This Week in Regulation for Broadcasters:  June 3, 2024 to June 7, 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 adopted a Notice of Proposed Rulemaking proposing extensive revisions to its Class A TV, LPTV, and TV translator rules.  As we discussed here, the draft NPRM released several weeks ago proposed extending Online Public Inspection File requirements to certain top-rated or network affiliated LPTV stations, and expanding Class A station OPIF requirements to include uploading LMAs, Joint Sales Agreements, and Class A certifications (LPTVs would also upload LMAs and JSAs).  The draft NPRM also included other proposals, including limiting station site moves to 48.3 kilometers and requiring stations to specify a community of license within their service contour.  The FCC has not yet released the final version of the NPRM, but its proposals may have changed since the draft was released due to recent lobbying by broadcasters.  Perhaps most interesting was the National Association Broadcasters’ argument that the OPIF requirements should not be applied to LPTV as the FCC-mandated public file does not serve its intended purpose of informing the public about broadcast station operations, as the public rarely accesses that file.  The LPTV Broadcasters Association challenged any strict application of the 48.3 km limit on station moves and the Advanced Television Broadcasting Alliance suggested that a designated community of license was unnecessary for LPTV stations. We will report next week if any of these issues was addressed in the final version of the NPRM. 
• The FCC’s weekly list of the items on circulation (those orders or rulemaking proposals that have been drafted and are currently circulating among the Commissioners for review and a vote) removed an order resolving a petition for reconsideration of the FCC’s 2020 decision eliminating the prohibition on radio stations in the same service (AM or FM) that serve the same area duplicating programming (see our Broadcast Law Blog article here, summarizing the 2020 decision).  Some public interest groups asked for reconsideration of the decision as applied to FM stations in the same area duplicating programming. The removal of the draft order from the list likely means that it has been voted on by the Commissioners and will be released soon – possibly in the next few days. 
• The NAB filed a petition for reconsideration of the FCC’s February Report and Order reinstating the requirement for broadcasters to annually file the FCC Form 395-B, a form that has been on hiatus for over 20 years.  As we discussed in an article on our Blog, here, the form requires broadcasters to annually report their employees’ race or ethnicity and their gender, while classifying the employees by job categories.  The NAB urged the FCC to reverse its decision to make the Form 395-B data publicly available, arguing that doing so violates the First and Fifth Amendments by pressuring broadcasters to engage in preferential hiring practices.  The NAB also cites concerns recently raised by broadcasters that the expansion of the report’s gender categories could lead to harassment of station employees identifying as non-binary. The NAB’s petition joins that of two groups of Catholic broadcasters who sought reconsideration of the reinstatement of the form, and the appeals filed by the National Religious Broadcasters Association and one of its members and by the Texas Association of Broadcasters seeking Court review of the FCC’s order.   
• Press Communications, LLC and REC Networks filed petitions for reconsideration of the FCC’s April decision permitting FM stations to “zonecast” or “geo-target” by airing a limited amount of original programming (e.g., commercials or news) on their FM boosters.  Press Communications urged the FCC to prohibit zonecasting in “embedded markets” (such as the Northern New Jersey market, “embedded” in the New York City market) because underfunded, lower-powered Class A FM stations in these suburban markets cannot compete with better-funded, higher-powered Class B FM stations from the larger parent market that will be allowed to us use multiple FM boosters to geo-target advertisers in the embedded markets.  Press Communications also argues that the FCC relied on faulty engineering studies in concluding that the interference risks of zonecasting were minimal.  REC Networks argues that the FCC failed to consider potential co-channel interference to unrelated FM broadcast stations and proposes that all FM booster station applications (whether or not they propose zonecasting) include a showing that no interference will occur.  Comments on the petitions are due June 19.
• Federal Election Commission Chairman Sean Cooksey sent a letter to FCC Chairwoman Rosenworcel arguing that the FCC lacks legal authority to require broadcasters and cable and satellite TV operators to disclose the use of AI-generated content in political ads (as proposed by the Chairwoman last month – see our article here).  The FEC Chairman argues that FCC action could create conflicts with any rules that the FEC might adopt addressing the issue, which would require litigation to resolve, and expressed concerns that imposing the new rules in the limited time before the November election would “create confusion and disarray among political campaigns” and “chill broadcasters from carrying many political ads.”  In the press conference following the FCC’s open meeting this past week, Commissioner Carr reiterated these concerns, while Chairwoman Rosenworcel defended the proposal (which is not yet public) and her belief that it is important to have these rules implemented before the election.
• In routine actions at the FCC’s Media Bureau, it approved a proposed amendment to the FM Table of Allotments and dismissed two LPFM construction permit applications:
  • The Bureau amended the FM Table of Allotments by downgrading vacant Channel 245B at Mattoon, Illinois to Channel 241B1 to resolve a spacing conflict with a nearby FM station (the vacant allotment arose from the cancellation of a station license).  The Bureau concluded that Channel 241B1 would resolve the spacing issue and comply with the FCC’s minimum distance separation requirements.  The FCC will in the future announce the opening of a filing window for construction permit applications for the new allotment.
  • The Bureau denied applications for new LPFM applications in Arizona and Texas because the applicants failed to show that they were qualified to hold an LPFM license.  LPFM stations must be non-profits or government organizations, and neither applicant provided any evidence that they were organized as non-profits, and the records in their states did not reflect any nonprofit registration for either organization.  Nor could either applicant show it was a public safety radio service provider (which must be a local government or other non-profit that provides emergency services in its service area).