In a Federal Register notice published today, the Copyright Royalty Board announced cost-of-living increases in the statutory royalties paid by webcasters for the public performance of sound recordings.  These are the royalties paid to SoundExchange by those making noninteractive digital transmissions of sound recordings.  This included broadcasters who simulcast their over-the-air programming on the internet or through mobile apps (or through other digital means including smart speakers like Alexa, see our article here).  The CRB notice sets out the computations that the Board used to determine the amount of the cost-of-living increase.  Those computations led to a royalty rate for 2023 of $.0024 per performance for services that do not charge a subscription fee.  For subscription services, the rate will be $.0030 per performance.  A performance is one song played to one listener – so for one song paid to four listeners one time each, a webcaster pays about a penny.

Given the rate of inflation in the general economy, it is perhaps no surprise that the rates for 2023 represent a substantial increase from the royalties paid last year, and from those that were in place in 2021, the first year of the current 5-year royalty period.  As we wrote here, when the CRB decided on the rates for 2021-2025, the nonsubscription rate was $.0021 per performance.  But the CRB provided for cost of living increases.  That led to rates in 2022 for commercial webcasters, including broadcasters streaming their programming on the internet, of $.0022 per performance for a nonsubscription transmission and $.0028 per performance for a subscription transmission (see our article here mentioning the 2022 increase).

A couple of points are worth noting.  First, while these rates are effective, the 2021 decision of the CRB which set the rates is still being appealed.  Among the points raised on appeal is the NAB’s contention that broadcasters who simulcast should pay less than other webcasters, particularly those webcasters who offer some degree of listener influence on their program streams (see our article here describing how these webcasting royalties, though they apply only to “noninteractive” webcasting, do allow some degree of listener influence  as long as that influence does not allow listeners to pick the songs that they will hear on the service).  SoundExchange, on the other hand, is arguing that the royalties should be even higher.  Reply briefs in the case are due at the end of next week, with oral arguments to follow at some point next year, so that a decision will likely not be reached until late in 2023.  While the appeal is pending, webcasters continue to pay the royalties set by the CRB, with an adjustment due should the appeal result in any changes in the rates that were set by the CRB.

It is also worth noting that these increases also apply to noncommercial webcasters who exceed the monthly allotment of 159,140 aggregate tuning hours (a “tuning hour” is one listener listening to one hour of music programming) that any channel provided by a noncommercial webcaster gets for the minimum annual $1,000 fee.  However, many noncommercial webcasters, including those affiliated with NPR or CPB and those affiliated with educational institutions, are covered by other royalty settlements that don’t involve per performance fees, so they are not affected by this cost-of-living increase.  The National Religious Broadcasters Noncommercial Music Licensing Committee, who represents many of the noncommercial webcasters who are subject to the cost-of-living increase, is also a party to the pending appeal.

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

Until recently, to many in the industry, HD radio seemed to be an afterthought – maybe useful in feeding analog translators, but otherwise not very accessible to the public.  But there is now more and more interest in HD radio given the increased inclusion of receivers for this digital service as standard equipment in a majority of new cars.  This means that consumers have ready access to programming on digital FM subchannels that the technology allows, plus the digital sound quality that HD radio provides and the auxiliary data services that can be conveyed along with the audio programming.  This week, the FCC’s Media Bureau issued a Public Notice asking for comments on two technical proposals to enhance service to the public while minimizing interference that the service might otherwise cause to nearby adjacent-channel stations.

Comments are sought on a proposal by the National Association of Broadcasters and Xperi, Inc. (which acquired iBiquity, the company that developed the HD Radio technology) seeking adoption of an updated formula for computing the power level of the “sidebands” on which the HD service resides. The request also asks that the proposal be combined with a 2019 request that FM stations be allowed to operate an HD service with “asymmetric sidebands” without having to seek experimental authority.  What do these requests mean and why might they be important?

To explain the issues most simplistically, HD radio operates on what are referred to as “sidebands” of an FM station’s main signal.  In essence, the digital information that can be transmitted by a station operating in HD (including separate programming streams and more textual information) is included on frequencies immediately adjacent to the analog signal.  While this additional digital information is transmitted on the same “channel” as the analog station, that information is put on the edges of the channel (as opposed to in its center where radiation is highest in an analog operation).  When HD radio was authorized early in this century, there were fears that the increased digital use of these sidebands could create interference to adjacent channel stations, as there was greater use of the HD station’s channel on the portions of that channel closest to adjacent channel stations.  Thus, as noted in the new NAB/Xperi petition, the Commission itself recognized that it was being conservative in the power levels permitted for the HD operations to guard against such interference to adjacent channel stations.

So how much power should be allowed in these digital sidebands?   That is a question that has been debated since the service was first adopted, and there have been many proposals for permission to increase the permitted power levels (see, for instance, the proposals we wrote about here and here).  The NAB/Xperi petition contends that, given the experience that has been accumulated in the last decade that HD radio has been in use, there is no longer any reason for the Commission to be conservative about the power levels for these digital sidebands.

The NAB/Xperi petition also asks that its proposal be consolidated with a proposal filed by these same parties (plus National Public Radio) in 2019 that asks the FCC to authorize digital FM operations with asymmetric sidebands, i.e., sidebands operating at different power levels.  Right now, the power of the digital sidebands must be equal unless specially authorized by the FCC.  However, the parties argue that, where the protections need to be greater on one side of the station’s frequency than the other (e.g., a station on an adjacent channel above the HD station’s frequency is closer, or of higher power than any adjacent channel station operating on a channel below the HD station’s frequency), the power can be restricted on that side, and increased on the sideband where there is more leeway.  Allowing increased power on even one sideband would, in the proponent’s view, give the station a better HD signal in its service area.

The purpose of these changes is to help overcome any perception by broadcasters that an HD signal is not worth implementing if it would not provide essentially the same coverage as the analog station.  If a station’s HD signal can be delivered at a higher power, even on one sideband, the proponents believe that the stronger HD signal will be provided to a station’s audience, coming closer to replicating the station’s analog service area (and delivering all the benefits of HD service as well).  The intention is to encourage broader implementation of HD radio services to the public.

Comments on these proposals are due January 12, 2023, with reply comments due by February 13, 2023.  These are but initial comments as to whether the FCC should move forward in its consideration of this petition.  Before any rule changes will be made, the FCC will likely need to issue a Notice of Proposed Rulemaking, spelling out the specific changes it proposes to make in its rules to accommodate the proposals.  That process will require further public comment.  Nonetheless, this is a significant first step in the FCC’s consideration of these proposals – watch as these potential changes to digital radio move forward at the FCC, and offer your opinions on these proposals by the comment dates that the Media Bureau has established.

Even with the holidays upon us, regulation never stops.  There are numerous regulatory dates in December to which broadcasters need to pay heed to avoid having the FCC play Grinch for missing some important deadline.

December 1 is the deadline for license renewal applications for television stations (full power, Class A, LPTV and TV translators) licensed to communities in Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont.  Renewal applications must be accompanied by FCC Form 2100, Schedule 396 Broadcast EEO Program Report (except for TV translators).  Stations filing for renewal of their license should make sure that all documents required to be uploaded to the station’s online public file are complete and were uploaded on time.  Note that your Broadcast EEO Program Report must include two years of Annual EEO Public File Reports for FCC review, unless your employment unit employs fewer than five full-time employees.  Be sure to read the instructions for the license renewal application and consult with your advisors if you have questions, especially if you have noticed any discrepancies in your online public file or political file.  Issues with the public file have already led to fines imposed on TV broadcasters during this renewal cycle.

December 1 is also the deadline by which radio and television station employment units with five or more full-time employees licensed to communities in Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, and Vermont must upload Annual EEO Public File Reports to station online public inspection files (also, the FCC has issued an extension that permits stations in Florida that suffered the effects of Hurricane Ian to upload their Annual EEO Public File Reports by December 12).  This annual EEO report covers hiring and employment outreach activities for the prior year.  A link to the uploaded report must also be included on the home page of a station’s website, if it has a website.

In addition, by December 1, digital television stations that provided ancillary or supplementary services between October 1, 2021 and September 30, 2022 must submit FCC Form 2100, Schedule G, and pay a fee equal to 5% of the gross revenue derived from any ancillary or supplementary services they provided.  Noncommercial digital TV stations that provided such services on a nonprofit, noncommercial, and educational basis must file the form but are required to pay only 2.5% of the gross revenue derived from those services.  Ancillary and supplemental services do not include non-subscription video channels delivered directly to the public (i.e., multicast channels), but they do include any other services provided over the station’s spectrum from which the station receives compensation, including “computer software distribution, data transmissions, teletext, interactive materials, aural messages, paging services, or audio signals, [and] subscription video.”  Stations that provided no such services do not need to file a report.

