As we have written before, broadcasters (and local cable companies) are forbidden from editing the message of a candidate or rejecting that ad based on what is says except in extreme circumstances where the ad itself would violate a federal criminal law and possibly if it contains a false EAS alert (see, for instance, our articles here, here and here).  Section 315 of the Communications Act forbids a broadcaster or a local cable operator from censoring a candidate ad.  Because broadcasters cannot censor candidate ads, the Supreme Court has ruled that broadcasters are immune from any liability for the content of those ads.  (Note that this protection applies only to over-the-air broadcasters and local cable companies – the no censorship rule does not apply to cable networks or online distribution – see our articles here and here)  Other protections, such as Section 230, may apply to candidate ads placed on online platforms, but the circumstances in which the ad became part of the program offering need to be considered. 

Some take these protections to mean that broadcasters have no fear of liability for any political ad.  As I explained in an interview two years ago with a Detroit television station, that is not true – broadcasters do theoretically have potential liability if they run an ad from a non-candidate group either knowing that ad to be false, or by continuing to run a false ad after being put on notice that the ad is false and ignoring that notice (see also this article about this distinction between candidate and non-candidate ads, and how the media’s coverage of campaigns can overlook these distinctions).  In 2020, President Trump’s campaign brought a lawsuit, that was ultimately dismissed, against a Wisconsin television station alleging that a PAC ad run on the station was false and defamatory (see our articles here and here on that suit).  In the 2022 election cycle, there was a lawsuit by Utah Senate candidate Evan McMullin against a political party’s campaign committee and three local TV station owners for running an ad that had allegedly edited remarks by McMullin to make it seem like he said all Republicans were racist (see articles here and here).  Even Roy Moore, the defeated Alabama Senate candidate from several years ago, was allowed by courts to pursue a defamation suit against the sponsor of an ad that Moore claimed falsely accused him of improper conduct (this decision was not against a broadcaster, but instead against the ad’s sponsor, see report here).

While these legal actions are not common, they do occur, and stations must take seriously any allegation that a political ad that they are running is false.  The Communications Act’s “no censorship rule” applies only to candidate ads.  Stations are free to reject an ad from a non-candidate group based on concerns about its content.  If an ad is defamatory – spreading falsehoods about a recognizable individual – it could result in civil liability to the station.  Under Supreme Court precedent, statements made about public figures (such as political candidates) can be found defamatory only if the person or entity that is distributing them either knew that they were false or distributes them with “actual malice,” e.g., where they either knew the ad was false or had notice that the ads were false, yet they continued to distribute the material anyway with reckless disregard for its false nature.  Thus, if a station does not know that a claim in a third-party ad is false, but it is put on notice about the falsity (e.g., by a letter from an attorney representing the party being attacked telling the station that the ad is false), the station needs to take steps to investigate the truth of the ad.  (Note that there have been statements from some Supreme Court justices that suggest that this standard that arose in a case, NY Times v. Sullivan, should be changed to make it easier for a public figure to sue – see our article here – watch developments in this area).

If the station ignores a demand letter claiming that an ad is false, and keeps running the allegedly false ad anyway, and the ad is in fact false and defamatory, there is potential liability to the station.  Stations should ask the sponsor of any attack ad for documentation backing up their claims, review the supporting material to see if it in fact backs up the claims made, and consult with their attorneys to determine if it is likely actionable.   There are often no clear answers, so broadcast companies need to talk to their attorneys and make their own assessment of the risk of liability for continuing to run a third-party ad claimed to be untrue. Typical political claims (e.g., “candidate X is a big-spending liberal” or “candidate Y doesn’t care about our kids as he has voted against school funding increases”) are less likely to be actionable than are claims about the character, integrity, and similar personal qualities of a candidate (e.g., a claim that a candidate did something illegal).

The FCC itself is not a fact checker of claims made in political ads.  Many times, the letters demanding that attack ads be removed from the air suggest that running these ads somehow violates the FCC rules about stations operating in the public interest.  Sometimes the demand letters even claim that the ads violate FCC rules against false and deceptive advertising – even though it is the FTC, not the FCC, which deals with deceptive ads.  But even the FTC is not routinely involved with the political advertising process, given that the involvement of any government agency in assessing the truth or falsity of any political ad is so fraught with First Amendment issues.  Generally, our First Amendment does not allow a government agency to decide what is true in political ads and what is not.  Thus, these questions are left to private actions for defamation.

While defamation actions against broadcasters for not pulling an attack ad have not been common in the past, we are seeing more claims threatening such actions in recent election cycles, and more of these claims seem to be making that threat in a serious way.  We have also seen former President Trump bringing lawsuits against many media entities which he claims falsely characterize his background, including about some characterizations of his past legal issues.  Even if there is no ultimate liability found for defamation, the time and expense involved in any such litigation can be great.  Stations need to carefully assess any demand to pull an attack ad, and to discuss the ad with their attorney when such a cease-and-desist letter is received.  While many of these demand letters seem to be sent more to intimidate stations into pulling ads in the last few days before an election rather than to advance real legal claims, as recent lawsuits make clear, there are occasions when the ads will in fact result in legal actions.  Stations need to carefully review all such demand letters to assess which have merit – and they need to do so quickly in the heat of an election season. Keep your attorney on speed dial, as legal advice is imperative as sometimes these are not easy calls to make.  But as the consequences can be great, stations need to act with care.

June 3 (as the 1^st is on a weekend) is the deadline for radio and television station employment units in Arizona, the District of Columbia, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, and Wyoming with five or more full-time employees to upload their Annual EEO Public File Report to their stations’ online public inspection files (OPIFs).  A station employment unit is a station or cluster of commonly controlled stations serving the same general geographic area having at least one common employee.  For employment units with five or more full-time employees, the annual report covers hiring and employment outreach activities for the prior year.  A link to the uploaded report must also be included on the home page of each station’s website, if the station has a website.  Be timely getting these reports into your public file, as even a single late report can lead to FCC fines (see our article here about a recent $26,000 fine for a single late EEO report).

The filing of the Annual EEO Public File Reports for radio and television station employment units with eleven or more full-time employees triggers a Mid-Term EEO Review that analyzes the last two Annual Reports for compliance with FCC requirements.  June 1 is the beginning of the Mid-Term EEO Review for radio station employment units in Michigan and Ohio andfor television station employment units in the District of Columbia, Maryland, Virginia, and West Virginia.  Additionally, radio stations located in those states that are part of station employment units with five or more full-time employees must indicate in their OPIFs, when they post their Annual Report, whether their employment unit has eleven or more full-time employees, using a checkbox now included in the OPIF’s EEO folder.  This allows the FCC to determine which station groups need a Mid-Term Review.  See our articles here and here on Mid-Term EEO Review reporting requirements for radio stations.

At its next Open Meeting on June 6, the FCC will consider its Notice of Proposed Rulemaking proposing extensive revisions to its Class A TV, LPTV, and TV Translator rules.  Most significantly, the FCC proposes extending OPIF recordkeeping requirements to LPTV stations – either those affiliated with a top-four broadcast TV network (ABC, CBS, Fox, or NBC) or, alternatively, to LPTV stations rated among the top-four TV stations in their Designated Market Areas.  OPIF requirements would include copies of LMAs and Joint Sales Agreements for such LPTV stations.  The NPRM also proposes to clarify that FCC political broadcasting rules – including political file requirements – apply to LPTV stations.  The NPRM includes several other proposed amendments to technical and operational requirements, including limiting minor changes to moves of no more than 48.3 kilometers from a station’s currently licensed site, requiring stations to specify a community of license within their service contour, requiring LPTVs to operate at least 14 hours per week, and requiring LPTV stations to file a minor modification application to change their designation to a TV translator (and vice versa – this currently requires only notice to the FCC).  The FCC also proposes to clarify when a station can request authorization to move to another channel by defining the circumstances when an LPTV or translator station receives or causes interference justifying such displacement.

Comments are due June 6 in response to the FCC’s biannual call for comments on the State of Competition in the Communications Marketplace.  The FCC seeks comments on a list of questions about competition in the video and audio marketplaces, including the impact of digital competitors on radio and TV stations and the role that regulation plays in the competitive landscape.  The FCC uses these comments to prepare a report to Congress on competition issues and sometimes references the reports in proceedings dealing with competition, including FCC proceedings dealing with its ownership rules.  Reply comments are due July 8.

Comments are also due June 6 in response to the FCC’s April Notice of Proposed Rulemaking, in which the FCC sought comment on the state of the market for independent video programming.  The NPRM proposed new rules on carriage agreements between independent programmers and multichannel video programming distributors including prohibiting “most favored nation” and alternative distribution methods clauses (clauses that limit the ability of independent programmers to negotiate with other platforms for the carriage of their programming).  As we discussed here, while the FCC stated that it is not aware of concerns about the effect of these contractual terms on independent programmers’ negotiations with a broadcast network or station licensee, it nevertheless seeks comment on whether its proposed ban should cover these entities as well.  Reply comments in response are due July 8.

Reply comments are due June 12 in response to the FCC’s January Notice of Proposed Rulemaking in which it proposes to require TV and radio stations to file reports with the FCC regarding station operational outages in the FCC’s Network Outage Reporting System (NORS) database and on their operating status during disasters in the FCC’s Disaster Information Reporting System (DIRS) database.  While DIRS reporting is currently voluntary for broadcasters, NORS reporting is not currently required or available to broadcasters.  See our summary of some of the initial comments in this proceeding in our weekly summary of regulatory activity for broadcasters, here.

Reply comments are due June 17 in another proceeding dealing with emergency broadcast matters.  That is the deadline for comments on the FCC’s March Notice of Proposed Rulemaking in which it proposes the creation of a new Emergency Alert Service (EAS) event code for missing and endangered persons.  In the Notice, the FCC is seeking comment on whether to apply the new EAS alert code to individuals over the age of 17, missing adults with special needs or circumstances, and missing adults who are endangered or who have been abducted or kidnapped.  We summarized some of the initial comments, here.

June 17 is also the deadline for reply comments responding to the FCC’s proposed rules governing experimental program origination on FM booster stations, which the FCC authorized on an initial basis in its April Report and Order.  The FCC is seeking comment on its proposals for processing, licensing, and service rules to permit the use of FM booster program origination on a permanent basis.  For more on this proceeding, see our article here.

Looking ahead to July, all full-power broadcasters need to note that July 10 is the deadline for the Quarterly Issues Programs lists to be uploaded to stations’ online public inspection files.  The lists should identify the issues of importance to the station’s community and the programs that the station aired in April, May and June that addressed those issues.  It is important that these be timely uploaded to your public file, as the untimely uploads of these documents have likely resulted in more fines in the last decade than for any other violation of the FCC’s rules.  As you finalize your lists, do so carefully and accurately, as they are the only official records of how your station is serving the public and addressing the needs and interests of its community.  See our article here for more on the importance of the Quarterly Issues Programs list obligation.

The political season continues in June, and broadcasters serving Alabama, Arizona, Connecticut, Delaware, Florida, Guam, Hawaii, Kansas, Michigan, Minnesota, Mississippi, Missouri, Oklahoma, South Carolina, South Dakota, Tennessee, Vermont, Virgin Islands, Washington, and Wisconsin should be aware of the opening of the following political windows for certain primaries and elections scheduled to occur in June, July, and August – meaning that Lowest Unit Rates apply to sales to candidates and their authorized committees (see our article here on the basics of computing LUR).  Races in which LUC will soon apply include the following (though confirm locally to make sure that none of these dates have changed since we prepared our list of political dates): 

* Runoff election with an abbreviated LUR period due to date of preceding election.

As a refresher, in the 45 days before a primary election, and 60 days before a general or special election, broadcasters must extend to legally qualified candidates their lowest unit rate and continue to follow all other applicable political broadcasting rules.  So, the lowest unit rate period will be in effect at some point next month for stations serving states and territories that have primaries or elections in June, July, and August.  For a deeper dive on how to prepare for the 2024 elections, see our post, here, which also includes a link to our comprehensive Political Broadcasting Guide.  Also take a look at our 2024 Broadcasters’ Calendar to see if your state has an upcoming primary, general, or special election (though confirm these dates locally as some dates have changed since the calendar was prepared). 

As always, check with your attorneys and advisors to see if there are other dates not mentioned here that are of importance to your station.  Always stay on top of all regulatory requirements.

• FCC Chairwoman Rosenworcel announced that she had circulated among the Commissioners for their review and approval a draft Notice of Proposed Rulemaking to require TV and radio stations, as well as cable operators and satellite TV providers, to disclose the use of AI-generated content in political ads.  If approved, the NPRM would request comment on whether to require broadcasters to disclose (both on-air and in their political files) when AI-generated content is used in political advertisements from both candidates and issues advertisers, and on how to define the AI-generated content that would need to be disclosed.  Commissioner Carr issued a statement opposing the NPRM, arguing that the Chairwoman’s proposals “fundamentally alter the rules of the road for political speech just a short time before a national election” (even though, if the NPRM is adopted, given normal rulemaking comment periods and processing timelines, it is unlikely that any proposed rule could be adopted in time for this year’s elections) and questioning whether the FCC has the authority to require the disclosures.  See our Broadcast Law Blog article for a discussion of issues that should be considered if the FCC decides to move forward with this proposal and as Congress also considers regulating AI in political advertising.
• Congressmen Gus Bilirakis (R-FL) and Frank Pallone, Jr. (D-NJ) announced the introduction of a new House of Representatives version of a bill dealing with AM radio in cars titled “AM Radio For Every Vehicle Act of 2024.”  A “mark-up” session on the revised bill was held on Thursday, May 23, when the bill was discussed by the House Subcommittee on Innovation, Data, and Commerce, approved, and sent to the full House Energy and Commerce Committee for approval (see video of the mark-up session here).  As we discussed here, here, and here, the AM Radio for Every Vehicle Act requires that automobile manufacturers retain AM radio in the car dashboard.  The new House version of the bill more closely matches that approved by the Senate Committee on Commerce, Science, and Transportation in July 2023, and provides for enforcement by the Departments of Justice and Transportation through civil penalties and civil actions – provisions that were not included in an earlier House version of the bill.  Any such bill must be passed by both the full House and Senate and signed by the President to become law. 
• The House Subcommittee on Communications and Technology held a hearing titled: “Legislative Proposal to Sunset Section 230 of the Communications Decency Act.”  At the hearing, the subcommittee discussed the draft bipartisan proposal of Subcommittee Chair Cathy McMorris Rodgers (R-WA) and Ranking Member Frank Pallone (D-NJ) which, on its face, would sunset Section 230 of the Communications Act, effective as of December 31, 2025.  As we discussed here and here, Section 230 was designed to insulate online platforms from liability for content created by others that is hosted on their sites.  Section 230 immunity has long been considered essential to the success of the Internet, but there have been concerns that the law has had unintended consequences, such as enabling terrorist activity, promoting the exploitation of minors, and allowing discrimination and harassment.  In the Subcommittee’s hearing memo outlining the issues to be discussed, it was made clear that the intent of the “discussion draft” was not to actually repeal Section 230, but to encourage its reform with the input of affected technology companies.  A video of the hearing can be viewed here.
• Comments were filed this past week on the FCC’s March Notice of Proposed Rulemaking (NPRM) proposing the creation of a new Emergency Alert Service event code for missing and endangered persons.  Commenters generally supported the new EAS event code.  Several Tribal groups (here, here, here, here, and here) expressed their support, noting the high numbers of missing persons cases among indigenous people.  Public safety and public interest commenters (here, here, and here) state that the new code would streamline the dissemination of alerts now delivered through multiple codes, facilitating their consistency and speeding delivery to the public.  NCTA – The Internet and Television Association supports the new event code but suggests that the FCC permit its use on a voluntary basis because EAS participants will require equipment upgrades to use the new code, and also urged the FCC to encourage state, local, and tribal official officials to establish clear guidelines to prevent the new event code’s overuse in nonemergency situations.
• The FCC dismissed a Nevada FM translator licensee’s request for review of the Media Bureau’s November 2022 decision which denied the licensee’s request for waiver of the FCC’s FM translator siting rule .  That rule requires that an FM translator rebroadcasting an AM station be located within the greater of the AM station’s primary service area or a 25-mile radius of its AM station’s transmitter site.  The Bureau dismissed the waiver request because neither the irregular size and shape of station’s market nor terrain obstructions justified waiver of the siting rule.  The Commission found that the applicant was trying to extend, not fill-in, its service area, and determined that it was in the public interest to apply the rule in a fair and consistent manner by prohibiting FM translator locations outside of the AM station’s service area absent compelling circumstances, and the desire to serve a greater area was not such a circumstance. 
• The FCC’s Media Bureau proposed a $3,250 fine against a Texas TV translator station that failed to timely file its license application and operated for over three years from an unauthorized site.  In April 2021, due to the collapse of its authorized tower, the translator was forced to relocate to operate pursuant to Special Temporary Authority at a temporary site. The STA expired in December 2021.  The licensee failed to extend the STA and did not file a license application for permanent operations from the temporary site until April 2024 –long after its modification application to make the temporary site permanent was granted in May 2021.  The base fine of $13,000 for the licensee’s failure to timely file the license application and the $10,000 base fine for unauthorized operations were reduced because the licensee’s documented inability to pay the base fines, its history of compliance, and the secondary nature of TV translators.  

At the FCC, according to the Chairwoman’s Press Release, a draft Notice of Proposed Rulemaking is circulating among the Commissioners for their review.  The proposal is to require broadcasters, local cable companies, and other regulated entities with political broadcasting obligations under FCC rules, to include mandatory disclosures on political ads when AI is used.  The disclosures would be required on the air and in writing in a station’s FCC-hosted online public inspection file.  While the text of the NPRM is not yet public, the Press Release did provide some specifics as to the questions that would be asked in this proceeding.

According to the Press Release, issues to be addressed would include:

• Whether to apply the disclosure rules to both candidate and issue advertisements,
• What specific definition of AI-generated content should be used,
• Whether to apply the disclosure requirements to broadcasters and entities that engage in origination programming, including cable operators, satellite TV and radio providers and section 325(c) permittees (companies originating programming in the US, and providing that programming to cross-border broadcast stations to be transmitted back into the US to a US audience).

As we recently wrote about the activity underway in various states, there are many important questions that need to be addressed in any rules, whether legislative or administrative, that govern the use of AI in political advertising.  Among the questions listed above is one of the most important – how to define “artificial intelligence.”  Artificial intelligence is a very broad term and can sweep in many technologies – some of which are used all the time in the production of media content without any nefarious motivations.  In video production, AI technologies can help with adjusting brightness, balancing colors, and assuring that audio and video are properly synchronized, none of which would usually matter to the public.  In adopting laws on AI in political ads, many of the state bills have been careful to limit their reach to “deep fakes,” portraying someone in a situation that never really occurred.  This can involve inventing a scene entirely or changing what was said or done to make it appear that something happened that did not.  While we may think that we know what these bills are intended to address, arriving at specific language defining when legal obligations apply and when they don’t is not easy.

Even if an appropriate definition can be crafted, the circumstances in which the AI is used is also important in any regulation.  Was the deep fake used to attack a candidate for political purposes, or was it used for purposes of satire or parody – or in a news story (perhaps even a story about the proliferation of deep fakes)?  Appropriate exceptions for these uses are also contained in most well-drafted state bills, and hopefully are under consideration by the FCC.

