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

• On March 16, the Federal Trade Commission (“FTC”) held an open meeting at which it voted to issue “6(b) orders” to eight social media and video streaming platforms (specifically Meta, Instagram, YouTube, TikTok, Snap, Twitter, Pinterest and Twitch) requesting information on how they monitor and review deceptive advertising on their platforms.  “6(b) orders” are issued pursuant to the FTC’s authority under Section 6(b) of the FTC Act to compel information so that the FTC can investigate businesses and business practices.  The FTC at the same time announced that it will conducting a study of the social media and video streaming platforms’ policies and practices to detect, prevent, and reduce deceptive commercial advertising and online shopping fraud, including the platforms’ maintenance and enforcement of advertising standards; verification and authentication of advertisers; screening for misleading, deceptive, and fraudulent ads; and use of disclosures and other techniques to ensure commercial messages are identifiable as advertising.  The FTC also announced that it would issue a 6(b) order to five business credit reporting agencies (Dun & Bradstreet, Experian Information Solutions, Equifax, Ansonia Credit Data, and Creditsafe USA) requesting information on how they collect and report data about small businesses, and how they market their business credit reporting products.  It will also conduct a study of the credit reporting agencies to bring more transparency to how algorithms and alternative data are utilized in the small business credit reporting market and whether there are disparities that disadvantage small business owners.  Press releases announcing the FTC’s actions are available here and here; models of the 6(b) orders sent by the FTC are available here and here.  
  • At the same FTC open meeting, various individuals and representatives from various organizations spoke on the FTC’s Proposed Rule to Ban Noncompete Clauses in employment relationships, specifically encouraging the FTC to provide an opportunity for reply comments.  The FTC recently extended the deadline for public comment on the FTC’s proposed ban to April 19.
• The Florida Association of Broadcasters this week filed a Petition for Declaratory Ruling asking the FCC to declare that political ads run by committees and organizations which are not a candidate’s official campaign committee, but are “authorized” by the candidate, are not entitled to lowest unit rates.  There has been a dispute over that question in the last few election cycles. The FCC has not yet announced whether it will take comments on this petition.
• As expected, the FCC, at its March 16 open meeting, adopted a Further Notice of Proposed Rulemaking (the full text of which is available here) seeking comment on whether to apply its audio description requirements to the TV markets where those requirements do not already apply (i.e., DMAs 101 through 210). Audio description inserts narrated descriptions of a television program’s key visual elements during natural pauses in the program’s dialogue, for the benefit of individuals who are blind or visually impaired.  The FCC proposes that, if it determines that the costs are reasonable, the phase-in of the requirements will begin with DMAs 101 through 110 on January 1, 2025, and extend to an additional 10 DMAs per year, concluding with DMAs 201 through 210 on January 1, 2035.  Comments and reply comments on the Further Notice will be due 30 and 45 days, respectively, after it is published in the Federal Register.
• As we’ve reported in previous weekly updates, the FCC’s Media Bureau has issued a hearing designation order referring questions about Standard General Broadcasting’s proposed acquisition of the TEGNA broadcast stations to an Administrative Law Judge (ALJ) for an evidentiary hearing.  In response, the parties filed a Motion asking the ALJ to certify this designation to the FCC Commissioners for a determination as to whether the case really should have been designated for hearing.  The ALJ this week denied that Motion.  Because the FCC’s rules do not permit the parties to appeal the ALJ’s ruling, the hearing ordinarily would proceed before the ALJ as scheduled.  The parties have nonetheless responded by filing an Application for Review, asking the Commission to overturn the Media Bureau’s decision to designate the transaction for hearing.  At this time, it is unclear what if any impact this filing will have on the conduct of the hearing.
• The FCC released two Notices of Apparent Liability proposing to impose big fines on two pirate radio operators (the Notices are available here and here).    Using the enforcement tools – particularly the higher fines – authorized by the PIRATE Act passed by Congress in 2020, the FCC proposed a to impose a fine of $2,316,034 on one alleged operator of a pirate radio station in the New York City area, and a fine of $80,000 fine on another operator of a pirate station in Oregon.  As the FCC noted in its press release, this is the first time since the adoption of the PIRATE Act that the FCC has gone beyond the warning phase to issue notices of “forfeitures” (fines) on pirate operators and, in the New York case, use the full force permitted by the law to levy a multimillion dollar fine.  For more details about these cases, see our Broadcast Law Blog article here.
• The Media Bureau denied a broadcaster’s petition for reconsideration asking for reinstatement and an 18-month extension of a construction period for a new FM in Florida.  The decision highlights Section 73.3598(a) of the FCC’s rules, which states that an “eligible entity” buying a construction permit for a new station will be afforded an 18-month period to construct, beginning on the consummation date of its acquisition of the permit.  The effect of that rule, which can extend the length of construction permits that would otherwise expire, had been suspended by a Court of Appeals decision in 2011 when the Court overturned the “eligible entity” definition.  An eligible entity is one that qualifies as a “small business” until Small Business Administration rules.  While the FCC eligible entity definition and its rule on the extension of construction permits was reinstated by the FCC in 2021, because the permit in this case expired in 2014 and that expiration was final before the policy was reinstated, the Commission declined to reinstate the construction permit. 
• Via its “points system” for selecting among mutually exclusive applicants for NCE FM stations filed in the 2021 window for new NCE stations, the FCC’s Media Bureau awarded a construction permit to an applicant for a new station at Bernardsville, New Jersey.  The Bureau did so notwithstanding an informal objection by one of the competing applicants, contending that the winning application should have been dismissed because it did not include a showing demonstrating the applicant’s compliance with the spacing requirements in Section 73.525 of the Commission’s rules to two television stations operating on Channel 6 (Channel 6 being adjacent to the NCE band).  The winning applicant eventually amended its application to include the required showing.  The Bureau ruled that the applicant’s initial failure to include the required showing was a curable defect, and the applicant’s showing demonstrated compliance with the rule.
• The Bureau entered into a Memorandum of Understanding (MOU) with an FM station that acknowledged that it had failed to timely place records in its online public inspection file.  The MOU included a commitment from the station to implement a compliance plan to ensure compliance with its online public inspection file obligations.
• The Bureau proposed to impose a $1,500 fine on a low power television (LPTV) station that without explanation filed its license renewal application six weeks late.  Ordinarily, the FCC’s rules require a $3,000 fine for such a violation.  The Bureau reduced the fine $1,500 in recognition of the fact that LPTV stations only provide a secondary service.
• The Media Bureau proposed to substitute Channel 256A for vacant Channel 288A at Tecopa, California, to accommodate a proposed upgrade of an existing FM station from channel 290C1 to channel 291C at Amargosa Valley, Nevada.  Channel 288A at Tecopa became vacant due to the Bureau’s cancellation of the license of the station that previously occupied that channel and will be available for application in a future FM auction window.
• The Bureau issued a Report and Order granting a noncommercial educational television station’s request that the FCC substitute noncommercial VHF channel 13 for noncommercial VHF channel 3 at Roanoke, Virginia, to address signal quality issues.  For similar reasons, the Bureau substituted UHF channel 35 for VHF channel 11 at Hampton, Virginia.  These decisions recognize the industry consensus that UHF channels, and even high VHF channels, provide better reception of digital television transmissions than do low VHF channels. 
• The Bureau, jointly with the FCC’s Managing Director, issued an Order to Pay or to Show Cause to an AM station that had failed to pay or only partially paid its annual regulatory fees for 2012, 2015, 2016, 2017, 2018, 2019, 2020, and 2021.  The Order directs the station to either provide the Bureau with evidence of full payment in 60 days or risk revocation of its license. While this is an extreme case, it is a reminder that the FCC takes unpaid regulatory fees seriously, and that licensees must ensure that such fees are paid in a timely manner.

This week, the FCC released two Notices of Apparent Liability proposing to impose big fines on two pirate radio operators.  Using the enforcement tools – particularly the higher fines – authorized by the PIRATE Act passed by Congress in 2020, the FCC proposed a to impose a fine of $2,316,034 on one alleged operator of a pirate radio station in the New York City area, and a fine of $80,000 fine on another operator of a pirate station in Oregon.  We’ve written in the past about the FCC sending warning letters to landowners and pirate radio operators threatening big fines if they don’t cease operations (or, for landowners, if they don’t force their tenants to cease illegal operations).  But, as noted in the FCC’s Press Release, this is the first time since the adoption of the PIRATE Act that the FCC has gone beyond the warning phase to issue these notices of multimillion dollar “forfeitures” (fines) on pirate operators and, in the New York case, use the full force permitted by the law to levy the multimillion dollar fine.  Theoretically, the alleged pirates could respond to the Notices and contest the fines, but the FCC’s decisions seem adamant that these operators should be paying a substantial penalty.  It is probably no coincidence that these Notices were issued a little over a month after the FCC sent its annual report to Congress on its activities under the PIRATE Act, promising increased efforts to combat pirate radio in the new year. 

The New York pirate appears particularly brazen, prompting the largest fine yet levied against a pirate radio operator.  According to the Notice of Apparent Liability, two individuals have operated a pirate radio station in the New York borough of Queens for over a decade.  In 2013, the FCC’s Enforcement Bureau issued three Notices of Unauthorized Operation to the operators, warning them that their operations were illegal and needed to stop.  In 2014, agents personally confronted one of the operators who admitted ownership of the equipment, and again told him to stop operating.  When operations continued, a proposed fine of $20,000 was issued in 2015, but never paid or contested.   In 2016, as operations had continued, Federal Marshalls seized the station’s equipment.  Yet the pirate came back and continued operations – even using a website and social media to promote programs hosted by the two individuals named in this week’s Notice.  The FCC emphasized that the repeated, ongoing nature of the violation even after multiple warnings and prior government action prompted its substantial fine.  The PIRATE statute limits fines to $2,316,034 – otherwise, the FCC would have proposed a fine ten times larger, given the nature of the violation and the pirate’s apparent disregard of the FCC’s prior attempts to enforce the law.

The FCC’s Press Release highlighting the severity of both pirates’ conduct and the amount of the fines.  It should be noted that these high penalties not only are a warning to pirate operators; the size of the fines may increase their effectiveness by making their enforcement more likely.  The FCC itself cannot sue to collect fines or take actions against individuals who ignore the penalties issued in cases like this.  Instead, the FCC must rely on the US Attorneys Office to enforce the penalties in Court, to seek judgments against those who do not pay, and to take collection actions if those judgements are ignored.  For smaller penalties like the $20,000 fine imposed against the New York pirate in 2015, the local federal attorney’s office may not believe it is worth it to invest time and effort in trying to collect.  A fine exceeding two million dollars may well get more attention and local action. 

The Notice of Apparent Liability against the Oregon pirate states that he was warned personally by an FCC agent in 2018 that his operations were illegal, that he surrendered his transmitter to the agent, and that he received a written notice that his operation was illegal and could render him liable to financial penalties and even jail time should he operate without authorization again.  However, a year later, the FCC again found him to be operating illegally.  He again surrendered his transmitter to an agent and again received oral and written warnings to stop operating.  Then, it happened again in 2022.  This time, after his wife surrendered transmitters to the FCC agents, the pirate posted to social media that he was continuing to operate and would not be shut down unless the government “locked him up.”  Later that year, the FCC issued a notice to the landowner of the property on which the pirate was operating to cease operations, using the PIRATE Act’s authority to hold a landowner liable if a pirate radio station is found to be operating from their property. That apparently got results, as the landowner forwarded to the FCC a letter from the pirate promising that they would not operate an unauthorized station and, when FCC field agents checked again, the pirate was not operating.   The FCC imposed the $80,000 fine in the Oregon case, lower than the NY case, possibly because the pirate was no longer operating.

These notices detail the FCC’s investigatory operations to find and identify pirates when complaints are received, and the FCC’s willingness to impose substantial penalties, particularly on repeat offenders.  The PIRATE Act not only authorizes high fines, but also mandates routine enforcement sweeps by FCC authorities in areas where there is a high incidence of pirate radio operators.  The New York case notes that sweeps and other enforcement actions were slowed during the pandemic, when the FCC greatly restricted employee travel.  But the FCC’s January report to Congress shows that you can expect that the FCC will be ramping up its enforcement activities.  The report notes that the FCC was given additional funds in 2022 to hire more field agents to enforce the PIRATE Act and to buy new “customized mobile direction finding investigative vehicles.”  The FCC promises more sweeps and more actions against landowners in the near future.  So, while these big fines may be new, don’t expect that they will be the last actions against pirate radio as the FCC’s enforcement ramps up.

