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Indian E-music – The right mix of Indian Vibes… » FM Radio


This Week in Regulation for Broadcasters – February 27, 2021 to March 5, 2021

Delivered... David Oxenford and Adam Sandler | Scene | Sun 7 Mar 2021 5:50 pm

Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • Global Music Rights (GMR) has offered commercial radio stations an extension of their interim license for the public performance of musical compositions by the songwriters that it represents. The extension through January comes at a price – a 20% increase in the royalty fees.  GMR offers these interim licenses while its antitrust litigation with the Radio Music License Committee is pending, where RMLC seeks to put checks on GMR’s right to unilaterally set prices.  We covered the issues broadcasters should consider in weighing this extension on our blog, here.
  • With the July 13 deadline for analog low-power TV and TV translator stations to transition to digital or cease operations and for the expiration of many construction permits for new digital LPTV stations granted prior to the TV Incentive Auction, the FCC reminded broadcasters subject to the deadline that their opportunity to file for a one-time extension of not more than 180 days ends on March 15. We covered the FCC’s Public Notice on this issue in more detail, including a discussion of the as yet unresolved issue of “Franken FMs” (radio services on 87.7 FM provided by analog LPTVs on Channel 6), here.  (Public Notice)
  • By March 15, comments are due on the minimum bid amounts and procedures proposed for Auction 109, which will auction construction permits for 136 new FM stations and 4 AMs. Reply comments are due by March 22 and bidding is scheduled to begin July 27.  (Federal Register)
  • Two Florida LPFM stations received Notices of Violation for transmissions on frequencies other than as permitted by their license. Stations must exercise care to ensure that their transmission facilities do not produce spurious emissions outside their licensed frequencies.  These emissions can cause interference to other broadcasters and to non-broadcast radio communications (one of the stations investigated here was reviewed because of a complaint from the FAA).  Read more about this on our blog, here.  (Orlando Notice of Violation)  (Miami Notice of Violation)
  • A handful of Republican congressmen have introduced a bill to prevent the FCC from reinstating the Fairness Doctrine, which the FCC found unconstitutional in 1987. We wrote, here, about what the Fairness Doctrine was and why, even absent congressional action barring its reintroduction, it is unlikely to make a comeback.  (R.1409)
  • Following last fall’s order designed to bring more structure and transparency to the Executive Branch (Team Telecom) review of proposals for foreign ownership of communications facilities including broadcast stations, the FCC has set the dates by which interested parties can comment on the standardized questions applicants will be asked, including national security and law enforcement questions. Comments are due by April 2 and reply comments are due by April 19.  (Federal Register)

FCC Reminds Analog LPTV/TV Translators of July 13 Digital Transition Deadline – Extensions Due by March 15

Delivered... David Oxenford | Scene | Fri 5 Mar 2021 5:50 pm

In a Public Notice, the FCC has reminded all analog LPTV stations and TV translators that they need to convert to digital by July 13, 2021 or cease operations.  The Notice reminds operators of these stations that, if they cannot meet the July 13 deadline, they can request an extension by March 15.  Upon a showing setting out that their inability to meet the deadline was for reasons beyond their control, the Commission may grant an extension of up to 6 months to construct the digital facilities (though, even if their conversion deadline is extended, the analog operations must cease by July 13).

One issue left unresolved by the FCC is the status of “Franken FMs,” those analog LPTV stations on Channel 6 whose audio is used to provide an FM radio service on 87.7 on the FM band.  As we wrote here, the FCC asked for comments on a request to allow these stations to continue to provide an analog audio signal even after the digital conversion deadline to allow these audio services to continue.  Though the deadline is getting close, there thus far has been no response by the FCC on that request.

July 13 is also the deadline for the construction of many digital LPTV stations granted in the first part of the last decade whose construction deadlines were put on hold pending the resolution of all of the issues surrounding the television incentive auction and subsequent repacking of the television band.  The same March 13 deadline for extension requests applies to these permits.

The Public Notice also suggests that any last-minute applications for modification of any of these facilities subject to the July 13 deadline be filed quickly to ensure that they can be acted on in time to allow construction to meet the deadline.  Other details of these policies and procedures are included in the notice.  If you have an LPTV or TV translator station subject to these deadlines, review this notice and related FCC orders carefully and take steps now to ensure that you can finalize construction by the coming deadline.

GMR Offers to Extend Its Interim License With Commercial Radio Stations – But It Wants a 20% Increase in Royalty Payments

Delivered... David Oxenford | Scene | Wed 3 Mar 2021 12:33 am

Global Music Rights, one of the newest performing rights organization licensing the public performance of musical compositions, has agreed to extend its interim license with commercial radio broadcasters.  That license is set to expire at the end of March (see our article here).  This interim license has been offered and extended for the last several years to allow stations to perform GMR music while GMR litigates with the Radio Music Licensing Committee over whether GMR is subject to any sort of antitrust regulation of the rates that it sets (and GMR’s countersuit over whether the RMLC itself violates the antitrust rules as a buyer’s cartel, by allegedly organizing all the buyers of GMR’s music to hold out for a specific price).  We wrote about that litigation here.  With the pandemic, the lawsuit which should have already gone to trial is likely not going to be heard until possibly next year, as discovery in the case has been postponed until later this year.

Today, the RMLC notified radio broadcasters that GMR will again extend its interim license while the litigation plays out – but GMR wants a 20% increase in the royalties that it receives.  RMLC made clear that this is not a negotiated rate – it is one that GMR has imposed with no input from RMLC.  Stations should expect to hear from GMR about the extension by March 15.  If they do not, stations interested in the extended license should reach out to GMR.  Many stations are confused by this royalty, so we thought that we would provide some background.

As background, GMR is a new performing rights organization. Like ASCAP, BMI and SESAC, it represents songwriters and collects royalties from music users for the public performance of these songwriter’s compositions. GMR will collect not only from radio stations, but from all music users – it has already reached out to business music services that provide the music played in retail stores, restaurants and other businesses, and no doubt has or will license other companies that make music available to the public. Most songwriters represented by GMR used to be represented by ASCAP or BMI, but these songwriters have withdrawn from ASCAP and BMI and joined GMR, allegedly to attempt to increase the amounts that they are paid for the use of the songs that they have written. For radio, these withdrawals became effective in January 2017, when the old license agreements between ASCAP and BMI and the commercial radio industry expired.  Since then, radio stations have been signing interim licenses to play GMR music – and now it is seeking this big increase in what they are being paid for that interim license.