Perhaps most importantly, the obligation to root out the use of AI needs to be properly assigned.  As we noted in our article about state legislation, the obligation to identify deep fakes cannot be placed on broadcasters and local cable systems, as there simply is no technology that they can use to identify deep fakes accurately and quickly and with complete accuracy.  I have been told that the tools that are available to identify AI tend to over-exclude ads – identifying ads as problematic that really are not – perhaps because of all the innocuous uses of AI-technologies in video production and transmission.  By placing liability on broadcasters to determine if an ad should be prohibited if it does not include the proper disclaimers about the use of AI, many innocent ads may be rejected, inhibiting political speech. Potential liability on broadcasters would incentivize candidates being attacked to claim that attack ads are deep fakes or “fake news,” as broadcasters who cannot accurately judge whether the ad contains AI will be more likely to reject challenged ads to avoid potential liability.

Recent press articles highlight the problems with the identification of deep fakes.  Last weekend, this article from the Washington Post detailed how AI-detection systems that claim to be very accurate in fact may not be so accurate when used in the real world.  Another recent article lauded journalists in India for their efforts to root out election deepfakes in that country – though the article noted that the success that these journalists had was only through cooperative programs using resources provided by academics and other organizations, and that accurate detection and verification of deep fakes often took weeks.  In the US political advertising environment, where ads change weekly – or even daily – taking weeks to identify deep fakes does little good.  And, even if the technology and resources to identify deep fakes is available to big companies with deep resources, the vast majority of US broadcasters do not have that access or those resources.  How will a little radio station in rural America be able to tell if an ad attacking a school board or city council candidate is accurate or not? It is not unrealistic to assume that deep fakes will be used even in these local races.  See this article, also from the Washington Post (and an AP story here about the same incident), detailing how it took law enforcement months to determine that an audio recording purporting to document a high school administrator disparaging certain students was a deep fake – highlighting that the technology simply is not there for a broadcaster to determine when deep fakes are present in any political advertising.  Stations will be at risk, with no easy way to determine when the risk is real, likely leading to less political speech reaching the public.

In many of the state laws that we have been engaged to review for media companies and broadcast associations, state legislators have determined that, because of these concerns, liability must be placed on those who create the deep fake ads, rather than on broadcasters and other media that distribute those ads.  The FCC, of course, does not have jurisdiction over advertisers – it can only regulate the media companies subject to its rules, and only to the extent that Congress has provided.  Commissioner Carr has already issued a statement questioning whether the FCC’s authority is really broad enough to cover the imposition of any new AI identification requirement.  If the FCC concludes that it does have this authority, hopefully any FCC action that comes from this week’s Press Release will recognize that broadcasters cannot be asked to determine when an AI disclosure is needed – the most that they can be expected to do is ask a sponsor about AI use and rely on the sponsor’s disclosures, just as broadcasters do now when asking for the identity of the sponsor of a political ad. 

We will be waiting to see how these issues are addressed when the NPRM is released for public comment.  If the NPRM is approved by a majority of the Commissioners and released to the public, interested parties will need to be given adequate time to comment and reply to the arguments of others.  After comments and replies are filed, the Commission must review the record and formulate a final decision. All that takes time, and legal processes must be followed.  Given how long these processes normally take, action in time to take effect during this election period would seem unlikely.

As noted above, Congress is also looking at AI in political ads.  This past weekend, in our look back at the prior week’s regulatory activity relevant to broadcasters, we wrote about the Senate Committee on Rules and Administration having a meeting to review three bills addressing the effect of artificial intelligence on elections.  The first bill, the Protect Elections from Deceptive AI Act, prohibits the distribution of deceptive AI-generated audio or visual media relating to federal elections, with exceptions for use in bona fide newscasts by broadcasters and cable and satellite television providers if a disclaimer is used at the time of broadcast.  The second bill, the AI Transparency in Elections Act of 2024, requires the use of disclaimers in political advertisements including any AI-generated media.  The final bill, the Preparing Election Administrators for AI Act, requires the Election Assistance Commission to develop voluntary guidelines to be used by election administrators regarding the use and risks of AI in the upcoming 2024 elections.  All bills were voted out of committee – the first with two Republicans objecting, claiming that the language of these bills was too vague to determine what was prohibited, and arguing that the vagueness could violate free speech rights.  Those two bills do raise some of the same concerns that we note above, and we will address them in more detail in a later post. 

The approval by the Committee of these bills is only the first step in the legislative process.  These bills will only become law if approved by the full Senate and the House of Representatives, and then are signed by the President.  In an election year like this one, with Congress focused on getting done only what they absolutely must do so that they can spend time campaigning, it will be hard for there to be any substantial activity on these bills before the conclusion of this legislative session at the end of the year. 

We will be following these issues as they develop, as you should, to determine how they will affect your operations in the political broadcasting arena. 

• The Justice Department has submitted a proposal to be published in the Federal Register to reclassify marijuana under the Controlled Substances Act, asking for public comment as to whether it should be moved from Schedule I (prohibited drugs with no medical benefits and a high potential for abuse) to Schedule III (drugs with some medical benefit with lower risks)(see DOJ’s Press Release containing links to more DOJ information).  The notice recognizes that, even if the rescheduling occurs, the federal government will still have regulatory authority over marijuana and will need to make determinations as to its proper use by, and distribution to, the public so, as we warned in our recent article on our Broadcast Law Blog, this action does not remove all legal risks from advertising marijuana on broadcast stations where its use has been “legalized” under state law. 
• The FCC announced its agenda for its regular monthly Open Meeting on June 6 at which it will consider a Notice of Proposed Rulemaking proposing extensive revisions to its Class A TV, LPTV, and TV Translator rules.  Most significantly, the FCC proposes extending Online Public Inspection File (OPIF) recordkeeping requirements to LPTV stations – either those affiliated with a top-four broadcast TV network (ABC, CBS, Fox, or NBC) or, alternatively, to LPTV stations rated among the top-four TV stations in their Designated Market Areas.  OPIF requirements would include LMAs or Joint Sales Agreements and Class A certifications.  The NPRM also proposes to make clear that FCC political broadcasting rules – including political file requirements – apply to LPTV stations.  The NPRM includes several other proposed amendments to technical and operational requirements, including limiting minor changes to moves of no more than 48.3 kilometers from a station’s currently licensed site, requiring stations to specify a community of license within their service contour, requiring LPTVs to operate for a minimum of 14 hours per week, and requiring LPTV stations to file a minor modification application to change their designation to a TV translator (and vice versa – this can currently requires only notice to the FCC).  The FCC also proposes to clarify when a station can request authorization to move to another channel by more clearly defining the circumstances when an LPTV or translator station receives or causes interference justifying such displacement.
• Comments were due this past week in response to the FCC’s January Notice of Proposed Rulemaking proposing to require TV and radio stations to file reports regarding station operational outages in the FCC’s Network Outage Reporting System (NORS) database and on their operating status during disasters in the FCC’s Disaster Information Reporting System (DIRS) database.  DIRS reporting is currently voluntary for broadcasters, and NORS reporting is not currently required or available to broadcasters.  The National Association of Broadcasters and several broadcasters (see here, here, here, here, and here) argue that the proposed requirements would be unduly burdensome for broadcasters and would distract from their primary obligation to provide critical safety information to the public during disasters.  Instead, DIRS reporting requirements should remain voluntary for broadcasters, or as REC Networks proposes, only extend to reporting on the status of Emergency Alert Service infrastructure.  REC also notes that the reporting obligation could require broadcasters to report minor, transitory outages not currently required to be reported to the FCC.  Other commenters (see here and here) ask for an exemption for small noncommercial stations that lack the resources of larger commercial broadcast stations.  National Public Radio asks that the FCC defer imposing DIRS and NORS reporting obligations on broadcasters until it clarifies how it will use the reported data.
• The Senate Committee on Rules Administration held a hearing in which in reviewed three bills addressing the effect of artificial intelligence (AI) on elections.  The first bill, the Protect Elections from Deceptive AI Act, prohibits the distribution of deceptive AI-generated audio or visual media relating to federal elections, with exceptions for use in bona fide newscasts by broadcasters and cable and satellite television providers if a disclaimer is used at the time of broadcast.  The second bill, the AI Transparency in Elections Act of 2024, requires the use of disclaimers in political advertisements including any AI-generated media.  The final bill, the Preparing Election Administrators for AI Act, requires the Election Assistance Commission to develop voluntary guidelines to be used by election administrators regarding the use and risks of AI in the upcoming 2024 elections.  All bills were voted out of committee – the first with two Republicans objecting, claiming that the language of these bills was too vague to determine what was prohibited and could violate free speech rights.  These bills will only become law if approved by the full Senate the House of Representatives.
  • Senate Majority Leader Chuck Schumer and Senators Mike Rounds, Martin Heinrich, and Todd Young also released a bipartisan AI Roadmap which summarizes the areas of political consensus on AI issues and identifies where further work is needed on these policy issues.
• The FCC’s Media Bureau dismissed three LPFM construction permit applications for failure to comply with the LPFM application rules:
  • The Bureau dismissed a Wisconsin LPFM construction permit application as the applicant failed to show that it was qualified to hold an LPFM license.  An applicant must either be a public safety radio service provider (which must be a local government or other non-profit that provides emergency services in its service area) or a local non-profit with its headquarters or the residence of 75% of its board members within required radius of its proposed station’s transmitter site – and the applicant did not show that it met either of these criteria.
  • The Bureau affirmed its dismissal of Arkansas and Texas LPFM construction permit applications for their failures to meet the co-channel, first-adjacent channel, or second-adjacent channel spacing requirements necessary to protect nearby broadcast stations.  The Bureau rejected each applicant’s request to amend its application because the LPFM application procedures clearly state that the Tech Box in the initial application must show compliance with the FCC’s channel spacing requirements – and as neither of these applications did, they were properly dismissed without an opportunity to amend.  With the Texas application, the Bureau also rejected the applicant’s request to amend its application to include a waiver of the co-channel spacing requirements because the FCC cannot grant waivers of its co-channel distance separation requirements. 

• The FCC announced that comments are due June 6 on its April Notice of Proposed Rulemaking, exploring state of the market for independent video programming.  The FCC proposes new rules to prohibit “most favored nation” clauses and considers restrictions on clauses in agreements between independent programmers and multichannel video programming distributors (and broadcast companies) that limit alternative distribution methods.  Reply comments are due July 8.  
• Reply comments were due this week in response to the FCC’s February Notice of Proposed Rulemaking, in which it proposed the adoption of multilingual alerts for the Emergency Alert Service (EAS) using pre-scripted, pre-translated alert messages in thirteen non-English languages that alert originators can distribute during emergencies to broadcasters, cable providers, and other EAS participants.  While there was some support from commenters for multilingual EAS alerts, many commenters, including the National Association of Broadcasters and REC Networks raised concerns regarding their implementation costs, and technological and logistical issues about their use.  While Asian Americans Advancing Justice and the Japanese American Citizens League supports the proposed multilingual alerts, they express concern regarding the accuracy of new multilingual alert templates. 
• The FCC submitted its semi-annual report to Congress on U.S.-based foreign-government backed media outlets distributing video programming to MVPDs.  By law, the FCC must update Congress every six months with a list of the U.S.-based media outlets who act as agents for foreign governments that registered with the FCC.  The FCC stated in this year’s report that no such outlets registered in the last six months – which has been the case since mid-2021.
• The FCC released a Small Entity Compliance Guide regarding program origination by FM boosters.  As we discussed on our Broadcast Law Blog here and here, beginning May 16, a licensed FM station may seek experimental authority for up to a year (which can be renewed) to originate up to 3 minutes of programming per hour on an FM booster station.  The guide, among other things, explains that experimental authority must be requested until the FCC adopts final rules for this service, and reminds broadcasters that these FM boosters must comply with the EAS rules, and may cause interference to their primary station’s signal.
• The FCC’s Media Bureau rejected requests for two broadcast authorizations:
  • The Bureau ordered an Arizona AM station and its FM translator to cease operations after finding that the stations’ licenses were cancelled automatically as of December 6, 2023 pursuant to Section 312(g) of the Communications Act.  Under Section 312(g), a station’s license will be automatically cancelled if the station that has not operated as authorized for a full year, unless the FCC finds that there are public interest factors warranting the preservation of the license.  Here, the bureau found that the AM was either silent or operating from an unauthorized site when it continued to operate at an STA site even after its STA had expired in December 2022, and also had periods when it was totally silent without FCC authorization.  The translator’s license was cancelled because its authorization was granted in a translator window where that license was permanently tied to this AM station.  The Bureau rejected arguments that the stations’ licenses should be reinstated for reasons including the licensee’s inadvertent failure to request an extension of the STA for its AM station, the stations’ minority ownership and programming for the Hispanic community, and the licensee’s significant health challenges due to COVID.
  • The Bureau affirmed its dismissal of an Oregon LPFM construction permit application for its failure to meet the to meet the co-channel and second-adjacent channel spacing requirements for protecting nearby full-power FM stations.  Because LPFM application procedures clearly state that applications failing to comply with spacing requirements in their initial application would be dismissed without an opportunity to amend, and the technical parameters submitted in the “Tech Box” portion of this application were incorrect (and the Bureau will not look to parameters set out in any attached exhibit), the dismissal of the application was proper.

On our Broadcast Law Blog, we discussed why broadcasters should remain cautious about accepting marijuana advertising despite the Attorney General’s recent recommendation to loosen federal restrictions on marijuana.  New rules have not been adopted and, even if they are, any new federal regulatory regime may still restrict advertising for marijuana “legalized” under state laws. 

While a rescheduling to Schedule III may have an impact on research and marijuana’s medical uses, broadcasters need to continue to take a very cautious approach to marijuana advertising while the details of any possible change are worked out and likely even after any re-scheduling as, even as a Schedule III drug, advertising may still be restricted under federal law.

While many states have, as a matter of state law, legalized medical and even recreational marijuana use, there is still concern for broadcasters, as federal licensees, in accepting advertising for dispensaries and other marijuana sales, as we have noted many times before (see, for example, our articles here, here, and here).  That is because the sale and distribution of marijuana still remains a felony under federal law. Under 21 USC § 843 (b) and (c), to use communications facilities, including radio and the internet, to facilitate any sale of any Federally controlled substance is a felony.  The fear continues to be that, if the FCC is faced with a complaint about a broadcaster “facilitating” the sale of marijuana thought running advertising – an act illegal under federal law – the FCC might feel a need to take action against the broadcaster.  A move to Schedule III does not automatically solve that issue.

While we don’t claim to be lawyers who are experts in FDA law, from our review, Schedule III drugs include many that require prescriptions to use – including anabolic steroids and barbiturates – not exactly the kind of drugs one usually sees advertised on TV.  Schedule III drugs generally require FDA approval before marketing and are subject to restrictions as to how they are distributed.  Warning labels may be required.  Federal registration is required for those who dispense and manufacture these controlled substances, and users must be tracked as well unless the Attorney General decides that such user registration is not in the public interest.  These kinds of restrictions are certainly not in line with the ways that marijuana is sold in states that have “legalized” it under their state laws.

This proposed regulation is different than that applied to alcohol, or even hemp-based CBD.  Neither of these substances are on the schedules of controlled substances.  CBD (which contains less than 0.3% THC, the psychoactive ingredient in marijuana) was removed as a result of the 2018 Farm Act (see our articles here and here).  Even with its removal from the schedules of controlled substances, the FDA and FTC expressed concerns about advertising CBD’s use in a way that suggested that it had medicinal properties, the FDA does not authorize it for use as a food additive (see, for instance, our articles here and here).  While the FDA promised to review those restrictions soon after the Farm Bill was enacted, it finally threw up its hands last year and decided that it could not determine that CBD was safe as an additive to foods and beverages, or that health claims could be made (other than for the limited drugs actually approved by the FDA derived from the cannabis plant, such as Epidiolex).  The FDA instead asked that Congress provide instructions as to the rules that should be adopted in these areas (see FDA announcement here).  Of course, Congress has not yet acted, so these concerns for CBD remain.

If CBD, which is not a scheduled controlled substance is still subject to these federal concerns 6 years after being de-scheduled, one can only imagine the concerns that will continue to be expressed about marijuana distribution and marketing even if it is moved to Schedule III.  Plus, we have already begun to see pushback on whether this change is a wise move – and a change in administration could well mean an even stricter regulatory environment for marijuana in 2025 (see our article here on the greater restrictions under the first Trump administration).

Perhaps these concerns are overblown, and any rescheduling will be accompanied by a more hands-off regulatory environment.  But all these considerations take time – so broadcasters should not just yet be counting on any immediate windfall from an influx of marijuana advertising dollars.  Many details remain to be worked out, and many real issues remain before all issues are resolved.  Caution remains necessary. 

• The FTC announced that it will hold a 45-minute webinar on May 14 at 11:00 a.m. ET to provide an overview of its final rule banning noncompete agreements.  As we discussed in our update last week, the FTC banned the use of noncompete provisions in employment agreements (and clauses that act like noncompetes by limiting employee mobility) except in connection with the sale of a business.  The webinar is free and open to the public to provide information about compliance with the new rule.  The FTC requests that participants submit questions ahead of the webinar, by emailing them asknoncompete@ftc.gov.  A link to the webinar will be available on the FTC’s website on the day of the event, and a recording of the webinar will later be made available on the site.  The FTC has also posted a Business and Small Entity Compliance Guide about the new rule.
• On Capitol Hill, there were a number of actions potentially impacting broadcasters:
  • The House Subcommittee on Innovation, Data, and Commerce held a hearing titled “Draft Legislation to Preserve Americans’ Access to AM Radio.”  At the hearing, the subcommittee considered the proposed AM for Every Vehicle Act, which requires that automobile manufacturers retain AM radio in the car dashboard.  As we recently discussed on our Broadcast Law Blog, while this Act has garnered much support on Capitol Hill, there have been concerns regarding mandates on the car industry to protect the AM technology that some see as outdated.  The hearing included testimonies from witnesses representing radio manufacturers, carmakers, broadcasters, and the Navajo nation.  A recording of the hearing can be found here, a copy of the hearing can be found here, and the witnesses’ written testimony can be found here, here, here, and here.  This week, press reports indicated that there are 250 sponsors of the bill in the House (well more than a majority), and a 60-sponsor supermajority in the Senate– making the bill filibuster-proof.  The bill, however, must be brought to the floor of each chamber for a vote before President Biden can sign it into law.  No dates for such votes have been set. 
  • The Senate Subcommittee on Intellectual Property held a hearing titled “The NO FAKES Act: Protecting Americans from Unauthorized Digital Replicas.”  At the hearing, the subcommittee considered a draft of the Nurture Originals, Foster Art, and Keep Entertainment Safe (“NO FAKES”) Act, which seeks to protect actors, musicians, and other performers’ likenesses from unauthorized replicas that are generated using artificial intelligence.  The hearing featured testimony from record labels, entertainment industry associations, and academia.  Further information on the hearing, including video and testimony, is available here. 
  • The House Subcommittee on Oversight and Investigations announced that it will hold a hearing on May 8 at 10:00 a.m. ET titled “Examining Accusations of Ideological Bias at NPR, a Taxpayer Funded News Entity.”  At the hearing, the subcommittee members will question NPR’s President and CEO, Katherine Maher, regarding concerns over NPR’s lack of diversity in the viewpoints of its staff and in its coverage of issues.  The hearing will be live streamed and available here.
• When will broadcasters have to file the FCC Form 395B report – classifying their employees into job categories and reporting on their race, ethnicity, and gender?  Activity this week related to the FCC’s February Report and Order (see our article here) voting to reinstate the Form could affect the answer to that question:
  • The FCC announced that the Order will become effective on June 3.  However, compliance will not be required until the Office of Management and Budget (OMB) completes its review of the form to be used for the reports.  The FCC’s Media Bureau will issue a public notice announcing the deadline when the OMB review is complete.  Once that happens, broadcasters would need to file each year by September 30.
  • However, two petitions for reconsideration (see here and here) were filed by Catholic broadcasting groups asking the FCC to revisit its reinstatement of the Form.  The petitioners oppose the FCC’s inclusion of a non-binary option for the Form’s gender identity reporting category arguing, among other things, that this option violates their First Amendment religious freedoms by compelling speech about a gender option in which they do not believe.  One petitioner requests that the FCC suspend broadcasters’ obligation to comply with the gender identity reporting requirement while the matter remains pending.  Instead of asking the FCC to review its own action reinstating the Form, the National Religious Broadcasters (NRB) association and one of its members, American Family Association, filed a petition for review with the US Court of Appeals, seeking to have the Court overturn the FCC’s action (see the NRB Press Release).  Other court appeals may follow. 
• The FCC’s Media Bureau affirmed its dismissals of three LPFM construction permit applications due to the applicants’ failure to comply with the FCC’s rules governing new LPFM station applications:
  • The Bureau affirmed its dismissal of an Alabama LPFM construction permit application because the proposed coordinates for its transmitter site were such that the applicant was not local as required by the rules (neither its headquarters nor the residence of 75% of its board members were within required radius of its proposed station’s transmitter site – 10 miles in the Top 50 markets, 20 mile outside those markets).  The Bureau rejected the applicant’s request to correct what it claimed was a clerical error in the coordinates, explaining that the qualification requirements must be met based on the information in an applicant’s “Tech Box” portion of its initial application, and the failure to meet those requirements cannot be corrected after the application filing deadline.
  • The Bureau affirmed its dismissals of a Washington and a Pennsylvania LPFM construction permit applications for their failures to meet the minimum distance spacing requirements necessary for protecting nearby FM and LPFM stations, rejecting each applicant’s arguments for reinstatement of their applications because the LPFM application procedures clearly state that initial applications failing to show compliance with the FCC’s channel spacing requirements are to be dismissed without an opportunity to amend.  In the Pennsylvania decision, the Bureau again made clear that it relies on the technical parameters submitted in the “Tech Box” portion of the initial application – not on information set out elsewhere in the application or otherwise “widely known.”
• The FCC’s Media Bureau released a Notice of Proposed Rulemaking asking for comments on an applicant’s petition for rulemaking proposing the substitution of Channel 285C1 for vacant Channel 235C1 at Canadian, Texas to allow its station KPQP, Panhandle, Texas to move from Channel 291C3 to Channel 235C3.  Comments and reply comments in response to the petition will be due June 24 and July 9, respectively.