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

• As widely reported, Gigi Sohn has asked President Biden to withdraw her nomination to become the third Democratic FCC Commissioner (her statement to the Washington Post about her withdrawal is available here).  Had it been successful, Sohn’s nomination would have eliminated the 2-2 deadlock between Republicans and Democrats that has existed at the FCC for over two years.  Sohn’s withdrawal came shortly before Sen. Joe Manchin of West Virginia became the first Democrat to formally oppose her confirmation.  As of the date of publication of this article, the White House had not provided any updates regarding potential replacement nominees.  For a further discussion of Sohn’s withdrawal and its implications for broadcast regulation, see the article on our Broadcast Law Blog, here.
• As we reported in our weekly update the week before last, the FCC’s Media Bureau issued a hearing designation order referring to an Administrative Law Judge for an evidentiary hearing questions about the proposed acquisition of the TEGNA broadcast stations by Standard General Broadcasting.  This week brings news that the parties have filed a Motion asking that the Judge certify this designation to the FCC Commissioners for a determination as to whether the case really should have been designated for hearing.  For more details on this matter and the legal issues associated with it, see our Blog article here.
• The FCC issued an Order temporarily staying the March 6, 2023 sunset of the requirement that television station’s that convert to the new ATSC 3.0 transmission standard must maintain their primary broadcast streams in accord with the ATSC A/322 standard, which defines the waveforms that ATSC 3.0 signals must take.  In June 2022, the FCC issued a Third Further Notice of Proposed Rulemaking (Third FNPRM) seeking comment on, among other things, whether to retain the requirement that broadcasters comply with the ATSC A/322 standard and, if so, for how long.  The Order leaves the requirement in place indefinitely (thus maintaining the status quo) until the Third FNPRM is resolved.  In support, the Order notes that virtually all who commented on the Third FNPRM supported at least a temporary extension of the requirement; that it is unclear whether any consumer receive equipment could display 3.0 signals that are noncompliant with A/322; and that there is no information in the record indicating that any party would be harmed by the grant of an interim stay.
• The FCC issued its Application Fee Filing Guide for its Media Bureau.  The Guide, which provides fee amounts and instructions for paying those fees, covers applications filed by, among others, commercial television stations, commercial AM and FM stations, TV translators and LPTV stations, FM translator stations, Class A television stations, and FM booster stations.  The FCC’s Managing Director subsequently issued an Erratum correcting the fees for certain types of AM applications.
• The FCC’s Public Safety and Homeland Security Bureau issued a Public Notice encouraging broadcasters who did not file their Form One in the EAS Test Reporting System (ETRS) by the February 28, 2023 deadline to do so now. The Public Notice also provided information about FCC assistance that is available for applicants who have not yet filed this Form One which provides basic information about EAS participants and the EAS equipment that they use.  As we noted in an article on our Blog, the FCC has made clear that this filing is mandatory for virtually all broadcast stations and suggested that there may be consequences for those who have not filed.  This form is the first of three used to report on the results of Nationwide EAS tests – one of which is expected to be conducted later this year.  If your station has not filed the ETRS Form One yet, you should do so immediately. 
• The FCC’s International Bureau released a Public Notice and a list of the C-Band earth stations that it has found to be “incumbent earth stations” entitled to reimbursement as part of the repurposing of part of this spectrum for wireless uses.  As set out in the Notice, all earth stations continuing to operate in the C-Band are required to register with the International Bureau’s filing system, and any earth stations that are deactivated must also be reported.  If you have C-Band earth stations, review this notice for more details. 
• With the NCAA Basketball Tournaments for both men and women set to start this coming week, we published on our Broadcast Law Blog a two-part article (here and here) about the NCAA’s trademarks, how it protects those marks, and the legal issues that can arise in broadcast advertising and promotions tied to the tournaments. 
• Via its “points system” for selecting among mutually exclusive applicants for NCE FM stations filed in the 2021 window for new NCE stations, the Bureau awarded a construction permit to an applicant for a new station at Baker City, Oregon.  The Bureau did so notwithstanding an informal objection by a third party alleging that the winning application should have been dismissed because its proposed directional antenna radiation pattern varied more than 2 dB per 10 degrees of azimuth in violation of section 73.316(b)(2) of the FCC’s rules.  The winning applicant subsequently amended its application to bring its antenna pattern into compliance with the rules.  The Bureau ruled that the antenna pattern was a curable defect and thus the winning applicant’s amendment was permissible, thus mooting the third party’s objection.  The Bureau also found that the winning applicant remained the winner on points even though its amendment resulted in reduced coverage that rendered it ineligible for a point under the “best technical proposal.”
• The Bureau proposed to substitute Channel 287A for vacant Channel 280A at Peach Springs, Arizona to accommodate a proposed upgrade of an existing FM station from channel 280A to channel 280C2  at Fort Mohave, Arizona.  Channel 280A at Peach Springs became vacant due to the Bureau’s cancellation of the license of the station that previously occupied that channel.
• The Bureau entered into a consent decree with a student-run NCE FM station that filed its license renewal application nearly four months late.  Consistent with the FCC’s policy for treating first-time violations of FCC “paperwork” rules by student-run NCE radio stations more leniently than violations by other stations, the licensee agreed to implement a compliance plan to prevent future untimely renewals, and make a civil penalty payment to the United States Treasury in the amount of $500.

Yesterday, I wrote about the history of the NCAA’s assembling of the rights to an array of trademarks associated with this month’s basketball tournament.  Today, I will provide some examples of the activities that can bring unwanted NCAA attention to your advertisements or broadcasting of advertising, as well as one more issue that should be considered when considering whether to accept advertising.

Activities that May Result in a Demand Letter from the NCAA

The NCAA acknowledges that media entities can sell advertising that accompanies the entity’s coverage of the NCAA championships.  However, similar to my discussion last  year on the use of Super Bowl trademarks (see here) and my 2018 discussion on the use of Olympics trademarks (see here), unless authorized by the NCAA, any of the following activities may result in a cease and desist demand:

• accepting advertising that refers to the NCAA, the NCAA Basketball Tournament, March Madness, The Big Dance, Final Four, Elite Eight or any other NCAA trademark or logo (The NCAA has posted a list of its trademarks here.)
  • Example:  An ad from a retailer with the headline, “Buy A New Big Screen TV in Time to Watch March Madness.”
  • Presumably, to avoid this issue, some advertisers have used “It’s Tournament Time!”
• local programming that uses any NCAA trademark as part of its name
  • Example:  A locally produced program previewing the tournament called “The Big Dance:  Pick a Winning Bracket.”
• selling the right to sponsor the overall coverage by a broadcaster, website or print publication of the tournament
  • Example:  During the sports segment of the local news, introducing the section of the report on tournament developments as “March Madness, brought to you by [name of advertiser].”
• sweepstakes or giveaways that include any NCAA trademark in its name (see here)
  • Example: “The Final Four Giveaway.”
• sweepstakes or giveaways that offer tickets to a tournament game as a prize
  • Example:  even if the sweepstakes name is not a problem, offering game tickets as a prize will raise an objection by the NCAA due to language on the tickets prohibiting their use for such purposes.
• events or parties that use any NCAA trademark to attract guests
  • Example:  a radio station sponsors a happy hour where fans can watch a tournament game, with any NCAA marks that are prominently placed on signage.
• advertising that wishes or congratulates a team, or its coach or players, on success in the tournament
  • Example:  “[Advertiser name] wishes [Name of Coach] and the 2022 [Name of Team] success in the NCAA tournament!”

There is one more common pitfall that is unique to the NCAA Basketball:  tournament brackets used in office pools where participants predict the winners of each game in advance of the tournament.  The NCAA’s position (see here) is that the unauthorized placement of advertising within an NCAA bracket and corporate sponsorship of a tournament bracket is misleading and constitutes an infringement of its intellectual property rights.  Accordingly, it says that any advertising should be outside of the bracket space and should clearly indicate that the advertiser or its goods or services are not sponsored by, approved by or otherwise associated with the NCAA or its championship tournament.

It should be noted that the NCAA also imposes strict rules about the authorized uses of its trademarks.  The NCAA’s Advertising and Promotional Guidelines for authorized use of its marks are posted online (see here).

Again, importantly, none of these restrictions prevents media companies from using any of the marks in providing customary news coverage of or commentary on the tournament.  Just be sure that they are just used to identify the tournament and its stages, and don’t in any way imply that there is an association between the station itself or any sponsor or advertiser who does not have the rights to claim such association and the NCAA.

A Surprising History of “March Madness” (For Those Who May Like Sports Trivia)

The NCAA may not have been the first to license the use of “March Madness.”  Beginning in the early 1990’s, the IHSA licensed it for use by other state high school basketball tournaments and by corporations.

Moreover, the NCAA did not originate the use of “March Madness” to promote its collegiate basketball tournament.  Rather, a CBS broadcaster is credited with first using “March Madness” in 1982 to describe the tournament.  As CBS was licensed by the NCAA to air the tournament, the NCAA apparently claims that as its date of first use.

Finally, the NCAA was not the first to register “March Madness” as a trademark.  That honor went to a company called Intersport, Inc., which used the mark for sports programs it produced and registered the mark in 1989.

So, how did the NCAA get to claim ownership of the March Madness^® trademark?  The short answer is through litigation and negotiations over a period of many years.  Although it has also been able to obtain federal registrations for Final Four^® and Elite Eight,^® it was late to the gate and Sweet Sixteen^® and Sweet 16^® are registered to the Kentucky High School Athletic Association (KHSAA).  (The NCAA, however, has the KHSAA’s consent to register NCAA Sweet Sixteen^® and NCAA Sweet 16^®.)

The Final Score

Having invested so much in its trademarks, the NCAA takes policing its trademark rights very seriously.  Even so, although the NCAA may call “foul!” and send a cease-and-desist letter over the types of activities discussed above, some claims may not be a slam-dunk as there can be arguments to be made on both sides of these issues.

If you are deciding whether or not to pass on accepting advertising incorporating an NCAA trademark or logo or using an NCAA trademark or logo other than in the context of reporting on the tournament, or if you are not certain whether the NCAA (or anyone else) owns a particular word or phrase as a trademark, you should seek an assist.  An experienced trademark attorney can help you make an informed decision about whether you can successfully post a defense against any such charge and assess possible risks.

One Last Advertising Issue:  Endorsements by Individual Student-Athletes

After many years of litigation, in July 2021, the NCAA suspended its policy prohibiting college athletes from profiting from their names, images and likenesses (“NIL”) (or their right of publicity) without losing their eligibility.  However, there is no national set of rules as to what is permissible.  Rather, the right of publicity is governed by state law.  Moreover, colleges and universities still have the right establish some rules or standards.  For example, although student-athletes can now get paid to endorse a commercial product, they are not automatically entitled to use any NCAA or school trademarks.  Thus, a college basketball player may not be authorized to wear their uniform in advertising unless the school has granted permission.  Can the player wear a uniform with the school colors, but no names or logos?  Can the player endorse an alcoholic product?  Answers will vary state by state and school by school, so it will be extremely important to check with experienced counsel before running any advertising that involves college players.

With Selection Sunday this weekend, the 2023 NCAA Collegiate Basketball Tournament is about to begin.  As faithful readers of this blog know, broadcasters, publishers and other businesses need to be wary about potential claims arising from their use of terms and logos associated with the tournament.

NCAA Trademarks

The NCAA owns the well-known marks March Madness^®, The Big Dance^®, Final Four^®, Women’s Final Four^®, Elite Eight,^® and The Road to the Final Four^® (with and without the word “The”), each of which is a federally registered trademark. The NCAA does not own “Sweet Sixteen” – someone else does – but it does have federal registrations for NCAA Sweet Sixteen^® and NCAA Sweet 16^®.

The NCAA also has federal registrations for some lesser-known marks, including March Mayhem^®, March Is On^®,Midnight Madness^®, Selection Sunday^®, 68 Teams, One Dream^®, And Then There Were Four^® and NCAA Fast Break^®. (It also has a registration for SPRING MADNESS^®in connectionwith its soccer tournaments.)

Some of these marks are used to promote the basketball tournament or the coverage of the tournament, while others are used on merchandise, such as t-shirts.  The NCAA also uses (or licenses) variations on these marks without seeking registration, but it can claim common law rights in those marks, such as March Madness Live, March Madness Music Festival and Final Four Fan Fest.

