This Week in Regulation for Broadcasters:  December 4 to December 8, 2023

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

  • The AM for Every Vehicle Act was scheduled for a US Senate vote this week through an expedited process seeking unanimous consent.  However, Senator Rand Paul of Kentucky refused to consent so, for now, the bill has not moved forward.  As we wrote here, the bill, if adopted, would require that the National Highway Traffic Safety Administration adopt rules within a year to require that free AM radio be provided in every new car and, until those rules are effective, car dealers must provide written notice to any new car buyer if their new car does not have a radio capable of receiving AM.    
  • The FCC’s Wireless Telecommunications Bureau adopted two deadlines for the final submission of reimbursement claims by earth station operators, including broadcasters, whose earth stations were affected by the C-band transition clearing parts of the band for use by wireless operators. The deadlines are, as follows:
    • February 5, 2024 – Submission deadline for all reimbursement claims for costs incurred and paid by claimants as of December 31, 2023, including all lump sum election claims by incumbent earth station operations.
    • July 1, 2024 – Submission deadline for costs incurred and paid by claimants after December 31, 2023, which must be submitted on a rolling basis within 30 days of being incurred.  If there are costs that will be incurred after July 1 (which the Bureau expects will be rare), to be considered for reimbursement, the claimant must submit the claims by the July 1 deadline with the best supporting documentation and information available at that time. 
  • FCC’s Media Bureau proposed a $13,000 fine against the licensee of a Texas Class A TV station for failure to timely file a license application and operating without authorization after its construction permit had expired.  The licensee stated that while the station was timely constructed, it inadvertently failed to timely file a license application.  As the applicant showed that the station was constructed timely, the license application was granted. The Bureau nevertheless imposed the fine because the station operated without authorization for over three and a half years and the station’s licensee should have been aware of the filing requirements since it is the licensee of over 100 television and radio stations. 
  • The FCC’s Media Bureau entered into Consent Decrees with two AM stations to resolve investigations of the stations’ FCC rule violations:
    • The Bureau entered into a Consent Decree with a Pennsylvania AM station to resolve issues arising from the Bureau’s review of the station’s license renewal application.  The Bureau imposed a $3,000 penalty and required a compliance plan to protect against future violations.  The penalty was imposed as the licensee did not timely file its renewal application (filing it over three months late) and did not place any issues/programs lists in its online public inspection file during the previous license period. 
    • The Bureau entered into a Consent Decree with an Oregon AM station’s licensee requiring a $5,000 penalty to resolve issues arising from the Bureau’s investigation involving the unauthorized transfer of control of the licensee.  The Bureau found that, following the death of the licensee’s majority shareholder, the licensee filed an involuntary transfer of control application (Form 316) reflecting the transfer of the majority shareholder’s stock to his estate.  However, before distributing the stock from the estate to the beneficiaries, it failed to file a transfer of control application (Form 315) seeking approval for the ultimate ownership and control of the station.  This is one of several recent cases that show that death of a controlling owner (or even estate planning by the owners of a station) can trigger FCC requirements for approval of changes in control of an FCC license, and penalties can result when such approvals are not obtained (see, for instance, the cases we noted here, here, and here). 
  • The FCC’s Public Safety and Homeland Security Bureau partially granted a request filed by a group of Mississippi noncommercial TV stations for an extension of the FCC’s requirement that broadcasters prioritize the Internet-based Common Alerting Protocol (CAP)-formatted version of an Emergency Alert Service message when it receives both a legacy version and a CAP-formatted version of the same alert.  As we discussed here and here, all EAS Participants must comply with the CAP prioritization requirement by December 12, 2023 – except for EAS Participants using Sage manufactured EAS equipment, which have until March 11, 2024 to comply with the new requirement.  The Mississippi TV stations claimed that their EAS equipment is not capable of CAP prioritization, and they are currently awaiting federal funding to upgrade to equipment that can meet the new requirement.  The Bureau concluded that there was good cause to provide the TV stations with an extension until April 30, 2024.  Although the licensee requested more time, the April 30 deadline was adopted based on the licensee’s estimates that their new EAS equipment would be deployed and operational by that time. 
  • The FCC has until December 27th to comply with a court order requiring the agency to conclude its still-pending 2018 quadrennial review of its local broadcast ownership rules (see our blog article for more on the Court order and on the issues under consideration in that proceeding, including a review of the local radio ownership limits, the restrictions on combinations of two of the Top 4 TV stations in any market, and the dual network rule forbidding common ownership of two of the Top 4 TV networks).  With that deadline in sight, lobbying at the FCC on how the FCC should conclude the proceeding continued during the past week.  Pay TV industry representatives NCTA and the American Television Alliance urged the FCC to expand the rule against owning two of the Top 4 stations in a market to apply to multicast channels and LPTV stations – claiming that preserving the existing duopoly rule “loophole” would only lead to higher prices for consumers.  These parties contend that broadcasters’ claims regarding the need to consolidate to preserve local news were unfounded.  In contrast, the NAB, TV network representatives, and TV broadcasters (here, here, here, here, here, here, and here) urged the FCC to reject the pay TV industry’s arguments – arguing that the pay TV industry’s data that duopolies do not contribute to more local news is unreliable and their proposals to expand the duopoly rules to multicast channels and LPTV stations are motivated by a desire to weaken TV stations’ bargaining power in retransmission negotiations.  Broadcast interests also say that expanding the prohibition would significantly harm broadcasters and viewers, especially in smaller markets, who need such services to receive a full complement of network programming.  Finally, a group of radio broadcasters continued to urge (see last week’s discussion of previous filing here) the FCC to eliminate the local radio ownership rules given the dramatic change in marketplace competition since the ownership rules were adopted, noting that local stations need greater scale to compete with digital media for advertisers and listeners.
  • Senator Schumer concluded the final Senate Forums on Artificial Intelligence by stating that, while there is a bipartisan consensus on the harms of AI, efforts to craft legislation designed to protect Americans from such harms will remain ongoing in 2024 (see his statements here, here, here, and here). Regulation on a state level continues.  As we discussed on our Broadcast Law Blog this week, Michigan became the fifth state to require disclosure of the use of AI in political advertisements, joining other states that have addressed concerns about deep fakes corrupting the political process. 
  • The FCC’s Media Bureau issued a Report and Order allocating noncommercial educational channel 4 to Jacksonville, Oregon as the community’s first local television service and its first noncommercial television service.  The Bureau will release a public notice in the future announcing when it will begin accepting new noncommercial television station applications for the new allotment. 
  • The LPFM filing window opened on December 8, and will close on December 13 at 6:00 pm EST.  As we wrote here, here, and here, eligible entities may apply for a new LPFM station in the filing window.  Additionally, the current freeze on FM translator modifications will end with the closing of the filing window on December 13.

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