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 FCC released its Second Report and Order setting the annual regulatory fees that broadcasters must pay for 2024. As the result of reallocating employee costs across regulated industries, the FCC reduced TV station fees by approximately 15.4% from last year, and it reduced fees for radio stations by a lesser amount. The FCC also decided to end its presumption that silent stations are entitled to fee waivers without providing evidence of financial hardship and, beginning in 2025, all broadcasters will be required to submit financial documentation to demonstrate financial hardship regardless of their operating status. We expect that the FCC will issue a Public Notice announcing the dates for the payment window early next week and that the Media Bureau will release a fee filing guide for the broadcast services.
- The FCC announced that broadcasters do not need to file the FCC Form 395-B by September 30 this year. The form, which the FCC reinstated in a February Report and Order, requires broadcasters to annually classify their employees by job categories and in each category report their employees’ race, ethnicity, and gender. The FCC explained the delay by saying that the Media Bureau had yet to release its Public Notice detailing the form’s filing procedures. It did not provide a new filing deadline, but noted that broadcasters will have “ample time” to collect the information reported in the form before any new deadline. See our discussion on our Broadcast Law Blog for more on the FCC’s delay in implementing this reporting requirement.
- The FCC imposed fines on the licensees of over 100 TV stations for exceeding the limits on commercialization in programming directed to children ages 12 or under. The FCC found that these stations aired “program length commercials” by running ads for Hot Wheels toys during a Hot Wheels program, which under FCC precedent makes the entire program into a commercial. The fines ranged from $20,000 for single station licensees up to $2,652,000 for multiple station licensees – for a total of $3,334,000 in fines. FCC Commissioners Simington and Carr issued dissenting statements arguing that the FCC’s authority to issue fines was unclear following the U.S. Supreme Court’s recent reversal of an SEC imposed fine which the Court found violated the Seventh Amendment’s right to a jury trial. The FCC majority determined that the Supreme Court case was not applicable, as the case only required a jury trial where an administrative agency’s fine was imposed as a penalty for activity that would give rise to penalties under common law – in the SEC case the penalty was imposed for fraud. The FCC majority noted that the fines here were for violations of specific FCC rules with no common law analog and, moreover, before any FCC penalty must be paid, the broadcaster has a right to a trial in federal court to determine if the fine was warranted. Commissioner Simington nonetheless stated that he will object to future monetary fines until the FCC conducts a proceeding to determine how the Supreme Court decision affects its authority to issue such fines.
- The FCC released a draft Report and Order on FM digital subchannels to be considered at its September 26 regular monthly open meeting. If adopted, the Order would allow digital FM radio stations to operate at different power levels on their upper and lower digital sidebands, establish higher maximum digital sideband power levels for many stations, and clarify that digital FM operation notifications must be made using the FCC Form 335-FM.
- The FCC announced that September 8, 2025 is the effective date of the FCC’s August Report and Order creating a new Emergency Alert Service event code for persons over the age of 17 who are missing or abducted from states, territories, or tribal communities (known as Ashanti Alerts). The FCC set this effective date to provide EAS Participants with enough time to update their EAS systems to include the code.
- The FCC announced that its submitted its new foreign-government sponsorship identification rules to the OMB for review under the Paperwork Reduction Act. As we discussed here, in a June Second Report and Order, the FCC adopted standardized procedures to verify whether buyers of broadcast program time are representatives of foreign governments, and determined that the verification requirement applied not just to buyers of program time, but also to buyers of spot time that did not promote commercial products or services – making issue ads and paid PSAs subject to the verification requirements. The OMB must review the new verification requirements before they become effective, and there are other legal challenges to the expansion of the obligation to these noncommercial spots. Comments in response to the OMB’s review for the new requirements are due October 4.
- The DEA announced that it will hold a hearing on December 2 on its proposal made in its May Notice of Proposed Rulemaking to reclassify of marijuana under the Controlled Substances Act from Schedule I (prohibited drugs with no medical benefits and a high potential for abuse) to Schedule III (drugs with some medical benefit with lower risks). Anyone interested in participating in the hearing must provide notice by September 30. As we discussed on our Blog here, rescheduling does not remove all legal risks from advertising marijuana on broadcast stations in states where its use has been “legalized” as Schedule III drugs still need federal government approval before they can be marketed to the public, and restrictions on their marketing can be imposed.
- The Federal Election Commission pushed to a later meeting the consideration of its disposition of a request asking the FEC to start a proceeding to limit the use of Artificial Intelligence in political advertising. The disposition, written by Republican Commissioners and proposing to reject the call to start a proceeding until Congress provided more guidance (see our blog article here), had been on the agenda for the FEC’s August 29 meeting.
- The Media Bureau announced the pleading deadlines for Paramount’s transfer applications proposing the company’s merger with Skydance Media, LLC, which will result in billionaire Larry Ellison holding a controlling stake in the company. Paramount holds licenses, through various direct and indirect subsidiaries, for 28 TV stations, in addition to a Class A TV and two LPTV stations. Petitions to deny the applications are due October 7, oppositions to any petitions to deny filed are due October 22, and replies to any oppositions filed are due November 1.
- The Media Bureau requested that an Alabama AM station amend its application to change its community of license from Bay Minette, Alabama, to Spanish Fork, Alabama, to demonstrate how the change was in the public interest since it resulted in the station moving from a smaller, rural community with only two radio stations to a larger, urbanized area with numerous radio stations – which conflicted with the FCC’s policy disfavoring such moves. See our discussion here regarding the difficulty in moving a radio station from a rural to an urban area due to the FCC’s presumption that such moves are not in the public interest.
- The Media Bureau also granted two proposed changes to the TV Table of Allotments requested by petitioner TV stations. The first Order reverses the substitution of channel 27 for channel 12 at Augusta, Georgia due to petitioner’s inability to timely construct its channel 27 facilities. The second Order grants the substitution of channel 23 for channel 7 at Boise, Idaho due to the poor reception on VHF channel 7.
- The Media Bureau also took several actions against broadcasters for violations of FCC rules:
- The Bureau entered into a Consent Decree with the licensee of a group of Arkansas and Missouri radio stations requiring payment of an $8,000 fine to resolve the Bureau’s investigation of the licensee’s failure to seek prior FCC consent to the transfer of the licensee’s stock held by two successive trusts in 2020 and 2021 and to changes in the trustee of the second trust. The Bureau noted that the licensee did not file transfer applications reflecting these changes until April 2024.
- The Bureau entered into a Consent Decree with an Iowa FM station for failing to comply with its Online Public Inspection File requirements during its last license period, requiring the station to implement a compliance plan to prevent future OPIF violations.
- The Bureau proposed a $3,000 fine against a Texas 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 proposed an $1,000 fine against a Nevada TV translator for filing its license application over two years after its displacement construction permit had expired. The Bureau, however, granted the translator’s request to reinstate its construction permit because it was filed due to the translator’s involuntary displacement from its original channel, and absent reinstatement, the translator’s community of license would be deprived of a Reno full power TV station’s programming rebroadcast by the translator.
On our Broadcast Law Blog, we highlighted the regulatory dates of importance to broadcasters in September. We also looked at legal issues that broadcasters using AI to develop programming should be considering. Finally, with the opening on September 6 of the political window for lowest unit rates for the November general election, we reviewed many of the issues faced by broadcasters in determining these rates for candidate advertising.