The NCAA also has pending applications for the marks And Then There Were Eight, And Then There Were 8 and Four It All.  Although there has not yet been any use of these marks, if they are ultimately registered, the NCAA will have priority over anyone using those marks after the filing dates of the applications. In other words, although the NCAA currently does not have any rights in these marks, anyone who chooses to use either mark runs a significant risk of liability down the line.

Although the NCAA may use the federal registration symbol (®) with any of its federally registered marks, it is not obligated to do so.  Thus, it should not be assumed that the lack of the symbol with any particular trademark means that the NCAA is not claiming trademark rights.

The NCAA Aggressively Pursues Unauthorized Use of its Trademarks

The NCAA’s revenue from its annual basketball tournament is the primary source of its annual income.  In 2022, its total revenue was $1.14 B and 85-90% of that came from the men’s tournament.  Although this figure is marginally less than the revenue for 2021, historically, with the exception of 2020 when the tournament had to be cancelled, its revenues have grown each year.

For 2023, the licensing of television rights in the Division I Men’s Basketball Tournament will result in $870M in revenue for the NCAA.  Although most of the NCAA’s tournament-related income is directly related to the games, it also has a substantial amount of revenue from licensing March Madness^® and its other marks for use by advertisers.  As part of those licenses, the NCAA agrees to stop non-authorized parties from using any of the marks.  Indeed, if the NCAA did not actively police the use of its marks by unauthorized companies, advertisers might not feel the need to get a license or, at least, to pay as much as they do for the license.  Thus, the NCAA has a strong incentive to put on a full court press to prevent non-licensees from associating their goods and services with the NCAA tournament through unauthorized use of its trademarks.  The NCAA’s current statement regarding its Trademark Protection Program can be viewed here.

Accordingly, the NCAA is very serious about taking action against anyone who may try to trade off the goodwill in its marks — even if the NCAA’s actual marks are not used.  For example:

• In 2017, the NCAA filed a trademark infringement action against a company that ran online sports-themed promotions and sweepstakes under the marks “April Madness” and “Final 3.”  The defendant stipulated to an order providing that it would cease using those marks at least until the end of the year, but the order did not provide for dismissal of the case.  The defendant failed to file an answer to the complaint and the NCAA was granted a default judgment, after which it filed a motion requesting an award of attorneys’ fees against the defendant in the amount of $242,213.55.  In May 2018, the Court found the infringement to be willful and awarded attorneys’ fees in the amount of $220,998.05.
• The NCAA sued a car dealership that had registered and was using the mark “Markdown Madness” in advertising. (The case was settled.)
• Even schools that are part of the NCAA are not immune from claims of infringement.  Seven years after the Big Ten Conference started using the mark “March Is On!,” the NCAA opposed an application to have that mark federally registered. (Ultimately, the opposition was withdrawn, the mark was registered, but the registration was assigned to the NCAA.)
• Just in the last twelve months, the NCAA has opposed or obtained extensions of time to oppose applications to register the following marks:
  • STREET MADNESS (automobile shows and car meets)
  • MARCH GREATNESS (charitable fundraising)
  • MAD MARCH (advertising, marketing and promotional services)
  • FINAL FRIDAY (bathrobes, masquerade costumes and various items of clothing, including sports jerseys)
  • MAD IQ BASKETBALL BOARD GAME (board games and online games – this proceeding was resolved when the applicant agreed to exclude games relating to collegiate basketball tournaments)
• In addition, the NCAA currently has an extension of time to oppose an application to register MARSH MANIA (for seeds used to attract wildlife.

It should be noted that, before these marks were published for opposition, Trademark Attorneys at the PTO concluded that each of these marks was not confusingly similar to any registered marks.

These actions illustrate the level of importance that the NCAA places on acting against the use or registration of trademarks which it views as being likely to create an association with its annual Collegiate Basketball Tournament.  Clearly, such activities carry great risks.

Tomorrow, I will provide some specific examples of actions built around the tournament that could attract the unwanted attention of the NCAA and one more issue to be considered in advertising or accepting advertising relating to the games.

Yesterday’s big news across the broadcast press was that Gigi Sohn, who had for well over a year been the nominee of the Biden administration to fill the open seat at the FCC, withdrew her name from consideration.  This may have been in reaction to circulated stories that there were several Democratic Senators who still were not committed to vote for her nomination without whose support she could not have been confirmed.  Until the Biden administration can make another nomination and have that nominee go through the confirmation process in the Senate, the FCC will continue to have two Democratic Commissioners and two Republican ones, potentially stalling action on some rulemaking matters where there is a partisan split on the pending issue.  We wrote in January in our look at the issues pending before the FCC about some of the issues that the FCC could face in 2023.  In light of the seeming extension of the partisan divide on the FCC, we thought that we would again highlight some of the issues likely to be affected by the current state of the Commission. 

But it is first worth noting that, merely because there is a partisan split among the Commissioners, this does not mean that nothing of significance will happen at the FCC.  As we wrote yesterday, the TEGNA merger was designated for hearing, potentially leading to its demise.  This was done not by an action of the Commissioners, but instead by its Media Bureau.  Interpretations of FCC authority in specific cases by the Media Bureau, the Enforcement Bureau or other lower-level bureaus and offices within the Commission can be just as impactful on any specific company as are the big policy decisions made by the Commissioners themselves.  Just as the TEGNA designation could have significant ramifications for broadcast dealmaking if its conclusions are taken to their logical ends, Bureau-level decisions can set day-to-day policy on many issues if the Commission itself cannot make broader decisions through their rulemaking process.

Changes to the FCC ownership rules may be one casualty of a deadlocked FCC.  On the same day that the TEGNA decision was released, comments were due on the 2022 Quadrennial Review FCC’s ownership rules, a review initiated as the partisan deadlock on the Commission apparently prevented the FCC making any decisions in its 2018 Quadrennial Review (see our article here on the initiation of the 2022 Review).  The comments filed Friday are little different from those filed when the Commission asked in 2021 for a refreshing of the record in the 2018 Quadrennial Review, after the Supreme Court decision upheld the Commission’s 2017 abolition of the TV-Newspaper cross-ownership rule and relaxed certain TV ownership rules (see our article here).  Many public interest groups opposed any further relaxation of the ownership rules, some radio companies opposed relaxation of the radio rules except for AM station subcaps, fearing that relaxation of the FM rules would take all investment away from AM. In addition, the NAB and other broadcast companies have argued that today’s media marketplace requires substantial relaxation in the ownership rules.  With these diverse comments, and the partisan-deadlocked FCC, don’t expect quick resolution of any Quadrennial Review.  Instead, it appears that any action that does occur on broadcast dealmaking will be through decisions like last week’s TEGNA designation.

EEO reform seems to be another area where there are partisan differences, with some favoring a more numbers-oriented enforcement and monitoring regime, and others looking more broadly at questions of unfairness and actual hiring bias and discrimination, and at affirmative actions (like the tax certificate) to economically incentivize new entrants into broadcasting.  While there are EEO proposals pending at the FCC (including the possible revival of the Form 395B annual report which would disclose race, ethnicity, and gender information for broadcast employees, and another proceeding to more broadly look at EEO enforcement), the partisan divide on the Commission may well leave EEO enforcement issues to the Commission’s staff.

There does seem to be more bipartisan cooperation on issues like emergency communications, disabilities-related accessibility, and even rules for the disclosure of information about foreign government sponsored programming, so expect continued Commission actions in these areas.  Also watch for action on issues that appear more non-partisan, like reform of the process for allocating the burdens of annual regulatory fees.  Where issues about the ATSC 3.0 rollout for television fall are a little harder to discern – but there may be some action there soon as the FCC just issued a temporary stay of the expiration of the requirement that stations converting to ATSC 3.0 maintain a substantially similar program stream in the old ATSC 1.0 transmission format. An FCC decision is now circulating among Commissioners that would apparently address this issue and other matters related to the transition. 

Regulatory activity at the FCC will go on – such as considering routine actions in the normal course, putting the resolution of some high-profile partisan issues on hold, and considering other issues through novel means like those employed in connection with the TEGNA deal.  No matter what the make-up of the FCC, there seems to be no lack of regulatory issues for broadcasters and other media companies to consider. 

Last week, broadcasters and broadcast journalists were abuzz with discussions of the FCC’s Media Bureau issuing a hearing designation order referring to an Administrative Law Judge questions about the proposed acquisition of the TEGNA broadcast stations by Standard General Broadcasting.  This week brings news that the parties have filed a Motion asking that the Judge certify this designation to the FCC Commissioners to determine whether the case really should have been designated for hearing.  The request that the case be referred to the Commissioners notes that the designation would have the effect of terminating the transaction, as the contract provides the parties only until May to close, and the buyer cannot get the agreement extended.  With so many questions about the TEGNA deal and its designation for hearing, we thought that we would review the hearing designation process and look at the inherent delays in the process which led to the parties’ contention that the designation, if not reviewed by the Commission, will effectively kill the deal.  In a subsequent article, we will look at some of the substantive issues raised by the hearing designation order.

Five years ago, we wrote about the hearing designation process in connection with the last major case where a proposed broadcast transaction was designated for hearing, i.e., Sinclair Broadcast Group’s proposed acquisition of the television stations owned by Tribune Media.  The TEGNA case differs from the Sinclair case in one significant manner, namely that the hearing designation order in the TEGNA case was issued by the Chief of the FCC’s Media Bureau, not by the Commissioners themselves.  In the Sinclair case, the Commissioners issued the hearing designation order, meaning there was no opportunity to ask for the review now being sought by the parties to the TEGNA deal.  When a designation order is issued by a Bureau, the party whose application was designated for hearing can, as in the TEGNA case, ask the presiding Administrative Law Judge to certify the case to the Commissioners before starting the hearing process, if there are questions of law that suggest that the case should not have been set for hearing.  While the Judge can decide to seek the guidance of the full Commission through this kind of certification, the full Commission need not take up the case even if the Judge decides to certify it to them.  Instead, the Commissioners can decide that the hearing should move forward, and that the legal issues can be considered later after the full hearing has taken place.  While that is the procedure set out in the FCC’s rules,  the TEGNA parties argue that were the Judge to certify the case and the Commission did take action, then they intend to directly appeal the matter to the Courts for review (which is normally not allowed until a decision is reached by the ALJ) because the designation for hearing by itself, issued after the application was pending for a year, equates to a the denial of the application.  What in the process for a case once designated for hearing that leads to that conclusion?  Let’s look at the process of setting a case for hearing.

Several decades ago, the process of designating an application for hearing was a common occurrence, often used by the FCC to decide between competing applicants for new broadcast (and in some cases non-broadcast) licenses, or in connection with decisions as  to grant the license renewal of broadcast stations where substantive petitions or competing applications were filed against such applications, or to deal with enforcement issues when there were questions about the facts of a particular case.  The FCC had a large staff of Administrative Law Judges who heard these cases, and they were usually quite busy.  But as the comparative hearing process for new stations morphed into the current process of awarding new stations through auctions, and after the FCC’s rules were changed to eliminate competing applicants to renewal applications, hearings dwindled.  As a result, the staff of ALJs at the FCC shrunk to just one.  Administrative hearings at the FCC are now rare, so the process that an FCC hearing would follow may not be widely understood. 

Congress established, in Sections 309 and 310(d) of the Communications Act, the way in which the FCC must process applications.  In cases involving applications for new stations or for the purchase and sale of stations, applications are filed providing information required by the FCC and such supplemental information as the FCC may request.  Interested parties routinely have 30 days in which to petitions objecting to applications, and those petitions must include detailed allegations supported by facts either in the public record or otherwise supported by statements from those with personal knowledge, arguing why an application should not be granted.  Applicants then are afforded the opportunity to respond to any allegations raised.  In most cases, the FCC will attempt to resolve any disputes, or any questions that it has on its own, on the basis of the written materials presented in the application, the petitions, and in response to any FCC supplemental request for information. 