Radio broadcasters who, in all but the last months of 2022, entered into consent decrees with the Media Bureau to resolve concerns about documents concerning the purchase of political advertising time that were uploaded late to a stations online public file have until December 9 to file their compliance reports.  These reports certify that the station complied with the training and oversight requirements of the consent decrees, and they must include a spreadsheet showing when all political advertising material sold in the 90 days before the November 2022 election was uploaded to the public file.  For more information about these consent decrees, see our article here.

December also includes deadlines for comments in certain FCC rulemaking proceedings. One of the most controversial is the Second Notice of Proposed Rulemaking seeking comment on proposals to enhance the FCC’s requirements that each broadcaster verify that any program time sold to third parties (or any pre-produced programming received for free) does not come from a “foreign government entity,” i.e., a foreign government or one of its agents.  Various disclosure obligations apply if the programming does in fact come from a foreign government entity.  Initial comments on the Second NPRM are due by December 19, 2022 and reply comments should be submitted by January 3, 2023.  In the Second NPRM, the FCC proposes, among other things, that a licensee certify that it has informed any buyer of program time of the foreign sponsorship identification rules and obtained, or sought to obtain, a certification from the program buyer stating, with standardized language proposed by the FCC, whether the buyer is or is not a “foreign governmental entity.” The FCC also proposes to require that all of those certifications, even when the program buyer is not a foreign government entity, be included in a station’s online public inspection file.  For further background on this proceeding and its implications for broadcasters, see our articles here and here.

By virtue of an extension Order jointly issued by the FCC’s Wireless Telecommunications Bureau and Office of Engineering and Technology, December 12 and January 13 are now the comment and reply comment deadlines, respectively, for the FCC’s Notice of Inquiry that explores opportunities to open the 12.7-13.25 GHz (12.7 GHz) band for next-generation wireless services.  Licensed services currently in the 12.7 GHz band whose operations could be affected by any change in the uses permitted in the band include satellite communications and mobile TV pickup operations (for more background, see our articles here and here).

The Emergency Alert System (“EAS”) is the subject of other possible changes in the FCC rules.  On December 23 and January 23, respectively, comments and reply comments are due on the FCC’s Notice of Proposed Rulemaking  on potential rule changes intended to enhance EAS and Wireless Emergency Alerts (“WEA”). The FCC seeks comment on, among other things, whether to require EAS Participants (including broadcasters) to report to the FCC incidents of unauthorized access to EAS equipment within 72 hours of when the participant knew or should have known that the incident occurred.  The NPRM also asks whether EAS Participants (including broadcasters) should be required to submit an annual cybersecurity certification that demonstrates how the participant identifies the cyber risks that it faces, the controls it uses to mitigate those risks, and how it ensures that these controls are applied effectively.  We wrote more extensively about this proceeding, here.

On the subject of EAS, December 12 is the effective date of a recently adopted FCC Report and Order aimed at making emergency alerts delivered over television and radio stations more informative and easier to understand by the public. The effective date gives broadcasters one year (i.e., by December 12, 2023) to update their systems to comply with the new rules. Among other changes, the updated rules will require broadcasters, cable systems, and other EAS Participants to transmit the Internet-based version of emergency alerts (i.e., those transmitted through the internet based Integrated Public Alert and Warning System, “IPAWS,” using the Common Alerting Protocol or “CAP”) when the station receives alerts from both IPAWS and from the traditional over-the-air “daisy chain” system.  For more details on these new rules and on other proposed changes in EAS requirements for broadcasters, see our article, here.

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

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

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

During the last two years when normal routines have been upended, those of us who have remained healthy and employed are truly blessed. We should all be thankful for jobs, friends, and good fortune. But we should also ourselves give back where possible.  In the broadcast industry itself, there are many groups doing good work.

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

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

I spend significant time on the road, visiting with broadcasters and others in the media industry at state and national conventions.  Many state broadcast associations run charitable foundations – often using the funds they receive to provide internships and scholarships to students interested in working in the broadcast industry. While conventions for these organizations have resumed this year after a pandemic pause, many of these foundations have to make up for lost time when auctions, raffles and other fundraisers that help fund the activities of these charitable organizations were not held.  What could be a better investment than training the next generation of broadcasters to be prepared to provide the service that the public will demand tomorrow and into the future? Contact your local state broadcast association for more information about these foundations.

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

These are but a few of the many ways for broadcasters and those in the broader media industry to contribute to their communities.  As we begin to gear up for what will likely still be a hopefully more normal (though likely still somewhat different) holiday season, all of us should consider how we can give back – whether it is monetarily, through service or in other ways. Enjoy your success and remember others as well.

Here are some of the regulatory developments of significance to broadcasters from the 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 Notice of Proposed Rulemaking (“NPRM”) looking to enhance the security of the Emergency Alert System (“EAS”) and Wireless Emergency Alerts (“WEA”) was published in the Federal Register this week.  That publication sets the deadlines for public comment as December 23, 2022, for comments and January 23, 2023, for replies.  The FCC seeks comment on, among other things, whether to require EAS Participants (including broadcasters) to report to the FCC incidents of unauthorized access to EAS equipment within 72 hours of when the participant knew or should have known that the incident occurred, and whether EAS Participants (including broadcasters) should be required to submit an annual cybersecurity certification that demonstrates how the participant identifies the cyber risks that it faces, the controls it uses to mitigate those risks, and how it ensures that these controls are applied effectively.  We wrote more extensively about this proceeding on our Broadcast Law Blog.
• The FCC’s Wireless Telecommunications Bureau and Office of Engineering and Technology jointly issued an Order granting an extension of the comment and reply comment deadlines for the FCC’s Notice of Inquiry on how to encourage more efficient and intensive use of the 12.7-13.25 GHz band.  Licensed services in the 12.7 GHz band which might be affected by any changes in the use of this spectrum include satellite communications and mobile TV pickup operations. Comments are now due December 12, 2022, and reply comments are now due January 10, 2023.  For background on this proceeding, see our notes about previous steps in this proceeding in our articles here and here.
• In a decision regarding the sale of radio stations by Univision Radio to Latino Media Network, the Audio Division of the FCC’s Media Bureau discussed the FCC’s longstanding prohibition on the seller of a broadcast station retaining a “reversionary interest” in the station it is selling.  In this case, FCC staff found that the intent of the buyer to enter into a Local Marketing Agreement by which the seller would program some of the stations after closing was not a reversionary interest, because the buyer was free to make post-closing programming decisions for the stations by retaining ultimate control over the programming and station operations, including whether or not to enter into the LMA.  Had the LMA been a condition of the sale required by the seller, or had it served as partial consideration to the seller for the sale, the FCC suggested that it would have violated the prohibition against revisionary interests.  For further information about this case and the FCC’s prohibition on reversionary interests, and the impact that this prohibition has on broadcast financing, see our article here.
• A list of proposed changes in the city of license of a number of broadcast stations was published in the Federal Register, setting the date for the filing of any objections to these proposed changes.  The proposed changes listed in the publication are: KOLT(AM), from Terrytown, NE, to Lexington, NE; WWLX(AM), from Lawrenceburg, TN, to Loretto, TN; KRXR(AM), from Gooding, ID, to Filer, ID; KABV(FM), from Premont, TX, to Ben Bolt, TX; KAMZ(FM), from Tahoka, TX, to Ropesville, TX; KQXZ(FM), from Richland Springs, TX, to Adamsville, TX; WKIH(FM), from Vidalia, GA, to Twin City, GA; KSZX(FM), from Santa Anna, TX, to Menard, Tx; and KTCY(FM), from Menard, TX, to Wall, TX.  Comments on these proposals are due to be filed at the FCC by January 27, 2023.

In a decision this week on the sale of radio stations by Univision Radio to Latino Media Network, the Audio Division of the FCC’s Media Bureau discussed the FCC’s longstanding prohibition on the seller of a broadcast station retaining a “reversionary interest” in the station it is selling.  In this case, FCC staff found that the intent of the buyer to enter into a Local Marketing Agreement by which the seller would program some of the stations after closing was not a reversionary interest, because the buyer was free to make programming decision for the stations as long as it retained ultimate control over that programming and station operations.  Had the LMA been a condition of the sale, or had it served as partial consideration for the sale, the FCC suggested that it would have violated the prohibition against revisionary interests. But as the seller did not make the LMA a condition of the sale, the post-closing decision to enter into an LMA was a programming decision under the control of the buyer and thus was not deemed to be a prohibited reversionary interest.  No matter what the holding of this case, a more fundamental question arises – what is a reversionary interest and why is it prohibited?

In reviewing our blog when writing this article, we noted that in the almost 17 years we have been publishing, we don’t seem to have ever referred specifically to the question of reversionary or retained interests in a broadcast station.  It is an issue that does not come up often, but it is related to another issue that we have written about before – the prohibition on a lender taking a security interest in a broadcast license (see, for instance, our two part article on security interests in broadcast licenses, here and here).  The prohibition on the right of reversion or retained interest in a broadcast license is set out in Section 73.1150 of the FCC rules, which states:

(a) In transferring a broadcast station, the licensee may retain no right of reversion of the license, no right to reassignment of the license in the future, and may not reserve the right to use the facilities of the station for any period whatsoever.

