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Indian E-music – The right mix of Indian Vibes… » Political Broadcasting

Reminder:  PSAs Featuring Candidates Can Give Rise to Equal Time and Public File Obligations

Delivered... David Oxenford | Scene | Tue 26 May 2020 4:46 pm

In recent weeks, with so many government officials looking to get messages out about the coronavirus pandemic, we have received many questions about issues that arise when political candidates appear on public service-type announcements – either free PSAs provided by the station or paid spots purchased by some governmental entity.  While such announcements can be run by stations, if a legally qualified candidate personally appears in the spot (their recognizable voice in a radio ad or their voice or picture in a TV ad), stations need to note the advertising purchase in their FCC Online Public Inspection File, as these spots constitute a “use” by a candidate, and they can also give rise to equal opportunities by opposing candidates.

If the use is in a spot on which the candidate appears is a paid-for spot, then any equal time to which opposing candidates are entitled would be on a similar paid-for basis.  This is the same situation as if a commercial advertiser who voices or appears in their own ads decides to run for office (see our article here).  But if the spot is a free PSA, then the appearance of a legally qualified candidate, even if the PSA says nothing about their campaign, can trigger the requirement to give free equal time to any opposing candidates who make any equal opportunities request within seven days.

To avoid these issues, if the candidate does not personally appear in a spot, and the spot is not about their campaign, no equal opportunities and likely no public file obligations will arise.  So, for instance, an ad from a Congressman’s office that refers constituents to the Congressman’s website for more information about relief efforts, that is voiced by a staff person to the Congressman, likely will not trigger these obligations.  Similarly, a professionally voiced ad on behalf of the state Attorney General or Secretary of State would likely not trigger public file or equal time issues, even if the office-holder is running for office, as long as the candidate does not appear, and as long as the ad does not raise political or controversial issues.

Appearances by political candidates in exempt programs – news or public affairs or on-the-spot-coverage of a news event – don’t trigger equal opportunities or public file obligations.  A discussion with a Congressman or other local elected official on your news or talk program to discuss current issues, where the program and its content is controlled by the station and where decisions about guests are made on the basis of their newsworthiness and not for partisan purposes, should not trigger equal opportunities or public file obligations.  The same would be true for coverage of press conferences or similar events that have current news value.  See our article here for more on these exempt programs.

Of course, all these legal determinations depend very much on the facts, and thus on any specific legal issue, you should talk to your station’s own attorney who can provide a more detailed answer based on the circumstances in specific cases.   Just be alert to these circumstances where the appearance of a candidate in a PSA can trigger both public file and equal opportunities issues.


