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

• The FCC’s Public Safety and Homeland Security Bureau partially granted NAB and REC Networks’ waiver request (discussed in our last update here) of the December 12, 2023 deadline for compliance with the FCC’s new Emergency Alert Service (EAS) rules – which require that, when a station receives an over-the-air EAS alert, it must wait at least 10 seconds to determine if a CAP alert has been sent through the IPAWS system and, if it has, the station should rebroadcast that internet-delivered CAP alert rather than the one received over the air.  We wrote more about that requirement on our Broadcast Law Blog, here.  The Bureau extended the compliance deadline until March 11, 2024 for EAS Participants using Sage EAS equipment, as Sage is only now delivering an update to its equipment to allow for this default-to-CAP requirement to be implemented.  The Bureau, however, declined to extend the compliance deadline for all EAS Participants.  Thus, EAS Participants that do not use Sage EAS equipment must still comply with the December 12, 2023 deadline. 
• The FCC’s Media Bureau reminded TV broadcasters that the FCC’s audio description rules will apply to DMAs 91 through 100 as of January 1, 2024.  As we previously discussed here, the FCC expanded the FCC’s audio description requirements to commercial broadcast television stations affiliated with one of the top four television broadcast networks (i.e., ABC, CBS, Fox, and NBC) in Designated Market Areas 101-210.  Currently, the FCC’s audio description requirements apply only to the top 90 DMAs.  As a result of the FCC’s Order, the audio description requirements will now expand to 10 additional DMAs each year – with the expansion to DMA 91-100 effective as of January 1, 2024, and then DMAs 101-110 on January 1, 2025, and ending with DMAs 201-210 on January 1, 2035.  Audio description provides narrated descriptions of a television program’s key visual elements during natural pauses in the program’s dialogue, for the benefit of individuals who are blind or visually impaired. 
• The Copyright Royalty Board published in the Federal Register two notices of cost-of-living increases in the fees paid by broadcasters for the use of music in their operations.  The first notice announces that, for webcasters, including broadcasters who stream their programming on the Internet or deliver it through mobile apps, the SoundExchange royalty fees will increase to $.0025 per performance (up from $.0024 in 2023) for performances delivered on or after January 1, 2024.  The second notice announces that noncommercial radio stations affiliated with high schools or colleges but not affiliated with NPR or CPB will pay yearly royalties of $194 to both SESAC and GMR (up from the $188 paid in 2023) for licenses to perform musical compositions licensed by these organizations on these school’s over-the-air stations.  We wrote more about these royalty increases on our blog, here. 
• Also in the music royalty world, just before Thanksgiving, BMI announced that the company was being sold to an investment fund.  BMI was founded by broadcasters over 80 years ago to moderate music licensing fees by providing a competitor to ASCAP.  Until 2023, it operated as a non-profit entity. BMI collects royalties for songwriters and their publishing companies when their music is performed in public (including by broadcasters, online companies, retailers, bars and restaurants, and other venues that play music outside the home or other circles of close family and friends).  BMI is currently engaged in litigation with the Radio Music License Committee over how much commercial radio stations should pay for the use of BMI-licensed music.  How private ownership by an investment fund will affect this litigation and future royalties, and whether changes to the antitrust consent decree under which BMI operates will be sought (see our blog article on recent consideration given to changes in the consent decree), are all unknowns raised by this sale. 
• The FCC circulated drafts of two items of interest to broadcasters that it will consider at its next open meeting on December 13:
  • A Notice of Proposed Rulemaking, which proposes to eliminate video service “junk fee practices” by cable and direct broadcast satellite (DBS) service providers.  As we wrote here, the FCC previously proposed “all-in-pricing” for cable and satellite services.  The FCC now proposes additional customer service protections that prohibit cable operators and DBS service providers from imposing a fee for the early termination of a cable or DBS video service contract; and requiring cable and DBS service providers to provide subscribers with a prorated credit or rebate for the remaining days in a billing cycle after service cancellation.  
  • A Report and Order which, if adopted, will create rules implementing the January 2023 Low Power Protection Act (LPPA) – which provides LPTV stations in very small television markets with a limited window of opportunity to apply for status as Class A television stations.  Class A status gives a station protection from being bumped off its frequency by new full-power TV facilities.  The status also protects a station in the event of a future contraction of the TV band as recently occurred with the repacking that followed the 2017 TV “incentive auction.”  As we noted here, in March 2023, the FCC released a Notice of Proposed Rulemaking to implement the LPPA.  The FCC’s Order largely adopts the proposals in the NPRM – except that stations converting to Class A status will not lose their status if the Designated Market Area where they operate subsequently grows beyond the limit of 95,000 households that applies to stations eligible to apply for this upgraded status. 
• The FCC has until December 27th to comply with a court order requiring the agency to conclude its still-pending 2018 quadrennial review of its local broadcast ownership rules (see our blog article for more on the Court order and on the issues under consideration in that proceeding, including a review of the local radio ownership limits, the restrictions on combinations of two of the Top 4 TV stations in any market, and the dual network rule forbidding common ownership of two of the Top 4 TV networks).  With that deadline in sight, lobbying at the FCC on how the FCC should conclude the proceeding has continued during the past two weeks.  A small broadcaster suggested that the FCC should keep the overall radio ownership caps in place, but eliminate limits on the number of AM vs. number of FM radio stations a single owner could hold in a market.  Another group of broadcasters urged the FCC to eliminate the local radio ownership rules given the dramatic change in marketplace competition since the ownership rules were adopted, noting that local stations need greater scale to compete with digital media for advertisers and listeners.  Those comments suggested that radio’s share of local advertising and audience has been cut in half in the last 12 years, while the shares of digital media companies, unconstrained by local ownership restrictions and offering no local service, have exploded.  A group of TV broadcasters noted their concerns (here and here) with pay TV advocates seeking to treat LPTV stations and multicast streams as full power stations for purposes of the TV Duopoly rule (which restricts the ownership of two TV stations in the same market), noting that many small markets cannot support four full-power television stations and therefore continuing to permit dual or multiple affiliation agreements by a single broadcaster is the only way that such markets will receive a full complement of television network programming.  Finally, the NCTA urged the FCC to retain the prohibition on combinations of Top 4 TV stations arguing that these rules prevent broadcasters from exercising undue leverage during retransmission consent negotiations. 
• The FCC’s Enforcement Bureau issued nine Notices of Illegal Pirate Radio Broadcasting to landowners in the Boston area for apparently allowing illegal broadcasting from their properties.  The Bureau warned the landowner that the FCC may issue fines of up to $2,316,034 under the PIRATE Radio Act if the FCC determines that the landowner continues to permit any individual or entity to engage in pirate radio broadcasting from their property.  The nine notices can be found here, here, here, here, here, here, here, here, and here.
• The FTC took action to expand its authority to investigate the use of artificial intelligence to engage in fraud, deception, infringements on privacy, and other unfair practices by streamlining its staff’s ability to issue civil investigative demands (CIDs) – an investigative tool much like a subpoena – in investigations relating to AI.  The FTC issues CIDs to obtain documents, information, and testimony that advance FTC consumer protection and competition investigations. 
• The FTC also announced that it issued warning letters to two trade associations and 12 social media influencers alleging that the influencers were receiving payments or other consideration for Instagram and TikTok posts promoting sugar and other sweeteners without providing adequate notice of the payments and the sponsors in those posts.  The letters ask that the recipients contact the FTC to explain how the FTC’s concerns would be addressed and warned of $50,120 fines that could be imposed for each violation.  These actions reflect the FTC’s policy requiring disclosure to the public when endorsements and testimonials for products and services, even those on social media, are sponsored.  See our articles here and here on these policies.
• The FCC’s Media Bureau and Managing Director revoked a Texas AM station’s license for failure to pay delinquent FCC regulatory fees.  The station failed to timely pay all of its regulatory fees for FYs 2012, 2015, 2016, 2017, 2018, 2019, 2020, and 2021; and it did not respond to an Order to Pay or Show Cause (which we wrote about here) providing either evidence that the fees were fully paid or an explanation why the fees should be waived or deferred.  The station still must pay the delinquent regulatory fees even though the station’s license was revoked.  While this is an extreme case, it is a reminder that the FCC takes unpaid regulatory fees seriously, and that licensees must ensure that such fees are timely paid.
• The FCC’s Media Bureau denied an informal objection filed against a new noncommercial FM station application.  The objection claimed that the application should be denied because it did not comply with the FCC’s technical rules governing such applications – even after the application was refiled at FCC staff’s direction with amended technical parameters following its dismissal for being technically defective.  The Bureau instead granted the application – finding that the applicant was permitted to amend its amended application to resolve minor deficiencies in that amended application.
• The FCC’s Media Bureau released a Notice of Proposed Rulemaking asking for comments on a TV station’s petition for rulemaking that proposes the substitution of Channel 29 for Channel 2 at Greenville, South Carolina.  The petitioner is proposing the channel substitution due to the station’s poor reception on VHF Channel 2 by viewers, another reflection of the superiority of UHF channels for the transmission of digital television signals.
• Based on complaints, the FCC’s Enforcement Bureau issued Notices of Violation against two Texas FM translator stations for operating with antennas and at heights not approved by the FCC.  The stations have 20 days to respond to the notices detailing how the violations occurred and how they will remedy these violations.  Copies of the notices are available here and here.

On our Broadcast Law Blog, we wrote an article setting out many of the most significant regulatory dates for broadcasters in the month of December – see that summary here. 

In Federal Register notices published this week, the Copyright Royalty Board announced cost-of-living increases for two sets of music royalties.  Webcasters, including broadcasters streaming their signals on the web or through mobile apps, will be paying more to SoundExchange for the public performance of sound recordings.  In addition, noncommercial broadcasters affiliated with educational institutions, but not affiliated with NPR or CPB, will be paying more to SESAC and GMR for their over-the-air broadcasts.  These changes go into effect on January 1, 2024.  More information about each of these royalties is set out below. 

The webcasting royalties that are increasing are those that are paid to SoundExchange by those webcasters making “noninteractive digital transmissions” of sound recordings (see our article here on the difference between interactive and noninteractive transmissions).  This includes broadcasters who simulcast their over-the-air programming on the internet or through mobile apps (or through other digital means including smart speakers like Alexa, see our article here).  The notice just published in the Federal Register sets out the computations that the Board used to determine the amount of the cost-of-living increase.  Those computations led to a royalty rate for 2024 of $.0025 per performance for services that do not charge a subscription fee. A performance is one song played to one listener – so for one song paid to four listeners one time each, a webcaster pays a penny. For subscription services, the rate will be $.0031 per performance.  This represents an increase from the 2023 rates of $.0024 for nonsubscription performances and $.0030 per performance for subscription stream. 

The rates that are currently in effect were set in 2021.  As we wrote here, when the CRB decided on the rates for 2021-2025, the nonsubscription rate was $.0021 per performance.  But the CRB provided for cost-of-living increases which will now increase those royalties to the rates set out above.  The current royalty structure is in place through 2025.

These increases also apply to noncommercial webcasters who exceed the monthly allotment of 159,140 aggregate tuning hours (a “tuning hour” is one listener listening to one hour of music programming) that any channel provided by a noncommercial webcaster gets for the minimum annual $1,000 fee.  However, many noncommercial webcasters, including those affiliated with NPR or CPB and those smaller webcasters associated with an educational institution, are covered by other royalty settlements that don’t involve per performance fees, so they are not affected by this cost-of-living increase. 

Webcasters need to take these new higher royalties into account in computing what they owe to SoundExchange for all streaming done in 2023.  While royalties for January streaming reflecting these new royalties are not due until 45 days after the end of the month (though annual minimum fees for most webcasters are due by January 31), webcasters need to anticipate these royalties in their budgeting for the new year, and adjust their accounting systems to account for these royalties starting January 1.

