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.
- Some of the big news for broadcasters this week came not from the FCC, but from the Federal Trade Commission:
- A U.S. District Court in Texas issued an order setting aside the FTC’s non-compete rule, which was set to ban non-compete clauses in employment agreements across the United States beginning on September 4. The Texas Court found that the FTC lacked legal authority to issue the rule and that the FTC decision was impermissibly arbitrary as the FTC failed to consider the record evidence of the positive benefits of these agreements. The Court’s decision puts the September 4 effective date on hold nationwide. Given last month’s decision by a U.S. District Court in Pennsylvania (which we discussed here) rejecting a request to stay the effect of the FTC’s order, finding that the FTC’s order was unlikely to be overturned after that Court’s final review, we can expect further litigation to reconcile these conflicting decisions. But, for now, absent some other court ruling reversing the Texas decision, the effective date of the FTC ban is on hold.
- The FTC announced that October 21 is the effective date of its final rule prohibiting the purchase and sale of fake reviews and testimonials concerning products and services, and allowing the agency to seek civil penalties against knowing violators. Among other things, the rule prohibits activities including the buying and selling of fake consumer reviews, testimonials, and positive or negative consumer reviews; certain insiders creating consumer reviews or testimonials without clearly disclosing their relationships; creating a company-controlled review website that falsely purports to provide independent reviews; certain review suppression practices; and selling or purchasing fake indicators of social media influence.
- Comment and pleading deadlines were updated in various FCC proceedings:
- The FCC’s Media Bureau announced an extension of the comment deadline for the FCC’s July Notice of Proposed Rulemaking proposing that broadcasters and cable operators disclose, both on the air and in their Online Public Inspection Files, the use of AI-generated content in political advertisements. Comments are now due September 19 and reply comments are now due October 11. The NAB and the Motion Picture Association requested an extension to ensure that the public had sufficient time to provide meaningful responses to the proposals. The FCC agreed, but only granted half the additional time that the NAB and the MPA requested. For more on the FCC’s AI proceeding, see our Broadcast Law Blog article, here.
- The FCC published in the Federal Register a notice setting September 4 as the deadline for the filing of oppositions to the National Association of Broadcasters’ petition for reconsideration of the FCC’s June decision to reinstate the rule prohibiting programming duplication by commonly owned or operated commercial FM stations serving the same area. Replies to oppositions filed against the petition are now due September 16. Last week, we had incorrectly provided an earlier date as the deadline for comments. For more on the FCC’s Order reimposing the FM nonduplication rule, see our article here.
- The FCC corrected the reply comment deadline to October 1 for its July Further Notice of Proposed Rulemaking proposing to exempt video programmers from the closed captioning registration and certification requirements if such programmers provide programming to public, educational, and governmental access channels (PEG channels, which are exempt from captioning requirements) or to nonbroadcast networks which certify that they are exempt from captioning obligations. Comments are still due September 3.
- The FCC announced that August 19 is the effective date of some of the new rules adopted in its October 2020 Report and Order, which brought more structure to the Team Telecom process of reviewing broadcast transactions proposing more than 25% foreign ownership. This includes requiring applicants to submit responses to standardized questions (available here), and excluding from Team Telecom review certain pro forma transfer/assignment applications and certain other specified applications. The effective date of these new rules was delayed until this week while the Office of Management and Budget completed its review of the paperwork burden the new rules impose.
- The Media Bureau also took these other actions:
- The Bureau proposed a $3,000 fine against a Georgia FM station for filing its license renewal application almost four months late, noting that the station provided no explanation for the delay in its application.
- The Bureau dismissed eight Texas LPFM new construction permit applications filed by local outreach organizations of the same Texas-based church because the applicants failed to demonstrate several requirements for LPFM eligibility. The applicants had not shown that they were recognized unincorporated non-profit associations under Texas state law. The applicants had not shown that they were independent of the church that set up each organization, thus giving the church an impermissible interest in multiple LPFM applications. Finally, the applicants had not shown reasonable assurance of availability of each proposed transmitter site at the time the application was filed.
The annual Podcast Movement Convention took place this week in the DC area, so we highlighted on our Broadcast Law Blog legal issues for podcasters – in particular focusing on how podcasters, like broadcasters, have sponsorship identification rules requiring that they make clear when they receive something of value in exchange including content in their podcast.
With the Labor Day holiday next weekend, we plan to take next weekend off. So, look for our next update in two weeks, summarizing actions in that two-week period. If any any significant regulatory actions occur in the interim (like releases related to the Annual Regulatory Fees due in September), we will note them on our Broadcast Law Blog. Also watch our Blog this coming week for a look ahead at September regulatory dates for broadcasters.