This Week at the FCC: May 16, 2020 to May 22, 2020

Delivered... David Oxenford | Scene | Sun 24 May 2020 5:00 pm

Here are some of the FCC regulatory and legal actions 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 released the agenda for its June 9 Open Meeting announcing that it will consider an item of interest to TV broadcasters planning to transition to ATSC 3.0, the next generation television transmission standard. The item deals with what the FCC is calling “Broadcast Internet services,” new IP based services compatible with other Internet devices that will allow TV broadcasters to monetize their ATSC 3.0 spectrum in new ways.  If adopted at the June meeting, the item, which we summarized in this article on the Broadcast Law Blog, would do two things:
    • It would allow a broadcaster to enter into spectrum lease agreements with other companies who offer Broadcast Internet services on the spectrum of several television stations in the same market without triggering the Commission’s attribution or multiple ownership rules.
    • It would seek comment on ideas for changing the FCC’s rules to further promote the deployment of Broadcast Internet services as part of ATSC 3.0. (draft of the Declaratory Ruling and Notice of Proposed Rulemaking)
  • The FCC last week announced that comments are due by June 22 in the review of its video description rules. Video description refers to an audio channel provided to accompany TV programming giving a narration of what is happening on the screen to aid blind or visually impaired persons.  Currently, ABC, CBS, Fox, and NBC stations in the top 60 markets must supply video described programming, but under the FCC’s proposed new rules, those requirements would extend to markets 61 through 100 by January 1, 2021, with ten markets being added in the following four years.  For more on the proposed rule changes, see our post at the Broadcast Law Blog.  (Public Notice)
  • After announcing the settlement terms earlier this month, the FCC released the details of its consent decree with Sinclair Broadcast Group. The consent decree dealt with (i) disclosure issues around Sinclair’s failed takeover of Tribune Media Company; (ii) the accuracy and completeness of certain Sinclair applications; (iii) complaints of Sinclair’s noncompliance with the good-faith rules for retransmission consent negotiations; and (iv) on-air sponsor identification lapses.  Though the Commission ultimately found that Sinclair structured the Tribune deal and made disclosures about its plans according to a good faith interpretation of the Commission’s rules, Sinclair nevertheless agreed to a $48 million penalty and four-year compliance plan to resolve all issues about these matters.  (Order)  See Broadcast Law Blog articles on the sponsorship identification issue when it was first raised  in a 2017 Notice of Apparent Liability (here) and a prior Sinclair issue with retransmission consent negotiations (here).
  • FCC staff last week clarified, albeit informally as part of a webcast (as part of the NAB Show Express, available on demand here), that stations in states where the primary election date has been pushed back due to public health concerns may be subject to longer lowest unit charge (LUC) periods. In states where the 45-day window opened and then the primary election date was pushed back, a new window begins 45 days before the new date of the primary election.  This could potentially result in a nearly 90-day LUC window tied to one election.  See our article here from the Broadcast Law Blog where we explained how the postponed primaries would extend LUC windows.
    • As part of that same webcast, FCC staff reminded stations running special COVID-related public service announcements that featuring a candidate standing for election this year can trigger equal opportunities and public file obligations. If the candidate appearance is on a paid spot, the equal opportunities rights of opposing candidates would be to buy an equal number of paid spots.  If the PSAs were run for free, then the candidate’s opponents are entitled, upon request, to the equivalent amount of free airtime.  Look for more on this issue in the Broadcast Law Blog this week.
  • The FCC acted last week in two TV market modification proceedings that are good illustrations of the necessary elements of a petition for a change in the television market to which a county or other geographical subdivision is assigned for determining which stations are local for cable of satellite television carriage purposes. In the first, it rejected a petition submitted by Montezuma County, Colorado to modify the county’s DMA, so the county’s DISH Network customers could receive Denver’s KUSA.  The Commission found that the county did not submit enough evidence to prove the need for market modification.  In the second, the Commission upheld its Media Bureau’s decision to modify the markets of three Georgia counties, so that DISH and DIRECTV customers in those counties could receive four Atlanta TV stations.  The Commission denied the appeal of the Greenville-Spartanburg-Asheville-Anderson DMA TV stations carefully analyzing the factors necessary to support the modification of the market and finding no reason to change the Bureau’s ruling.  (Montezuma Market Modification) (Atlanta Market Modification)
  • The FCC declined to review its decision to cancel the license of KCPM(TV), Fargo, ND. The Media Bureau found that the station failed to transmit a signal for twelve consecutive months, which resulted in an automatic expiration of the license.  This is a good reminder for station operators, and especially important for stations that may have gone silent during the current pandemic, to notify the FCC when a station goes silent and to re-commence operations within a year to avoid automatic cancellation  of the station’s license. (FCC Letter) See this article from the Broadcast Law Blog about the FCC requirements for notice when a station goes silent, the article here about actions that the FCC can take against stations that fail to operate regularly during a license renewal term, and the article here about the strict interpretation that the FCC gives to Section 312(g) of the Communications Act which provides for the automatic cancellation of a license if a station has been silent for a year unless the FCC finds that preserving the license is necessary for reasons of equity and fairness, a finding rarely made.

