This Week in Regulation for Broadcasters:  June 10, 2024 to June 14, 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 released a Second Notice of Proposed Rulemaking asking for comments on the 2024 FCC annual regulatory fees, which will be paid in September by broadcasters and other FCC-regulated entities.  Regulatory fees reimburse the government for the FCC’s operating costs and are allocated based on how many FCC staff employees work on industry-specific matters.  As the result of reallocating employee costs across regulated industries, the FCC proposes reducing TV station fees by approximately 15.4% from last year and also proposes reductions in radio fees.  The FCC seeks comments on the fees and a number of other issues, including whether to end its presumption that silent stations are entitled to fee waivers without providing evidence of financial hardship, proposing that, beginning in 2025, such stations will be required to document their inability to pay.  Comments on the proposed fees are due July 15, and reply comments are due July 29.  Expect a final decision on the fees around Labor Day so that the fees can be paid before the October 1 start of the government’s new fiscal year.
• The FCC released a Report and Order expanding on the requirement that broadcasters determine whether those who “lease” program time on their stations are foreign government agents and, if so, imposing enhanced sponsorship identification requirements.  The FCC gives broadcasters two options to show that they checked whether a lessee’s programming is sponsored by a “foreign governmental entity”: (1) the station and the lessee must both execute written certifications using standardized language, the lessee certifying that they are not acting on behalf of a foreign government and the licensee certifying that they explained this FCC requirement to the lessee; or (2) the station must ask the lessee to provide screenshots of the search results for the lessee’s name in the Department of Justice’s Foreign Agent Registration Act database and the FCC’s most recent U.S.-based foreign media outlet report.  The FCC also reaffirmed that this requirement does not apply to commercial spots or political candidate advertisements, but the verifications are required for sponsors of issue ads and paid PSAs.  The FCC also determined that there will be no exemptions from these requirements for religious or locally produced programming.  We expect to write more on this Order on our Broadcast Law Blog in the coming week. 
• The FCC released the full text of its NPRM proposing changes to its Class A, LPTV, and TV translator rules that, as we noted in our update last week, was adopted at the FCC regular monthly open meeting the week before last.  The NPRM proposes extending Online Public Inspection File requirements to top-rated or network affiliated LPTV stations and expanding OPIF requirements to include uploading Local Marketing Agreements, Time Brokerage Agreements, Joint Sales Agreements and, for Class A stations, certifications of continuing Class A eligibility.  At National Association of Broadcasters’ request, the FCC seeks comment on whether the OPIF is serving its intended purpose of informing the public about broadcast station operations.  The NPRM also proposes a limit on site changes for these stations but, at LPTV Broadcasters Association’s request, the FCC seeks comment on alternatives to the proposed 48.3 km limit on such moves. 
• The FCC released a Reconsideration Order reinstating its radio non-duplication rule for commercial FM stations, granting a reconsideration request from music industry groups and a group associated with LPFM interests.  The rule, which the FCC repealed in August 2020, prohibited commonly owned or operated same service (AM and FM) stations with overlapping service contours from duplicating more than 25% of their programming (see our summary of the 2020 decision here).  The reinstated rule will only prohibit FM stations with overlapping contours from duplicating their programming, effective 30 days after the Order’s publication in the Federal Register.  FM stations currently duplicating programming, however, will have six months from the effective date to comply or to request a waiver to continue duplicating programming (which will be granted only in rare cases).  To prevent stations from taking advantage of the grace period, the FCC encourages stations to file waiver requests within 90 days after the effective date.
• It was also a busy week for the FCC’s Media Bureau, which took the following enforcement actions:
  • The Bureau proposed a $20,000 fine against a Wyoming TV station because it failed to timely file 23 of its Children’s Commercial Limits Certifications to its OPIF, which were filed between one month and over seven years late.  Due to the extent of the violations, the Bureau upwardly adjusted the proposed fine from the $10,000 established base amount for such a fine.
  • The Bureau admonished a Louisiana TV station, a South Carolina Class A TV station, and a North Carolina Class A station for their failures to include non-discrimination clauses in their advertising sales agreements.  The Bureau warned the stations that future failures to include non-discrimination clauses in such agreements could result in fines, and in the case of the Class A stations, downgrade to LPTV status. For more on the requirement to have this language in sales materials, see our article here.
  • The Bureau entered into a Consent Decree with an AM and a FM station in Louisiana because the stations failed to timely file any quarterly Issues/Programs Lists during their previous license period.  The Consent Decree requires the stations to implement a compliance plan to ensure that future OPIF violations do not occur.
• The Bureau released two NPRMs proposing changes to the TV Table of Allotments as requested by petitioner TV stations.  The first NPRM proposes the substitution of channel 23 for channel 7 at Boise, Idaho due to the poor reception on VHF channel 7.  The second NPRM proposes to undo the substitution of channel 27 for channel 12 at Augusta, Georgia due to petitioner’s inability to timely construct its channel 27 facilities.
• The Bureau also acted on several applications for new LPFM stations:
  • It dismissed two Texas LPFM construction permit applications (here and here) for failure to demonstrate reasonable assurance of site availability.  One applicant lacked reasonable assurance of transmitter site availability because it did not communicate with the actual tower site owner and listed the incorrect owner on the application.  The other applicant not only failed to communicate with the actual tower site owner, but a court injunction barred the use of the proposed site.
  • The Bureau affirmed its dismissal of an Alabama LPFM construction permit application for failure to meet the co-channel spacing requirements necessary to protect nearby broadcast stations, rejecting the applicant’s request to amend its application because the LPFM application procedures clearly state that the Tech Box in the initial application must comply with the FCC’s channel spacing requirements, and as it did not, the application was properly dismissed without an opportunity to amend.