On our Broadcast Law Blog, we took a look at the upcoming regulatory deadlines affecting broadcasters in May, including comment deadlines on a number of emergency communications proposals, the effective dates of the FCC’s zonecasting order allowing the origination of limited amounts of programming by FM booters, and the opening of several windows for Lowest Unit Rates required to be charged for ad time bought by political candidates in upcoming elections. 

May 6 is the deadline for radio and television stations listed in the EEO audit notice released by the FCC’s Enforcement Bureau last month to upload their audit responses to their online public inspection files.  The FCC randomly audits approximately 5% of all broadcast stations each year regarding their EEO compliance.  Audited stations and their station employment units – which are commonly owned stations serving the same area – must provide to the FCC their last two years of EEO Annual Public File Reports and documentation demonstrating that the stations did everything that is required under the FCC’s EEO rules.  See our article here for more detail on EEO audits and how seriously the FCC takes broadcasters’ EEO obligations.

May 6 is also the deadline for reply comments on the FCC’s February Notice of Proposed Rulemaking, in which it proposes to adopt a system to facilitate multilingual alerts for the Emergency Alert Service (EAS).  The FCC proposes that public safety and other groups that originate alerts would be provided pre-scripted, pre-translated alert messages covering various emergencies.  These pre-scripted alerts would be provided in thirteen non-English languages that alert originators can distribute during emergencies to TV and radio broadcasters, cable service providers, and other EAS participants.  Among other questions, the FCC is seeking comment on whether a station receiving these pre-scripted alerts in multiple languages would have to broadcast the alert only in the language of its programming, or whether it would have additional obligations to broadcast alerts in other languages common in its service area. 

May 13 is the deadline for filing reply comments in another proceeding dealing with emergencies – the FCC’s January Notice of Proposed Rulemaking in which it proposes to require TV and radio stations to file reports with the FCC regarding station operational outages in the FCC’s Network Outage Reporting System (NORS) database and on their operating status during disasters in the FCC’s Disaster Information Reporting System (DIRS) database.  While DIRS reporting is currently voluntary for broadcasters, NORS reporting is not currently required or available to broadcasters.  Reply comments are due June 12.

May 20 is the deadline for filing comments in a third proceeding dealing with emergency broadcast matters.  That is the deadline for comments on the FCC’s March Notice of Proposed Rulemaking in which it proposes the creation of a new EAS event code for missing and endangered persons.  In the Notice, the FCC is seeking comment on whether to apply the new EAS alert code to individuals over the age of 17, missing adults with special needs or circumstances, and missing adults who are endangered or who have been abducted or kidnapped.  Reply comments are due June 17. 

On matters not dealing with emergency communications, LPFM applicants have until  the end of a settlement window on May 14 to resolve mutually exclusive (MX) new LPFM construction permit applications filed during the December 2023 filing window, a list of which can be found here.  Last month, the Bureau identified these MX application groups (conflicting applications which cannot all be granted consistent with the FCC’s technical rules) and announced the settlement window in which applicants can file settlement agreements, time-share agreements, or technical amendments to resolve their conflicts.  Further information on the settlement window’s requirements can be found here and here. 

May 16 is the effective date of the FCC’s April Report and Order authorizing experimental program origination on FM booster stations – allowing the initiation of “zonecasting” or “geocasting” service.  This means that, beginning on May 16, a licensed FM station may seek experimental authority to originate programming on up to 25 FM booster stations for up to one year – subject to extension if the FCC has not adopted final service rules for these boosters by the end of the experimental period.  Petitions for reconsideration of the Report and Order are also due May 16.  Comments are due on that same date to address the FCC’s proposals for processing, licensing, and service rules to permit the use of FM booster program origination on a permanent basis.  Reply comments on the proposal for final service rules are due June 17.  See our article here for our discussion of that decision.

Looking ahead to June, June 3 (as June 1 is a weekend day) is the deadline for radio and television station employment units with five or more full-time employees licensed to communities in Arizona, District of Columbia, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, and Wyoming to upload their Annual EEO Public File Reports to station online public inspection files.  The FCC’s Mid-Term EEO Reviews also commence on April 1 for all radio station employment units in Michigan and Ohio with eleven or more full-time employees. Radio clusters in those states, as part of the uploading of their annual public file reports, will need to note if they have between 5 and 11 full-time employees in their employment unit, as those units EEO performance is not reviewed at the mid-point of their renewal. 

The political season continues in May, and broadcasters serving Colorado, Delaware, Georgia, New York, Oklahoma, Utah, and Virginia should be aware of the opening of the following political windows for primaries and elections scheduled to occur in June – meaning that Lowest Unit Rates apply to sales to candidates and their authorized committees (see our article here on the basics of computing LUR): 

* Runoff election with an abbreviated LUR period due to date of preceding election.

As a refresher, in the 45 days before a primary election, and 60 days before a general or special election, broadcasters must extend to legally qualified candidates their lowest unit rate and continue to follow all other applicable political broadcasting rules.  So, the lowest unit rate period will be in effect at some point next month for stations serving states that have primaries or elections in June.  For a deeper dive on how to prepare for the 2024 elections, see our post, here, which also includes a link to our comprehensive Political Broadcasting Guide.  Also take a look at our 2024 Broadcasters’ Calendar to see if your state has an upcoming primary, general, or special election (though confirm these dates locally as some dates have changed since the calendar was prepared). 

As always, check with your attorneys and advisors to see if there are other dates not mentioned here that are of importance to your station.  Always stay on top of all regulatory requirements.

• Perhaps the biggest regulatory news of the past week came not from the FCC, but instead from the Federal Trade Commission.  The FTC, in a 570-page order, adopted rules that ban the use of noncompete provisions in employment agreements (and clauses that act like noncompetes to limit employee mobility) in virtually all instances except when the promise of a noncompete is by a seller in connection with their sale of a business. The rules apply to anyone working for a company, including interns and independent contractors. Beginning at page 367 of its order, the FTC rejected arguments that contracts with broadcast on-air talent should be exempt from the ban, suggesting that companies have other ways to protect their investment in employees other than through noncompete agreements.  While applauded by labor and employee-rights organizations, the action has been condemned by many business groups who, in some cases have already challenged the FTC’s authority to adopt such a sweeping decision impacting so many aspects of the economy based solely on the FTC’s authority to prohibit unfair methods of competition.  Unless stayed by the FTC or by a Court, the rule will go into effect 120 days after it is published in the Federal Register. 
• In a ruling that may impact many “side-car” companies that buy TV stations and enter into agreements with other broadcast companies that cannot own the station because of FCC ownership rules, the FCC’s Media Bureau granted an application proposing the assignment of TV station WADL, Mount Clemens, Michigan to Mission Broadcasting, a company closely related to Nexstar Media, Inc.  However, the grant came with many conditions that may well undermine Mission’s plans for the station.  Objections were filed against the application alleging that Nexstar will have de facto control of WADL or will exercise control of the station’s retransmission consent rights to the detriment of video programming distributors and consumers.  While the Bureau permitted Mission to acquire WADL, it imposed a number of conditions to limit Nexstar’s control, including prohibiting Nexstar from financing WADL’s acquisition (it cannot even provide a loan guarantee), it cannot have an option to acquire WADL in the future, Mission must keep at least 70% of all of WADL’s advertising revenue, and Nexstar cannot provide more than 15% of WADL’s programming (even though the station was going to be a CW affiliate, and CW is owned by Nexstar). 
• The Media Bureau entered into a Consent Decree with a New York noncommercial educational (NCE) FM station to resolve an investigation into its compliance with the FCC’s underwriting and sponsorship identification rules.  Petitions challenging the station’s license renewal alleged that, during station fundraising activities, its on-air hosts (or their guests) were allowed to promote their own products and services – efforts which entailed repeatedly mentioning the price of the promoted product or service and excessively complimenting or praising the promoted item, with the station getting a portion of the proceeds to fund its operations.  While the objections acknowledged that NCE stations can give away premiums to donors, those premiums are usually pre-purchased by the station at a flat fee, and don’t involve the station in revenue sharing promotions that benefit commercial companies.  This conduct seemingly led to the reference in the Consent Decree that the station impermissibly promoted for-profit products and services in spots that contained comparative and qualitative descriptions, pricing information, calls to action, and other inducements to buy, all prohibited by the NCE rules.  The Decree imposed a short-term license renewal, required payment of a $25,000 civil penalty and a compliance plan to ensure future compliance with FCC rules.   
• The FCC’s Office of Economics and Analytics issued the FCC’s biannual call for comments on the State of Competition in the Communications Marketplace.  The FCC seeks comments on a list of questions about competition in the video and audio marketplaces, including the impact of digital competitors on radio and TV stations and the role that regulation plays in the competitive landscape.  The FCC uses these comments to prepare a report to Congress on competition issues and sometimes references the reports in proceedings dealing with competition, including FCC proceedings dealing with its ownership rules. Comments are due June 6 and reply comments are due July 8. 
• The FCC’s Public Safety and Homeland Security Bureau extended the comment deadlines for the FCC’s January Notice of Proposed Rulemaking proposing to require TV and radio stations to file reports regarding station operational outages in the FCC’s Network Outage Reporting System (NORS) database and on their operating status during disasters in the FCC’s Disaster Information Reporting System (DIRS) database. Reporting by broadcasters is now optional, but the FCC asks in this proceeding if that obligation should be mandatory.  Comments and reply comments are now due May 13 and June 12, respectively. 
• As the result of the FCC’s sweep of the Boston area (and other parts of Massachusetts) for pirate radio activities, the FCC proposed to fine seven Massachusetts pirate radio operators.  The PIRATE Act requires such sweeps in markets with substantial pirate radio activity and authorized fines (recently adjusted for inflation) of up to $119,555 per day and a maximum of $2,391,097.  The pirate radio operators have 30 days to pay either pay their fines or to object to the FCC’s proposed action.  The FCC proposed the following fines against each pirate radio operator: a $120,000 fine for broadcasting on 101.9 FM in Boston, MA, a $20,000 fine for broadcasting on 87.9 FM in Hyannis, MA, a $40,000 fine for broadcasting on 102.1 FM in Brockton, MA, a $40,000 fine for broadcasting on 93.1 FM in Cotuit, MA, a $40,000 fine for broadcasting on 96.5 FM in Brockton, MA (which involved 2 pirate operators), and a $597,775 fine for broadcasting on 89.3 FM in Mattapan, MA and on 105.3 FM in Brockton and Randolph, MA.
• The FCC’s Media Bureau granted several assignment applications related to Cumulus Media’s debt restructuring, conditioned on the suspension of a foreign investor’s voting rights and involvement in Cumulus’ management until the Bureau completed its review of a this new investor. In 2020, the FCC approved Cumulus’ petition to exceed the 25% limit on foreign investment set out in Section 310(b)(4) of the Communications Act – provided that Cumulus would in the future request specific approval for any new foreign investor proposing to hold more than a 5% voting or equity interest.  In January 2024, a Singaporean investor filed a report with the U.S. Securities and Exchange Commission (SEC) stating that it had interests in Cumulus exceeding the 5% threshold.  Cumulus then filed a petition seeking FCC approval of this new foreign investor, stating that it did not solicit the non-compliant foreign investment and was unaware of it until the SEC report was filed.  Because Cumulus was not responsible for the foreign investment and the current applications were unrelated to the qualifications of this investor, the Bureau waived its normal process of approving all foreign investors first and issued the conditional grant.
• The Bureau affirmed its dismissal of an Oregon FM station’s license renewal application pursuant to Section 312(g) of the Communications Act, which states that a station’s license will be automatically cancelled if the station that has not operated as authorized for a full year, unless the FCC finds that there are public interest factors warranting the preservation of the license.  Here, the station operated from an unauthorized location for over a year, leading to the cancellation.  The Bureau rejected the licensee’s claim that no authority was necessary as its move of its antenna from one site to another was less than one second different in geographical coordinates, concluding that a move of less than three seconds does not require a construction permit only when it involves a coordinate correction, and even then, the move requires FCC approval in a license application after the move. Neither a construction permit nor a license application was filed by this licensee.  The Bureau also dismissed the station’s argument that it was exempt from requesting authority to move to a new transmission facility as the antenna at the new site was mounted in a tree, and thus did not require construction of a new tower.  The Bureau dismissed the station’s argument as baseless, noting that placing a station’s antenna in a tree required prior FCC authorization just as placement of a station’s antenna on a tower because the FCC needs to know the precise location of any station’s transmission facilities to ensure adequate interference protection to other stations and the safety of air navigation.  Finally, the Bureau rejected the station’s argument that its license should be reinstated since it provided a second, noncommercial service within a Tribal area because the FCC does not recognize such service as providing an exception to Section 312(g). 

• The Bureau proposed a $3,000 fine against a Class A TV station operated by a well-known Massachusetts noncommercial operator for failing to timely upload one quarterly issues/programs list and six children’s programming reports to its online public inspection file.  These documents were uploaded between one day and over one year late. The operator argued that the late-filed quarterly issues programs list should be excused as it acquired the station only two weeks before the end of the quarter, and it has to wait for program information from the prior owner.  The FCC faulted the licensee for not having timely uploaded information for the portion of the quarter in which it did hold the license. 
• The Media Bureau took several actions concerning LPFM stations:
  • The Bureau dismissed two Texas LPFM construction permit applications (see here and here) because the applicants failed to demonstrate that they were nonprofit organizations eligible to be LPFM licensees finding that the organizational document provided by each applicant did not demonstrate that it was been filed and accepted by a state as a valid nonprofit organization. 
  • The Bureau affirmed its dismissals of LPFM construction permit applications in Washington and Wisconsin because the applicants failed to meet the co-channel and/or second-adjacent channel spacing requirements for protecting nearby full-power FM stations.  The Bureau rejected each applicant’s arguments for reinstatement of their applications because the LPFM application procedures clearly state that applications failing to comply with the co-channel and/or second-adjacent channel spacing requirements would be dismissed without an opportunity to amend.  In the Washington case, the Bureau noted that applicants relying on staff advice do so at their own risk.  In the Wisconsin decision, the Bureau noted that it relies on the technical parameters submitted in the “Tech Box” portion of the application – not parameters set out in any attached exhibit – and as the information in the applicant’s Tech Box did not show compliance with the spacing requirements, the application must be dismissed. 
• In a very rare, if not unprecedented action, SGCI Holdings III LLC, the Standard General company that had sought to acquire the TEGNA television stations, and its managing member Soohyung Kim, filed a civil lawsuit against the FCC, Chairwoman Jessica Rosenworcel and Media Bureau Chief Holly Sauer personally, broadcast station owner Byron Allen and his company (an allegedly unsuccessful bidder for the TEGNA stations), and a number of other individuals and groups including parties who argued before the FCC against the approval of the transaction, alleging that they had conspired to cause the FCC to “pocket veto” the transaction by designating it for hearing (see our article here) for discriminatory reasons because Mr. Kim was not the “right type of minority.”  For more details, see press reports about the lawsuit here, here, here, here, and here (note that several have links to the complaint, and that several are subscription sites). 

On our Broadcast Law blog, we discussed the 11 states that had enacted state laws regulating the use of artificial intelligence (or “deep fakes” or “synthetic media”) in political advertising – with some states purporting to ban the use entirely, and most allowing it if it is labeled to disclose to the public that the images or voices that they are experiencing did not actually happen in the way that they are portrayed.  As noted in the article, there are concerns about some states imposing obligations on broadcasters to ensure that AI in political ads is properly labeled when broadcasters have no way to know if AI has in fact been used and, for candidate ads, the broadcaster cannot reject the ad because of the “no censorship provisions” of Section 315 of the Communications Act even if they know AI has been used.  Since we published the article, two additional states (New York and Florida) have enacted AI statutes.   

The new states that have adopted legislation regulating AI in political ads in 2024 are Idaho, Indiana, New Mexico, Oregon, Utah, and Wisconsin.  These join Michigan, California, Texas, Minnesota, and Washington State which had adopted such legislation before the start of this year.  Broadcasters and other media companies need to carefully review all of these laws.  Each of these laws is unique – there is no standard legislation that has been adopted across multiple states.  Some have criminal penalties, while others simply imposing civil liability.  Media companies need to be aware of the specifics of each of these bills to assess their obligations under these new laws as we enter this election season where political actors seem to be getting more and more aggressive in their attacks on candidates and other political figures. 

While some of the laws are relatively clear that they are meant to govern only the creators of the political ad (see, e.g., the laws in Texas and Wisconsin), others are worded more broadly, and apply not only to those who create the ads, but also to those who disseminate the ads, potentially making media companies, including broadcasters, liable for transmitting the ads containing AI (or for not properly labeling such ads).  Most but not all of the states that have adopted laws contain some exemption for broadcasters or other media companies that are simply paid to run political ads (thus far, Minnesota’s law contains no such exemption).  But some, for example the law adopted in New Mexico (and the law for online publishers in Michigan), require that, to qualify for the exemption, the media entity must adopt and make available to advertisers a policy that prohibits the use of AI in political ads without complying with the disclosure or other requirements imposed by the state law.  Thus, media companies that operate in these states need to be adopting and disseminating such policy statements.

We have worked with media companies and media organizations in many states advising them about pending legislation in their states.  Among the biggest concerns have been states that have proposed some exemption for media companies paid to run political ads but require that the station make “reasonable” or “good faith” efforts to weed out ads that are not properly labeled or which otherwise violate the proposed state law.  Another formulation has been to take concepts from the law of defamation, and graft them onto the AI laws, providing an exemption unless the media company “knows or should know” of the use of a “deep fake” or “synthetic media” in the advertising. These statutes raise significant compliance issues.

