This Week in Regulation for Broadcasters:  January 27, 2025 to January 31, 2025

Here are some of the regulatory developments from the past week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

• FCC Chairman Carr sent a letter to NPR and PBS announcing that he has asked the FCC’s Enforcement Bureau to open an investigation into whether their radio and television station affiliates have aired commercial advertisements.  Noncommercial broadcast stations, including NPR and PBS affiliates, are prohibited by law from airing commercial advertisements.  They are limited to airing “underwriting announcements” that identify their sponsors without promoting the sponsor’s products or services.  FCC Commissioners Gomez and Starks released statements questioning the basis for the investigation, suggesting that it is as an attempt to intimidate or silence these broadcasters.  For more about this action and what the FCC’s underwriting policies require, see the article that we posted on our Broadcast Law Blog on Friday, here.
• The Department of Justice filed a letter with the US Court of Appeals for the Fifth Circuit in connection with the court challenge to the FCC’s reinstatement of the FCC Form 395-B.  The letter suggested that the U.S. government may no longer aggressively defend that reinstatement.  In February 2024, the FCC reinstated the Form 395-B, which requires that broadcasters yearly prepare a report for a station’s online public file classifying all of its employees by race, gender, and employment position (see our article here about that decision).  The decision is being challenged by several broadcasters, including the NRB and the Texas Association of Broadcasters, who argue that the form is unconstitutional for reasons including that it unlawfully pressures broadcasters to engage in race- and sex-conscious employment practices (see our discussion here and here).  The DOJ’s letter admits that some EEO data collection is required by Congressionally imposed mandates, but that the government “no longer subscribes” to the FCC’s defense of the form’s reinstatement to the extent that the data collection is not required by law and is inconsistent with President Trump’s Executive Order suspending government diversity, equity, and inclusion (DEI) initiatives.  As we discussed here, oral argument on the Court challenge to the form’s reinstatement is scheduled for February 4.  It remains unclear the extent to which the FCC will defend the form’s reinstatement.  Chairman Carr vocally opposed the FCC action last February, stating that the requirement to make this information public was unconstitutional as it could be used to harass broadcasters and to force them to make hiring decisions based on race and gender (see his 6 page dissent to the reinstatement, here).
• Senators Cruz and Markey reintroduced the AM Radio for Every Vehicle Act, which requires that automobile manufacturers keep AM radio on the car dashboard.  The proposed bill has the same language as the version of the bill introduced last year but never passed despite broad bipartisan support in both the House and the Senate (see our discussion here, here, and here).  The National Association of Broadcasters released a statement supporting the bill’s reintroduction, stating that the bill “will protect AM radio’s role as an essential public safety tool and ensure Americans can continue to rely on this life-saving resource in their vehicles.”  Opposition to the bill remains, with opponents arguing that it interferes with the car maker’s ability to innovate and provide buyers with the technologies that they want.  Gary Shapiro, the head of the Consumer Technology Association, sent a letter to NAB CEO Curtis LeGeyt, opposing the mandate, arguing among other things that AM is an outdated technology and suggesting that the CTA would support a performance royalty making broadcasters pay SoundExchange royalties for their over-the-air broadcasts (see the bullet below) if the NAB continued to push the AM legislation.
• On the subject of performance royalties for over-the-air broadcasting, the American Music Fairness Act was again introduced in the new Congress by U.S. Senators Alex Padilla (D-Calif.), Marsha Blackburn (R-Tenn.), Cory Booker (D-N.J.), and Thom Tillis (R-N.C.).  This bill proposes to require that broadcasters pay performing artists and copyright holders (usually their record companies) royalties for over-the-air broadcasting.  Currently, broadcasters pay royalties for over-the-air transmissions to songwriters and the copyright holders in musical compositions, and they pay artists and labels (as well as composers and publishing companies) when that music is digitally streamed.  If passed, the Copyright Royalty Board would set these new royalties.  We wrote this bill in more detail when it was considered in the last Congress, and the new version appears to be similar if not identical to the prior version.   
• Congressman Pat Ryan and Senator Chris Murphy introduced the “Stop Sports Blackouts Act” which would require cable and satellite providers to refund to their customers a portion of their subscription fees if programming from a channel was blacked out as a result of the failure of negotiations over the continued carriage of that channel.  The bill, if adopted, would require refunds not only when blackouts occur when broadcasters and MVPDs are not able to agree on retransmission consent fees, but also when MVPDs are not able to reach continued carriage agreements with other cable programming providers.  A statement released by the bill’s sponsors argue that consumers should not have to pay for channels that they are not able to watch. The American Television Alliance, a trade group for various MVPDs, condemned the legislation, blaming television networks and other big programmers for holding MVPDs “ransom” for higher programming fees. 
• Last week, Chairman Carr removed all items listed on the FCC’s circulation list (those orders or rulemaking proposals that have been drafted and are currently circulating among the Commissioners for review and vote).  These were items drafted during the prior administration.  This week, Carr released a statement regarding the removal of one of those items – a Notice of Proposed Rulemaking proposing rules on siting wireless and broadcast towers in flood plains.  Carr stated that the NPRM was removed from the FCC circulation list because the proposed rules would have slowed tower construction by subjecting towers to additional environmental regulations.  Also removed from the list was a draft order on a proposal to require Emergency Alert System participants, such as broadcasters and cable providers, to notify the FCC of EAS equipment problems, to have contingency plans for distributing alerts if their EAS system is down, and to adopt and report to the FCC on cybersecurity measures for their EAS systems.  Carr has not released any statement regarding the future of that order. 
• The FCC’s Media Bureau dismissed a construction permit application for a new LPFM station at Carrollton, Texas, for failing to meet the FCC’s LPFM localism requirement because the applicant’s headquarters and all of its directors’ residences were located more than 10 miles from the proposed station’s transmitter site (the limit for LPFM applicants in the top 50 urban markets).  Due to the application’s dismissal, the Bureau granted the mutually exclusive application for a new LPFM station at Lancaster, Texas.

On our Broadcast Law Blog, we provided our regular monthly summary of upcoming regulatory dates affecting broadcasters, looking at those for February and early March.  We also took our annual look at the legal issues in Super Bowl advertising and promotions.  Finally, we discussed how a Washington state court’s upholding of a $24.6 million penalty against Meta for failing to meet its political advertising disclosure requirements under Washington State laws serves as a warning to all media companies, including broadcasters, to understand and comply with state laws on public disclosure of political advertising sales – rules that, in many states, cover media (like various internet-delivered communications) not subject to FCC regulation.