House of Representatives, proposing to mandate that carmakers include AM radio as a standard feature in all cars sold in the United States (for more details on this proposed legislation, see this article on our Blog).  Since then, in a bipartisan statement issued on May 23, the leadership of the House Energy and Commerce Committee (specifically Cathy McMorris Rodgers (R-WA), Frank Pallone, Jr. (D-NJ), Bob Latta (R-OH) and  Doris Matsui (D-CA)) announced plans to hold a Committee hearing in early June “on the importance of AM radio installation in new cars.”  It appears that the hearing will focus at least in part on gathering evidence demonstrating the value of the news, weather and other critical services that AM radio provides.
    • Seemingly in response to the legislative interest in AM, Ford Motors reversed its prior plans and announced that AM radio will be included in all 2024 Ford and Lincoln vehicles, and that it will offer a software update that will restore AM broadcast capability for owners of Ford’s vehicles that presently have no such capability.
  • It appears that Standard General’s battle to acquire TEGNA’s television stations may be coming to an end (find previous updates on this proceeding on our Blog  here and here).  As we’ve previously reported, the FCC designated the associated FCC applications for hearing before an Administrative Law Judge (ALJ) to determine whether the sale would impose noncompetitive retransmission rates on consumers and injure the viewing public by reducing news service.  On May 24, Standard General filed a Status Report in which it acknowledged that the merger agreement underlying the applications was terminated on May 22, the date on which the transaction’s financing expired.  Nonetheless, Standard General continues to argue that the designation for hearing was improper and states that it “remains prepared to vindicate its rights as necessary, including through participation in the hearing and attendant discovery process.”  But it appears that Standard General is now fighting the battle alone: on May 25, TEGNA and CMG Media Corporation, which was to exchange some stations with Standard General as part of the transaction, filed their own status reports in which they each stated that they will no longer participate in the hearing and intend to withdraw their underlying applications.  These filings make it likely that the hearing will be terminated as moot as there will no longer be any FCC applications to consider.
  • The Media Bureau granted three unopposed market modification petitions filed by a television station in Bridgeport, CT, which is in the New York DMA.  In so doing, the Bureau restored communities to the station’s market, thus restoring the station’s must carry rights in those communities (rights that had been lost in prior market modification cases).  The Bureau noted that the station commenced broadcasting from a second Distributed Transmission System (DTS) facility at the Empire State Building, thereby enabling the station’s signal to reach the communities at issue.  The Bureau found that the station’s expanded signal coverage, along with evidence as to shopping and labor patterns in the communities that showed that the station’s programming was relevant to their residents, entitled the station to credit under the FCC’s “localism” criterion in market modification cases.  In addition, the Bureau found that that the station’s arguments were reinforced by the station’s history of cable and satellite carriage in areas in or adjacent to the communities.
  • The FCC’s Media Bureau denied applications for two new full-power noncommercial FM stations at St. Louis Park, Minnesota, and dismissed both applications.  Both applications were filed during the FCC’s November 2021 filing window for new NCE stations.  The applicant contended that its applications represented a possible solution to its long-standing need to relocate its existing LPFM station that suffered from interference from other full-power stations. But neither application met the FCC’s spacing requirements to other existing FM stations.  The Bureau found that the applicant had not demonstrated in either application that its proposed site was the least short-spaced available, or that a waiver was necessary to provide service to an underserved community or that the proposed antenna could not be directionalized to avoid contour overlap.  In addition, the Bureau found that the applicant’s desire to improve its technical facilities was not a unique or compelling circumstance that would justify waiver of its spacing rules.
  • A list of pending applications by radio broadcasters seeking city of license changes was published in the Federal Register, setting a July 24, 2023 public comment deadline.  Changes include proposals to move stations in the following communities: Decatur, AL, to Mooresville, AL; Daytona Beach, FL, to Port Orange, FL; Apopka, FL, to Fairview Shores, FL; Richmond, VA, to Ashland, VA; Cimarron, NM, to Maxwell, NM; Lamesa, TX, to Tarzan, TX; Batavia, NY, to Kendall, NY; Oxford, AL, to Ohatchee, AL; Wheatland, WY, to Laramie, WY; and Hattiesburg, MS, to Marrero, LA.

Courtesy Broadcast Law Blog