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

• The FCC announced that CDBS, the database where all broadcast applications were filed before most migrated to the newer LMS database, would stop accepting new applications as of last Wednesday, January 12. CDBS was, until being shut down for new filings, still being used for STAs, address changes, and a number of AM applications.  These submissions not yet migrated to LMS will now be filed through emails to the FCC (Public Notice).  For more information, see our article here.
• A California low power FM station received a Notice of Violation for not monitoring the sources it was assigned to monitor in the State EAS plan. The Enforcement Bureau’s review of the station’s EAS log showed that the station was not monitoring the two EAS sources designated for it in the State EAS Plan but was instead monitoring only an optional monitoring point.  No financial penalty was proposed, but the station must submit a response explaining its violations, with a timeline for coming into compliance.  (Notice of Violation).  This is a good reminder to make sure that your stations are monitoring the sources assigned in your state plan.  The decision also emphasizes that LPFM stations are part of the EAS system and must monitor assigned stations for emergency alerts and pass through such alerts when they are received.
• A consent decree released this week is a good reminder that, even though the radio license renewal cycle is winding down, FCC staff are still reviewing pending applications and stations’ online public files for completeness. Make sure your online public file holds all of the necessary documents and that those documents are uploaded on time.  (Consent Decree)
• Now that the repacking of the TV spectrum has been completed and changes to the TV Table of Allotments are permitted, the FCC this week asked for comments on several proposals for existing stations operating on VHF channels to move to UHF (Portland, OR; Henderson, NV; Monroe, LA; Albany, NY), and a proposal for a new TV channel allocation to be reserved for noncommercial operations (Ft. Bragg, CA).
• The FCC’s Audio Division fined an FM translator operator for not filing a license application when it completed construction and for operating the new translator after its construction permit expired. (Order and Notice of Apparent Liability)  This is another reminder that, when a broadcaster completes construction of any new facility, it must file a license application so that the FCC can confirm that the station was constructed as authorized.
• The US Senate confirmed Alan Davidson to be head of the National Telecommunications and Information Administration (NTIA). Davidson will be in charge of billions of dollars designated for broadband infrastructure investment and will work closely with the FCC on broadband and spectrum policy.  Read FCC Chairwoman Rosenworcel’s congratulatory statement, here.  In other confirmation news, now that President Biden has re-nominated Gigi Sohn to be an FCC Commissioner, watch for the Senate Commerce Committee to further consider her nomination in the next few weeks.

In Case You Missed It: We published our 2022 calendar of important dates for broadcasters.  In addition to outlining the political windows for the year, it highlights many of the most important dates for broadcasters in the coming year – including dates for license renewals, EEO Public Inspection File Reports, Quarterly Issues Programs lists, children’s television obligations, annual fee obligations, political windows, and much more.  (2022 Broadcasters’ Calendar)

2022 has begun – and we are all wondering what will lie ahead in the New Year.  Each year, at about this time, we put together a look at highlights of the regulatory dates ahead for broadcasters.  This year is no different – and we offer for your review our Broadcaster’s Regulatory Calendar for 2022.  While this calendar should not be viewed as an exhaustive list of every regulatory date that your station will face, it highlights many of the most important dates for broadcasters in the coming year – including dates for license renewals, EEO Public Inspection File Reports, Quarterly Issues Programs lists, children’s television obligations, annual fee obligations and much more.

2022 will likely be a big election year, with all of the US House of Representatives seats and a third of those in the US Senate being contested, as well as many governor’s seats as well as state and local elections.   Our calendar provides the lowest unit charge periods for the primaries and general election as they were available to us last month when this calendar was prepared.  But check locally as these dates can change – and there can be additional local and special elections which are not included here.  See our article here on how the other political broadcasting rules apply to state and local elections, and our article here on what you should be doing to prepare for these elections.

Certainly, as the year progresses, there will be plenty more dates to note.  We have already seen some big news in the first weeks of the year, as the Radio Music License Committee and performing rights organization Global Music Rights, have reached a settlement of their long-running litigation, to which broadcasters must opt in by January 31.  The FCC has also announced likely changes (though minor ones) to its political broadcasting rules, and closed as of yesterday its old database, CDBS, that had been used for many years for the filing of broadcast applications.  Follow our blog where we weekly post a summary of the prior week’s regulatory actions relevant to broadcasters and a look ahead prior to the start of each month at the regulatory dates in the coming month, read other newsletters and trade publications, and consult your own attorney to stay on top of the regulatory obligations that apply to your stations.  We hope that this 2022 Broadcasters Regulatory Calendar will give you a good start on spotting some of the important dates that may be ahead and affect your operations.

Since the 1990s, the FCC’s Consolidated Database System (CDBS) has been used for filing broadcast applications.  In recent years, though, much of the filing activity has been migrated to the FCC’s Licensing and Management System (LMS).  While in some ways not as user-friendly as CDBS, LMS apparently has some advantages in, among other things, its searchability.  Given the migration that has already occurred for most FM and TV technical applications, ownership reports, and assignment and transfer applications, CDBS had few continuing uses.  Thus, the FCC yesterday announced that it is ending the filing of new applications in the CDBS system at the end of the day today, January 12, 2022, at 5 PM Eastern Time.  All filings that were still being made in CDBS and that cannot be submitted via LMS are now to be made by email to an email address set out in the FCC’s Public Notice: audiofilings@fcc.gov.

What is left that is not filed in LMS?  Filings that, until 5 PM ET today were made in CDBS, include the following:

• AM Application for Construction Permit for Commercial Broadcast Station on Form 301
• AM Application for Construction Permit for Reserved Channel Noncommercial Educational Broadcast Station on Form 340
• AM Applications for Broadcast Station License on Form 302
• Special Temporary Authority (STA) Engineering Requests and Extension of Engineering STA Requests for all audio service stations
• Silent STA / Notification of Suspension/ Resumption of Operations / Extension of Silent STA Requests for all audio service stations
• Change in official mailing address
• AM Digital Notification on Form 335-AM
• All-Digital AM Notification on Form 335-AM
• FM Digital Notification on Form 335-FM
• Amendments to pending applications previously submitted in CDBS
• Pleadings (Petitions to Deny, Informal Objections, Oppositions, Replies, Supplements, Petitions for Reconsideration and Applications for Review) concerning applications submitted through CDBS or using the email procedures that had previously been instituted for some of the above-listed applications in recent years.

In connection with the last bullet, the FCC noted that some parties had been filing pleadings related to applications filed in CDBS in LMS (which usually contains a reference to the CDBS-filed application).  The FCC asks that pleadings filed in connection with applications submitted through CDBS be filed with the email system described above, and not through LMS.  Pleadings concerning LMS-submitted applications should, of course, be filed in LMS.

The FCC staff will be entering all documents filed by email into CDBS, where they will be available for public review.  And the emailed documents will continue to show up on FCC public notices.  But broadcasters and their counsel and other advisors will no longer be able to file these documents in CDBS themselves.

So, along with the recent notice that Blackberry devices will no longer be supported, another landmark of electronic communications from the early years of the century is coming to an end at the end of the day today.  CDBS will be there to look for historical data and for the FCC-uploaded new information about the applications that had been submitted on that platform, but it will be one less filing system that you will have to worry about yourself as of 5 PM ET today.

The FCC, at its January 27 monthly open meeting, will be voting on the adoption of two relatively minor changes to its political broadcasting rules.  While some press reports suggested that the changes would expand the FCC’s jurisdiction into online political advertising, in fact the draft of the FCC’s Report and Order released last week shows that the two rules at issue deal exclusively with over-the-air political advertising.  Moreover, as we wrote here when the proposals were first advanced for public comment, the changes to be adopted are almost ministerial clean-ups of FCC rules, having little substantive effect on the current political sales practices of most broadcasters.

These two rule changes are likely to be adopted at the end of the month by a 4-member FCC that is still evenly divided between Democrats and Republicans.  The first one deals with the showing that needs to be made by a write-in candidate to show that the candidate is “legally qualified” and thus entitled to take advantage of the FCC’s political broadcasting rules. The second change would conform the FCC’s rules to the already existing statutory provisions that require broadcasters to include, in their online public files, information about the sale of advertising time to non-candidate buyers who convey a message on a matter of national importance, i.e., a federal issue ad.

The first change, if adopted on January 27, will add to the factors a broadcaster is required to consider when determining if a write-in candidate has satisfied his/her obligation to make a “substantial showing” of a bona fide campaign for office so that they can be considered a “legally qualified candidate.”  Legally qualified candidates, even write-ins who have made this substantial showing, are entitled to all the protections of the Commission’s political rules, including equal opportunities, lowest unit rates and, for candidates for federal office, reasonable access to buy advertising time on commercial broadcast stations.  A substantial showing is required to demonstrate that the write-in candidate is conducting a serious campaign for office, thus entitling them to the protections of the political rules.  Just saying that you are a write-in candidate is not enough to qualify for protections under the FCC rules – a substantial showing is also required (see our article here).  The facts set forth in that showing determine how serious the campaign is.

Under the current rules, the FCC lists factors a station can look at to determine if a substantial showing has been made.  These include whether the candidate is actively campaigning by making speeches and hosting rallies, if they are passing out literature and putting up yard signs, and whether they have a campaign headquarters.  The new rules would add social media activity and a campaign website to the factors to be considered.  The FCC would not regulate candidate use of social media or websites, but instead simply require that broadcasters take into account any social media or website presence in assessing if a purported candidate should be considered “legally qualified” for purposes of the FCC’s political rules that apply to broadcast political ads (and to cable).  The FCC is simply recognizing that online media is an important factor in determining if a candidate is a serious candidate who should receive the benefit of FCC protections, so it should be considered in deciding if the candidate is legally qualified.  But, as the FCC’s list of activities in its rules is illustrative and not exhaustive, and since online activities already are indicative of how serious a candidate is, stations were likely already reviewing these activities when assessing substantial showings.  The FCC’s change would just make clear that these factors should be considered by specifically requiring it in the rules.

