This Week in Regulation for Broadcasters:  September 23, 2024 to September 27, 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 released a Report and Order permitting digital FM radio stations to operate at different power levels on their upper and lower digital sidebands and clarifying that. To initiate such service, a notification of digital FM operations must be made using the FCC Form 335-FM.  The Commission has postponed any decision on higher power levels for digital FM while more testing is done with the aviation industry to ensure that there is no interference to aviation communications which uses frequencies just above the FM band.  The FCC made one change from the draft version of the Order that the FCC made available a few weeks ago – expanding the requirement that prior authorization from the FCC for different sideband power levels would be needed from digital FM stations operating on frequencies 107.1 to 107.9 MHz, rather than simply 107.9 as initially proposed, again while further studies are done with the aviation industry.  The new Form 335-FM notification procedures require the Office of Management and Budget’s approval before becoming effective.   
• The FCC took actions against several pirate radio broadcasters operating in Miami and the New York City area.  While the fines are significant in and of themselves, the decisions (the full texts of which have not yet been released), are also notable as reportedly Commissioner Simington dissented, questioning the authority of the FCC to impose fines for violations of its rules without a jury trial, based on a Supreme Court decision issued earlier this year.  What we know about the fines is set out below:
  • The FCC issued fines totaling $837,330 for three Miami pirate radio operators.  In January, the FCC proposed two $358,665 fines against two of these pirate radio operators for three days of violations and a $120,000 fine against the third pirate radio operator (we noted the proposals for these fine earlier this year in one of our weekly update here).  The pirate radio operators now have 30 days to pay the fines, or the FCC may refer the cases to the U.S. Department of Justice.  The FCC itself cannot sue to collect fines or take actions against individuals who ignore the penalties.  Instead, it must rely on the DOJ to enforce the penalties in Court.
  • The FCC also announced proposed fines totaling $1 million for three New York City area pirate radio operators as follows:  a $920,000 fine against an Irvington/Maplewood, New Jersey operator, a $40,000 fine against a Bronx, New York operator, and a $40,000 fine against a Spring Valley, New York operator. 
• The Media Bureau issued a complicated decision enforcing its rural radio policy (see our article here raising questions about the continuing benefits of that policy) to stop two stations from moving from Caliente, Nevada to communities that would serve the St. George, Utah urbanized area.  In one case, the FCC had already granted permission for one successful applicant for a Caliente construction permit for a new FM station to move to Dammeron Valley, Utah in the St George urbanized area, and a subsequent channel change. When the permit holder sought another city of license change, the Bureau determined that allowing the move had been an error and issued an order to show cause to the permit holder asking for reasons why his permit should not be relocated to Caliente. The Bureau also dismissed a noncommercial FM station’s community of license change application to move from Caliente to Dammeron Valley as it would remove Caliente’s second local service, which the decision said was preferred (even though Caliente has a population of less than 1000 people) over a move into the St. George urbanized area which already has 25 other services.
• The FCC’s Media Bureau and Office of Managing Director issued an Order to Pay or Show Cause to a New Jersey AM station proposing to revoke the station’s license unless, within 60 days, the station pays its delinquent regulatory fees and interest, administrative costs, and penalties, or shows that the debts are not owed or should be waived or deferred.  The station has an unpaid regulatory fee debt totaling $32,367.36 for fiscal years 2010, 2011, 2012, 2014, 2015, 2016, 2017, 2018, 2019, 2021, 2022, and 2023. 

On our Broadcast Law Blog, we took a look at the upcoming regulatory dates for broadcasters in October, which are all in effect following President Biden’s signing on Friday of the extension of federal funding through mid-December (setting up another federal funding fight in Congress later this year).