In evaluating whether to approve an application to acquire a station, the FCC, under Section 310(d) of the Communications Act, must determine whether the public interest will be served by a grant of the application.  However, that same section makes clear that the FCC “may not consider whether the public interest, convenience, and necessity might be served by the transfer, assignment, or disposal of the permit or license to a person other than the proposed transferee or assignee.”  Thus, the FCC must evaluate the applicant before it to decide if they have the basic qualifications to acquire the station, and the FCC cannot deny the application based on a belief that there might be some better qualified applicant to acquire the station.  This obviously provides some comfort to the deal marketplace, as it provides assurance that, the FCC will grant the application if the buyer is qualified, even if there was some unsuccessful bidder who might believe that they would better be able to run the station in question.  In the TEGNA case, the parties argue that this policy has been violated because no disqualifying issue about the potential buyer has been raised.  We will look at the issues raised in a subsequent article.

At the same time, Section 309(e) makes clear that, if there is a “substantial and material question of fact” or if the Commission is otherwise not able to determine that an application meets the requirements of the rules, it can formally designate the application for hearing.  More specifically, where there are questions of fact raised about the qualifications of the prospective applicant, and those factual issues cannot be resolved based on the pleadings filed in connection with the application and any objection, the FCC can issue what is called a Hearing Designation Order to send the application to an Administrative Law judge to hold an evidentiary hearing to try to resolve the factual issues.  That Order recites the facts of the case and discusses the problems that the FCC has with the application.  It sets out a specific list of “issues” that the Judge is to consider in the hearing process.  In its request that the full Commission review the designation order, the TEGNA parties have argued that there really is no material question of fact, as every document related to the transaction has been produced to the FCC, and as the parties have made promises that they believe resolve all issues that the FCC raises. 

But if a hearing goes forward, the process by which the ALJ conducts the hearing is set out in the Communications Act and by FCC rules.  Usually, the FCC will have its own attorneys participate in the case, conducting discovery (e.g., document production, depositions, interrogatories) as in any other court case, trying to get to the bottom of the specific issues presented.  Other “parties in interest” in the case, usually including those who filed formal petitions to deny, will also have an opportunity to participate as parties.  The FCC process allows parties to file requests to “enlarge the issues,” urging consideration of issues beyond those designated by the FCC.  As in the petition to deny process, specific facts to support any additional issues must be provided, and the judge needs to conclude that the request raises a substantial matter that merits the addition of new issues besides those already designated by the FCC.

Also, before any actual trial-type hearing, parties can also ask for summary decision to resolve some or all of the issues presented based on the facts in the record or produced through discovery.  If the issues are not resolved in that manner, the ALJ will routinely conduct an actual trial-type hearing, with the Judge in a robe, witnesses being called to testify under oath as recorded by a court reporter, and cross-examination by attorneys for the other side.  After the hearing, the parties typically file “findings and conclusions” – legal briefs summarizing the facts brought out at hearing and citing the legal precedent that should be applied to those facts. 

In most cases that are designated for hearing, the Judge, after considering the facts, will evaluate the record of the hearing and the written arguments before rendering a decision in writing.  Usually, the Judge’s decision can be appealed to the full Commission.  But the TEGNA case does not follow the usual model.  Most of the time, the Hearing Designation Order will include a final “issue” that is designated for hearing – one asking the Judge to determine, based on her findings of fact, whether the application that has been designated should be granted.  In the TEGNA case, there is no such ultimate issue for the Judge to decide.  Instead, the Order simply asks the Judge to make the findings of fact and return the case to the Media Bureau to decide what additional steps should be taken based on the Judge’s findings. 

As in any civil litigation, these cases can be lengthy, with discovery and other procedural wrangling taking months to play out.  Those delays are one of the reasons that the FCC has tried wherever possible to avoid actual hearings – even in some cases resorting to “paper hearings” to try to adduce the facts necessary to deal with an application (see, for instance our articles here and here about cases where the FCC ordered a paper hearing as to whether stations that had been off the air for substantial periods of time during a license term were entitled to a renewal of license).  It is common for contracts for the acquisition of broadcast stations to contain a right to terminate the agreement by either party if there is a designation for hearing, given the delays and costs inherent in such a hearing. 

The process is a relatively straightforward one, but one that is time-consuming, leading to the TEGNA parties’ contention that the designation order effectively kills the deal.  We will see how that process plays out if the Judge grants the request to refer the case for consideration by the full Commission, or if the parties seek other extraordinary relief in this most unusual case.

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

• FCC Commissioner Simington issued a statement supporting a recent letter from former FEMA leaders to the Department of Transportation highlighting AM radio’s importance for public safety.  The letter was to address the concern about AM radios being left out of electric cars.  He said that the issue “deserves urgent attention”; that “as adoption of electric vehicles increases, we must not leave behind those in rural areas who depend upon radio for their news and alerts”; and that the FCC must “be good stewards of the AM radio band” by “safeguarding reception of AM radio from arrogation by incidental and unintentional radiation.”
• The FCC’s Media Bureau proposed to assess a fine of $3,000 against the licensee of a full power television station that, without explanation, filed its license renewal application five weeks late ($3,000 is the base fine in the FCC’s rules for an untimely renewal application).  At the same time, the Bureau proposed to assess a fines of $1,500 against each of two low power television stations, in one case for filing the license renewal applications nearly four months late (two days before the license expiration date), and over six weeks late in the other case. In both cases, the Bureau reduced the proposed fine to $1,500 from the $3000 base fine because the stations were LPTV stations and thus only provided a secondary service.
  • The Bureau also entered into a Consent Decree with an AM station to resolve the station’s admitted failure to timely file its renewal application (the licensee filed five months late) and timely upload any issues and program lists to its online public inspection file.  The Bureau did not impose a fine, citing difficult economic circumstances within the radio industry generally and the illness and death of the station’s sole owner.  Instead, the Bureau mandated that the licensee implement a compliance plan to ensure the station’s compliance with the FCC’s rules pertaining to filing deadlines and the online public inspection file.
• The Bureau proposed to fine an LPTV station $3,500 for its failure to file an application for a “license to cover” its construction permit until over a year after its displacement construction permit had expired and almost nine months after commencing operations.  As we’ve noted before, upon completion of the construction of new technical facilities authorized by a construction permit, a station must file a license application specifying details of the facilities that were built and certifying that those facilities align with those authorized by the construction permit.  The station also had engaged in unauthorized operation on two separate occasions for a cumulative period of approximately 14 months for operations after the construction permit expired and before the license application was filed.  The Bureau rejected the licensee’s claim that its violations were due to “administrative oversight.”  The base forfeiture in the FCC’s rules for the licensee’s violations was $10,000, but the Bureau reduced the proposed fine to $3,500, citing the fact that, as an LPTV facility, the station only provided a secondary service.
• The Bureau continues to substitute UHF channels for VHF channels in local markets to improve reception of over-the-air television channels, recognizing the preference for UHF channels for digital operations, the most recent examples being its proposed substitution of channel 17 for channel 9 at Kalispell, Montana; its substitution of channel 31 for channel 7 at Odessa, Texas; its substitution of channel 24 for channel 9 at Lufkin, Texas; and its proposed substitution of channel 20 for channel 10 at Elko, Nevada.
  • In another allocations decision, the Bureau issued a Report and Order amending the FM Table of Allotments (section 73.202(b) of the FCC’s rules) by allotting a new FM channel, Channel 233C, at Ralston, Wyoming as its first local service.  Ralston is listed in the 2020 U.S. Census as a census-designated place having a population of 240 persons, although the Bureau also noted that Ralston has its own post office, zip code, and a variety of local and area businesses and event venues.  This channel will be available for application in a future window for filing applications to be considered in an auction for new FM stations. 
• Via its “points system” for selecting among mutually exclusive applicants for NCE FM stations filed in the 2021 window for new NCE stations, the Bureau awarded a construction permit to an applicant for a new station at Willows, California.  The Bureau did so notwithstanding a petition to deny filed by one of the other mutually exclusive applicants, which alleged that the winning applicant’s application should have been denied for reasons including diversity of ownership; whether the winning applicant was an “established local applicant”; public inspection file and local public notice requirements; and violation of the FCC’s technical rules. The Bureau conducted a factual analysis of the claims of the petitioner as to the localism of the application and found them to not be sufficiently supported by the facts, and it found the technical and application preparation issues to be insubstantial, not justifying the denial of the application.

March may not have any of the regular FCC filing deadlines, but there are still plenty of regulatory activities going on this month that should grab the attention of any broadcast or media company. Initially, there are several FCC proceedings in which there are dates in March worth noting.

Initially, there are comments in the 2022 Quadrennial Review of the FCC’s ownership rules.  As we wrote in our summary of the issues on which comments are requested when it was released in late December, the proceeding is to look at rules including the local radio ownership rules, the dual network rule (prohibiting the combination of two of the big four TV networks), and other rules not yet resolved.  The FCC is charged with determining every four years whether these rules continue to be in the public interest.  Even though the FCC has never finished the 2018 Quadrennial Review examining these same issues, the FCC nevertheless asks for comments on how these rules affect FCC policies including competition, localism, and diversity.  Comments in this proceeding are due March 3, with reply comments due March 20. 

At its March 16 regular monthly open meeting, the FCC will consider  a draft Further Notice of Proposed Rulemaking (“FNPRM”) that, if adopted, would formally propose to extend the FCC’s existing audio description requirements for broadcast television to DMAs below the top 100 (i.e., DMAs 101-210).  Audio description makes video programming more accessible to individuals who are blind or visually impaired by inserting, using a secondary audio stream, narrated descriptions of a television program’s key visual elements during natural pauses in the program’s dialogue. Audio description is already required in DMAs 1 through 90, and these requirements will go into effect in DMAs 91 through 100 on January 1, 2024.  In these markets, “Big Four” stations (ABC, NBC, CBS, and Fox) are required to provide 50 hours of audio description per calendar quarter, either during prime time or in children’s programming, and 37.5 additional hours of audio description per calendar quarter between 6 a.m. and 11:59 p.m. local time.  The FCC proposes to extend these requirements to DMAs 101-210 by phasing in 10 DMAs per year starting on January 1, 2025, meaning that the bottom 10 DMAs would not be phased in until January 1, 2035. 

Comments are also due this month on a Media Bureau Public Notice asking whether, in determining if specific closed captioning display settings are readily accessible, the FCC should consider the following factors: proximity, discoverability, previewability, and consistency and persistence.  Comments are due March 3, and reply comments are due March 20.  The request for comments is an offshoot of the FCC’s ongoing rulemaking on requiring manufacturers of video displays, including television sets, to make closed captioning display settings readily accessible to individuals who are deaf and hard of hearing. 

Written comments on the FTC’s proposal to ban non-compete agreements are due on March 20.  The proposal is a broad one, proposing to prohibit any agreement that has the same effect as a noncompete agreement, including broad nondisclosure agreements that would preclude a worker from working in their field at a new company, or contract clauses that require an employee to repay a company for training costs if the employee leaves the company.  The proposed rule would apply not just to employees of a company, but also to independent contractors, interns, and others performing work for a company. 

The FCC’s increased application fees will become effective on March 2.  The FCC in December announced the increase of those fees to reflect increases in the cost of living.  See our article here for a list of the new fees for broadcast applications.  If you have an application about to be files, save a few dollars, file, and pay for any applications that you can in the next few days before the new fees take effect.

On March 1 the Federal Election Commission’s new disclaimer requirements for internet-based political advertising (including the identification of the ad sponsor) go into effect.  These rule changes will impact most media companies with websites and mobile apps, as well as the nationwide streaming services now developing ad supported platforms.  More specifically, and as we’ve already reported in greater detail here, the FEC adopted a proposal amending its rules to require a disclaimer on those “communications placed for a fee on another person’s website, digital device, application, or advertising platform.” 

Daylight Savings Time resumes on March 12, and thus AM daytime-only radio stations and stations operating with pre-sunrise and/or post-sunset authority should check their sign-on and sign-off times on their current FCC authorizations to ensure continued compliance with the FCC’s rules.  Note that all times listed in FCC licenses are Standard Time.

Lastly, in the “coming attractions” bucket, broadcasters are reminded that April 3 is the deadline by which television stations, LPTV stations, TV translators and Class A stations in Delaware and Pennsylvania must file license renewal applications (including the associated Equal Employment Opportunity Report (Form 2100, Schedule 396)).  That is also the date by which radio and television stations in Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, and Texas must upload their Annual EEO Public File Reports for employment units with five or more full-time employees. 

Also worth noting is that, if you are planning an application to be filed with the FCC’s Audio Division after April 1, the Division in January released a Public Notice informing broadcasters that 2020 census data is now available and should be used for all technical applications filed on April 1 or after when computing areas and populations served by any proposal.  The Notice also points out that the new data that should be used in radio applications includes the Census Bureau’s new list of Urbanized Areas, relevant to FCC applications including those that involve an analysis of the Commission’s Rural Radio policy. 