The draft Report and Order would make a few helpful clarifications.  First, the draft notes that these online activities do not, in and of themselves, constitute a “substantial showing.”  In other words, to be considered a legally qualified candidate, the campaign could not be totally virtual.  Some real-world activity is necessary for a write-in candidate to be considered legally qualified.  Also, the draft decision makes clear that the write-in candidate has the burden to demonstrate that they should be considered legally qualified, and that the broadcaster’s good faith evaluation of whether the candidate has made an adequate showing is entitled to deference by the FCC if ever challenged by a purported write-in candidate.

The second change would update the political file recordkeeping rules to require that stations upload to their political files any request for advertising time that “communicates a message relating to any political matter of national importance” (i.e., federal issue ads).  This requirement was imposed by the Bipartisan Campaign Reform Act 20 years ago but was never formally carried over into the FCC rules.   The FCC has enforced these requirements, as evidenced by recent FCC actions issuing admonitions to TV stations for perceived violations of these public file requirements. See our article here on the FCC’s admonitions, our articles here and here on some of the follow-on controversy, and our article here about the FCC’s limited reconsideration decision.  So formally adding these obligations to the rules just reiterates what is already required of broadcasters dealing with federal issue ads.

Thus, the changes to the rules that are likely to be adopted at the FCC’s January 27 meeting do not dramatically affect the existing political broadcasting practices of broadcasters.  But they do highlight the importance of these rules – and the details that must be observed.  So, with an incredibly active political season ahead of us in 2022, be sure that you are on top of all of the requirements and that you discuss these matters with counsel as they arise.  See our article that we published late last year for some of the political broadcasting issues you should be reviewing now to make sure that you are ready for the 2022 political season.

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

• The FCC this week announced that it will vote on two items of interest to broadcasters at its next Open Meeting on January 27.
  • The FCC will likely make two minor changes to its political broadcasting rules.
    • The first will add use of social media and creation of a campaign website to the factors to consider when determining if a write-in candidate has made a “substantial showing” of a bona fide campaign for office so that the candidate can be considered a “legally qualified candidate.” Legally qualified candidates are entitled to all the protections of the FCC’s political rules, including equal opportunities, lowest unit rates and, for federal candidates, reasonable access to buy advertising time on commercial broadcast stations.  In the current rules, the factors that a broadcaster is to consider in assessing if a substantial showing has been made are matters including whether the candidate is actively campaigning by making speeches and hosting rallies, if they are passing out literature and putting up yard signs, and whether they have a campaign headquarters.  Digital media activity will now be considered – though the FCC is poised to say that websites and social media will never, alone, be sufficient to show that a write-in candidate is legally qualified.
    • The same order will also update the FCC’s rules on the political file to require that stations upload to their online political file information about any request to buy federal issue advertising. Stations already are required to upload this information, as it’s mandated by the Communications Act, but the FCC rules were never updated to reflect this 20-year-old statutory requirement.  The FCC will not be making any substantive changes to the requirements, but instead will only be updating its rules to spell out what is already required by the Act.
    • The FCC’s Draft Report and Order spells out the proposed changes to be considered at the January 27 meeting. We wrote about both proposed changes when they were first announced, here.
  • The FCC plans changes to how white space devices that operate in unused portions of the TV band would receive operational information from white space databases about the use of wireless microphones in the areas where the devices operate.  The new rules would require that the devices check the databases at least once per hour, replacing a current rule that has not been enforced which requires the databases to push information about wireless microphone use whenever there is new microphone use in the area.  The FCC believes this will better protect wireless microphones (used for newsgathering and other unplanned purposes) as push notifications might not be received by all the white spaces devices (and verifying receipt of such notices might not be technically feasible).  (Draft Second Order on Reconsideration)
• Performing rights organization Global Music Rights and the Radio Music License Committee (RMLC) announced a confidential settlement this week in their long-running dispute over the royalties that GMR can charge commercial radio stations. (Letter to Radio Broadcasters). The terms of the settlement have not been disclosed, but commercial stations represented by RMLC should have received a proposed license agreement to review. The settlement depends on enough stations agreeing to the terms of the license agreement by January 31, so don’t delay checking with your station’s counsel and advisors to see if signing the agreement makes sense for your operation.  We wrote at length about the settlement, here.
• The FCC reported that there were about 100 fewer broadcast stations licensed at year-end 2021 than there were at the end of 2020. Decreases were seen mostly in the number of AM, commercial FM and low power FM stations.  (Station Totals as of December 31, 2021)

A conditional settlement of the long-running litigation between Global Music Rights (GMR), a relatively new performing rights organization formed to license the public performance rights to certain musical works, and the Radio Music License Committee (RMLC) was announced this week.  The terms of the agreement are confidential, so we can’t comment on the specifics of the deal.  But each commercial radio station represented by RMLC should have received a proposed license agreement from GMR.  The settlement will only be effective if an undisclosed number of radio broadcasters agree to the terms of the agreement by January 31, 2022.  For stations that do not agree by that date, or if not enough stations opt into the agreement causing the settlement to fail, the press release about the agreement says that GMR has made no commitment to extend the current interim license (about which we wrote here) beyond its current expiration date of March 31, 2022.  Thus, stations would need to otherwise negotiate an agreement with GMR, pull GMR music from their stations, or risk a lawsuit for playing the music without permission.  If your commercial radio station did not receive a communication from GMR in the last few days, and if you play any GMR music and you are not covered by an independently negotiated agreement, you should discuss with counsel whether you should reach out to GMR to see why you were not offered a license.  Similarly, if not all your stations were included in the offer you received, discuss with counsel whether to communicate with GMR.

While we cannot comment on the specifics of the deal because it remains confidential, there are some observations that can be made based on the public statement released by RMLC and GMR.  One of the first questions is why the settlement is conditioned on enough stations agreeing to it by January 31.  First, it is important to note that the agreement by RMLC to any royalty with any music rights organization does not bind all commercial broadcasters, or even RMLC’s members, to accept the deals that it has negotiated.  See, for instance, the agreements in the last few years with ASCAP, BMI and SESAC, all of which required broadcasters who wanted to be covered by the negotiated agreement to opt in by a date certain.  While a wide cross-section of broadcast companies is represented on the Board of RMLC which approved this agreement, the Board members do not bind their companies or the rest of the radio industry to accept the terms that were negotiated.

Instead, commercial broadcasters who are represented by RMLC have the opportunity by January 31 to opt into this deal.  If they do not agree to the deal, they must otherwise attempt to reach their own agreement with GMR (or pull all GMR music from their stations or attempt to litigate with GMR over issues such as those that RMLC raised in its still-pending lawsuit).  Presumably, GMR has made the calculation that, if too many broadcasters opt out and it is forced to negotiate or litigate with too many declining stations, the savings in time and legal fees that it hoped to achieve by this settlement would not be realized.  In that case, it appears that the calculation is that GMR might as well continue the litigation with RMLC.  Thus, the importance of stations observing the January 31 date is clear. Each station group must decide for itself as to whether the agreement makes sense for them.

In addition to the litigation savings that RMLC would achieve from the settlement, the agreement’s biggest plus is that it would bring certainty to the industry.  While the length of the agreement is not specified in the public statements, it is characterized as “long-term.”  Right now, the commercial radio industry is operating under the shadow of unknown rates and potential liability for the playing of GMR-licensed songs that could reach back several years.  Because of COVID, the litigation has been stalled.  If the settlement does not occur and litigation continues, even were the trial to occur this year, appeals of any decision could stretch on for many more years.  The settlement agreement would likely quantify the amounts due to GMR and, for the period of the agreement, would end the uncertainty over the potential liability that broadcasters face.

The proposed settlement agreement also seems to recognize that an industry-wide approach makes sense and is best for all parties. One of the issues that GMR raised in its countersuit against RMLC (see our article here), was that RMLC was a buyer’s cartel that should not be negotiating on behalf of independent broadcasters.  RMLC has served this role with respect to ASCAP, BMI and SESAC (a role not questioned by the Courts or Department of Justice, which oversee the antitrust consent decrees that govern ASCAP and BMI), and this agreement seems to tacitly endorse that role for RMLC in GMR negotiations as well.

The public statements about the agreement do not indicate any conclusion on what seemed to be RMLC’s biggest goal in the litigation – i.e., having some oversight of the rates set by GMR.  ASCAP and BMI rates are overseen by US District Courts as part of long-standing antitrust consent decrees (see some of our many articles on those decrees, here and here).  SESAC rates are subject to review by an arbitration panel, following the settlement of a lawsuit that RMLC brought against that organization (see our article on the SESAC settlement here, and on the results of the first arbitration here – and a recent SESAC settlement here).  No such mechanism has been announced as part of this proposed settlement.

One other important note – on which I have already received questions.  These rates apply only to commercial broadcast stations.  Rates for all of the performing rights organizations for musical compositions used in noncommercial over-the-air broadcasting are governed by the Copyright Royalty Board.  We wrote about the last CRB decision on those rates here.  The CRB is currently in the process of setting those rates for ASCAP, BMI, SESAC and GMR for the period 2023-2027.  Settlement agreements have been submitted to the CRB for consideration which should resolve the case – and final rates for all PROs, including GMR, for over-the-air noncommercial broadcasting should be set soon.