The second royalty that will be increasing in January will be that paid to SESAC and GMR by noncommercial broadcasters affiliated with an academic institution and not affiliated with NPR or CPB.  Included in this group of broadcasters are many student-run college radio stations.  The rates to be paid for the public performance of the musical compositions are paid to the performing rights organizations representing the songwriters and their associated publishing companies.  For noncommercial broadcasters, the rates are set by the Copyright Royalty Board (see our article here on the process for setting those rates and how it differs from the process for commercial broadcasters). 

The royalties to be paid by noncommercial broadcasters for their over-the-air broadcasts were set earlier this year for the period 2023-2027 (see the Federal Register publication of the CRB’s approval of the settlements on those rates).  Different rates were set fees for various classes of noncommercial broadcasters.  Those affiliated with NPR or CPB have royalties at one rate.  Religious noncommercial stations and other stations not affiliated with educational institutions (or with NPR/CPB) pay at different rates.  Those fees are set out in the settlements. 

Noncommercial broadcasters affiliated with a college or other educational institution, and not covered by the NPR/CPB or religious broadcasters fees, pay royalties at a third rate.  Those stations pay fees to ASCAP and BMI based on the size of the educational institution with which they are affiliated – with set increases each year written into the rules.  But for SESAC and GMR, the smaller of the rights organizations, the fees were set at a flat rate of $188 per station in 2023 to each of these organizations, no matter the size of the educational institution, subject to an annual cost-of-living increase.  In this week’s Federal Register notice, the CRB looked at the increase in the cost of living in the past year, and increased those fees for 2024 to $194 to SESAC and the same amount to GMR. 

Webcasters and college broadcasters need to note these fee increases, and be prepared for these increases in the amount that they will be paying next year. 

Even with the holidays upon us, regulation never stops.  There are numerous regulatory dates in December to which broadcasters need to keep in mind.  Furthermore, as the 2024 presidential campaign is already underway, there are political advertising deadlines to watch out for.  Here are some of the upcoming deadlines:

December 1 is the filing deadline for Biennial Ownership Reports by all licensees of commercial and noncommercial full-power TV/AM/FM stations, Class A TV stations, and LPTV stations.  The reports must reflect station ownership as of October 1, 2023 (see our article here on the FCC’s recent reminder about these reports).  The FCC has been pushing for stations to fill these out completely and accurately by the deadline (see this reminder issued by the FCC last week), as the Commission uses these reports to get a snapshot of who owns and controls what broadcast stations, including information about the race and gender of station owners and their other broadcast interests (see our article from 2021 about the importance the FCC attaches to these filings). 

December 1 is also the deadline for radio and television station employment units in Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, and Vermont with 5 or more full-time employees to upload their Annual EEO Public File Report to their stations’ online public inspection files.  A station employment unit is a station or cluster of commonly controlled stations serving the same general geographic area having at least one common employee.  For employment units with 5 or more full-time employees, the annual report covers hiring and employment outreach activities for the prior year.  A link to the uploaded report must also be included on the home page of each station’s website, if the station has a website.

The final deadline for December 1 is for the filing of the Annual DTV Ancillary/Supplementary Services Report for the 12-Month Period Ending on September 30, 2023, and the submission of any payments that are due.  This applies to commercial and noncommercial full-power TV stations, Class A TV stations, and LPTV stations that have fee-based, non-broadcast revenues from their digital transmission capabilities.  In other words, if TV stations earned fees for data transmission or other non-broadcast services, they must file the report and pay the fees.  If they do not, the report is not required.

For non-profit organizations interested in a new LPFM station in the community in which they operate, the FCC’s Filing Window for applications for new LPFM stations commences on December 6 at 12:01 AM Eastern Time and ends on December 13 at 6:00 PM Eastern Time.  The applications require a showing as to the technical facilities being proposed as well as the applicant’s legal qualifications to be a station owner.  December 13 is also the last day of the filing freeze on LPFM and FM translator minor modification applications that was implemented to stabilize the FCC’s technical database while applicants worked on their applications for new stations.  We wrote more about the LPFM window’s rules and the filing freeze here.

Broadcasters who late in 2022 or in 2023 entered into consent decrees with the Media Bureau to secure grant of their license renewals by resolving concerns about documents relating to the purchase of political advertising time that were uploaded late to a station’s online public file have until December 8 to file their compliance reports.  These reports certify that the station complied with the training and oversight requirements of the consent decrees, and they must include a spreadsheet showing when all political advertising material sold in the 90 days before the November 2023 election was uploaded to the public file.  For more information about these consent decrees imposed on stations earlier in the recent license renewal window, see our article here.

December 12 is the deadline for broadcasters that do not use Sage EAS equipment to comply with the FCC’s new EAS rules set forth in its September 2022 Report and Order which requires a broadcaster, when receiving an EAS alert, to default for at least 10 seconds to the IPAWS internet-based alert system to see if a CAP-formatted message is conveyed, and to rebroadcast that CAP message unless it is not available, when the over-the-air “daisy-chain” delivered message can be broadcast.  Because Sage Alerting Systems, the manufacturer of many broadcaster’s EAS equipment has not yet updated their EAS equipment to be able to comply with the new rules, the FCC’s Public Safety and Homeland Security Bureau partially granted the waiver request (discussed here) by NAB and REC Networks seeking an extension of the December 12 EAS compliance deadline.  Only stations using Sage EAS equipment were granted an extension.  They now have until March 11, 2024 to comply with the new EAS rules, while broadcasters using EAS equipment made by other manufacturers must still comply with the December 12 deadline.  For more details on these new rules, see our article, here. 

At the FCC’s Open Meeting on December 13, the FCC will consider two items of interest to broadcasters:

• A Notice of Proposed Rulemaking, which proposes to eliminate video service junk fee practices by cable operators and direct broadcast satellite (DBS) service providers.  As we wrote here, the FCC previously proposed “all-in-pricing” for cable and satellite services.  The FCC proposes customer service protections prohibiting cable operators and DBS service providers from imposing a fee for the early termination of a cable or DBS video service contract; and requiring cable and DBS service providers to provide subscribers with a prorated credit or rebate for the remaining days in a billing cycle after service cancellation. 
• A Report and Order which, if adopted, will create rules implementing the January 2023 Low Power Protection Act (LPPA) – which provides LPTV stations in small markets with a limited window of opportunity to apply for status as Class A television stations.  Class A status gives a station protection from being bumped off its frequency by new full-power TV facilities and would protect a station in the event of a future shrinking of the TV band as recently occurred by the repacking that allowed the TV spectrum auction conducted 5 years ago.  As we previously discussed here, in March 2023, the FCC released a Notice of Proposed Rulemaking (NPRM) to implement the LPPA.  The FCC’s Order is largely unchanged from the NPRM – except that stations converting to Class A status will not lose their status if the Designated Market Area where they operate subsequently grows beyond the limit of 95,000 households that applies to stations eligible to apply for this upgraded status. 

December 14 is the deadline for stations listed in the FCC’s October 2023 EEO Audit Letter to upload their responses and supporting documentation to their online public inspection files.  As we noted in greater detail here, those stations, and the station employment units with which they are associated, upload their last two years of EEO Annual Public File reports, as well as backing data to show that the station in fact did everything that was required under the FCC rules.

The US Court of Appeals has ordered the FCC to either resolve its 2018 Quadrennial Review of the local broadcast ownership rules, or to report to the Court as to why it has not been able to release an order in that proceeding.  A draft order is now circulating among the Commissioners for their consideration.  The Quadrennial Review is to consider whether the current local ownership rules remain in the public interest after changes to competition in the relevant marketplace.  Issues specifically being considered are possible relaxation of the local radio ownership rules and the dual network rule (which prohibits one entity from having an interest in two of the top 4 TV networks).  See our article here for more about the December 27 deadline and the issues being considered by the FCC. 

As the 2024 Presidential Campaign is heating up, so do broadcasters’ political advertising obligations.  Throughout December, broadcasters serving Iowa, New Hampshire, South Carolina, Nevada, and the U.S. Virgin Islands should be aware of the opening of the following political windows tied to January and early February Presidential primary elections: 

As a refresher, in the 45 days before a primary election, broadcasters must provide candidates running in that primary who buy advertising time in the window no more than their lowest unit charge for advertising of the same class sold to commercial advertisers.  For a deeper dive on how to prepare for the political primary election season, see our post, here, which also includes a link to our comprehensive Political Broadcasting Guide. 

Looking ahead to January, licensees of full-power TV/AM/FM stations and Class A TV stations need to remember that Quarterly Issues Programs lists are to be uploaded to their stations’ online public inspections file by January 10.  The lists should identify the issues of importance to the station’s community and the programs that the station aired in October, November, and December that addressed those issues.  As you finalize your lists, do so carefully and accurately, as they are the only official records of how your station is serving the public and addressing the needs and interests of its service area.  See our post here for more on the importance of the Quarterly Issues Programs list obligation.

As always, consult your own legal and technical advisors for other dates of importance that might apply to your stations in the upcoming month. 

For the last few years at this time of the year, we’ve departed from our usual coverage of legal and policy issues to talk about something else – broadcasters giving back.  With Giving Tuesday upon us, we wanted to urge our readers to consider ways to give back to our industry.  I guess it is now a tradition, so we’ll do it again this year and suggest some of the many ways we can express our thanks to the industry in which we work.  Broadcasters have long been known for their service to their communities, service benefitting individuals and groups across the country.  While broadcasters are always giving back to their communities and should be celebrated for that, those of us who make our living in some aspect of the industry should recognize that there are plenty of ways for us to give back as well – both to those associated with the industry who have fallen on hard times, and to those who need assistance in obtaining education and training to enter the media industry we so appreciate.  We should all be thankful for jobs, friends, and good fortune. But we should also ourselves give back where possible.  In the broadcast industry itself, there are many groups doing good work.

One that bears mention is the Broadcasters Foundation of America, which provides relief to broadcasters and former broadcasters who have, for one reason or another, fallen on hard times – whether that be for health reasons or because of some other disaster that has affected their lives. The Foundation deserves your consideration. More about the Foundation and its service, and ways to contribute, can be found at their website, here.

For readers of the Blog in the Washington DC area, including the many DC lawyers who read our articles, the FCBA–The Tech Bar, which is the association of lawyers who work with communications companies, has its own Foundation that is active in helping in the DC community, including in giving scholarships to local students.  More on the FCBA foundation, here.  The NAB too has a foundation for training the future leaders in the industry – the NAB Leadership Foundation and its Future Leaders Fund, financing programs including the Broadcast Leadership Training Program that has trained many broadcasters who have gone on to leadership positions in the industry.

I spend significant time on the road, visiting with broadcasters and others in the media industry at state and national conventions.  Many state broadcast associations run charitable foundations – often using the funds they receive to provide internships and scholarships to students interested in working in the broadcast industry.  What could be a better investment than training the next generation of broadcasters to be prepared to provide the service that the public will demand tomorrow and into the future? Contact your local state broadcast association for more information about these foundations.

Preserving the history and traditions of the broadcast industry and the indispensable part it plays in the nation’s culture is another route for charitable giving.  The Library of American Broadcasting Foundation supports the broadcast history collection at the University of Maryland – originally the Broadcast Pioneer’s collection that was hosted at the NAB.  Other broadcast museums and collections, both national and local, can be found across the country.  Look for opportunities to donate money and history to these groups.

In addition to the broadcast world, I often write on this Blog about music, copyright, and other entertainment and media law issues.  While I am not as familiar with all the charitable organizations in the broader industry as I am with those in broadcasting, there are many.  For those readers in the broader media industry, do your own research and find one of the many charitable organizations that benefit different groups in the industry, and consider them in your end-of-year giving.

These are but a few of the many ways for broadcasters and those in the broader media industry to contribute to their communities.  Do your own diligence to see what these organizations do, and which can best meet your giving goals.  But as we look forward to this holiday season, all of us should consider how we can give back – whether it is monetarily, through service or in other ways. Enjoy this holiday season – and remember ways to help others in our industry as you do.