As always, this list of dates is not exhaustive, and deadlines can change.  Always review these dates with your legal and technical advisors, and note other dates not listed here that may be relevant to your operations. 

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

• The FCC’s Media Bureau designated for evidentiary hearing a series of applications that, if granted, would transfer control of TEGNA Inc. to SGCI Holdings III LLC.  TEGNA is the parent company of the licensees of 64 full-power television stations, two full-power radio stations, and other related Commission licenses.  In its Hearing Designation Order, the Bureau directs an FCC Administrative Law Judge to resolve questions regarding (i) whether the transactions are likely to trigger a cable or satellite rate increase harmful to consumers because of increases in retransmission consent fees, and (ii) whether the transactions will reduce or impair localism, including whether they will result in fewer employees and less local content at the stations.  In a news release, FCC Chairwoman Rosenworcel stated that “[t]he additional review will allow us to make a more informed assessment on whether proposed safeguards [related to the transactions] are sufficient to protect the public interest, and we will take the time needed to address these critical questions.”  From the Republican side, Commissioners Carr and Simington issued a joint statement that was less enthusiastic: “[T]he FCC should be working to encourage more of the investment necessary for . . . local broadcasters to innovate and thrive. . .  After a protracted, nearly yearlong review, the Commission should be providing the parties with a decision on the merits—not an uncertain future.”
• The FCC released a draft Further Notice of Proposed Rulemaking (“FNPRM”) that, if adopted as scheduled at the FCC’s March 16 open meeting, would formally propose to extend the FCC’s existing audio description requirements for broadcast television to DMAs below the top 100 (i.e., DMAs 101-210).  Audio description makes video programming more accessible to individuals who are blind or visually impaired by inserting, using a secondary audio stream, narrated descriptions of a television program’s key visual elements during natural pauses in the program’s dialogue. Audio description is already required in DMAs 1 through 90, and these requirements will go into effect in DMAs 91 through 100 on January 1, 2024.  In these markets, “Big Four” stations (ABC, NBC, CBS, and Fox) are required to provide 50 hours of audio description per calendar quarter, either during prime time or in children’s programming, and 37.5 additional hours of audio description per calendar quarter between 6 a.m. and 11:59 p.m. local time.  The FCC proposes to extend these requirements to DMAs 101-210 by phasing in 10 DMAs per year starting on January 1, 2025, meaning that the bottom 10 DMAs would not be phased in until January 1, 2035.  The draft FNPRM asks for comment on, among other things, the cost implications of imposing audio description requirements on stations in DMAs below the top 100; the appropriate compliance deadlines for those stations; how the FCC’s proposals may affect advances in diversity, equity, inclusion, and accessibility; and the FCC’s legal authority to extend the audio description rules as proposed.  If adopted, comments and reply comments on the FNPRM will be due 30 days and 45 days, respectively, after its publication in the Federal Register.
• The FCC recently released a new 2023 version of the EAS Operating Handbook.  A copy of the Handbook must be located at normal duty positions of station operators or at the location of EAS equipment where it can be immediately available to staff responsible for authenticating messages and initiating actions. The handbook provides duty operators information about what to do when EAS alerts (tests or real activations of the system) are received by the station.  The new handbook updates the old handbook in a limited fashion, but it also provides stations an opportunity to update their own practices as the Handbook requires that the broadcaster provide information in spaces provided as to the broadcaster’s specific equipment and procedures at their stations.  Stations should download this Handbook and make sure that it is available as required.
  • Stations are reminded that the deadline for filing EAS Test Reporting System (ETRS) Form One is February 28, 2023.  Filing instructions are provided in the Public Notice issued by the FCC earlier this year.  All EAS Participants – including Low Power FM stations (LPFM), Class D non-commercial educational FM stations, and EAS Participants that are silent pursuant to a grant of Special Temporary Authority – are required to register and file in ETRS, with limited exceptions.  See our recent Broadcast Law Blog article for more information. 
• The Media Bureau entered into a Consent Decree with the licensee of a noncommercial low power FM (LPFM) station to resolve the licensee’s admitted failure to comply with Section 73.850(d) of the FCC’s rules, which requires a station to notify the FCC within ten days that it has gone silent and request special temporary authority (STA) to remain silent for more than 30 days.  The licensee admitted that the station had discontinued operations for 61 days (from May 26, 2021, to July 25, 2021), that it failed to comply with the 10-day notice rule, and that it failed to request an STA after 30 days of silence.  The licensee also inaccurately certified in its renewal application that it had complied with Section 73.850(d), thus violating the FCC’s rule prohibiting inaccurate certifications.  The Bureau directed the licensee to pay a civil penalty of $500 to the U.S. Treasury and to adopt a compliance plan to ensure future compliance with the rules that it violated.  The Bureau also rejected a third-party objector’s claims relating to the station’s ownership, the station’s alleged unauthorized operation as a translator for another LPFM station, the station’s alleged airing of commercial advertising, and the station’s alleged failure to air local programming, finding that the objection did not provide specific allegations sufficient to support the claims made.
• The Bureau proposed to assess a fine of $13,500 against the licensee of nine digital television translator applications (i.e., $1,500 per station) because the licensee had without explanation filed the renewal applications for the stations over two months late.  The Bureau noted that the base fine under the FCC’s rules for this type of violation is $3,000, but that it was reducing it to $1,500 because the stations provide a secondary service and were providing important “fill-in” service to areas that otherwise may be unable to receive over-the-air television signals.
• The Bureau continues to substitute UHF channels for VHF channels in local markets to improve reception of over-the-air television channels, the most recent example being its substitution of channel 27 for channel 11 at Yuma, Arizona.

With a number of upcoming regulatory deadlines approaching, we thought that this would be a good time to remind broadcasters of regulatory obligations that they may have, with the passage of time, forgotten.  One of those obligations is the requirement to file EAS Test Reporting System (ETRS) Form One by February 28, 2023 – next Tuesday.  Filing instructions are provided in the Public Notice issued by the FCC earlier this year (see also our articles here and here).  All EAS Participants – including Low Power FM stations (LPFM), Class D non-commercial educational FM stations, and EAS Participants that are silent pursuant to a grant of Special Temporary Authority – are required to register and file in ETRS, with the following exceptions:  Analog and digital low power television (LPTV) stations that operate as television broadcast translator stations, FM broadcast booster stations and FM translator stations that entirely rebroadcast the programming of other local FM broadcast stations, and analog and digital broadcast stations that operate as satellites or repeaters of a hub station (or common studio or control point if there is no hub station) and rebroadcast 100 percent of the programming of the hub station (or common studio or control point).  This form provides basic information about EAS participants to the FCC. The form requests basic information about contact persons at a station, the model of EAS equipment used, and monitoring assignments under the legacy EAS system. In effect, it registers all EAS users in the ETRS system so that they can file reports on (using ETRS Forms Two and Three) about the performance of Nationwide EAS tests that are periodically conducted.  We are expecting a Nationwide Test in 2023.  While the FCC has not in the past fined stations who failed to file these reports, there are indications that the filing requirement may be taken much more seriously this year.  So, remember to file – and carefully read the Public Notice and the form to make sure that all necessary information is properly uploaded.

On the subject of EAS, the FCC recently released a new 2023 version of the EAS Operating Handbook.  A copy of the Handbook must be located at normal duty positions or EAS equipment locations when an operator is required to be on duty and be immediately available to staff responsible for authenticating messages and initiating actions. The handbook provides duty operators information about what to do when EAS alerts (tests or real activations of the system) are received by the station.  The new handbook updates the old handbook in a limited fashion, but it also provides stations an opportunity to update their own practices as the Handbook requires that the broadcaster provide information in spaces provided in the Handbook as to the broadcaster’s specific equipment and procedures at their stations.  Stations should download this Handbook and make sure that it is available as required. 

February 28 is also the deadline for filing documents in the FCC’s LMS system and uploading materials to the online public files of stations that had trouble previously meeting filing requirements because the FCC’s LMS and public file systems were experiencing substantial technical issues in the first part of this new year.  The February 28 deadline applies to all public file documents due in January, including TV license renewal applications (including the associated Equal Employment Opportunity Report (Form 2100, Schedule 396)) for television stations, LPTV stations, TV translators and Class A stations in New York and New Jersey (which had been due February 1); Annual Children’s Programming Reports (which had been due on January 30); and EEO Public File Reports for broadcast employment units with 5 or more full-time employees in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma (reports that normally would have had to have been uploaded to a station’s public file by February 1).  Quarterly Issues Programs lists for all broadcast stations had been due to be uploaded to the public file by January 10, but that date was initially extended until January 31, and the deadline was further extended to February 28 by last month’s Public Notice. Note that the Public Notice was broad, stating that any public file document due to be uploaded or any FCC application to be filed through LMS must be filed by February 28.  Don’t wait until next Tuesday to try to file these documents, as the system could again suffer if there are too many users trying to file at the same time.  For more details about the extension and about other technical issues with the FCC’s filing systems, see the article we published last month on this subject. 

It is a busy week for these routine FCC filings.  Don’t let these compliance obligations slip by as we are approaching the end of this short month. 

Early this year, we provided our look into the crystal ball to see what was on the FCC’s agenda for broadcasters in  the coming year.  Yesterday, the FCC published in the Federal Register its own list – its Semiannual Regulatory Agenda – listing an inventory of the matters at the FCC awaiting Commission action.  The list includes not just broadcast actions, but also those from other parts of the agency.  It does not provide any timetable for any resolution of the matters – it just notes the currently open rulemaking proceedings at the FCC.  The list is interesting reading, particularly as it includes proceedings that were initiated long ago that many of us forget are still pending.  What is on the list?  Here is a look at some of the items on the list for the FCC’s Media Bureau:

• EEO Policy:  The FCC notes not only the proceeding to bring back the Form 395B that reports on the race, gender, and ethnicity of each broadcast employee (see our article here), and the initiative from the Pai administration asking how EEO enforcement can be made more effective (see our article here). It also notes that still pending is the 2004 Third Notice of Proposed Rulemaking that requested comment as to whether the FCC rules requiring the wide dissemination of information about job openings at broadcast stations should be extended to include part-time positions (an update of the record in that proceeding was requested in 2021).
• LPTV Transition to Digital – Still open is the resolution of issues dealing with Channel 6 LPTV stations that want to continue to provide FM service by retaining an analog audio channel even after they have converted to digital operations – referred to by the FCC as FM6 operations, and by the industry as Franken FMs (see our article here).
• ATSC 3.0 – Still pending on the ATSC 3.0 transition to the Next Generation of TV transmission are issues including reconsideration of changes to the distributed transmission system (DTS) rules (see our article here on the adoption of the DTS rules), the question of when to sunset the requirement that one channel of programming of any station that converts to the new system be left behind in the current ATSC 1.0 transmission system to provide a “lighthouse signal” for consumers who have not yet converted to the new system (by leaving that programming on the digital subchannel of a local station that has not yet converted to the NextGen system), and questions about the liability for programming broadcast on those lighthouse signals (see our article here). 
• Broadcast Ownership Rules – The FCC has not concluded its Quadrennial Review of the broadcast ownership rules that it began in late 2018, and has already started the 2022 review despite not having finished the prior one (see our article here).  Issues include review of the local radio ownership rules and the rule preventing one entity from owning two TV networks, as well as questions about whether rules should be adopted to promote diversity including procurement requirements or other means to promote minority participation in the broadcast media.
• Program Duplication – Reconsideration petitions are pending on the FCC’s 2020 decision eliminating the rules that had prohibited the duplication of programming on same-service radio stations serving the same area (see our article here).
• Foreign Government Sponsored Programming – The FCC is still considering reconsideration requests on the rules that require the identification of programming sponsored by foreign governments or their agents, and the disclosure obligations that attach to the broadcaster’s obligations to ask program buyers if they are representatives of foreign governments (see our articles here and here).
• FM Boosters (“Zonecasting”) – The proposal to allow limited origination of programming by FM translators to allow different ads or news breaks to be transmitted on boosters serving different parts of an FM station’s service area – the controversial proposal by GeoBroadcast Solutions to permit “zonecasting” by boosters (see our article here). 
• Regulatory Fees – Questions of whether the FCC’s system for allocating its costs to those that it regulates should be changed to lessen the burden of regulatory fees on broadcast stations.