Commercial broadcasters need to read the GMR agreement, consult with their attorneys and advisors, and decide what they want to do with respect to this proposed settlement.  Remember, this decision should be made by January 31 – and if your group agrees to the deal, the signed agreement should be returned to GMR by that date.

As 2021 wound down, there were significant developments on SoundExchange royalties for webcasters – including broadcasters who simulcast their on-air programming through IP channels (such as on their websites and on mobile apps).  While we covered many of these matters in our weekly Sunday updates on regulatory matters of importance to broadcasters, we thought that it would be worth summarizing all of the action in one place.  Most, but not all, of these developments follow from last year’s  Copyright Royalty Board decision  raising webcasting rates for 2021-2025 (see our article here summarizing that decision).

The CRB’s decision was published in the Federal Register in October 2021.  As of that date, all webcasters, if they had not already been doing so, should be paying the higher royalties ($.0021 per song per listener in 2021 for nonsubscription streams).    SoundExchange has appealed the CRB’s decision (presumably to argue the rates should have been set even higher), as have the NAB and the National Religious Broadcasters Noncommercial Music License Committee.  These appeals are pending and likely will be briefed and argued sometime in 2022.  If you have not trued up your payments (the increase in royalties was retroactive to January 1, 2021), consult your legal advisor as to the effect that these appeals may have on your responsibility for that true-up.

Even though the appeals are pending and could eventually be changed by a Court decision, the rates are effective now, as are all other terms.  One issue became immediately apparent, as the rates contained a provision providing for cost-of-living increases during the 5-year term that they are in effect.  Once  inflation  hit all areas of the economy, that cost-of-living increase was immediately triggered, and the CRB announced that rates for nonsubscription streams in 2022 would increase from $.0021 to $.0022 as of January 1, 2022 (rates for subscription streams increased to $.0028).  When you pay your royalties for January (45 days after the end of the month), they should be at the new, higher, rate.

Also going into effect this year is an increase in the minimum fees that are due by January 31, 2022.  Instead of the $500 per stream fee that most webcasters are familiar with from past years, the CRB decision raised the minimum fee for most webcasters to $1000 per stream.  Remember to make that higher payment by January 31.  Note that educational webcasters affiliated with a school may qualify for different rates that phase in the increase – starting with a $600 minimum fee this year.  Also, stations affiliated with NPR or receiving CPB funding may qualify to be included in a separate arrangement between SoundExchange and these organizations where CPB, through an annual payment to SoundExchange, covers the royalties.  Check with NPR or CPB for details.

Remember, SoundExchange is watching the payment of these royalties.  Each year, SoundExchange decides to audit certain webcasters and the payments that they have made.  When it decides to audit a webcaster, it must give notice to the CRB, which publishes that notice in the Federal Register (though the results of the audit are not made public).  This year, the CRB announced in a Federal Register publication that SoundExchange will audit broadcasters Audacy and Midwest Communications.  See our article here on IP audits and considerations to keep in mind if you are selected for such an audit.

The CRB itself has had a change in the final months of the year.  The CRB’s Chief Judge when last year’s decision was released, Jesse Feder, has stepped down and was replaced on an interim basis by Suzanne Barnett, who was Feder’s predecessor in the Chief Judge role until her retirement in 2019.  Expect to see more changes in this position as the year progresses.

Obviously, there was plenty of action on SoundExchange webcasting royalties for 2022.  Watch to see how these actions play out and watch for other music royalty issues that are also sure to come this new year (including possible resolution of broadcasters’ long-running disputes with GMR – see our article here).

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

• The FCC released the results of the August 11 Nationwide EAS Test, finding that, compared to the 2019 test (the 2020 test was cancelled due to the pandemic), this year’s test message reached more EAS participants (89.3% in 2021 vs. 82.5% in 2019) and it was retransmitted successfully more than it was two years ago (1% in 2021 vs. 79.8% in 2019).  However, the FCC received reports on the test from only 75.3% of participants, down from 78.6% in 2019.  79.9% of radio broadcasters filed their reports, and only 67.9% of TV stations – with LPFM and LPTV stations representing many of the non-reporting stations.  The FCC noted that ensuring, for future tests, increased compliance with the mandatory reporting requirement will be a priority. (Nationwide EAS Test Report).
• The date for filing comments on the FCC’s proposal to change the rules for proofing of FM directional antennas was pushed back. Comments are now due by January 20, with reply comments due by February 4.  This proceeding seeks comments on proposals to allow the patterns for directional FM antennas to be verified by computer modeling as opposed to real-world testing.  (Public Notice)
• Senators Roy Blunt and Ron Wyden introduced the Low Power Protection Act, a bill to open a new window during which LPTV stations that originate at least 3 hours of local programming could qualify for Class A status, meaning that they would be protected from being bumped off their channels by future applications by full-power stations (and these stations would have to be protected if the spectrum allocated to TV was further reduced at some future time, as it was as a result of the Incentive Auction). The bill, as proposed, would only allow new Class A stations in DMAs with 95,000 television households or fewer – approximately DMA 175 and below.  (Press Release)   The bill has not been introduced in the House of Representatives, and will need substantial Congressional consideration before becoming law.
• The licensee of several Kansas radio stations entered into a consent decree with the Media Bureau because a number of its stations were silent for long periods of time without receiving special temporary authority from the FCC. The FCC requires Commission notification if a station is silent for 10 days, and an STA must be requested when a station is silent for 30 days.  The licensee will pay a $7000 fine and the stations will receive a 1-year license renewal term, instead of the typical 8-year term.  (Order and Consent Decree).
  • In another decision released last week, the FCC proposed to fine another broadcaster $17,500 for not timely requesting an STA when its AM and associated FM translator went silent, plus its failure to amend its pending license renewal application to report that the stations were silent for several months while the renewal was pending – even though the renewal specifically asks if the station whose renewal is sought is silent. The licensee had also failed to complete and timely upload multiple Quarterly Issues Programs lists to its public file (Order and Notice of Apparent Liability)
• The Media Bureau entered into a consent decree with a radio licensee requiring a $5000 fine because of several violations, including the licensee’s failure to maintain station logs, its failure to upload (or timely upload) certain documents to its online public file, and because its FM translator stayed on the air for extensive periods of time when its primary AM station was not operating, a violation of the rules that prohibit translators from operating when their primary stations are not operating during their authorized hours. This is a reminder to pay close attention to your operations and be sure that you are complying with all applicable FCC rules.  (Order and Consent Decree)
• The FCC proposed to delete 7 vacant FM channels that were included in the last two FM auctions but received no bids in either auction. The channels proposed for deletion are ones in Snowflake, AZ; Millerton, OK; Powers, OR; Mount Enterprise, TX; Paint Rock, TX; Hardwick, VT; and Meeteetse, WY.  Comments on the proposed deletions are due February 14, with reply comments due March 1.  If no party expresses an interest in operating a station on these channels, or files a counterproposal to move the channels elsewhere, they will be deleted.  (Notice of Proposed Rulemaking)
• The FCC cancelled Auction 111 after the only mutually exclusive applicants entered into a settlement agreement. The auction was to be a closed auction of LPTV and TV translator construction permits for applicants who submitted mutually exclusive applications either during a 2009 filing window for new LPTV stations or in a 2018 window for stations displaced by the Incentive Auction.  With no mutually exclusive applications to be resolved by competitive bidding, there is no longer a need for an auction.  (Public Notice)
• The FCC announced its annual calculation of the increase to account for inflation in fines whose amounts are set by the Communications Act. The announced increases include fines for broadcast indecency.  For 2022, indecency fines can be as high as $445,445 for each violation or for each day of a continuing violation, except that the amount assessed for any continuing violation shall not exceed a total of $4,111,796. (FCC Order)

For a summary of the some of the important regulatory dates in January and early February, review our monthly feature on our Blog that looks at dates and deadlines for month ahead.  (Broadcast Law Blog)

As the holiday season comes to an end and 2022 comes into focus, broadcasters have several dates and deadlines to keep up with in January and early February.  We have noted below some of the important dates you should be tracking.  However, as always, stay in touch with your station’s lawyers and other regulatory advisors for the dates applicable to your operations.  We wish you a happy, healthy, and successful New Year – and remembering to track important regulatory dates will help you  achieve those ends.

Let’s start with some of the annual dates that always fall in January.  By January 10, full-power radio, TV, and Class A licensees should have their quarterly issues/programs lists uploaded to their online public file.  The lists are meant to identify the issues of importance to the station’s community and the programs that the station broadcast in October, November, and December that addressed those issues.  Prepare the lists 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 community.  See our post here for more on this obligation.

Class A licensees must upload to their public file by January 10 documentation of their continuing Class A eligibility for October-December 2021.  For noncommercial educational stations not affiliated with the Corporation for Public Broadcasting, if your station conducted on-air fundraising for third parties during the last three months of 2021 that interrupted normal programming, documentation of those efforts must also be uploaded to the public file.  See our article here on that obligation.

An annual obligation for television stations is to prepare and file their annual Children’s Television Programming Report (Form 2100, Schedule H – formerly Form 398).  Also due is a certification of compliance with commercial limits in children’s programming.  Schedule H would normally be due to be filed at the FCC on January 30 but, as that date falls on a Sunday in 2022, the FCC filing deadline this year is January 31, the next business day.  Records documenting compliance with the limits on the number of commercial minutes that stations can allow in children’s programming are also due to be uploaded to each full-power and Class A TV station’s public file by January 31—another January 30 deadline pushed to the next business day.  As a reminder, the quarterly filing requirements were replaced with annual filings as part of the 2019 KidVid rule changes (we summarized those changes, here).