Even after yesterday’s deadline for filing ETRS Form Three in connection with the nationwide test of the Emergency Alert System back in October, there are two more deadlines coming next week that broadcasters should bear in mind.  As you prepare to celebrate the Thanksgiving holiday, don’t forget these FCC deadlines.  Most broadcasters have received plenty of notice about the December 1 deadline for Biennial Ownership Reports.  The FCC has been pushing for stations to fill these out completely and accurately by the deadline (see this reminder issued by the FCC just yesterday), as the Commission uses these reports to get a snapshot of who owns and controls what broadcast stations.  The reports also provide information about ownership diversity as they request information about the gender, race, and ethnicity of attributable owners.  The reports are required for all full-power stations (both commercial and noncommercial stations are covered) and for LPTV stations.  For more about the biennial ownership report filing requirement and the importance that the FCC puts on these reports, see our 2021 article here.

A deadline that has not received as much publicity is the November 29 deadline for users of the “13 GHz” spectrum to certify to the FCC that their systems are being used where licensed, or to file applications to modify the systems to accurately reflect their current use.  The spectrum, which includes operations from 12.7 to 13.25 GHz, is used by some broadcasters for Electronic News Gathering and for Studio Transmitter Links.  There may be other broadcast auxiliary uses beyond ENG and STLs that are also conducted in this band, so check your operations to see if a filing is required.

Like the recent C-Band transition, the FCC is looking at repurposing parts of this spectrum for wireless users.  With limited exceptions, if a broadcaster does not by the November 29 deadline confirm with the FCC its operations or file a minor modification application to cover the actual operations by the station in this band, there is a risk that the existing operation will not be protected in any future repacking of the band, or that the operator will not be eligible for compensation for any required changes in its system to accommodate FCC changes in the use of the band.  See the FCC’s Public Notice released just before the Labor Day holiday) and our blog articles here and here for more information about this deadline and the required filings. 

These are important regulatory deadlines next week, so consult with your legal and engineering advisors if you are unsure if you have complied with the FCC’s requirements. 

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 NAB and REC Networks, an LPFM advocacy organization, jointly requested an extension of the December 12, 2023 deadline for broadcasters to comply with a new EAS rule.  The new rule requires a broadcaster, when receiving an EAS alert, to default for at least 10 seconds to the IPAWS internet-based alert system to see if a CAP-formatted message is conveyed, and to rebroadcast that CAP message unless it is not available, when the over-the-air “daisy-chain” delivered message can be broadcast.  The requirement to “default to CAP” was set out in the FCC’s September 2022 Report and Order which we wrote about on our Broadcast Law Blog, here.  The extension request states that Sage, a major EAS encoder-decoder manufacturer, is unable provide the necessary firmware update to their EAS equipment, used by many full-power and low power broadcast stations, in time for these stations to comply with the deadline.  With the intervening holiday season, NAB and REC Networks requested a 90-day extension of the deadline, until March 11, 2024.  Watch for FCC action soon on this request. 
• FCC Chairwoman Rosenworcel announced the circulation of a draft Notice of Proposed Rulemaking which proposes prioritizing FCC review of applications seeking approval for license renewal and assignments or transfers of control when those applications are submitted by broadcasters that provide locally originated programming.  The proposal is intended to support and incentivize local journalism by rewarding broadcasters’ commitment to meeting the needs and interests of their local communities.  How the prioritization of these applications, which are, for the most part, routinely processed and granted within a few weeks of the end of statutorily required public comment periods, would promote local journalism was not set out in the announcement.  The full text of the proposal, which is not yet public, will presumably give such details. 
• The FCC’s Media Bureau released a Public Notice announcing an effective date of November 16 for certain amendments to its ATSC 3.0 rules adopted in June (we previously discussed that decision, here).  The effective date was set by the publication in the Federal Register of final approval for new paperwork requirements set out in the FCC’s order amending the rules.  The newly effective rule requires a Next Gen TV station that programs multicast streams “hosted” by another station during the ATSC 3.0 transition to seek modification of its license on FCC Form 2100 to include those streams as part of its license.  These arrangements have up until now been permitted through Special Temporary Authority.  Stations currently operating with an STA must file a Form 2100 license application no later than the expiration date of their current STA. Any stations that have a pending multicast STA request, or a pending request for an extension of an expired STA, have until December 18 to file the Form 2100 license application.  Details about how to complete the application are in the Public Notice. 
• The Media Bureau entered into Consent Decrees with two LPFM station licensees to resolve issues raised during the Bureau’s review of the stations’ license renewal applications:  
  • The Bureau entered into a Consent Decree with the licensee of a Puerto Rico LPFM station to allow the grant of the station’s license renewal.  The Consent Decree admitted to violations based on the failure of the church that was the station’s licensee to seek FCC approval when it merged with another church, resulting in a new licensee with a new controlling board.  The licensee also did not accurately certify in its renewal that there was a period when its station was silent for more than 30 days (even though that period of silence was approved by an FCC-granted STA), its failed to maintain station logs, and it did not provide information, when requested, stating that it had operational EAS equipment.  A compliance plan to ensure that these issues are not repeated was part of the Consent Decree. The station only avoided a fine by a showing that it could not afford to pay a penalty if one was assessed.    
  • The FCC’s Media Bureau entered into a Consent Decree with the licensee of a Kansas LPFM station following its disclosure in the station’s license renewal application that the station was constructed and operated with an antenna height different from what was authorized in its license.  The Consent Decree required that the licensee pay at $2,500 fine and seek FCC authorization for the location of the antenna at the height at which it is operating. 
• The FCC continued to crackdown on pirate radio operators by imposing the maximum penalty on two pirate radio operators and proposing a substantial fine against another operator who ignored FCC warnings to cease their operations.  The pirate radio operators have 30 days to pay the fine or their case will be referred by the FCC to the U.S. Department of Justice for enforcement.  The FCC itself cannot sue to collect fines against individuals who ignore the penalties issued in cases like this; instead, it relies on the DOJ to enforce the penalties in Court.  The specifics of these cases follow:
  • In one case, the FCC imposed $2,316,034 fine against an individual for operating a pirate FM radio station in the Bronx, New York – the maximum penalty permitted under the 2020 PIRATE Act.  The FCC concluded that the maximum penalty was appropriate because the FCC was able to extensively document that the pirate radio operator operated the pirate station for at least of 98 days in the past two years.  This was evidenced through FCC monitoring and what was advertised on the pirate’s website. The FCC also had evidence that the pirate had been operating as far back as 2018.  The pirate has ignored at least one written warning to cease operations. 
  • In the second case, the FCC also imposed the maximum penalty against an individual for operating a pirate FM radio station in Mount Vernon, New York.  The FCC was able to document that the pirate operated the pirate station for at least 20 days during the past year, and noted that the individual being fined was involved with the pirate station for over 15 years, and had previously been fined for the station’s operation and otherwise been given legal notice of the station’s illegal operation many times  – factors which the FCC cited as justification for maximum fine being imposed in this case.
  • In the final case, the FCC proposed a $1,780,000 fine against an individual for operating a pirate FM radio station in Brooklyn, New York.  The FCC concluded that the fine was appropriate both based on the FCC’s direct observation of the illegal operations and the documentation of operation provided by the pirate’s robust social media presence promoting the station’s operation, showing that the station operated for at least 89 days in the last two years. 
• The FCC’s Media Bureau proposed a $3,000 fine against a noncommercial full power television station for failing to timely upload its quarterly issues/programs lists to its online public inspection file.  The Bureau alleged that the station had failed to timely upload copies of these lists for a total of 12 quarters, i.e., 9 lists more than 1 year late, and 3 lists between 1 month and 1 year late.
• In news about government regulation of Artificial Intelligence in areas potentially important to broadcasters and other media companies:
  • The Copyright Office extended the deadline for reply comments on the copyright implications of AI.  Reply Comments are now due on December 6, 2023.
  • At its open meeting this week, the FTC announced the “Voice Cloning Challenge” to promote the development of ideas to protect consumers from the misuse of artificial intelligence-enabled voice cloning.  The FTC is requesting that members of the public submit proposals for tools that can be used to prevent, monitor, and evaluate the malicious use of voice cloning technology.  Proposals can be submitted online between January 2 and January 12, 2024.  Information on how to submit a proposal for the challenge as well as complete challenge rules can be found on the FTC website here.  The FTC will offer $25,000 to the winner.

Also, this week Congress averted a shutdown of the federal government by passing a continuing resolution to fund the government – including the FCC.  Some government funding was extended until January 19, with the funding for other parts of the government to run through February 2, 2024.  Another showdown over government funding, however, remains looming early next year.  As we previously discussed here and here, if a government shutdown does occur in early 2024, the FCC and other government agencies may have to cease all but critical functions if they do not have any residual funds to continue operations.  Stay tuned in the new year to see what happens.

With the Thanksgiving holiday next week, unless it is an unexpectantly busy week, we may skip next weekend’s update, and will be back with a summary of two weeks’ actions on December 3. Look on our Broadcast Law Blog for other updates, including our summary of December regulatory dates for broadcasters, between now and then.

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 has until December 27^th to comply with a court order requiring the agency to conclude its still-pending 2018 quadrennial review of its local broadcast ownership rules (see our Broadcast Law Blog article for more on the Court order and on the issues under consideration in that proceeding, including a review of the local radio ownership limits, the restrictions on combinations of two of the Top 4 TV stations in any market, and the dual network rule forbidding common ownership of two of the Top 4 TV networks).  With that deadline in sight, lobbying at the FCC on how the FCC should conclude the proceeding has increased.  Gray Television recently told the FCC that it should not tighten its television ownership rules due to the negative impact it would have on small and rural television markets.  Similarly, the National Association of Broadcasters urged the FCC to relax its radio ownership rules to enable radio broadcasters to better compete with digital audio platforms through greater scale and economic efficiencies.  Music industry groups, however, told the FCC that the current radio ownership restrictions should be maintained to preserve and promote not only ownership diversity, but viewpoint diversity through music and lyrics.  An individual who formerly worked as a  broadcaster urged the FCC to use its broadcast ownership rules to promote more small, local, and minority ownership in radio.  Expect more comments in the coming weeks containing last minute pleas for the FCC to favor various positions advanced in this proceeding. 
• This week, an automotive industry group published a blog article in opposition to the AM Radio for Every Vehicle Act now pending in Congress– an Act which would mandate the installation of AM radios in all new cars, including electric vehicles.  The blog article cited a study claiming that compliance with such a mandate would cost automakers $3.8 billion.  The NAB responded stating that the Congressional Budget Office released a report last month which estimated that compliance would actually cost automakers only a fraction of that amount. 
• As we discussed last week, the White House’s recent executive order regarding Artificial Intelligence encourages the FTC to exercise its authority to promote a fair, open, and competitive AI system.  This week, the FTC announced that it will consider at its open meeting next week whether to initiate a proceeding examining how to use its authority to protect consumers from AI-enabled voice cloning harms, such as fraud and the broader misuse of biometric data and creative content.  The FTC also filed comments in the Copyright Office’s proceeding exploring the copyright implications of AI which stated that the FTC might consider AI’s impact on the creative community to be an unfair trade practice – an interesting suggested expansion of the FTC’s usual regulatory focus.
• Senator Chuck Shumer stated this week (here and here, and here), at the Fifth and Sixth Bipartisan Senate Forums on Artificial Intelligence, that Congress must act quickly to address the potential harm to elections and democracy posed by the use of AI-generated political advertisements.  Earlier this week, we published an article examining recent calls from some for federal regulation of the use of AI-generated content in political ads, and the state and federal legislative actions taken to address these concerns.  While most governmental action on this issue remains to be seen, Facebook’s parent company Meta announced that it will voluntarily impose labeling requirements on ads appearing on its social media platforms when those ad use AI or other digital tools to add false images or sounds in messages addressing elections and other political and social issues (see our discussion here of Meta’s announcement and why broadcasters are limited in taking a similar action). 
• The FCC’s Media Bureau issued a $9,000 fine against a full power television station for failing to timely upload its quarterly issues/programs lists to its online public inspection file.  The Bureau found that the station had failed to timely upload copies of these lists for a total of 10 quarters in its prior license renewal term.  The Bureau also noted that the station failed to provide any explanation in its license renewal application for its failure to timely upload the lists, and instead stated in the application the lists were uploaded on-time.  According to the decision, the station in fact uploaded the lists only after FCC staff alerted it that the lists were missing from its public file.  The Bureau also proposed to assess a $9,000 fine against a noncommercial full power television station for failing to timely upload its quarterly issues/programs lists to its online public inspection file.  The Bureau alleged that the station had failed to timely upload copies of these lists for a total of 12 quarters in its renewal term – seven lists more than one year late, four lists between one month and one year late, and one list between one day and one month late.  See our article here on the importance the FCC places on the quarterly issues/programs lists.
• The FCC’s Media Bureau continues to substitute UHF channels for VHF channels in local markets to improve reception of over-the-air television channels as UHF channels offer superior digital broadcasting service.  The most recent examples include the substitution of channel 18 for channel 8 at Idaho Falls, Idaho, and the Bureau’s substitution of channel 16 for channel 7 at Winnemucca, Nevada.  The Bureau also released a Notice of Proposed Rulemaking asking for comments on a TV station’s petition for rulemaking proposing the substitution of channel 21 for 20 at Missoula, Montana, which follows the station’s previous request to change its station from channel 13 to channel 20.  The station is now requesting substitution of channel 21 for channel 20 at Missoula, Montana to mitigate co-channel interference and to increase the over-the-air reception of the station.