The Law of Defamation and Political Advertising Argued in Trump Suit Against Wisconsin TV Station

Delivered... David Oxenford | Scene | Mon 18 May 2020 4:37 pm

Political “issue advertising” – advertising run by groups like PACs and political parties rather than a candidate’s authorized campaign committees – is a rough and tumble world in which broadcasters can often find themselves in the middle.  We’ve written extensively (here, here and here) about how issue advertising can impose additional public file obligations on broadcasters under FCC policy that has recently been clarified.  Plus, there is beginning to be a body of state law seeking to regulate these ads (see, for instance, our articles here and here).  But where the middle perhaps becomes the most uncomfortable for broadcasters is when they find themselves in a dispute over whether an issue ad that they are asked to broadcast is true.  As we wrote here and here, there are certain common procedures that broadcasters need to follow if they have reason to believe that an ad is false, as running an ad that is in fact false, if the station has reason to believe that it is false (e.g. when they are put on notice that the ad is false by a party being attacked in the ad) could lead to liability for defamation.  While claims brought against broadcasters for running these third-party ads are infrequent, it does happen, as is evident from the recent lawsuit by the Trump campaign against a Wisconsin TV station owned by Northlands Television arguing that a portion of a Priorities USA ad attacking the President for his handling of the coronavirus pandemic was false.  Recently, the TV station filed its response to the Trump suit, and the Motion to Dismiss that was filed is instructive on the issues to consider in any defamation lawsuit.

The Trump claim attacks a Priorities USA ad containing a montage of audio clips of President Trump’s words, including the phrase “coronavirus, this is their new hoax.”  The Trump Campaign claimed that the ad and the way that the clips were edited together misrepresents President Trump’s “hoax” comment by falsely claiming that he stated that the coronavirus is a hoax, when the hoax to which he was referring was “the Democrats’ exploitation of a pandemic and related characterization of the candidate’s response to the pandemic.”  The complaint cited several “fact checkers” who supported the claim that the reference to the hoax was to the Democratic reaction, not the virus itself.

In response, the licensee filed a Motion to Dismiss arguing that the campaign was not the proper legal entity to bring a defamation claim, as the campaign was not disparaged by the ad, but instead, if anyone was legally defamed, it was the President individually.  As the President himself was not a plaintiff, the licensee argues that the case should be dismissed.  In addition, the station analyzes Wisconsin law on defamation and the federal standard adopted by the Supreme Court.  Under the Supreme Court standard, the station argues, to sustain a claim of defamation against public figures, in addition to any other standards set by state law, the plaintiff must prove “actual malice” — that the publication of a falsehood was made knowingly or while the publisher was in fact entertaining serious doubts about its truth.  The Motion argues that these standards have not been met in this case.

The Motion to Dismiss argues that the claim made in the ad was not objectively false, as there was so much ambiguity in the statements about the “hoax” that reasonable people could, and did, believe that the President was talking about the virus and not the Democratic response.  The Motion also argues that the law of defamation requires that the truth be judged based on the content of the message as a whole, and that the message conveyed (that the President did not take the virus seriously early enough) was not untruthful.

In addition, the Motion argues that the plaintiff cannot show the required malice.  While the Trump campaign claimed that the ad was false, Priorities USA responded to the campaign’s claims and argued that it was not.  To require that a broadcast station sort out these conflicting claims about the truth of political claims (and the nuances of defamation law) would potentially chill political speech – a responsibility that the courts, in adopting the malice standard, did not want to impose on the media.

The station also argues that there are no damages in this case.  First, the campaign cannot show how it is legally damaged as, under Wisconsin law, “a statement’s impact on the electoral prospects of a candidate cannot form the basis of a defamation claim.”  Additionally, the station argues that only the President, who is not party to the suit, would be entitled to damages and, obviously, it additionally argues that there is simply no basis for liability.

Priorities USA has also moved to intervene in the suit, arguing that it should be able to participate in the suit as, if the station is found liable, it may have an obligation to indemnify the station for any losses that the station suffers.  The PAC filed a motion in support of the Motion to Dismiss, echoing many of the same points raised by the station itself.