What is a broadcaster to do?  Obviously, consult your own attorney for advice.  Generally speaking, there is no authority to play the GMR music catalog other than through a license.  Right now, that license comes either through this interim license offered to all commercial stations, or through an individually negotiated license between the broadcaster and GMR. Commercial stations can either sign a license or stop playing GMR music. Pulling all GMR music would be difficult because GMR has core songwriters in most musical genres, whose songs are basically must-haves for a station to operate with most traditional formats.  For instance, GMR’s catalog includes songs written by members of the Eagles, Bruno Mars, Bruce Springsteen, John Lennon, Pharrell Williams and even George Gershwin.  Under copyright law, there are substantial “statutory damages” of up to $150,000 per song for any infringement, so even if one of GMR’s songs is in an ad or in some syndicated programming that plays on your station, your liability could be steep. GMR has already sued one station group for not paying royalties (see our article here).  It is watching what broadcasters do, so careful consideration of rights and liabilities must be made.

Note, however, that noncommercial broadcast stations are not covered by this interim license being offered by GMR to RMLC members, as public performance royalties for noncommercial broadcasting are set by the Copyright Royalty Board.  See our article here for more details on the royalties for noncommercial stations through the end of 2022.  A proceeding at the Copyright Royalty Board has just begun to review noncommercial rates for 2022 through 2027, so GMR royalties for noncommercial stations may increase in the not too distant future.

All stations should discuss with their counsel what their best course of action is in connection with GMR.

FCC Issues First Broadcast EEO Audit of 2021– Reviewing the Basics of the FCC’s EEO Rules

Delivered... David Oxenford | Scene | Fri 26 Feb 2021 3:26 pm

Yesterday the FCC  released another of its regular EEO audit notices (available here), asking over 200 radio and TV stations, and the station employment units with which they are associated (i.e., commonly owned stations serving the same area) , provide to the FCC (by posting the information in their online public inspection file) their  EEO Annual Public File reports for the last two years, as well as backup data showing  that the station in fact did everything that was required under the FCC rules.

To lighten the burden on stations due to the pandemic, certain requirements usually associated with these audits have been adopted.  Audited stations must provide representative copies of notices sent to employment outreach sources about each full-time vacancy as well as some documentation of the supplemental efforts that all station employment units with 5 or more full-time employees are required to perform (whether or not they had job openings in any year). These non-vacancy specific outreach efforts are designed to educate the community about broadcast employment positions and to train employees for more senior roles in broadcasting. Stations must also provide information about how they self-assessed the performance of their EEO program. Answers to certain other questions are also required.  Stations that are listed in the audit notice have until April 26, 2021 to upload this information into their online public file.

The FCC has promised to randomly audit 5% of all broadcast stations each year. Since each station’s response (and the audit letter itself) must be uploaded to the public file, it can be reviewed not only by the FCC, but by anyone else with an Internet connection anywhere, at any time.  The license renewal cycle which began last year adds to the importance of this audit, as a broadcaster does not want a recent compliance issue to headline the record the FCC will be reviewing with its license renewal (see our article here about the license renewal cycle). So, whether you are on the list or not, this is a good time for broadcasters to review what is required by the FCC’s EEO rules.

The summer before last, at the Wisconsin Association of Broadcasters annual convention, I did a presentation on the FCC requirements for EEO compliance. The slides from that presentation are available here. The FCC rules were designed to bring new people into broadcast employment positions and encourage broadcasters to recruit from outside the traditional broadcast networks when hiring new employees. Not only should broadcasters be reaching out to their consultants and employees for referrals, and using their own airwaves to promote openings, but they need to be using outreach sources that are designed to reach all groups within a community to notify potential candidates about the availability of open employment positions. While the FCC used to require that outreach be made to a plethora of community groups, it has now recognized that online recruitment sources alone can reach the entire community (see our summary of that decision here) – but these sources need to be evaluated regularly to assure that they are in fact bringing in applicants for job openings from a station’s entire employment area.

Stations need to keep the required documentation to demonstrate their hiring efforts, as the failure to have those documents can still lead to fines (see our article here). The documents should show not only the stations’ hiring efforts in connection with job openings, but also the supplemental efforts that they have taken (even where they have not had job vacancies) to educate their community about broadcast employment and to train their employees to assume more responsibilities.  The FCC has provided a menu of options to achieve these required supplemental efforts.  See our article here for some ideas from the menu for ways that stations can receive credit for these supplemental efforts even during this time of social distancing.  Stations should review their policies to make sure that they have the documentation to meet an FCC audit and ensure that their EEO programs are regularly bringing in recruits from diverse sources and that they have done the required non-vacancy specific educational efforts on broadcast employment.

When the FCC abolished the FCC Form 397 EEO Mid-Term Report, it promised to review the effectiveness of its EEO rules. A Notice of Proposed Rulemaking examining  how to make the program more effective was released last year, leading to  some interesting proposals (see our article here). Those proposals are likely going to require further public comment before they can be adopted.  Thus, for now, the current rules remain in effect. As EEO enforcement was recently  transferred to the FCC’s Enforcement Bureau (see our article here), we  expect that enforcement will be vigorous.

Consult with your attorneys to obtain a thorough understanding of the EEO rules and talk with the employees involved in employment matters at your station to make sure that they understand what they should be doing and are maintaining the paperwork necessary to demonstrate your compliance with the rules. The FCC continues to enforce its rules and impose fines on stations that cannot demonstrate compliance, so make sure that you comply with the FCC’s obligations on EEO matters.

March Regulatory Dates for Broadcasters: Copyright, White Spaces, and Zonecasting Comments; LPTV and Translator Analog-to-Digital Extension; Emergency Alerting for Streaming Companies, and More.

Delivered... David Oxenford | Scene | Thu 25 Feb 2021 6:24 pm

March brings springtime and, with it, a likely reprieve from the cold and extreme weather much of the country has been suffering through.  As noted below, though, March brings no reprieve from the routine regulatory dates and deadlines that fill a broadcaster’s calendar.

TV operators have until March 8 to file comments in the Copyright Office’s Notice of Inquiry looking to assess the impact of the abolition of the statutory copyright license that allowed satellite television operators to import distant network signals into TV markets where there were households arguably not being served by a local network affiliate (see our article here).

