This Week in Regulation for Broadcasters: March 25, 2024 to March 29, 2024

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

• 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.