Right now, the lawsuit is mired in back and forth arguments on procedural issues including whether the case should be heard in Wisconsin state courts or in federal courts.  Eventually, the Trump campaign will have the opportunity to respond to the Motion to Dismiss.  Obviously, the legal fight goes on, and both parties (or their insurance companies) will accrue legal bills to hash out these thorny legal issues.  But these are legal issues that all stations should be familiar with as they become part of any calculation to accept non-candidate advertising in this important election year.

This Week at the FCC: May 2, 2020 to May 8, 2020

Delivered... David Oxenford | Scene | Sun 10 May 2020 4:49 am

Each week, we summarize some of the regulatory and legal actions of the last week significant to broadcasters – both those from the FCC and those taken elsewhere –with links to where you can go to find more information as to how these actions may affect your operations.  Here is this week’s list of significant actions:

  • The FCC’s Media Bureau last week made it easier for broadcast stations to rehire employees laid off due to COVID-19-related circumstances by granting relief from the broad outreach EEO requirement otherwise required when filling job vacancies.  Licensees may re-hire full-time employees who were laid off without first conducting broadcast recruitment outreach if the employees are re-hired within nine months of the date they were laid off.  As the economy hopefully turns around, this partial waiver should help stations ramp up their operations to full strength quicker than they would have been able to absent the waiver.  (Order)(Broadcast Law Blog article)
  • Sinclair Broadcast Group (“SBG”) agreed to pay a $48 million penalty—the largest penalty ever paid to the FCC by a broadcaster—and adopt a compliance plan to settle investigations into (1) SBG’s lack of disclosure during its failed merger with Tribune Media; (2) its obligation to negotiate retransmission consent agreements in good faith; and (3) sponsorship identification failures on content produced and supplied by SBG to SBG and non-SBG stations.  (News Release)
  • The FCC released the final agenda for its May 13 Open Meeting, with two items of interest to broadcasters.  It is expected that both these items will be adopted before the virtual meeting scheduled for next Wednesday. (Agenda)
    • The first would modernize and simplify the public notices broadcasters must provide upon the filing of certain applications.  This order, if adopted as drafted, would update many of the public notice requirements, end requirements for newspaper public notice, and abolish required license renewal pre-filing announcements (draft of the Report and Order).
    • The second action deals with regulatory fees. The draft order, despite opposition from VHF station licensees, declines to provide any blanket regulatory fee reductions to these stations as the FCC moves fully to television regulatory fees based on the population served by the TV station rather than the size of the market in which the station operates.  The same document sets out for comment the proposed annual regulatory fees to be paid in September 2020 by all FCC regulated entities, including radio and TV stations (draft of the Report and Order and Notice of Proposed Rulemaking).
  • The Supreme Court granted Prometheus Radio Project more time, until July 21, to file a response to the petitions by the FCC and NAB asking for review of the Third Circuit decision that rolled back the Commission’s 2017 media ownership reforms, including the abolition of the newspaper/broadcast cross-ownership rule.  If the request for review is granted, the Supreme Court will take up the case, at the earliest, during its 2021 term.  (Time Extension Request)(see this Broadcast Law Blog article for more on the appeal that Prometheus seeks to oppose).
  • The comment period closed this week in the FCC’s FM “zonecasting” proceeding.  The comments were submitted on a petition for rulemaking filed by GeoBroadcast Solutions, asking the FCC to change its rules to permit FM boosters to allow commercials, news reports or other short content to be dropped into their programming that would be different than the programming on the main station.  Under the current rules, FM boosters must retransmit 100% of the programming from their originating station.  (FM broadcast booster proceeding filings) (see this Broadcast Law Blog article for more information about the zonecasting proposal, and look for another article early this week summarizing the positions taken in the comments).
  • A Wisconsin television station filed a motion to dismiss the lawsuit brought by the President’s reelection committee claiming that an attack ad from the Priorities USA PAC which was broadcast on the station was defamatory.  The motion argued that the campaign could not sustain a claim of defamation over an advertisement the station claimed was political speech protected by law including the First Amendment. (Motion to Dismiss – and watch for a summary in the Broadcast Law Blog this week).


