This Week in Regulation for Broadcasters:  February 26, 2024 to March 1, 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.

• Congress passed, and the President signed, a continuing resolution to extend funding for the Federal government, including the FCC, averting a partial government shutdown.  Funding for some government agencies is extended through March 8, with the remainder funded through March 22, in hopes that a more permanent funding solution will be agreed to this week.  On our Broadcast Law Blog, this past week we looked at the regulatory dates of importance to broadcasters in March, noting that many dates would be postponed if there was a government shutdown, a risk that will be averted if permanent funding is adopted. 
• Petitions for review were filed in three separate federal circuit courts seeking to overturn the FCC’s December 2023 Report and Order concluding its 2018 Quadrennial Regulatory Review of the local broadcast ownership rules.  As we discussed here, the FCC concluded its 2018 review without making significant changes to its ownership rules other than extending the prohibition on one network-affiliated top-4 TV station (i.e., ABC, CBS, Fox, and NBC) acquiring the top-4 network programming of another station in the same market and then moving that programming to a commonly owned LPTV station or multicast stream.  The petitioners argue that the December decision unnecessarily maintained and tightened the broadcast ownership rules despite evidence of increased competition from digital media platforms.  The petitions argue that the statute mandating the Quadrennial Review is meant to relax broadcast ownership restrictions because of new competition, not to tighten those rules.  Additional appeals can be filed through April 15, so it is possible that other parties will also file appeals of the December Order. 
• Comments were filed in two open FCC proceedings:
  • Comments were filed this week on the FCC’s December 2023 Notice of Proposed Rulemaking proposing to require cable operators and direct broadcast satellite (DBS) providers to report to the FCC TV blackouts caused by failed retransmission consent negotiations with TV stations (see our discussion here).  The NCTA  and the American Television Alliance support the reporting requirement, both blaming broadcasters for these blackouts.  In contrast, the National Association of Broadcasters opposes the reporting requirement contending, among other arguments, that the reporting would lead to more retransmission consent disputes because cable advocates will encourage blackouts and the resulting public filings to put pressure on regulators to change the must carry/retransmission consent rules.  The NTCA – The Rural Broadband Association also opposes the requirement because the reports would be burdensome for small cable providers and would fail to collect sufficient information regarding the root causes of TV blackouts.
  • The FCC’s Commissioners are currently considering a decision on petitions for reconsideration of the FCC’s 2020 elimination of the rule prohibiting two commonly owned radio stations in the same service (AM or FM) serving the same area from duplicating more than 25% of their programming (see our article here about the repeal of the rule).  This week, the NAB urged the FCC not to reinstate the rule without refreshing the record to determine if there have been any real world harms caused by the elimination of the rule in the over three years since the rule was abolished. REC Networks, musicFIRST Coalition, and Future of Music Coalition asked that the rule be reinstated, not because of any demonstrated harms caused by the abolition of the rule, but because of a procedural argument that the FCC violated its rulemaking procedures by not providing enough public notice that it was considering the elimination of the rules for FM stations before it made its 2020 decision.
• The FCC’s Media Bureau announced that April 1 is the comment deadline for responding to the NAB and Xperi, Inc.’s petition for clarification of a digital FM signal’s maximum allowable operating power proposed in the FCC’s August 2023 Notice of Proposed Rulemaking.  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. Reply comments are due April 15.
• The Bureau issued three Reports and Orders (see here, here, and here) allotting new FM channels to several Hawaii communities: Koloa, Waimea, Lihue, Princeville, Puhi, and Kekaha.  The Bureau will in the future announce the opening of the filing windows for construction permit applications for new FM stations to operate on these new allotments. 
• The Bureau granted the requests of Fox News Channel, ESPN, and MSNBC for exemption from the FCC’s audio description rules applicable to the top five nonbroadcast networks. Audio description provides narrated descriptions of a TV program’s key visual elements during natural pauses in the program’s dialogue for the benefit of individuals who are blind or visually impaired.  Like most TV stations affiliated with the Top 4 TV networks, covered non-broadcast networks stations must provide a certain amount of audio described programs per calendar quarter.  The Bureau exempted these networks from the audio description requirements because they provided on average less than the required 50 hours of non-exempt programming, as most of their programming is exempt because it is live or near-live. 
• The Bureau affirmed its dismissal last month of an application for a new LPFM station construction permit in Pennsylvania because the applicant failed to show that it met the second-adjacent channel spacing requirements to protect a nearby full-power FM station.  The applicant asked the Bureau to reconsider the dismissal because its engineer inadvertently failed to include a second-adjacent channel waiver request with the application.  The Bureau rejected the request because the rules require that an LPFM application include such a waiver request in its initial application, so that request cannot be provided as a later amendment. 
• The NAB called for Congress to prioritize policy issues affecting broadcasters, including: the passage of the AM Radio for Every Vehicle Act to mandate that auto manufacturers include AM radio in new cars (see our discussions here and here); the passage of the Journalism Competition and Preservation Act to allow broadcasters to jointly negotiate with dominant digital platforms to ensure fair compensation for accessed online content (see our discussions here and here); encouraging the FCC to refresh its record regarding the regulation of streaming services as virtual Multichannel Video Programming Distributors (vMVPDs); the passage of the Local Radio Freedom Act – a resolution opposing a new sound recording performance royalty on broadcasters (see our discussions here and here); supporting the NextGen TV standard (ATSC 3.0) for broadcasters; and regulating the use of artificial intelligence (AI) such that its use does not threaten local broadcast journalism.  Also on the subject of AI, the NAB announced that it will open its upcoming NAB show this April in Las Vegas with an AI humanoid robot to discuss a study concerning audience perspectives on AI’s use in broadcast media.
• The FCC announced its receipt of a Technology & Engineering Emmy® Award by the National Academy of Television Arts & Sciences for the creativity and engineering design of the FCC’s Broadcast Incentive Auction, which it will receive at the NAB’s New York convention this October.

Also on our Broadcast Law Blog, we discussed what the FCC’s reinstatement of the FCC Form 395-B EEO reporting requirement means for broadcasters – including the implications of the reported employment data being readily available to the public through stations’ online public inspection files.  We also discussed whether the FCC’s recent efforts to increase regulation of broadcasters are appropriate given the current state of competition and the deregulatory trends of the past 40 years.