An important deadline also falls this month for LPTV stations and TV translators.  Analog TV translators and digital LPTV construction permit holders whose CPs have expiration dates that have expired that received a six-month extension of the July 13, 2021 digital transition (or construction) deadline must be operating digitally by January 13, 2022 or by an earlier January date specified on the station’s extension authorization.  While in a few cases, the FCC is granting requests to toll that deadline, very specific showings as to why construction was delayed for reasons beyond the control of the broadcaster need to be made or the authorizations of stations not operating digitally by the January 13 deadline will be cancelled.

Also important for some TV stations, specifically those in DMAs 71-80 affiliated with one of the top four TV networks, is the requirement to comply with the FCC’s audio description rules beginning January 1, 2022. The audio description (formerly known as video description) rules make video programming more accessible to blind or visually impaired persons by requiring the use of an audio subchannel to provide descriptions of the visual action in a TV program that is occurring on screen. The affected DMAs are Omaha; Wichita-Hutchinson; Springfield, MO; Charleston-Huntington; Columbia, SC; Rochester, NY; Flint-Saginaw-Bay City; Huntsville-Decatur; Portland-Auburn; and Toledo.  See the FCC’s recent Public Notice for more information on this deadline.

For radio, January 1 brings new higher rates for all digital streaming, including simulcasting, as a cost-of-living increase in the increased SoundExchange royalties as recently announced by the Copyright Royalty Board (though payments are not due for January streaming until 45 days after the end of the month).  But most webcasters do need to pay their minimum annual fees by January 31 (now $1000 per stream for commercial and noncommercial streams not affiliated with a school or CPB).  Noncommercial educational webcasters (affiliated with a school or college), not covered by deals with NPR and CPB, must make elections about recordkeeping requirements that will apply to their stations by January 31.

Another deadline for noncommercial radio operators is for applicants in the recent reserved band FM filing window whose applications were found to be technically deficient.  These applicants have until January 7 to correct those deficiencies and ask for reconsideration of their dismissal. Other applicants whose applications were found to be mutually exclusive (MX) with one or more other applications filed in the window have through January 28 to submit technical amendments or work with others in their MX group to enter into settlement agreements or otherwise resolve conflicts.  Applicants in an MX group that have not submitted a settlement agreement or technical amendment by the January 28 deadline will have their application undergo a comparative analysis to determine which of the mutually exclusive applications should be granted.  See the MX groups, here, and the Public Notice setting out the details of the settlement window and filing procedures, here.

In a rulemaking proceeding of interest to radio broadcasters, comments on the FCC’s proposal to change the rules for proofing of FM directional antennas were pushed back and are now due by January 20 with replies due by February 4.  This proceeding seeks comments on proposals to allow the patterns for directional antennas to be verified by computer modeling as opposed to real-world testing.  See the Federal Register publication of the Notice of Proposed Rulemaking, here.

On January 15, the 45-day “political window” is scheduled to open in Texas for the primary election to be held on March 1 (note that there is litigation over redistricting in Texas that could delay the primary date – which could also affect the opening of this window).  During that 45-day period, sales of broadcast time to candidates for “uses” must be made at lowest unit rates – the lowest rate given to any other advertiser for a purchase of the same class of time.  This is the first LUC window that is scheduled to open in what will likely be a very contentious 2022 election season.  For more on this requirement and other political broadcasting issues, see our political broadcasting guide, here.

The Copyright Office held a public roundtable on December 9 to discuss how to change copyright law to offer greater protections to publishers, particularly news publishers (see the transcript of the roundtable discussion, here, and our summary of the proceeding, here).  The Copyright Office is looking at whether there should be “ancillary copyright protections” to protect publishers from having the value of their content undermined by digital platforms.  These possible protections include limiting news aggregators in their use of the title or snippets of the content of publishers without consent, extended rights for publishers to protect “hot news,” and even some government-set royalties on the use of publisher’s content by digital sites.  The Copyright Office has already received written comments and will take second-round comments through January 5.  Information about the proceeding is available on the Copyright Office website, here.

Finally, the FCC Commissioners will hold their first regular monthly Open Meeting of 2022 on January 27.  Keep an eye on the FCC website during the first week of January to see what makes it to the agenda of that meeting.

Looking ahead to February, television and radio stations in several states must file applications for license renewal and file and upload EEO reports.  By February 1, TV stations in Kansas, Nebraska, and Oklahoma and radio stations in New York and New Jersey must file their license renewal applications through the FCC’s Licensing and Management System (LMS) on Form 2100, Schedule 303-S.  Stations filing for renewal of their license should spend the next few weeks reviewing the contents of their online public file and making sure that all required documents are complete and were uploaded on time.  Stations filing renewals (other than LPFMs) are also required to file a Broadcast EEO Program Report (FCC Form 2100, Schedule 396) that must include two years of EEO Public File reports for FCC review, unless your employment unit employs fewer than five full-time employees.  When you are working on your applications over the next few weeks, be sure to read the instructions for the license renewal application (radio, TV) and EEO Program Report and consult with counsel if you have questions.

Also on or before February 1, all radio and TV station employment units (a station employment unit is a station or stations that share at least one full-time employee, are in the same geographic area, and are under common control) with five or more full-time employees licensed to communities in Arkansas, Kansas, Louisiana, Nebraska, New Jersey, New York, and Oklahoma must upload to their online public inspection file an Annual EEO Public Inspection File report.  This report covers their hiring and employment outreach activities for February 1, 2021 through January 31, 2022.  These broadcast licensees must also post on the homepage of their station website (if they have one) a link to the most recent report.

Comments are due by February 11 on the FCC’s Second Further Notice of Proposed Rulemaking in the ATSC 3.0 (Next Gen TV) proceeding.  In that proceeding, the FCC proposes to allow Next Gen TV stations to include within their license certain of their multicast streams that are aired on “host” stations during a transitional period.  Under the FCC’s proposals, such multicast streams will be part of the originating station’s license, not that of the “host” station.  Reply comments will be due by March 14.  See the Federal Register notice, here.

Thanks for your readership throughout the year and be on the lookout for our 2022 Broadcasters’ Calendar that will be published on the blog in early 2022.

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

• Music licensing organization Global Music Rights (GMR) has agreed to a three-month extension of its current interim licensing agreement. GMR and the Radio Music License Committee (RMLC), which represents commercial radio broadcasters, have been in court for years arguing over whether GMR’s royalty rates should be subject to antitrust regulation.  According to the letter announcing the extension, it appears that GMR and RMLC are seriously discussing a settlement to resolve their litigation.  We wrote more about the litigation and this extension of the interim license on our Broadcast Law Blog, here.  See the joint RMLC-GMR letter announcing the extension, which contains a link to the form used to sign up for the extension, to be completed by December 29.
• The FCC announced that comments are due by February 11, 2022, with reply comments due by March 14, 2022, on an FCC proposal to allocate responsibility for multicast streams that are originated by one TV station and hosted by another during the ATSC 3.0 Next Gen television transition. Under the proposal, these multicast streams will be considered part of the license of the originating station, not the station that is hosting the channels.  The proposal would include not just the required ATSC 1.0 “lighthouse signals” originated by a station that has already converted to ATSC 3.0 but hosted by a station that has not converted, but also the program stream of an unconverted station hosted on a station that has converted to Next Gen TV.  (Public Notice)
• At its last Open Meeting of 2021, the FCC adopted a Notice of Proposed Rulemaking and Notice of Inquiry that seek ways to make the visual component of EAS alerts on TV stations more accessible to viewers who are deaf or hard of hearing. As proposed, the on-screen messages that accompany alerts would be made more uniform so that they are clearer and more descriptive.  Broadcasters would also be required to check for and use the Common Alerting Protocol (CAP) version of an EAS alert, if one is available, as these IP-based alerts have more robust visual information.  The Notice of Inquiry asks for ideas on how the legacy, over-the-air “daisy chain” EAS architecture can be redesigned to deliver better visual messaging.  Comment periods on the NPRM and NOI will be set after publication in the Federal Register.  (NPRM, NOI, and News Release)
• The FCC issued a $3,500 penalty to a licensee for failing to file a license application when it finished construction of a new FM translator. The license application tells the FCC that the station is on the air and operating and allows the FCC to confirm that it was constructed as approved by the new station’s construction permit.  By not filing the license application, the station was operating without authorization.  Work with your technical and legal advisors to be sure you are filing all of the required documentation when you put a new station on the air or modify a station already operating.  (Forfeiture Order)
• A North Dakota TV licensee filed must-carry complaints against two local MVPDs for their refusal to carry the licensee’s TV station. The MVPDs claimed that the station was unable to deliver a good quality signal, so the station was not entitled to must carry.  The FCC rejected the MVPDs’ arguments, finding that as the station had agreed to assume all costs necessary to provide a good quality signal to the system’s headend, the systems must carry the station.  (Order)
• Monday was the deadline to file for a place on the primary ballot for candidates for Texas elective offices to be decided in the November 2022 elections. While Texas’ primary, currently scheduled for March 1, is the earliest in the 2022 election cycle, other states will follow soon.  See our Broadcast Law Blog article here for more information on the political advertising issues that you should be considering now in preparation for the upcoming elections.
• The Senate Commerce Committee approved the nomination of Alan Davidson to be head of the National Telecommunications and Information Administration. NTIA oversees federal government spectrum policy.  Look for Senate leadership to try to get Davidson confirmed by the full Senate by the end of the year.