This Week at the FCC: April 18, 2020 to April 24, 2020

Delivered... David Oxenford and Adam Sandler | Scene | Sun 26 Apr 2020 3:34 pm

Trying to stay on top of regulatory developments for broadcasters is difficult even in normal times.  There are always day-to-day obligations that distract from a focus on legal and regulatory questions – and there are so many developments almost every week that we can’t always write about everything that may have occurred.  So we thought that we would introduce a new feature – each weekend providing a list of some of the regulatory actions of importance to broadcasters that occurred in the prior week, with links to where you can go to find more information as to how these actions may affect your operations.

In addition, to provide information on dealing with the FCC during the pandemic, and on the many actions that the FCC has taken during the last 6 weeks – both those dealing with the current crisis and decisions made in processing its normal workload relating to broadcasting – we conducted a webinar last Tuesday on these issues.  You check out that webinar presented to broadcasters across the country, available by clicking on this link.  And here are some of the regulatory actions announced last week of importance to broadcasters that have been announced since then :

  • The Commission held an Open Meeting on April 23 and before and during the meeting acted on three items of interest to broadcasters.  The first item was a Report and Order on LPFM stations that expanded the permissible use of directional antennas, expanded the definition of minor change applications, and allowed LPFM stations to operate boosters.  The Order deferred to a later proceeding a decision on changing the rules for interference between Channel 6 TV stations and noncommercial FM stations operating on the reserved band (Report and Order – and for highlights of the issues in that Order see our Broadcast Law Blog).  The second item was a Notice of Proposed Rulemaking that seeks comment on the possible expansion of television station Video Description obligations (Notice of Proposed Rulemaking).  Finally, the FCC adopted a Report and Order and Further Notice of Proposed Rulemaking that opened use of the 6 GHz band to unlicensed wireless devices.  This move could impact certain broadcast auxiliaries.  (Note: The Report and Order and Further Notice of Proposed Rulemaking has not yet been released – News Release)
  • The FCC adopted a much-anticipated clarification of its Political File Order.  In the Order, the Commission clarified that its Political File Order is limited to requests for the purchase of broadcast time by issue advertisers whose commercials communicate a message relating to any political matter of national importance, not to requests for the purchase of broadcast time by or on behalf of a legally qualified candidate for public office.  Also clarified is the FCC’s intention to apply a standard of reasonableness and good faith decision-making to decisions made by broadcasters in: (1) determining whether, in context, a particular issue ad triggers any disclosure obligations; (2) identifying and disclosing in their online political files the candidates and political matters of national importance that are referenced in each issue ad; and (3) determining when the use of acronyms or other abbreviations in their online political files would be understandable to the general public reviewing the information about issue ads.  (Order on Reconsideration) (Broadcast Law Blog)
  • The FCC released a Public Notice announcing the procedures for the 2020-23 television license renewal cycle.  The Notice covers familiar territory like reminding licensees of their online public file, local public notice, and EEO report filing obligations.  The Commission notes that Schedule 303-S largely remains the same as it has in the past but includes changes to the Children’s TV Programming and ownership questions.  (Public Notice) (Broadcast Law Blog)
  • The Commission released the agenda for the May 13 Open Meeting, with two items for consideration that will interest broadcasters.  The first is a media modernization item that proposes to modernize and simplify the written and on-air public notices broadcasters must provide on the filing of certain applications.  (Second Report and Order)  The second deals with 2020 regulatory fees.  In the draft FCC action, the Commission would not adopt proposals by VHF licensees to reduce their regulatory fees to account for signal limitations and degradation.  The Commission also seeks comment on its proposal to assess 2020 fees for full-power TV stations based on the population covered by the station’s contour and on the other regulatory fees it would collect later this year.  Stations can find their proposed fee in Appendix G.  (Report and Order and Notice of Proposed Rulemaking)
  • The Media Bureau announced an update to the commercial radio station license renewal form adding a question that asks stations to certify compliance with the Commission’s ownership rules in section 73.3555.  This update discards an interim procedure put in place last year after the Third Circuit Court of Appeals rejected the FCC’s ownership rule changes.  (Public Notice) (Broadcast Law Blog)
  • The chief of the FCC’s Public Safety and Homeland Security Bureau emailed EAS participants a reminder to secure their EAS devices, warning that these devices are vulnerable to hacking if not properly secured.  The Notice refers all EAS Participants to review best practices for securing their EAS systems contained in the 2015 Communications Security, Reliability and Interoperability Council IV, Working Group 3, Emergency Alert System (EAS) Subcommittee, Final Report, and in the 2014 Communications Security, Reliability and Interoperability Council IV, Working Group 3, Emergency Alert System (EAS) Subcommittee, Initial Report.

