This Week in Regulation for Broadcasters:  October 7, 2024 to October 11, 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’s Media Bureau released a Public Notice announcing the opening of a filing window for construction permits for new noncommercial TV stations in certain locations in Alabama, Alaska, California, Idaho, Iowa, New Mexico, Oregon, Texas, and Virginia.  The filing window will open at 12:01 a.m. EST on December 4, 2024, and close at 6:00 p.m. EST on December 11, 2024.  To accommodate the filing window, the Bureau also imposed a filing freeze on October for petitions seeking changes in the Table of TV Allotments to add new reserved noncommercial educational channels, and a freeze beginning at 12:01 a.m. EST on December 3, 2024 on all full power TV station channel change petitions and all full power and Class A TV station minor and major modification applications.  The filing freezes will continue until the filing window’s closing.  The Notice also describes the application filing procedures and eligibility requirements, and sets out how, if there are multiple applicants for any channel, the applications will be evaluated under the FCC’s “points system” analysis for choosing between competing noncommercial applicants. 
• The FCC released its quarterly public notice, Broadcast Station Totals, itemizing the number of stations currently operating in each broadcast service.  The release shows that, compared to the same release from a year ago, there are 52 fewer AM stations and 52 fewer commercial FM stations, but 114 more noncommercial FM stations.  There were also 14 more commercial UHF TV stations, but 7 fewer commercial TV VHF stations; and 2 more noncommercial UHF TV stations, but 3 fewer noncommercial VHF TV stations.
• FCC Chairwoman Rosenworcel released a statement regarding a cease and desist letter sent by the Florida Department of Health to broadcast stations that aired a political advertisement supporting the proposed amendment to the Florida Constitution to protect abortion rights, which is on the Florida ballot in next month’s general election (see the letter here along with the ad sponsor’s response).  The cease and desist letter stated that, despite the stations’ First Amendment protections, the stations could face criminal actions for airing what the State perceived to be false information in the ad regarding the availability of medical treatment in Florida for pregnancy complications.  The FCC Chairwoman stated that: “Threats against broadcast stations for airing content that conflicts with the government’s views are dangerous and undermine the fundamental principle of free speech.”
  • The FCC Chairwoman also responded to former President Trump’s repeated calls to revoke broadcast station licenses for political reasons by stating that: “The FCC does not and will not revoke licenses for broadcast stations simply because a political candidate disagrees with or dislikes content or coverage.”
• The Media Bureau entered into a Consent Decree with a Michigan noncommercial FM station to resolve an investigation into whether the station violated the FCC’s rules prohibiting noncommercial stations from broadcasting promotional materials on behalf of a for-profit entity.  The station had entered into a Programming Agreement by which a for-profit programmer provided programming to the station in exchange for retaining all revenues derived from the programming, including listener contributions and underwriting support.  The Bureau concluded that the agreement impermissibly solicited listener contributions and other revenue for the benefit of a for-profit entity.  The Consent Decree requires that the station enter into a compliance plan to ensure that future FCC rule violations do not occur.
• The Copyright Royalty Board announced proposed rates and terms for the payment of sound recording performance royalties by nonprofit webcasters not affiliated with NPR or CPB that are operated by colleges and other educational institutions.  These webcasters will pay SoundExchange a yearly fee starting at $800 in 2026, increasing by $50 each year up to $1000 in 2030.  For that fee, these webcasters can stream up to 160,000 aggregate tuning hours (ATH) of music each month.  This is up from the $700 per year these educational webcasters pay in 2024 and the $750 they will pay for 2025 (though these fees cover only 159,140 ATH per month).  Under the proposal, if these webcasters have monthly listening of less than 80,000 ATH, for an additional payment of $100, they can be exempt from all obligations to report to SoundExchange the songs that they played.  Comments and objections to these proposed rates can be filed through November 12.  The CRB is currently conducting a proceeding to determine webcasting royalty rates for 2026 through 2030 – and in 2025 will hold a hearing and issue a decision to set these rates for all other webcasters who do not reach a settlement with SoundExchange.

On our Broadcast Law Blog, we discussed how broadcasters, in the last weeks before the November election, should evaluate political attack ads – particularly those from non-candidate groups – for liability concerns due to the risk of defamation claims against broadcasters, and how the use of artificial intelligence increases the threat of such claims.