This Week in Regulation for Broadcasters: July 9, 2022 to July 15, 2022

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 US Court of Appeals this week determined that the FCC’s requirement that broadcasters confirm by searching DOJ and FCC databases that all buyers of program time on their stations are not representatives of foreign governments was beyond the power of the FCC as authorized by Congress. The Court decision will become effective if no appeals are filed.  The ruling does not change the obligation of broadcasters to have all buyers of program time certify in writing that they are not foreign governments, agents of foreign governments, or funded by foreign governments, and that no one in the production chain for any paid programming is a foreign government or its representative (or, if there are foreign governments behind the programming supplied to the station, the station must make appropriate on-air and public file disclosures).  Instead, the decision will simply remove the requirement that broadcasters verify the programmer’s certifications by reviewing the DOJ’s Foreign Agent Registration Act database and an FCC database listing foreign government funded video programmers.  For more on this decision, see the article in our Broadcast Law Blog, here.
• This week, the FCC unanimously adopted an Order and Sixth Notice of Proposed Rulemaking (on which we previously reported) to delete or revise analog rules for LPTV and television translator stations that no longer have any practical effect or that are otherwise obsolete or irrelevant after the transition of these stations to digital operation. Comments and reply comments on the Sixth Notice of Proposed Rulemaking will be due 30 and 45 days, respectively from publication of the document in the Federal Register
• At its July 14 Open Meeting, the FCC unanimously adopted a Notice of Proposed Rulemaking (also previously reported) seeking comment on whether to update its rules to identify a new Nielsen publication for determining a television station’s designated market area (“DMA”) for satellite and cable carriage purposes. Nielsen has notified the FCC that it will no longer publish its Station Index Directory, which has historically been used in combination with the Nielsen Station Index and United States Television Household Estimates to determine a station’s DMA for carriage purposes.  In his separate statement on the Notice of Proposed Rulemaking, Commissioner Simington, citing Nielsen’s current unaccredited status, expressed concerns about the FCC’s reliance on Nielsen data and Nielsen’s inclusion in nearly two dozen FCC rules, and called on the FCC to open a notice of inquiry on this topic.  Comments and reply comments on the Notice of Proposed Rulemaking will be due 30 and 60 days, respectively, from the date the document is published in the Federal Register.
• Forty-nine state broadcaster associations, “represent[ing] nearly the entire universe of radio stations in every state and territory in the United States,” this week submitted a joint letter to the FCC to voice their “strong opposition” to GeoBroadcast Solutions’ (GBS) proposal that would permit GBS to deploy its proprietary ZoneCasting technology in the marketplace. Among other things, the associations state that “GBS’s approach would only undermine, rather than serve, listeners and local broadcasters, raising serious concerns about this new technology’s effect on local radio’s important public safety function and ability to provide the free, local news, information, and entertainment on which Americans rely.” The associations also highlighted the potential impact of ZoneCasting on public safety, listeners and the economics of the radio industry.
• The FCC’s Audio Division of the Media Bureau released an Order adopting a consent decree with an Oklahoma AM station, in which the station was granted a short-term renewal of one year instead of a full term renewal for eight years.  The Bureau found that the station had been silent for four periods during its license term (including the period when its renewal application was pending), three of which were almost 12 months in length.  The Bureau was not persuaded to grant a full-term renewal by the fact that the station had sought FCC authorization for its periods of silence.  The station also disclosed that it had failed to comply with the FCC’s online public inspection file requirements.  In addition to the short-term renewal, the consent decree requires the station to implement a compliance plan to ensure future compliance with the online public inspection file requirements.  For another consent decree issued to resolve online public inspection file violations (but without issuing a short-term renewal, go here).
• The FCC’ Video Division issued a Memorandum Opinion and Order and Notice Of Apparent Liability For Forfeiture proposing a $6500 fine on an LPTV station that had completed construction of its digital facilities in 2017 but did not file a license to cover that construction permit until late 2021 after the station’s digital construction permit expired and the FCC issued a notice cancelling the station license for not having met the July 2021 deadline for the commencement of LPTV digital operations. As the licensee was able to prove the prior construction of the station, the FCC reinstated the license but proposed the fine for late filing of the license application and operating without authority for the periods of its digital operation before the license application was filed.  This decision serves as a reminder that broadcasters who construct new facilities pursuant to a construction permit must file a license application upon the completion of construction notifying the FCC of the actual facilities constructed and verifying that the construction was accomplished according to the requirements of the permit.
• The FCC’s Enforcement Bureau issued a Notice of Violation to an LPFM station in Florida for failure to allow FCC representatives to inspect the station. In this case, FCC agents from a Field Office were not allowed by employees of the station to inspect its operation, and the owner of the station allegedly, after being called, also refused to permit the inspection.  As noted in the Notice of Violation, the FCC rules require that all stations be available for inspection by FCC agents during all hours of operation.
• This week, we published on our Broadcast Law Blog an article about two new performing rights organizations that are seeking royalties for the public performance of comedy recordings. ASCAP, BMI, SESAC and GMR do not typically cover the performance of the “literary work” underlying a recorded comedy routine, so these new PROs are seeking royalties for these performances.  Also on the Broadcast Law Blog was an article reminding stations that they need to register in the new CORES2 FCC database, and to use the FCC’s LMS database for all call sign change requests (or requests for call signs for new stations) as the independent call sign database is no longer in use.

And a reminder for next week, July 18, 2022 is the reply comment deadline for the FCC’s Notice of Proposed Rulemaking on the FCC’s proposed regulatory fees for fiscal year 2022.  In initial comments, the NAB argued that the FCC’s methodology for imposing the fees on broadcasters was inexplicable as it raised fees on broadcasters by 13% while the FCC budget which the fees are to reimburse only increased by 2.1%.   The state broadcast associations jointly filed comments expressing many of the same concerns.  The fees that the FCC is proposing for television and radio stations are set forth in Appendix C and Appendix G of the Notice of Proposed Rulemaking.