According to a joint letter posted on the Radio Music License Committee (RMLC) website, GMR and the RMLC are discussing  a settlement of their long-running litigation over the royalties that the commercial radio industry will pay for the public performance of music written by GMR composers.  We last wrote about GMR here when, earlier this year, they last extended their interim license offered to commercial radio stations, with a substantial increase in the amount that stations needed to pay to remain licensed during the litigation.  The joint letter says that the interim license will be extended for another 3 months while the parties work on this possible settlement.  Stations will not receive any direct notice about the need to extend their licenses from GMR.  Instead, stations are to go to the GMR website at https://globalmusicrights.com/interimextension to complete a form to remain licensed after the end of December.

As background, GMR is a new performing rights organization. Like ASCAP, BMI and SESAC, it represents songwriters and collects royalties from music users for the public performance of these songwriter’s compositions. GMR collects not only from radio stations, but from all music users – it has already reached out to business music services that provide the music played in retail stores, restaurants and other businesses, and no doubt has or will license other companies that make music available to the public. Most songwriters represented by GMR used to be represented by ASCAP or BMI, but these songwriters have withdrawn from ASCAP and BMI and joined GMR, allegedly to attempt to increase the amounts that they are paid for the use of the songs that they have written. For radio, these withdrawals became effective in January 2017, when the old license agreements between ASCAP and BMI and the commercial radio industry expired.  Since then, radio stations have been signing interim licenses to play GMR music.

The interim licenses have been signed because, over the last few years, GMR has been engaged in litigation with RMLC over whether GMR should be subject to any sort of antitrust regulation of the rates that it sets.  GMR has filed a countersuit over whether the RMLC itself violates the antitrust rules as a buyer’s cartel, by allegedly organizing all the buyers of GMR’s music to hold out for a specific price.  We wrote about that litigation here.  The possible settlement would apparently end this litigation.

What is a broadcaster to do about this further extension?  Obviously, consult your own attorney for advice.  Generally speaking, there is no authority to play the GMR music catalog other than through a license.  Right now, that license comes either through this interim license offered to all commercial stations, or through an individually negotiated license between the broadcaster and GMR. Commercial stations can either sign a license or stop playing GMR music. Pulling all GMR music would be difficult because GMR’s members include  core songwriters in most musical genres, whose songs are basically must-haves for a station to operate with most traditional formats.  For instance, GMR’s catalog includes songs written by members of the Eagles, Bruno Mars, Bruce Springsteen, John Lennon, Pharrell Williams and even George Gershwin.  Under copyright law, there are substantial “statutory damages” of up to $150,000 per song for any infringement, so even if one of GMR’s songs is in an ad or in some syndicated programming that plays on your station, your liability could be steep. GMR has already sued one station group for not paying royalties (see our article here).  It is watching what broadcasters do, so careful consideration of rights and liabilities must be made.

But the joint letter looks like good news, as it indicates that some final resolution of GMR royalties may soon be at hand.  Watch for news as to what those final royalties will be.

The deadline for 2022 candidates in Texas to file for a place on the March 1 primary ballot was this past Monday.  Deadlines in other states will follow during the first part of 2022.  As a result, broadcast stations and cable companies in Texas are already dealing with legally qualified candidates, and the FCC political rules that attach to those candidates.  Stations in other states will follow soon.  Even before these deadlines, stations are dealing with buys from potential candidates, PACs, and other third-party groups looking to establish positions for the important 2022 elections. Spending on political advertising is sure to increase as the new year rolls around, and some suggest that it could rival that spent in 2020. What should broadcast stations be thinking about now to get ready for the 2022 elections?

We have written about some of the issues that broadcasters should already be considering in our Political Broadcasting Guide (which we plan to update shortly). Obviously, one of the primary issues is lowest unit rates, which become effective 45 days before the primaries (or before any caucus which is open to members of the general public). In Texas, those rates will begin in mid-January for the March 1 primary, and lowest unit charge (“LUC”) windows will open in other states throughout the first part of 2022.  With these rate windows soon to be upon us, stations should begin the process of determining what rates will apply during the window, as stations are no doubt now writing packages with spots that will be running during the window.  In addition to our Political Broadcasting Guide, we wrote about other issues you should be considering in determining your lowest unit rates here.  These articles provide just an outline of issues to consider in determining the rates that will apply in the window, so start conversations now with your attorney and political advertising advisors to make sure that these rates are being determined accurately and in compliance with FCC rules and policies.

In addition to the question of rates for political ads, stations should be thinking about access for political candidates. Especially in the early primary and caucus states, where some races will include multiple candidates in contested primaries, spot availability may become tight in the weeks leading up to actual voting. But, as long as a candidate does not sit on his or her rights, equal opportunities require that candidates have a right to respond to their opponents in equal amounts of broadcast time, and reasonable access requires that you make available time to all Federal candidates in reasonable amounts. Stations thus should plan for inventory management, especially in the final weeks before any primary.  As well-funded candidates come to stations now to request big ad buys later in the political season, stations should consider whether they really want to sell those candidates all the time that they ask for – knowing that some of the less financially secure candidates may be delaying their buys until the last days before the primary. Reasonable access for federal candidates does not require that you provide a candidate with all the time that they request (see our article here). But equal opportunities will require that you air  spots from those late-arriving candidates.  Since you can’t avoid the potential impact of equal opportunities, make sure you have sufficient advertising inventory in reserve in the weeks leading up to the election to make room for commercials from these candidates, whose funding may not cover ads until late in the primary period.

There are issues to consider regarding free time for candidates. As we’ve written before, the FCC has determined that most interview programs where the content is under station control – even those that have little news value on a normal day – are deemed “news interview programs” and therefore are exempt from equal time rules if they routinely cover issues of public importance.  Bona fide news programming is also exempt from equal time. But in these days of media overload, candidates are looking for nontraditional means of exposure in broadcast programming. So use care if a candidate appears as a character on a scripted TV show, or walks into the announcing booth at a local football game asking to do the play by play for a few minutes, or (especially when dealing with state and local candidates, see our posts here and here) where the candidate is a host of a broadcast program.  Depending on how these situations are handled, all of these could give rise to equal opportunity claims.  Public service announcements (“PSAs”) are also a potential issue, as candidate appearances in PSAs will trigger equal opportunities rights – potentially requiring free time to opposing candidates (who would not be limited to giving a public service message).  See our article here for more details, and remember that these appearances outside the exempt news and news interview programs also trigger public file obligations.  Also remember that equal opportunities apply as soon as there are legally qualified candidates – even outside the 45-day lowest unit rate window – so stations should be ready to deal with these issues as candidates become qualified.

Another area where broadcasters need to pay attention is in connection with third party ads dealing with Federal issues.  Sometimes the ads are subtle digs at the positions that a potential candidate is taking (“call Congressman X and tell him that he should stop voting for bills that are bankrupting the country”), and sometimes they are more direct attacks on the potential candidate.  Sometimes they don’t directly address a particular politician at all, but are instead directed at an issue being debated in Congress.  In any case, if the ads deal  with Federal candidates or other issues being considered by the US House of Representatives or Senate, or with any other political issue of national importance even where the issue is not currently before Congress (e.g., the Supreme Court’s consideration of abortion, issues about claims of a stolen election, and similar matters), then they are Federal issue ads on which the station must maintain full online public file information, similar to that which is kept for any candidate advertising – the information must include the full schedule of advertising that is to be run, the class of time sold, the sponsor of the ad, and even the price that was paid for the spots (see our posts here, here, and here on the public file requirements for Federal issue ads).

We have also written, here, about issues concerning the content of these third-party ads, as stations can potentially have liability for defamatory content in those ads if the station knows or has reason to believe that the ads are in fact false. Theoretically, a station could be subject to liability once it has been put on notice of the falsity of the ad by a letter from a representative of the candidate being attacked, if the ad does contain defamatory content. Candidates who are attacked may be calling stations asking that ads from PACs and other non-candidate advertisers be pulled from the airwaves, and stations need to have plans in place to be ready to evaluate and deal with such claims. While third-party ads do not get lowest unit rates, these ads can be more problematic than candidate ads as they potentially force stations to be judges of the truth of the content of those ads. Candidate-sponsored ads, on the other hand, cannot be censored, so stations have no liability for their content.

These are but a few of the political advertising issues that broadcasters should be considering. Start thinking about the issues that will arise as we enter this political season, and check out our Political Broadcasting Guide and the guides prepared by the NAB and many other organizations representing broadcasters,  as you can never have enough perspective on these issues. These rules are complex, and many candidates are getting smarter about the how to use the rules to their advantage.  Be prepared and have your attorney on speed-dial as specific facts are important in evaluating each of these issues.  Get ready for the upcoming onslaught of political advertising!

An auction of construction permits for 27 new TV stations is scheduled to occur in June 2022, as we noted in one of our weekly updates on regulatory activities for broadcasters.  This auction will be the first auction of new TV channels in over a decade – and the first in over a decade and a half that includes UHF channels that are considered better suited for digital transmissions.  In the interim, freezes for the digital television transition and the incentive auction have put new applications on hold, with that freeze only thawing last year (see our article here).

But this window is not one that will likely excite most broadcasters, as the channels that are available are primarily in small markets, mostly in western states.  Following the DTV transition and the incentive auction, the TV band has shrunk in size, leaving little spectrum availability anywhere near major markets.  Only one channel in the eastern US is proposed to be auctioned –in Syracuse, New York – and that channel carries a proposed minimum bid of $1,000,000.  The other channels are all in smaller markets, with proposed minimum bids of $200,000, even though some of the channels proposed in these smaller markets are VHF (see the list of channels to be auctioned here).  With these high minimum bids, we wonder how many parties will be interested in these stations.  While some might be interested in a TV station to reach these rural areas, how many are willing to put up the substantial bid before even reaching the costs of building the station?  We noted a similar issue in the recent FM auction, where channels in seemingly attractive communities went unsold, seemingly because of the high minimum bid in the auction.  Comments on the proposed procedures for this TV auction are due today, December 13, with reply comments due on December 23.  We will see if any of the proposals are modified as a result of the comments that are submitted.

