Here are some of the regulatory developments of significance to broadcasters from this past week, with links to where you can go to find more information as to how these actions may affect your operations.
- Through a Federal Register publication, the FCC announced comment dates on its Notice of Proposed Rulemaking proposing that broadcasters and cable operators be required to disclose, both on the air and in their online public inspection files, the use of AI-generated content in political advertisements. Comments will be by due September 4 and reply comments will be due by September 19. The Office of FCC Chairwoman Rosenworcel also released a Fact Sheet that seemed to have been issued to address criticism about the proposals advanced in the NPRM. The Fact Sheet contends, among other things, that the disclosure requirement was proposed because the majority of Americans are concerned about misleading AI-generated content. The Fact Sheet also notes that the FCC did not propose banning the use of AI-generated content in political advertisements, only requiring that it be labeled. As for the proposal’s impact on the upcoming November election, the Fact Sheet says that the FCC has not adopted a timeline for issuing final rules in the proceeding, as the NPRM is only seeking public feedback on its proposals before enacting any new rules. See our article on our Broadcast Law Blog discussing some of the issues that should be addressed in public comments on how the FCC’s proposed AI disclosure requirement will impact broadcasters, and on the likely timing of the proceeding.
- The FCC released a Public Notice announcing that Class A, LPTV, and TV translator stations may begin preparing channel change applications in the FCC’s LMS database. These applications cannot be filed until August 20 when the current filing freeze on major change applications for such stations will end (see the FCC Public Notice announcing the lifting of the freeze for details on the processing of channel change applications). The FCC also reminded TV stations that the 2020 U.S. Census Bureau data has been incorporated into its TVStudy software as of August 1, and all TV applications filed on or after August 1 – including these channel change applications – must be based on the updated data.
- The FCC announced that comments and reply comments are due September 3 and September 16, respectively, in response to last month’s Further Notice of Proposed Rulemaking proposing to exempt video programmers from the closed captioning registration and certification requirements if they provide programming to public, educational, and governmental access channels (PEG channels) or to nonbroadcast networks for distribution by a cable operator or other MVPD if the PEG channels or the network are exempt from or have certified compliance with, the captioning rules.
- The FCC imposed a $2,316,034 fine against a pirate radio broadcaster operating in the Bronx, New York, which was the maximum penalty permitted under the 2020 PIRATE Act before being adjusted for inflation this past January (see our discussion here). The FCC found that the individual operated the pirate station for at least 98 days (based upon FCC monitoring and information on the pirate’s website), and evidence indicated that the pirate had actually been operating since 2018. The FCC issued a Notice of Proposed Liability proposing this fine in 2023, and the pirate did not contest it. Now, the pirate radio operator has 30 days to pay the fine or the FCC may refer the case to the U.S. Department of Justice. The FCC itself cannot sue to collect fines or take actions against individuals who ignore the penalties issued in cases like this. Instead, it must rely on the DOJ to enforce the penalties in Court.
- Comments were due July 29 in response to the FCC’s June NPRM proposing to extend Online Public Inspection File obligations to certain LPTV stations and to make other changes to its FCC rules, including proposal imposing limits on LPTV station site moves and requiring community of license designations (see our discussions of the NPRM here and here). Comments were received from many parties addressing many issues. These include comments from the National Association of Broadcasters, the LPTV Broadcasters Association, the National Religious Broadcasters, and other commenters (see here, here, here, and here) opposing expanding OPIF requirements to LPTV stations, arguing that there is no evidence that the OPIF encourages public participation in FCC broadcast proceedings and that imposing the obligation on LPTV stations would create unnecessary burdens. The Advanced Television Broadcasting Alliance and Gray Media state that only top-4 network-affiliated LPTV stations should be subject to the OPIF requirements. The LPTVBA, the NRB, and other commenters (see here and here) state that the proposed 30-mile limit on site moves by LPTV stations is too restrictive, and also argue that there was no evidence supporting the need for LPTV minimum operating requirements. The NAB states that LPTV stations licensed to educational institutions should not have to operate on weekends. The NAB along with Gray Media supported requiring LPTV and TV translator stations to specify a community of license within the station’s service contour to avoid viewer confusion. The LPTVBA agrees, but states that stations should not have to serve a community for twelve months before changing to a new community of license, as proposed by the NPRM.
- The FCC’s Media Bureau issued a Declaratory Ruling allowing BAAZ Broadcasting Corporation to exceed the 25% limit on foreign investment established in section 310(b)(4) of the Communications Act. BAAZ, a Seattle AM station licensee, received approval for a foreign investor to hold up to 100% equity and/or voting interests in the company that is proposed to be the new parent of BAAZ. The Declaratory Ruling was necessary because the sole shareholder of BAAZ’s new parent company is a Canadian citizen. We wrote more about the FCC’s process of approving foreign ownership of US broadcast stations on our blog here and here. As in this case, these applications require approval from many government agencies, and the review can take time (this application having been submitted in almost a year ago, on August 17, 2023).
- The Media Bureau also released an NPRM proposing the substitution of Channel 11, at Lubbock, Texas for Channel 35, and the substitution of Channel 35, at Lubbock, Texas for Channel 36. Two Lubbock TV stations propose to “swap” their channels to allow the station operating on Channel 35 to replace its failing equipment with that of the other station operating on Channel 11. The stations also note that this swap would not result in a loss of service to viewers.
- The Media Bureau dealt with fines for two groups of LPTV and TV translator stations for filing their license renewal applications late. The Bureau proposed a $3000 fine against the licensee of a California and an Oregon LPTV station ($1,500 per station) for filing their renewal applications over one month late; a fine reduced from the $6,000 base amount ($3,000 per station) due to LPTV stations’ secondary service status. The Bureau also cancelled a $6,000 fine imposed on four Colorado TV translator stations for filing the stations’ renewal applications over one month late after their licensee submitted financial documentation demonstrating an inability to pay.
- The Media Bureau affirmed its dismissal of 105 LPFM construction permit applications based on the applicant failure to demonstrate its eligibility to operate an LPFM station. The applicant planned a public safety radio service, which is allowed under LPFM rules if operated by state or local governments or “non-governmental entities” that have public safety jurisdiction in an area. The FCC had dismissed these applications as the applicant did not have any jurisdiction over public safety matters and had not requested a waiver of the FCC rules to permit its applications to be granted despite not meeting the letter of the rules. In its reinstatement request, it asked to now be allowed to request that waiver arguing that it was not informed of the waiver requirement during discussions with FCC staff prior to filing the applications, and also arguing that it had informal authority from several agencies with jurisdiction over public safety matters to provide this service. The Bureau rejected the applicant’s request for several reasons including that any waiver request must be contained in an initial LPFM application, the FCC staff in fact had not provided the guidance that was claimed by the applicant (and, even if it had, applicants cannot legally rely on such informal staff advice), and the rules were clear that the applicant needed actual authority over public safety matters to qualify as an LPFM licensee.
On our Broadcast Law Blog, we highlighted the regulatory dates and deadlines for broadcasters in August and early September.