(b) No license, renewal of license, assignment of license or transfer of control of a corporate licensee will be granted or authorized if there is a contract, arrangement or understanding, express or implied, pursuant to which, as consideration or partial consideration for the assignment or transfer, such rights, as stated in paragraph (a) of this section, are retained.

The prohibition against the right of reversion, and the prohibition against a lender taking a security interest directly in a license, were both adopted by the FCC to implement Communications Act requirements that state that a broadcast license does not convey an ownership interest in the spectrum being used, but instead only confers on the license holder a right to use the spectrum that does not extend “beyond the terms, conditions, and periods of the license.”  In adopting the prohibitions against a reversionary interest, and the prohibitions on taking a security interest in a license, the FCC believed that these interests would imply an ownership interest in the license akin to the ownership interest that one might hold in other forms of property that can be subject to leases, mortgages, and other security interests.  Thus, the restrictions were imposed over half a century ago.  But, since being implemented, the FCC has from time to time questioned whether these restrictions really were necessary.

In 1995, for instance, the FCC issued a Notice of Proposed Rulemaking and Notice of Inquiry to ask whether these provisions really were required by the Communications Act, and whether the abolition of these restrictions might increase the availability of financing in the broadcast industry.  No action was taken at that time but the issue has since arisen, including in proposals advanced in the Modernization of Media Regulation proceeding begun by former FCC Chairman Pai (see our article here).  In these proceedings, many have argued that allowing broadcasters to retain interests in a license (or the right to reacquire the license if a buyer who pays with a promissory note defaults on the loan) or to take a security interest in a license would not necessarily mean that there was an ownership interest in a license.  Instead, it would only signify that the holder had a valuable right like that granted under any contract or similar agreement, that would be held pursuant to any limitations on the license, including the requirement that, before the station could be reacquired or before a security interest could be exercised, the party seeking to exercise the right would need to secure FCC approval for any transfer of the license.  It was argued that this would make financing for broadcast acquisitions, particularly those by new entrants, more available as lenders would feel more secure in their rights that could be exercised upon any default in a manner in the same way that those rights are protected in other business transactions.  In these proceedings, the FCC itself has recognized that decisions in other communications services, where FCC licenses have been recognized as valuable property rights, have undercut the argument that these prohibitions are necessary under the Communications Act.

In these past proceedings, some have expressed concerns that these interests, if allowed, would give a lender a greater ability to interfere with the licensee’s exclusive control over the way that it operates the station.  The fear is that, if the lender can threaten to repossess a station, the actions of the licensee will be constrained.  Yet, even under current rules, the lender can threaten to foreclose on all of the non-license assets of a station and can threaten to force a licensee into a bankruptcy or receivership in which the lender has a security interest in any proceeds from the sale of the license (as noted in our articles here and here, a security interest in the proceeds from the sale of a license is permitted).  While the station’s license is not guaranteed to come back to the lender, the influence on the licensee seems to be similar – and is not prohibited under current FCC rules.

In today’s media marketplace, where dealmaking has become more sophisticated and station operations more complicated (particularly with the advent of multicasting and spectrum sharing for advanced services that can be provided by new technologies like ATSC 3.0, Next Gen TV), these rules seem to impose unnecessary regulatory hurdles on broadcast operations.  It may be time for the FCC to once again revisit these policies to see if they are really necessary.

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 November 17, the FCC’s Second Notice of Proposed Rulemaking (“Second NPRM”) on foreign government sponsored programming was published in the Federal Register.  The Second NPRM seeks comment on proposals to enhance the FCC’s requirements that each broadcaster verify whether any program time that it sells to third parties (or any pre-produced programming that it receives for free) does not come from a “foreign government entity,” i.e., a foreign government or one of its agents.  The Federal Register publication sets the comment dates for the Second NPRM – with initial comments due December 19, 2022, and reply comments due by January 3, 2023.  In the Second NPRM, the FCC proposes, among other things, that a licensee certify that it has informed any buyer of program time of the foreign sponsorship identification rules and obtained, or sought to obtain, a certification from the program buyer stating, with standardized language proposed by the FCC, whether the buyer is or is not a “foreign governmental entity.” The FCC also proposes to require that all of those certifications be included in a station’s online public inspection file.  For further background on this proceeding and its implications for broadcasters, see our articles here and here.
• At the November 17 regular monthly open meeting of the FCC, the Commissioners unanimously adopted a Report and Order to update its rules to identify Nielsen’s monthly Local TV Station Information Report (“Local TV Report”) as the new publication for determining a television station’s designated market area (“DMA”) for satellite and cable carriage purposes, in place of the Nielsen Annual Station Index and Household Estimates currently referenced in the rules.  Also, in response to concerns raised by Commissioner Simington, the Commission committed to monitoring the broadcast audience measurement market.  It encouraged stakeholders to keep the FCC apprised of changes in that market.  For further background about this proceeding, see our article here.
• The FCC’s Media Bureau announced that the FCC’s new FM broadcast directional antenna verification rules went into effect on November 10, 2022.  These new rules allow for FM and LPFM directional antenna pattern proofing by computer modeling performed by the directional antenna’s manufacturer.  Under the old rules, an FM or LPFM directional antenna’s performance measured relative field pattern had to be verified using either a full-scale mockup or a scale model on a test range or in an anechoic chamber.  The rule change brings the FM rules in line with those for AM and DTV directional antennas.
• In a speech at the National Association of Farm Broadcasters, Commissioner Simington proposed that the FCC renew its efforts to help AM radio. Among his proposals were a revamping of FCC regulatory fees to ease the burden on broadcasters, encouragement of auto manufacturers to retain or include AM in new cars, and FCC study of AM receiver standards.  He also suggested that the FCC once again look at the potential for activating FM chips in mobile devices.  Watch to see if these ideas proceed at the FCC.
•  In two recent speeches to Washington groups, including one delivered last week to the Media Institute, Commissioner Geoffrey Starks talked about the opportunities presented by ATSC 3.0, NextGen TV.  In both speeches he cautioned that, while the technology offers many benefits, there are concerns that its capabilities to interact with internet technologies could impinge on consumer privacy.  He suggested that the FCC should review whether privacy rules need to be adopted to govern the use of any consumer information gathered through this new technology.
• Last week, Sen. Ed Markey (D-MA) and Rep. Anna Eshoo (D-CA) introduced the Communications, Video, and Technology Accessibility Act of 2022 (“CVTAA”)(a press release summarizes the goals).  Among the proposals in the legislation is the extension of closed captioning obligations and the requirement for audio description of video programming to online video providers.  The legislation would also require the FCC to review the rules it has on the quality of closed captioning. While it is late in the legislative session and this proposal is unlikely to advance before the end of this Congress, look for these concepts to reemerge in the new session of Congress that begins in January.

A recent FCC staff decision dismissing an application for a new noncommercial educational (NCE) FM station on technical grounds highlighted a rarely used section of the FCC rules, Section 73.561(b).  That section provides that, when an NCE FM station does not regularly operate for at least 12 hours per day, another noncommercial entity can file an application proposing to use the frequency during the hours that the station is not operating and, if the existing licensee and the new applicant cannot agree on a shared operating schedule, the new applicant can ask the FCC to force the shared-time operation (for more on the recent case, see our summary in our weekly update of broadcast regulatory actions for last week).

The rule states that the FCC will typically only force a time share operation when an application asking for share-time authority is on file during the pendency of the existing station’s license renewal application.  As most radio license renewals have already been granted during the recent three-year cycle for radio license renewals that ended earlier this year, most NCE stations do not face a real risk of a forced share-time operation until the next renewal cycle starts in 2027.  But an application seeking frequency sharing can be filed at any time in situations where an NCE FM station does not regularly operate for at least 12 hours per day, forcing negotiations about a shared time operation, and no doubt increasing scrutiny on the station during its next renewal.  Thus, such NCE stations should review their operating schedules now and think about ways to minimize the risk of a forced share-time operation.

NCE stations need to understand that, if they do not operate for 12 hours every day, they stand a risk of having to share their frequency with another broadcaster.  This can be particularly problematic for stations associated with an educational institution where the station shuts down when there are breaks in the academic schedule – or when students are otherwise not available to operate the station.  Section 73.561 of the FCC rules sets out the following minimum operating schedule for NCE stations:

All noncommercial educational FM stations are required to operate at least 36 hours per week, consisting of at least 5 hours of operation per day on at least 6 days of the week; however, stations licensed to educational institutions are not required to operate on Saturday or Sunday or to observe the minimum operating requirements during those days designated on the official school calendar as vacation or recess periods.