First, under FCC rules and the Communications Act, broadcasters and local cable operators are forbidden from censoring any ads from candidates or their authorized committees.  This “no censorship” provision requires broadcasters to run candidate ads in the way that the candidate has produced those ads – no matter how objectionable the content in those ads may be.  Because broadcasters and local cable companies cannot censor the ad, they are not liable for the content of those ads (for more on the “no censorship” rules, see our articles here and here).  The FCC and the courts have even required broadcasters to run racist content or graphic anti-abortion ads that may be disturbing to some viewers – even in programming that may be targeted at children.  Thus far, FCC informal guidance has only suggested that no censorship can be overcome by ads that are legally obscene or possibly ones that endanger public safety (e.g., if they contain an EAS tone).  Thus, the no censorship provision could require broadcasters to run candidate ads containing AI even if the ads don’t comply with the labeling requirements imposed by a state statute.

An even broader issue arises as it may be impossible to determine when AI is used in the generation of a political ad.  From articles that I have read and discussions that I have had with people familiar with AI technology, already many audio ads using AI are almost impossible to identify.  The identification of video ads using AI is already extremely difficult, with many of the tools coming back with many “false positives,” identifying ads as using AI that in fact do not.  These deep fake video ads will only get better – making them even harder to identify.  How is a broadcaster, particularly a small broadcaster without access to sophisticated technologies, supposed to identify such ads?  In these days where some candidates are all too ready to declare even true stories “fake news,” if a broadcaster is potentially held liable for running ads that may have used AI, it would seemingly become routine for candidates, every time an attack ad is run, to claim that the ad should be pulled as it contains AI, leaving broadcasters with the impossible task of determining whether or not to pull it from the airwaves.  Many may shy away from all political advertising to avoid being put in that position (though broadcasters cannot reject advertising from federal candidate because of the Communications Act’s “reasonable access” provision).

This same quandary may well arise as defamation claims are made about ads containing AI (see our discussion of that issue here).  But adding state criminal or civil liability on top of potential defamation claims adds a whole new risk for media companies.  There may also be defenses available to a defamation claim that may not lie against some of these proposed state laws (for instance, in one of our articles on the issue of media liability for AI in advertising, we note the questions raised by an ad with a voice of a candidate reading the actual social media posts of that candidate – is putting the words of the candidate into their own voice really defamatory?). 

Whether defenses to these state laws can be successfully raised, including questions as to their constitutionality, remains to be seen. Many of the proposed statutes are very broad, seemingly banning any use of AI, or requiring its disclosure, even if just used for technical production purposes rather than for imitating a candidate or other political figure.  In addition, why are AI “synthetic media” uses banned, while photoshop, selective editing, or the use of actors to portray a candidate are not covered by many of these bills?  But as this has been such an active area of legislative effort in the last few months, media companies must be paying attention to the legislative frenzy in this area.  Plus, there are federal bills pending but not yet adopted, that we will try to cover in a subsequent post.  Stay alert to all this activity to see how it may affect your operations in this most active political year. 

• The FCC announced several dates and deadlines in proceedings of importance to broadcasters:
  • The FCC announced that May 16 is the effective date of its decision authorizing limited program origination by FM booster stations.  This means that, beginning on May 16, a licensed FM station may seek experimental authority for up to a year (which can be renewed) to originate up to 3 minutes of programming per hour on an FM booster station.  The FCC also announced that comments are due May 16 on the FCC’s proposals for the final service and licensing rules for FM booster stations that originate programming.  Reply comments are due June 17.  See our Broadcast Law Blog article here for more details on this FCC decision.
  • The FCC announced that comments are due May 20 in response to its Notice of Proposed Rulemaking proposing a new Emergency Alert System (EAS) alert code for missing and endangered adults.  In the Notice, the FCC is seeking comment on whether to apply the new EAS alert code to individuals over the age of 17, missing adults with special needs, and missing adults who are endangered or who have been abducted or kidnapped.  Reply comments are due June 17. 
  • The FCC announced that April 19 is the effective date of its Report and Order requiring cable operators and direct broadcast satellite (DBS) providers to specify the “all-in” price for video programming in their promotional materials and on subscribers’ bills.  The “all-in” price includes all video programming charges, including those for broadcast retransmission consent, regional sports, and other programming.  Although the Order is effective, cable and DBS operators have until December 19, 2024 to comply with the new rules (or later if the Office of Management and Budget has not completed its review of the new rules by then).  Small cable operators (those with $47 million or less in annual receipts) will have until March 19, 2025 to comply with the “all-in” rule. 
• The FCC released a Notice of Proposed Rulemaking (NPRM) seeking comments regarding the current state of the marketplace for diverse and independent video programming – including the obstacles faced by independent programmers (non-broadcast programmers that are not affiliated with either a multichannel video programming distributor (MVPD), broadcast network, or broadcast station licensee) in seeking carriage by MVPDs and online video distributors (OVDs).  In 2016, the FCC launched a proceeding to examine these questions, which it terminated in 2020 after it did not receive comments on the issues.  The FCC has now determined that it needs to revisit these issues after its 2020 Communications Marketplace Report identified concerns about marketplace obstacles faced by independent programmers.  To alleviate these concerns, the FCC proposes to prohibit certain contractual provisions in program carriage agreements between independent programmers and MVPDs -most favored nation provisions (terms that entitle MVPDs to more favorable contractual terms that a programmer has provided to another MVPD or OVD) and provisions that restrict alternative distribution methods including limiting a programmer from exhibiting its programming on OVDs.  While the FCC said that it is not aware of concerns about the effect of these contractual terms on programmers affiliated with a broadcast network or station licensee, it nevertheless seeks comment on whether its proposed ban should cover these entities as well.
• The House Energy and Commerce Committee announced that the Subcommittee on Innovation, Data, and Commerce will hold a hearing on April 30 titled “Draft Legislation to Preserve Americans’ Access to AM Radio.”  At the hearing, the subcommittee will consider the proposed AM for Every Vehicle Act, which requires that automobile manufacturers retain AM radio in the car dashboard to prevent carmakers from removing AM (and potentially FM) from the car and replacing it with other entertainment options.  As we discussed on our Blog last week, while this Act has garnered much support on Capitol Hill, there has been a concern among some legislators as well as the Editorial Board of the Wall Street Journal about mandates on the car industry, particularly to protect the AM technology that some see as outdated.  The hearing will be live streamed here.
•  The Senate Judiciary Committee’s Subcommittee on Privacy, Technology and the Law held a hearing on April 16 to discuss “AI: Election Deepfakes.”  State government officials and AI specialists talked about the potential for deepfakes to disrupt elections and steps that can be taken to minimize the threat they pose.  A video recording of the hearing, and witness statements, are available on the committee’s website, here. 
• The FTC announced that it will hold an open meeting on April 23 to issue a final rule that would prohibit most employers from using noncompete clauses in employment agreements.  In January 2023, the FTC proposed to prohibit not only noncompete agreements but also any agreement that has the same effect as a noncompete agreement, including broad nondisclosure agreements that would preclude a worker from working in their field at a new company, or contract clauses that require an employee to repay a company for training costs if the employee leaves.  The proposed rule would apply not just to employees, but also to independent contractors, interns, and others performing work for a company.  The text of the final rule will not be made public until after the FTC vote at its April 23 meeting. 
• The FCC’s Media Bureau released a Notice of Proposed Rulemaking asking for comments on a TV station’s petition for rulemaking that proposes the substitution of Channel 33 for Channel 13 at Jacksonville, Florida.  The petitioner is proposing the channel substitution due to the inferior quality of its VHF channel.  The petitioner notes that although the proposed move to Channel 33 by its station – an NBC affiliate – would result in a reduction in the number of viewers served, the proposed change would not result in the loss of NBC service because NBC service is provided by other NBC stations whose contours overlap those of the station.  The petition serves as another example of the superiority of UHF channels for the transmission of digital TV signals.

On our Broadcast Law Blog, we discussed the FCC’s regulations on how broadcasters conduct on-air contests, and the importance that the FCC places on stations abiding by the rules that they adopt to govern their contests, following the FCC Enforcement Bureau’s recent proposed fine on a California FM station for failing to deliver a winner’s prize in the time set by the contest rules.

The prize money that was awarded late was only $396, so some might think that a proposed fine of $8000 is excessive, though the Bureau indicates in a footnote that there were 98 prize winners in the same contest that did not timely receive their prizes.  The Bureau itself noted that the “base forfeiture” for a violation of the contest rules set out in the FCC’s schedule of fines is $4000.  But the proposed fine was adjusted upward in this case because the FCC perceived that, for a large company such as the licensee of this station, a $4000 fine might simply be seen as a cost of doing business, and not act as a sufficient deterrent against future bad conduct.  The FCC even noted that it had the power to fine the station for each day that the contest award was not made, which could have resulted in a fine of hundreds of thousands of dollars.

The licensee tried to excuse its conduct, blaming factors including the COVID lockdowns and a ransomware attack that disabled the station’s systems.  The FCC staff did not credit these justifications, as the prize should have been awarded by March 2, 2020, before the COVID lockdowns began and before the October 2020 ransomware attack.  So, while these events may have slowed the processing of the payment, as they occurred after the date by which the rules required that the payment should have been made under the terms of the contest rules, the FCC did not see them as an excuse for not awarding the prize as set out in those rules.

The Notice illustrates the importance of broadcasters being very careful about the way that they conduct their on-air contests.  We’ve noted on this Blog many instances where the FCC has fined broadcasters for not conducting a contest according to the rules that they set out.  Timeliness of the award of the prize has indeed led to fines in prior cases (see this article).  We also noted cases where ambiguous rules were construed against the station (here and here).  This includes a case where the rules were accurately given in on-the-air announcements, but not in the written online version.  In a recent case, the failure to keep the rules posted on the station’s website for a full 30 days after the contest ended was also a violation (see our articles here and here on the FCC’s decision to allow stations to post full contest rules stating all material terms on their websites instead of reciting them on the air, as was once required).  Misstating the prize or its value can also lead to fines (see, for example, the cases we noted here and here).  And, of course, not awarding a prize to someone who seemingly qualified to receive it can also lead to problems (see cases noted here and here).

Most FCC decisions in contest cases are complaint-driven.  And the failure to timely award a prize that someone is expecting is one way to vastly increase a station’s chance of being hit with an FCC enforcement action.  It is very important for stations to not only conduct a broadcast contest as advertised but to also make sure that their rules are clear and unambiguous, the location of those rules are advertised on the air, and all persons involved in the conduct of the contest (from those on-air employees talking about the contest to those back-office employees who are responsible for the fulfillment of any prize obligations) must be very familiar with all terms of the contest and must observe them to the letter.  As last week’s decision shows, the FCC is ready to fine broadcasters who do not observe all rules for their contests, and it will construe any ambiguity in any set of rules against the broadcaster.  Contests are an important part of the fun of broadcast radio, but they must be done right. 

• The debate over the AM for Every Vehicle Act intensified this week, with the Wall Street Journal’s Editorial Board publishing an article opposing Congressional action to require automobile manufacturers to include free over-the-air AM radio in every car.  The CEO of the National Religious Broadcasters responded in an article in Radio World magazine.  We summarized the arguments and offered more context on our Broadcast Law Blog, here. 
• The FCC’s Enforcement Bureau proposed an $8,000 fine against a California radio station for failing to comply with the FCC’s contest rules.  The Bureau found that the radio station violated the rules of its contest by not delivering to a contest winner their $396 prize for over a year after the winner submitted all required paperwork.  The contest rules stated that a winner would receive their prize within 30 days of completing the paperwork.  The Bureau rejected the station’s argument that COVID-19 pandemic and a ransomware attack caused the problem as, under the rules, the prize should have been delivered no later than March 3, 2020 – before the pandemic lockdowns and before the attack occurred. 
• The FCC’s Media Bureau granted Pinal County, Arizona’s request to modify the local markets of four Tucson, Arizona TV stations by adding the county.  Market modification allow broadcasters, satellite TV providers, and local governments to request changes to a TV station’s local market to reflect market realities for purposes of satellite carriage – enabling a station to expand its carriage rights.  The Tucson stations are assigned to the Tucson (Sierra Vista) DMA.  Pinal County – which is assigned to the Phoenix (Prescott) DMA – requested that it be assigned to the Tucson stations’ market.  The Bureau found that DISH and DIRECTV’s carriage of the Tucson stations in the county was technically feasible and weighed the five market modification factors used by the Bureau in deciding this kind of case.  The Bureau found that: (1) the stations had no historic satellite carriage in the county, which weighed against the proposed modification; (2) the stations provided local service to the county because their technical service contours reach much of the county and the stations provided extensive local programming for the county; (3) adding the county to the stations’ market would promote access to in-state broadcast signals since all of the stations’ signals originate in Arizona; (4) the stations were not uniquely qualified to serve the county due to the large number of Phoenix stations already carried there by satellite providers, but the Bureau assigned no weight to this factor as, while this factor can bolster a market modification request, the lack of unique service is not usually counted against a petitioner; and (5) there was no evidence of significant viewership of the stations in the county, but the Bureau only gave this factor limited weight – noting that it was rare to find any evidence of viewership in a satellite market modification petition, and in this case there was at least some local viewership, and likely more in parts of the county closer to Tucson.  The Bureau concluded that, on balance, there was a sufficient local relationship between the Tucson stations and Pinal County to grant the proposed modification.
• Reply comments were filed this week in response to the FCC’s January Notice of Proposed Rulemaking proposing to prioritize the review of certain applications by a broadcast station providing at least three hours per week of local programming.  As we discussed here, the proposed prioritization policy is intended to incentivize stations to provide local programming – which a majority of the Commissioners suggested was necessary after the FCC’s 2017 elimination of the main studio rule (see our articles here and here).  NPR and NAB (here and here) state that the FCC’s proposal would do little to incentivize broadcasters to produce more local programming, and these commenters in addition to others (see here and here) encourage the FCC to do more to support broadcast localism such as refocusing its efforts on policies that enable broadcasters to compete in today’s hyper-competitive marketplace.  Other commenters (see here and here) disagreed on whether the three-hour local programming threshold is sufficient to encourage broadcasters to produce local programming.  Finally, one commenter stated that reinstating the main studio rule would be detrimental to rural communities and would tip the scale toward unprofitability – thereby leading to smaller, rural radio stations ceasing operations. 
• The FCC’s Enforcement Bureau issued two Notices of Illegal Pirate Radio Broadcasting to landowners in Beacon, New York and San Francisco, California for allegedly allowing pirates to broadcast from their properties.  The Bureau warned the landowners that the FCC may issue fines of up to $2,391,097 under the PIRATE Radio Act if the FCC determines that the landowners continued to permit any individual or entity to engage in pirate radio broadcasting from their properties.
• The FCC’s Media Bureau took two other actions against broadcasters for violations of the FCC’s rules:
  • The Bureau fined the licensee of an Alabama FM translator station $16,500 for failing to request FCC authorization for its continued use of temporary facilities for two years after an STA expired, and for operating the translator without proper FCC authorization during this period.  The licensee requested that the Bureau cancel or reduce the fine because the translator operated at a loss for two of the last three years and paying the proposed fine would threaten licensee’s ability to continue operating.  The Bureau rejected the financial hardship claim as a sale of the translator was pending and the fine constituted only a fraction of the sales price. 
  • The Bureau entered into a Consent Decree with the licensee of several North Dakota and Minnesota noncommercial TV stations which required payment of a $8,150 penalty.  The Consent Decree resolved an investigation into the licensee’s apparent failure to timely upload several of the stations’ Quarterly Issues/Programs Lists to their Online Public Inspection Files and to completely disclose the late-filed lists in the stations’ license renewal applications.  Under the Consent Decree, the licensee must also implement a compliance plan to ensure future compliance with the FCC’s rules. 
• The FTC announced the winners of its Voice Cloning Challenge.  As we discussed here, the contest was intended to promote the development of ideas to protect from the misuse of AI-enabled voice cloning by having members of the public submit proposals for tools that can be used to prevent, monitor, and evaluate the malicious use of the technology.  There were three contest winners that will split a total of $35,000 in prize money: two small organizations focused on the development of devices and apps used for the detection of AI-enabled voice cloning, and a member of academia who developed a watermarking tool to identify voice cloning.  A fourth organization was recognized for its creation of technology that detects voice clones and audio deepfakes in real time.  The FTC noted the four winning submissions demonstrate the potential for developing multiple technologies that can mitigate the risks of AI-enabled voice cloning as there is no single solution to the problem.  The FTC also highlighted its other efforts to mitigate the harms of AI-enabled voice cloning, including proposing a comprehensive ban on impersonation fraud and affirming that the Telemarketing Sales Rule applies to AI-enabled scam calls.
• The House Subcommittee on Communications and Technology held a hearing titled “Where Are We Now: Section 230 of the Communications Decency Act of 1996.”  The hearing examined the purpose of Section 230 and discussed what Congress can do to modernize the law.  As we discussed here and here, Section 230 of the Communications Act was designed to insulate online platforms from liability for content created by others that is hosted on their sites.  Section 230 immunity had long been considered essential to the success of the Internet, but more recently there have been concerns that the law has had unintended consequences, such as enabling terrorist activity, promoting the exploitation of minors, and allowing discrimination and harassment.  A recording of the hearing can be found here, and the hearing memo can be found here.

On our Broadcast Law Blog, we discussed the FCC’s decision to allow FM boosters to originate limited amounts of programming that is different from what is broadcast on the booster’s primary station. 

While this Act has garnered much support on Capitol Hill, there has been a concern among some legislators about requiring mandates on a car industry, particularly for a technology that many see as outdated and in decline (see the declining numbers of AM stations we noted in our last weekly update on regulatory news for broadcasters, citing the FCC’s latest report on the number of broadcast stations in the country).  The Journal Editorial Board article takes that same position, almost treating the attempts to keep AM radio in cars as a joke, arguing that it imposes additional unnecessary costs on car makers – costs that will be borne by all car buyers, even those who don’t need or use AM radio.  The article suggests that the emergency communications function is unnecessary as there are other alternatives to receive emergency alerts even in rural areas of the country.  The article asks if mandating AM in the home is next, and suggests that, without a mandate, car makers could use AM as a competitive feature to attract consumers to brands that maintain these radios in the car.

This article received almost immediate opposition from the CEO of the National Religious Broadcasters in a response published in Radio World magazine, arguing that the costs of the mandate were small and the benefit great, especially since the likely replacement for free radio in the car is some paid service – not a pro-consumer move.  The response does not specifically address some of the other Journal statements.  For instance, the fact that AM in the car is specifically protected does not suggest that mandating AM at home is next – as there are totally different forces at work.  At home, consumers truly do have other options for receiving alerts – through TV, the internet, and other communications channels that are much more likely to be available in the home to consumers no matter in what part of the country they live. 

By contrast, in the car, not all consumers have access to internet options, and satellite usually not an alternative for local alerts.  AM has the benefit of covering great distances, which is why the Federal Emergency Management Agency has spent money to develop the sites of many high-power AM stations that have the ability to provide emergency alerts to rural areas with little other communications services available to the mobile user. 

These high-powered AM stations are also the ones most likely to still be economically viable, even if other smaller AM stations have struggled in areas where there is substantial competition from other over-the-air stations.  AM also remains viable and important in smaller markets, particularly in rural areas.  In fact, it often proves the only audio service that can be received.  To suggest that FM or cell phones are an alternative is an indication that the authors of the article have not driven some of the vast distances in rural America, particularly in the western US, where for many miles there is no access to FM or cell phone service. Thus, many former FEMA officials have recognized the service that AM provides to these rural areas in supporting passage of this legislation. 

