This Week in Regulation for Broadcasters: May 20, 2024 to May 24, 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.

• FCC Chairwoman Rosenworcel announced that she had circulated among the Commissioners for their review and approval a draft Notice of Proposed Rulemaking to require TV and radio stations, as well as cable operators and satellite TV providers, to disclose the use of AI-generated content in political ads.  If approved, the NPRM would request comment on whether to require broadcasters to disclose (both on-air and in their political files) when AI-generated content is used in political advertisements from both candidates and issues advertisers, and on how to define the AI-generated content that would need to be disclosed.  Commissioner Carr issued a statement opposing the NPRM, arguing that the Chairwoman’s proposals “fundamentally alter the rules of the road for political speech just a short time before a national election” (even though, if the NPRM is adopted, given normal rulemaking comment periods and processing timelines, it is unlikely that any proposed rule could be adopted in time for this year’s elections) and questioning whether the FCC has the authority to require the disclosures.  See our Broadcast Law Blog article for a discussion of issues that should be considered if the FCC decides to move forward with this proposal and as Congress also considers regulating AI in political advertising.
• Congressmen Gus Bilirakis (R-FL) and Frank Pallone, Jr. (D-NJ) announced the introduction of a new House of Representatives version of a bill dealing with AM radio in cars titled “AM Radio For Every Vehicle Act of 2024.”  A “mark-up” session on the revised bill was held on Thursday, May 23, when the bill was discussed by the House Subcommittee on Innovation, Data, and Commerce, approved, and sent to the full House Energy and Commerce Committee for approval (see video of the mark-up session here).  As we discussed here, here, and here, the AM Radio for Every Vehicle Act requires that automobile manufacturers retain AM radio in the car dashboard.  The new House version of the bill more closely matches that approved by the Senate Committee on Commerce, Science, and Transportation in July 2023, and provides for enforcement by the Departments of Justice and Transportation through civil penalties and civil actions – provisions that were not included in an earlier House version of the bill.  Any such bill must be passed by both the full House and Senate and signed by the President to become law. 
• The House Subcommittee on Communications and Technology held a hearing titled: “Legislative Proposal to Sunset Section 230 of the Communications Decency Act.”  At the hearing, the subcommittee discussed the draft bipartisan proposal of Subcommittee Chair Cathy McMorris Rodgers (R-WA) and Ranking Member Frank Pallone (D-NJ) which, on its face, would sunset Section 230 of the Communications Act, effective as of December 31, 2025.  As we discussed here and here, Section 230 was designed to insulate online platforms from liability for content created by others that is hosted on their sites.  Section 230 immunity has long been considered essential to the success of the Internet, but there have been concerns that the law has had unintended consequences, such as enabling terrorist activity, promoting the exploitation of minors, and allowing discrimination and harassment.  In the Subcommittee’s hearing memo outlining the issues to be discussed, it was made clear that the intent of the “discussion draft” was not to actually repeal Section 230, but to encourage its reform with the input of affected technology companies.  A video of the hearing can be viewed here.
• Comments were filed this past week on the FCC’s March Notice of Proposed Rulemaking (NPRM) proposing the creation of a new Emergency Alert Service event code for missing and endangered persons.  Commenters generally supported the new EAS event code.  Several Tribal groups (here, here, here, here, and here) expressed their support, noting the high numbers of missing persons cases among indigenous people.  Public safety and public interest commenters (here, here, and here) state that the new code would streamline the dissemination of alerts now delivered through multiple codes, facilitating their consistency and speeding delivery to the public.  NCTA – The Internet and Television Association supports the new event code but suggests that the FCC permit its use on a voluntary basis because EAS participants will require equipment upgrades to use the new code, and also urged the FCC to encourage state, local, and tribal official officials to establish clear guidelines to prevent the new event code’s overuse in nonemergency situations.
• The FCC dismissed a Nevada FM translator licensee’s request for review of the Media Bureau’s November 2022 decision which denied the licensee’s request for waiver of the FCC’s FM translator siting rule .  That rule requires that an FM translator rebroadcasting an AM station be located within the greater of the AM station’s primary service area or a 25-mile radius of its AM station’s transmitter site.  The Bureau dismissed the waiver request because neither the irregular size and shape of station’s market nor terrain obstructions justified waiver of the siting rule.  The Commission found that the applicant was trying to extend, not fill-in, its service area, and determined that it was in the public interest to apply the rule in a fair and consistent manner by prohibiting FM translator locations outside of the AM station’s service area absent compelling circumstances, and the desire to serve a greater area was not such a circumstance. 
• The FCC’s Media Bureau proposed a $3,250 fine against a Texas TV translator station that failed to timely file its license application and operated for over three years from an unauthorized site.  In April 2021, due to the collapse of its authorized tower, the translator was forced to relocate to operate pursuant to Special Temporary Authority at a temporary site. The STA expired in December 2021.  The licensee failed to extend the STA and did not file a license application for permanent operations from the temporary site until April 2024 –long after its modification application to make the temporary site permanent was granted in May 2021.  The base fine of $13,000 for the licensee’s failure to timely file the license application and the $10,000 base fine for unauthorized operations were reduced because the licensee’s documented inability to pay the base fines, its history of compliance, and the secondary nature of TV translators.