This Week in Regulation for Broadcasters:  February 19, 2024 to February 23, 2024

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

• The FCC adopted an Order that will reinstate FCC Form 395-B, which requires broadcasters to annually report their employees’ race or ethnicity and their gender, while classifying the employees in job categories (e.g., Officers and Managers, Professionals, Sales Workers, Clerical – see the most recent version of the Form for all the categories).  This week’s decision said that the collection of this information was required to provide Congress with regular snapshots of the demographics of the broadcast industry.  The Form 395-B, which will be due annually on or before September 30, will be included in stations’ public files.  The use of the form was suspended over twenty years ago because two Court decisions found that the FCC’s use of race and gender information to penalize broadcasters whose workforce did not reflect the demographics of their service area compelled unconstitutional race-based hiring decisions (for more information, see our Broadcast Law Blog article posted last year when the FCC asked for comments on the proposed return of the form).  This week’s decision also adopted rule changes prohibiting the FCC from using the data from the reinstated Form 395-B to judge a broadcaster’s compliance with the FCC’s EEO outreach policies, concluding that this prohibition would avoid the constitutional concerns that had been raised by the Courts.  Commissioners Carr and Simington issued dissenting statements, questioning the conclusion that the public reporting of this information would not force race- and gender-based hiring decisions and thus challenging the constitutionality of the FCC’s action.  The reporting requirement will become effective after the revised form, which adds “non-binary” as a gender classification, receives approval from the Office of Management and Budget. The FCC also requested comment on a proposal to adopt similar reporting requirements on Form 395-A for Multichannel Video Programming Distributors. 
• In another EEO action, the FCC’s Enforcement Bureau fined a group of Kansas radio stations $25,000 for violations of the FCC’s EEO rules.  The Bureau proposed that fine in October 2023 (see our article here) because the stations did not timely upload to the public file a few Annual EEO Public File Reports, did not do public outreach for two job openings, and did not produce records to support its outreach claims.  The stations did not raise specific objections to the FCC’s findings in the 2023 Notice of the proposed fine but instead argued that since the stations’ owners had filed for bankruptcy and the stations were to be sold, the decision was moot.  The FCC disagreed, finding that it could still fine a company for rule violations even if it was in bankruptcy.
• The FCC announced its tentative agenda for its next monthly Open Meeting scheduled for March 14, at which it will consider two items of interest to broadcasters:
  • A Report and Order adopting rules requiring cable and direct broadcast satellite service providers to state in promotional materials and on subscriber bills the price of video programming as a clear, easy-to-understand, and accurate single line item.  This “all-in” price is to include all video programming charges, including those for broadcast retransmission consent, regional sports, and other programming.   
  • A Notice of Proposed Rulemaking (NPRM) in which the FCC proposes a new Emergency Alert System alert code for missing and endangered adults to be used by EAS participants, including broadcasters.  In the NPRM, the FCC is seeking comment on whether to apply the new EAS alert code to individuals over the age of 17, missing adults with special needs or circumstances, and missing adults who are endangered or who have been abducted or kidnapped. 
• The FCC’s Media Bureau released a Public Notice announcing the filing of a petition by the National Association of Broadcasters and Xperi, Inc., which seeks clarification regarding the maximum allowable operating power of a digital FM signal as proposed in the FCC’s August 2023 Notice of Proposed Rulemaking (NPRM).  NAB and Xperi seek to clarify an ambiguity in the expression of the maximum digital FM power levels permitted for multichannel hybrid service modes, proposing the addition of clarifying text to the rules.  The FCC seeks comments on this proposed clarification.  Comments and reply comment dates will be set when the Bureau’s Public Notice is published in the Federal Register.
• The Bureau also made two decisions dealing with applicants for new stations.
  • In one, the Bureau affirmed the tentative selectee from a group of mutually exclusive applications filed during the 2021 noncommercial educational (NCE) FM station filing window.   The Bureau rejected arguments that the applicant did not have reasonable assurance of its tower site’s availability, finding that the tower owner’s representative confirmed the availability of the site to the applicant’s engineer (finding it insignificant that the applicant’s name had not been revealed at the time of the initial confirmation from the tower owner’s representative).  The Bureau also rejected the argument that the applicant needed to be incorporated in the proposed station’s state and confirmed as a Section 501(c)(3) nonprofit entity to be an NCE licensee.  The decision found that, for FCC purposes, as long as the applicant was in some state a non-profit legal entity formed for educational purposes, it could file for an NCE station even if it was not tax exempt or registered in the state where the station would operate.  Finally, the Bureau found no evidence that the tentative selectee attempted to circumvent the limit imposed in the 2023 window restricting any person or entity from having interests in more than 10 applications as the challengers did not demonstrate common control with another applicant.  The challengers had only shown that two applicants had used the same engineering consultant and that there was a familial relationship between principals of the two applicants, neither of which is sufficient under FCC precedent to establish common control.  We wrote last week, here, of another Bureau decision involving challenges against the same tentative selectee.
  • In another decision, the Bureau dismissed several applications for new LPFM stations because the applicant failed to demonstrate that it was eligible to hold an LPFM authorization.  The applicant proposed to broadcast weather-related information as a public safety radio service in several states, stating that it was in contact with local public safety organizations that agreed to work with it in providing its proposed services.  The Bureau found that just coordinating with these local organizations did not make the applicant a local community organization as required by the LPFM rules.
• The FCC Chairwoman announced the relaunch of the FCC’s Consumer Advisory Committee to examine emerging artificial intelligence (AI) technologies on consumer privacy and protection, including how AI can protect consumers from unwanted and illegal calls.  As the FCC stated in a separate announcement, the relaunched committee will be comprised of new and returning members from a mix of non-profit organizations, communications companies, trade associations, and other individuals – including some government employees.  The committee’s first meeting will occur on April 4, which will be broadcast live over the Internet on the FCC’s live web page, here.  Also on the topic of AI, FCC Commissioner Gomez gave a speech this week in which she discussed the FCC’s recent effects to combat misinformation created by the use of AI and consumers’ need for additional tools for understanding and consuming media generated by AI.