While operating only 5 or 6 hours a day may be permissible, it does put the licensee at risk of having to share its frequency with another licensee who may have programming objectives that are totally different from those of the current operator.  The pandemic forced many NCE stations to learn how to operate remotely or in an automated fashion for significant periods of time.  These same practices may need to be examined as a potential way to avoid a share-time request.  Plan ahead – while the 2027 renewal period may seem far away, careful planning now can avoid concerns when that renewal period rolls around again.

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 effective date of a recently adopted FCC Report and Order aimed at making emergency alerts delivered over television and radio stations more informative and easier to understand by the public, particularly people with disabilities, was set when the order was published in the Federal Register. Among other changes, the updated rules require broadcasters, cable systems, and other Emergency Alert System participants to transmit the Internet-based version of emergency alerts (i.e., those transmitted through the internet based Integrated Public Alert and Warning System, “IPAWS,” using the Common Alerting Protocol or “CAP”) when the station receives alerts from both IPAWS and from the traditional over-the-air “daisy chain” system.  The Report and Order was published in the Federal Register on November 10, 2022, meaning that the rules are effective on December 12, 2022, and broadcasters are required to update their systems to comply with the requirements imposed in the new rules within one year, by December 12, 2023.  For more details on these new rules and on other proposed changes in EAS requirements for broadcasters, see the article on our Broadcast Law Blog, here.
• The FCC’s Media Bureau dismissed an application for a new noncommercial educational FM station due to prohibited contour overlap with a second-adjacent channel NCE station.  The applicant had requested, and the Bureau denied, a “Raleigh waiver,” which allows an NCE station to receive – not cause – a small amount of interfering contour overlap from second- or third-adjacent stations, provided that the public interest benefit of increased NCE service heavily outweighs the potential for interference that may occur in the overlap area.  However, Raleigh waivers are not available to applicants for new NCE stations, being accepted only with applications seeking changes in an existing NCE station.  The Bureau therefore found that the applicant was ineligible for a Raleigh waiver and dismissed the application.

• • This case is also instructive in that the application was filed for a “share-time” facility. Under a rarely used section of the FCC rules, Section 73.561(b), when an NCE FM station does not regularly operate for at least 12 hours per day, another noncommercial licensee can file an application to use the frequency during the hours that the station is not operating and, if the existing licensee and the new applicant cannot agree on a shared operating schedule, the new applicant can ask the FCC to force the shared-time operation.  While, because of the technical defect, the applicant attempting to force the share-time operation was dismissed here, it should serve as a reminder to NCE stations everywhere that, if they do not operate for 12 hours every day, they stand a risk of having to share their frequency with another broadcaster.  However, the FCC will only force a share-time operation during the pendency of the existing station’s license renewal so this risk likely will not arise for the vast majority of stations until the next license renewal cycle which begins in 2027.

• The FCC issued three notices proposing significant fines for pirate radio operations.  The FCC continues to aggressively police pirate radio stations, issuing notices warning the alleged violator that it could be subject to a fine of up to $2,149,551 if such illegal operations continued.  These notices were again directed at the owners of the properties from which the pirates were operating.  See the three notices here, here, and here.  For more information on the 2020 law that authorized large fines and actions against landowners, see our article here.

• The FCC issued two notices to parties who had been the high bidders in auctions for new commercial FM stations but failed to pay the amounts that they bid.  Under the FCC rules for broadcast auctions, if a successful bidder fails to pay the amount that it bid, the bidder will be liable to the federal government for the difference between what it bid in the auction and any lesser amount paid by a winning bidder when the channel is reauctioned in a subsequent auction.  In the two cases released this week, here and here, the FCC seeks to collect several hundred thousand dollars from each of the defaulting bidders.

At each of the last two of the FCC’s recent regular monthly open meetings, the Commission addressed EAS issues that affect broadcasters. In one case, it adopted new rules that will, among other things, require that broadcasters use on-air the “IPAWS” internet-delivered emergency message in the CAP format, if the broadcaster receives the alert in both the CAP and traditional over-the-air formats.  The second action starts a rulemaking to look at imposing on broadcasters an obligation to secure their EAS systems from hacking and other electronic intrusions – and to regularly report to the FCC about what they are doing in connection with such security measures.  Let’s look in a little more depth at these actions (which we have previously briefly summarized in our weekly updates, here and here).

At its September 29 open meeting, the FCC adopted a Report and Order with the announced intention of making emergency alerts delivered over television and radio stations more informative and easier to understand by the public, particularly people with disabilities. The updated rules require broadcasters, cable systems, and other Emergency Alert System participants to transmit the Internet-based version of alerts when available (those transmitted through the internet based Integrated Public Alert and Warning System, “IPAWS,” using the Common Alerting Protocol or “CAP” protocol)  rather than transmitting the legacy over-the-air “daisy chain” version of alerts which often contain less information or have lower quality than that of CAP-delivered alerts.  As noted by the FCC, the CAP format allows for more information, including video clips (for TV), augmented warning information, and even foreign-language versions of alerts to be transmitted – information not available from alerts that are transmitted over-the-air.

The new rules recognize that the legacy system may transmit alerts more quickly than IPAWS.  When a station receives an over-the-air alert, it must wait at least 10 seconds to determine if a CAP alert has been sent through the IPAWS system and, if it has, the station should rebroadcast the CAP alert rather than the one received over the air.  The FCC noted that National Weather Service alerts are not yet sent via IPAWS. Also excluded are Presidential alerts, as a real Presidential alert would likely contain live audio content, not currently supported by IPAWS.  Nevertheless, the FCC decided that the number of alerts sent by other authorities justified the implementation of the requirement for internet-delivered alerts from these other originators now.

Presumably, equipment manufacturers will be updating their system to poll IPAWS before inserting into over-the-air programming any alert that is received through the legacy EAS system.  Broadcasters must be in compliance one year after the rules become effective (some cable systems will have a longer transition period).  The effective date is triggered by publication of the Order in the Federal Register, which  occurred today, setting the effective date as December 12, 2022.  That means that broadcasters will be required to implement these new rules by December 12, 2023.  This one-year period will provide a transition period for EAS participants to implement some of the required technical changes.

The updated rules will also replace the technical jargon that accompanies certain alerts, including test messages, with plain language clearer to the public.  For instance, instead of calling an alert an “Emergency Action Notification,” it will be called a “National Emergency Message.”  A “National Periodic Test” will be called a “Nationwide Test of the Emergency Alert System.”  Read the Report and Order for more details on these changes.

More recently, at the FCC’s October 27, 2022 regular monthly open meeting, the FCC adopted of a Notice of Proposed Rulemaking that proposes a number of steps designed to strengthen the security of the Emergency Alert System, as well as the system for Wireless Emergency Alerts (“WEA”).  The Commission noted several breaches and other security concerns that have been identified in EAS, from the hacking of TV stations that, in 2016, resulted in three TV stations broadcasting alerts of a zombie attack, to more recent warnings of identified vulnerabilities in the systems.  The NPRM seeks comment on ways to strengthen the operational readiness of EAS and WEA, including, among other things, requiring EAS Participants (including broadcasters) to report to the Commission incidents of unauthorized access of EAS equipment within 72 hours of when it knew or should have known that the incident occurred.  As we noted here, the FCC already requires notification when a false alert is actually broadcast – this new requirement would require notice to the FCC of any unauthorized access to a station’s EAS, whether or not a false alert was heard by the public.  The FCC also proposes that EAS Participants submit an annual cybersecurity certification that demonstrates how the participant identifies the cyber risks that it faces, the controls it uses to mitigate those risks, and how it ensures that these controls are applied effectively.  Comments and reply comments on these and other proposals raised by this NPRM will be due 30 days and 60 days, respectively, after the NPRM is published in the Federal Register.

These two actions signify the seriousness with which the FCC takes EAS compliance.  These were unanimous, bipartisan decisions, looking at how to ensure that EAS gets the word about emergencies out to the public accurately and securely.  But these actions also represent additional obligations for broadcasters – first to update their systems to implement the CAP-first alerting requirement, and second the possibility of regular reporting to the FCC about cybersecurity measures taken to protect EAS systems (measures that broadcasters will need to be sure that they are in fact implementing).  Watch for more details about these changes in the EAS requirements.

With election results still being tabulated in many states in close political races, we thought that it is worth reminding broadcasters of the advice given by the FCC in 2020, when it issued a public notice stating that Lowest Unit Charges (or lowest unit rates as they are often called) do not apply to post-election political ads (e.g., ads that urge ballots to be counted in any particular manner or objecting to the election results).  We wrote about that decision when it was released.  One important caveat to that advice is that LUC does apply to any elections that are held based on outcomes that were not determinative on Tuesday’s Election Day.  So, for instance, if there is a run-off election in any state (like the election for the US Senate from the state of Georgia that may be held on December 6, 2022 if neither candidate receives 50% of the votes cast by yesterday, once all those votes are counted).  That would mean that the LUC period is already in effect.  The 60-day period applies because the run-off is considered by the FCC to be another general election.  Other states have similar rules for run-offs where no candidate receives 50% of the vote.  So if there are run-offs in your service area, and candidates want to buy political advertising time, LUC will apply to those elections, and you will need to compute the appropriate period during which candidates cannot be charged more than the lowest unit charge for commercial advertising of the same class that runs in the same time period.

