This Week in Regulation for Broadcasters:  February 5, 2024 to February 9, 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 removed from its list of tentative written decisions circulating among the Commissioners for review and approval an item addressing the EEO rules for broadcasters and cable companies.  This means that we will likely see the decision, “Broadcast and Cable EEO Rules and Policies, Fourth Report and Order, Second Further Notice of Proposed Rulemaking,” released this coming week.  While no draft of that document is publicly available, we expect that the Order will reinstate the FCC’s Form 395-B.  That form was once filed yearly by each broadcaster, detailing the gender, race, ethnicity, and job function of all station employees.  The filing requirement was suspended over 20 years ago when a court suggested that its use was discriminatory because the FCC was penalizing stations that did not meet specific racial or gender quotas in their workforce (see our article here for more on the proposal to bring back the Form 395-B).  The Further Notice portion of the decision likely will ask for comments on other ideas to reform the FCC’s EEO policies for broadcast and cable companies.
• The FCC’s Media Bureau proposed a $720,000 fine against the licensee of six Hawaii TV stations for allegedly failing to negotiate in good faith a retransmission consent agreement with a cable provider.  The Bureau concluded that the good faith requirements were violated by the TV operator’s insistence on including in any final agreement terms that prevented the parties from filing FCC complaints about the negotiations.  The Bureau decision reiterated an conclusion reached in another recent case (which we noted in a past weekly summary here) that either party must be able to complain to the FCC about whether an agreement complies with FCC rules, even if that party decided to enter into the agreement to avoid a blackout that would occur without the agreement.
• The FCC announced the comment deadlines for two Notices of Proposed Rulemaking (NPRMs) adopted at its January Open Meeting (actions we discussed in a past weekly update here):
  • The FCC announced that March 8 is the deadline for comments responding to its NPRM in which it proposes to require cable operators and direct broadcast satellite providers to issue rebates to subscribers affected by TV station blackouts resulting from failed retransmission consent negotiations.  Reply comments are due April 8. 
  • The FCC announced that March 11 is the deadline for comments responding to its NPRM in which it proposes to prioritize the review of certain applications filed by broadcast stations that provide at least three hours per week of locally originated programming.  Reply comments are due April 8.  We provided more details about this proceeding and the questions posed by the FCC, including its questioning of the 2017 abolition of the main studio rule, here. 
• The FCC’s Enforcement Bureau issued a Notice of Illegal Pirate Radio Broadcasting to landowners in Providence, Rhode Island for allegedly allowing pirates to broadcast from their property.  The Bureau warned the landowners that the FCC may issue fines of up to $2,391,097 under the PIRATE Radio Act if the FCC determines that the landowners continued to permit any individual or entity to engage in pirate radio broadcasting from their property.
• The FCC’s Media Bureau affirmed the tentative selectee among a group of mutually applications filed during the 2021 filing window for new noncommercial FM stations. An applicant whose application was rejected because it was mutually exclusive with the tentative selectee alleged that the selectee failed to demonstrate that it had reasonable site assurance for its proposed transmitter site, that it was not financially qualified to construct and operate all of the stations that it applied for in the 2021 window, and that it conspired with another applicant to circumvent the 10-application cap for the filing window.  The Bureau rejected these arguments, concluding that based upon the tentative selectee’s responses to the Bureau’s inquiry into the matter, the applicant had the required reasonable assurance of its tower site as it had contacted and been told by a representative of the tower owner that there was available space for its antenna, and it had assurance of funding from an agreement by the father of one of the selectee’s principals that he would lend money to the applicant from his IRA (demonstrating sufficient funds in that IRA to build the stations).  The Bureau also rejected the argument that the tentative selectee attempted to circumvent the 10-application cap as the challenger did not show any evidence of common control with another applicant beyond the use of a common engineering consultant and the familial relationship between principals in two applicants, factors which in and of themselves do not support a claim of common control, and the selectee had submitted declarations specifically rejecting any such conclusion.
• The FCC’s Media Bureau announced the opening of a 30-day filing window for applicants to file construction permit applications for the Channel 225A Tribal Allotment at Lac du Flambeau, Wisconsin, an FM channel reserved for use by qualified Tribal entities.  Applications are due by March 6 and must demonstrate that the applicant is a Tribe or Tribal entity eligible to apply for the Tribal allotment.
• The U.S. Copyright Office announced that it will hold public hearings in its rulemaking proceeding under the Digital Millennium Copyright Act (DMCA) concerning proposed exemptions to the DMCA’s prohibition against the circumvention of technological measures used by copyright owners to prevent unauthorized access to or use of their works.  The hearings will be held April 15 through April 19 via Zoom.  Members of the public who wish to testify must submit a request form available on the Office’s website by March 1.
• The U.S. Department of Commerce announced the formation of the U.S. AI Safety Institute Consortium through which artificial intelligence (AI) creators and users, academics, government and industry researchers, and other organizations will help craft policies governing the deployment of safe and trustworthy generative AI.  Commerce Secretary Raimondo stated that the consortium, which includes more than 200 member companies and organizations, was created in response to President Biden’s October 2023 Executive Order (see here and our discussion here) directing agencies and departments in the federal government to set standards and develop tools to mitigate the risks of generative AI.

On our Broadcast Law Blog, we discussed how a recent Congressional hearing on the impact of streaming media on sports and other video programming rights (which we discussed in a weekly update here) demonstrated that the broadcast industry needs to do more to emphasize the role that over-the-air television plays in the media landscape.  We also took a look at what the Supreme Court’s review of the Chevron doctrine (which requires courts to defer to an agency’s interpretation of an ambiguous statute unless the agency’s decision is arbitrary and capricious or contrary to law) means for media companies challenging decisions of the FCC and other government agencies.