This Week in Regulation for Broadcasters:  February 12, 2024 to February 16, 2024

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

• The FCC announced that March 18 is the effective date of the rules adopted in its December 2023 Report and Order concluding its 2018 Quadrennial Review of its broadcast ownership rules.  As we noted in our Broadcast Law Blog article when the FCC adopted its Order, the only meaningful change made in the local ownership rules was to make clear that one TV station cannot acquire the Top 4 network programming from another station in its market and move that programming to a commonly owned LPTV or multicast stream without seeking a prior FCC waiver of the general prohibition on two stations owning two of the Top 4 stations in any market. The Federal Register publication also means that March 18 is the deadline for filing petitions for reconsideration of the December decision, and April 15 is the deadline for appealing the decision to the Courts. 
• The FCC held its February Open Meeting this past week and adopted two items of interest to broadcasters:
  • A Notice of Proposed Rulemaking proposing that public safety and other groups that originate Emergency Alert Service (EAS) alert messages be provided pre-scripted, pre-translated “template” alert messages in thirteen non-English languages for distribution during emergencies to broadcasters and other EAS participants.  Among the questions asked in the NPRM is whether the FCC’s Public Safety and Homeland Security Bureau should oversee the development of the templates, and whether a station receiving these pre-scripted alerts in multiple languages would have to broadcast the alert only in the language of its programming, or whether it would have additional obligations to broadcast alerts in other languages common in its service area. Comment dates will be set when the Notice is published in the Federal Register.
  • A Report and Order permitting operations of a new type of licensed wireless microphone system called “Wireless Multi-Channel Audio System” in frequency bands where wireless microphones are currently authorized, including the TV bands (VHF and UHF).  Effective dates for the new rules will be set by the publication of the decision in the Federal Register.
• The FCC affirmed the Media Bureau’s denial of a third-party’s “emergency petition” to reinstate the licenses of a New Mexico AM station and FM translator – which were surrendered by their former licensee.  As we noted in our discussion of the Bureau’s 2023 decision, it has become more common during the last few years to see broadcasters surrendering licenses for stations that they can no longer operate.  As this week’s FCC’s decision affirms, third parties cannot acquire those cancelled licenses without demonstrating that they have some sort of legitimate interest in the station (such as the filing of an application to assign the stations to that party before the cancellation).  A broadcaster’s interest in continuing to operate the station is alone insufficient for the FCC to restore the licenses of such stations after they have been cancelled.  Instead, any party wanting to operate a station on the frequency on which the surrendered station operated will need to file for a new station the next time the FCC allows applications for the channels involved. 
• The FCC proposed a $40,000 fine against an alleged pirate radio operator in Hazelton, Pennsylvania.  Based on a consumer complaint and the FCC’s subsequent investigation, the FCC concluded that the individual operated a pirate radio station since at least May 2022, even selling local advertising.  The amount of the fine was based on two days of FCC monitoring of the pirate operation.  It proposed a fine of $40,000 ($20,000 per day) even though the PIRATE Act permits a fine for pirate radio operations of up to $119,555 per day (with a maximum of $2,391,097 for a continuing violation).  The pirate radio operator has 30 days to pay the fine or to show reasons why the FCC’s proposed fine is not justified. 
• The FCC’s Media Bureau dismissed an application for a construction permit for a new Virginia LPFM station because the applicant failed to provide documentation necessary to demonstrate that it was an entity eligible to hold an LPFM license.  FCC rules require LPFM applicants that are allegedly nonprofit unincorporated associations (as this applicant claimed to be) to submit documents demonstrating that they meet state requirements to be recognized as a non-profit educational entity.  To make such a showing, the Bureau requires evidence that an unincorporated association is a state-recognized non-profit entity; evidence such as a letter from a local attorney explaining how the association qualifies under local law or a citation to the text of a relevant state law recognizing unincorporated associations as non-profit legal entities. 
• The House Subcommittee on Communications and Technology held a hearing titled “Securing American Communications Networks from Foreign Adversaries,”  where it discussed several proposed bills concerning securing American communications networks from foreign adversaries, including the “Foreign Adversary Communications Transparency Act” or FACT Act.  As we previously noted here, this legislation, if enacted, would require the FCC to publish a list of every entity that holds or has an interest in an FCC license and has ties to any authoritarian regime.  A recording of the hearing can be viewed here, and a copy of the hearing memo setting out the issues considered at the hearing can be found here.
• The FTC held an informal hearing on its proposed rule banning fake reviews and testimonials in advertisements and marketing materials, including those enabled by the emergence of generative artificial intelligence.  A recording of the hearing may be found here. The FTC already prohibits deceptive endorsements in advertisements, as we discussed in a Blog article here.  The FTC has even issued penalties against media companies for permitting the use of deceptive endorsements in advertisements (see our article here).