Reply comments are due by March 12 in the FCC’s FM booster zonecasting proceeding.  The proposal would allow FM boosters to originate limited amounts of programming (up to 5%—or 3 minutes—of any program hour) different from their primary stations (see our blog post, here, for more information).  Stations could target hyper-local content like local news, advertisements, and weather information to different parts of the station’s coverage area.  Several large radio broadcasters, the NAB, and FEMA filed comments opposing the proposal, noting, among other things, that zonecasting could lead to a fragmentation of the already-fragile local radio advertising market, that there are unresolved technical considerations, and that performance of the Emergency Alert System could be harmed in and around booster zones and that additional field testing is needed.  Other radio broadcasters filed in support of zonecasting, pointing to a station’s ability to target advertising that is not relevant to its entire market area and the ability to provide second-language programming to discrete areas of the market.  Comments submitted in the docket can be read, here.

March 13 is the deadline for low power TV and translator stations that need more time to build their digital facilities to request a final extension of up to 180 days.  By July 13, all low power TV and translator stations must stop transmitting in analog and switch to digital.  Stations granted an extension must still cease all analog transmissions by July 13 but will have additional time to build their digital facilities and begin digital transmission.  Applicants seeking an extension must demonstrate that failure to meet the construction deadline is due to circumstances that are either unforeseeable or beyond the licensee’s control and that the licensee has taken all reasonable steps to resolve the problem quickly.  These circumstances include delays in obtaining zoning or other approvals, inability to obtain equipment, or financial hardship.  More details are available in the Public Notice, here.

The FCC in early February announced an auction of 136 FM construction permits and four AM construction permits will begin on July 27, 2021.  Most of the construction permits to be auction were part of Auction 106 before it was postponed due to COVID.  Interested parties can submit comments and reply comments on the proposed bidding procedures by March 15 and March 22, respectively.  A Public Notice with the proposed bidding procedures and more information is available, here, and the list of available permits can be found, here.  The FCC also announced a freeze on applications and proposals that will affect any of the Auction 109 FM allotments.  More information on the freeze is here.

Comments in an FCC proceeding looking to decide whether Longley-Rice or similar terrain-based models of determining signal propagation are appropriate for determining where white-spaces devices can operate in the television band are due on March 29, with reply comments due by April 26.  See the Federal Register notice announcing those dates, here.  Companies seeking to make use of television white spaces devices believe that terrain-based propagation models will allow for more uses of these devices by more accurately predicting where television stations would receive interference, while broadcasters have been concerned about the accuracy and ease of calculation of coverage using these models.  Look for comments detailing these positions by the comment deadline.

The FCC will hold the next of its required monthly open meetings on March 17 with one item on the agenda of interest to TV and radio broadcasters.  The Commissioners will vote on an item that seeks to update the rules for emergency alerting through the Emergency Alert System and the Wireless Emergency Alert system.  The proposal seeks comment on introducing a new class of alerts called “National Alerts,” formalizing the process by which State Emergency Communications Committees review and develop EAS plans, encouraging government entities to self-report false alerts, and exploring the required repetition of alerts.  A companion Notice of Inquiry asks whether it is technically feasible for emergency alerts to be sent through the internet, especially over streaming services.  A public draft of the item and more information about the meeting can be found, here.  At the end of the month, or in early April, keep an eye on the FCC website for the items to be considered at the FCC’s April 22 Open Meeting.

Looking ahead to early next month, by April 1, radio stations in Texas and television stations in Indiana, Kentucky, and Tennessee must file their license renewal applications through the FCC’s Licensing and Management System (LMS).  Those stations must also file with the FCC a Broadcast EEO Program Report (Form 2100, Schedule 396) and, if they are part of a station employment unit (a station or a group of commonly owned stations in the same market that share at least one employee) with 5 or more full-time employees, upload to their public file and post a link on their station website to their annual EEO report covering their hiring and employment outreach activities for the twelve months from April 1, 2020 to March 31, 2021.

TV and radio stations licensed to communities in Delaware and Pennsylvania that are part of an employment unit with 5 or more full-time employees also must upload to their public inspection file and post on their website their annual EEO report by April 1.

And April 10 will be the due date for Quarterly Issues Programs lists for the first quarter of 2021.  Remember that these documents are the only officially-mandated record of how your station served the public interest in its service area.  We wrote about the importance of these lists, here.

These are just some of the dates and deadlines coming up in March and early April.  Be sure to watch our blog, the FCC website, trade publications, and to be in contact with your communications counsel throughout the month for more dates applicable to your operations.

No Class C4 FM To Be Permitted By Waiver – Where Things Stand on Proposal for New Class of FM Stations

Delivered... David Oxenford | Scene | Tue 16 Feb 2021 6:10 pm

At the end of last week, the FCC’s Audio Division released a letter decision denying a Class A FM station licensee (limited in power to 6 KW) a waiver that would have allowed it to upgrade its facilities to those that would be equivalent to what would be permitted if the Commission was to establish a Class C4 FM.  The Division found that granting such a waiver would prejudge the FCC’s pending proceeding looking at whether the FCC should approve Class C4 stations.  Where does that proceeding stand?

The pending proposal to create a Class C4 FM station, i.e., one operating with maximum effective radiated power of 12 kw (essentially midway between the power limits of the current Class A stations and Class C3 FMs that are limited to 25 kw), has been advocated at the FCC for several years.  Sponsors contend that it would allow Class A stations to not only solidify and expand their coverage, but also to overcome some of the building penetration issues that are alleged to occur when reception is limited inside buildings constructed of certain materials.  The proposal for this new class of FM station has not been unanimously supported by other broadcasters.

Opposing broadcasters fear more stations will clutter the FM band and potentially knock existing FM translators off the air or preclude new translators for both AM and FM stations.  Also, the C4 proposal suggests that certain FM stations that are not operating at their full facilities for the class for which they are licensed should be protected only to their actual contours if they were not ready to commit, upon notice, to upgrading their facilities.  Many broadcasters feared that this would unduly limit future changes to the facilities of their stations.

Because of the conflicting opinions of broadcasters, the FCC did not issue a Notice of Proposed Rulemaking suggesting a set of rules for implementing the Class C4 service.  Instead, the FCC only issued a Notice of Inquiry – asking a series of questions about whether they should move forward with the proposal (see our article here).  Thus, before the Class C4 FM proposal could be adopted, the FCC would have to issue a Notice of Proposed Rulemaking setting out more definitive proposed rules for the new class of stations.  Public comment on that proposal would have to be received before any final decision could be made.

So, any conclusion on Class C4 stations is quite some time in the future.  Last week’s decision seems to recognize that the FCC is not ready to decide the C4 question soon.  Thus, until a decision is made, broadcasters interested in these upgraded facilities will have to be patient.