The AM For Every Vehicle Act recognizes that this mandate may not be permanent.  It tasks the Government Accountability Office to review the availability of alternative means of providing free alerts to consumers and brief Congress as to the continuing need for the mandate proposed by the Act.

From the ongoing debate, it is clear that the legislation has traction in Congress, even in this election year.  If it was a dead issue, there would not need to be a debate.  The debate is one about whether the government should impose burdens on industry to protect those most vulnerable to gaps in information about emergencies and other events, including those who live in rural areas or those who rely on free media; or whether the burdens that would be imposed on the automotive industry are unnecessary as they protect only a minority of consumers.  The debate also raises questions as to whether the government should simply allow car companies to give consumers the choice of whether or not they will have access to these services.  Like so many other debates in government, perspectives are varied.  This is sure to be an issue that we will hear discussed in the radio sessions and in the halls, conference rooms, and social events in Las Vegas in the coming week. 

Numerous broadcasters, and the NAB, had opposed this effort, as we noted in a recent article on the controversy.  Their fear was that no matter how good the synchronization of these boosters may be, there will still be the potential for some interference.  Just by putting more signals on the FM band in close proximity to each other, some interference naturally will result.  Objections were also raised about the economic impact of the proposals.  With more radio inventory addressing fewer people, there are fears that the implementation of this proposal could drive down radio advertising prices far below the rate now in place.  In addition, there are worries about the impact that geocasting could have in outlying smaller markets – as big market stations could use boosters in outlying parts of their service areas to target advertisers in these areas, taking advertising away from the full power stations serving those outlying communities.  The FCC’s order last week noted that the New Jersey broadcasters expressed particular concern, as New York and Philadelphia stations could use boosters to target advertisers who now buy advertising on New Jersey stations to reach local consumers because rates on the big city stations are cost prohibitive for reaching a targeted audience.  The fear is that these advertisers will now use the boosters of big city stations and abandon their local broadcasters, and that big stations will get bigger and more dominant, at the expense of the local stations doing local service to these outlying areas.

Even though the proposal was hotly contested, the FCC nevertheless agreed to move forward and approve the use of these boosters to originate programming, dismissing the interference claims as unproven.  Essentially, the FCC decided that it did not want to stand in the way of a new technology.  While there may be costs, the Commission felt that the flexibility to offer these services outweighed all the concerns expressed by the objecting broadcasters.

The Commission decided to allow each primary FM station, commercial or noncommercial, to use boosters to originate up to 3 minutes of programming (or commercials) every hour.  Any FM station will be allowed to apply for as many as 25 boosters per main station.  There is no distinction made between the number of boosters permitted for a Class A FM or a Class C FM station.  In talking to one engineering consultant for a big group last week after this decision came out, he said that his group, in the most terrain obstructed markets, has rarely been able to use more than three boosters for any main station without interference issues.  Yet the FCC is now allowing stations to use as many as 25 boosters per station.

The FCC will require the boosters to repeat all EAS alerts broadcast by the main station.  The FCC proposes that boosters will also have political broadcasting obligations, presumably allowing federal candidates to get reasonable access to their localized service areas, and all candidates to get equal opportunities if any competing candidate is allowed to buy time on one of the boosters.  These and other service rules (including rules for FCC notification when a booster will be used for localized programming and for resolving any interference issues that do arise) will be finalized in a subsequent order that will set out the details as to how these boosters will operate.  The Commission will take further comments on these service rules after last week’s decision is published in the Federal Register. 

While the FCC will follow up with this subsequent order to set the permanent service rules, FM broadcasters will be allowed, as soon as the FCC’s decision is effective after it is published in the Federal Register, to apply to immediately provide localized services on boosters through experimental authority – though there really is nothing experimental about it.  The FCC will not require reports on the operation of these “experimental” operations, which are usually required for such experiments.  The FCC is also allowing commercialization of these experimental authorizations, something that is usually banned in experimental operations.

The FCC decision is a rare one in recent months – a unanimous decision to let the marketplace decide as to whether or not to deploy these program-originating booster stations.  The FCC is not willing to protect local services who fear disruption from these services, but instead it will allow their deployment and only react in the future if significant issues are raised.  It would not be surprising to see many of the concerns that have already been raised about this service reiterated in the upcoming proceeding to set the service rules – and those arguments may be able to rely on the actual experiences of stations that have implemented the service through an experimental authorization.  Stay tuned for more developments in this proceeding. 

• The FCC adopted a decision resolving the FCC’s long-pending proceeding on whether to authorize FM “zonecasting” or “geo-targeting,” permitting FM booster stations to originate programming on a limited basis.  Zonecasting enables broadcasters to air advertisements, news, or other content focused on small geographic areas by originating programming on an FM booster different than that which is aired on its primary station.  As we discussed here, many broadcasters were opposed to zonecasting because of the potential for interference and a negative impact on broadcast localism.  The FCC nevertheless approved its use for up to three minutes per hour on up to 25 boosters for any station.  While the FCC decided that it would adopt processing and service rules for zonecasting in a later order, FM broadcasters will be allowed to originate programming on boosters under experimental authority until the final rules are adopted. 
• The FCC affirmed the Enforcement Bureau’s decision to revoke a Pennsylvania FM station’s license because of its owner’s felony conviction for secretly taking nude photos of a woman, impersonating her on online dating sites, deleting evidence when the police investigated, and failing to present any evidence on his own behalf or to respond to discovery and other pleadings before an FCC Administrative Law Judge (ALJ) who had been tasked by the FCC to hold a hearing to determine if his conviction meant that he did not have the character qualifications to hold an FCC license.  After the hearing was terminated because he presented no exculpatory evidence and did not otherwise defend himself, the FCC’s Enforcement Bureau issued an order revoking his license.  This week’s decision resolved the appeal of the revocation order.  The Commission concluded that it was too late to introduce evidence first raised during that appeal about his station’s meritorious programming, his illness, and his reputation in the community, as that evidence should have been presented to the ALJ.  The decision also found that the felonious misconduct was recent, premeditated, and the destruction of the evidence was akin to fraudulent misrepresentation to a government entity, all of which showed that the licensee’s misconduct was sufficiently egregious to prevent him from holding an FCC license. 
• The FCC released its quarterly public notice, Broadcast Station Totals, itemizing the number of stations currently operating in each broadcast service.  The release shows that, compared to the same release from a year ago, there are 45 fewer AM stations and 18 fewer commercial FM stations, but 101 more noncommercial FM stations.  There were 5 more commercial UHF TV stations and 2 more commercial VHF TV stations; and 3 more noncommercial UHF TV stations, with 3 fewer noncommercial VHF TV stations. 
• The FCC’s Media Bureau issued two decisions concerning TV must-carry rights:
  • The Bureau concluded that an Alabama commercial TV station was entitled to mandatory carriage by DISH in the Columbus-Opelika DMA.  Under the Satellite Home Viewer Improvement Act of 1999 (SHVIA), satellite TV providers must carry, upon demand, a TV station in its local market.  In implementing SHVIA, the FCC found that while a station’s local market for satellite carriage purposes is generally its Nielsen-defined designated market area (DMA), it may also include its community of license’s DMA if it differs from its Nielsen-assigned DMA.  In this case, the station was licensed to Opelika in Lee County, Alabama – which is in the Columbus-Opelika DMA.  The station has a distributed transmission system providing service to the Atlanta DMA, and Nielsen assigns the station to that DMA.  DISH recognized the station’s mandatory carriage rights only in the Atlanta DMA and in Lee County, while the station asserted rights to carriage throughout the Columbus DMA.  The Bureau concluded that the station was entitled to carriage throughout both DMAs because Nielsen assigned the station to the Atlanta DMA and its city of license is within the Columbus-Opelika DMA. 
  • The Bureau affirmed its previous denial of a Fort Bragg, California TV station’s market modification petition to add Santa Rosa, California to its market.  Market modification allows a commercial TV station to add communities to its DMA for FCC purposes – expanding the scope of its must-carry rights – if the station can show that the addition of other communities would promote the local service goals of the must-carry rules.  Fort Bragg is in the San Francisco-Oakland-San Jose, CA DMA, and the station petitioned to add Santa Rosa to that DMA.  There are five factors weighed by the Bureau in deciding such a case, and the Bureau’s initial decision balanced the following determinations to decide that carriage was not warranted: (1) the station’s historic carriage by other cable operators in Santa Rosa only slightly weighed in favor of market modification as it was carried on only one system in the community for an extended period and that its DISH and DirectTV coverage is not as important a factor as cable carriage; (2) the station’s local service did not favor carriage as its service contour did not reach Santa Rosa (and translator coverage cannot be used to support such a request), its city of license is far from Santa Rosa, and the local programming it offered was insufficient to overcome the distance and lack of coverage; (3) while carriage of the station would facilitate Santa Rosa consumers’ access to in-state programming, the Bureau did not see sufficient evidence to consider this a substantial plus in this case; (4) the station was not uniquely qualified to serve Santa Rosa due to the large number of other stations already carried there by cable operators; and (5) the station failed to show that there was sufficient evidence showing that the station had significant viewing in Santa Rosa.  This week’s decision denied reconsideration of the prior decision, finding that the station merely reiterated arguments already made, failing to show any legal error in the earlier analysis. 
• The FCC’s Media Bureau issued an order upholding a proposed $9,500 fine to a Texas LPTV station that failed to file its license application as required by FCC rules for about 5 months after it completed construction of new facilities, and also operated at reduced power for three months without seeking an STA authorization.  The station requested reduction of the fine to $3,000 because its violations were unintentional and claimed that the fine was excessive because the Bureau was “targeting” the station due to a previous FCC violation.  The Bureau affirmed its proposed fine because the Bureau’s consideration of the station’s past violations is consistent with longstanding FCC policy, and that the station’s inadvertence does not excuse a violation of the rules – a fine already reduced when proposed in December due to the LPTV station’s secondary status. 
• The FCC’s Media Bureau granted two new LPFM station construction permits over objections filed by other LPFM licensees:
  • The Bureau granted an Indiana LPFM construction permit application over an objection claiming that the application should be denied because the applicant failed to disclose that one of its principals, an Indiana pastor, had interests in a pirate radio station that operated from his church.  Those who operated pirate radio stations in the past cannot hold an LPFM license.  The objection was based on a Notice of Unauthorized Operations issued to the pastor by the Enforcement Bureau’s Chicago Field Office following its investigation of the pirate station.  The applicant responded to the objection by stating that the pastor turned off the pirate station at the FCC agents’ request, that he was not operating the station (it was instead operated by a church visitor) and, that, while he may have been gullible by allowing the operation at his church prior to receiving the Notice, he had not been found to have actually operated to the station.  This week’s decision concluded that there was no evidence that the pastor was involved in the pirate station’s operations and thus there was no reason to deny the application.
  • The Bureau granted a Pennsylvania LPFM construction permit application over a claim that the application should be denied because the applicant’s technical consultant – who the applicant originally listed as an attributable interest holder – was associated with two other Pennsylvania LPFM stations.  After the objection, the applicant amended its application to remove its technical consultant.  The Bureau found that the technical consultant’s provision of technical services to multiple LPFM stations did not show that the consultant held attributable interests in those stations, and thus there was no reason to deny the application.    

• In this week’s list of tentative decisions circulating among the Commissioners for review and a vote, an item concerning the amendment of the FCC’s rules concerning FM booster stations was removed.  This presumably means that the FCC is about to release an order resolving the FCC’s long-pending proceeding on whether to authorize “zonecasting” or “geo-targeting” for FM stations.  This proceeding considers allowing on-channel FM boosters to originate limited amounts of programming, allowing different commercials in different parts of an FM station’s service area.  While FCC Commissioners Carr and Starks released a joint statement in January supporting FCC Chairwoman Rosenworcel’s action circulating an order to conclude that proceeding, many broadcasters oppose the idea (for more information, see the article on our Broadcast Law Blog, here).
• A group of radio broadcasters, the organizations for the affiliates of the major TV networks, and the NCTA – The Internet & Television Association, each filed motions to intervene in the appeals of the FCC’s December 2023 Report and Order which concluded its 2018 Quadrennial Regulatory Review of the local broadcast ownership rules.  If their motions are granted by the 8^th Circuit Court of Appeals which is considering the case, the radio broadcasters and affiliates associations will be permitted to file briefs supporting the NAB and the other broadcasters who appealed the December decision, arguing that the FCC should have relaxed the broadcast ownership rules in light of the intense new competition broadcasters face from digital media.  NCTA is filing in support of the FCC’s decision that television broadcasters should not be allowed to own more stations in individual markets, which NCTA argues is necessary to prevent TV broadcasters from gaining undue leverage in retransmission consent negotiations with NCTA’s cable members.  As we discussed here, the FCC declined in the December decision to make any substantial changes to its broadcast ownership rules, and actually tightened the top-4 network prohibition (the prohibition on common ownership in the same market of more than one top-4 TV station) to prohibit a station from purchasing the top-4 network programming of another station in its market and moving that programming to a commonly-owned LPTV station or multicast stream. 
• The FCC announced several deadlines of interest to broadcasters:
  • The FCC announced that comments are due April 29 in response to its January Notice of Proposed Rulemaking in which it proposes to require TV and radio stations to file reports regarding station operational outages in the FCC’s Network Outage Reporting System (NORS) database and on their operating status during disasters in the FCC’s Disaster Information Reporting System (DIRS) database.  While DIRS reporting is currently voluntary for broadcasters, NORS reporting is not currently required or available to broadcasters.  Reply comments are due May 28. 
  • The FCC’s Office of Economics and Analytics announced that certain cable operators must respond by May 24 to the FCC’s annual survey regarding cable industry prices.  Cable operators identified in the announcement must report data including the number of TV stations and multicast subchannels carried pursuant to a retransmission consent agreement or must carry rights in the period from January 1, 2023 to January 1, 2024, the total retransmission consent payments they made to broadcasters in 2022 and 2023, and the number of subscribers subject to retransmission consent fees in those years.  The data will be used by the FCC to prepare its annual report to Congress on cable industry prices.  The FCC will also make the aggregated data publicly available. 
  • The FCC announced that comments are due April 29 in response to its February Notice of Proposed Rulemaking in which it proposes to require multichannel video programming distributors (MVPDs) to report on the gender and ethnicity of their employees on FCC Form 395-A.  Reply comments are due May 13.  As we discussed here, in that same decision, the FCC reinstated a similar reporting obligation for broadcasters by requiring the filing of FCC Form 395-B annually by September 30, to be effective once the data collection requirements are approved by the Office of Management and Budget pursuant to the Paperwork Reduction Act.  To date, the FCC has not announced when the broadcast portion of that decision will be published in the Federal Register, which would start the window for filing petitions for reconsideration or court appeals of that decision. 
  • The FCC’s Media Bureau announced that comments are due April 15 in response to its Public Notice released last week in which the Bureau seeks comment on a joint proposal regarding the accessibility of MVPD closed captioning display settings.  The joint proposal – which was submitted by the NCTA and advocates for individuals who are deaf or hard of hearing – relates to a long-pending proceeding regarding closed captioning display settings on video devices (such as TVs, smartphones, PCs, and set-top boxes).  The group proposes a set of uniform standards for accessibility controls, which would make them more easily found and used by users of the services provided by video providers.  Reply comments are due April 15. 
• The FCC’s Enforcement Bureau issued two Notices of Illegal Pirate Radio Broadcasting to landowners in Mount Vernon, New York and Poughkeepsie, New York for allegedly allowing pirates to broadcast from their properties.  The Bureau warned the landowners that the FCC may issue fines of up to $2,391,097 under the PIRATE Radio Act if the FCC determines that the landowners continued to permit any individual or entity to engage in pirate radio broadcasting from their properties.
• The FCC’s Media Bureau took several actions with respect to LPFM stations:
  • The Bureau affirmed its January dismissal of a Mississippi LPFM construction permit application because the applicant failed to show that it met the co-channel and second-adjacent channel spacing requirements to protect nearby full-power FM stations.  The Bureau rejected the applicant’s request to amend its application to correct what it claimed were errors of its engineer, because the rules state that the failure to meet spacing requirements (or to request a waiver) in an initial application is fatal to an application and cannot be cured by an amendment.
  • The Bureau cancelled a proposed $1,500 fine against a California LPFM station for apparently failing to timely file its license renewal application.  Based upon the station’s response to the proposed fine, the Bureau determined that the station was unable to pay the fine due to financial hardship. 

This past week on our Broadcast Law Blog, we looked at the upcoming April regulatory deadlines for broadcasters.  We also discussed the FCC’s latest round of EEO Audits for TV and radio stations, highlighting some of the EEO recordkeeping rules with which broadcasters must comply.  In another article, we looked at the FCC’s current proposal to expand broadcasters’ foreign sponsorship identification requirements – a draft order addressing the proposal is currently being considered by the FCC Commissioners.  Finally, in honor of April Fools’ Day, we provide our annual reminder that broadcasters need to be careful with any on-air pranks, jokes or other on-air bits both because of the FCC’s rule against on-air hoaxes and the possibility of liability issues with false alerts that are run on a station.

The FCC’s rule against broadcast hoaxes, Section 73.1217, prevents stations from running any information about a “crime or catastrophe” on the air, if the broadcaster (1) knows the information to be false, (2) it is reasonably foreseeable that the broadcast of the material will cause substantial public harm and (3) public harm is in fact caused.  Public harm is defined as “direct and actual damage to property or to the health or safety of the general public, or diversion of law enforcement or other public health and safety authorities from their duties.”  If you air a program that fits within this definition and causes a public harm, you should expect to be fined by the FCC.

This rule was adopted in the early 1990s after several incidents that were well-publicized in the broadcast industry, including one case where the on-air personalities at a station falsely claimed that they had been taken hostage, and another case where a station broadcast bulletins reporting that a local trash dump had exploded like a volcano and was spewing burning trash.  In both cases, first responders were notified about the non-existent emergencies and emergency teams responded to the fake events after listeners called.  Thus, these crucial emergency personnel were temporarily not available to respond to real emergencies.  After the publicity from these incidents, the FCC adopted its prohibition against broadcast hoaxes.

The FCC hoax rule is not the only reason to be wary about on-air pranks on April 1.  Beyond the potential for FCC fines, any station activity that could present the risk of bodily harm to a participant also raises the potential for civil liability.  In cases where people are injured because first responders had been responding to the hoaxes instead of to real emergencies, stations could have faced potential liability.   If some April Fools’ stunt by a station goes wrong, and someone is injured either because police, fire or paramedics are tied up responding to a false alarm, or if someone is hurt rushing to or from the scene of the non-existent calamity that was reported on a station, the victim will be looking for a deep pocket to sue – and broadcasters may become the target.  Even a case that doesn’t result in liability can be expensive to defend and subject the station to unwanted negative publicity.  So, have fun, but be careful how you do it.

First, we’ll look at the most significant routine filing deadlines coming up in April.  April 1 is the deadline for radio and television station employment units in Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, and Texas with five or more full-time employees to upload their Annual EEO Public File Report to their stations’ online public inspection files.  A station employment unit is a station or cluster of commonly controlled stations serving the same general geographic area having at least one common employee.  For employment units with five or more full-time employees, the annual report covers hiring and employment outreach activities for the prior year.  A link to the uploaded report must also be included on the home page of each station’s website, if the station has a website.  Be timely getting these reports into your public file, as even a single late report can lead to FCC fines (see our article here about a recent $26,000 fine for a single late EEO report).