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

• FCC Chairwoman Jessica Rosenworcel was confirmed by the Senate to serve a new, five-year term. (Rosenworcel Statement)  She will continue to lead an agency split along partisan lines with two Commissioners from each party until a third Democratic Commissioner is confirmed.  Gigi Sohn, a public interest lawyer and former FCC senior staffer under Chairman Tom Wheeler, has been nominated for that third seat, but her nomination has faced resistance.  Her nomination is not scheduled to be considered at a December 15 Senate Commerce Committee meeting which will consider other nominations.  Further action on that nomination may be delayed until the New Year.
• The FCC’s Media Bureau denied a request by the NAB and two other industry groups to delay implementation of the FCC’s new sponsorship identification rules for programming financially supported by a foreign government entity. The industry groups wanted the FCC to let the court challenge the groups filed play out before allowing the rules to become effective. (Order) Even though the FCC denied this request, the rules are not yet effective as they are undergoing a Paperwork Reduction Act review.  Once effective, the new rules will require broadcast licensees to air specific disclosures for programming that is paid for by any foreign government-backed entity.  Licensees also will be required to take steps to determine if any buyer of block programming on their stations, including existing programmers who seek to renew their agreements, have ties to a foreign government entity.
• The FCC dismissed 75 technically defective applications filed in the recent window for new noncommercial educational FM stations. Some of the defects appear minor, while others are more significant.  These applicants have one opportunity to file an amendment that clears up the technical defect with a petition for reconsideration of dismissal.  The amendment can only propose a minor change and cannot create any new conflicts with other already-submitted applications.  The amendments and petitions must be filed by January 7, 2022.  (Public Notice) (Dismissed Applications List)
• A Las Vegas radio station faces a $20,000 fine for apparently transmitting EAS Tones during a block of leased time used by a local radio host, when no emergency or EAS test had occurred. This is a reminder that the FCC takes seriously any unauthorized use of EAS tones and will issue fines or take other enforcement actions against a station licensee, even if the violation occurred during a block of leased time. Part of this fine was for the broadcast of the programming containing the EAS tone on a multicast channel of an FM station, making clear that these channels are just as subject to FCC rules as are a station’s main channel.  (Notice of Apparent Liability for Forfeiture)

Looking ahead to next week, the FCC will hold its last regular monthly Open Meeting of the year.  The Commissioners are expected to vote to open a rulemaking to examine whether to require that a predetermined script be used for visual display of EAS messages, and to require that stations, whenever they receive an alert (including state and local alerts) from their legacy (over-the-air) EAS alerting system, check their IPAWS Internet-delivered CAP (Common Alerting Protocol) based system to see if additional visual information about the alert has been provided, as that IP-based system allows for alerts containing more visual information.  The FCC also asks for suggestions on how the current, legacy EAS can be updated to make those systems more robust in providing visual information. (Fact Sheet and Draft Notice of Proposed Rulemaking).  Tune it at https://www.fcc.gov/live at 10:30 am Eastern on December 14 to watch the meeting.

On December 2, 2021, the FCC held a forum on the accessibility of video programming delivered through online platforms (a recording of the event is available on the FCC website, here).  What is perhaps most notable about this forum is that it looked at whether the FCC could extend its authority over online platforms to include accessibility obligations which, thus far, have only been implicated when a broadcaster already subject to FCC accessibility obligations repurposes its programs for Internet use (see, for instance, the FCC’s significant fine imposed in a consent decree when Pluto TV, which is owned by Viacom CBS, rebroadcast certain content that had already been broadcast on television with captions).  One of the questions identified in the Public Notice announcing the Forum is whether the FCC has the authority to expand accessibility obligations to online platforms.

The seeming importance of the session could be seen from the introductory remarks by FCC Chairwoman Jessica Rosenworcel and Senator Ed Markey.  Senator Markey was one of the proponents of the Twenty First Century Communications and Video Accessibility Act of 2010 (CVAA).  In his remarks, he discussed the importance of taking the reforms that have been adopted for television programming and extending them to the Internet, given that so much video programming and viewership is now migrating to those platforms.

The CVAA imposed a host of requirements to make television video programming more accessible – leading to rules for audio captioning of video programming (see our article here on the latest review of those rules, and the January 1 expansion of the TV markets where these rules apply is noted in our article here) and captioning of television programming repurposed for Internet channels.  Using a TV station’s secondary audio channels (“SAP channels”) to convey emergency information conveyed visually during non-news programs (e.g. through crawls of emergency information carried during entertainment programs – see our article here) were also part of FCC rules adopted pursuant to the CVAA. See the FCC’s own summary of the CVAA here and our summary of a recent FCC inquiry into whether there is a need to update the rules here.

Following the opening remarks were two panels, one on technical and business issues with accessibility, and a second looking at the FCC’s role in setting rules for the accessibility of online programming.  The first panel included representatives of Google, Amazon Prime and Netflix, again demonstrating the expansive scope of the inquiry.

Of course, this is not the first time that the FCC has looked at whether its jurisdiction extends to internet services.  We wrote about their inquiry into whether streaming services should have EAS obligations, here.  And we also wrote about the question of whether streaming services could have liability for false EAS alerts.  The FCC has not taken any further action in either of these areas.  In various debates in Congress and elsewhere about the regulation of tech platforms, it is often the FCC that is looked to as the agency most likely to enforce any new regulation.  In fact, at the end of the last administration, the FCC was tasked with the responsibility of reviewing Section 230 of the Communications Decency Act to determine if the FCC could adopt rules limiting the insulation from liability for online platforms (see our article here).

At the forum, the focus was on the captioning of video programming.  An initial presentation from the FCC outlined the current rules.  The very thorough outline noted that most full-length video programming exported from broadcast TV to the Internet requires captioning to follow the programming to its online destination.  Captioning of video clips, by contrast, only requires that the captioning follow the programming to a site commonly controlled with the originator of the programming.  The presentation discussed whether that limitation on clips should be expanded so that captioning should follow the clip no matter where it ends up online, and whether current grace periods for captioning of live or near-live events should be eliminated or shortened.

The main event was probably the discussion of whether the FCC had jurisdiction to adopt accessibility rules for Internet platforms.  That discussion did not, of course, bring any unanimity.  Industry representatives argued that the CVAA was specifically targeted to programming that had already been captioned when initially broadcast or cablecast, and that extending the rules to online programming could not be justified based on the clear wording of the statute.  Other participants suggested that even if the CVAA did not specifically give the FCC authority to extend the regulation to online programming, authority could be found elsewhere in the Communications Act.  It was also suggested that the FCC use its platform to encourage captioning (though the first panel talked much about the voluntary captioning already done by most of the larger online platforms) and, if voluntary efforts did not bring about widespread compliance, other efforts should be undertaken to give the FCC authority to extend its regulatory reach to insure accessibility to all video programming.

These issues will not go away.  As broadcast and online platforms become interchangeable in the viewing habits of consumers, there will be more calls to bring broadcast-like regulation to Internet platforms.  Difficult questions will of course arise as to where any such regulation should apply.  Should my posting of a video on Facebook or YouTube of a marching band at one of the DC monuments or a deer walking through the woods, or some small restaurant’s video of the preparation of their signature dish, carry the same obligations that apply to a NetFlix movie?  Obviously not, but where lines are to be drawn is always the hardest question.  Watch as these debates, as well as the many other debates about possible Internet regulation, play out in the coming years.

