This Week in Regulation for Broadcasters: May 13, 2024 to May 17, 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 Justice Department has submitted a proposal to be published in the Federal Register to reclassify marijuana under the Controlled Substances Act, asking for public comment as to whether it should be moved from Schedule I (prohibited drugs with no medical benefits and a high potential for abuse) to Schedule III (drugs with some medical benefit with lower risks)(see DOJ’s Press Release containing links to more DOJ information).  The notice recognizes that, even if the rescheduling occurs, the federal government will still have regulatory authority over marijuana and will need to make determinations as to its proper use by, and distribution to, the public so, as we warned in our recent article on our Broadcast Law Blog, this action does not remove all legal risks from advertising marijuana on broadcast stations where its use has been “legalized” under state law. 
• The FCC announced its agenda for its regular monthly Open Meeting on June 6 at which it will consider a Notice of Proposed Rulemaking proposing extensive revisions to its Class A TV, LPTV, and TV Translator rules.  Most significantly, the FCC proposes extending Online Public Inspection File (OPIF) recordkeeping requirements to LPTV stations – either those affiliated with a top-four broadcast TV network (ABC, CBS, Fox, or NBC) or, alternatively, to LPTV stations rated among the top-four TV stations in their Designated Market Areas.  OPIF requirements would include LMAs or Joint Sales Agreements and Class A certifications.  The NPRM also proposes to make clear that FCC political broadcasting rules – including political file requirements – apply to LPTV stations.  The NPRM includes several other proposed amendments to technical and operational requirements, including limiting minor changes to moves of no more than 48.3 kilometers from a station’s currently licensed site, requiring stations to specify a community of license within their service contour, requiring LPTVs to operate for a minimum of 14 hours per week, and requiring LPTV stations to file a minor modification application to change their designation to a TV translator (and vice versa – this can currently requires only notice to the FCC).  The FCC also proposes to clarify when a station can request authorization to move to another channel by more clearly defining the circumstances when an LPTV or translator station receives or causes interference justifying such displacement.
• Comments were due this past week in response to the FCC’s January Notice of Proposed Rulemaking proposing 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.  DIRS reporting is currently voluntary for broadcasters, and NORS reporting is not currently required or available to broadcasters.  The National Association of Broadcasters and several broadcasters (see here, here, here, here, and here) argue that the proposed requirements would be unduly burdensome for broadcasters and would distract from their primary obligation to provide critical safety information to the public during disasters.  Instead, DIRS reporting requirements should remain voluntary for broadcasters, or as REC Networks proposes, only extend to reporting on the status of Emergency Alert Service infrastructure.  REC also notes that the reporting obligation could require broadcasters to report minor, transitory outages not currently required to be reported to the FCC.  Other commenters (see here and here) ask for an exemption for small noncommercial stations that lack the resources of larger commercial broadcast stations.  National Public Radio asks that the FCC defer imposing DIRS and NORS reporting obligations on broadcasters until it clarifies how it will use the reported data.
• The Senate Committee on Rules Administration held a hearing in which in reviewed three bills addressing the effect of artificial intelligence (AI) on elections.  The first bill, the Protect Elections from Deceptive AI Act, prohibits the distribution of deceptive AI-generated audio or visual media relating to federal elections, with exceptions for use in bona fide newscasts by broadcasters and cable and satellite television providers if a disclaimer is used at the time of broadcast.  The second bill, the AI Transparency in Elections Act of 2024, requires the use of disclaimers in political advertisements including any AI-generated media.  The final bill, the Preparing Election Administrators for AI Act, requires the Election Assistance Commission to develop voluntary guidelines to be used by election administrators regarding the use and risks of AI in the upcoming 2024 elections.  All bills were voted out of committee – the first with two Republicans objecting, claiming that the language of these bills was too vague to determine what was prohibited and could violate free speech rights.  These bills will only become law if approved by the full Senate the House of Representatives.
  • Senate Majority Leader Chuck Schumer and Senators Mike Rounds, Martin Heinrich, and Todd Young also released a bipartisan AI Roadmap which summarizes the areas of political consensus on AI issues and identifies where further work is needed on these policy issues.
• The FCC’s Media Bureau dismissed three LPFM construction permit applications for failure to comply with the LPFM application rules:
  • The Bureau dismissed a Wisconsin LPFM construction permit application as the applicant failed to show that it was qualified to hold an LPFM license.  An applicant must either be a public safety radio service provider (which must be a local government or other non-profit that provides emergency services in its service area) or a local non-profit with its headquarters or the residence of 75% of its board members within required radius of its proposed station’s transmitter site – and the applicant did not show that it met either of these criteria.
  • The Bureau affirmed its dismissal of Arkansas and Texas LPFM construction permit applications for their failures to meet the co-channel, first-adjacent channel, or second-adjacent channel spacing requirements necessary to protect nearby broadcast stations.  The Bureau rejected each applicant’s request to amend its application because the LPFM application procedures clearly state that the Tech Box in the initial application must show compliance with the FCC’s channel spacing requirements – and as neither of these applications did, they were properly dismissed without an opportunity to amend.  With the Texas application, the Bureau also rejected the applicant’s request to amend its application to include a waiver of the co-channel spacing requirements because the FCC cannot grant waivers of its co-channel distance separation requirements.