Looking ahead, as Congress still has not passed budget bills for the fiscal year that started on October 1, and “continuing resolutions” to fund the federal government at last year’s levels run out on November 17, a government shutdown may well occur if Congress fails to act this week.  As we previously discussed here and here, if a government shutdown does occur, the FCC and other government agencies may have to cease all but critical functions if they do not have any residual funds to continue operations.  Stay tuned to see what happens.

Facebook parent Meta announced this week that it will require labeling on ads using artificial intelligence or other digital tools regarding elections and political and social issues. Earlier this week, we wrote about the issues that AI in political ads pose for media companies and about some of the governmental regulations that are being considered (and the limited rules that have thus far been adopted).  These concerns are prompting all media companies to consider how AI will affect them in the coming election, and Meta’s announcement shows how these considerations are being translated into policy.

The Meta announcement sets out situations where labeling of digitally altered content will be required.  Such disclosure of the digital alteration will be required when digital tools have been used to:

• Depict a real person as saying or doing something they did not say or do; or
• Depict a realistic-looking person that does not exist or a realistic-looking event that did not happen, or alter footage of a real event that happened; or
• Depict a realistic event that allegedly occurred, but that is not a true image, video, or audio recording of the event.

The Meta announcement makes clear that using AI or other digital tools to make inconsequential changes that don’t impact the message of the ad (they give examples of size adjusting, cropping an image, color correction, or image sharpening) will be permitted without disclosure.  But even these changes can trigger disclosure obligations if they are in fact consequential to the message.  In the past, we’ve seen allegations of attack ads using shading or other seemingly minor changes to depict candidates in ways that make them appear more sinister or which otherwise convey some other negative message – presumably the uses that Meta is seeking to prohibit. 

This change will be applicable not just to US elections, but worldwide.  Already, I have seen TV pundits, when asked about the effect that the new policy will have, suggesting that what is really important is what other platforms, including television and cable, do to match this commitment.  So we thought that we would look at the regulatory schemes that, in some ways, limit what traditional electronic media providers can do in censoring political ads.  As detailed below, broadcasters, local cable companies, and direct broadcast satellite television providers are subject to statutory limits under Section 315 of the Communications Act that forbid them from “censoring” the content of candidate advertising.  Section 315 essentially requires that candidate ads (whether from a federal, state, or local candidate) be run as they are delivered to the station – they cannot be rejected based on their content.  The only exception thus far recognized by the FCC has been for ads that have content that violates federal criminal law.  There is thus a real question as to whether a broadcaster or cable company could impose a labeling requirement on candidate ads given their inability to reject a candidate ad based on its content.  Note, however, that the no-censorship requirement only applies to candidate ads, not those purchased by PACs, political parties, and other non-candidate individuals or groups.  So, policies like that adopted by Meta could be considered for these non-candidate ads even by these traditional platforms. 

It seems like almost every year as elections begin to heat up, the question arises as to whether the tools that some online platform adopts to combat political misinformation can be applied to broadcasters and other media – and each year we write about the differences in the regulatory schemes applicable to online platforms like Facebook and those that apply to traditional electronic media providers.  Facebook has been particularly active and particularly public about trying to curb abuses in political broadcasting, so we’ve written on the differing US regulatory schemes many times.

We wrote about the distinction last year, when Facebook decided to ban political ads in the week before the 2022 elections.  In June 2021, we wrote about Facebook’s plans to end its policy of not subjecting posts by elected officials to the same level of scrutiny by its Oversight Board that it applies to other platform users.  Facebook’s announced policy has been that the newsworthiness of posts by politicians and elected officials was such that it outweighed Facebook’s uniform application of its Community Standards – although it did make exceptions for calls to violence and questions of election integrity, and where posts linked to other potentially offensive content.  Just a year before, there were calls for Facebook to take more aggressive steps to police misinformation on its platforms. These calls grew out of the debate over the need to revise Section 230 of the Communications Decency Act, which insulates online platforms from liability for posts by unrelated parties on those platforms (see our article here on Section 230).

In past posts, we’ve looked in detail at the different regulations that apply to online platforms versus those that apply to broadcasters, cable companies, and other traditional media platforms.  In a 2020 post, we compared Facebook’s policy with the laws that apply to other communications platforms, including broadcasters and cable companies.  A lightly edited version of what we wrote in the past is below, and makes the regulatory distinctions clear:

In January 2020, the New York Times ran an article seemingly critical of Facebook for not rejecting ads from political candidatesthat contained false statements of fact.  We have already written that this policy of Facebook matches the policy that Congress has imposed on broadcast stations and local cable franchisees who sell time to political candidates – they cannot refuse an ad from a candidate’s authorized campaign committee based on its content – even if it is false or even defamatory (see our posts here and here for more on the FCC’s “no censorship” rule that applies to broadcasting and local cable systems).  As this Times article again raises this issue, we thought that we should again provide a brief recap of the rules that apply to broadcast and local cable political ad sales and contrast these rules to those that currently apply to online advertising.

As stated above, broadcast stations, local cable, and DBS systems cannot censor candidate ads – meaning that they cannot reject these ads based on their content.  Commercial broadcast stations and DBS companies cannot even adopt a policy that says that they will not accept ads from federal candidates, as there is a right of “reasonable access” (see our article here, and as applied here to fringe candidates) that compels them to sell reasonable amounts of time to federal candidates who request it.  Contrast this to, for instance, the platform then known as Twitter, which in the past (but no longer) decided to ban all candidate advertising on its platform (see our article here), and the Facebook ban applied in 2022 which at the time prohibited new political ads the week before the November 2022 election.  Such blanket bans on advertising from federal candidates would be prohibited on a commercial broadcast station.

There is no right of reasonable access to broadcast stations for state and local candidates, though once a station decides to sell advertising time in a particular race, all other rules, including the “no censorship” rule, apply to those ads (see our article here).  Local cable systems are not required to sell ads to any political candidates but, like broadcasters with respect to state and local candidates, once a local cable system sells advertising time to candidates in a particular race, all other FCC political rules apply.  National cable networks (in contrast to the local systems themselves) have never been brought under the FCC’s political advertising rules for access, censorship, or any other Communications Act requirements – although from time to time there have been questions as to whether those rules should apply to cable networks, as the FCC has applied them to broadcast networks. But thus far cable networks have been treated more like online advertising, where the FCC rules generally do not apply.

Disclosure is another place where the government-imposed rules are different depending on the platform.  Broadcasters, local cable systems, and DBS operators have extensive disclosure obligations, in online public files, requiring that they detail advertising purchases by candidates and other issue advertisers.  We wrote (here and here) about policies adopted in the last few years about the new enhanced disclosure rules for federal issue advertising (including ads supporting or attacking federal political candidates purchased by groups other than the candidate’s own campaign committee).  Cable networks and online platforms do not have federal disclosure obligations.  Some have voluntarily adopted their own disclosure policies (see for instance Facebook’s qualification policy for political advertisers, here).  In addition, a number of states have imposed obligations on these platforms (see, for instance, our article here).  These rules are not at all uniform, and some are stricter than others.  See, for instance, our article here on the enforcement of Washington State’s very detailed political advertising disclosure rules that have resulted in legal actions seeking significant penalties brought against Facebook.  While a number of states have imposed on digital media companies some form of political disclosure or recordkeeping  rules, as we wrote four years ago, at least one appellate court has determined, in connection with Maryland’s online political advertising disclosure obligations, that such rules are unconstitutional when imposed on online platforms rather than on advertisers.

Certainly, it can be argued that there are technical differences in the platforms that justify different regulation and different actions by the platforms themselves.  Online platforms clearly have the potential to target advertising messages to a much more granular audience.  The purpose of this article is not to argue which regulatory scheme is best – just to point out that these differences exist.  While we are already well into the political season with advertising running for the 2024 election, watch as various jurisdictions tackle questions about how to regulate political advertising, both online and on more traditional media platforms. We’ve written about the FEC consideration of rules governing AI-generated content in political ads.  Other rules from other federal and state authorities may follow.   

Obviously, discussions about the proper regulatory standards to apply to online platforms, not just in the area of political advertising, but more broadly, continues today (see, for instance, our articles here and here).  We will be following those developments in future posts, and all media companies should be watching closely as rules are developed. 

In the Washington Post last weekend, an op-ed article suggested that political candidates should voluntarily renounce the use of artificial intelligence in their campaigns.  The article seemed to be looking for candidates to take the actions that governments have largely thus far declined to mandate.  As we wrote back in July, despite calls from some for federal regulation of the use of AI-generated content in political ads, little movement in that direction has occurred. 

As we noted in July, a bill was introduced in both the Senate and the House of Representatives to require that there be disclaimers on all political ads using images or video generated by artificial intelligence, in order to disclose that they were artificially generated (see press release here), but there has been little action on that legislation.  The Federal Election Commission released a “Notice of Availability” in August (see our article here) asking for public comment on whether it should start a rulemaking to determine if the use of deepfakes and other synthetic media imitating a candidate violate FEC rules that forbid a candidate or committee from fraudulently misrepresenting that they are “speaking or writing or otherwise acting for or on behalf of any other candidate or political party or employee or agent thereof on a matter which is damaging to such other candidate or political party or employee or agent thereof.”  Comments were filed last month (available here), and include several (including those of the Republican National Committee) that question the authority of the FEC to adopt any rules in this area, both as a matter of statutory authority and under the First Amendment.  Such comments do not portend well for voluntary limits by candidates, nor for actions from an FEC that by law has 3 Republican and 3 Democratic commissioners.

While federal efforts to require labeling of political ads using AI have yet to result in any such regulation, a few states have stepped into the void and adopted their own requirements.   Washington State recently passed legislation requiring the labeling of AI-generated content in political ads.  Some states, including Texas and California, already provide penalties for deepfakes that do not contain a clear public disclosure when used in political ads within a certain period before an election (Texas, within 30 days and California within 60 days).

Even without regulation, media companies still need to be wary of the use of AI being used to generate false images of candidates for use in attack ads.  While broadcasters and local cable companies are insulated from liability for the content of ads from legally qualified candidates and their authorized committees (see our article here), they can have liability for ads from non-candidate groups.  Even non-regulated companies, such as streaming companies that are not subject to the Communications Act requirements that candidate ads not be censored, may have liability for the content of candidate ads. 

These companies must assess potential liability under traditional legal theories, including defamation.  We regularly warn broadcasters about potential penalties for running non-candidate ads once the broadcaster has been put on notice that such ads are false or defamatory (see, for instance, our article here).  The ability to generate political ads using AI will only increase the risk of such ads, and the burdens on media companies to vet these ads.

