This Week in Regulation for Broadcasters: May 6, 2024 to May 10, 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 announced that comments are due June 6 on its April Notice of Proposed Rulemaking, exploring state of the market for independent video programming.  The FCC proposes new rules to prohibit “most favored nation” clauses and considers restrictions on clauses in agreements between independent programmers and multichannel video programming distributors (and broadcast companies) that limit alternative distribution methods.  Reply comments are due July 8.  
• Reply comments were due this week in response to the FCC’s February Notice of Proposed Rulemaking, in which it proposed the adoption of multilingual alerts for the Emergency Alert Service (EAS) using pre-scripted, pre-translated alert messages in thirteen non-English languages that alert originators can distribute during emergencies to broadcasters, cable providers, and other EAS participants.  While there was some support from commenters for multilingual EAS alerts, many commenters, including the National Association of Broadcasters and REC Networks raised concerns regarding their implementation costs, and technological and logistical issues about their use.  While Asian Americans Advancing Justice and the Japanese American Citizens League supports the proposed multilingual alerts, they express concern regarding the accuracy of new multilingual alert templates. 
• The FCC submitted its semi-annual report to Congress on U.S.-based foreign-government backed media outlets distributing video programming to MVPDs.  By law, the FCC must update Congress every six months with a list of the U.S.-based media outlets who act as agents for foreign governments that registered with the FCC.  The FCC stated in this year’s report that no such outlets registered in the last six months – which has been the case since mid-2021.
• The FCC released a Small Entity Compliance Guide regarding program origination by FM boosters.  As we discussed on our Broadcast Law Blog here and here, beginning 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 guide, among other things, explains that experimental authority must be requested until the FCC adopts final rules for this service, and reminds broadcasters that these FM boosters must comply with the EAS rules, and may cause interference to their primary station’s signal.
• The FCC’s Media Bureau rejected requests for two broadcast authorizations:
  • The Bureau ordered an Arizona AM station and its FM translator to cease operations after finding that the stations’ licenses were cancelled automatically as of December 6, 2023 pursuant to Section 312(g) of the Communications Act.  Under Section 312(g), a station’s license will be automatically cancelled if the station that has not operated as authorized for a full year, unless the FCC finds that there are public interest factors warranting the preservation of the license.  Here, the bureau found that the AM was either silent or operating from an unauthorized site when it continued to operate at an STA site even after its STA had expired in December 2022, and also had periods when it was totally silent without FCC authorization.  The translator’s license was cancelled because its authorization was granted in a translator window where that license was permanently tied to this AM station.  The Bureau rejected arguments that the stations’ licenses should be reinstated for reasons including the licensee’s inadvertent failure to request an extension of the STA for its AM station, the stations’ minority ownership and programming for the Hispanic community, and the licensee’s significant health challenges due to COVID.
  • The Bureau affirmed its dismissal of an Oregon LPFM construction permit application for its failure to meet the to meet the co-channel and second-adjacent channel spacing requirements for protecting nearby full-power FM stations.  Because LPFM application procedures clearly state that applications failing to comply with spacing requirements in their initial application would be dismissed without an opportunity to amend, and the technical parameters submitted in the “Tech Box” portion of this application were incorrect (and the Bureau will not look to parameters set out in any attached exhibit), the dismissal of the application was proper.

On our Broadcast Law Blog, we discussed why broadcasters should remain cautious about accepting marijuana advertising despite the Attorney General’s recent recommendation to loosen federal restrictions on marijuana.  New rules have not been adopted and, even if they are, any new federal regulatory regime may still restrict advertising for marijuana “legalized” under state laws.