This Week in Regulation for Broadcasters:  November 13 to November 17, 2023

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

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

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

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

Leave a Reply

Your email address will not be published. Required fields are marked *