This Week in Regulation for Broadcasters:  October 21, 2024 to October 25, 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 National Association of Broadcasters denounced recent threats to revoke broadcast station licenses for political reasons, stating: “The threat from any politician to revoke a broadcast license simply because they disagree with the station’s content undermines [the] basic freedom . . . enshrined in the First Amendment.”  The NAB’s statement follows former President Trump’s letter this week to CBS threatening legal action against the network for its apparent preferential editing of the 60 Minutes’ interview on October 7 with Kamala Harris, and the release of a court affidavit this week indicating that Florida Governor Mark DeSantis was behind the Florida Department of Health’s letter threatening broadcast stations with criminal prosecution for running political ads supporting an amendment to the Florida Constitution to protect abortion rights – efforts that a Florida federal court blocked for violating the First Amendment (see our discussions here and here).  The Florida Department of Health subsequently stated in a court filing that it had no immediate intention to prosecute stations running the ad, but would do so if harm results in the future from airing the ad. 
• A letter request was sent by a number of public interest groups to FCC Chairwoman Rosenworcel asking that she have the FCC declare that political advertising paid for primarily by political parties, but “authorized” by a legally qualified candidate, not be entitled to lowest unit rates – claiming that only ads purchased by candidates’ official campaign committees should be entitled to such rates.  We see little chance that the FCC will act on this request in the near term as the FCC staff, in recent years, has informally advised broadcasters that ads paid for by non-candidate groups but authorized by a candidate, if permitted by state or federal law, be treated as a candidate ad entitled to LUR.  For more background on this issue, see our article here about a request filed in 2022 to change the informal policy, a request that was withdrawn before it was acted on by the FCC. 
• Chairwoman Rosenworcel responded to a letter from Congresswoman Rodgers, Chair of the House Committee on Energy and Commerce, requesting that the FCC explain why it waived its foreign ownership rules in approving the Audacy transaction (see our discussion here).  The Chairwoman responded that the FCC did not deviate from its regular procedures and acted consistent with agency precedent in approving the transaction, as the FCC did not need to approve any foreign interests above the 25% benchmark set by Section 310(d) of the Communications Act because those interests were in the form of warrants conveying no voting or economic interest in Audacy until they were exercised by the holders following FCC approval.  The response noted that this same FCC approval process, allowing Audacy’s emergence from bankruptcy, had been used in many other prior bankruptcies, including those of Cumulus, iHeart, Liberman Television, and Alpha Media, so its application here was not a new or novel action as some critics had claimed.  
• The Media Bureau announced that November 20 is the effective date for some rules adopted by the FCC in its September Report and Order permitting digital FM radio stations to operate at different power levels on their upper and lower digital sidebands.  The new rules taking effect on that date include the FCC’s new definition for asymmetric sideband operations.  Most of the rules adopted in the Order, however, including the new digital FM operation notification procedures needed to allow stations to initiate the newly authorized operations without prior FCC approval, still require the Office of Management and Budget’s approval before they will become effective.  
• The FCC released a Notice of Inquiry seeking comment on whether it should review and strengthen its existing customer service standards for cable providers and whether it should establish similar standards for direct broadcast satellite (DBS), voice, and broadband service providers based their low customer satisfaction ratings.  For example, the FCC seeks comment on whether providers should: (1) provide a simple method for customers to cancel services; (2) obtain explicit customer consent for automatic service renewals (see our discussion here of the FTC’s announcement last week of the related “Click to Cancel Rule”); or (3) be permitted to use AI technologies as an alternative to live service representatives.  Of interest to broadcasters, the FCC also seeks comment on whether providers should offer credits to affected customers for service interruptions, including those arising from failed retransmission consent negotiations with broadcast stations.  Comments are due November 22, and reply comments are due December 9.
  • Also, the FCC’s Media Bureau reminded cable operators and DBS providers that they must begin specifying the “all-in” price for video programming in promotional materials and on subscribers’ bills by December 19.  The FCC adopted the “all-in” rule in an April Report and Order, requiring that video programming charges be stated as “all-in” price as a single line item, including charges for broadcast retransmission consent, regional sports, and other programming.  Small cable operators (those with $47 million or less in annual receipts), however, have until March 19, 2025 to comply with the rule. 
• The Media Bureau dismissed nine LPFM construction permit applications because the applicants were commonly owned by the same corporate entity in violation of the FCC’s prohibition on a party holding interest in more than one LPFM station.  The Bureau found that each applicant’s Articles of Incorporation gave the same corporate entity the power to appoint each applicant’s directors, which gave that entity impermissible common control over each applicant. 

On our Broadcast Law Blog, we discussed the FCC’s announcement last week regarding the second round of 2024 EEO audit responses for 150 targeted stations.  Responses to the audit are to be uploaded to a selected station’s online public file by December 2 (or January 16 for targeted stations located in states impacted by Hurricanes Helene and Milton).  Our article noted the importance for all broadcasters of reviewing their compliance with the FCC’s EEO rules – even if they are not being audited this cycle, as they could be selected for review when the next audit is conducted, likely in early 2025.