FCC Issues Guidance on TV License Renewals and Announces New Ownership Question on Radio Renewals

Delivered... David Oxenford | Scene | Fri 24 Apr 2020 3:15 pm

The FCC issued public notices this week on the license renewal process for both radio and television operators.  The Public Notice on television renewals was perhaps more significant, as it addressed several issues and procedures for the television renewal process which begins with the filing of renewals for stations located in Maryland, DC, Virginia and West Virginia, to be submitted to the FCC no later than June 1 of this year.  The announcement reminds licensees that the application must be filed in the LMS database (where the new form should now be available) and must be accompanied by an EEO Form 2100 Schedule 396, reporting on the station’s hiring practices for the two years prior to the filing of the renewal. The notice also emphasizes the importance of the public inspection file – particularly the documents related to political broadcasting – urging TV stations to review their online public files now prior to filing their renewal application.  See our articles here and here on fines issued last year to radio stations for deficiencies in their public files at the beginning of their renewal cycle, and our article here posted just yesterday about the FCC latest ruling about the political file obligations for all broadcast stations.

For radio, the recent Public Notice merely announces that the renewal form has been slightly revised to include a question certifying that the renewal applicant complies with the 2016 FCC multiple ownership rules.  As we wrote in December, the Third Circuit decision overturned the FCC’s 2017 revision to its ownership rules (which, among other things, had abolished the broadcast-newspaper cross-ownership rules).  As a result of the court’s decision, the FCC began to require that broadcasters include such a certification with their renewal applications.  Until now, that certification was to be added in an exhibit, as the form did not specifically request that information.  This public notice eliminates the need for the exhibit, as a question has now been added to the form regarding compliance with the ownership rules.  It is interesting that this question has been added within a week of the FCC’s filing of a request with the Supreme Court seeking to overturn the Third Circuit decision (see our article here).  But, while that petition is under consideration by the Supreme Court, the old ownership rules remain in effect.

For more on the license renewal process, see the webinar that I conducted for the Indiana Broadcasters earlier this year, available here.  While specifically addressing stations in Indiana and discussing primarily radio issues as their renewal deadline was approaching, this webinar highlights issues that all broadcasters face when preparing for their license renewals.  Of course, consult with your own attorney for advice on the renewal and specific issues that may affect your license renewal submission.

FCC Clarifies Its Ruling on Political File Obligations for Federal Issue Ads

Delivered... David Oxenford | Scene | Fri 24 Apr 2020 2:36 am

The FCC this week issued an Order reconsidering some of the issues addressed in its October 2019 orders (which we summarized here) interpreting its political advertising rules.  Those October interpretations required that broadcasters who run ads addressing federal issues must include in the political file, maintained as part of their online public file, information about all of the candidates and issues discussed in such ads, not just the most prominent issue or candidate it discusses.  The October ruling also required that stations inquire of issue advertisers (or their agencies) about the names of the chief executive officers or members of their boards of directors if the station is provided with only one name, as the rules require the disclosure of all of the officers or directors of such organizations and the FCC assumes that most of these groups have more than one officer or director.  The October rulings also warned stations against the use of acronyms in their public file where such abbreviations could be misleading to the general public when they view the political file.

The reconsideration addressed two aspects of the October ruling.  First, it made clear that the ruling applied only to federal issue ads, not to ads bought by candidates or their authorized campaign committees.  That seemed to be clear from other statements made by the FCC and its staff (see our article here) but the reconsideration makes it explicit.