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 Forfeiture Order imposing a penalty of $518,283 against Gray Television, Inc., for violating the FCC’s prohibition against owning two top-four television stations (KYES-TV and KTUU-TV, both in Anchorage, Alaska) in the same Nielsen Designated Market Area (DMA). This Order follows a Notice of Apparent Liability for Forfeiture (NAL) released on July 7, 2021, in which the FCC found that Gray acquired the CBS network affiliation from KTVA(TV) (another station in Anchorage), which resulted in Gray’s ownership and operation of two of the top-four stations in the Anchorage DMA.  For more background on this case, see our article on the NAL here. After considering Gray’s response to the NAL, the FCC elected not to cancel, withdraw, or reduce the penalty proposed.  This case is notable for its interpretation of the note to the FCC’s ownership rule prohibiting a Top 4 television station owner from acquiring a network affiliation and moving it to a commonly owned station that results in that station also becoming a Top 4 station in the market.  The Commission also decided that each day of the combined operation of the two stations constituted a separate violation of the rule.  That meant that the $8000 base fine for a violation of the FCC’s ownership rules would be multiplied by the days that the combination remained in place, resulting in the large fine which represents the maximum fine for a continuing violation of the FCC’s rules.
• The FCC issued the final text of its Notice of Inquiry and Order that explores opportunities to open the 12.7-13.25 GHz (12.7 GHz) band for next-generation wireless services and extends the freeze on new or modified applications for existing users of the band.  As we’ve previously reported, the Notice of Inquiry and Order was approved at the FCC’s October 27 open meeting.  Licensed services in the 12.7 GHz band include satellite communications and mobile TV pickup operations.  Comments and reply comments on the Notice of Inquiry will be due November 28, 2022 and December 27, 2022, respectively.
• The FCC’s Media Bureau issued an Order under which it entered into a Consent Decree with the licensee of an AM station and its FM translator to resolve various FCC rule violations.  The licensee acknowledged that it had (1) operated the AM station at reduced daytime power without FCC authorization, (2) failed to maintain station logs for the AM station, and (3) originated programming on its FM translator while the AM station was silent. Pursuant to the Consent Decree, the licensee agreed to implement a comprehensive compliance plan to ensure future compliance and to make an $8,000 payment to the United States Treasury.
• The Media Bureau also issued an order that reduced by nearly $10,000 a fine it had previously proposed against the licensee of two low power television stations that had failed to timely file “license to cover” applications and engaged in unauthorized operation of the stations after their construction permits had expired.  Applications for a “license to cover” are required to be filed by any broadcaster when they complete construction of new technical facilities authorized by a construction permit.  The license application tells the FCC that construction has been completed and provides information about the specific facilities constructed, showing that they were constructed as authorized by the permit.  Claiming financial hardship and submitting its 2019, 2020 and 2021 tax returns in support, the licensee asked the Bureau to reduce or cancel the proposed fine of $13,000.  The Bureau noted that in cases involving financial hardship, fines usually average about five percent but have not exceeded eight percent of the violator’s gross revenues.  Here, the Bureau found that the initially proposed fine exceeded eight percent of the licensee’s gross revenue as averaged over the last three years, but the licensee had not operated at a significant financial loss during that period.   The Bureau thus elected not to cancel the fine entirely, but it did reduce it to $3,400.
• On our Broadcast Law Blog, we posted an article highlighting some of the important regulatory dates for broadcasters in November and early December.  We also published an article reminding stations to take seriously requests to cease and desist airing political attack ads in the days before an election, and another article about the $24 million dollar penalty imposed by a Washington State court on the parent of Facebook for its violation of the state’s political advertising disclosure rules.

Any media platform that accepts ads for political races and ballot issues in Washington State is aware of the state’s detailed rules that govern all forms of political advertising.  Digital platforms, in particular, are concerned by state rules that require the platforms to maintain and make available to the public not only the information required by some other states (and by the FCC for broadcast political ads) about the identify of sponsors, the price they have paid for their political advertising, and the issues they are addressing, but also a description of the demographics being targeted, and the total number of impressions generated by the ads.  Disclosures about other services provided to the advertiser by the platform (e.g., production or distribution services) and copies of the political ads themselves, are also required to be part of the material available for public review under Washington State law.  As we noted in our recent article on these rules and those of other states requiring disclosure of information about political advertising on digital platforms, the Washington State attorney general’s office brought an action against Meta, Facebook’s parent, for not providing to members of the public all the required information about such advertising in a timely fashion.  We noted that a King County judge had found that the company had violated the rules.  Since then, the judge imposed a fine of $24,660,000 on Meta (for 822 violations times the statutory penalty of $10,000 per violation, trebled based on a finding that the violations were intentional, repeated, by a company that should have been able to comply, and because the company refused to “acknowledge and take responsibility for its violations.”)  This is by far the largest penalty that we have heard of for violations of a state political disclosure law, and one of the few cases actually brought to court under these laws.  Meta almost immediately appealed this decision to the Washington Court of Appeals, where it remains pending.

The appeal bears watching by all digital media companies, as it is sure to raise some fascinating issues that could have far-reaching consequences for state regulation of political advertising.  In its motion for summary judgment in the Washington State proceeding, Meta raised arguments about the difficulties faced by a national company trying to comply with inconsistent and conflicting state laws in this area.  But perhaps more importantly, Meta also pointed to the Fourth Circuit Court of Appeals’ decision from 2019 throwing out Maryland’s political disclosure rules, which were similar in scope to those in Washington.  The Fourth Circuit’s decision, about which we wrote here, rejected as unconstitutional Maryland’s requirements that media outlets reveal information about their political advertising buyers, concluding that the requirements violated the media companies’ First Amendment rights, when a less restrictive means of informing the public about the identity of political speakers was available by requiring the political actors to themselves reveal the information.  We would expect that arguments about Section 230 of the Communications Decency Act (about which we wrote here and here), shielding platforms from liability for materials posted on them by others, will also be raised on appeal.  The state Court of Appeals is unlikely to be the last word in this case, as the national scope of these issues, and any conflicts with the Court of Appeals’ decision in the Maryland case, could well elevate this decision to one that establishes broader precedent for the industry.

There is but a week to go before the mid-term elections, and political ads blanket the airwaves across the country.  From discussions that I have had with many attorneys, broadcasters and other campaign observers, the ads this year have been particularly aggressive.  Some publications have even suggested that, in the waning days of the campaign, the ads may become even worse as desperate campaigns look for some last-minute claim that could turn the tide in an election.  In this rush to election day, broadcasters need to be on the alert for allegations that an attack ad from a non-candidate group is false or defamatory, because in certain instances, the ad could result in a claim against the broadcaster.

As we have written before, broadcasters (and local cable companies) are forbidden from censoring the message of a candidate (see, for instance, our articles here and here).  Section 315 of the Communications Act forbids a broadcaster or a local cable operator from censoring a candidate ad.  Because broadcasters cannot censor candidate ads, the Supreme Court has ruled that broadcasters are immune from any liability for the content of those ads.  (Note that this protection applies only to broadcasters and local cable companies – the no censorship rule does not apply to online distribution – see our articles here and here – so other considerations need to be considered when dealing with online political ads).  But some have taken that to mean that broadcasters have no fear of liability for any political ad.  As I explained in a recent interview with a Detroit television station, that is not true – broadcasters do theoretically have the potential for liability if they run an ad from a non-candidate group either knowing that ad to be false, or by continuing to run a false ad after being put on notice that the ad was false and ignoring that notice (see also this article about this distinction between candidate and non-candidate ads, and how the media’s coverage of campaigns can overlook these distinctions).  In 2020, President Trump’s campaign brought a lawsuit against a Wisconsin television station alleging that a PAC ad run on the station was false and defamatory (see our articles here and here on that suit).  In this election cycle, there are press reports of a lawsuit by Senate candidate Evan McMullin against a political party’s campaign committee and three local TV station owners for running an ad that had allegedly edited remarks by McMullin to make it seem like he said all Republicans were racist (see articles here and here).  Even Roy Moore, the defeated Senate candidate from several years ago in Alabama, successfully pursued a defamation suit against the sponsor of an ad that Moore claimed falsely accused him of improper conduct (this decision was not against a broadcaster, but instead against the ad’s sponsor, see report here).