Two of the most recent cases where broadcast companies have been sued for running non-candidate attack ads both involved using “old fashioned” editing techniques, taking the words of a candidate and editing them to make it sound like the candidate said something that they did not actually say.  Suits were brought when stations continued to run those ads despite being told that the ads did not in fact accurately portray what the candidate actually said.  Certainly, this same question can come up (and no doubt will come up) with images generated by AI technologies.  One such case was President Trump’s lawsuit against a Rhinelander, Wisconsin TV station that had aired an issue ad which had edited of one of his speeches to assert that he had called COVID a hoax. There, the station argued that the edited message had not materially changed the meaning of Trump’s statements about the virus – see our article here), and the case was ultimately dismissed.  In another case, Evan McMullen, who was running as an independent candidate for the US Senate in Utah, sued TV stations that had not pulled ads where his statements on a CNN program were edited to make it sound as if he said that all Republicans were racist, when the actual statement was only that some elements of the party were racist.  While there are many defenses to any defamation claim, no matter how the cases are resolved, the media companies will bear the cost and time that go into defending against such claims, even if ultimately no liability is found. And AI may require that media companies assess these issues even more frequently than they do now. 

AI-generated political content will require that media companies carefully review and analyze complaints.  One could also imagine AI being used to generate political content that has no basis in fact at all and portray political figures in all sorts of compromising positions – ads much more likely to give rise to defamation claims.   Broadcasters and other media companies will likely face these questions in the months ahead, whether or not there is any further movement on the adoption of specific regulatory requirements for AI-generated content. Media companies need to be thinking carefully about these issues now to be prepared for what may come their way in 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’s Enforcement Bureau released its second EEO audit notice for 2023, which targets 150 radio and television stations for review of their EEO compliance.  The FCC randomly audits approximately 5% of all broadcast stations each year regarding their EEO compliance.  Audited stations and their station employment units – which are commonly owned stations serving the same area – must provide to the FCC their last two years of EEO Annual Public File Reports and documentation demonstrating that the stations did everything that is required under the FCC’s EEO rules.  Audited stations have until December 14, 2023 to upload that information to their online public inspection files.  As with the last FCC audit, the FCC staff will review the audit responses and ask for additional information if they find the public file documentation to be incomplete, but they will not inform audited stations that their EEO performance was found satisfactory.  See this week’s blog article here for more detail on the EEO audit and how seriously the FCC takes broadcasters’ EEO obligations. 
• The White House issued an executive order directing federal agencies to address the risks of generative AI.  The order is quite lengthy and includes some matters of potential interest to broadcasters.  For instance, the order directs the Department of Commerce to protect Americans from fraud and deception from “synthetic media” and other uses of AI by identifying standards and best practices for detecting AI-generated content and authenticating official content.  We recently wrote here and here about the legal issues from AI-generated content facing broadcasters in both the evaluation of political ads and the concerns about falsification of celebrity endorsements and other content.  The order also encourages the FTC to exercise its authority to promote a fair, open, and competitive AI system.  We noted here the FTC’s recent investigatory hearing on the harms of generative AI to the creative community.  While this week’s order encourages the FCC to consider actions related to how AI will affect communications networks and consumers, the FCC thus far has considered AI matters only as to robocalls and not yet generative AI matters directly impacting broadcasters. 
• The FCC this week released a Second Order and Second Notice of Proposed Rulemaking on changes to the use of the 6 GHz band to encourage more unlicensed wireless use in that band (including expanded wi-fi).  That band is currently used for many things including Broadcast Electronic News Gathering and Auxiliary Services.  In its Order, the Commission rejected requests by the National Association of Broadcasters to limit the power of these unlicensed uses, accepting arguments from tech companies that any interference can be managed.  The Commission did ask for additional comment on whether there should be restrictions on the use of these devices near EMG “receive sites” including ENG trucks and, if so, what limits should be imposed.
• The FCC’s Media Bureau partially granted two Pennsylvania television stations’ request for waiver of the significantly viewed exception to the FCC’s network non-duplication and syndicated exclusivity rules.  Under the FCC’s rules, if a local television station has exclusive rights to distribute network or syndicated programming within a market, cable operators in that market are precluded from carrying a duplicating program broadcast by a “distant” station located in another market – unless the distant station is “significantly viewed” in that market.  A television station, however, may seek to reinstate its exclusivity rights against such a distant station by demonstrating that the station is no longer significantly viewed in the market.  Here, the television stations located in the Johnstown-Altoona, PA market sought to reinstate their exclusivity rights against a distant station located in the Pittsburgh, PA market which was being carried by cable operators within the Johnstown-Altoona market.  The Bureau concluded that the Johnstown and Altoona stations’ network affiliation agreements granted them exclusivity rights in certain communities in their market – known as a “zone of exclusivity.”  Furthermore, the Bureau found that while the stations provided sufficient information demonstrating that the Pittsburgh station was no longer significantly viewed in certain communities within the stations’ zones of exclusivity, they did not provide enough data to make such a determination in other communities.  Therefore, the Bureau only granted the waiver for the communities where the stations had provided sufficient data that the Pittsburgh station was no longer significantly viewed. 
• The FCC’s Media Bureau continues to substitute UHF channels for VHF channels to improve reception of the digital signals of over-the-air television channels, the most recent example being its substitution of channel 34 for channel 11 at Des Moines, Iowa.  In that decision, the Bureau also substituted vacant channel 34 for vacant channel 21 at Ames, Iowa to ensure that the Des Moines channel substitution met the FCC’s distance separation requirements. 
• The FCC’s Media Bureau issued an Order to Pay or to Show Cause to a Missouri FM station, proposed to revoke the station’s license unless, within 60 days, the licensee pays the delinquent regulatory fees and interest, administrative costs, and penalties.  According to the Order, the FCC’s records indicate that the station currently has unpaid regulatory fee debt totaling $25,893.90 for FYs 2010 through 2023.
• The FCC’s Media Bureau issued three Forfeiture Orders against a LPTV station and four TV translator stations for failure to timely file their license renewal applications.  In these decisions, the Bureau continued its recent practice of assessing a $1,500 fine against a LPTV or TV translator station for failure to timely file a license renewal application.  In the first decision, the Bureau issued a $1,500 fine against the licensee of an Oregon LPTV station for filing its renewal over one month late.  In the second decision, the Bureau issued a $4,500 fine against the licensee of three Washington TV translators for filing their renewals over two months late.  In the final decision, the Bureau issued a $1,500 fine against the licensee of a Montana TV translator station for filing its renewal over one month late.

Last Monday was the 85^th anniversary of the radio broadcast of the Orson Welles production of The War of the Worlds.  To note this occasion, we published an article on our Broadcast Law blog examining whether the panic that broadcast caused could happen today in light of the FCC’s rule prohibiting the broadcast of hoaxes and other FCC rules seeking to bar programming that upsets audiences or potentially imperils public safety – such as false EAS tones. 

Monday was the 85^th anniversary of the Mercury Players broadcast of the Orson Welles production of The War of the Worlds – a radio broadcast that seemingly scared many Americans into thinking that the country was under attack by Martians, that my home state of New Jersey had been overrun, and that the rest of the country would soon follow.  There has been much media coverage of that broadcast in the last week.  Ten years ago, on its 75^th anniversary, we wrote an article that is worth revisiting now, with some edits to look at more recent activity that might bear on any repeat of The War of the Worlds controversy.

On the 75^th anniversary of The War of the Worlds broadcast, PBS’s American Experience ran a great documentary about the production – talking about Orson Welles’ decision to delay an announcement that the program was a fictional production, not a real invasion, long after his network superiors ordered that announcement because the network phone lines were tied up with anxious callers.  Also tied up were the phone lines of emergency responders, and the broadcast supposedly caused people to leave their homes to flee the path of the oncoming invaders.  The PBS program talked about how the FCC opened an investigation into the program, and how Congress demanded that laws be passed to prevent such a broadcast from happening again.  Essentially, through some well-publicized apologies by Welles and others involved in the program, and a promise by the network to take steps to prevent it from happening again, the FCC closed its investigation, and no law was passed by Congress.  Even though the government did not act 75 years ago, it is interesting to look at how the FCC has changed since that time, and why such a broadcast would not fly under FCC rules today.

Most prominent among the FCC rules adopted since the famous broadcast is the FCC’s rule against “hoaxes.”  As we’ve written before (usually just before April Fools’ Day), this rule (Section 73.1217) forbids broadcasters from airing false information about a crime or a catastrophe if the station knows the information is false, it is foreseeable that the broadcast will cause substantial harm, such as by tying up the resources of first responders or that the broadcast will otherwise cause substantial harm to people or damage to property, and where such harm is in fact caused.  The rule also provides that any programming accompanied by a disclaimer will be presumed not to pose foreseeable harm if the disclaimer clearly characterizes the program as a fiction and is presented in a way that is reasonable under the circumstances.

Applying that rule to The War of the Worlds broadcast would mean that the radio network (and its affiliated stations) could potentially be looking at fines were such a broadcast to be made today. While a broadcaster could certainly argue (as was done at the time) that no rational person would believe that the Martians were really invading, the fact that the network was deluged with calls, and that the network warned its director to air a disclaimer (which was delayed for dramatic effect), might well cut against any such arguments.

When we wrote about the program on its 75^th anniversary, we suggested that society seems much less willing to allow any programming that upsets audiences or potentially imperils safety in any way by using an on-the-spot news format for an entertainment program, without disclaimers that are prominent and repeated, and usually with many pre-show announcements that warned the viewer that the program that was upcoming was only a dramatization.  

But we have also seen the FCC cracking down on false EAS alerts, and other programming that implies that there is an emergency when in fact no such emergency exists (see our articles here and here on big fines for false EAS alerts).  The FCC has even gone so far as to require that broadcasters and other EAS participants notify the FCC of any false alerts, following the inadvertent EAS activation in 2018, warning of an incoming missile attack in Hawaii.  In today’s world, where there are seemingly potential threats from a variety of sources, both natural and man-made, the appetite for any use of the airwaves to convey false emergency information seems to be slim.  Broadcasters need to beware – and that wariness seems to guard against a repeat of The War of the Worlds public scare anytime soon. 

The FCC this week released its second EEO audit notice for 2023.  The FCC’s Public Notice, audit letter, and the list of stations selected for audit is available here.  Those stations, and the station employment units (commonly owned or controlled stations serving the same area sharing at least one employee) with which they are associated, must provide to the FCC (by uploading the information to their online public inspection file) their last two years of EEO Annual Public File reports, as well as backing data to show that the station in fact did everything that was required under the FCC rules.  The response to this audit is due to be uploaded to the public file of affected stations by December 14, 2023. The audit notice says that stations audited in 2021 or 2022, or whose license renewals were filed after October 1, 2021, can ask the FCC for further instructions, possibly exempting them from the audit because of the recent FCC review of their performance.  Perhaps for this reason, no stations in New England or the Mid-Atlantic (NY, NJ, PA, and DE) states, are included in the list of audited stations, as stations in these states were the last to file their license renewals.

With the release of this audit, and the recent $25,000 fine proposed for some Kansas radio stations that had not fully met their EEO obligations (see our article here), it is important to review your EEO compliance even if your stations are not subject to this audit.  The FCC has promised to randomly audit approximately 5% of all broadcast stations each year. As the response (and the audit letter itself) must be uploaded to the public file, it can be reviewed not only by the FCC, but also by anyone else with an internet connection anywhere, at any time.  The recent proposed fine, a fine imposed on Cumulus Media for a late upload of a single EEO Annual Public File Report last year (see our article here), and the FCC’s pending consideration of the return of the EEO Form 395 reporting on the race and gender of all station employees (see our article here), shows how seriously the FCC takes EEO obligations.