These are among the issues that the FCC lists as pending that specifically affect broadcasters.  But there are also pending issues listed in this report that are not under the authority of the Media Bureau, but are instead being considered by other parts of the FCC.  These include review of rules for accessibility (including captioning issues), EAS reform, changes to the C-Band and satellite rules, rules that govern the ability of unlicensed wireless operators to use TV “white spaces,” and other proceedings.  It is also important to note that many decisions affecting broadcasters are not made through the rulemaking process (the only proceedings listed in the FCC’s just released agenda), but instead by day-to-day decisions interpreting the rules already on the books by the Media or Enforcement Bureaus.  It is evident that, despite the lack of a full Commission, there are plenty of issues on the table for FCC consideration that could change the rules that govern broadcast operations.  Stay alert for changes!

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

• The US Court of Appeals for the District of Columbia Circuit held an oral argument on the appeals of three parties seeking review of the Copyright Royalty Board’s decision setting the royalties for webcasting to be paid to SoundExchange for the period 2021-2025 (see our Broadcast Law Blog article for a summary of the Board’s decision being appealed).  The NAB argued that the rates for broadcasters who simulcast their programming on the Internet should be substantially lower than the rates for other webcasters.  The NRB’s Noncommercial Music Licensing Committee argued that the rates for noncommercial religious webcasters should be lower, mirroring the rates paid by nonprofit webcasters affiliated with NPR and the Corporation for Public Broadcasting.  SoundExchange argued that the rates should actually be higher than those set by the CRB.  The Court’s three-judge panel vigorously questioned the premises advanced by the attorneys for each of the parties (a recording of the argument is available here).  A decision from the Court addressing the issues will likely not be released for several months. 
• The Federal Trade Commission held a public forum on its proposal to ban noncompete clauses in employment agreements.  The forum included many speakers supporting the proposed ban, and a few suggesting that the proposed across-the-board ban be limited.  The FTC notice of the forum is here, and a recording of the session is available here. Written comments on the FTC proposal can be filed through March 20. 
• The FCC upheld its Media Bureau’s determination that the licenses of an AM station and associated FM translator station in South Lake Tahoe had expired automatically when the stations did not operate for over a year.  Section 312(g) of the Communications Act states that a broadcast license will automatically expire when a station is silent for more than a year, unless the FCC finds that “equity and fairness” requires that the license be extended.  In this case, the licensee, without advising the FCC, stopped operating both stations from its licensed site sometime in December 2018 when its landlord seized all equipment at the transmitter site for unpaid rent.  There was no evidence that either station operated in 2019.  It was not until 2021 that the licensee asked for special temporary authority (STA) to operate both stations from a new site.  In that STA, it failed to disclose that the stations had been silent for a consecutive 12-month period.  While the Bureau granted the STA, once it learned of pending complaints about the station’s operations and the information gathered by the Enforcement Bureau about the complaints, it advised the licensee that the stations’ licenses had expired automatically as a matter of law pursuant to section 312(g).  The licensee sought review raising several arguments including that the owner was suffering from Parkinson’s disease and thus had problems addressing the issues, that the pandemic made resumption of operation difficult, and that the licensee would transfer the station to its engineer, who was a minority.  The FCC rejected these and other arguments, finding that the illness of the owner was not an excuse (he should have delegated operational issues to someone else), there was no showing that pandemic issues specifically caused any of the station’s financial issues in 2019, and that the proposed sale did not excuse the problems of the current licensee.  The FCC found that there was nothing outside the control of the licensee that caused the period of extended silence so there was no reason to grant any relief by exercising its discretion under Section 312(g)’s “equity and fairness” exception.
• The Media Bureau entered into a consent decree with an FM station to resolve its admitted failure to timely upload records to its online public inspection file.  The Bureau did not impose a fine, but the licensee agreed, among other things, to implement a comprehensive compliance plan to ensure future compliance with its online public inspection file obligations and, one year after entering into the consent decree, submit a compliance report to the Bureau’s Audio Division.
• The FCC issued a Public Notice  announcing the agenda for the February 23 meeting of its Communications Equity and Diversity Council (CEDC).  The agenda includes, among other things, a report on the activities of one of its working groups to provide recommendations for reducing entry barriers and encouraging diverse ownership and management of media, digital, communications services and next-generation technology properties, and to encourage start-ups advancing viewpoint diversity by a broad range of voices.  The CEDC meeting will be held virtually, beginning at 10:00 a.m. ET, and will be available to the public for viewing at http://www.fcc.gov/live.

The recent $504,000 fine proposed to be levied on Fox for the use of simulated EAS tones in an NFL football promotion (see FCC’s Notice of Apparent Liability here) is obviously a message to broadcasters to remember that EAS tones can only be used for real alerts or authorized tests of the system – and not in any advertising, programming or promotions.  This is consistent with past big fines for improper use of these simulated EAS tones (see, for instance, the cases we wrote about here, here, and here).  This aspect of the Fox case – don’t use EAS tones except for real EAS purposes – has been well noted.  What has received less attention are the small details that went into this big proposed fine.

The most obvious of these details was the short duration of the EAS tones that led to the violation itself – the use was only 3 seconds long.  The Commission found that even a 3 second use of EAS tones was sufficient to confuse the public about a possible emergency or to contribute to possible desensitization of the public to the importance of these tones. But this is not the first situation where the FCC has imposed a very large fine for a violation that occurred only very briefly – one of the most obvious situations being a $325,000 indecency fine for a 3 second image of sexual organs in a corner of a TV screen when a station broadcast a screenshot of the homepage of an adult website to illustrate a news story about a former adult film star who became a local first responder (see our summary of that case, here).  Both in the recent EAS case and in the case of the indecency violation, the issues were not caught in the production of the on-air segments or in any pre-broadcast review of the programming before it was broadcast.  Both cases serve as a reminder that stations need to not take anything for granted in their pre-broadcast review of programming segments, reinforcing the need to carefully inspect everything that goes out over the air, as even 3 second violations can lead to fines that exceed $100,000 per second.

But there was another aspect of the case which warrants note – the fact that one violation, even an isolated one years ago, can serve as a basis for the upward adjustment of a penalty for a new violation.  In the Fox case, the “base fine” (the $8,000 base fee for a false use of EAS tones, multiplied by the Fox stations involved led to a $144,000 potential fine) was adjusted upward by the FCC to the ultimate $504,000 penalty for several reasons.  First, the FCC noted that the company should have known better, as it is an experienced operator, and the violation is one that should be obvious to such an operator.  Second, the FCC noted the significant revenue of the company, so a fine, to be meaningful, had to be steep.  But there was another factor that led to the upward adjustment that should be noted by all broadcasters.  The FCC noted that the company was not a first-time offender – citing two fines paid by Fox over a decade ago for matters having nothing to do with EAS tones.  One was a $4,000 fine paid by one Fox station for a video news release in 2011, and the other was a $25,000 penalty for an alleged failure of Fox to respond to an FCC inquiry on indecency (where the affiliate of the Fox network responded to an indecency complaint even though the FCC addressed the inquiry to Fox itself).  These isolated violations from over a decade ago were cited to justify the increase of the EAS fine from $144,000 to $504,000.  The FCC looks at past instances of violations in deciding whether to increase a potential fine from the “base fine” suggested in the FCC’s “forfeiture” guidelines. 

This is not the first time that we’ve seen the FCC rely on a supposed pattern of violations to justify a substantial increase in a base fine amount.  We recently noted a $32,000 fine on Cumulus for the late upload of one EEO annual report at one of its radio clusters.  The amount of the proposed fine for this isolated violation was based partially on the fact that the company had two other past EEO violations (in 2017 and 2009, each resulting in a $2,000 fine).  The FCC also noted that the company had also been found to have violated the sponsorship identification rules in the past.  In fact, those sponsorship identification cases also illustrate how the FCC uses past violations as a way to increase present proposed fines for new violations (see our article here).  As these cases illustrate, even small past violations can lead the FCC to conclude that what was seemingly an isolated, inadvertent issue that will likely, over the course of time, arise in any business, can be escalated to a major liability where there are past violations on a station’s record.  This can occur at any broadcast company, big or small, so it is important to carefully adhere to all FCC rules as even an insignificant FCC violation today can lead to far enhanced penalties in the future should a more serious violation arise at some point in the future.

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

• The Senate Commerce Committee announced that it will hold a hearing on February 14 on the long-delayed nomination of Gigi Sohn for the vacant Commissioner’s seat on the FCC.  As we wrote on our Broadcast Law Blog in our January review of the many broadcast issues pending before the FCC, action on controversial issues has been delayed by the current deadlock of two Democratic and two Republican commissioners.  Even if approved by the Committee following the hearing, the Sohn nomination will still need to get the approval of the full Senate before she fills the empty seat on the Commission. 
• Congresswoman Elise Stefanik (R-NY), Congressman Ro Khanna (D-CA) and Congressman Mike Gallagher (R-WI) introduced the “Foreign Adversary Communications Transparency Act” or FACT Act. If enacted, this legislation, in the name of national security, would require the FCC to publish a list of every entity that holds or has an interest in an FCC license (including any equity interest or any other interest identified by a national security agency) and has ties to any authoritarian regime (including with any company organized in, or which is a subsidiary of a company organized in, one of the identified countries).  The identified countries are China, Russia, Cuba, Venezuela, Iran, and North Korea.  FCC Commissioner Carr issued a statement in support of this legislation, consistent with his previous support of other national security-related proposals involving the FCC.
• The FCC, via public notice, set the comment and reply comment deadlines for its  Notice of Proposed Rulemaking (NPRM) in which it proposes to update certain TV technical rules that no longer have any practical effect given, among other things, the transition from analog to digital-only operations and the completion of the post-incentive auction transition to a smaller television band with fewer channels.  We noted the initial adoption of this NPRM affecting TV and Class A stations in our Weekly Update when it was adopted at the FCC’s September meeting.  Comments are due April 10 and reply comments are due April 25.   The NPRM seeks comment on, among other things, whether to eliminate rules that relate to analog operating requirements; and to similarly eliminate language in rules to remove references to digital television or DTV service (as all TV service is now digital); whether to delete outdated rules that are no longer valid given changes in other Commission-adopted policy, such as the elimination of references to the comparative hearing process to award and renew broadcast licenses, a process eliminated by Congressional and FCC action over 25 years ago; and whether to make other mostly editorial updates to the Commission’s rules for TV and Class A stations. 
• The FCC’s Media Bureau issued an Order reinstating seventeen channels as vacant FM allotments. The reinstated allotments include three FM channels in each of Arizona, California, and Texas, and one channel in each of eight other states.  The listed allotments are now vacant because of the cancellation of a construction permit or license that had been issued for these channels.  The vacant allotments will be available for application by interested parties in a future FM auction.
• In another decision involving NCE FM stations and “Raleigh” waivers (we noted other cases involving this policy last week), the FCC’s Media Bureau granted a station’s application to relocate its transmitter to a site that changed the location of existing contour overlap where the station would be predicted to cause interference to a neighboring station.  A Raleigh waiver permits an NCE station to increase facilities and receive interference provided that the received interference would be from second- or third- adjacent channel stations and in a small area (an area less than 10% of the proposed service area), and where the benefit of increased NCE service heavily outweighed the predicted interference.  In this case, the FCC approved the existing overlap between the applicant and the neighboring station by issuing the neighboring station a Raleigh waiver several years ago, allowing the neighboring station to increase its facilities and receive interference from the station that has now filed to increase its own facilities.  Because theneighboring station had received the benefit of this past Raleigh waiver, the current application to change the interference area would be granted because the proposal served the public interest for reasons including the increase in the service that would be provided by the applicant.  The Bureau noted that the neighboring station’s Raleigh waiver included a standard condition that, in effect, permitted the current applicant to subsequently modify its facilities in a manner that changed the overlap area, as it did in the current application. 