This Week in Regulation for Broadcasters: February 6, 2021 to February 12, 2021

Delivered... David Oxenford | Scene | Sat 13 Feb 2021 10:34 pm

Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC has started planning for its next AM/FM radio auction (Auction 109) scheduled to begin on July 27.  Four AM construction permits in the St. Louis area and 136 FM construction permits across the country will be available, with minimum opening bids ranging from $750 to $75,000.  Comments and reply comments on the proposed bidding procedures are due by March 15 and March 22, respectively.  More details about the auction and proposed bidding procedures can be found, here, and the list of permits to be auctioned is available, here.  For more on the filing process and issues to consider, see our article here.
    • In preparation for Auction 109, the FCC froze any FM filing that proposes to change one of the available allocations’ channel, class, community of license or reference coordinates.  (Public Notice)
  • The renewal applications for seven FCC authorizations in Alabama were designated for hearing to determine if their licensee possesses the basic character qualifications to hold an FCC license.  The licensee’s principal was convicted of six felonies and imprisoned for these crimes he committed while in the Alabama House of Representatives.  This decision serves as a good reminder that, under the FCC’s Character Qualifications Policy Statement, non-FCC misconduct can be grounds to deny FCC licenses and can even prevent a licensee from selling a station as FCC precedent is that someone without the requisite character should not be able to profit from the sale of a government-granted broadcast license (Order).  We took a closer look on our blog at some of the FCC’s considerations in enforcing this policy.
  • Many television stations took advantage of the FCC’s lifting of its freeze on television applications, including channel changes.  This week, numerous proposals for changes in the operating channel of television stations, most proposing changes from VHF to UHF channels better able to operate in a digital environment, were put out for public comment.  Notices of nine channel-change proposals filed immediately after the freeze was lifted were included on the FCC’s Daily Digest of its actions on Friday.
  • The FCC’s Audio Division denied the application of an FM station seeking a waiver of Commission rules to upgrade its facilities to those that would be allowed under the pending proposal to create a new class of FM stations – Class C4.  The letter denying the application said that a waiver for this station would pre-judge the current FCC proceeding which is trying to determine whether to authorize this new class of FM stations (Letter Decision).  For more about the proposed Class C4 for FM stations, see our blog article here.
  • As the FCC reviews radio license renewals filed in recent months in various midwestern states, this week we have again seen a flurry of consent decrees with broadcasters who could not certify compliance with the political broadcasting rules.  These consent decrees require the broadcaster to engage in training for its staff on political broadcasting issues and to report to the FCC for two years on its compliance with the political file rules.  See our article here for more information about these consent decrees.
  • With Democrats in control of the White House, Congress, and the FCC, we have noted increased interest in the Fairness Doctrine.  In light of the many recent articles on the topic, we wrote about the history of the Doctrine and what its reinstatement, however unlikely, would mean for broadcasters.  (Blog)

 

FCC to Hold Hearing to Determine What Felony Conviction of Station Owner Means for License Renewal – What Does the FCC Character Policy Require of Broadcast Applicants?  

Delivered... David Oxenford | Scene | Fri 12 Feb 2021 3:35 pm

This week, the FCC designated for hearing the license renewal applications for a number of Alabama radio stations because of their owner’s conviction on felony ethics violations, stemming from misconduct while he served in the Alabama legislature.  The hearing is to determine the effect of those felony convictions on the character of the licensee to hold a broadcast license.  The Communications Act requires that a broadcast licensee (and its owners) must have the requisite character to operate the station.  Character is reviewed whenever a party seeks to acquire a broadcast license, including when they file for the renewal of that license.  In egregious circumstances, the FCC can even move to revoke the licenses held by a licensee outside of the license renewal process.  Even the sale of a license by a party without the required character qualifications may be prohibited by the FCC, as the Commission does not want to see a wrongdoer profit from the disposition of what is seen as a government asset – the FCC license.

Character has been defined by the FCC through numerous policy statements issued periodically over the last 50 years, and has been further refined by precedents established in individual cases.  This week’s case gives us the opportunity to look at what conduct the FCC considers in assessing the character of any broadcast application, and the factors that are reviewed in determining the impact of bad conduct on the ability of the applicant to hold an FCC license.

While not at issue in this week’s case, perhaps the most common type of character issue that comes before the FCC relates to conduct before the agency itself.  Misrepresentations or “lack of candor” before the agency are serious offenses, as the FCC feels that it must be able to rely on the truthfulness of representations made to it by its licensees.  As the FCC cannot verify every factual statement made in every application or other filing made before the agency, it considers it a serious offense if an applicant makes untrue or misleading statements to the Commission in any of its submissions to the agency.

Similarly, compliance with the FCC’s own rules can be considered in a character context.  While the FCC generally recognizes that licensees are not perfect and can err in their compliance, a pattern of regulatory noncompliance can indicate that the applicant does not have the requisite character to be a licensee.  In most cases, fines (or “forfeitures” as the FCC refers to them) will be imposed for simple violations of FCC rules, but more serious, repeated violations can lead to stiffer penalties or even the loss of a license.

Harder character questions are raised, as in this week’s case, by misconduct that occurs outside the FCC’s jurisdiction.  Over its history, the Commission has struggled to determine how much weight it should give to legal violations by individuals or corporate owners that arise not in the broadcast business, but in other contexts.  In the 1970s and early 1980s, misconduct of any type could be considered by the FCC.  So we saw extensive examinations of the records of broadcast licensees where individuals or corporate affiliates had a wide variety of non-broadcast misconduct – from violations of foreign corrupt practices acts to discriminatory conduct.  The FCC later retreated from that expansive view of misconduct, suggesting that its examination should be limited only to conduct related to a company’s broadcast operations, before quickly determining that such a narrow standard was too restrictive.

In the late 1980s and early 1990s, the FCC arrived at a standard that is generally still used today, where the Commission considers not only broadcast and other media-related legal violations, but also felonies of any sort.  The Commission’s reasoning, as reiterated in this week’s decision, is that any serious crimes could indicate that an applicant cannot be trusted to follow FCC rules.  FCC forms require applicants to list FCC character issues found in other cases, as well as all felonies, all media-related antitrust violations, fraudulent statements to another governmental unit, and any finding of discrimination.  These legal matters need to be reported not just for the applicants, but for other businesses or activities in which the applicant’s principals have interests.

In most cases, the FCC will not itself make the determination as to whether an individual violated some law or regulation, but instead will consider misconduct when it has been adjudicated by a court or other government agency.  However, the FCC has left itself room to look at other egregious misconduct even if that conduct has not already been finally determined by a court or government tribunal.

