This Week in Regulation for Broadcasters:  April 15, 2024 to April 19, 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.

• 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.