According to the audit notice, audited stations must provide sample copies of notices sent to employment outreach sources about each full-time vacancy at the stations, as well as documentation of the supplemental efforts that all station employment units with 5 or more full-time employees are required to perform (whether or not they had job openings in any year). These non-vacancy specific outreach efforts are designed, for example, to educate the community about broadcast employment positions and to train employees for more senior roles in broadcasting. Stations must also provide, in response to the audit, information about how they self-assessed the performance of their EEO program. Information about any pending or resolved proceedings involving discrimination claims must also be reported.  As with the last FCC audit, the FCC staff will review the audit responses and ask for additional information if they find the public file documentation to be incomplete, but they will not inform audited stations that their EEO performance was found satisfactory.

A few years ago, at the Wisconsin Association of Broadcasters annual convention, I did a presentation on the FCC requirements for EEO compliance. The slides from that presentation are available here. The FCC rules are designed to bring new people into broadcast employment positions – looking for broadcasters to recruit from outside the traditional informal networks that exist within the broadcast industry when hiring new employees. Not only should broadcasters be reaching out to their consultants and employees for referrals, and using their own airwaves to promote openings, but they need to be using outreach sources that are designed to reach all groups within a community to notify members of these groups about the availability of open employment positions at a station. While the FCC once required that outreach be made to a plethora of community groups, it has now recognized that online recruitment sources alone can reach the entire community (see our summary of that decision here) – but these sources need to be evaluated regularly to assure that they are in fact bringing in applicants for job openings representative of different groups within the station’s employment area.  If online recruiting does not bring in a diversity of applicants and interviewees for job openings, stations should consider expanding their recruitment sources.  Many stations find outreach to at least some community groups, in addition to online sources, brings the best mix of potential applicants to stations filling job openings.

Stations need to keep the required documentation to demonstrate their hiring efforts, as failing to do so can still lead to fines as in the recent cases noted above. The documents should show not only the station’s hiring efforts in connection with job openings, but also the supplemental efforts that they have taken, even where they have not had job vacancies, to educate their community about broadcast employment and to train their employees to assume more responsibilities.  Stations should review their policies to make sure that they have the documentation necessary to satisfy an FCC audit, by making sure that the station’s EEO program is regularly bringing in recruits from diverse sources and that the station has done the required non-vacancy specific educational efforts on broadcast employment.  More general information about the FCC’s EEO requirements are found in this article, answering 5 questions about EEO posed by the Indiana Broadcasters Association. 

The FCC itself, when it abolished the requirement for the filing of the FCC Form 397 EEO Mid-Term Report, promised to review the effectiveness of its EEO rules. A Notice of Proposed Rulemaking looking at how to make the program was released in 2019, suggesting various proposals (see our article here). The proposals made in that proceeding may require further public comment before they can be adopted and, for now, the rules that have been in place for almost two decades remain in effect. As EEO enforcement was transferred to the FCC’s Enforcement Bureau (see our article here), and as we saw many questions about EEO in the FCC’s scrutiny of license renewal applications in the recent renewal cycle, we can expect that enforcement will continue to be vigorous.

Consult with your attorneys to get a thorough understanding of the EEO rules and talk with the employees involved in employment matters at your station to make sure that they understand what they should be doing and are keeping the paperwork necessary to demonstrate your compliance with the rules. The FCC continues to enforce its rules and impose fines on stations that cannot demonstrate compliance, so make sure that you comply with the FCC’s obligations on EEO matters.

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’s Wireless Telecommunications Bureau announced that comments responding to the Bureau’s proposed final deadlines for the submission of reimbursement claims by earth station operators affected by the C-band transition are due by November 8, 2023.  As we reported in last week’s update, the Bureau has proposed the following deadlines for the submission of C-band transition reimbursement claims:
  • February 5, 2024 – Deadline for submission of all reimbursement claims for costs incurred and paid by claimants as of December 31, 2023, including all lump sum election claims by incumbent earth station operations.
  • September 30, 2024 – Deadline for submission of all reimbursement claims for costs incurred and paid by claimants after December 31, 2023, which must be submitted on a rolling basis within 30 days of being incurred.
• The FCC’s Media Bureau granted an FM translator’s minor modification application to relocate to a new transmitter site and to specify a new primary station.  The Bureau rejected an objection arguing that the move violated a condition on all translator licenses that construction pursuant to a construction permit not be with “temporary” facilities and that translators not excessively “hop” over significant distances (using a series of rapid minor changes to move a station a significant distance – a move that should wait for a major change window where the application could be subject to competing applications).  The translator’s licensee had recently purchased the translator and filed for Special Temporary Authority to cease operations while it prepared for the site relocation.  The licensee demonstrated through documentation (included dated photos, emails, invoices, and a sworn declaration of its consulting engineer) that the translator’s initial facilities had been fully constructed for permanent operations and the translator could have operated from those facilities for the foreseeable future.  As the licensee had a legitimate business purpose for the move (so that it could rebroadcast the new primary station), the Bureau found that the construction was not temporary construction prohibited by the FCC’s policies.  The policy against temporary construction instead focuses on the use of short-term facilities (like a tower on a flatbed truck that operates for only a matter of days, with no long-term commitment to use the site from which the operation is commenced), usually to meet the construction deadlines or where there are rapid sequential moves to try to move the station over a significant distance.  This policy has also been applied to LPTV stations. For more on these policies and the harms that they seek to prevent, see our Broadcast Law Blog articles here and here. 
• The FCC’s Public Safety and Homeland Security Bureau announced the agenda for its upcoming October 30 roundtable on the cybersecurity of the nation’s public alert and warning systems.  As we noted in last week’s update, the roundtable will include a discussion among public and private sector representatives to build upon the FCC’s October 2022 Notice of Proposed Rulemaking – which proposes measures to enhance cybersecurity and operational readiness of the Wireless Emergency Alerts and the Emergency Alert System, including mandatory cybersecurity programs at all broadcast stations as well as regular reports to the FCC by broadcasters on their cybersecurity programs.  The event will include remarks by FCC Chairwoman Rosenworcel and representatives of the Cybersecurity and Infrastructure Security Agency, which is co-hosting the event.  Registration is free and open to the public.  Interested participants may register here for the event.
• The FCC’s Media Bureau issued an Order to Pay or to Show Cause to the licensee of  a Louisiana AM and FM combination, proposing to revoke the stations’ licenses unless, within 60 days, the licensee pays delinquent regulatory fees and interest, administrative costs, and penalties.  According to the Order, the FCC’s records indicate that the stations currently have unpaid regulatory fee debt for the AM Station totaling $12,098.17 (debts due from fiscal years 2002, 2012, 2013, 2014, 2015, 2016, 2017, 2018, 2019, and 2022) and, for the FM station, $8,906.97 from 2002, 2012, 2013, 2014, 2015, 2016, 2017, 2019, and 2022. 
• On our Broadcast Law Blog, we published our look ahead to the regulatory dates of interest to broadcasters in November and early December.

November is a month where there are no regularly scheduled regulatory deadlines.  But the big question for broadcasters may be whether the FCC will continue to function throughout the month. The last-minute continuing resolution passed by Congress on September 30 extended federal government funding through November 17 – which again raises the possibility of a federal government shutdown beginning in late November if Congress does not approve new funding measures for Fiscal Year 2024 by that date.  As we discussed in our previous article regarding October Regulatory Dates for Broadcasters, if a government shutdown does occur, the FCC and other government agencies may have to cease all but critical functions if they do not have any residual funds to continue operations.  In late September, the FCC announced that it had sufficient leftover funds to keep operating for about two weeks after a shutdown.  We do not know if those funds are still available, so we need to be watching to see what happens between now and November 17.

Assuming that there is no shutdown, there are a number of other dates that broadcasters should be watching.  All broadcasters need to remember that November 20 is the deadline to file their ETRS Form Three to provide more detailed information regarding their stations’ performance during the October 4 Nationwide EAS Test.  See our article here regarding this year’s EAS test and broadcasters’ reporting obligations.  This deadline is important for many reasons – not just to avoid potential penalties for missing the filing deadline, but also to demonstrate broadcasters’ commitment to the emergency communications system as broadcasters’ role in that system is the principal reason for Congress to be presently considering the bill to require AM radio in every car.  See our article here for more on the importance of accurate reporting. 

Another very important date in the coming month is November 29 when TV broadcasters holding Broadcast Auxiliary Service (BAS) licenses (e.g., Studio Transmitter Links/ ENG) in the 12.7-13.25 GHz (12.7 GHz) band must file a certification to protect their operations or to entitle them to reimbursement should they have to make technical changes, as the FCC is considering repurposing parts of this spectrum for wireless users.  By November 29, with limited exceptions, broadcasters holding a licensee band must certify to the FCC that the information on the license is accurate and that their facilities are operating as authorized.  If the information is not accurate, a broadcaster must file a modification to update the FCC records with the correct information by the November 29 deadline.  More information on the certification requirements and filing procedures is available in the FCC’s August 2023 Public Notice.  We wrote more about the certification requirement here.

On the subject of spectrum used by broadcasters being repurposed for wireless uses, November 8 is the deadline for comments on the FCC’s Wireless Telecommunications Bureau’s Public Notice on the proposed deadlines for the submission of reimbursement claims by earth station operators affected by the C-band transition.  The goal is to conclude the reimbursement program by the current target of June 30, 2025.  Comments are sought on these deadlines proposed by the Bureau: 

• February 5, 2024 – For all reimbursement claims for costs incurred and paid by claimants as of December 31, 2023, including all lump sum election claims by incumbent earth station operations.
• September 30, 2024 – For all reimbursement claims for costs incurred and paid by claimants after December 31, 2023, which must be submitted on a rolling basis within 30 days of being incurred.

Other November dates to watch include a November 2 workshop by the FCC’s Wireless Telecommunications Bureau on the environmental compliance and historic preservation review process required for the construction of communications facilities supporting FCC licensed services.  The workshop will include information relevant to the construction of new communications towers and the collocation of equipment on existing towers and other structures – including requirements for Antenna Structure Registration.  While the workshop is targeted at wireless providers, the workshop will include discussions of topics such as the FCC’s environmental and historic preservation rules and procedures, coordination with Tribes during the National Historic Preservation Act (NHPA) process, and compliance with the Endangered Species and Migratory Bird Treaty Acts, all relevant to broadcast tower construction.  The workshop is open to the public, and interested parties may email the FCC at fccenvironmentalworkshop@fcc.gov to participate in the live workshop.  The workshop will also be recorded and publicly available at https://www.fcc.gov/news-events/events/archived after the event.

Daylight Savings Time ends on November 5, and thus AM daytime-only radio stations and stations operating with pre-sunrise and/or post-sunset authority should check their sign-on and sign-off times on their current FCC authorizations to ensure continued compliance with the FCC’s rules.  Please note that all times listed in FCC licenses are standard time.

November 29 is the filing deadline for reply comments in response to the Copyright Office’s Notice of Inquiry regarding the copyright issues triggered by the use of AI, including the question of whether machine-generated content is entitled to copyright protection and the copyright implications of AI’s use of copyrighted materials (including books and music) to “learn” how to perform certain tasks. 

Looking to December, as we recently reported, the LPFM Filing Window, originally scheduled for November 1 through 8, has been rescheduled to December, and will now open at 12:01 am EST on December 6, and close at 6:00 pm EST on December 13.  The current freeze on the filing of applications for changes in the facilities of FM translators and existing LPFM stations will also now end on December 13.  We wrote more about the LPFM window’s rules and the filing freeze here.

December 1 is also the deadline for the filing of Biennial Ownership Reports by all full-power and LPTV licensees.  These reports not only detail ownership and control of broadcast stations, but also report on the race and gender of station owners, and their other broadcast interests (see our article from 2021 about the importance the FCC attaches to these filings).  Each individual and entity who has an interest in your station needs to obtain its own FCC Registration Number (FRN) which needs to be used in the reports for all stations in which that individual or entity has any interest.  Additional reports also need to be filed for each entity that has an attributable interest in any licensee.  The process of preparing these reports can take time (e.g., you need the social security number for all individuals with interest in commercial licensees and the Employer Identification Number for all entities – see this article for special rules for certain board members of noncommercial licensees), so you should not wait until the last minute to try to complete these reports as you may not meet the deadline.