While these legal actions are not common, they do occur, and stations must take seriously any claim that a political ad that they are running is false.  The Communications Act’s “no censorship rule” applies only to candidate ads.  Stations are free to reject an ad from a non-candidate group based on concerns about its content.  If an ad is defamatory – spreading falsehoods about a recognizable individual – it could result in civil liability to the station.  Under Supreme Court precedent, statements made about public figures (such as political candidates) can be found defamatory only if the person or entity that is distributing them either knew that they were false or distributes them with “negligence,” e.g., where they had notice that the ads were false, yet they continued to distribute the false material anyway.  Thus, if a station does not know that a claim in a third-party ad is false, but it is put on notice about the falsity (e.g., by a letter from an attorney representing the party being attacked telling the station that the ad is false), the station needs to take steps to investigate the truth of the ad.  (Note that there have been statements from some Supreme Court justices that suggest that this standard that arose in a case, NY Times v. Sullivan, should be changes to make it easier for a public figure to sue – see our article here – watch developments in this area).

If the station ignores a demand letter claiming that an ad is false, and keeps running the allegedly false ad anyway, and the ad is in fact false and defamatory, there is potential liability to the station.  Stations should ask the sponsor of any attack ad for documentation backing up their claims, review the supporting material to see if it in fact backs up the claims made, and consult with their attorneys to determine if it is likely actionable.   There are often no clear answers, so broadcast companies need to talk to their attorneys and make their own assessment of the risk of liability for continuing to run a third-party ad claimed to be untrue. Typical political claims (e.g., “candidate X is a big-spending liberal” or “candidate Y doesn’t care about our kids as he has voted against school funding increases”) are less likely to be actionable than are claims about the character, integrity, and similar personal qualities of a candidate (e.g., a claim that a candidate did something illegal).

The FCC itself is not a fact checker of claims made in political ads.  Many times, the letters demanding that attack ads be removed from the air suggest that running these ads somehow violates the FCC rules about stations operating in the public interest.  Sometimes the demand letters even claim that the ads violate FCC rules against false and deceptive advertising – even though it is the FTC, not the FCC, which deals with deceptive ads.  But even the FTC is not routinely involved with the political advertising process, given that the involvement of any government agency is assessing the truth or falsity of any political ad is so fraught with First Amendment issues.  Generally, our First Amendment does not allow a government agency to decide what is true in political ads and what is not.  Thus, these questions are left to private actions for defamation.

While defamation actions against broadcasters for not pulling an attack ad are not common, the time and expense involved in any such litigation can be great, so stations need to carefully assess any demand to pull an attack ad, and to discuss the ad with their attorney if a cease-and-desist letter is received.  Many of these demand letters seem to be sent more to intimidate stations into pulling ads in the last few days before an election rather than to advance real legal claims but, as the lawsuits noted above make clear, there are occasions when the ads will in fact bring legal actions.  Stations need to carefully review all the demands to make sure that the ones that they receive don’t have merit – and they need to do so quickly here in the waning days of the campaign. Keep your attorney on speed dial, as these are sometimes not easy calls to make.  But as the consequences can be great, stations need to act with care.

November lacks the usual set of deadlines for routine FCC filings, but there are nevertheless a number of regulatory dates that warrant attention.  And come the first of December, those regular filing deadlines return to the calendar.

November brings comment deadlines in at least two FCC proceedings relevant to broadcasters.  On November 7, reply comments are due with respect to the FCC’s Order and Sixth Notice of Proposed Rulemaking (on which we previously reported) to delete or revise analog rules for Low Power TV and TV translator stations that the FCC believes no longer have any practical effect or that are otherwise obsolete or irrelevant after the transition of these stations to digital operation.  November 25 is the deadline for reply comments in the FCC’s request for comment on the methodology that it uses to allocate its employees to determine annual regulatory fees (see article here).  Broadcasters have felt that their fees have increased more than their fair share – but other regulated services likely complain about their share of the fees as well.  Because the FCC allocates the fee obligation based on the number of its employees who spend time on regulatory duties regarding a particular regulated industry, this proceeding looking to allocate how employees are allotted is very important.

Another rulemaking proceeding will likely be concluded in November.  The FCC last week announced that the agenda for its November 17 regular monthly open meeting will include consideration of a Report and Order (a draft of which was released last week) that would update the FCC’s rules to identify a new publication for determining a television station’s designated market area (“DMA”) for satellite and cable carriage purposes.  Current FCC rules direct commercial TV stations to use Nielsen’s Annual Station Index and Household Estimates to determine their DMA, and stations rely on these determinations when they seek carriage on cable and satellite systems.  Nielsen, however, has replaced the Annual Station Index and Household Estimates with a monthly Local TV Station Information Report (“Local TV Report”).  The Order, if adopted as drafted, would (i) revise the FCC’s rules to eliminate references to the Annual Station Index and Household Estimates and instead direct broadcasters to the Local TV Report – specifically, the October Local TV Report published two years prior to each triennial carriage election; and (ii) conclude that the Local TV Report should be used to define “local market” in other statutory provisions and rules relating to carriage (e.g., retransmission consent, distant signals, significantly viewed, and field strength contour).  For further background regarding this proceeding, see our article here.

There is one set of routine regulatory deadlines that ended up in November because of an extension granted by the FCC to stations affected by a recent hurricane.  As we noted here, the FCC has given stations in Puerto Rico an extension until November 14 to upload their Quarterly Issues Programs lists (which, without the extension, would have been due to be uploaded to station public files by October 10) because of the effects of Hurricane Fiona.  The FCC issued a similar extension to December 12 for stations in Florida and South Carolina who suffered the effects of Hurricane Ian.  Such stations in Florida also may upload their EEO public file by December 12.

With election day approaching (November 8), stations should continue to remember their obligations to give all candidates – federal, state and local – lowest unit rates when they buy advertising for their campaigns (see our articles here and here).  Similarly, stations need to remember to be uploading to their public file information about the price, schedule and class of time purchased by any candidate or any federal issue advertiser to their online public file within one business day of the date on which the order for that time was received.  For more on political file issues, see this article with a link to a video of a training session that I conducted explaining all of these political file requirements.

Daylight Savings Time ends on November 6, 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, the Federal Trade Commission has an ongoing proceeding seeking additional public comment on how children are affected by digital advertising and marketing messages that may blur the line between ads and entertainment (see their announcement about the proceeding). The public will have until November 18, 2022 to submit comments. Information on how to submit comments is available on here.

Looking ahead to the early days of next month, December 1 brings the deadline for license renewal applications for Television, Class A, LPTV, and TV Translator Stations in Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont.  That is also the date for uploading to their online public file Annual EEO Public File Reports by all radio and television stations in Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, and Vermont that are part of Station Employment Units with 5 or more full-time employees (a “station employment unit” is a station or cluster of stations in the same geographic areas that are under common control and share at least one full-time employee).  These licensees must also post on the homepage of their station website (if they have one) a link to their most recent EEO Public File report.

December 1 is also the deadline for the filing of FCC Form 2100, Schedule G, Annual DTV Ancillary/Supplementary Services Report for the 12-Month Period Ending on September 30, 2022, and the submission of any payments that are due.  This applies to Commercial and Noncommercial Full-Power stations, Class A TV stations, and LPTV stations that have fee-based, non-broadcast revenues from their digital transmission capabilities.  In other words, if TV stations earned fees for data transmission or other non-broadcast services, they must file the report and pay the fees; otherwise the report is not required.

As always, this list of dates is not exhaustive and comment 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.