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

• FCC Chairwoman Jessica Rosenworcel’s nomination for another five-year term at the agency was approved by the Senate Commerce Committee. The final step in the consideration of her nomination is for the full Senate to vote to confirm that nomination before the end of the year when her current term expires.
• The Senate Commerce Committee also held a hearing on the nominations of Gigi Sohn for a position as a Democratic FCC Commissioner and of Alan Davidson as NTIA Administrator. Sohn was pressed by senators on her past public interest work and some of her tweets and other public statements made in connection with that work, her time advising FCC Chairman Tom Wheeler, and her role as a board member for now-shuttered local TV streaming service Locast. Sohn expressed general support for local broadcasting but suggested that she would favor rolling back some recent relaxations of the media ownership rules. Davidson’s questioning focused on broadband issues and overall federal spectrum policy.  We took a look at some of the issues that would be waiting in Commissioner Sohn’s inbox if she were to be confirmed.
• Parties interested in the FCC’s rulemaking to consider allowing FM broadcast license applicants to verify directional antenna patterns through computer modeling instead of real-world testing should file their comments by December 30. Reply comments are due by January 14, 2022.  (Public Notice)
• The FCC finished its review of the applications filed during last month’s noncommercial educational FM radio station filing window. The review found 231 groups of mutually exclusive (MX) applications.  The FCC opened a settlement window through January 28, 2022 for parties to submit technical amendments or work with others in their MX group to enter into settlement agreements or otherwise resolve conflicts.  Applicants in an MX group that have not submitted a settlement agreement or technical amendment by the January 28 deadline will have their application undergo a comparative analysis to determine which of the mutually exclusive applications should be granted.  Thirteen applications were deemed defective and dismissed.  (Public Notice) (MX Groups) (Dismissed Applications)
• The FCC reminded stations in DMAs 71-80 affiliated with one of the top four TV networks that they must comply with the FCC’s audio description rules beginning January 1, 2022. The audio description (formerly known as video description) rules make video programming more accessible to blind or visually impaired persons by requiring the use of an audio subchannel to provide descriptions of the visual action in a TV program that is occurring on screen. The affected DMAs are Omaha, Wichita-Hutchinson Plus, Springfield, MO, Charleston-Huntington, Columbia, SC, Rochester, NY, Flint-Saginaw-Bay City, Huntsville-Decatur, Portland-Auburn, and Toledo.  (Public Notice)
• FCC fee filers take note. By December 15, the FCC will close its current fee filer payment system and open a new payment system within its CORES platform.  The Red Light Display system, which allowed users to view and clear financial holds on their account, will also be closed.  Past due fee information will be available only through CORES.  (Public Notice)
• The licensee of two Mississippi Class A TV stations faces a combined $38,000 in fines over the company’s failure to upload quarterly issues/programs lists on time and for failing to disclose to the FCC in the stations’ license renewal applications that the lists were uploaded late. The stations’ renewal applications certified that all documents had been timely uploaded to its public file, as required by FCC rules, when more than three dozen issues/programs lists had not been timely uploaded.  (Notice of Apparent Liability for Forfeiture – W34DV-D) (Notice of Apparent Liability for Forfeiture – W39CA-D). These actions once again emphasize the importance of timely uploads of all documents to the online public file.
• The FCC proposed a $6,000 fine for a TV station that uploaded issues/programs lists to its online public file late and admonished the same station for displaying during its children’s programming the URL for a website that contained a “shop” button. The FCC’s children’s TV rules prohibit stations from displaying on-screen during programs directed to children the URL for websites that have a commercial purpose, including e-commerce or advertising.  The programming was supplied by a TV network, but the station is ultimately responsible for its programming content. (Notice of Apparent Liability for Forfeiture and Admonishment)
• The Copyright Royalty Board announced the that royalties for streaming music on the Internet will increase in 2023 from the $.0021 per performance royalty rate recently sent by the CRB for the period from 2021 to 2025. The rates were subject to cost-of-living increases – and the rise in the cost-of-living index triggered the increase for 2022. The cost-of-living increase will increase the royalties for non-subscription, non-interactive streaming, like simulcasting a radio station on the Internet including through a mobile app, to $.0022 per performance (a performance occurs each time any song is streamed to a single user – so, for example, a station that plays 10 songs in an hour and had 10 listeners throughout the hour must pay for 100 performances in that hour). (CRB Notice) (Summary of new royalties for 2021-2025). Some of the rates set last year are still under review.  Appeals of last year’s CRB decision setting these rates were filed on November 26. We will have more on those appeals in our Broadcast Law Blog soon.
• With TV’s Dr. Mehmet Oz declaring his candidacy for nomination to run for an open US Senate seat in Pennsylvania, we wrote on our Broadcast Law Blog about what a station should do to avoid issues under the FCC’s political broadcasting rules, including the equal time rule when one of its on-air employees decides to run for public office.

For a look at regulatory dates ahead for the rest of December and early January, see our Broadcast Law Blog article, here.

On Tuesday, we were deluged with press inquiries about Dr. Oz’s declaration that he was going to seek the open US Senate seat in Pennsylvania – with many questions as to whether his syndicated television program would subject stations that aired it to equal time obligations.  The Doctor avoided issues for stations by immediately terminating his participation on the program, but the events of this week highlight that, with 2022 expected to be a very busy election season that will soon be upon us, many stations may be facing the question of what to do when an on-air employee decides to seek election to a public office.

We have written about this issue many times before, including coverage of when well-known local or national personalities have contemplated runs for office – see our stories here, here and here. In 2017, we wrote another article here, updating prior articles on the same subject.  While the rules have not changed in the 15 years that we have been writing about it, it seems that there are always questions, so it is worth revisiting the issues again.

To start with the basics, the FCC’s equal time rules state that, whenever there is a “use” by a candidate of a broadcast station, competing candidates for the same office are entitled to request “equal opportunities.”  If the candidate’s appearance is at no charge to the candidate, the opposing candidates can get free time. If it is paid for by the candidate, the opposing candidates can request to buy equal amounts of time at a comparable rate. In a primary, only those running in the same party are considered opposing candidates.

A use is a positive recognizable voice or image of a legally qualified candidate outside of an exempt program. Exempt programs are news, news interviews (interpreted broadly to include almost any interview program that sometimes features newsmakers – so, for instance, the late-night TV programs are considered for this purpose to be news interview programs), or on-the-spot-coverage of a news event (e.g., a debate).  For more on the basics of the equal time rule, see our post here.

Having an on-air employee who runs for political office – whether it is a federal, state or local office – gives rise to equal opportunities for competing candidates whenever that employee’s recognizable voice or image appears on the air, even if the personality never mentions his or her candidacy on the air, and even if they appear in what is otherwise an exempt program (e.g., a newscaster who runs for office triggers equal time when he delivers the news, even though a candidate’s appearance as a subject of that news program would be exempt). Stations need to take precautions to avoid the potential for owing significant amounts of free time to competing candidates, where those candidates can present any political message – if they request it within 7 days of the personality’s appearance on the air.

Once a candidate becomes “legally qualified” (i.e., he or she has established their right to a place on the ballot by filing the necessary papers), equal opportunities rights are available to the opposing candidates. What this means is that, if the on-air talent who is running for political office stays on the air, any opposing candidate can come to the station and demand equal opportunities within seven days of the date on which the on-air talent appeared in the broadcast, and the opponent would be entitled to the same amount of time, which they can use to broadcast a political message, to be run in the same general time period as the station employee/candidate was on the air.  So if your meteorologist decides to run for the city council, and he appears on the 6 o’clock news for 3 minutes each night doing the weather, an opposing city council candidate can get up to 21 minutes of time (3 minutes for each of the last 7 days), and that opposing candidate does not need to read the weather, but can do a full political message.  For Dr. Oz, that would have meant an hour of time would be owed to opposing candidates whenever his program aired – hence the quick decision to stop the broadcast once his candidacy was declared.

What is a station to do when an on-air employee decides to run for office? In some cases, stations do nothing, and no one seems to mind.  I’ve known broadcasters who appeared on-air every day, particularly in small towns, while they were serving as mayor or on the city council, and no opposing candidate ever bothered to ask for equal opportunities – either because they did not know the rules, or because they would have received bad publicity forcing the on-air employee/candidate out of his job during the election season.

But sometimes competing candidates do insist on their rights, especially less well-known candidates who may not have any other way to get their message out and want any free time that they can get because of the on-air employee’s appearances.  Thus, most stations choose to avoid the risk and play it safe, and don’t allow a candidate to continue to stay on the air once they become legally qualified (and sometimes even before they are legally qualified, to avoid even the appearance of unfairness).  But there may be other alternatives that lie between taking the risk of having to meet equal opportunities claims and taking the employee off the air.  These include:

• Obtaining waivers from the opponents of the station employee, allowing the employee to continue to do their job, perhaps with conditions such as forbidding any discussions of the political race
• Allowing the candidate to continue to broadcast in exchange for a negotiated amount of paid airtime for the opponents.

Obviously, consult counsel to get the wording right on any waiver, but waivers are a potential option.

Another alternative might be to give the on-air employee/candidate other duties that don’t trigger equal opportunities.  If the candidate’s voice or likeness does not appear on-air, then there are no equal opportunities rights created.  Currently the political rules do not apply to Internet appearances, so website work is a possibility. A move to a sister station with a service area that does not reach the district in which the candidate is running may be another alternative.

Finally, remember that equal opportunities are only available to the opponents of the employee-candidate. In a primary, the opponents are only those candidates who are running for the nomination of the same party. Thus, if your on-air employee is running in the Republican primary, you only need to worry about his or her Republican opponents for equal time purposes.  The Democratic candidates would not be entitled to get equal time against a Republican candidate until the nominees of each party have been selected.

For more on the political broadcasting rules, check out our Guide to Political Broadcasting, available here.

While Thanksgiving is in the rearview mirror and the holiday season is upon us, broadcasters cannot ignore the regulatory world until the new year, as much is going on in December.  Below are some of the several important regulatory dates and deadlines in the coming month that you may need to deal with before the celebrations begin.

By December 1, all licensees of commercial and noncommercial full power TV, Class A TV, low power TV, AM radio, and FM radio stations must submit an ownership report that details the licensee’s ownership structure as of October 1, 2021.  The FCC has warned that there will be penalties for stations that do not file these reports.  Licensees with ownership structures that include parent entities must also file a report for each of those entities.  An informational session run by FCC staff is archived, here, and answers to frequently asked questions are available, here.  See our blog post covering ownership reporting, here.

On or before December 1, radio stations in Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont and TV stations in Colorado, Minnesota, Montana, North Dakota, and South Dakota must file their license renewal applications (FCC Form 2100, Schedule 303-S).  Pay close attention to the contents of your online public file and be sure that all required documents are complete and were uploaded on time.  Stations filing renewals (other than LPFMs) are also required to file a Broadcast EEO Program Report (FCC Form 2100, Schedule 396) that must include two years of EEO Public File reports for FCC review, unless your employment unit employs fewer than five full-time employees.  When you are putting the final touches on your applications over the next few days, be sure to read the instructions for the license renewal application (radio, TV) and consult with counsel if you have questions.

Also on or before December 1, all radio and TV station employment units (a station employment unit is a station or stations that share at least one full-time employee, are in the same geographic area, and are under common control) with five or more full-time employees licensed to communities in Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, and Vermont must upload to their online public inspection file an Annual EEO Public Inspection File report.  This report covers their hiring and employment outreach activities for December 1, 2020 through November 30, 2021.  These broadcast licensees must also post on the homepage of their station website (if they have one) a link to the most recent report.