Finally, December 12, 2023 is the deadline for EAS equipment software changes required by a 2022 FCC Report and Order where the FCC required EAS Participants, among other things, to prioritize EAS alerts transmitted in the Common Alerting Protocol (CAP) rather than those transmitted through the over-the-air “daisy chain” system, given the4ir superior audio quality and the ability to transmit more information (see our article here).  The Report and Order stated that EAS equipment suppliers indicated that changes to prioritize CAP alerts and to revise and remove certain test codes “can be accomplished via software updates” to EAS equipment in tandem with “regularly scheduled maintenance activities” involving minimal cost and effort on the part of EAS manufacturers and participants. Broadcast stations should confirm with their EAS vendors that their EAS equipment software and firmware will comply with the new EAS rules no later than December 12, 2023.   

As always, this list of dates is not exhaustive.  Also note that deadlines can change – especially in light of the potential for another government shutdown in late November.  Always review these dates with your legal and technical advisors, and note other dates not listed here that may be relevant to your operations.

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’s Enforcement Bureau released a Notice of Apparent Liability proposing a $25,000 fine on two commonly-owned clusters of broadcast stations for their apparent failure to comply with the FCC’s EEO rules.  The proposed fine was based on two EEO Annual Public File Reports at one cluster being uploaded late (one 5 months late, the other 17 months late) and one Annual Report at the other cluster being uploaded over a year late.  The FCC also found that, in two cases, the stations had not publicized job openings in a manner likely reach the entire community served by the stations, as the rule requiring that broadcasters “widely disseminate” information about job openings requires – relying solely on a recommendation from a departing employee in one case, and on the licensee’s on-air announcements on its own stations in the other.  The Bureau also faulted the broadcaster for not keeping adequate paperwork to document its EEO efforts and for not conducting the kind of required “self-assessment” that would have uncovered the issues.  We wrote more on this decision, and whether it signals more robust EEO enforcement in the future, on our Broadcast Law Blog, here.
• The FCC’s Media Bureau issued a Public Notice extending the scheduled window for filing applications for new Low Power FM stations from early November until December.  The LPFM Filing window will now open at 12:01 am EST on December 6, and close at 6:00 pm EST on December 13.  The Bureau also extended the freeze on LPFM and FM translator minor modification applications until the close of the filing window on December 13.  For more on the extension and the procedures for filing applications in the window, see our Blog article here. 
• The FCC’s Wireless Telecommunications Bureau issued a Public Notice seeking comment on the proposed deadlines for the submission of reimbursement claims by earth station operators affected by the C-band transition.  The goal is to conclude the reimbursement program by the current target of June 30, 2025.  Comments will be due 15 days after the Public Notice is published in the Federal Register on the following proposed deadlines: 
  • February 5, 2024 – For all reimbursement claims for costs incurred and paid by claimants as of December 31, 2023, including all lump sum election claims by incumbent earth station operations.
  • September 30, 2024 – For all reimbursement claims for costs incurred and paid by claimants after December 31, 2023, which must be submitted on a rolling basis within 30 days of being incurred.
• The FCC’s Public Safety and Homeland Security Bureau issued a Public Notice announcing that it will co-host with the Cybersecurity and Infrastructure Security Agency’s Emergency Communications Division a public roundtable on the security of the nation’s public alert and warning systems, including EAS.  The roundtable is scheduled for 9:30 am EDT on October 30 and will include a discussion among representatives of the government and private industry on issues raised in the FCC’s October 2022 Notice of Proposed Rulemaking, which proposed, among other things, mandatory cybersecurity programs at all broadcast stations as well as regular reports to the FCC by broadcasters on their programs.  The roundtable will focus on the costs and benefits of these proposals.  We wrote about the FCC’s October 2022 NPRM here.  Registration is free and open to the public.  Interested participants may register here for the event.
• The FCC issued an Order expanding the FCC’s audio description requirements to commercial broadcast television stations affiliated with one of the top four television broadcast networks (i.e., ABC, CBS, Fox, and NBC) in Designated Market Areas 101-210.  Currently, the FCC’s audio description requirements apply only to the top 90 DMAs and will be extended to DMAs 91-100 as of January 1, 2024.  As a result of the FCC’s Order, the audio description requirements will now expand to DMAs 101-210 beginning with DMAs 101-110 on January 1, 2025, and ending with DMAs 201-210 on January 1, 2035.  Audio description provides narrated descriptions of a television program’s key visual elements during natural pauses in the program’s dialogue, for the benefit of individuals who are blind or visually impaired.  Covered TV stations must pass through 87.5 hours of audio described programs each calendar quarter.
• The Media Bureau allotted new television channels reserved for noncommercial operations in the following communities: Tulare, California (channel *3), Colusa, California (channel *2), and Alamogordo, New Mexico (channel *4). It also allotted FM Channel 277C2 at Wharton, Texas.  Applications for new stations on these newly allotted channels can be filed during windows that will be announced in the future.  The Media Bureau also granted the request of an existing TV station in Las Vegas to move to UHF channel 26 instead of its current VHF channel 13, reflecting the perceived superiority of UHF channels for digital operations.

On our Broadcast Law Blog, we published an article warning broadcasters of the trademark issues that can arise from the use of the words “World Series” in any baseball themed advertising or promotions without permission of Major League Baseball. 

Earlier this week, the FCC’s Enforcement Bureau issued a Notice of Apparent Liability proposing a $25,000 fine on two related companies operating clusters of stations in two small Kansas markets.  Those clusters have, because of financial setbacks (leading to bankruptcy), reduced staff so that they no longer have 5 full-time employees at either cluster and thus are no longer subject to the FCC’s EEO outreach requirements. In this Notice, the FCC staff looked back to a few isolated violations in 2020 and 2021, when the stations had 5 or more full-time employees, to justify the proposed $25,000 fine.

The Enforcement Bureau pointed to the late upload to the online public file of three Annual EEO Public File Reports. The Bureau also pointed to the late upload of two Annual EEO Public File Reports at one of the clusters, and one late upload at the other cluster.  Both the 2020 and 2021 reports for one cluster were uploaded in June 2021, when the reports were due in February of each year.  Thus, one report was 5 months late, the other 17 months late.  At the other cluster, the 2021 report was uploaded a year late.  There was no allegation that the reports were not completed on time – just that they were not timely uploaded.

The Bureau also found that, at one station, two of its five job openings were filled without adequate outreach.  As we have written in prior articles, the FCC requires that broadcasters widely disseminate all job openings unless there are unique situations rendering such outreach unnecessary (e.g., when a station is targeting an individual with unique qualifications and making an opening for that person at the station, rather than hiring for a job opening).  Outreach must target all groups within the station’s community.  While the FCC allows online recruiting sources to be used (see our articles here and here), in this case one employee was hired without any outreach, and a second was filled with the only outreach being a notice broadcast over-the-air on the station group’s own stations, which the Bureau deemed inadequate.

Finally, the Bureau noted that the licensee could not produce any documents that backed up its claimed outreach for job openings, nor for its recruitment initiatives (stations must, whether they have any job openings or not, conduct non-vacancy EEO initiatives, such as educating the community about broadcast employment opportunities and the qualifications for such positions, and training employees to assume more advanced positions at their stations – see our article here).  The FCC staff did not question if those EEO efforts existed – instead it simply cited the fact that the licensee did not produce documents to support its efforts.  In addition to these identified violations, the Bureau also found that the licensee failed in its obligation to self-assess its EEO program.  This is a typical add-on to any EEO fine as, if you fell short in meeting your FCC obligations, you must have not been self-assessing the effectiveness of the program (as required by the rules) or you would have noted the deficiencies in your performance.

This fine appears to set a new standard for the penalties for FCC EEO violations.  In recent years, there have been two fines for broadcast EEO rule violations.  In a 2017 case, the FCC’s Media Bureau (which used to oversee EEO violations) proposed a $20,000 fine for a broadcast cluster owned by one of the big public broadcast companies, for what was apparently a complete failure to observe the EEO requirements for a two-year period (see our article here).  That same licensee was issued a proposed $32,000 fine last year by the full Commission for more apparent violations, but the large fine was justified according to the FCC, given past violations by the licensee (see our article here on that decision).  Prior fines for broadcast EEO violations were significantly lower (see, for example, our article here on fines from 2014).  In this week’s decision, the more isolated apparent violations by a Mom-and-Pop, financially distressed broadcaster (a broadcaster no longer even subject to the EEO reporting requirements because it now has fewer than 5 full-time employees), appear to signal a significantly higher standard of enforcement for FCC EEO violations.  Broadcasters beware!

The FCC yesterday issued a Public Notice announcing that it was rescheduling the filing window for new Low Power FM stations that had been scheduled for early November – moving the window to December.  Applications now can be filed between 12:01 AM Eastern Time on December 6, 2023 and 6:00 PM ET on December 13, 2023.  The FCC stated that a group of low power advocates had requested the extension to give applicants more time to prepare their applications.  The FCC warns in the Public Notice that this deadline will be strictly enforced – so don’t expect any leniency for any application that does not meet the 6 PM deadline on December 13.

Note that this extension also extends the freeze that the FCC imposed on LPFM and FM translator minor modifications.  That freeze, imposed to provide LPFM applicants with a static database from which to work in planning their applications, will now run through December 13.

We wrote more about the criteria that applicants for new LPFM stations must meet in our article here that looked at the rules that apply to this filing window.   This includes the requirement that the applicant be a local nonprofit educational organization, tribal group, or state and local governments providing a public safety service.  Applicants must submit by the deadline all claims for the “points” that are used by the FCC to decide whose application to grant if there are mutually exclusive applications, i.e., applications which, if granted, would cause impermissible interference to each other.  Additional filing requirements are set out in our article and in the FCC Public Notice issued this summer which set out the rules governing applications in this window.  And a recent FCC staff decision indicates that applications must be signed by an officer or director in order to be valid.  These and other issues should be discussed with counsel before submitting an application during the filing window.

We’ve also warned full-power FM operators to watch the filings in this window, as LPFM applicants can request waivers of predicted interference to second-adjacent channel full-power stations, by making a showing that the public interest would be served by a waiver of the interference rules.  Full power stations potentially affected by such waiver requests should carefully review the showings made to ensure that there is no meaningful interference that may be caused by the proposed LPFM operation. 

So, LPFM applicants now have a little more time to prepare their applications, and FM translator applicants that need to modify their facilities will need to wait a little longer.  LPFM applicants would be wise to file early in the window to avoid any last-minute issues that may arise. 

Readers of the Broadcast Law Blog are familiar with the potential trademark claims that may arise from the use of SUPER BOWL^® (see here) or FINAL FOUR^® in advertising or promotions (see here and here).  I was recently asked, in light of the various “WORLD SERIES OF ____” marks that are being used for sports or activities other than baseball, whether there is a similar risk with using WORLD SERIES^® in advertising or promotions during this time of year.

The short answer is yes.

The first use of “World Series” for the US professional sports championship took place in1903, if not earlier.  However, it was not until 1987 that the Office of the Commissioner of Baseball (“MLB”) began seeking federal registration for “World Series” trademarks.  The applications were based on use of the marks before 1986.  (Use of a trademark without registration can create “common law” marks, which are enforceable, but the owner of the mark does not have the presumptions of ownership and validity that accompany trademarks registered on the Principal Register of the US Patent and Trademark Office.)

Today, MLB owns a number of registered marks for “WORLD SERIES” in words, in a stylized format or with a design.  MLB’s rights in “WORLD SERIES” marks are strong.  Indeed, MLB appears to own all of the registrations for WORLD SERIES-formative marks for goods or services relating to baseball tournaments and merchandise, including COLLEGE WORLD SERIES^®, WOMEN’S COLLEGE WORLD SERIES^® and HIGH SCHOOL WORLD SERIES^®, notwithstanding the fact that those events are run by the NCAA or other sports organizations.  (see here and here).  Although it is probably not obvious to the average fan, MLB owns these marks and licenses the respective trademarks to the actual tournament operators.  The fact that MLB has made these arrangements reflects how seriously MLB takes protecting its WORLD SERIES^® mark and how strong those rights are – up to a point.

