This Week in Regulation for Broadcasters:  March 11, 2024 to March 15, 2024

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

• The FCC 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.