This Week in Regulation for Broadcasters: September 16, 2024 to September 20, 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 it has corrected its CORES database which had overstated the regulatory fees to be paid by many radio stations.  As we discussed on our Broadcast Law Blog here, this announcement lifts the FCC request from late last week asking radio stations to wait to pay their regulatory fees while the problem was being fixed.  With the resolution of the problem, regulatory fees remain due September 26. The FCC said that it will contact those broadcasters who paid an incorrect fee amount before the issue was discovered to “reconcile” the improper payments.
  • The FCC also released two Fact Sheets regarding regulatory fees.  The first Fact Sheet identifies general regulatory fee exemptions, including for nonprofit entities designated under Section 501 of the Internal Revenue Code, noncommercial educational FM and TV stations, and broadcast licensees whose total fee obligations are “de minimis,” meaning that they total $1,000 or less. The second Fact Sheet provides guidance on regulatory fee payments by entities regulated by the FCC’s Space Bureau, including for earth stations, noting that fees are due only for earth stations with transmit-only or transmit/receive antennas and not for earth stations with receive-only antennas. 
• The House Committee on Energy and Commerce approved the House version of the AM Radio for Every Vehicle Act with a vote of 45-2.  As we discussed here, here, and here, the bill requires that automobile manufacturers keep AM radio in the car dashboard.  The bill, which closely matches the bill approved by the Senate last year, can now advance to the House floor for a vote.  Reconciled versions of this bill (ones with identical language) must be approved by the full House and full Senate before Congress adjourns at the end of the year.  The bill enjoys broad bipartisan support in both chambers, so it is possible that it will be passed alone or be made part of other legislation that will be approved before year’s end.
• Numerous questions have been raised in recent weeks about the FCC being used to punish broadcasters for political reasons. At a House Oversight Committee hearing this week, FCC Commissioner Carr responded to Democratic lawmaker’s questions regarding his position on former President Trump’s call to revoke ABC’s FCC licenses for its handling of the presidential debate.  Carr stated that all decisions of his decisions at the FCC were consistent with federal law and the First Amendment.  FCC Chairwoman Rosenworcel also responded to Senators Markey and Wyden’s inquiry on the subject by stating that the FCC would not use its licensing authority to retaliate against a broadcaster over the content of its coverage.  Last week, FCC Commissioner Simington also responded to the Senate inquiry, stating that he was committed to making broadcast license determinations fairly and objectively in a manner consistent with the First Amendment, and suggesting that this same policy be applied to a Fox television station with a long-pending renewal application whose processing has been delayed by objections about the actions of Fox News’ cable operations. 
• The FEC declined to adopt specific rules regulating the use of Artificial Intelligence in political advertising.  Instead, the FEC adopted a “technology neutral” case-by-case approach where it will look to see if the use of AI in any political ads violates the FEC’s existing rules prohibiting fraudulent misrepresentations by one federal candidate or committee of the speech or writing of another candidate or committee.  As we discussed here, there has been much debate at the FEC regarding whether the agency has the authority to regulate AI use in political ads, and this bipartisan decision represents an apparent compromise on the issue.
  • Comments were due September 19 in response to the FCC’s July Notice of Proposed Rulemaking proposing that broadcasters and cable operators be required to disclose AI use in political ads both on the air and in their Online Public Inspection Files.  Several broadcasters (see here, here, here, and here) and media industry groups (see here, here, here, and here) object to the FCC’s proposal for reasons including the disproportionate burden broadcasters and cable providers would bear, while leaving undisturbed a much larger concern, AI-generated deepfakes on social media.  These commenters also argue that the FCC lacks authority to regulate AI use in political ads and its proposals raise First Amendment issues.  In contrast, several public interest groups (see here, here, here, and here) support the FCC’s proposal, noting that deepfakes in political ads are a threat to the democratic electoral process, and urge the FCC to expand its proposals to include “cheapfakes” (false and misleading content not created using generative AI).
• The FCC released a Small Entity Compliance Guide summarizing its new closed captioning accessibility rules for video programming, which it adopted in a July Report and Order.  As we discussed here and here, the new rules require device manufacturers and Multichannel Video Programming Distributors to make closed captioning display settings “readily accessible” to individuals who are deaf or hard of hearing.  The requirement applies to all U.S.-manufactured devices using a picture screen that receives or plays back video programming simultaneously with sound (such as televisions, smartphones, tablets, and computers).  MVPDs must comply with the requirement if they provide their customers with covered devices to use their services.  While the Order became effective on September 16, MVPDs do not have to comply with the new requirements until the later of August 17, 2026 (two years after the Order’s publication) or after the Office and Management Budget finishes its review of the new rules.

On our Broadcast Law Blog, we discussed how the recent use of the rural radio policy by the FCC’s Media Bureau to block a move of a silent AM radio station to a new city of license raises the question of whether prohibiting radio station moves from rural to urban areas remains in the public interest given other programming options now available in rural markets.