But in any case, whether it be a felony or any other misconduct, the fact that the conduct occurred does not in and of itself mean that someone is unfit to be a broadcast licensee.  Instead, the FCC needs to weigh multiple factors to determine if the conduct is disqualifying.  The FCC will weigh factors including the willfulness of the conduct, the frequency of the conduct that led to the misconduct findings, how current the findings are, how serious the wrongdoing was, whether individuals with management authority over the stations were involved in the misconduct, whether there were efforts to rectify any wrongs that were done, the history of FCC compliance of the applicant, and whether there has been a rehabilitation of the applicant.  This is a balancing process. An individual who was involved in some minor crime long ago, served his or her time, and has led a productive post-conviction career might not be disqualified from broadcast ownership.  But other more recent crimes, or those that are particularly shocking to the conscience, can lead to a stigma for much longer periods.

All of these factors are weighed through an administrative hearing, which as of November 2020 will largely be a paper-based process, rather than the previous approach of a live hearing before an FCC Administrative Law Judge.  Under these new procedures, the hearing proceedings are resolved on a written record consisting of an affirmative case, responsive case, and reply case submissions, along with all associated evidence in the record, including stipulations and agreements of the parties and official notice of material facts.  Live testimony will only occur if the Judge believes it to be necessary to give the parties due process.  Based on that record, the ALJ will issue an Initial Decision.  That Initial Decision will be subject to review by the full Commission.

As with any area of FCC law, this article cannot cover the many nuances of the Commission’s policies in assessing the character of an applicant coming before it.  Suffice it to say that if an applicant, or any principal in an applicant, has had any issues in dealing with the FCC or any other legal trouble in any business or activity in which they are involved, consult counsel, as particular facts can make big differences in the outcome.  Even in the most serious cases, there may be circumstances where a station can be sold or otherwise disposed of in a way to avoid a total loss that would arise from a lost license.  It is a complex area that needs to be navigated carefully.

The Return of the Fairness Doctrine – What it Was and Why it Won’t Return

Delivered... David Oxenford | Scene | Thu 11 Feb 2021 6:10 pm

It seems like whenever Democrats are elected to serve as President and take control of Congress, there is talk about the revival of the Fairness Doctrine as some panacea for restoring balance and civility to political debate.  In recent weeks, we have seen many articles blaming conservative talk radio for the current divisions in the country and for the widespread belief in discredited claims about political and social topics.  This same debate arose almost exactly 12 years ago following the election of President Obama (see our articles here and here about that debate).   In coming days, we will write about a new round of legislative proposals looking to impose content moderation rules on digital media (including a Florida proposal to essentially block social media platforms from de-platforming one candidate, while allowing another candidate access, and a recent Congressional proposal removing Section 230 immunity from digital platforms for certain kinds of speech).  But, given the discussion of reviving the old Fairness Doctrine, we thought it worth taking a look back at just what that Doctrine required, the reasons for its demise, and some of the issues that would surround any attempt to bring it back.

First, it is important to understand what the Doctrine covered and what it did not.  It was a broadcast doctrine adopted in 1949, in an era that pre-dated the political talk that we now see dominating so many cable networks.  It also was different from the Equal Time Rule which is still in effect for candidate appearances on broadcast stations.  The Fairness Doctrine required that stations provide balanced coverage of all controversial issues of public importance.  The Fairness Doctrine never required “equal time” in the sense of strict equality for each side of an issue on a minute-for-minute basis.  In talk programs and news coverage, a station just had to make sure that both points of view were presented in such a way that the listener would get exposure to them.  How that was done was left to theon’s discretion, and the FCC intervened in only the most egregious cases.

By contrast, “equal time” or “equal opportunities” stems from a different source in the Communications Act – the Section 315 provisions on the treatment by broadcast stations (and local cable systems) of candidates for public office. Essentially, equal time requires that, if a broadcast station gives one candidate free time, all other candidates can get the same amount of free time (see our article here). But bona fide news and news interview programs are exempt from equal time, and the FCC has taken an expansive view of that exception (see our articles here and here).  The rule primarily applies to the sale of time to candidates.  If a candidate buys time on a station, the station must be willing to sell each opposing candidate equal amounts of time on the same terms (see our article here). In connection with candidate time, it is strict minute-for-minute equality – unlike what was once required by the Fairness Doctrine.  See our Political Broadcasting Guide for more information about the application of the equal time rule.

The Fairness Doctrine was broader in its application, theoretically covering all aspects of a station’s programming, but its application was perhaps felt most in the context of issue advertising..  In the case of advertising about controversial issues, where parties in favor of an issue bought time to push their views, and the opponents could not afford to buy time to respond, the station might actually have to give the opponents time – but it was usually only a third or a quarter as much time as the proponents had bought, not strict equality.   And the station could choose which opponents to give the time to – the viewpoint, not the spokesperson, was what counted.

The application of the Doctrine in the context of advertising could have profound effects.  For instance, the use of the Fairness Doctrine as a weapon against cigarette advertising – requiring that stations give anti-smoking advocates time to talk about the ill health effects of smoking in a ratio of 1/3 or 1/4 of the advertisements that ran for cigarettes – was one of the reasons that broadcasters were willing to accept a ban on cigarette ads, and that the constitutionality of the 1970 legislative ban on smoking ads was never challenged by the tobacco companies.

But while the Fairness Doctrine in theory would seem easy to apply, there were many battles at the FCC about its application, costing broadcasters many thousands of dollars in legal fees over whether what they aired really did give all sides of an issue an adequate opportunity to have their say. More importantly, by its very nature, the Doctrine is a burden on the free speech rights of broadcasters by putting the government in a position where it should never be – deciding what speech should or should not be made.

This constitutional question led in part to the FCC’s 4-0 decision in 1987 to abolish the Fairness Doctrine, a decision that was upheld by the DC Circuit even though the court did not reach the constitutional issue.  The demise of various extensions of the Doctrine followed, including the political attack rule and the Zapple Doctrine, which required quasi-equal time (if supporters of one candidate were sold ad time by a station, the station had to sell ad time to supporters of opposing candidates).  The Zapple Doctrine was declared unconstitutional in 2014 (see our article here).  Even the FCC under Democratic administrations have confirmed the view that the Doctrine was unconstitutional (see our article here from 2011 when the rule was formally purged from the rules of the FCC, during the Obama administration).