By December 1, digital television stations that provided ancillary or supplementary services between October 1, 2020 and September 30, 2021 must submit FCC Form 2100, Schedule G, and pay in fees 5% of the gross revenue derived from any ancillary or supplementary services they provided.  Noncommercial digital TV stations that provided such services on a nonprofit, noncommercial, and educational basis must file the form but are required to pay 2.5% of the gross revenue derived from those services.  Ancillary and supplemental services do not include non-subscription video channels delivered directly to the public but do include any other services provided over the station’s spectrum from which the station receives compensation, including “computer software distribution, data transmissions, teletext, interactive materials, aural messages, paging services, or audio signals, [and] subscription video.”  Stations that provided no such services are no longer required to file a report.

Many broadcasters with satellite dishes are involved in the transition of part of the C-Band to 5G wireless users.  The transition deadline to clear parts of the band for C-Band operators in Phase I markets is December 5, 2021 (Phase I stations are located in Partial Economic Areas (PEA) 1-50, except stations in the Washington, DC area and certain counties in Georgia, Colorado, and Hawaii – see a PEA list here).  By that date, C-band earth stations in those markets need to install filters or make other changes to avoid interference from the new wireless users.  The transition deadline for the remaining markets (Phase II) is December 5, 2023.  See the Public Notice, here.

Another December deadline is for stations that entered into a consent decree with the FCC over political file violations.  By December 10, those stations must have submitted to the FCC staff a compliance report required by the decree.  The report provides data to the FCC about requests that the station received through November 2 for the purchase of broadcast time by, or on behalf of, legally qualified candidates and for ads that relate to any issue of national importance (i.e., federal issue ads).  The compliance report must be accompanied by certifications from the licensee’s compliance officer and chief executive that the report is true and accurate.  For more information, read our article on the topic, here, review the terms of your consent decree, and talk with your communications counsel.

TV operators may be interested in the Commission’s plan to auction twenty-seven full-power TV construction permits in mostly smaller communities. These channels will be part of Auction 112, which is scheduled to take place in June of 2022. The Commission is looking for comments on the proposed procedures for the auction.  Submit your comments by December 13 with replies due by December 23.  Read the procedures Public Notice, here, and see the list of available construction permits, here.

Also for TV, the FCC’s revision of its rules that revise the DTV Table of Allotments to reflect the current, post-auction channels of TV stations will become effective December 22.  The rules also delete or revise FCC rules that, following the DTV transition, incentive auction, and repack, no longer have any practical effect.  Most of the rules involve references to channels that are no longer part of the TV band or procedures that only applied during the incentive auction and its immediate aftermath.

Comments on the FCC’s proposal to change the rules for proofing of FM directional antennas are due on December 30, 2021 with replies due by January 14.  This proceeding seeks comments on proposals to allow the patterns for directional antennas to be verified by computer modeling as opposed to real-world testing.  See the Federal Register publication of the Notice of Proposed Rulemaking, setting the comment dates, here.

During its last Open Meeting of 2021, the FCC will vote on whether to start a rulemaking that looks at making visual EAS messages delivered by TV broadcasters and cable systems clearer and more accessible.  The FCC proposes to require that a predetermined script be used for visual display of EAS messages, and to require that stations, whenever they receive an alert (including state and local alerts) from their legacy (over-the-air) EAS alerting system, check their IPAWS Internet-delivered CAP (Common Alerting Protocol) based system to see if additional visual information about an alert has been provided, as that IP-based system allows for alerts containing more visual information.  The FCC also asks for suggestions on how the current, legacy EAS can be updated to make those systems more robust in providing visual information.  The comment and reply comment periods will be set after the item is approved and published in the Federal Register.  Read the draft Notice of Proposed Rulemaking and Notice of Inquiry, here, and tune in at 10:30 am Eastern on December 14 to watch the meeting.

A change in the leadership of the FCC is also in the works. FCC Commissioner nominee Gigi Sohn will visit the Senate Commerce Committee on December 1 for her confirmation hearing to be the third Democratic Commissioner.  During the same hearing, the committee will vote on advancing FCC Chairwoman Jessica Rosenworcel’s nomination to the full Senate for a final confirmation vote.  Alan Davidson, President Biden’s nominee to lead the National Telecommunications and Information Administration (NTIA), which oversees federal spectrum policy, will also be considered by the committee.  Read Gigi Sohn’s Senate questionnaire about her background and qualifications, here, and Alan Davidson’s, here.  Tune in to the livestream of the hearing beginning at 10:15 am Eastern at www.commerce.senate.gov.

The FCC will also hold a video programming accessibility forum on December 2 from 1:00-3:45 pm Eastern.  The panelists will look at the state of closed captioning availability for online video programming and discuss ways to enhance accessibility, including inquiring as to whether the FCC has authority to adopt new rules that would apply to online video providers.  Read the Public Notice, here, for more information.

The Copyright Office will also be holding a public roundtable on December 9 to discuss how to change copyright law to offer greater protections to publishers, particularly news publishers.  We summarized the proceeding here. The Copyright Office will be looking at whether there should be “ancillary copyright protections” to protect publishers from having the value of their content undermined by digital platforms. These possible protections include limiting news aggregators in using the title or snippets of the content of publishers without consent, extended rights for publishers to protect “hot news,” and even some government-set royalties on the use of publisher’s content by digital sites.  The Copyright Office has already received written comments and will take reply comments through January 5.  Information about the proceeding and registration for the roundtable is available on the Copyright Office website, here.

Looking ahead to January, don’t let the quarterly requirement to upload issues/program lists to your online public file get lost in the post-New Year shuffle.  Full-power radio, TV, and Class A licensees should have their lists prepared and uploaded by January 10, 2022.  The lists are meant to identify the issues of importance to the station’s community and the programs that the station broadcast in October, November, and December that addressed those issues. Prepare the lists 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 community. See our post here for more on this obligation.

Certain analog TV translators that received a six-month extension of the July 13, 2021 digital transition deadline must make that transition by January 13, 2022.  LPTV stations that received an extension still had to discontinue analog operations by July 13, 2021 but were given six additional months to build out their digital facilities.

Stay in touch with your station’s advisors, engineers, and legal counsel to be sure you’re staying on top of the dates and deadlines applicable to your operations.

At this time last year, we noted Giving Tuesday and decided to depart from our usual coverage of legal and policy issues and talk about something else – broadcasters giving back.  And we decided to do it again.  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.

During the last two years when normal routines have been upended, those of us who have remained healthy and employed are truly blessed. 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 Federal Communications Bar Association, 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.

In a normal year, I spend significant time on the road, visiting with broadcasters and others in the media industry at state and national conventions.  While I have been fortunate to attend a limited number of broadcast meetings this past year, and hope that there will be many more opportunities to gather with friends and colleagues across the country, broadcasters who have not had the opportunity to attend such events this year should remember that many state broadcast associations run charitable foundations – often using the funds that they receive to provide for internships and scholarships to students interested in working in the broadcast industry. Because of the cancellation of many broadcast conventions this year, many of these foundations have not been able to conduct their auctions, raffles and other fundraisers that help fund the activities of these charitable organizations.  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.

In addition to the broadcast world, I often write on this Blog about music 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.  As we begin to gear up for what will likely still be a hopefully more normal though likely still somewhat different holiday season, all of us should consider how we can give back – whether it is monetarily, though service, or in other ways. Enjoy your success and remember others as well.

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

• In the last two weeks, many stations have discovered that links to their FCC-hosted online public inspection file no longer work after an FCC update to its website and file-hosting system. It appears that the issue is that, after the update, for the link to work, station call letters in the link need to be in capital letters, when capitalization had not been required in the past.  As stations are required to have a working link to their online public file on the homepage of their website, and in certain public notices related to FCC applications, check your website to make sure that links to your station’s online public file are working.
• The FCC released a draft Notice of Proposed Rulemaking and Notice of Inquiry that, if adopted, will start a rulemaking that looks at making visual EAS messages delivered by TV broadcasters and cable systems clearer and more accessible. The FCC proposes to require a predetermined script be used for visual display of EAS messages, and to require that stations, whenever they receive an alert (including state and local alerts) from their legacy (over-the-air) EAS alerting system, check their IPAWS Internet-delivered CAP (Common Alert Protocol) based system to see if additional visual information about an alert has been provided, as that IP-based system allows for alerts containing more visual information.  The FCC also asks for suggestions on how the current, legacy EAS can be updated to make those systems more robust in providing visual information.  This draft will be voted at the FCC’s December 14 regular monthly Open Meeting.  The comment and reply comment periods will be set after the notice is approved and published in the Federal Register.  (EAS Accessibility NPRM and NOI)
• The FCC released a reminder that it will hold a video programming accessibility forum on December 2 from 1:00-3:45 pm Eastern. The panelists will explore the state of closed captioning availability for online video programming and discuss ways to enhance accessibility, including inquiring as to whether the FCC has authority to adopt new rules that would apply to online video providers.  (Event Reminder)  (Public Notice)
• The Copyright Royalty Board released a notice alerting college radio stations that are not affiliated with NPR or the Corporation for Public Broadcasting that there will be a cost-of-living increase in 2022 for their royalties due to SESAC. Royalties will increase from $164 per year to $174.  (Federal Register Notice)

Looking ahead to next week, FCC Commissioner nominee Gigi Sohn will visit the Senate Commerce Committee on December 1 for her confirmation hearing to be the third Democratic Commissioner.  During the same hearing, the committee will vote on advancing FCC Chairwoman Jessica Rosenworcel’s nomination to the full Senate for a final confirmation vote.  Alan Davidson, President Biden’s nominee to lead NTIA, which oversees federal spectrum policy, will also be considered by the committee.  The hearing begins at 10:15 am Eastern on December 1 and can be viewed at www.commerce.senate.gov.  (Nominations Hearing)