The filing of the Annual EEO Public File Reports for radio station employment units in Indiana, Kentucky, and Tennessee with eleven or more full-time employees triggers a Mid-Term EEO Review, where the FCC will analyze the last two Annual Reports for compliance with FCC requirements.  There is no form to file to initiate this review but, when radio stations located in those states with five or more full-time employees are required to upload to their public file their annual EEO Public File Report, they must also indicate in the online public file whether their employment unit has eleven or more full-time employees, using a checkbox now included in the public file’s EEO folder.  This allows the FCC to determine which station groups need a Mid-Term Review.  See our articles here and here on Mid-Term EEO Review reporting requirements for radio stations.

April 10 is the deadline by which all full power and Class A television stations and commercial and noncommercial full power AM and FM radio stations must upload to their online public inspection files their Quarterly Issues/Program lists for the first quarter of 2024.  The lists should identify the issues of importance to the station’s community and the programs that the station aired between January 1 and March 31, 2024 that addressed those issues.  It is important that these be timely uploaded to your public file, as the untimely uploads of these documents probably have resulted in more fines in the last decade than for any other violation of the FCC’s rules.  As you finalize your lists, do so carefully and accurately, as they are the only official records of how your station is serving the public and addressing the needs and interests of its community.  See our article here for more on the importance of the Quarterly Issues/Programs list obligation.

Other deadlines in April include the deadline for comments responding to the National Association of Broadcasters (NAB) and Xperi, Inc.’s petition seeking clarification regarding the maximum allowable operating power of a digital FM signal, a power level proposed to be increased in the FCC’s August 2023 Notice of Proposed Rulemaking.  The comments on the petition for clarification are due on April 1.  NAB and Xperi seek to clarify an ambiguity in the expression of the maximum digital FM power levels permitted for multichannel hybrid service modes.  The FCC seeks comments on this proposed clarification (see our discussion here).  Reply comments are due April 15. 

Comments are due April 8 in response to the FCC’s Notice of Proposed Rulemaking, which proposes to implement multilingual capabilities for the Emergency Alert Service (EAS).  The FCC proposes that public safety and other groups that originate alerts would be provided pre-scripted, pre-translated alert messages in thirteen non-English languages that the originators can distribute during emergencies to TV and radio broadcasters, cable service providers, and other EAS participants.  The FCC is seeking comment on many questions, including whether a station receiving these pre-scripted alerts in multiple languages would have to broadcast the alert only in the language of its programming, or whether it would have additional obligations to broadcast alerts in other languages common in its service area.  Reply comments are due May 6. 

Reply comments are also due April 8 in response to two other Notices of Proposed Rulemaking adopted by the FCC in January:

• A Notice of Proposed Rulemaking, which proposes to require cable operators and direct broadcast satellite (DBS) providers to issue rebates to subscribers affected by TV station blackouts resulting from failed retransmission consent negotiations.  The FCC is seeking comment on whether and how to require cable operators and DBS providers to issue these rebates.  The FCC also requests comment on whether there are other methods to incentivize cable operators, DBS providers, and broadcasters to limit the occurrences of blackouts.
• A Notice of Proposed Rulemaking, which proposes to prioritize the review of non-routine license renewal, assignment of license, and transfer of control applications filed by broadcast stations that provide at least three hours per week of locally originated programming.  The FCC also seeks comment on whether its 2017 abolition of the main studio rule was a mistake, questioning whether what it now considers the basis for eliminating that rule – fostering the creation of more and better local content – had been achieved.  We wrote in detail about this proceeding in our article here, including looking at the actual reasons given for the abolition of the main studio rule in the FCC’s 2017 decision.

Other deadlines in the month are more specialized, and thus applicable to fewer stations.  April 10 is the deadline by which noncommercial educational stations must upload to their public inspection files documentation of their on-air fundraising benefitting third parties conducted between January 1 and March 31, 2024.  This obligation applies to noncommercial educational stations not affiliated with NPR or PBS that conducted third-party on-air fundraising that interrupted their normal programming.  For more information about this requirement, see our article here.

April 10 is also the date by which Class A television stations should upload documentation of their continuing eligibility for Class A status based on their operations from January 1 through March 31, 2024.

April 10 is also the deadline by which all full power television, Class A television, and full power radio stations must upload to their public inspection files documentation of any programming aired between January 1 and March 31, 2024 that was leased by a foreign government or their agents, or provided by a foreign entity for free in exchange for its airing.  The FCC’s foreign sponsorship identification rules require that stations disclose when programming has been paid for or provided by a foreign governmental entity and take steps whenever they sell any blocks of program time to determine if any buyer of program time is a representative of a foreign government.  See our article here for more information on this requirement, and our article here on changes to this requirement now being reviewed by the Commission.

The political season continues in April, and broadcasters serving Delaware, District of Columbia, Florida, Georgia, Guam, Idaho, Iowa, Kentucky, Maine, Mississippi, Montana, Nevada, New Jersey, New Mexico, North Dakota, Oregon, South Carolina, South Dakota, and the U.S. Virgin Islands should be aware of the opening of the following political windows for primaries, caucuses, and elections scheduled to occur in April, May, and June – meaning that Lowest Unit Rates apply to sales to candidates and their authorized committees (see our article here on the basics of computing LUR): 

As a refresher, in the 45 days before a primary election, and 60 days before a general or special election, broadcasters must extend to legally qualified candidates their lowest unit rate and continue to follow all other applicable political broadcasting rules.  So, the lowest unit rate period will be in effect at some point next month for stations serving states that have primaries, caucuses, or elections in April, May, and June.  For a deeper dive on how to prepare for the 2024 elections, see our post, here, which also includes a link to our comprehensive Political Broadcasting Guide.  Also take a look at our 2024 Broadcasters’ Calendar to see if your state has an upcoming primary, general, or special election (though confirm these dates locally as some dates have changed since the calendar was prepared). 

Finally, looking ahead to May, stations should be checking the FCC Enforcement Bureau’s recent announcement of random EEO audits.  Stations that are on that list should be preparing their responses, which are due by May 6.

As always, check with your attorneys and advisors to see if there are other dates not mentioned here that are of importance to your station.  Always stay on top of all regulatory requirements.

Currently, the certifications that broadcasters must obtain from a program buyer must indicate that the programmer is not a “foreign government entity,” a term that includes any foreign government or foreign-government owned entity, an agent of a foreign government, or someone who has been paid by a foreign government to produce the program.  As we noted (see our articles here and here), the rules requiring these certifications went into effect on March 15, 2022 for any new agreements effective after that date, and September 15, 2022 for obtaining certifications from programmers who were already on the air as of March 15.  They cover not only those who buy program time on a broadcast station, but also those that provide program time free to broadcasters with the understanding that the programming will be aired.  The certifications do not cover programming that the broadcaster buys (either for money or through barter – including by giving the programming supplier advertising time that the programmer can resell in exchange for the programming).  And they are not required for spot advertising buys. 

When I am speaking at broadcast association meetings across the country, I am almost always asked why the FCC is seeking this information.  The FCC decided that it had to act in this area when, in a couple of high-profile cases in major markets, program time was being purchased by entities that represent foreign governments – with Russian and Chinese news and information programming being of the most concern.  When these instances were highlighted by other US government agencies and through political complaints, the FCC felt that it had to act.  I don’t think that many broadcasters would have concerns if the rules were limited to situations where a foreign government is in fact buying program time or doing a time brokerage agreement with the intent of airing its slanted news to US citizens.  I can’t imagine that many would object to requiring that such programming make clear to the public that it is sponsored by an entity related to a foreign government.  But the concern that many have raised with the new proposals is that they are not limited to the intended harms against which they are designed.  Instead, they apply broadly and already impose burdens on broadcasters and programmers even in instances where there is no doubt that companies buying time on broadcast stations are not posing any threat to US interests.

And now, the pending FCC proposal is to add to that paperwork burden. In its Second Notice of Proposed Rulemaking in 2022, the FCC asked whether it should expand the existing obligations to identify foreign government-backed programming.  The FCC’s proposal seeks to standardize the certifications obtained by broadcasters from entities that buy program time on their stations.  Under the rules that went into effect in 2022, licensees could come up with their own forms to get certifications from the buyers of program time to assure that they were not agents of foreign governments, often simply including a representation in their contracts with program buyers containing the required certification.  While having a standardized form is often a good idea so that broadcasters have no doubt that the wording that they are using is the right wording, that standardized wording can become so detailed that compliance can become unduly burdensome.  The proposed new FCC language is very thorough and thus very detailed, and to many exceeds the point at which it imposes an unreasonable burden on those that would be subject to its requirements.  Rather than take our word for the claim that the certification is detailed, take a look at the language that the FCC is proposing to require each buyer of program time review and sign:

(1) I am authorized on behalf of [Lessee] to certify to the following:

a. [Licensee] has informed [Lessee] at the time of [entering into OR renewal of] this agreement of the foreign sponsorship disclosure requirement contained in 47 CFR § 73.1212(j);

b. [Licensee] has inquired of [Lessee] at the time of [entering into OR renewal of] this agreement whether [Lessee] falls into any of the categories listed in the Federal Communications Commission’s (FCC) rules at 47 CFR § 73.1212(j) such that the [Lessee] qualifies as a “foreign governmental entity,”; i. The term “government of a foreign country” has the meaning given such term in the Foreign Agents Registration Act of 1938 (FARA), 22 U.S.C. § 611(e); ii. The term “foreign political party” has the meaning given such term in the Foreign Agents Registration Act of 1938 (FARA), 22 U.S.C. § 611(f); iii. The term “agent of a foreign principal” has the meaning given such term in the Foreign Agents Registration Act of 1938 (22 U.S.C. § 611(c)), and who is registered as such with the Department of Justice, and whose “foreign principal” is a “government of a foreign country,” a “foreign political party,” or directly or indirectly operated, supervised, directed, owned, controlled, financed, or subsidized by a “government of a foreign country” or a “foreign political party” as defined in subsection 73.1212(j)(i) and (ii), and that is acting in its capacity as an agent of such “foreign principal;” iv. The term “United States-based foreign media outlet” has the meaning given such term in Section 722(a) of the Communications Act of 1934 (47 U.S.C. § 624(a)). 21 Federal Communications Commission FCC 22-77

c. [Licensee] has inquired of [Lessee] at the time of [entering into OR renewal of] this agreement whether [Lessee] knows if any individual/entity further back in the chain of producing or distributing the programming that will be aired pursuant to the lease agreement, or a sub-lease, qualifies as a “foreign governmental entity,” as that term is defined in 47 CFR § 73.1212(j)(2), and has provided some type of inducement to air the programming, including, in the case of political programming or programming involving the discussion of a controversial issue, the programming itself;

d. [Lessee] certifies that it [is OR is not] a “foreign governmental entity,” as that term is defined in 47 CFR § 73.1212(j)(2);

e. If applicable: [Lessee] certifies that to its knowledge [Individual/Entity] qualifies as a “foreign governmental entity,” as that term is defined in 47 CFR § 73.1212(j)(2), and has provided some type of inducement to air the programming, including, in the case of political programming or programming involving the discussion of a controversial issue, the programming itself;

f. If applicable: [Lessee] certifies that to its knowledge there is no individual/entity further back in the chain of producing or distributing the programming that will be aired pursuant to the lease agreement, or sub-lease, that qualifies as a “foreign governmental entity,” as that term is defined in 47 CFR § 73.1212(j)(2), and has provided some type of inducement to air the programming, including, in the case of political programming or programming involving the discussion of a controversial issue, the programming itself;

g. If applicable: [Lessee] certifies that to its knowledge there is an individual/entity further back in the chain of producing or distributing the programming that will be aired pursuant to the lease agreement, or sub-lease, that qualifies as a “foreign governmental entity,” as that term is defined in 47 CFR § 73.1212(j)(2), and has provided some type of inducement to air the programming, including, in the case of political programming or programming involving the discussion of a controversial issue, the programming itself. The name, address, phone number, and email address, if known, of such individual/entity is [individual/entity name, address, phone number, and email address, if known];

h. To the extent applicable, [Lessee] has provided [Licensee] the information needed to append the following disclosure to lessee’s programming consistent with the FCC’s rules, found at 47 CFR § 73.1212(j)(1)(i): “The [following/preceding] programming was [sponsored, paid for, or furnished], either in whole or in part, by [name of foreign governmental entity] on behalf of [name of foreign country].”

i. [Lessee] certifies that during the course of the lease agreement, [Lessee] commits to notify [Licensee] if [Lessee’s] status as a “foreign governmental entity” changes or if [Lessee] learns that there is an individual/entity further back in the chain of producing or distributing the programming that will be aired pursuant to the lease agreement, or sub-lease, that qualifies as a “foreign governmental entity,” as that term is defined in 47 CFR § 73.1212(j)(2), and has provided some type of inducement to air the programming, including, in the case of political programming or programming involving the discussion of a controversial issue, the programming itself. 22 Federal Communications Commission FCC 22-77

j. I, [insert name of individual/entity authorized to certify on behalf of Lessee] by my signature attest to the truth of the statements listed above.

While sophisticated entities (like those backed by foreign governments) might have the resources to parse the language of this certification, broadcasters should consider if the detail in the proposed wording would frighten the typical small market program time buyer, leading to less diverse broadcast programming.  Will every church, real estate broker, foreign language programmer, or other buyer of program time on the typical station be willing to sign this certification – and if they do, will they have any idea of what it means?

The Second Notice would also require that all certifications obtained from program buyers be uploaded to the station’s online public file.  The current rules only require that certifications from entities that do in fact have foreign government connections be included in the public file.  If the FCC’s proposal is adopted, every certification from every local church, real estate broker, or travel agent attesting that they are not foreign agents would have to be included in the public file.  In addition, for each program, the broadcaster would themselves have to sign a certification of similar length, making clear that they have received the program buyer’s certification and explained what all the elements of the certification are.  That, too, would need to be included in the public file. 

The vast majority of broadcasters have never been approached by a foreign entity to buy program time (or, in the few cases where there have been foreign government-backed entities who have sought program time, they have been innocuous commercial purchases, like those by the Tourist Bureau of some resort destination or an airline owned by a foreign government investment fund).  Virtually all program time sold by broadcasters, especially by small-market broadcasters, is sold to someone the broadcaster already knows through the community or through their broadcast industry connections.  For instance, there are churches across the country that buy time on stations for the broadcast of their Sunday services, real estate brokers who buy time on TV stations to broadcast videos of the homes that they have for sale, or local professionals who host programs (e.g., lawyers or travel agents) to talk about their area of expertise with the hopes of interesting listeners in their services.  Local radio stations often have weekly or even daily programs that spotlight local businesses (for which the local business pays money to be featured).  Some stations will feature local programmers who play music to serve immigrant, ethnic, or minority communities.  These are not situations where there is anything nefarious occurring – these are business transactions to promote local community interests.  Yet all are seemingly caught up in the sweep of the FCC’s actions proposing to require that broadcasters assure themselves that no foreign government is influencing broadcast programming.

As noted above, some broadcasters have already filed comments in the FCC proceeding to explain how burdensome these requirements will be, and to urge the FCC to be more realistic about their expectations.  Interested broadcasters can themselves file something in this proceeding by going to the FCC’s Electronic Comment Filing System, typing in the Docket number of this proceeding (20-299), and providing their comments.  We recently wrote an article where we acknowledged that, while the FCC can regulate broadcasters, is this really the time for regulation that was not narrowly designed to address some specific demonstrable harm, especially where the new regulation provides a great potential for “gotcha” moments where if any paperwork is overlooked, the broadcaster can get penalized?  This proceeding may be one of those times when the FCC should consider if these new proposals are really narrowly targeted to get to the proposed harms, or whether the rules already in place capture the information that the FCC seeks.  Sometimes, the FCC should leave things as they are, and broadcasters who share these concerns may want to let the FCC know their feelings. 

With the release of this audit, and last year’s $25,000 fine proposed for some Kansas radio stations that had not fully met their EEO obligations (see our article here), it is important to review your EEO compliance even if your stations are not subject to this audit.  The FCC has promised to randomly audit approximately 5% of all broadcast stations each year. As the response (and the audit letter itself) must be uploaded to the public file, it can be reviewed not only by the FCC, but also by anyone else with an internet connection anywhere, at any time.  The Kansas fine, plus a recent $26,000 fine imposed on Cumulus Media for a late upload of a single EEO Annual Public File Report (see our article here), and the FCC’s recent decision to bring back EEO Form 395 reporting on the race and gender of all station employees (see our article here), shows how seriously the FCC takes EEO obligations.

According to the audit notice, audited stations must provide sample copies of notices sent to employment outreach sources about each full-time vacancy at the stations, as well as documentation of the supplemental efforts that all station employment units with 5 or more full-time employees are required to perform (whether or not they had job openings in any year). These non-vacancy specific outreach efforts are designed, for example, to educate the community about broadcast employment positions and to train employees for more senior roles in broadcasting. Stations must also provide, in response to the audit, information about how they self-assessed the performance of their EEO program. Information about any pending or resolved proceedings involving discrimination claims must also be reported.  As with the last FCC audit, the FCC staff will review the audit responses and ask for additional information if they find the public file documentation to be incomplete, but they will not inform audited stations that their EEO performance was found satisfactory.

A few years ago, at the Wisconsin Association of Broadcasters annual convention, I did a presentation on the FCC requirements for EEO compliance. The slides from that presentation are available here. The FCC rules are designed to bring new people into broadcast employment positions – looking for broadcasters to recruit from outside the traditional informal networks that may exist within the broadcast industry when hiring new employees. Not only should broadcasters be reaching out to their consultants and employees for referrals, and using their own airwaves to promote openings, but they need to be using outreach sources that are designed to reach all groups within a community to notify members of these groups about the availability of open employment positions at a station. While the FCC once required that outreach be made to a plethora of community groups, it has now recognized that online recruitment sources alone can reach the entire community (see our summary of that decision here) – but these sources need to be evaluated regularly to assure that they are in fact bringing in applicants for job openings representative of different groups within the station’s employment area.  If online recruiting does not bring in a diversity of applicants and interviewees for job openings, stations should consider expanding their recruitment sources.  Many stations find outreach to at least some community groups, in addition to online sources, brings the best mix of potential applicants to stations filling job openings.

Stations need to keep the required documentation to demonstrate their hiring efforts, as failing to do so can still lead to fines as in the recent cases noted above. The documents should show not only the station’s hiring efforts in connection with job openings, but also the supplemental efforts that they have taken, even where they have not had job vacancies, to educate their community about broadcast employment and to train their employees to assume more responsibilities.  Stations should review their policies to make sure that they have the documentation necessary to satisfy an FCC audit, by making sure that the station’s EEO program is regularly bringing in recruits from diverse sources and that the station has done the required non-vacancy specific educational efforts on broadcast employment.  More general information about the FCC’s EEO requirements are found in this article, answering 5 questions about EEO posed by the Indiana Broadcasters Association. 

The FCC itself, when it abolished the requirement for the filing of the FCC Form 397 EEO Mid-Term Report, promised to review the effectiveness of its EEO rules. A Notice of Proposed Rulemaking looking at how to make the program was released in 2019, suggesting various proposals (see our article here). The proposals made in that proceeding may require further public comment before they can be adopted and, for now, the rules that have been in place for almost two decades remain in effect. As EEO enforcement was transferred to the FCC’s Enforcement Bureau (see our article here), and as we saw many questions about EEO in the FCC’s scrutiny of license renewal applications in the recent renewal cycle, we can expect that enforcement will continue to be vigorous.

Consult with your attorneys to get a thorough understanding of the EEO rules and talk with the employees involved in employment matters at your station to make sure that they understand what they should be doing and are keeping the paperwork necessary to demonstrate your compliance with the rules. The FCC continues to enforce its rules and impose fines on stations that cannot demonstrate compliance, so make sure that you comply with the FCC’s obligations on EEO matters.

