This Week in Regulation for Broadcasters: January 15, 2023 to January 22, 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 Federal Trade Commission’s proposal to ban noncompete clauses in employment agreements was published in the Federal Register, setting a comment deadline of March 20, 2023.  The proposal is a broad one, proposing to prohibit any agreement that has the same effect as a noncompete agreement, including broad nondisclosure agreements that would preclude a worker from working in their field at a new company, or contract clauses that require an employee to repay a company for training costs if the employee leaves the company.  The proposed rule would apply not just to employees of a company, but also to independent contractors, interns, and others performing work for a company. 
• The FCC’s Media Bureau issued a Public Notice announcing that the comment dates for the FCC’s 2022 Quadrennial Review of the broadcast ownership rules were set by the publication of the announcement of the review in the Federal Register.  As we reported last week when the Federal Register publication occurred, comments are due March 3, 2023, with reply comments due by March 20, 2023.  For more about the issues in this proceeding, see our article here on our Broadcast Law Blog. 
• The Media Bureau granted an application for a construction permit for a new noncommercial education (NCE) FM station at Spencer, Iowa, providing a new wrinkle in the policies for processing mutually exclusive applications in noncommercial FM filing windows.  The Bureau allowed the Spencer applicant to file a technical amendment to eliminate its application’s mutual exclusivity with all of the other mutually exclusive applications, rendering its application grantable.  The new wrinkle was that the amendment was filed after one of the other applicants in the group of mutually exclusive applications had already been tentatively selected by the Bureau for a grant following a comparative analysis.  The Bureau found that granting the amended Spencer application would not violate the FCC’s policy of granting only one application per mutually exclusive group as there was nothing in the FCC’s rules or its NCE FM processing procedures that prohibits an applicant from filing a technical amendment to eliminate its mutual exclusivities before, or after, the Bureau or the FCC conducts a comparative analysis. The Bureau did find that a second amendment to increase power to take advantage of the dismissal of another application that was not selected as the comparative winner was improper as, in prior cases, the FCC has not allowed applicants to take advantage of the involuntary dismissal of other conflicting applications in an MX group.
• The Bureau also issued a Memorandum Opinion and Order and Notice of Apparent Liability for Forfeiture in which it proposes to fine a low power television (“LPTV”) station $6,500 and issue it a two-year license renewal for failing to timely file an application for a license to cover the construction of facilities authorized by its digital construction permit, and thereby engaging in unauthorized operation for over two years after its construction permit expired.  License applications certifying to the FCC that the new facilities were constructed according to the specifications in the construction permit must be filed when construction is complete.  As applicants before the FCC are responsible for ensuring that their actions are consistent with FCC rules, the Bureau did not excuse the violations even though the station claimed that its failure to timely file for a license to cover was inadvertent and its actions (or lack thereof) were taken at the advice of its engineering consultant.  Although the FCC’s policies establish a base fine amount of $3,000 for the failure to file a required form, and a base fine amount of $10,000 for construction and operation without a valid authorization, the Bureau reduced the proposed fine to $6,500 because the station was an LPTV station and thus providing a secondary service.  The short-term renewal was issued to give the FCC the opportunity to sooner review the licensee’s future performance not only because of the failure to timely file the license application, but also because the Bureau found the licensee was slow to respond to FCC requests for information and often inaccurate in its FCC filings.
• The FCC issued its Sixth Report on Ownership of Broadcast Stations, based on FCC Form 323 and Form 323-E ownership data as of October 1, 2021.  This report provides a detailed review of the ownership interests in commercial and noncommercial broadcast stations (specifically full power television, Class A television, low power television, AM radio and FM radio) by gender, race, and ethnicity. 
• The FCC released a Public Notice announcing that it will host a symposium on “Expanding Digital and Media Ownership Opportunities for Women and Minorities” on Tuesday, February 7.  The FCC states that the symposium will feature panels discussing the competitive challenges facing minorities in media and tech, best practices for cultivating the next generation of diverse media leaders, and tax and other incentives to support diverse owners.  Symposium participants will include media companies, entrepreneurs, research and thought leaders, advertising and marketing experts, and media/tech training program representatives.