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

• The American Music Fairness Act, proposing to enact a sound recording performance royalty for over-the-air broadcasters, was introduced in in both the House and Senate this past week.  Last year, a similar bill was approved by the House Judiciary Committee but did not advance further before the last Congress adjourned, requiring it to be reintroduced in the new Congress that began in January. SoundExchange issued a press release supporting the new bill, while the NAB issued a statement opposing it and urging the record labels to negotiate with the NAB to try to reach a compromise.  We wrote about last year’s version of the bill on our Broadcast Law Blog when it was being considered by the Judiciary Committee.
• The NAB submitted a filing urging the FCC to complete its 2018 quadrennial review of the broadcast ownership rules by the end of the first quarter of 2023.  NAB also urged the FCC to toll the 2022 quadrennial review (including the upcoming March comment deadlines) until the 2018 review is completed.  The 2018 review, among other issues, proposed to revise the local radio ownership rules, to review the dual network rule, and to consider an objective formula for considering any proposal for the combination of two Top 4 television stations in any market. The Public Notice beginning the 2022 review essentially asks for an update of the 2018 record.  For more on the 2018 review and the 2022 notice, see our article here. It is unclear at this time when or how the FCC will handle the NAB’s request.
  • Related to the ownership review, the FCC released a Public Notice announcing the agenda for the Communications Equity and Diversity Council (CEDC)’s “Expanding Digital and Media Ownership opportunities for Women and Minorities,” symposium on February 7, 2023, from 9:30 am to 4:45 pm, ET. The CEDC is an advisory council of the FCC. The goal of the symposium is to explore the challenges as well as possible solutions for increasing ownership opportunities for women and people of color in all facets of media – TV, radio, cable, and streaming.
• Notwithstanding “a long history of rule violations” and a third-party objection, the FCC’s Media Bureau renewed the license of a noncommercial educational (NCE) FM station, conditioned on the licensee’s continued compliance with a September 2020 consent decree with the Bureau.  After a probationary period under a new Board of Directors, and the licensee having taken steps to resolve complaints of “blanketing interference,” the Bureau renewed the license subject to future FCC oversight of the resolution of additional interference complaints and the licensee’s maintaining an accurate public file.  Blanketing interference, which led to the objection to the renewal, is interference to RF devices owned by consumers in the area within an FM station’s 115 dbu contour.  Within one year of starting operations with any new facility, broadcasters must resolve all complaints of blanketing interference (with certain limited exceptions).  This includes the broadcaster having to buy a consumer new equipment if the interference cannot otherwise be resolved.  After one year of operations, the station must still assist consumers in resolving such complaints, though the station no longer has financial responsibility.    
• In another decision dealing with NCE stations and interference, the Bureau weighed the application of one NCE station to increase its facilities even though the proposal would increase existing areas where the station caused interference to another station, and increase the areas where the upgrading station would receive interference within its protected contour from the other station.  The FCC has a policy of granting a so-called “Raleigh waiver” to allow an NCE station to increase facilities and receive interference where the received interference is from second- or third- adjacent channel stations, is in a small area (an area less than 10% of the proposed service area), and where the benefit of increased NCE service heavily outweighs the predicted interference.  In this case, as the received interference was proposed to occur in less than 5% of the applicant’s proposed new service area, the Bureau found that the Raleigh standard was met.The application would also cause increased interference to the other station, but the FCC found that the small area of possible new interference to the other station was insignificant, particularly as the other station had itself been allowed many years ago to increase facilities by accepting the interference that it receives from the station now proposing to upgrade, so a small increase in that area of interference should not be prohibited. 
• The FCC’s Enforcement Bureau issued a Notice of Violation to an FM translator for purportedly violating the FCC’s rules that (1) prohibit FM boosters and translators from operating during extended periods when signals of the primary station are not being retransmitted, and (2) require that station employees maintain station logs.  The station’s licensee was given 20 days to respond to the Notice.
• The Media Bureau issued a Declaratory Ruling permitting Spanish Broadcasting System, Inc. (SBS) to exceed the 25% benchmark for foreign equity investment set out in section 310(b)(4) of the Communications Act.  The FCC is permitted to allow foreign entities to own more than 25% of the equity of the parent company of an FCC licensee if that ownership would not harm the public interest.  That evaluation is made by looking at factors including whether there are any national security concerns about the proposed foreign ownership.  Here, proposed ownership by foreign investors of up to 49.99% of SBS’s equity was found not to harm the public interest, as the company would still be controlled by a US citizen and the investments by funds organized in foreign countries but controlled by US and Canadian entities were found by executive agencies to not pose any security risk. For more information on the FCC’s process of approving foreign investment in companies owning US broadcast stations, see our articles here and here.
• The Media Bureau issued a Public Notice setting comment dates as to whether, in determining if specific closed captioning display settings are readily accessible, the FCC should consider the following factors: proximity, discoverability, previewability, and consistency and persistence.  Comments are due March 3, and reply comments are due March 20.  The request for comments is an offshoot of the FCC’s ongoing rulemaking on requiring manufacturers of video displays, including television sets, to make closed captioning display settings readily accessible to individuals who are deaf and hard of hearing. 

The Indiana Broadcasters Association recently asked me five questions to highlight the requirements of the FCC’s EEO rules.  As these questions are applicable to all broadcasters, we are posting my response here. My answers are below.

Beyond the general requirement that all broadcasters (and all other businesses) avoid discrimination in hiring, promotion, and all other employment practices, the FCC imposes additional obligations on radio and TV stations that are part of “employment units” with 5 or more full-time employees.  An employment unit is defined as a station or commonly controlled cluster of stations serving the same general geographic area that share at least one employee.  Full-time employees, for FCC purposes, are employees who work at least 30 hours per week. 

1.  Generally, what are the basics of the FCC’s Equal Employment Opportunity requirements?

For broadcasters, the FCC rules set out a three-prong EEO outreach program designed to facilitate the hiring of those not already in the broadcast industry.  The program encourages hiring outreach to alert all members of a community about job openings at a broadcast station, and to educate and inform the community about broadcast employment.

The first prong requires broadcasters to “widely disseminate” information about virtually all full-time job openings at a station. The wide dissemination requirement obligates the broadcaster to provide information about all openings for full-time jobs at its stations in such a way so as to reach members of all groups within its community. 

In the past, broadcasters were required to use more traditional recruitment sources for dissemination of information about job openings, sending notices of vacancies to local community groups, employment agencies, educational institutions, and newspapers to solicit candidates for virtually all open positions at any station. Under an FCC ruling about 5 years ago, while the FCC encourages the use of multiple recruitment sources, a broadcaster can use online recruitment sources as their sole means of meeting their obligation to widely disseminate information about job openings as long as the broadcaster reasonably believes that the online source or sources that it uses are sufficient to reach members of the diverse groups represented in its community.  The broadcaster must self-assess the success of its dissemination and, if they are not getting diverse candidates from the recruitment sources that they use for each job vacancy, they need to consider expanding the scope of their outreach efforts in order to reach diverse candidates.

The second prong of the FCC’s EEO rules requires that broadcasters notify any community group about job openings at the station if the community group specifically asks to be notified of such openings. Stations need to provide such notifications to community groups that ask, and to publicize through on-air announcements or through other means reasonably designed to reach the groups within the station’s community, the fact that community groups can request that they be included on the list of groups getting notifications.

The third prong of the EEO program for broadcasters is the obligation to do “non-vacancy specific outreach.”   The FCC has provided a menu of options for efforts that stations can undertake to educate their community about the jobs available at broadcast stations and the training necessary to fill those jobs, as well as the training of employees and others to assume new responsibilities at broadcast stations. These menu options include activities such as internship and mentorship programs, speaking before community groups about job openings, providing scholarships for those interested in broadcasting, working with educational institutions to educate their students about broadcast jobs, setting up training programs to prepare existing employees to assume new responsibilities, EEO training for management, and similar programs.  Depending on market size and the nature of the activity, stations need to have their employees meaningfully participate in numerous menu options in every two-year period, even if they have no job openings in these periods.

 2. Does the FCC require wide dissemination of information about openings for part-time employees?

While the FCC does not require wide dissemination of information about openings for part-time employees, there are advantages to broadcasters who do go through the outreach process for such openings.  If a broadcaster widely disseminates information about part-time job openings before filling such a position, if the person hired proves to be a capable employee that the broadcaster wants to hire on a permanent, full-time basis, they can do so without any further recruiting efforts.  If the broadcaster did not widely disseminate information about the job opening before hiring the part-timer, before promoting them to a full-time position, they must widely disseminate information about the full-time position to see if anyone with better qualifications applies. 

3.  Should a station participate in State Association-sponsored Career Fairs to bolster EEO outreach credit? 

Yes. As noted above, stations need to do non-vacancy specific outreach efforts to inform members of their communities about broadcast jobs, whether or not they have specific jobs to fill. One of the menu options available to meet that obligation is attendance at job fairs by management-level employees who are involved in the hiring process. If station employees attend 4 job fairs in a two-year period, they get one credit toward meeting their obligations (smaller stations need 2 credits in each two-year period measured from their license renewal filing date to meet their non-vacancy specific outreach requirements, larger stations in larger markets need 4 credits in a two-year period).

4.  When does the FCC review station EEO practices? 

The FCC reviews the EEO practices of broadcast stations on a regular basis.  Each year, employment units with 5 or more full-time employees must upload to the FCC-hosted online public file of each station within their unit an Annual EEO Public Inspection File Report.  This report details each full-time job opening filled in the prior year, with information about the recruitment sources used to fill the positions, and which sources resulted in candidates who were interviewed for the open positions, as well as the recruitment source of the person who was hired.  The annual report also must summarize the non-vacancy specific menu options in which employees of the station participated during the year. This report must be uploaded by the anniversary of the due date for a station’s license renewal application.

The FCC can ask for further information about employment practices at a station if they receive any complaints about the station’s EEO performance.  For television stations and larger radio groups, they routinely review the Annual Public File Reports of all stations in a state at the mid-point of the license renewal cycle (April 2024 for Indiana radio, and April 2025 for Indiana TV).  The FCC also conducts annual audits of 5% of all broadcast stations, reviewing not only the public file information, but also asking for documentation that supports the EEO efforts specified in the annual reports.  Finally, the FCC reviews EEO performance of stations when it reviews the station’s license renewal application.

5.  Do you see any additional EEO-related changes on the horizon?

The FCC began a proceeding about 5 years ago to review its EEO rules to determine if there should be changes to make them more effective.  The FCC did not propose any specific changes in its rules, instead asking for general comments on what could be done to make the rules more effective.  The comments ranged from those urging fewer specific obligations on broadcasters with more emphasis on those who violate general employment discrimination principles applicable to all businesses, to those seeking more specific goals for station recruiting efforts.  Likely, further public comments will be required before the FCC adopts any specific proposal advanced in that proceeding.

The FCC is also contemplating the return of the FCC Form 395-B, an annual employment report detailing the gender and the race or ethnicity of all station employees and classifying these employees by the job function that they fulfill at the station (e.g., management, on-air, sales, engineering, or clerical).  The filing of this report was suspended over 20 years ago when a court found its use was discriminatory, as the FCC was penalizing stations that did not meet specific racial or gender quotas in their workforce.  The FCC wants to bring back the form to track employment practices in the broadcast industry but is struggling with privacy concerns and with how to collect the employment data without violating the court’s mandate against using the information for enforcement purposes.

*         *         *

This is just an outline of the FCC’s EEO rules.  For each of the obligations described above, there are many details and nuances impossible to cover in this limited format. Interpretations of these rules also change over time.  More information is available in the slides of a presentation that I did recently for the Pennsylvania Association of Broadcasters, available here.  But even those slides are just a summary of the obligations.  Broadcasters should always consult with their own attorneys and advisors for the latest information on EEO rules from the FCC, and on the requirements that are applicable to all businesses through state and federal law.

There are normally a host of regulatory obligations at the beginning of February, but because of technical issues with the FCC’s online public file and LMS systems, many February 1 dates, as well as some January regulatory deadlines, have been extended to late February.

Due to technical problems that affected FCC filings throughout the month of January, the FCC last week issued a Public Notice extending the deadlines for all filings in the FCC’s LMS or online public file systems that were due in late January and early February.  The new deadline for these filings is February 28, 2023.  This new deadline applies to TV license renewal applications (including the associated Equal Employment Opportunity Report (Form 2100, Schedule 396)) for television stations, LPTV stations, TV translators and Class A stations in New York and New Jersey (which had been due February 1); Annual Children’s Programming Reports (which had been due on January 30); and EEO Public File Reports for broadcast employment units with 5 or more full-time employees in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma (reports that normally would have had to have been uploaded to a station’s public file by February 1).  Quarterly Issues Programs lists for all broadcast stations had been due to be uploaded to the public file by January 10, but that date was initially extended until January 31, and the deadline has now been further extended to February 28 by last week’s Public Notice. Note that the Public Notice is broad, stating that any public file document due to be uploaded or any FCC application to be filed through LMS must be filed by February 28.  Notwithstanding the extension, licensees should not wait until the last minute to upload documents, as the intermittent problems that have plagued the systems could persist for some time and make meeting even the extended deadline problematic, especially if you wait for the last minute to try to file.  For more details about the extension and about other technical issues with the FCC’s filing systems, see the article we recently published on this subject. 