On our Broadcast Law Blog this past week, we looked at the trademark issues that can arise from uses of the well-known words and phrases associated with the NCAA basketball tournaments in advertising, promotions, and other media coverage (see here and here).

• The FCC held its March regular monthly open meeting and adopted two items of interest:
  • A Notice of Proposed Rulemaking in which the FCC proposes a new Emergency Alert System alert code for missing and endangered adults to be used by EAS participants, including broadcasters.  In the Notice, the FCC is seeking comment on whether to apply the new EAS alert code to individuals over the age of 17, missing adults with special needs or circumstances, and missing adults who are endangered or who have been abducted or kidnapped. 
  • A Report and Order adopting rules requiring cable and direct broadcast satellite service providers to state in promotional materials and on subscriber bills the price of video programming as a clear, easy-to-understand, and accurate single line item.  This “all-in” price is to include all video programming charges, including those for broadcast retransmission consent, regional sports, and other programming.  As of the date we are publishing this article, the FCC has not released the final version of the Order, but the FCC’s press release summarizing its decision can be found here.
• Broadcasters and other groups lobbied the FCC this week on two pending Notices of Proposed Rulemaking:
  • Currently being considered by the FCC Commissioners is a decision on the October 2022 Second Notice of Proposed Rulemaking on foreign government sponsored programming which, as we wrote here, proposes to require that all buyers of program time sign a 14 paragraph standardized certification form, and that stations complete a similar certification verifying that they received the certification from the program buyer. The buyer’s certification would state whether it is a foreign government representative or if it has been paid by a foreign government to produce the program, and both the buyer and licensee certifications would have to be included in a station’s public file.  In anticipation of an FCC decision, the NAB, along with a group of broadcasters, urged the FCC this week not to adopt the proposed rules because, among other reasons, they are unduly burdensome and are unnecessarily broad given that foreign government sponsored programming appears on less than one-tenth of one percent of all broadcast stations. 
  • Comments were due this past week responding to the FCC’s January Notice of Proposed Rulemaking (NPRM) proposing to prioritize the review of certain applications filed by a broadcast station providing at least three hours per week of local programming.  As we discussed here, the proposed prioritization policy is intended to incentivize stations to provide local programming – which the majority of the Commissioners suggested was necessary after the FCC’s 2017 elimination of the main studio rule (see our articles here and here).  Several commenters (see here, here, and here) state that the prioritization would not incentivize broadcasters to provide local programming.  Some commenters propose alternatives to incentivize localism, including providing funding for news from auction proceeds or adopting policies that would foster a broadcaster’s financial ability to compete in today’s marketplace, including lessening ownership restrictions, accelerating ATSC 3.0 rollout, and regulating virtual MVPDs.  Others (see here and here) oppose reinstating the main studio rule because it would not increase local programming and would disadvantage broadcasters – particularly noncommercial broadcasters.  One commenter (here) argues the contrary, submitting that the FCC should not have completely eliminated the main studio rule and supporting the proposed preference (though admitting that it had no hard evidence to support its claim that the elimination of the main studio rule harmed the public interest). 
• The FCC released a Notice of Proposed Rulemaking in which it proposes changes in how it calculates annual FCC regulatory fees for earth stations to properly account for the FCC resources used in regulating such licenses.  This proposed change would result in increased earth station regulatory fees – the question for comment is how much the increase should be.
  • It was also reported (see articles here, here, and here) that the budget proposed by the President this week would raise the amount allocated to fund the FCC by 14.8%.  This would result in increased annual regulatory fees as these fees are used to repay the government for the cost of FCC regulation. 
• The FCC’s Bureaus took numerous actions dealing with fines imposed on broadcasters:
  • The Enforcement Bureau entered into a Consent Decree with a Maine LPTV station for not passing through to viewers closed captioning in its MeTV network programming.  The Bureau also faulted the licensee for failing to monitor and maintain its captioning equipment.  The Consent Decree requires that the station implement a compliance plan and pay a $2,500 penalty – which would increase to $15,000 if the station fails to comply with the Consent Decree’s terms.
  • The Media Bureau proposed a $16,200 fine against the licensee of a Georgia AM station and terminated its FM translator’s license under Section 312(g) of the Communications Act for failing to operate from its authorized location for more than twelve consecutive months.  The Bureau alleged that the AM station periodically operated at variance from its license without prior FCC authorization and discontinued operations without notifying the FCC or requesting authority to go silent, transferred control of the station and the translator without prior FCC authorization, and failed to respond to Commission inquiries about its operation. 
  • The Bureau proposed a $9,500 fine against a Missouri LPTV station for its alleged failure to timely file an application for a “license to cover” a construction permit.  The construction permit authorized the station to change channels, and the license application certifying the completion of construction was not filed until 4 years after that completion.  The station was also faulted for operating on its new channel for nearly six years without authorization after an STA to do so expired in 2018.  Although the FCC’s forfeiture guidelines prescribe a $26,000 fine for these violations, the Bureau reduced the proposed fine to $9,500 because LPTV stations provide secondary service.  The Bureau, however, noted that the proposed fine was still larger than fines imposed on LPTV stations in similar circumstances because of the station’s nearly six years of unauthorized operations.
  • The Bureau cancelled its proposed $3,000 fine for a California TV station’s failure to timely upload six Quarterly Issues/Programs Lists to its online public inspection file.  Based upon the station’s response to the proposed fine, the Bureau determined that the station only failed to timely upload four Quarterly Issues/Programs Lists to its public file – which the Bureau found did not to require a fine.  The Bureau nevertheless cautioned the station in the future to comply with its public file obligations.
• The Media Bureau updated the FM Table of Allotments to list the following channels as vacant following the cancellation of authorizations for stations on each of these allotments: North English, Iowa (Channel 246A); Colfax, Louisiana (Channel 267A); Calhoun City, Mississippi (Channel 272A); Battle Mountain, Nevada (Channel 253C2); Independence, Oregon (Channel 274C0); Huntington, Oregon (Channel 294C1); Monument, Oregon (Channel 280C3); Murdo, South Dakota (Channel 265A); Selmer, Tennessee (Channel 288A); Camp Wood, Texas (Channel 251C3); Cotulla, Texas (Channel 289A); Los Ybanez, Texas (Channel 253C2); Ozona, Texas (Channel 275A); and Stamford, Texas (Channel 233A).  The FCC will in the future announce a window for the filing of applications for new stations to operate on these allotments.
• The Media Bureau took several actions dealing with recently filed applications for new LPFM stations:
  • The Bureau identified several groups of mutually exclusive (conflicting applications which cannot all be granted consistent with the FCC’s technical rules) new LPFM construction permit applications filed during the December 2023 filing window, a list of which can be found here.  Mutually exclusive applicants identified in the public notice have until May 14, 2024 to enter into and file settlement agreements or to submit technical amendments to resolve the technical conflicts. 
  • The Bureau dismissed a Rhode Island LPFM construction permit application because the applicant failed to meet the FCC’s LPFM licensee eligibility requirements because it was not a “local” entity (an LPFM applicant needing to either have its headquarters, or 75% of its board members residing, within ten miles of its proposed LPFM transmitter site).  After a challenge, the applicant amended its application to provide a new headquarters address within the ten-mile limit, but the Bureau refused to accept the amended address because the applicant must show that it is local at the time of the filing of its application.
  • The Bureau affirmed its January dismissals of Tennessee and Massachusetts LPFM station construction permit applications because the applicants failed meet the co-channel spacing requirements necessary for protecting nearby full-power FM stations.  The applicants claimed that the failure resulted from their engineers’ typographical errors and requested that the Bureau allow them to amend their applications to fix their errors.  The Bureau rejected the applicants’ requests because typographical error claims are not an acceptable basis for reinstating and amending an LPFM application, as the rules state that the failure to meet spacing requirements (or to request a waiver) in an initial application is fatal to an application and cannot be cured by an amendment . 
  • The Bureau dismissed a Nevada LPFM station construction permit application proposing to provide public safety radio services.  The Bureau rejected the applicant’s argument that a for-profit entity may provide public safety radio services as an LPFM station licensee – such licenses are reserved for non-profit or governmental groups.  The Bureau also found that the applicant’s second-adjacent channel waiver request was deficient because it was not supported by any engineering studies to demonstrate how it would protect a nearby second-adjacent channel FM station from interference. 

• Last week, we noted that petitions for review of the FCC’s December 2023 Report and Order which concluded its 2018 Quadrennial Regulatory Review of the local broadcast ownership rules, had been filed in three different Courts of Appeals.  This week, the lottery used to assign the Court that will hear the consolidated appeal decided on the Eighth Circuit, headquartered in St. Louis.  This is the first time in twenty years that an appeal of a Quadrennial Review will not be heard in the Third Circuit in Philadelphia, a Court which had been very reluctant to allow any relaxation of the ownership rules (with broadcasters having to get a Supreme Court decision to finally overturn the Third Circuit and uphold the FCC’s 2017 decision relaxing some of the local ownership rules, including abolishing the newspaper-broadcast cross-ownership rules – see our article here on the Supreme Court’s decision).  Joining the appeal in the Eighth Circuit will be the NAB, which this week filed its appeal of the FCC’s December decision.  Among the grounds that it cited in asking the Court to overturn the December decision was that the FCC was directed by the law requiring the Quadrennial Review to relax the ownership rules as competition dictated, but the decision disregarded ample evidence of vastly increased competition faced by broadcasters from digital media platforms, proceeded “as if the competitive environment from decades ago remains essentially unchanged,” and instead tightened the rules. As we discussed here, the FCC December’s decision declined to make any substantial changes to its broadcast ownership rules other than expanding the prohibition that had been in place, which prohibited one network-affiliated top-4 TV station (i.e., ABC, CBS, Fox, and NBC) from acquiring the top-4 network programming of another station in the market to move it to a commonly-owned full-power station, by extending that prohibition to situations where the network programming is purchased to be moved to a commonly-owned LPTV station or multicast stream. 
• The FCC announced that comments are due April 8 in response to its February Notice of Proposed Rulemaking, which proposes to implement multilingual capabilities for the Emergency Alert Service (EAS).  The FCC is proposing that public safety and other groups that originate alerts would be provided pre-scripted, pre-translated alert messages in thirteen non-English languages that the originators can distribute during emergencies to TV and radio broadcasters, cable service providers, and other EAS participants.  Among the questions asked in the NPRM is whether a station receiving these pre-scripted alerts in multiple languages would have to broadcast the alert only in the language of its programming, or whether it would have additional obligations to broadcast alerts in other languages common in its service area. Reply comments are due May 6. 
• The FCC’s Commissioners are currently considering a decision on petitions for reconsideration of the FCC’s 2020 elimination of the rule prohibiting two commonly owned radio stations in the same service (AM or FM) serving the same area from duplicating more than 25% of their programming (see our article here on that 2020 decision).  This week, the NAB again (see prior filing here) urged the FCC not to reinstate the rule without refreshing the record to determine if there have been any real world harms caused by the elimination of the rule in the more than three years since the rule was abolished.  The NAB emphasized that collecting updated information would allow the FCC to determine the actual effect of the rule’s elimination.  That real information should be used to make a decision instead of relying on predictions in the reconsideration filings formulated over three years ago when the rule was still in place as to how the rule’s elimination would affect broadcasters’ programming. 
• The FCC’s Enforcement Bureau issued two Notices of Illegal Pirate Radio Broadcasting to landowners in Greenville, South Carolina and Maplewood, New Jersey for allegedly allowing pirates to broadcast from their properties.  The Bureau warned the landowners that the FCC may issue fines of up to $2,391,097 under the PIRATE Radio Act if the FCC determines that the landowners continued to permit any individual or entity to engage in pirate radio broadcasting from their properties.
• The FCC’s Media Bureau issued several allocations decisions of interest to broadcasters:
  • The Bureau granted a modification application filed by an Illinois AM station over an objection that claimed that the station’s requested reduction of its nighttime power from 50 kW to 37.5 kW did not meet the FCC’s technical requirements for Class A AM stations (commonly known as “clear channel” stations).  The objection also suggested that if the application was not denied, the station should be reclassified as a Class B station and lose certain nighttime interference protections.  The Bureau rejected the objector’s arguments because the station had been classified as a Class 1-B AM station, a classification done away with in the 1990s, when former Class 1-B stations were grandfathered to permit nighttime operations at less than 50 kW.  The Bureau noted that this exception allowing lower nighttime power applies to a very small number of grandfathered clear channel stations. 
  • The Bureau granted a TV station’s petition for rulemaking and substituted Channel 29 for Channel 2 at Greenville, South Carolina.  The FCC agreed that the station had justified its moved by citing the station’s poor reception on VHF Channel 2 by viewers (this is another instance where the FCC recognized the superiority of UHF channels for the transmission of digital signals). 
  • The Bureau also granted a TV station’s proposal to allocate reserved noncommercial educational (NCE) TV Channel 12 to Waynesboro, Virginia, as the community’s first local TV service and its first NCE TV service.  The Bureau will release a public notice in the future announcing when it will accept applications for new NCE TV stations to operate on this new allotment.

• Congress passed, and the President signed, a continuing resolution to extend funding for the Federal government, including the FCC, averting a partial government shutdown.  Funding for some government agencies is extended through March 8, with the remainder funded through March 22, in hopes that a more permanent funding solution will be agreed to this week.  On our Broadcast Law Blog, this past week we looked at the regulatory dates of importance to broadcasters in March, noting that many dates would be postponed if there was a government shutdown, a risk that will be averted if permanent funding is adopted. 
• Petitions for review were filed in three separate federal circuit courts seeking to overturn the FCC’s December 2023 Report and Order concluding its 2018 Quadrennial Regulatory Review of the local broadcast ownership rules.  As we discussed here, the FCC concluded its 2018 review without making significant changes to its ownership rules other than extending the prohibition on one network-affiliated top-4 TV station (i.e., ABC, CBS, Fox, and NBC) acquiring the top-4 network programming of another station in the same market and then moving that programming to a commonly owned LPTV station or multicast stream.  The petitioners argue that the December decision unnecessarily maintained and tightened the broadcast ownership rules despite evidence of increased competition from digital media platforms.  The petitions argue that the statute mandating the Quadrennial Review is meant to relax broadcast ownership restrictions because of new competition, not to tighten those rules.  Additional appeals can be filed through April 15, so it is possible that other parties will also file appeals of the December Order. 
• Comments were filed in two open FCC proceedings:
  • Comments were filed this week on the FCC’s December 2023 Notice of Proposed Rulemaking proposing to require cable operators and direct broadcast satellite (DBS) providers to report to the FCC TV blackouts caused by failed retransmission consent negotiations with TV stations (see our discussion here).  The NCTA  and the American Television Alliance support the reporting requirement, both blaming broadcasters for these blackouts.  In contrast, the National Association of Broadcasters opposes the reporting requirement contending, among other arguments, that the reporting would lead to more retransmission consent disputes because cable advocates will encourage blackouts and the resulting public filings to put pressure on regulators to change the must carry/retransmission consent rules.  The NTCA – The Rural Broadband Association also opposes the requirement because the reports would be burdensome for small cable providers and would fail to collect sufficient information regarding the root causes of TV blackouts.
  • The FCC’s Commissioners are currently considering a decision on petitions for reconsideration of the FCC’s 2020 elimination of the rule prohibiting two commonly owned radio stations in the same service (AM or FM) serving the same area from duplicating more than 25% of their programming (see our article here about the repeal of the rule).  This week, the NAB urged the FCC not to reinstate the rule without refreshing the record to determine if there have been any real world harms caused by the elimination of the rule in the over three years since the rule was abolished. REC Networks, musicFIRST Coalition, and Future of Music Coalition asked that the rule be reinstated, not because of any demonstrated harms caused by the abolition of the rule, but because of a procedural argument that the FCC violated its rulemaking procedures by not providing enough public notice that it was considering the elimination of the rules for FM stations before it made its 2020 decision.
• The FCC’s Media Bureau announced that April 1 is the comment deadline for responding to the NAB and Xperi, Inc.’s petition for clarification of a digital FM signal’s maximum allowable operating power proposed in the FCC’s August 2023 Notice of Proposed Rulemaking.  NAB and Xperi seek to clarify an ambiguity in the expression of the maximum digital FM power levels permitted for multichannel hybrid service modes, proposing the addition of clarifying text to the rules. Reply comments are due April 15.
• The Bureau issued three Reports and Orders (see here, here, and here) allotting new FM channels to several Hawaii communities: Koloa, Waimea, Lihue, Princeville, Puhi, and Kekaha.  The Bureau will in the future announce the opening of the filing windows for construction permit applications for new FM stations to operate on these new allotments. 
• The Bureau granted the requests of Fox News Channel, ESPN, and MSNBC for exemption from the FCC’s audio description rules applicable to the top five nonbroadcast networks. Audio description provides narrated descriptions of a TV program’s key visual elements during natural pauses in the program’s dialogue for the benefit of individuals who are blind or visually impaired.  Like most TV stations affiliated with the Top 4 TV networks, covered non-broadcast networks stations must provide a certain amount of audio described programs per calendar quarter.  The Bureau exempted these networks from the audio description requirements because they provided on average less than the required 50 hours of non-exempt programming, as most of their programming is exempt because it is live or near-live. 
• The Bureau affirmed its dismissal last month of an application for a new LPFM station construction permit in Pennsylvania because the applicant failed to show that it met the second-adjacent channel spacing requirements to protect a nearby full-power FM station.  The applicant asked the Bureau to reconsider the dismissal because its engineer inadvertently failed to include a second-adjacent channel waiver request with the application.  The Bureau rejected the request because the rules require that an LPFM application include such a waiver request in its initial application, so that request cannot be provided as a later amendment. 
• The NAB called for Congress to prioritize policy issues affecting broadcasters, including: the passage of the AM Radio for Every Vehicle Act to mandate that auto manufacturers include AM radio in new cars (see our discussions here and here); the passage of the Journalism Competition and Preservation Act to allow broadcasters to jointly negotiate with dominant digital platforms to ensure fair compensation for accessed online content (see our discussions here and here); encouraging the FCC to refresh its record regarding the regulation of streaming services as virtual Multichannel Video Programming Distributors (vMVPDs); the passage of the Local Radio Freedom Act – a resolution opposing a new sound recording performance royalty on broadcasters (see our discussions here and here); supporting the NextGen TV standard (ATSC 3.0) for broadcasters; and regulating the use of artificial intelligence (AI) such that its use does not threaten local broadcast journalism.  Also on the subject of AI, the NAB announced that it will open its upcoming NAB show this April in Las Vegas with an AI humanoid robot to discuss a study concerning audience perspectives on AI’s use in broadcast media.
• The FCC announced its receipt of a Technology & Engineering Emmy® Award by the National Academy of Television Arts & Sciences for the creativity and engineering design of the FCC’s Broadcast Incentive Auction, which it will receive at the NAB’s New York convention this October.

Also on our Broadcast Law Blog, we discussed what the FCC’s reinstatement of the FCC Form 395-B EEO reporting requirement means for broadcasters – including the implications of the reported employment data being readily available to the public through stations’ online public inspection files.  We also discussed whether the FCC’s recent efforts to increase regulation of broadcasters are appropriate given the current state of competition and the deregulatory trends of the past 40 years. 

There are certain technical deadlines likely not affected by any shutdown.  Those include the requirement that, by March 11, broadcasters using Sage EAS equipment implement the requirement that, when a station receives an over-the-air EAS alert, it must wait at least 10 seconds to determine if a CAP alert has been sent through the IPAWS system and, if it has, the station should rebroadcast that internet-delivered CAP alert rather than the one received over the air.  We wrote more about that requirement on our Broadcast Law Blog, here. For stations using other EAS equipment, the deadline was December 12, 2023 to implement this requirement but as Sage was delayed in pushing out its equipment update, users of that equipment were given until March 11 to comply with this requirement. 