Arguments for the return of the Doctrine ignore the constitutional concerns that led the FCC to abolish the Doctrine.  The reasoning behind the Doctrine, like that behind so much other broadcast content regulation, was upheld by the Supreme Court in 1969 based on the “scarcity doctrine” – the idea that broadcast spectrum is a scarce resource and that broadcasters who useit are required to act as public trustees and provide programming that serve all elements of their communities.  While that may have been the case 50 years ago, the concept of spectrum scarcity seems harder to justify in today’s media landscape when there are all sorts of audio and video competitors to radio and TV – many delivered wirelessly to consumers using different parts of the spectrum that were never subject to content regulation (e.g., when a listener streams a webcast or podcast, they may well be using wireless spectrum that is not subject to content regulation but nevertheless delivers content to consumers that is virtually indistinguishable from content delivered by broadcast stations).  Even among broadcasters, there has been an explosion in the number of stations and, through digital multicasting available on TV and FM, the number of program choices available to the consumer has vastly increased.  Media scarcity seems to be the least of our problems today.

Even from a practical perspective, the Doctrine is difficult to justify.  The Fairness Doctrine requires fairness on all controversial issues of public importance.  But sometimes, especially on the complicated issues facing the world today, there are far more than two sides to any issue.  Who decides which sides get heard and which don’t?  On issues of climate change, racial justice, economic fairness, foreign policy and so many other matters, there is a wide spectrum of positions on almost every issue.  Do all get to be heard on broadcast stations – even the most radical and far-fetched?

And who would make such decisions as to which sides deserve access to the airwaves?  Even a seemingly obvious determination that certain extreme views should not be given broadcast access contains a value judgment that the government should not be in the business of regulating – whether in these extreme circumstances or in the much closer cases that would arise every day.  No one would ever suggest that the government should be able to regulate what content goes on the editorial pages of the New York Times or the Washington Times. No one should be able to dictate that the Atlantic and the National Review present both sides of every issue that they cover.  In this modern era with so many alternatives to the broadcast medium, why should broadcasters have a different version of the First Amendment applicable to their speech?

The Fairness Doctrine is often advanced as an easy cure-all for political divisions. But any review of the issue shows that its return would raise far more questions than it would solve.  It would put government in a position where it should not be – judging a broadcaster’s editorial decisions as to what should and should not be aired.  This has never been the role of the government in our country, and it should not be now.  The problems of the country are better solved by wider and more effective communications about the issues of the day, not through government control.

Want a New Radio Station? FCC Proposes Procedures for a July 2021 Auction, Lists Channels to be Sold, and Imposes a Freeze on Certain Applications

Delivered... David Oxenford | Scene | Tue 9 Feb 2021 5:12 pm

The FCC yesterday announced plans to hold an auction to award construction permits allowing the winners to build new radio stations. The auction notice includes 136 FM channels and, in a new wrinkle, 4 AM opportunities, for which bids will be able to be placed once the auction commences.  The list of channels to be auctioned is here – with many channels being in the state of Texas, with an assortment of others around the country. These channels are mostly those that had been included in an auction scheduled for last July which was cancelled because of COVID-19 (see our articles here and here).  In addition, a few newly available FM channels have been added to the list, as well as 4 AMs in the St. Louis area that are available because a licensee surrendered those licenses after a license renewal challenge.

The notice released yesterday asks for comments on the auction procedures to be used in awarding these channels, proposing procedures that are generally familiar to those who have participated in FM auctions in the past.  The auction is tentatively scheduled to begin on July 27. Working backward, that would mean that the initial “short-form” applications required for parties who want to participate in the auction would likely be due sometime in May.  Upfront payments equal to or greater than the minimum payments for the channels that an applicant ultimately wins in the auction will probably be due in June.  Unlike in some previous broadcast auctions, the FCC is not making bidding credits available to entities that do not have any broadcast stations currently.

To protect these allotments, the FCC also imposed a freeze on the filing of FM applications that could affect applications for these channels.  The FCC’s freeze on applications that could impact these new stations is in place until the winning bidders file their post-auction applications specifying the exact facilities that they plan to build. No applications or rulemaking proposals can be filed that would request a change in one of these channels, or which would be short-spaced to one of the reference coordinates for these allocations.

If you are interested in starting a station from scratch, look through this list of channels to see if there are opportunities for a construction permit for a new station in an area of interest. If you find something that you might consider, you need to start your due diligence on each channel now, as any bidder is responsible for insuring that the channel for which they are bidding can be built and will serve the audience that you expect. But Buyer Beware — if you win the auction and decide that you can’t really find a transmitter site, then you are likely on the hook for the full amount of the bid even if you don’t build the station during the three years allowed under the construction permit.

If you are successful in the auction, you will have to have an available transmitter site to specify in your “long-form” application submitted soon after the end of the auction – an application that will specify the technical details of the new station, including the specific location at which the station will be built. So look at zoning issues, FAA considerations, coverage questions, site availability, and even whether technical details like those set out in the rural radio order limiting move-ins of FM stations from rural to more urban areas may limit the potential economic value of the channel in which you are interested.

The Commission asked for public comment on its proposed auction procedures. If adopted as proposed, these procedures will be used for this upcoming auction, which the FCC refers to as Auction 109.  Comments on these proposed procedures are due by March 15 with replies due by March 22, 2021.

While there may be opportunities in the list of available channels, in recent FM auctions there have been channels for which no one has submitted bids, even after the channels were available in several auctions. In the channels listed for this new auction, there are a number of leftovers from previous auctions, either left unsold in a previous auction or where the winning bidder defaulted on their post-auction payment obligations. If channels are made available in multiple auctions and not purchased, the FCC will eventually delete these channels.

This announcement signals that there are potential opportunities for new radio stations are on the horizon. Take a look for channels that might be of interest to you and start preparing now to file your initial application to participate at some point in the next few months.

February Regulatory Dates for Broadcasters: License Renewals, EEO Reporting, KidVid Reports, Zonecasting Comments, FCC Open Meeting, and More

Delivered... David Oxenford and Adam Sandler | Scene | Tue 26 Jan 2021 3:48 pm

With the federal government and the FCC under new management, Acting Chairwoman Jessica Rosenworcel may well take the Commission in a direction that aligns with the policies she supported during her time as a Commissioner.  It is notable that, no matter what policies she advances, the routine regulatory dates that fill up a broadcaster’s calendar are generally unchanged.  Some of the dates and deadlines which broadcasters should remember in February are discussed below.  Given the transition period that we have just been through, the number of February dates are somewhat lighter than in most months – but that is sure to pick up as everyone settles into their new roles at the FCC.

