This Week in Regulation for Broadcasters:  April 29, 2024 to May 3, 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 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Hill, there have been concerns regarding mandates on the car industry to protect the AM technology that some see as outdated.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.