This Week in Regulation for Broadcasters:  November 6 to November 10, 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 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 Broadcast Law 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 has increased.  Gray Television recently told the FCC that it should not tighten its television ownership rules due to the negative impact it would have on small and rural television markets.  Similarly, the National Association of Broadcasters urged the FCC to relax its radio ownership rules to enable radio broadcasters to better compete with digital audio platforms through greater scale and economic efficiencies.  Music industry groups, however, told the FCC that the current radio ownership restrictions should be maintained to preserve and promote not only ownership diversity, but viewpoint diversity through music and lyrics.  An individual who formerly worked as a  broadcaster urged the FCC to use its broadcast ownership rules to promote more small, local, and minority ownership in radio.  Expect more comments in the coming weeks containing last minute pleas for the FCC to favor various positions advanced in this proceeding. 
  • This week, an automotive industry group published a blog article in opposition to the AM Radio for Every Vehicle Act now pending in Congress– an Act which would mandate the installation of AM radios in all new cars, including electric vehicles.  The blog article cited a study claiming that compliance with such a mandate would cost automakers $3.8 billion.  The NAB responded stating that the Congressional Budget Office released a report last month which estimated that compliance would actually cost automakers only a fraction of that amount. 
  • As we discussed last week, the White House’s recent executive order regarding Artificial Intelligence encourages the FTC to exercise its authority to promote a fair, open, and competitive AI system.  This week, the FTC announced that it will consider at its open meeting next week whether to initiate a proceeding examining how to use its authority to protect consumers from AI-enabled voice cloning harms, such as fraud and the broader misuse of biometric data and creative content.  The FTC also filed comments in the Copyright Office’s proceeding exploring the copyright implications of AI which stated that the FTC might consider AI’s impact on the creative community to be an unfair trade practice – an interesting suggested expansion of the FTC’s usual regulatory focus.
  • Senator Chuck Shumer stated this week (here and here, and here), at the Fifth and Sixth Bipartisan Senate Forums on Artificial Intelligence, that Congress must act quickly to address the potential harm to elections and democracy posed by the use of AI-generated political advertisements.  Earlier this week, we published an article examining recent calls from some for federal regulation of the use of AI-generated content in political ads, and the state and federal legislative actions taken to address these concerns.  While most governmental action on this issue remains to be seen, Facebook’s parent company Meta announced that it will voluntarily impose labeling requirements on ads appearing on its social media platforms when those ad use AI or other digital tools to add false images or sounds in messages addressing elections and other political and social issues (see our discussion here of Meta’s announcement and why broadcasters are limited in taking a similar action). 
  • The FCC’s Media Bureau issued a $9,000 fine against a full power television station for failing to timely upload its quarterly issues/programs lists to its online public inspection file.  The Bureau found that the station had failed to timely upload copies of these lists for a total of 10 quarters in its prior license renewal term.  The Bureau also noted that the station failed to provide any explanation in its license renewal application for its failure to timely upload the lists, and instead stated in the application the lists were uploaded on-time.  According to the decision, the station in fact uploaded the lists only after FCC staff alerted it that the lists were missing from its public file.  The Bureau also proposed to assess a $9,000 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 in its renewal term – seven lists more than one year late, four lists between one month and one year late, and one list between one day and one month late.  See our article here on the importance the FCC places on the quarterly issues/programs lists.
  • The FCC’s Media Bureau continues to substitute UHF channels for VHF channels in local markets to improve reception of over-the-air television channels as UHF channels offer superior digital broadcasting service.  The most recent examples include the substitution of channel 18 for channel 8 at Idaho Falls, Idaho, and the Bureau’s substitution of channel 16 for channel 7 at Winnemucca, Nevada.  The Bureau also released a Notice of Proposed Rulemaking asking for comments on a TV station’s petition for rulemaking proposing the substitution of channel 21 for 20 at Missoula, Montana, which follows the station’s previous request to change its station from channel 13 to channel 20.  The station is now requesting substitution of channel 21 for channel 20 at Missoula, Montana to mitigate co-channel interference and to increase the over-the-air reception of the station.

Looking ahead, as Congress still has not passed budget bills for the fiscal year that started on October 1, and “continuing resolutions” to fund the federal government at last year’s levels run out on November 17, a government shutdown may well occur if Congress fails to act this week.  As we previously discussed here and here, if a government shutdown does occur, 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 to see what happens.

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