• On October 26, NAB and Xperi Inc. jointly filed a Petition for Rulemaking asking the FCC to amend its rules governing in-band/on-channel (“IBOC”) digital audio broadcasting (Xperi is the parent of IBOC technology developer iBiquity).  More specifically, NAB and Xperi request that the FCC (i) adopt an updated formula to determine FM power levels for stations seeking to exceed the currently authorized FM digital Effective Radiated Power (ERP) of -14 dBc; and (ii) commence a rulemaking proceeding on this issue and the one raised in a pending 2019 petition to permit digital FM radio stations to utilize asymmetric sideband power levels without the need for separate or experimental authorization.  NAB and Xperi contend that the FCC’s current approach is problematic because it assumes symmetric rather than asymmetric digital sidebands, which eliminates a path for stations to increase power on at least one sideband to improve digital coverage.  In addition, NAB and Xperi argue that the existing formula is too restrictive, because it overstates the level of protection analog stations need.  NAB and Xperi assert that  blanket authorization of asymmetric sidebands and the adoption of a more market-based formula for assessing digital interference risk will encourage greater station adoption of the technology.  The FCC has yet to announce comment dates for the NAB/Xperi petition.
• The Commission issued a Memorandum Opinion and Order resolving 32 groups of mutually exclusive applicants for new Noncommercial Educational (NCE) FM stations.  These applications were filed in the 2021 window for the filing of applications for new NCE stations in the FM reserved band.  This week’s decision goes through an analysis of the point system that the FCC uses to determine the preferred applicant among applications in the same geographic area that cannot all be granted without causing each other destructive interference.  The point system analysis looks at factors including the proposed coverage of the applicants, whether an applicant is local and how long it has been established, whether it is part of a statewide network, and whether the applicant has other broadcast interests.  The decision announces tentative winners in each of these groups, whose applications will now be subject to “petitions to deny” and other objections before the award of their construction permit is finalized.
• At its October 27 regular monthly open meeting, the FCC adopted without substantive edits, its draft Notice of Proposed Rulemaking (“NPRM”) in which, as we’ve previously reported, it proposes a number of steps designed to strengthen the security of the Emergency Alert System (“EAS”) by requiring reporting to the FCC of breaches of any station’s EAS system and the adoption and yearly reporting to the FCC of security protocols to prevent unauthorized breaches.  A copy of the “as adopted” NPRM is available here.  Comments and reply comments will be due 30 days and 60 days, respectively, after the item’s publication in the Federal Register.
• At the same open meeting, the FCC also adopted a Notice of Inquiry and Order that explores opportunities to open the 12.7-13.25 GHz (12.7 GHz) band for next-generation wireless services and extends the freeze for new or modified applications for existing users of the band.  Licensed services in the 12.7 GHz band include satellite communications and mobile TV pickup operations. Although the as-adopted item has yet to be released, a press release noting its approval can be found here, and the draft version circulated prior to the meeting can be found here (also see our article here).
• The FCC announced that the agenda for its November 17 open meeting will include consideration of a draft Report and Order (“Draft R&O”) that, if adopted, would update the FCC’s rules to identify a new publication for determining a television station’s designated market area (“DMA”) for satellite and cable carriage purposes.  Current FCC rules direct commercial TV stations to use Nielsen’s Annual Station Index and Household Estimates to determine their DMA, and stations rely on these determinations when they seek carriage on cable and satellite systems.  Nielsen, however, has replaced the Annual Station Index and Household Estimates with a monthly Local TV Station Information Report (“Local TV Report”).  The draft R&O, if adopted, would (i) revise the FCC’s rules to eliminate references to the Annual Station Index and Household Estimates and instead direct broadcasters to the Local TV Report – specifically, the October Local TV Report published two years prior to each triennial carriage election; and (ii) conclude that the Local TV Report should be used to define “local market” in other statutory provisions and rules relating to carriage (e.g., retransmission consent, distant signals, significantly viewed, and field strength contour).  For further background regarding this proceeding, see our article here.
• The FCC’s Media Bureau issued an Order under which it entered into a Consent Decree to resolve a student-run noncommercial FM station’s filing of its license renewal application two months late, and the station’s failure to place any issues and programs lists in its online public inspection file.  The station demonstrated that its violations were first-time paperwork violations which fell within an FCC policy of affording student-run stations with this kind of violation an opportunity to negotiate a consent decree in which the station agrees to a compliance plan and makes a voluntary contribution to the United States Treasury rather than suffering a more substantial penalty.  Under the Consent Decree, the station agreed to, among other things, make a civil penalty payment to the United States Treasury in the amount of $500 and implement a comprehensive compliance plan to ensure future compliance with its online public inspection file obligations and timely filing of renewal applications (for a similar Consent Decree between the Bureau and a second student-run NCE station, go here).

This summary of regulatory news for broadcasters comes from the attorneys at Wilkinson Barker Knauer, LLP in Washington, DC. (https://www.wbklaw.com/).

In speaking to many broadcast groups around the country in the last few months, I have found that many broadcasters are totally confused by the FCC’s rules requiring that they seek certifications from anyone buying programming time on their stations (or providing programming for free in exchange for that programming being broadcast on the station).  These certifications must indicate that the programmer  is not a “foreign government entity,” a term that includes any foreign government or foreign-government owned entity, an agent of a foreign government, or someone who has been paid by a foreign government to produce the program.  As we noted (see our articles here and here), the rules requiring these certifications went into effect on March 15, 2022 for any new agreements effective after that date, and September 15, 2022 for obtaining certifications from programmers who were already on the air as of March 15.  Now, the FCC has asked in a Second Notice of Proposed Rulemaking whether it should expand these obligations to identify foreign government-backed programming.  In addition, a bill has been introduced in Congress that would authorize the FCC to impose the obligation it attempted to impose on broadcasters initially – that they check databases maintained by the Department of Justice (the Foreign Agents Registration Act database) and by the FCC to confirm the accuracy of the certifications obtained from programmers as to whether or not they are agents of foreign governments (see our article here on the Court decision rejecting the requirement that broadcasters check these databases).

When I am speaking at broadcast association meetings across the country, I am almost always asked why the FCC is seeking this information.  The FCC decided that it had to act in this area when, in a couple of high-profile cases in major markets, program time was being purchased by entities that represent foreign governments – with Russian and Chinese news and information programming being of the most concern.  When these instances were highlighted by other US government agencies and through political complaints, the FCC felt that it had to act.  I don’t think that many broadcasters would have concerns if the rules were limited to situations where a foreign government is in fact buying program time or doing a time brokerage agreement, with the intent of airing its slanted news to US citizens, with such programming being required to be identified to the public as being sponsored by an entity related to a foreign government.  But the concern that many have raised is that the FCC’s requirements impose significant burdens on broadcasters and programmers even in instances where there is no doubt that companies buying time on broadcast stations are not posing any threat to US interests.

The vast majority of broadcasters have never been approached by a foreign entity to buy program time (or, in the few cases where there have been foreign government-backed entities who have sought program time, they have been innocuous commercial purchases, like those by the Tourist Bureau of some resort destination or an airline owned by a foreign government investment fund).  Virtually all program time sold by broadcasters is sold to someone the broadcaster already knows through community or broadcast industry connections.  For instance, there are churches across the country that buy time on stations for the broadcast of their Sunday services, real estate brokers who buy time on TV stations to broadcast videos of the homes that they have for sale, or local professionals who host programs (e.g., lawyers or travel agents) where they buy time to talk about their area of expertise with the hopes of interesting listeners in their services.  Local radio stations often have weekly or even daily programs that spotlight local businesses (for which the local business pays money to be featured).  Some stations will feature local programmers who play music to serve immigrant, ethnic or minority communities.  These are not situations where there is anything nefarious occurring – these are business transactions to promote local community interests.  Yet all are seemingly caught up in the sweep of the FCC’s actions to require that broadcasters assure themselves that no foreign government is influencing broadcast programming.

The FCC’s new rulemaking, the Second Notice of Proposed Rulemaking, seeks to standardize the certifications obtained by broadcasters from entities that buy program time on their stations.  Under the rules that went into effect earlier this year, licensees could come up with their own forms to get certifications from the buyers of program time to assure that they were not agents of foreign governments.  Having a standardized form is often a good idea so that broadcasters have no doubt that the wording that they are using is the right wording.  But broadcasters who sell program time should review the proposals made by the FCC for the standardized wording as, to be thorough, the FCC has proposed a very detailed certification.  While sophisticated entities (like those backed by foreign governments) might have the resources to parse the certifications required, broadcasters should consider if the detail in the proposed wording would frighten the typical small market program time buyer, leading to less diverse broadcast programming.  It is also unclear whether certifications that have already been obtained will be grandfathered, or whether broadcasters will be burdened with asking existing programmers to re-certify.

The Second Notice would also require that all certifications obtained from program buyers be placed in the station’s online public file.  The current rules only require that certifications from entities that do in fact have foreign government connections be included in the public file.  So the certifications from the local church, real estate broker, or travel agent attesting that they are not foreign agents would have to be included in the public file.  Again, broadcasters concerned about such a requirement should consider filing comments in this proceeding.  The Second Notice would also adopt a presumption that any programming of 2 minutes or less is commercial advertising and thus exempt from these requirements.

The legislation, the Identifying Propaganda on Our Airwaves (IPA) Act, that has been introduced in Congress would reinstate the requirement that broadcasters check the FARA and FCC databases to assure themselves that the certifications obtained by broadcasters are accurate.  Being introduced so late in the legislative session will make it difficult to pass this legislation before the end of the current Congressional term.  But watch for this issue coming up again in the future.

Broadcasters need to be vigilant in complying with the FCC’s rules on identifying the buyers of program time.  They must observe the current requirements.  They should also consider participating in the proceeding to modify these rules so that the FCC, when it acts on these proposals, is fully informed of their potential impact on the industry.  Watch as these developments proceed.

