This Week in Regulation for Broadcasters:  April 2, 2024 to April 5, 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 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.