On the one hand, the Trademark Trial and Appeal Board has found that WORLD SERIES is a famous mark (see here), which typically means that the owner has broad rights in its mark, i.e., it has strong rights against a third-party mark that is similar and/or is being used for related goods and services.  On the other hand, typically, if many are using the same words as part of their trademark, none of the various owners can claim broad rights in their marks.

Here, many other groups use and have rights in marks that are variations on “WORLD SERIES.”  Notably, there are numerous federal registrations and applications for marks that include the phrase, “WORLD SERIES” for non-baseball competitions  (e.g., WORLD SERIES OF POKER^®, WORLD SERIES OF FIGHTING^®, WORLD SERIES OF CHEERLEADING^®, MAH JONGG WORLD SERIES^® and WORLD SERIES OF ENTREPRENEURSHIP^®) that are not owned by MLB.  However, many of the registrations include the specific phrase “and not relating to baseball or softball or a baseball or softball team, league, mascot, stadium or event” in the description of goods and/or services.  Most likely, this wording was added after MLB sent out a demand letter and/or obtained extensions of time to oppose the applications.

Broadly speaking, it is a fair conclusion that MLB’s right to take action against the commercial use of a “WORLD SERIES” or other MLB mark is limited to goods and services that somehow relate to baseball.

So, what will lead to a cease-and-desist demand from MLB?  MLB has legitimate concerns about unauthorized uses of its trademarks where consumers may be confused into believing that the advertiser is approved by or connected with Major League Baseball because such use may threaten an exclusive license for use of the mark in a particular geographic market, e.g., “The Official Beer of [insert name of your team].”

There are numerous reports of MLB obtaining a court order allowing it to seize counterfeit (unauthorized) goods.  From my own experience, MLB will object to a contest that includes one of its trademarks in its name or offers tickets to a game as part of a prize.  (In fact, this claim was against a media company.)  There are few cases or reported instances where MLB has objected to the use of the WORLD SERIES^® mark in advertising or promotions.  Even so, the examples of problematic activity in the SUPER BOWL^® or FINAL FOUR^® articles generally apply with equal force to the use of the WORLD SERIES^® mark.

In addition, MLB and MLB teams own numerous trademarks, including team names, slogans and logos.  MLB teams can also be extremely aggressive against local unauthorized uses of its trademarks and are more likely to become aware of them.  So, all of the foregoing concerns apply to any MLB mark.

Importantly, these concerns apply to commercial uses of MLB’s trademarks.  News organizations, however, have the right to use “World Series” or other MLB marks in reporting on games.

Thus, if a broadcaster or a media company is asked to run ads or is considering a promotion that refers to “WORLD SERIES” or another MLB trademark, which is baseball-themed or relates to baseball in some way, it would be well-advised to consult with a trademark attorney who is experienced with these issues.

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.

• FCC Chairwoman Rosenworcel announced that two Notices of Proposed Rulemaking (NPRMs) have been drafted, which, if adopted by the Commission, would seek public comment on proposals to protect consumers from the effects of blackouts lasting more than 24 hours resulting from the failure of broadcasters and Multichannel Video Programming Distributors (MVPDs, i.e., cable and satellite TV providers) to reach a retransmission consent agreement.  The NPRMs propose to require MVPDs, in the event of a blackout due to the failure to reach a retransmission consent agreement with a broadcaster, to: (1) issue rebates to subscribers to compensate them for the channels that they do not receive; and (2) notify the Commission via an online public portal of broadcast blackouts lasting 24 hours or more. These specifics of the proposed NPRMs have been circulated to the other Commissioners for their review and are not yet publicly available. 
• The FCC imposed two substantial fines on pirate radio operators who ignored FCC warnings to cease their operations.  In each case, the pirate radio operators have 30 days to pay the fine or their case will be referred by the Commission to the U.S. Department of Justice for enforcement.  The FCC itself cannot sue to collect fines against individuals who ignore the penalties issued in cases like this; instead, it relies on the DOJ to enforce the penalties in Court.  The specifics of these cases follow:
  • In one case, the Commission imposed a $2,316,034 fine against two individuals for operating a pirate FM radio station in Queens, New York.  The decision followed the Commission’s March 2023 Notice of Apparent Liability, which we wrote about here, when the FCC first proposed the fine.  The two individuals failed to respond to its March 2023 Notice.  The Commission relied upon the PIRATE Act passed by Congress in 2020, which enabled the FCC to impose higher fines for pirate radio operators.  The Commission concluded that the maximum penalty under the PIRATE Act was appropriate because the pirate radio operators operated their pirate radio station for over a decade – even after many prior FCC actions including repeated warning (including personal warnings by FCC agents), previous fines that were ignored, and equipment seizure by US Marshalls.  Despite all these actions, the pirate continue to operate, even promoting their operations on a website and through social media. 
  • In the second case, also an Order following up on a March Notice of Apparent Liability (which we also wrote about here), the FCC imposed an $80,000 fine on the operator of an Oregon pirate station.  This pirate also failed to respond to the FCC’s March Notice of the proposed fine.  In the Oregon case, the pirate kept operating despite repeated warnings from the FCC and twice having his equipment seized by the Federal government.  The pirate apparently ceased operations only when his landowner was threatened by the FCC with a fine (under the PIRATE Act, landowners can be fined for allowing pirates to operate from their land).
• Last week, the FTC held a roundtable discussion on the creative economy and generative artificial intelligence (“AI”).  The event featured remarks from FTC Chair Lina Khan, FTC Commissioner Rebecca Kelly Slaughter, and FTC Commissioner Alvaro Bedoya – which was followed by a discussion with stakeholders representing creative media organizations.  Each witness expressed concern about how AI could affect their industry by appropriating their work to create new content that the original artists are not compensated for and did not consent to.  More information, including transcripts and video of the proceeding, are available on the FTC website here.
  • The potential harms of generative AI was also addressed by Congress this week through the introduction of a bipartisan bill, which seeks to protect actors, musicians, and other performers’ likenesses from unauthorized replicas that are generated using AI.  Specifically, under the bill, known as the Nurture Originals, Foster Art, and Keep Entertainment Safe (NO FAKES) Act, individuals and companies would be held liable for producing unauthorized replicas of individuals’ performances generated using AI.  The bill, however, exempts from liability certain AI replicas: (1) used as part of a news, public affairs, or sports broadcast or report; (2) used as part of a documentary, docudrama, or historical or biographical work; (3) used as part of scholarship, satire, or parody; and (4) where the use of the AI replica is de minimis or incidental. 
• The FCC’s Media Bureau proposed a $13,000 fine against the licensee of two TV translator stations for failing to timely file license applications for the translators and operating the stations without authorization after their construction permits had expired.  The translators’ licensee admitted that, due to a misunderstanding with its former consulting engineer, it failed to file license applications for the translators when their construction was completed, and it continued operating the translators after their construction permits had expired.  The FCC’s rules normally require a base fine of $3,000 for failing to timely file a license application, and a base fine of $10,000 for operating a station without proper authorization.  In this case, however, the Bureau reduced the proposed fine from $13,000 to $6,500 for each station because TV translator stations are secondary services.  Nevertheless, the Bureau noted that while other TV translators were previously fined only $3,500 for similar violations, a greater fine of $6,500 was warranted here because the translators engaged in unauthorized operations for far longer than in the previous cases.  Finally, the Bureau reinstated the translators’ construction permits (thereby enabling their license applications to be granted) based upon the Bureau’s practice of reinstating permits when a licensee has failed to timely file a license application for a station but clearly completed construction of the station before the station’s permit had expired.

While this week was light on regulatory activity at the FCC, the Commission is slated to consider a draft order next week at its October 19 Open Meeting.  If the order is adopted, the FCC’s audio description requirements would expand to commercial broadcast television stations affiliated with one of the top four television broadcast networks (i.e., ABC, CBS, Fox, and NBC) in Designated Market Areas (DMAs) 101 through 210 at a rate of 10 additional DMAs per year.  We’ll provide more information on that item next week.

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 re-nominations of FCC Commissioners Geoffrey Starks and Brendan Carr were approved by the Senate late the week before last (see Starks and Carr statements on Senate approval).  Starks’ term expired at the end of 2022, but Commissioners are allowed by the Communications Act to hold over for a year if no successor has been approved, so he could have served through the end of 2023.  Now that his renomination has been approved by the Senate, he can serve through 2027.  Carr’s term was to end this year, and he has now been approved to serve through 2028.  With the recent approval of the nomination of Anna Gomez to fill the long vacant fifth seat on the Commission, the FCC (barring the early departure of one of the Commissioners) will have its full complement of Commissioners at least through next year’s presidential election.  See our Broadcast Law Blog article here on some of the broadcast issues that the now full Commission may now tackle.
• The Nationwide Test of the EAS system was conducted on Wednesday, October 4.  Just before the test, the FCC and FEMA issued a News Release reminding the public about the test and reminding broadcasters planning news reports about the test to avoid using the EAS alert tones during their newscasts.  The use of the EAS tones outside actual tests is prohibited.  All licensees should have filed ETRS Form Two by the end of the day on October 5, reporting whether the test was received, and they must file Form Three by November 20 providing more information about the results of the test.  
• The FCC released its quarterly Broadcast Station Totals Press Release.  The release shows that, compared to the same release from a year ago, there are 38 fewer AM stations, and 7 fewer FM stations, but 55 more noncommercial FM stations. There were single digit increases in UHF television stations, while VHF stations decreased by a similar amount.
• The FCC’s Media Bureau continued to address proposed changes to the TV Table of Allotments.  Once the repacking of the TV band following the incentive auction was complete, the FCC in 2021 lifted the freeze that had been imposed on changes to the Table, allowing TV stations to propose channel changes for existing stations, and others to ask for allotments for new TV stations.  This week, the FCC’s Media Bureau took two such actions:
  • It issued a Report and Order substituting UHF channel 21 for VHF channel 7 at Knoxville, Tennessee, to address signal receptions suffered by the channel 7 licensee, continuing the move of TV stations from VHF to UHF channels which are superior for reception of digital signals. 
  • The Bureau also requested comment on a proposal submitted by the permittee of an unbuilt television station on channel 31 at Wittenberg, Wisconsin, to reallocate the channel to Shawano, Wisconsin, and modify the proponent’s  construction permit to specify Shawano as its community of license.  The FCC may modify a station’s community of license without affording other interested parties an opportunity to file competing expressions of interest, provided that the new allotment (1) will be mutually exclusive with the proposing station’s existing allotment; (2) will result in a preferential arrangement of the allotments according to the FCC’s television allotment priorities; and (3) will not deprive a community of its sole local transmission outlet.  As to criterion (3), the Wittenberg proponent argued that Wittenberg would not lose any existing service because its station has not commenced operations, and thus no viewers have come to rely on the station for television service.  The Wittenberg proponent also contends that providing Shawano (a community nine times larger than Wittenberg) with its first local television service is the type of “rare circumstance” which justifies a waiver of the general prohibition on the removal of a community’s sole first local service. 
• In re-evaluating three mutually exclusive applications from the 2021 window for new NCE FM stations, , the Media Bureau dismissed the application that had previously been preferred for a construction permit at St. Michaels, Arizona because of that applicant’s failure to comply with the FCC’s “signature rule,” and sent the remaining two applications to the full Commission to conduct a second comparison under its points system analysis. Under the “signature rule,” an application filed by a corporation must be signed by an officer or director.  The signatory to the dismissed applicant’s application was its general manager, who was neither an officer nor a director of the company.  The Bureau ruled that the FCC’s rules did not permit the dismissed applicant to cure this defect by amending its application.