Another deadline likely not affected by government funding applies to AM stations.  Daylight Savings Time resumes on March 10, and thus AM daytime-only radio stations and stations operating with pre-sunrise and/or post-sunset authority should check their sign-on and sign-off times on their current FCC authorizations to ensure compliance with the requirements set out in those authorizations.  As all times listed in FCC licenses are Standard Time, don’t be fooled into thinking that your daytime-only station has extra time to keep operating once Daylight Savings time kicks in.

A number of FCC actions become effective this month.  Perhaps the most prominent is the March 18 effective date of the rules adopted in the FCC’s December 2023 Report and Order in which the FCC concluded its 2018 Quadrennial Review of its broadcast ownership rules pursuant to court order (see our discussion here and here).  One of the substantive changes made in that decision was to adopt a clarification of the rules to prohibit any agreement that allows one top 4 station in a market to acquire the programming of another top 4 station and move that programming to a commonly owned LPTV station or a multicast stream.  FCC policy previously prohibited such transactions if the programming is moved to a full-power station owned by the acquiring party.  The new decision makes clear that the programming also cannot be moved to a commonly owned LPTV or multicast stream.  March 18 is also the deadline for filing petitions of reconsideration with the FCC of that decision, while parties have until April 15 to appeal the decision to a U.S. Court of Appeals.  Already, there have been at least three appeals of the decision filed in various courts across the country. 

March 4 is the effective date of the new rules adopted by the FCC in its September 2023 Report and Order, which revised many rules for full power and Class A television stations, particularly those that no longer have any practical effect given the transition from analog to digital-only operations and the post-incentive auction transition.  For the most part, these changes did not make substantive changes in rules governing station operations. 

A number of rulemaking comments are also due in March.  Comments are due March 8 in response to the FCC’s January Notice of Proposed Rulemaking (see our article here), which proposes to require cable operators and DBS providers to issue rebates to subscribers affected by TV station blackouts resulting from failed retransmission consent negotiations.  Reply comments are due April 8. 

In another proceeding involving the failure of retransmission consent negotiations, reply comments are due March 26 to address the comments filed in the FCC’s December 2023 Notice of Proposed Rulemaking (see our articles here and here), which proposes to require cable and direct broadcast satellite service providers to report occurrences of TV station blackouts when retransmission consent negotiations fail. 

Comments are due March 11 in response to the FCC’s January Notice of Proposed Rulemaking, which proposes to prioritize the review of non-routine license renewal, assignment of license, and transfer of control applications filed by a broadcast station that provides at least three hours per week of locally originated programming.  As we noted in our article here, this proceeding also seeks comments on the FCC’s abolition of the main studio rule, even though the proceeding does not propose any change in that rule.  Reply comments in this proceeding are due April 8. 

March 14 is the date of the FCC’s Open Meeting at which the FCC Commissioners will be considering the following two items of interest to broadcasters:

• A Report and Order requiring cable and direct broadcast satellite (DBS) service providers to state the aggregate cost of video programming as a clear, easy-to-understand, and accurate single line item in promotional materials including pricing information as well as on subscriber bills.  If adopted, cable and DBS providers would have up to nine months to comply with the new rules – unless the OMB approves the rule changes on an earlier date.
  • A Notice of Proposed Rulemaking proposing a new Emergency Alert System (EAS) alert code for missing and endangered persons to be used by EAS participants, including broadcasters.  If adopted, comments and reply comments will be due 30 and 60 days, respectively, after publication of the as-adopted item in the Federal Register.

While we note below political “windows” that open in March for Lowest Unit Rates to be charged to political candidates, let’s first look ahead to some regulatory dates in early April.  April 1 is the deadline for radio and television station employment units with five or more full-time employees licensed to communities in Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, and Texas to upload their Annual EEO Public File Reports to station online public inspection files.  The FCC’s Mid-Term EEO Reviews also commence on April 1 for all radio station employment units in Indiana, Kentucky, and Tennessee with eleven or more full-time employees. 

April 1 is also the deadline for comments responding to the National Association of Broadcasters and Xperi, Inc.’s petition seeking clarification regarding the maximum allowable operating power of a digital FM signal as proposed in the FCC’s August 2023 Notice of Proposed Rulemaking (see our discussion here).

All full-power broadcasters need to note that April 10 is the deadline for the first quarter Quarterly Issues Programs lists to be uploaded to stations’ online public inspection files.  The lists should identify the issues of importance to the station’s community and the programs that the station aired in January, February, and March that addressed those issues.  It is important that these be timely uploaded to your public file, as the untimely uploads of these documents have likely resulted in more fines in the last decade than for any other violation of the FCC’s rules.  As you finalize your lists, do so carefully and accurately, as they are the only official records of how your station is serving the public and addressing the needs and interests of its community.  See our article here for more on the importance of the Quarterly Issues Programs list obligation.

Now, let’s look at the Lowest Unit Charge windows that open in March.  The commencement of political windows this month affecting broadcasters in Alabama, Arizona, Arkansas, Delaware, Idaho, Mississippi, Montana, North Carolina, Pennsylvania, and Puerto Rico, will be unaffected by a potential federal government shutdown.  Broadcasters in those states and territory should be alert to the opening of the following political windows for primaries, caucuses, and elections scheduled to occur in April and May – meaning that Lowest Unit Rates apply to sales to candidates and their authorized committees (see our article here on the basics of computing LUR): 

As a refresher, in the 45 days before a primary election, and 60 days before a general or special election, broadcasters must extend to legally qualified candidates their lowest unit rate and continue to follow all other applicable political broadcasting rules.  So, the lowest unit rate period will be in effect at some point next month for stations serving states that have primaries, caucuses, or elections in April and May.  For a deeper dive on how to prepare for the 2024 elections, see our post, here, which also includes a link to our comprehensive Political Broadcasting Guide.  Also take a look at our 2024 Broadcasters’ Calendar to see if your state has an upcoming primary, general, or special election (though confirm these dates locally as some dates have changed since the calendar was prepared). 

As always, check with your attorneys and advisors to see if there are other dates not mentioned here that are of importance to your station.  Always stay on top of all regulatory requirements.

The obituary itself quoted one media observer as suggesting that the deregulatory direction in which Ferris took the FCC might not have been entirely successful, based on a persistent lack of minority ownership of broadcast properties, and “’a shortage of local, professional, accountable reporting’ in many communities.”  But are those failings ones that are attributable to the deregulatory trends of the FCC, or greater marketplace forces that have strained not just broadcasting but all traditional media?  In reading the media headlines in the last few weeks, one can’t help but conclude that the latter is more likely the cause, and that another quote from Chairman Ferris cited in the article has never been more appropriate, as he warned broadcasters: “If you cannot compete with new technologies, you will be overcome by them.”  As we’ve argued in this blog before (see for instance our article here reflecting on the warnings of another former Chairman, Ajit Pai), given the slew of new technologies available to consumers, imposing new rules on a broadcast industry flooded with new competition for audience and revenues simply does not make sense.

To conclude that it is deregulation, not marketplace forces, that is decreasing localism is to ignore the media marketplace generally.  Just this week, the primary public radio operator in the Washington DC market shuttered its digital local news service and laid off a significant number of news employees, citing the need to retrench to its audio reporting because “too many media companies fail by trying to be all things to all people, leaving their value proposition diluted and weakened.”  In other words, there is too much competition to be successful with this local digital news site, which the public broadcaster acquired only a few years ago. 

Local newspapers, including those that are run by nonprofits or wealthy individuals who made promises to revive local journalism, have also been cutting back on that local journalism as the economic winds in their face have overwhelmed their noble intentions.  In the radio world, each of the three largest commercial radio companies have been through bankruptcy proceedings, and other smaller companies similarly have had to restructure their operations, as the advertising revenues that once were available to support their operations go to competitors that did not exist 25 years ago (our article about the Pai speech reviews competition in local markets, noting that well over half the local advertising revenues in every market, that once supported local broadcasters and newspapers, now go to non-local digital media giants).

In light of these nationwide trends, what should the FCC be doing?  Seemingly, they should be following the guidance of Chairman Ferris, and eliminating regulations unless they can be shown to clearly benefit the marketplace.  Instead, we are concerned that the reverse may be taking place.  We have written about the FCC questioning its repeal of the main studio rule, the FCC majority’s decision to reject any attempt to allow more broadcast consolidation in local markets to allow stations to bulk up to compete with digital media giants and, most recently, the return of FCC Form 395-B gathering employment data that cannot, for constitutional reasons, be used to enforce FCC affirmative action policies and thus seemingly is nothing but, to use the words of Chairman Ferris, “a nuisance” to broadcasters.  We understand that there are on the horizon proposals to reinstate the prohibition on two FM stations serving the same area duplicating their programming despite the lack of any evidence that, in the many years that the rule has been gone, that there has been any widespread rush to eliminate unique programming on commonly owned local stations.  Similarly, there is now an item on circulation among FCC Commissioners that apparently will impose on stations nationwide a requirement to have any buyer of program time on a station, including local churches, business owners, and ethnic programmers, to complete an extensive questionnaire to be included in the station’s public file to show that the programmers are not representatives of foreign governments – imposing paperwork obligations on thousands of stations merely because a handful of stations have sold program time to representatives of the Russian or Chinese governments. 

Is this re-regulation really necessary?  Just because the FCC can regulate broadcasters, should it do so without an extensive record that the new regulations will directly bring about some public interest good?  Imposing new paperwork requirements on broadcast stations that are already challenged by the economic tides of the media industry seemingly flies in the face of the deregulatory trends over the last 40 years since Chairman Ferris was in office.  We hope that the FCC moves cautiously in trying to turn back the dial to a time when broadcasters and newspapers dominated the media marketplace. 

The Form is not new, though its use has been on hold for over 20 years.  A version of this form had been used by the FCC in the 1980s and 1990s, but its use was put on hold in 1998 as the result of court decisions finding unconstitutional the FCC’s use of this information to impose additional regulatory burdens on broadcasters whose employment profile did not reflect the demographics of its service area.  The court’s concern was that these additional regulatory actions forced broadcasters to make hiring decisions based on race or gender, a form of prohibited discrimination. 

For more than twenty years, the use of FCC Form 395-B has remained suspended.  During this period, the FCC has stated that it believed that federal law requires the collection of industry-wide data about diversity in the broadcast workplace, but the FCC struggled with ways to collect the information and making sure that broadcasters were diligent in providing it, while avoiding its use for any discriminatory purpose.  It has been consistently said that the best way to do that was to not reveal the information filed by any individual station so, during this period, the Commission was looking for a way to collect the data from stations, while keeping it anonymous.

In last week’s decision, the FCC decided to again collect this employee information from each broadcaster and, over the strong objections of Commissioners Carr and Simington, it decided not to keep the information anonymous.  Instead, broadcasters will need to upload a copy of their completed Form 395-B to their FCC-hosted online public inspection file by September 30 each year.  The majority of the Commissioners said that the FCC’s rules already prohibit the use of Form 395-B information for any finding that a broadcaster has not complied “with the nondiscrimination or equal employment opportunity requirements of Section 73.2080.”  That protection was deemed sufficient by the majority to demonstrate that this information would not be used against a broadcaster in a way that was prohibited by the courts. Section 73.2080 is the FCC rule that requires broadcasters to provide equal opportunities in their hiring practices.  The decision also promises that any attempt by any third party to use the information to attack a broadcaster’s compliance with these antidiscrimination policies would be expeditiously dismissed.

In dissent, the Republican commissioners suggested that the public posting of this data could lead to the impermissible result feared by the courts – either through “raised eyebrow” regulation by the FCC or other agencies, or by private parties who would have access to this information which would again cause the broadcaster to make hiring decisions based on race and gender of applicants for job openings, rather than based on the applicant’s qualifications.  Thus, they argued, the requirement for the public disclosure of this information by each station employment unit was still unconstitutional. 

One can easily imagine the potential for mischief if this information is in fact made public for each station.  The majority opinion claimed that making the information public was important not only for the preparation of reports to Congress, but also so that the public could check on the data provided by the broadcaster to ensure its accuracy.  The potential for problems with the accuracy of the data is certainly there, as broadcasters, if they have not otherwise legally  collected information about the race, ethnicity, and gender of each employee (information which would have to be collected after hiring to avoid potential claims of discrimination in the initial employment process), are allowed to classify information based on a “visual survey” classifying the employee based on “the minority group to which he or she appears to belong, or is regarded in the community as belonging.” 

Given the potential for error in such visual identifications, what would happen if an outside group decided to challenge the broadcaster’s classification of its employees and complain that the broadcaster was not filing accurate reports at the FCC?  You could see a challenge that a broadcaster was misrepresenting its employment profile to enhance its reputation in the community or for some other reason.  If it could be shown that a broadcaster had in fact made mistakes in its classification of its employees, could that be used for a challenge to a broadcaster’s qualifications?  It would not be a challenge based on Section 73.2080 (which the FCC said was prohibited), but instead one based on the accuracy of the reporting, which was not part of the FCC’s promise to not use the form’s information to penalize a broadcaster.

In what is perhaps an even more likely situation, broadcasters have been known, from time to time, to miss regulatory paperwork filing deadlines.  In recent months, we noted on our Blog large fines for the failure to timely file just one annual EEO public inspection file report.  Not timely filing a required ownership report, or the failure to upload to a station’s public file Quarterly Issues Programs Lists or political broadcasting information by FCC-imposed deadlines, have also led to enforcement actions.  Like any of those documents, the Form 395-B is one more paperwork requirement that can be forgotten and can lead to a station being penalized.

We would not be surprised to see appeals or requests for reconsideration of this ruling.  Reconsideration requests would be due 30 days after the order is published in the Federal Register.  We will see what happens when that time comes.  But as the requirement may still become effective even if it is being reviewed, stations should start making compliance plans in the event that the form has received all necessary approvals in time for a September 30, 2024 filing deadline. 

• The FCC adopted an Order that will reinstate FCC Form 395-B, which requires broadcasters to annually report their employees’ race or ethnicity and their gender, while classifying the employees in job categories (e.g., Officers and Managers, Professionals, Sales Workers, Clerical – see the most recent version of the Form for all the categories).  This week’s decision said that the collection of this information was required to provide Congress with regular snapshots of the demographics of the broadcast industry.  The Form 395-B, which will be due annually on or before September 30, will be included in stations’ public files.  The use of the form was suspended over twenty years ago because two Court decisions found that the FCC’s use of race and gender information to penalize broadcasters whose workforce did not reflect the demographics of their service area compelled unconstitutional race-based hiring decisions (for more information, see our Broadcast Law Blog article posted last year when the FCC asked for comments on the proposed return of the form).  This week’s decision also adopted rule changes prohibiting the FCC from using the data from the reinstated Form 395-B to judge a broadcaster’s compliance with the FCC’s EEO outreach policies, concluding that this prohibition would avoid the constitutional concerns that had been raised by the Courts.  Commissioners Carr and Simington issued dissenting statements, questioning the conclusion that the public reporting of this information would not force race- and gender-based hiring decisions and thus challenging the constitutionality of the FCC’s action.  The reporting requirement will become effective after the revised form, which adds “non-binary” as a gender classification, receives approval from the Office of Management and Budget. The FCC also requested comment on a proposal to adopt similar reporting requirements on Form 395-A for Multichannel Video Programming Distributors. 
• In another EEO action, the FCC’s Enforcement Bureau fined a group of Kansas radio stations $25,000 for violations of the FCC’s EEO rules.  The Bureau proposed that fine in October 2023 (see our article here) because the stations did not timely upload to the public file a few Annual EEO Public File Reports, did not do public outreach for two job openings, and did not produce records to support its outreach claims.  The stations did not raise specific objections to the FCC’s findings in the 2023 Notice of the proposed fine but instead argued that since the stations’ owners had filed for bankruptcy and the stations were to be sold, the decision was moot.  The FCC disagreed, finding that it could still fine a company for rule violations even if it was in bankruptcy.
• The FCC announced its tentative agenda for its next monthly Open Meeting scheduled for March 14, at which it will consider two items of interest to broadcasters:
  • A Report and Order adopting rules requiring cable and direct broadcast satellite service providers to state in promotional materials and on subscriber bills the price of video programming as a clear, easy-to-understand, and accurate single line item.  This “all-in” price is to include all video programming charges, including those for broadcast retransmission consent, regional sports, and other programming.   
  • A Notice of Proposed Rulemaking (NPRM) in which the FCC proposes a new Emergency Alert System alert code for missing and endangered adults to be used by EAS participants, including broadcasters.  In the NPRM, the FCC is seeking comment on whether to apply the new EAS alert code to individuals over the age of 17, missing adults with special needs or circumstances, and missing adults who are endangered or who have been abducted or kidnapped. 
• The FCC’s Media Bureau released a Public Notice announcing the filing of a petition by the National Association of Broadcasters and Xperi, Inc., which seeks clarification regarding the maximum allowable operating power of a digital FM signal as proposed in the FCC’s August 2023 Notice of Proposed Rulemaking (NPRM).  NAB and Xperi seek to clarify an ambiguity in the expression of the maximum digital FM power levels permitted for multichannel hybrid service modes, proposing the addition of clarifying text to the rules.  The FCC seeks comments on this proposed clarification.  Comments and reply comment dates will be set when the Bureau’s Public Notice is published in the Federal Register.
• The Bureau also made two decisions dealing with applicants for new stations.
  • In one, the Bureau affirmed the tentative selectee from a group of mutually exclusive applications filed during the 2021 noncommercial educational (NCE) FM station filing window.   The Bureau rejected arguments that the applicant did not have reasonable assurance of its tower site’s availability, finding that the tower owner’s representative confirmed the availability of the site to the applicant’s engineer (finding it insignificant that the applicant’s name had not been revealed at the time of the initial confirmation from the tower owner’s representative).  The Bureau also rejected the argument that the applicant needed to be incorporated in the proposed station’s state and confirmed as a Section 501(c)(3) nonprofit entity to be an NCE licensee.  The decision found that, for FCC purposes, as long as the applicant was in some state a non-profit legal entity formed for educational purposes, it could file for an NCE station even if it was not tax exempt or registered in the state where the station would operate.  Finally, the Bureau found no evidence that the tentative selectee attempted to circumvent the limit imposed in the 2023 window restricting any person or entity from having interests in more than 10 applications as the challengers did not demonstrate common control with another applicant.  The challengers had only shown that two applicants had used the same engineering consultant and that there was a familial relationship between principals of the two applicants, neither of which is sufficient under FCC precedent to establish common control.  We wrote last week, here, of another Bureau decision involving challenges against the same tentative selectee.
  • In another decision, the Bureau dismissed several applications for new LPFM stations because the applicant failed to demonstrate that it was eligible to hold an LPFM authorization.  The applicant proposed to broadcast weather-related information as a public safety radio service in several states, stating that it was in contact with local public safety organizations that agreed to work with it in providing its proposed services.  The Bureau found that just coordinating with these local organizations did not make the applicant a local community organization as required by the LPFM rules.
• The FCC Chairwoman announced the relaunch of the FCC’s Consumer Advisory Committee to examine emerging artificial intelligence (AI) technologies on consumer privacy and protection, including how AI can protect consumers from unwanted and illegal calls.  As the FCC stated in a separate announcement, the relaunched committee will be comprised of new and returning members from a mix of non-profit organizations, communications companies, trade associations, and other individuals – including some government employees.  The committee’s first meeting will occur on April 4, which will be broadcast live over the Internet on the FCC’s live web page, here.  Also on the topic of AI, FCC Commissioner Gomez gave a speech this week in which she discussed the FCC’s recent effects to combat misinformation created by the use of AI and consumers’ need for additional tools for understanding and consuming media generated by AI.