This Week in Regulation for Broadcasters:  March 4, 2024 to March 8, 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.

• Last week, we noted that petitions for review of the FCC’s December 2023 Report and Order which concluded its 2018 Quadrennial Regulatory Review of the local broadcast ownership rules, had been filed in three different Courts of Appeals.  This week, the lottery used to assign the Court that will hear the consolidated appeal decided on the Eighth Circuit, headquartered in St. Louis.  This is the first time in twenty years that an appeal of a Quadrennial Review will not be heard in the Third Circuit in Philadelphia, a Court which had been very reluctant to allow any relaxation of the ownership rules (with broadcasters having to get a Supreme Court decision to finally overturn the Third Circuit and uphold the FCC’s 2017 decision relaxing some of the local ownership rules, including abolishing the newspaper-broadcast cross-ownership rules – see our article here on the Supreme Court’s decision).  Joining the appeal in the Eighth Circuit will be the NAB, which this week filed its appeal of the FCC’s December decision.  Among the grounds that it cited in asking the Court to overturn the December decision was that the FCC was directed by the law requiring the Quadrennial Review to relax the ownership rules as competition dictated, but the decision disregarded ample evidence of vastly increased competition faced by broadcasters from digital media platforms, proceeded “as if the competitive environment from decades ago remains essentially unchanged,” and instead tightened the rules. As we discussed here, the FCC December’s decision declined to make any substantial changes to its broadcast ownership rules other than expanding the prohibition that had been in place, which prohibited one network-affiliated top-4 TV station (i.e., ABC, CBS, Fox, and NBC) from acquiring the top-4 network programming of another station in the market to move it to a commonly-owned full-power station, by extending that prohibition to situations where the network programming is purchased to be moved to a commonly-owned LPTV station or multicast stream. 
• The FCC announced that comments are due April 8 in response to its February Notice of Proposed Rulemaking, which proposes to implement multilingual capabilities for the Emergency Alert Service (EAS).  The FCC is proposing that public safety and other groups that originate alerts would be provided pre-scripted, pre-translated alert messages in thirteen non-English languages that the originators can distribute during emergencies to TV and radio broadcasters, cable service providers, and other EAS participants.  Among the questions asked in the NPRM is 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. Reply comments are due May 6. 
• 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 on that 2020 decision).  This week, the NAB again (see prior filing here) 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 more than three years since the rule was abolished.  The NAB emphasized that collecting updated information would allow the FCC to determine the actual effect of the rule’s elimination.  That real information should be used to make a decision instead of relying on predictions in the reconsideration filings formulated over three years ago when the rule was still in place as to how the rule’s elimination would affect broadcasters’ programming. 
• The FCC’s Enforcement Bureau issued two Notices of Illegal Pirate Radio Broadcasting to landowners in Greenville, South Carolina and Maplewood, New Jersey for allegedly allowing pirates to broadcast from their properties.  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 properties.
• The FCC’s Media Bureau issued several allocations decisions of interest to broadcasters:
  • The Bureau granted a modification application filed by an Illinois AM station over an objection that claimed that the station’s requested reduction of its nighttime power from 50 kW to 37.5 kW did not meet the FCC’s technical requirements for Class A AM stations (commonly known as “clear channel” stations).  The objection also suggested that if the application was not denied, the station should be reclassified as a Class B station and lose certain nighttime interference protections.  The Bureau rejected the objector’s arguments because the station had been classified as a Class 1-B AM station, a classification done away with in the 1990s, when former Class 1-B stations were grandfathered to permit nighttime operations at less than 50 kW.  The Bureau noted that this exception allowing lower nighttime power applies to a very small number of grandfathered clear channel stations. 
  • The Bureau granted a TV station’s petition for rulemaking and substituted Channel 29 for Channel 2 at Greenville, South Carolina.  The FCC agreed that the station had justified its moved by citing the station’s poor reception on VHF Channel 2 by viewers (this is another instance where the FCC recognized the superiority of UHF channels for the transmission of digital signals). 
  • The Bureau also granted a TV station’s proposal to allocate reserved noncommercial educational (NCE) TV Channel 12 to Waynesboro, Virginia, as the community’s first local TV service and its first NCE TV service.  The Bureau will release a public notice in the future announcing when it will accept applications for new NCE TV stations to operate on this new allotment.