February 28 is the deadline by which EAS participants must file their EAS Test Reporting System (ETRS) Form One.  Filing instructions are provided in the Public Notice issued by the FCC earlier this month (see also our articles here and here).  All EAS Participants – including Low Power FM stations (LPFM), Class D non-commercial educational FM stations, and EAS Participants that are silent pursuant to a grant of Special Temporary Authority – are required to register and file in ETRS, with the following exceptions:  Analog and digital low power television (LPTV) stations that operate as television broadcast translator stations, FM broadcast booster stations and FM translator stations that entirely rebroadcast the programming of other local FM broadcast stations, and analog and digital broadcast stations that operate as satellites or repeaters of a hub station (or common studio or control point if there is no hub station) and rebroadcast 100 percent of the programming of the hub station (or common studio or control point) are not required to register and file in ETRS.  Carefully read the Public Notice and the form to make sure that all necessary information is properly uploaded.

Reply comments are due on February 13 on the proposal by the NAB and Xperi, Inc. to adopt a new formula for computing the allowable power of FM digital subchannels and a combined proposal to allow the operation of sidebands with differing power levels (“asymmetric sidebands”).  Adoption of these proposals may allow greater coverage and improved reception for programming broadcast on FM subchannels.  See our article here for more information on these proposals.   

February 14 is the deadline by which commercial and noncommercial webcasters and broadcast stations that simulcast programming over the Internet must submit to SoundExchange their monthly report of use and monthly usage statement of account forms for the month ending Dec. 31, 2022.  These will be the last payment under the 2022 rates, as the Copyright Royalty Board (CRB) recently announced cost of living increases in the statutory royalties to be paid in 2023, increases which became effective on January 1.  For more details about these increases, see our article here. 

These same webcasting royalties are currently subject to appeal, with several parties seeking review of the CRB decision (see our articles here and here) that led to the rates.  Broadcasters have challenged the failure of the Board to adopt a lower rate for simulcasters, and the NRB Noncommercial Music License Committee has challenged the rates set for nonprofit religious webcasters, arguing that it should be significantly lower.  The US Court of Appeals will be holding an oral argument on these and other issues raised on appeal on February 17.  A decision in the case is expected this summer.

The CRB also recently published the tentative rates that noncommercial broadcasters will pay to ASCAP, BMI, SESAC and GMR for the period 2023-2027.  Comments on the proposed rates are due through February 27.  For more on the proposed rates, see our article here. 

Looking ahead to early March, the FCC’s increased application fees will become effective on March 2.  The FCC in December announced the increase of those fees to reflect increases in the cost of living.  See our article here for a list of the new fees for broadcast applications.  As the FCC Order increasing the fees has now been published in the Federal Register, the increase will become effective on March 2, so to save a few dollars, file and pay for any applications that you can before the new fees take effect.

On March 3, comments in the FCC’s new Quadrennial Review are due.  The Quadrennial review, announced just before Christmas, is to review many of the FCC’s ownership rules, including the local radio and television ownership limits.  A review of whether the ownership limits continue to serve the public interest is required by Congress to be commenced every four years, so the 2022 review has started, even though the FCC has not yet completed its 2018 review of the rules.  See our article here discussing some of the specific rules that are subject to review. 

As always, this list of dates is not exhaustive, and deadlines can change.  Always review these dates with your legal and technical advisors, and note other dates not listed here that may be relevant to your operations. 

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

• The FCC issued a Public Notice extending the deadlines for all filings in the FCC’s LMS or online public file systems.  The new deadline is February 28, 2023.  The extension was necessitated by widespread technical issues throughout the month of January with the FCC’s LMS and online public file systems.  The February 28 deadline applies to TV license renewal applications in New York and New Jersey, Annual Children’s Programming Reports, Quarterly Issues Programs lists for all broadcast stations (the deadline for which was already extended once before), and EEO Public File Reports for broadcast employment units with 5 or more full-time employees in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma.  Notwithstanding the extension, licensees should not wait until the last minute to upload documents, as there may still be residual issues with the system for some time.  For more details about the extension and about other technical issues with the FCC’s filing systems, see the article we recently published on our Broadcast Law Blog.  
• The FCC issued a Notice of Apparent Liability (NAL) proposing a penalty of $504,000 against Fox Corporation and related entities for apparently violating Section 11.45(a) of the FCC’s rules, which prohibits false or deceptive emergency alert system (EAS) codes or EAS Attention Signals.  According to the NAL, on November 28, 2021, Fox transmitted a three second excerpt of the EAS Tones during a Fox National Football League broadcast in a short comedic promotional segment for an upcoming game.  The segment was run on its 18 owned-and-operated stations, on 190 network affiliated stations, on Fox Sports Radio (reaching nearly 15 million listeners on iHeartRadio and FOXSportsRadio.com), and on the “Fox Sports on XM” channel carried nationwide on the Sirius XM satellite digital audio radio service.  The FCC applied an $8,000 base penalty multiplied by 18 (i.e., the number of Fox owned-and-operated stations involved) to arrive at a total base penalty of $144,000, with an upward adjustment to $504,000 due to the audience reach of the Fox stations, the fact that the creation and transmission of the segment involved self-promotion by Fox for the purposes of economic gain, and as Fox is an experienced broadcaster well aware of the FCC rules.  While the FCC also found Fox responsible for transmitting the segment to its affiliates nationwide in violation of the rule, the FCC did not fine Fox as a programming network because the one-year statute of limitations period applicable to non-broadcasters had expired.
• The FCC’s Audio Division released a Public Notice informing broadcasters that 2020 census data is now available and should be used for all technical applications when computing areas and populations served by any proposal.  The Notice also describes the Census Bureau’s new list of Urbanized Areas, relevant to FCC applications including those that involve an analysis of the Commission’s Rural Radio policy. 
• The Copyright Royalty Board published in the Federal Register the proposed rates for the public performance of musical compositions by noncommercial broadcasters for the period 2023 through 2027.  The rates reflect settlements between ASCAP, BMI, SESAC and GMR with various organizations representing noncommercial broadcasters, including the Corporation for Public Broadcasting and the NRB (the religious broadcasters’ organization which has a noncommercial licensing committee).  The decision also includes rates for noncommercial stations licensed to colleges, universities, and other schools.  Comments and objections, if any, to these proposed rates are due on or before February 27, 2023.  More information about the rates and the CRB proceeding is available in this article we published on our Blog.
• In 2018, the FDA announced that it would be adopting rules for CBD health claims and the inclusion of CBD in ingestible products.  The FDA this week announced that it has been unable to reach a decision, as it was not in a position to approve CBD as a food additive or health supplement, suggesting that Congress should address these issues.  Broadcasters should consult with counsel before running CBD advertising that makes health-related claims, or ads for ingestible CBD products.
• Several decisions were issued in connection with applications filed in the 2021 noncommercial FM window.
  • The Bureau rescinded its selection of the winning applicant for an NCE FM station at Dasher, Georgia, after considering a petition to deny that it did not review before the winning applicant was selected.  The Bureau had mistakenly relied on the applicant’s original population coverage analysis submitted in its application in finding the applicant to be preferred in a “fair distribution” analysis, overlooking an amended analysis submitted later.  After considering the amended analysis, the Bureau found that the winner’s coverage proposal exceeded that of the remaining competing applicant by less than the 5,000 people necessary for a decisive preference.  Accordingly, the Bureau referred the two applications to the full FCC for evaluation under its point system analysis.
  • The Bureau also rescinded the tentative selection of an applicant for a new NCE FM station at Shiner, Texas, finding that the applicant lacked reasonable assurance of the availability of its tower site when it filed its application. An NCE applicant is required to specify in its application the name of the person contacted about the site, the person’s telephone number, and the person’s authority to give permission (i.e., are they an owner, agent, or authorized representative).  The applicant instead submitted information regarding an individual employed by a tower company unrelated to the actual tower owner, and never amended its application to correct the error or to provide information that it had received permission from the tower owner.
  • The FCC issued a Memorandum Opinion and Order tentatively selecting winning applicants from 34 groups of mutually exclusive NCE FM applications using its points analysis.  The decision is a good primer on how the FCC’s point system works and what the FCC considers when performing the points analysis.
• The Bureau entered into a consent decree with a student-run NCE FM station to resolve the station’s acknowledged violation of the FCC’s rules relating to timely filing of renewal applications and maintenance of an online public inspection file.  As this was a first-time paperwork violation by a student-run station, it fell within the policy treating such violations leniently, so the consent decree required a penalty payment to the United States Treasury in the amount of only $500 and implemented a comprehensive plan to ensure future compliance by the station with the FCC’s online public inspection file and application filing obligations.
• The FCC’s Wireless Telecommunications Bureau issued updated instructions to the tower industry for considering as part of an applicant’s environmental review the potential effects that proposed facilities could have in the northern long-eared bat’s (Myotis septentrionalis) range.  The U.S. Fish and Wildlife Service’s new rule on the subject will go into effect on March 31, 2023.  The most recent Public Notice on these items is available here.
• The FCC’s Media Bureau issued a Public Notice requesting comment on a proposal that would require the FCC to consider proximity, discoverability, previewability, consistency, and persistence when determining whether closed captioning display settings are readily accessible.  The Public Notice is an offshoot of the FCC’s ongoing rulemaking on requiring manufacturers of video displays, including television sets, to make closed captioning display settings readily accessible to individuals who are deaf and hard of hearing.  Comments and reply comments will be due 30 and 45 days, respectively, from the date on which the Public Notice is published in the Federal Register.

The FCC yesterday issued a Public Notice, extending the deadlines for all filings that were due to be made next week in the FCC’s LMS or online public file systems.  The new deadline is February 28, 2023.  While we don’t usually post articles on this blog on Saturday, given that there may be broadcasters around the country hunched over their computers trying to make FCC filings due next week, we thought that we would make an exception today and send this alert.

This extension gives more time to broadcasters to upload many applications and reports that are due to be filed next week.  This includes license renewals that were due to be filed by February 1 by television stations, LPTV stations, TV translators, and Class A stations in New York and New Jersey.  For all commercial TV stations in the country, the Annual Children’s Programming Reports which were due January 30 are now due by February 28.  Quarterly Issues Programs lists for all broadcast stations, which originally were due to be uploaded to station public files by January 10 and then by January 31 per a prior FCC extension, must now be uploaded by February 28.  EEO Public File Reports for broadcast employment units with 5 or more full-time employees in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma were due to be uploaded to the online public file by February 1 – and that deadline too will be extended to February 28.  The Public Notice is broad, saying any public file document due to be upload or any FCC application to be filed through LMS are extended until February 28.  If you have any FCC deadline coming up, check with your attorney to see if it is covered by this extension.  Remember that this applies only to applications and reports to be filed through the FCC’s LMS and online public file systems. 

This extension was necessitated by widespread technical issues with the LMS and online public file systems.  These issues have been going on throughout the month of January.  The technical issues have affected even amendments to applications that have already been filed (e.g., amendments to assignment or transfer applications or construction permit applications).  We have even been told of issues with fees being associated with applications that have been filed (leading to the dismissal of some applications for not paying application fees when those fees were in fact paid) and with licensees trying to file applications and finding that their accounts have been frozen because of “red lights” for allegedly unpaid regulatory fees – when those fees had indeed been paid.  The systems at the FCC are not totally offline.  The problems have been widespread but intermittent (for example, where an upload can be made one minute, and then the next minute uploads will not work).  It is possible too that at times a broadcaster may think that their upload was successful, only to later find that it was not in fact saved in the system. 

Broadcasters should keep trying to get their documents uploaded.  Do not wait until the last minute to upload documents, as there may still be residual issues with the system.  And check applications and other documents that you think have been filed properly to make sure that the FCC system has indeed accepted them, and doublecheck fee filings and any subsequent amendments to make sure that they have been associated with the application to which they relate.  We have been told that the FCC is working to resolve these issues, but as they are widespread and obviously not yet under control, this extension was issued.  Keep working to upload your documents – but you now have some more time to try to get the FCC’s systems to cooperate.