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 October 17, Sen. Brian Schatz (D-HI), Sen. Marsha Blackburn (R-TN), and Rep. Anna Eshoo (D-CA) introduced the Identifying Propaganda on Our Airwaves (IPA) Act, which would essentially undo the recent D.C. Circuit decision in National Association of Broadcasters v. FCC, which rejected the requirement that broadcast licensees independently check two federal databases to verify whether an airtime lessee is a “foreign governmental entity” (see our Broadcast Law Blog article on the Court’s decision here).   Specifically, the IPA Act would amend Section 317(c) of the Communications Act to provide the FCC with authority to require radio station licensees to consult “any additional source of information the Commission designates that may enable the licensee to verify whether the matter broadcast by the radio station was paid for or furnished by a foreign governmental entity.”   FCC Chairwoman Rosenworcel and Commissioner Starks both issued statements in support of the IPA,
• The FCC’s Media Bureau issued a Notice of Proposed Rulemaking seeking comment on a proposed allotment of a new FM channel, 272A, to Dennison, Ohio as that community’s first local radio service.  Comments are due December 8 and reply comments are due December 23.  If adopted, the channel would be available in a future FM auction for those interested in the construction of a new FM station to serve Dennison.
• In addition, the Media Bureau granted an AM station a short-term renewal of two years and proposed to issue the station a $20,000 fine for operating at variance with its authorized parameters.  Specifically, the Bureau found that in 1993 the station obtained Special Temporary Authority (STA) to decrease nighttime power from 5 kW (directional) to 1 kW (non-directional).  The station filed for and received multiple extensions of its STA, but, after it received its last extension in 1996, the Bureau warned that the station must either return to its licensed operation or file an FCC 301 application to modify its facilities.  The station nonetheless continued to operate at reduced nighttime power (which it had been doing for its entire license term) and never filed an FCC Form 301, nor did it seek a further extension of its STA until September 7, 2022.
  •  In a similar vein, the Bureau issued a two-year renewal to a daytime-only AM station and proposed to impose an $11,000 fine on a station, citing violations including the station (1) failing to obtain FCC authorization to remain silent for four months, (2) operating at variance from its authorized parameters since September 22, 2022 when an STA for reduced-power operations expired without being extended, and (3) failing to file its license renewal application by, as required, February 17, 2021 following a prior short-term renewal for inconsistent operations of the station in the prior license term.  The Bureau did, however, choose not to fine the station for its unauthorized operation after its license expired, citing mitigating factors that may have led the station to become confused as to its renewal deadline as the current licensee acquired the station after the imposition of the short-term renewal and was not notified by the FCC of the need to file that early renewal.  These two cases remind licensees to keep the FCC informed in changes in station operation and to seek approval when that operation does not conform to what is authorized by the station’s FCC license.
• The FCC issued notices to several landowners (here and here) that there appeared to be illegal “pirate” radio operations going on from their properties, and warned that if these operations did not immediately cease, the FCC could fine the operator or the landowner as much as $2,149,551 (the inflation adjusted maximum fine authorized by the 2020 Pirate Act, which also authorized fines against landowners as well as pirate operators, legislation we wrote about here).

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.

• A judge in King County, Washington, released his decision finding that Facebook parent Meta intentionally violated the Washington State requirements for public access to documents concerning the sale of advertising to state political candidates.  We wrote about the Washington State rules and this case on our Broadcast Law Blog, here.  The state’s Attorney General has announced that he will seek the maximum penalty of $24.6 million for the 822 violations found by the judge.
• The FCC’s Enforcement Bureau issued a Notice of Violation to an FM station after FCC field agents discovered that the station was operating three miles from its authorized transmitter site.  If your station needs to make technical changes to its operations, be sure to seek FCC permission for those changes, which is required in most cases before they are implemented.
• The Media Bureau proposed to assess a fine of $1,500 each on two low power FM (LPFM) stations (see decisions here and here)  that failed to file their license renewal applications on time.  In each case, the station’s license renewal applications were filed four months late without explanation, but before its license expiration date.  The Bureau reached its conclusion notwithstanding its finding that neither violation was so “serious” as to warrant the denial of the renewal applications.
• The FCC’s Media Bureau issued a one-year license renewal to an AM station for its failure to consistently remain on the air and its failure to timely place documents in its online public inspection file.  The station was also required to adopt a compliance plan to address the public file violation.  As to the station’s failure to stay on the air, the Bureau found that the station was assigned to the current licensee on November 16, 2019, and its license term ended on August 1, 2021. The Station was silent at the time its license was assigned, having gone silent on January 20, 2019, until January 6, 2020, and then again from November 11, 2021, to July 30, 2022 (i.e., for over 8% of its license term under the current licensee and 30% of its extended term while the renewal application was pending, warranting the short-term renewal).

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 October 6, the FCC released a Second Notice of Proposed Rulemaking (Second Notice) proposing to strengthen the process for identifying foreign governmental entities that sponsor or “lease” broadcast programming.  The Second Notice was released in the wake of the D.C. Circuit’s July 2022 ruling in National Association of Broadcasters v. FCC, which rejected the requirement that broadcast licensees independently check two federal databases to verify whether an airtime lessee is a “foreign governmental entity” (see our Broadcast Law Blog article on the Court’s decision here).  While the Court decision did not change broadcasters’ obligation to obtain certifications from all buyers of program time that they are not foreign government representatives and have not been paid by foreign governments to produce the program (see our article here), the Second Notice proposes standardized language for such certifications.  It also provides interested parties an additional opportunity to comment on a long-pending petition for clarification on what constitutes leased program time, asking whether the FCC should establish a presumption that any broadcast matter that is two minutes or less in length, absent any other indicia, should be considered “advertising” that is exempt from the application of the foreign sponsorship identification rules. Comments and reply comments on the Second Notice will be due 30 and 45 days, respectively, following its publication in the Federal Register.
• Global Music Rights (GMR) has sued three radio groups for not paying royalties for the public performance of songs written by songwriters who are now represented by GMR (see our article on the GMR lawsuit here).  GMR is a performing rights organization (a “PRO”) representing songwriters including Bruce Springsteen, Bruno Mars, Drake, Pharrell Williams, John Lennon, and The Eagles (with a full list of their songwriters available on their website here).  As these songwriters are no longer represented by ASCAP, BMI or SESAC, for a broadcaster to publicly perform any of these songwriters’ music, they generally either need a license from GMR or they need to directly license the music from the songwriters or their agents. The lawsuits seek $150,000 for each copyrighted work that was allegedly infringed – the maximum set out by the Copyright Act for “statutory damages,” i.e., damages that can be collected even without providing evidence of actual harm caused by the alleged copyright infringement. Commercial radio stations that play GMR music and have not entered into an agreement with GMR following the settlement earlier this year of its litigation with the Radio Music License Committee should enter into a license or consult with their attorneys to see if there is any way to otherwise receive permission to use GMR music.
• On October 6, the FCC released a draft Notice of Proposed Rulemaking that, if adopted, would propose a number of steps designed to strengthen the security of the Emergency Alert System (“EAS”) and Wireless Emergency Alerts (“WEA”).  The draft NPRM is slated for consideration at the FCC’s October 27, 2022 regular monthly open meeting.  In general, the draft NPRM seeks comment on ways to strengthen the operational readiness of EAS and WEA, including, among other things, requiring EAS Participants (including broadcasters) to report to the Commission incidents of unauthorized access of its EAS equipment within 72 hours of when it knew or should have known that the incident occurred, and requiring EAS Participants to submit an annual cybersecurity certification that demonstrates how the participant identifies the cyber risks that it faces, the controls it uses to mitigate those risks, and how it ensures that these controls are applied effectively.  If the NPRM is adopted, comments and reply comments would be due 30 days and 60 days, respectively, after the NPRM is published in the Federal Register.
• Also on October 6, the FCC released a draft Notice of Inquiry and Order that seeks information on the current use of the 12.7-13.25 GHz band (“12.7 GHz band”). Licensed services in the 12.7 GHz band include satellite communications and mobile TV pickup operations.  The draft Notice of Inquiry seeks information on how the FCC could encourage more efficient and intensive use of the band, and whether the band is suitable for mobile broadband or other expanded use.  The draft Order would extend the temporary freeze on applications in the 12.7 GHz band (see our reference to that freeze here).  If adopted at the FCC’s October 27 Open Meeting, comments and reply comments will be due 30 days and 60 days, respectively, after publication in the Federal Register.
• The FCC’s Media Bureau (“Bureau”) issued a Notice of Apparent Liability for Forfeiture (“NAL”) proposing a fine of $13,000 against the licensee of two low power television stations, finding that the licensee apparently violated section 74.788 of the FCC’s Rules by filing its “license to cover” applications informing the FCC that it had completed construction of new facilities for the stations when that construction was completed, and for violating section 301 of the Communications Act by engaging in unauthorized operation.  Construction was apparently completed in 2018 but no license application was filed until 2022, a year after the construction permit for the new facilities expired. The Bureau was not persuaded to reduce or eliminate the fine by the licensee’s contention that it was not represented by counsel when it failed to timely file its license applications. It also found that imposition of a proposed fine is consistent with other recent FCC cases that have similar underlying facts (see, for instance, the cases we have noted in weekly updates here and here).
• Due to damage associated with Hurricane Ian that was caused to broadcasters in South Carolina and Florida, the Media Bureau extended from October 11 to December 12, 2022 the deadline by which the impacted stations in those states must place their Quarterly Issues Programs Lists with material covering the previous calendar quarter in their public inspection file.  All other full-power stations should remember to upload Quarterly Issues Programs Lists to their public files by October 11.  Similarly, for Florida stations, the deadline to place their EEO public file report in their public inspection file is extended to December 12, 2022.