This Week in Regulation for Broadcasters:  December 2, 2024 to December 6, 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 announced that comments and reply comments are due December 13 and 18, respectively, in response to the National Association of Broadcasters’ request for an retroactive extension of the waiver of the FCC’s audio crawl rules, a waiver which expired on November 26.  As we discussed here, last month, the NAB requested that the FCC open a rulemaking proceeding to change the audio crawl rule, which requires TV stations to provide an aural description transmitted on the station’s SAP channel of non-textual emergency information, such as maps or other graphic displays, conveyed outside of station newscasts.  As we noted last week, the NAB asks for the continuation of the expired waiver so that stations do not have to cease airing visual images regarding emergencies due to their inability to comply with the requirements of the rule as there is no practical technology to convert images to speech. We also noted last week that the Bureau announced dates for comments on the NAB’s proposal to modify the rule.  The comments requested by the Bureau this week are simply on the NAB’s request to grant a retroactive waiver of the rule while it considers the petition to modify its obligations. 
• The Washington State Court of Appeals issued a decision upholding a summary judgement by a state trial court finding Meta liable for $24.6 million for violating the state’s public disclosure rules that apply to political advertising (for more on the appeal of the trial court decision, see our article here).  The Court of Appeals decision rejected Meta’s argument that the reasoning of a Fourth Circuit decision finding a similar law in Maryland an unconstitutional abridgement of the service’s First Amendment rights should apply to this case (see our article here on the Fourth Circuit decision).  The Court of Appeals found that the Fourth Circuit decision was limited to “news organizations” and that Facebook (on which the Washington political ads ran) was not a news organization.  The Court also rejected arguments that the fine was precluded by Section 230 of the Communications Decency Act (insulting tech platforms from liability for content posted by third parties), as Meta was not fined for the content of the posts, but instead for not revealing who had purchased those posts and their target audience, as required by state law, information that was in Meta’s control, not part of the content of the third-party post.  While this decision may be appealed to the Washington Supreme Court, it is important precedent as more and more states adopt their own political rules that can apply disclosure rules akin to those set out in the FCC’s political file rules not only to broadcast content, but also to political ads transmitted online. 
• The FCC’s Enforcement Bureau entered into a Consent Decree with a cable provider for violating the FCC’s Emergency Alert Service rules, requiring the provider to pay a $1.1 million penalty.  The Bureau found that the provider violated the FCC’s EAS rules by removing without prior FCC approval its EAS encoder/decoder devices to upgrade them to comply with new EAS equipment requirements that became effective in December 2023 (see our discussion here).  While EAS Participants (including broadcast stations) may operate without EAS devices for up to 60 days to repair or replace defective equipment without prior FCC approval, the Bureau stated that the provider’s EAS devices were not defective merely because they had to be upgraded to comply with the new EAS rules.  Rather, the Bureau concluded that since the provider’s EAS devices could perform EAS monitoring and transmitting functions at the time of the required upgrades, the provider could not take the devices offline without prior FCC approval.
• The Media Bureau entered into a Consent Decree with the licensee of an Oregon AM station and translator for two unauthorized transfers of control involving passage of the station from its former owner to relatives.  As we noted in a weekly update covering events at the end of September, the Bureau had proposed a $16,000 fine against the licensee for these unauthorized transfers.  To enable the grant of the transfer applications seeking FCC approval for these past transfers, the licensee agreed to enter into the Consent Decree, which requires payment of the $16,000 penalty as the Bureau proposed in September.
• The Media Bureau released a Notice of Proposed Rulemaking seeking comment on a petitioner’s proposal to amend the FM Table of Allotments by allotting Channel 260C0 at Ethete, Wyoming, as the community’s first local service.  The petitioner seeks a Tribal Priority for the proposed allotment (reserving the allotment for use by qualified Tribal entities) because its service area would mainly cover the Wind River Reservation and serve members of the Northern Arapaho and Eastern Shoshone Tribes.  Comments and reply comments responding to the NPRM are due January 17 and February 25, respectively.
• The Media Bureau took two actions on pending applications for new LPFM stations:
  • It affirmed its dismissal of an application for a construction permit for a new Connecticut LPFM station because the applicant failed to demonstrate that it was a non-profit educational organization.  The Bureau rejected the applicant’s request to reinstate its application, finding that the applicant provided neither its exact name in its original application nor adequate supporting documentation when it attempted to correct its error by filing an amendment to the application.
  • The Bureau also dismissed a construction permit application for a new LPFM station at Boulder City, Nevada for violating the FCC’s rules about who can sign an application as, in this case, the signatory was identified as a “Tech” for the applicant.  The Bureau found that since the applicant was a corporation, the application had to be signed by an officer of the applicant.  As signature rule violations cannot be fixed through an amendment, the Bureau instead granted the mutually exclusive application for a new LPFM station at Henderson, Nevada.

On our Broadcast Law Blog, we discussed opportunities for those in the broadcast industry to help others on Giving Tuesday, highlighting the good works of the Broadcasters Foundation of America, the FCBA Foundation, the Library of American Broadcasting Foundation, and those of foundations of state and national broadcast associations – just some of the ways that those of us in the broadcast industry can give back to others in our field.  Even though Giving Tuesday has passed, these organizations would certainly welcome your contributions.