Home Music and Digital Media Broadcast Law Blog This Week in Regulation for Broadcasters:  September 30, 2024 to October 4, 2024

This Week in Regulation for Broadcasters:  September 30, 2024 to October 4, 2024

Broadcast Law Blog 2024-10-06

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’s Public Safety and Homeland Security Bureau announced that the deadline for EAS Participants to file their annual Emergency Alert System Test Reporting System (ETRS) Form One is extended to October 18 in order to reduce burdens on EAS Participants that are recovering from the damage caused by Hurricane Helene.  The form requires all EAS Participants, including broadcasters, to provide information regarding their EAS equipment and monitoring assignments along with other relevant data.  While a nationwide EAS test is not scheduled for this year, the FCC still requires all EAS Participants to annually update their EAS information by filing an ETRS Form One, now due by October 18.
  • The FCC granted Audacy’s assignment applications approving its reorganization to allow its emergence from bankruptcy.  The applications were opposed by conservative groups due to George Soros’ proposed involvement in the reorganized company, who these groups fear will use Audacy’s broadcast stations to suppress conservative viewpoints.  Republican Commissioners Simington and Carr issued dissenting statements claiming that the applications were subject to preferential treatment by postponing FCC approval of certain investments by foreign entities, even though the entities with foreign interests will have special warrants with no equity or voting interests until that subsequent approval is obtained.  FCC Chairwoman Rosenworcel responded that Audacy’s bankruptcy reorganization is using the same process that the FCC approved in multiple prior cases, including the emergence from bankruptcy of broadcasting companies Cumulus, iHeart, and Alpha. 
  • As we discussed in last week’s update, the FCC announced that it took actions against several pirate radio broadcasters operating in the Miami and New York metro areas.  The FCC has now released the full text of these decisions (described below).  The decisions note a dissent from Commissioner Simington, presumably based on his statement in a recent case dealing with violations of the children’s television rules (which we noted in a weekly update last month) where he stated that he would dissent from all decisions imposing fines until the FCC examined if it still had the authority to issue such fines following a recent Supreme Court case that held that, in some instances, administrative agencies could not issue fines as those being fined had a right to a jury trial.
    • The FCC also issued Forfeiture Orders affirming its proposed fines against three other pirate radio operators as follows: a $120,000 fine against a Miami, Florida operator, a $358,665 fine against another Miami, Florida operator, and another $358,665 fine against a Miami-Dade County, Florida operator.  These 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 separately issued a Notice of Illegal Pirate Radio Broadcasting against a Miami, Florida landowner for allegedly allowing a pirate to broadcast from its property.  The Bureau warned the landowner that the FCC may issue fines of up to $2,391,097 under the PIRATE Radio Act if the FCC determines that the landowner continues to permit pirate radio broadcasting from its property after receiving this notice.
  • The Media Bureau resolved several other cases where broadcasters were found to have violated FCC rules:
    • The Bureau proposed a $16,000 fine against the licensee of an Oregon AM station for two unauthorized transfers of control.  The Bureau found that the licensee failed to seek FCC consent before transferring its LLC membership interests to an employee for “sweat equity” earned by providing bookkeeping and administrative services.  The Bureau looked at the Purchase Agreement which called for a transfer upon full performance of the services (which had happened), plus a filing with the State of Oregon stating that the employee was now the sole owner, and found that these documents indicated that the transfer had taken place despite the parties’ subsequent amendment of their agreement to state that prior FCC consent was required for the transfer of the membership interests.  The Bureau also found that, based on their public representations in social media, on the stations’ website, and in the local press, the buyer then included her sisters in the control of the station before obtaining FCC consent for their ownership interests. 
    • The Bureau entered into a Consent Decree with a California LPFM station to resolve an investigation of several FCC rule violations including an unauthorized transfer of control, a failure of certain Board members of the station to resign from the Board of another LPFM station before commencing operations, and failure to broadcast post-filing notifications for its license renewal application.  The Consent Decree requires that the station pay a $9,000 civil penalty and enter into a compliance plan to ensure that future FCC rule violations do not occur.
    • The Bureau entered into a Consent Decree with a Tennessee Class A TV station to conclude its investigation of the station’s failure to comply with its Online Public Inspection File requirements (including its failure to upload 32 issues programs lists, 15 certifications of compliance with the commercial limits in children’s programming, and four children’s television programming reports), and its certification in its license renewal application, despite all of these missing documents, that it had complied with the public file rules.  The Consent Decree allows the grant of both the station’s license renewal and an application for the sale of the station to an unrelated party, if the licensee pays a $53,000 fine within 15 days of closing of the sale. 
    • The Bureau entered into a Consent Decree with a Virginia LPFM station to resolve the Bureau’s investigation of the station’s failure to comply with the FCC’s underwriting rules, based on allegations that the Station impermissibly promoted for-profit underwriters’ products or services and aired spots that contained comparative and qualitative descriptions, pricing information, calls to action, and inducements to buy products or services.  The decision also carefully reviewed a “co-op” arrangement that the station had with other local LPFM stations for sharing facilities, and another agreement where those stations employed a common agent to sell their underwriting, but found that, as these arrangements did not affect control over the programming, personnel, or finances of the station, they did not violate the rules.  The Consent Decree requires that the station pay a $1,000 fine and enter into a compliance plan to ensure that future FCC underwriting rule violations do not occur, and the station’s license renewal was granted for a “short-term,” only two years, so that the effectiveness of the compliance plan could be reviewed.