On or before February 1, radio stations in Kansas, Nebraska, and Oklahoma and television stations in Arkansas, Louisiana, and Mississippi must file their license renewal applications through the FCC’s Licensing and Management System (LMS).  Those stations must also file with the FCC a Broadcast EEO Program Report (Form 2100, Schedule 396) and, if they are part of a station employment unit (a station or a group of commonly owned stations in the same market that share at least one employee) with 5 or more full-time employees, upload to their public file and post a link on their station website to their Annual EEO Public Inspection File report covering their hiring and employment outreach activities for the twelve months from February 1, 2020 to January 31, 2021.  TV and radio stations licensed to communities in New Jersey and New York which are part of an employment unit with 5 or more full-time employees also must upload to their public inspection file their Annual EEO Public Inspection File report by February 1.

For the first time, TV broadcasters must submit a Children’s Television Programming Report that covers a full year and not just one quarter.  Following the FCC’s 2019 KidVid rule changes, which we summarized here, reports are now submitted to the FCC annually by January 30.  Because January 30 is a Saturday this year, the report is due to be filed by the next business day—Monday, February 1.  FCC rules also require that stations place in their public files by January 30 of each year records documenting compliance with the limits on the number of commercial minutes that stations can run during children’s programming.  Note that the commercial limits records are not formally filed with the FCC so arguably the January 30 deadline applies, although an FCC staff presentation indicated that the deadline is February 1.

Interested parties should be aware that comments are due by February 10 in the FCC’s FM booster zonecasting proceeding.  The proposal would allow FM boosters to originate limited amounts of programming (up to 5%—or 3 minutes—of any program hour) different from their primary stations.  Stations could target hyper-local content like local news, advertisements, and weather information to different parts of the station’s coverage area.  Reply comments are due by March 12.  See our blog post, here, for more information.

The FCC is scheduled to hold its next Open Meeting on February 17—the first Open Meeting under Acting Chairwoman Jessica Rosenworcel.  At the time of writing this post, it is unclear what will be on the agenda for the meeting.  The agenda will be available, here, when it becomes available.

Looking ahead to March, any analog LPTV or TV translator that believes that it will not be ready to digital operations by the July 13 deadline has until March 13 to file a request for an extension of that deadline date.  Also, TV operators may be interested in filing comments by the March 8 deadline in the Copyright Office’s Notice of Inquiry looking to assess the impact of the abolition of the statutory copyright license that allowed satellite television operators to import distant network signals into TV markets where there were households arguably not being served by a local network affiliate (see our article here).

These are highlights of the dates to watch in February but be sure to keep in touch with your station’s counsel to stay on top of specific dates and deadlines applicable to your operations.  As the new administration takes shape, watch our blog, the trade press, and the FCC website for more information on new FCC actions.

This Week in Broadcast Regulation: January 9, 2021 to January 15, 2021

Delivered... David Oxenford and Adam Sandler | Scene | Sun 17 Jan 2021 1:21 am

Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.  We also note an upcoming event to which broadcasters will want to pay attention.

  • After a multi-year review of the ASCAP and BMI consent decrees, Makan Delrahim, the outgoing head of the Department of Justice’s Antitrust Division, announced that the DOJ will not seek changes to the decrees. Instead, the Division laid out principles that the incoming Biden Administration should consider in future reviews of the decrees.  The review found that, while there was a desire by ASCAP and BMI and some in the music industry for reforms to the decrees, music users believe that they are generally working well.  The consent decrees are important as they allow ASCAP and BMI to license a broad array of musical works to users, including broadcasters, on terms that cannot discriminate between similar users, at rates subject to judicial review to ensure that they are reasonable. (Remarks of Mr. Delrahim)  See our blog article on the initiation of the review, describing the issues which the DOJ explored.
  • The FCC published in the Federal Register its Notice of Proposed Rulemaking that looks at allowing zonecasting by FM boosters, setting the comment dates in this proceeding. The FCC proposes allowing FM boosters to originate up to three minutes of hyperlocal programming (news, weather, advertising, etc.) per hour and seeks comment on the concept and on the proposed rules to implement the idea.  Comments and reply comments are due by February 10 and March 12, respectively.  We wrote about the proposal, here.  (Federal Register)
  • Rules designed to increase unlicensed wireless device use in TV “white spaces” will go into effect on February 11. The rules expand the ability of unlicensed white space devices to operate in unused portions of the TV band (channels 2-35) to provide rural broadband services and Internet of Things applications.  We wrote about the new rules, here.  (Federal Register)
  • Cumulus Radio was fined $233,000 for airing paid programming without the required sponsorship identification and for failing to abide by the terms of a 2016 consent decree that required the company to timely notify the FCC of such violations. Broadcasters are required to disclose information about the sponsors of programming for which they receive payment or other valuable consideration.  (Forfeiture Order)
  • The FCC released a report on the relationship between the number of independent local television news operations in a market and market size. The report concludes, among other things, that there is a strong relationship between the market size, number of television households, and the number of independent local TV news operations.  This information may be considered in future reviews of the FCC’s ownership rules.  (Working Paper)

Next week, the Supreme Court will hear oral argument in Federal Communications Commission, et al. v. Prometheus Radio Project, et al., the Court’s review of the FCC’s 2017 media ownership rule changes.  Live audio of the January 19 proceeding will be available on C-SPAN at 10 am EST and a downloadable recording should be available by January 22 on the Supreme Court’s website.  A decision is expected in early summer.  To get caught up on this case and other media ownership issues, see our blog post, here.  (Case Docket)

Dates Set for Comments on FCC’s Zonecasting Rulemaking Proposal for FM Boosters

Delivered... David Oxenford | Scene | Mon 11 Jan 2021 5:36 pm

The FCC’s Notice of Proposed Rulemaking looking to allow zonecasting by FM booster stations was published in the Federal Register today, setting the comment deadline as February 10, 2021 with reply comments due on or before March 12, 2021.  We’ve written about that proposal here and here.  The FCC proposes to allow FM boosters to originate limited amounts of programming (up to 5% of any program hour) different from their primary stations.  According to the proponents of the proposal, this will allow for insertion of hyper-local content including local news and advertisements in different parts of any station’s coverage area.  So, for instance, an FM station could run in the same commercial spot break ads for different car dealers in different parts of the primary station’s market where that station has boosters.  As we wrote when the NPRM was released, the FCC asks many questions in the NPRM – including technical questions about the likely interference that will result from implementation of the proposal.  It also asks operational, business and policy questions about the impact of the adoption of the proposal.  If you have a position on these issues, now is the time for the filing of comments.

