This Week in Regulation for Broadcasters:  January 8 to January 12, 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 January 12 report listing the items on circulation (those orders or rulemaking proposals that have been drafted and are currently circulating among the Commissioners for review and a vote) noted the removal from the list of a draft Notice of Proposed Rulemaking which proposes prioritizing FCC review of applications seeking approval for license renewal and assignments or transfers of control when those applications are submitted by broadcasters that provide locally originated programming.  The removal from the list usually means that the item has been voted on and will be made public within a few days.  This proposal was announced in November by FCC Chairwoman Rosenworcel to support and incentivize local journalism by rewarding broadcasters’ commitment to meeting the needs and interests of their local communities.  How the prioritization of assignment and renewal applications would promote local journalism when these applications are, for the most part, routinely processed and granted within a few weeks of the end of statutorily required public comment periods, was not set out in the announcement.  We will be looking for the release of any FCC action to see the details of this proposal. 
• The FCC’s Media Bureau proposed a $150,000 fine against a New York TV station for allegedly failing to negotiate in good faith a retransmission consent agreement with a large cable provider.  The Bureau alleged that the TV station violated the FCC’s good faith negotiation requirements by repeatedly proposing terms that foreclosed the ability of the parties to file complaints with the FCC.  The TV station contended that parties to such agreements typically agree to withdraw good faith negotiation complaints once a final agreement has been reached.  The Bureau disagreed, finding that such contractual terms are presumptively inconsistent with the good faith negotiation requirement.  See our Broadcast Law Blog article here for other instances where the FCC has found violations of the good faith negotiation requirements for retransmission consent agreements.
• The FCC announced that the inflation-adjusted maximum penalties for FCC violations released by the Enforcement Bureau last month will become effective on January 15.  As we previously discussed here, the maximum fine for most violations will be $61,238 for each violation or each day of a continuing violation, with a maximum total fine for any continuing violation not to exceed $612,395.  Maximum fines involving indecency will now be $495,500 for each violation or each day of a continuing violation, with a maximum of $4,573,840 for any single act.  Fines for violations of the rules prohibiting pirate radio operations will now be as much as $119,555 per day not to exceed a total of $2,391,097.
  • Using the maximum fine permitted before the inflation adjustment, the FCC’s Enforcement Bureau issued a Notice of Illegal Pirate Radio Broadcasting to a landowner in the Bronx, New York for allegedly allowing a pirate to broadcast from its property.  The Bureau warned the landowner that the FCC may issue fines of up to $2,316,034 under the PIRATE Radio Act if the FCC determines that the landowner continued to permit any individual or entity to engage in pirate radio broadcasting from its property.
• The FCC released its quarterly Broadcast Station Total Press Release.  The release shows that, compared to the same release from a year ago, there are 40 fewer AM stations, and 23 fewer commercial FM stations, but 79 more noncommercial FM stations.  There were also 10 more commercial UHF TV stations and 5 fewer commercial VHF TV stations; and 4 more noncommercial UHF TV stations and 4 fewer noncommercial VHF TV stations. 
• The US Court of Appeals for the District of Columbia Circuit, in a brief order, denied a petition filed by a Kentucky AM station which sought a court order to compel the FCC to reinstate its cancelled license because the FCC failed to notify the station of its dismissal of its renewal application.  The station sought relief from a February 2023 decision affirming a prior decision to cancel the station’s license because it failed to file its 2020 license renewal application.  The station argued that it had no notice of its need to file a 2020 renewal (because its 2012 renewal was still pending because of public file and other issues). The FCC found that the Public Notice announcing the renewal filing procedures for all licensees made clear that a filing was required, even for applicants that had their prior renewal still pending.  While the station owner argued that it had no knowledge of this requirement, the FCC said individual knowledge was not necessary, as the licensee had constructive notice from the publicly released notice about renewal processing procedures. This case makes clear to all licensees that they need to be familiar with all FCC procedures for any requirement that could possibly affect them to avoid missing an important FCC obligation.
• The FCC’s Media Bureau dealt with several cases of fines on stations for improper operations or FCC paperwork.  These include the following:
  • The FCC’s Media Bureau proposed fines against two TV stations for their failure to timely upload their quarterly issues/programs lists to their online public inspection files.  In the first case, the Bureau proposed a $6,000 fine for a Texas TV station for allegedly failing to timely upload these lists for a total of nine quarters, i.e., five lists more than one year late, two lists between one month and one year late, and two lists between one day and one month late.  In the second case, the Bureau proposed a $3,000 fine against a California TV station for allegedly failing to timely upload these lists for a total of six quarters, i.e., one list over six months late and five lists over one year late.
  • The FCC’s Media Bureau issued a $2,000 fine to the licensee of two Idaho TV translators for failing to timely file license applications for the translators and operating the stations without authorization after their construction permits had expired.  As we wrote here, the Bureau originally proposed a reduced $13,000 fine against the licensee ($6,500 instead of $13,000 per station) because TV translator stations are secondary services.  In this week’s order, the Bureau further reduced the fine to $2,000 ($1,000 per station) based on the licensee’s demonstration of inability to pay the proposed fine due to financial hardship.
  • The FCC’s Media Bureau proposed fines against an Oregon and a Washington LPTV station (see here and here) for failure to timely file their license renewal applications – which in both cases were filed over one month late without explanation.  In these decisions, the Bureau continued its recent practice of proposing a $1,500 fine against an LPTV station for failure to timely file a license renewal application.
• The FCC’s Media Bureau requested comment on a TV station’s proposal to allocate reserved noncommercial educational (NCE) television channel 12 to Waynesboro, Virginia, as the community’s first local television service and its first NCE television service.  Comments and reply comments are due 30 and 45 days, respectively, after the proposal is published in the Federal Register
• The FTC announced that it will hold an informal hearing on its proposed rule banning fake reviews and testimonials in advertisements and marketing materials enabled by the emergence of generative artificial intelligence.  Specially, to combat such harms, the FTC is proposing to prohibit businesses from engaging in misconduct, including: selling or obtaining fake consumer reviews and testimonials, buying positive or negative reviews, using insider reviews, making or using unjustified legal threats, intimidation, or false accusations to prevent or remove a negative consumer review, and using fake social media subscriber and viewer data.  The hearing is scheduled for February 13 at 10 a.m. ET.  The proceeding follows previous FTC warnings regarding the use of deceptive endorsements in advertisements, which we discussed here.  The FTC has also issued penalties against media companies for permitting the use of deceptive endorsements in advertisements, which we discussed here. 

Our Broadcast Law Blog, we looked at the Copyright Royalty Board’s announcement of the start of a new proceeding to set the royalty rates for 2026-2030 to be paid by webcasters (including broadcasters who simulcast their programming through internet-delivered channels) to SoundExchange for the noninteractive streaming of sound recordings.  Petitions to participate in the proceeding to set those rates are due February 6, 2024.