 

This Week in Broadcast Regulation: January 2, 2021 to January 8, 2021

Delivered... David Oxenford and Adam Sandler | Scene | Sun 10 Jan 2021 3:52 pm

Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.  Also, we include a quick look at some important dates in the future.

  • The Enforcement Bureau advised broadcasters (and other participants) of their Emergency Alert System obligations, including the requirement to make EAS messages accessible. The advisory provides a good reminder of a broadcaster’s EAS obligations. (Advisory)
  • The FCC issued a status report on the incentive auction repack and announced that it has sufficient funds available for the reimbursement of costs incurred by LPTV and TV translator stations because of the repacking to increase their payments from 85% of verified estimates to 92.5%. According to the status report, all of the stations repacked as part of the incentive auction have vacated their pre-auction channels and, as of this week, over 95% of the stations are operating with their final technical facilities.  (Public Notice)
  • The FCC released its count of broadcast stations as of year-end 2020, finding more than 33,500 stations, including more than 15,000 full-power radio stations and nearly 1,200 full-power TV stations. (Broadcast Station Totals)
  • The FCC submitted its annual report to Congress on the implementation of the PIRATE Act and the enforcement actions it has taken over the last year. The report notes that COVID-19 and the lack of congressionally-appropriated funds in FY 2020 for the Act have limited implementation and enforcement activities.  (Report)
  • Four low power FM stations in Iowa and Missouri failed to file license renewal applications by their October 1, 2020 filing deadline and are in danger of seeing their licenses expire. This serves as a reminder to television stations in Arkansas, Louisiana, and Mississippi and radio stations in Kansas, Nebraska, and Oklahoma to file their renewal applications, due by February 1, 2021.  (Public Notice)
  • In the copyright world, the Copyright Office released a Notice of Inquiry to review changes to the copyright license granted to satellite TV providers under 2019’s Satellite Television Community Protection and Promotion Act to provide local-into-local retransmission of television stations. The review seeks comments by March 8 as to how the new law impacts affected parties including consumers and stations.  Read more about the inquiry, here.
  • A handful of large radio groups and webcasters will be audited by SoundExchange over their compliance with their copyright licenses for the public performance of sound recordings required when they transmit their programming on the Internet.  Read more about this and other music licensing audits, here.

To help you stay on top of the many scheduled regulatory dates for the rest of the year, we published our Broadcaster’s Regulatory Calendar for 2021, which sets out many of the broadcast regulatory dates and deadlines in 2021.  (Broadcast Law Blog)

Looking ahead, on Monday, a notice is scheduled to appear in the Federal Register announcing the comment period for the FCC’s FM booster rulemaking (we covered the “zonecasting” proposal in more detail, here).  The proceeding asks if boosters should be allowed to originate hyperlocal program that is different from the programming carried on the station they rebroadcast.  Comments will be due by February 10, 2021 and reply comments will be due 30 days later on March 12, 2021.  On Wednesday, the FCC will hold the first of its required monthly Open Meetings of 2021.  After releasing a tentative agenda with only bureau and staff presentations about the FCC’s accomplishments during his term, Chairman Pai, who will preside over his last Open Meeting, added three items for Commissioners to vote on – none of which directly impact broadcasters.  The meeting will be streamed live, here, at 10:30 pm Eastern on January 13.

The Last Two Weeks in Broadcast Regulation: December 19, 2020 to January 1, 2021

Delivered... David Oxenford and Adam Sandler | Scene | Mon 4 Jan 2021 4:39 pm

Here are some of the regulatory developments in the last two weeks of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC released an order revising its fees for broadcast applications and other filings. The fees were adjusted to reflect the Commission’s accounting of the amount of legal, engineering, and supervisory resources spent on reviewing the filing.  For the first time, the fees will include payments for FM translator minor changes.  The new fee schedule will go into effect after the FCC has updated its internal systems and notice is published in the Federal Register. (Report and Order)
  • The FCC announced that, beginning January 15, it will marginally increase its fines for rule violations to adjust for inflation. (Order)
  • For broadcasters who use drones (“unmanned aircraft systems” or “UAS”), the Federal Aviation Administration released two lengthy decisions amending its regulations governing their operations. The new rules mandate a “digital license plate” to identify most drones to enhance security in the industry and pave the way for expanded operations that are currently allowed only through special waivers or exemptions. At the same time, the FAA modified its rules for small UAS, i.e., those weighing less than 55 pounds, to permit qualified operators to fly them over people and moving vehicles and at night without waivers, provided certain conditions are met. An FAA press release with links to the decisions is available here.
  • The Federal Trade Commission announced consent decrees with six companies over their marketing of CBD products, finding the advertising of specific health benefits of CBD to be deceptive (FTC Press Release). For more information on these decrees and other cannabis advertising issues for broadcasters, see our blog article here.
  • The FCC’s Media Bureau granted a waiver allowing the common ownership of two TV stations in the Lubbock, Texas market even though there would not be eight independent operators in the market after the combination, as required under current FCC ownership rules. The Commission justified the waiver on its “failing station” standard, finding that the acquired station had “been struggling for an extended period of time both in terms of its audience share and in its financial performance.” See the FCC’s letter for the criteria a station must meet to be considered failing and the Video Division’s analysis of this particular transaction.
  • In two decisions, the FCC approved foreign ownership of broadcast companies in excess of 25%. Specific FCC approval is required when foreign ownership in a company holding broadcast licenses is proposed to exceed 25%, with the FCC and other government agencies reviewing the national security and public interest implications of the foreign ownership (decisions on Estrella Broadcasting, Inc. and Univision Holdings, Inc.)
  • In a reminder to pay attention to filing deadlines, eleven low power TV stations in Florida and Puerto Rico failed to submit renewal applications by their October 1, 2020 filing date and are now in danger of their licenses expiring. (Public Notice)  Television stations in Arkansas, Louisiana, and Mississippi and radio stations in Kansas, Nebraska, and Oklahoma are next due to file their license renewals, with a deadline of February 1, 2021.
  • The FCC released its biennial Communications Marketplace Report that analyzes, among other things, the state of the radio and TV marketplaces. The report is provided to Congress to advise it on economic and competitive trends in regulated industries to provide information for any legislation that it may consider.  (2020 Communications Marketplace Report)

For a look ahead, we posted on our blog a review of some of the regulatory dates and deadlines in January and early February of which broadcasters should be aware.  In the coming month, among other things, look for a new FCC administration, quarterly issues/programs lists, KidVid reports, comment deadlines for two proceedings, the Supreme Court’s oral argument on multiple ownership issues and, in a number of states, February 1 license renewal and EEO public file report deadlines.  (Blog)

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