The second aspect of the reconsideration was a statement that the FCC is looking for good-faith efforts of stations to comply.  The October decision had some troubling language that suggested that the FCC was expecting stations to provide uniformity of public file disclosures as to the issues discussed in this advertising, which suggested some sort of strict compliance requirement.  In fact, even lawyers have been disagreeing about how to characterize some of the issues discussed in some of these federal issue ads.  For example, if an ad discusses both the Border wall and immigration, is that a discussion of two aspects of the immigration issue or are they two separate issues that must be listed separately on the disclosure form?  What about issues that are addressed only by implication without being specifically mentioned – or candidates who are being attacked subtly, without use of their name?  Recognizing that there is room for judgement on many of these issues, the reconsideration order indicates that the FCC is looking for good-faith efforts at compliance by licensees.

The FCC also indicates that good faith is the standard for the use of acronyms in public file disclosures.  In some cases, the public will clearly know to whom an abbreviation refers – like the NRA.  In such circumstances, where the licensee in its good faith judgment determines that the abbreviation will be known to most reasonable people, the abbreviation can be used instead of the full name, e.g., National Rifle Association would not need to be spelled out.  But it seems prudent for stations to be cautious and use full legal names wherever possible, even though the FCC decision now allows good faith judgements as to when abbreviations may be appropriate.

The FCC refused to go farther in its ruling.  It is not at this time reconsidering the requirement for identifying all candidates and issues mentioned in any issue ad, nor the requirement to try to find out if there is more than one member of the board or executive officers of a sponsor.  So, for now, stations need to continue to comply with these requirements.  But stations should be at least somewhat reassured that, if they are legitimately trying to comply, the FCC will credit their good faith attempts.

FCC Denies Application of Hoax Rule to Trump Press Conferences on COVID-19 – Looking at the First Amendment and the Commission’s Regulation of Political Speech

Delivered... David Oxenford | Scene | Wed 22 Apr 2020 5:29 pm

Recently, FCC staff dismissed a request by the organization Free Press asking the FCC to investigate the broadcast of the President’s press conferences on the coronavirus and programs where commentators supported the President’s pronouncements.  In addition to an investigation, the request asked that the FCC require that broadcasters “prominently disclose when information they air is false or scientifically suspect” in relation to these press conferences and other broadcasts.   Free Press suggested that the FCC had the authority to take this action under its broad mandate to regulate in the public interest.  It also cited the FCC’s hoax rule as providing support for such an action.  As we have written before, the hoax rule is designed to prevent broadcasts that pose the risk of imminent harm to the public by potentially tying up first responders and emergency response teams for purported disasters and crimes that are not real.  FCC staff dismissed the Free Press complaint, finding that the FCC is forbidden by Section 326 of the Communications Act from censoring the speech of broadcasters or otherwise abridging their freedom of speech.  These First Amendment principles largely keep the FCC out of content regulation (with the limited exceptions of regulation in areas like indecency, obscenity and sponsorship identification where the message is not being censored, just certain means of expression).

In the Free Press decision, the FCC concluded that, in covering a breaking news story like the pandemic, it would be impossible for a broadcaster to fact check every statement made in a press conference and correct any misstatements in anything approaching real time, as there is so much room for interpretation of any statement made on these ongoing matters.  It would also be impossible for the FCC to police any such mandate without trampling on First Amendment principles, as it would require the FCC to become the arbiter of the truth for many claims made on television.  The FCC declined to take on that role, and noted that the hoax rule is narrowly drawn to avoid these First Amendment issues.  That rule only punishes clearly false broadcasts that could foreseeably tie up first responders or cause substantial public harm.  It does not get the FCC involved in evaluations of the truth of political statements and policy pronouncements.  This is a position that has consistently been taken by the FCC, and one that we often see misstated in connection with demands for the take-down of issue advertising and non-candidate political attack ads.

In fact, two Democratic members of Congress recently wrote to Chairman Pai asking that he make explicit the FCC’s policy of not interfering in political speech.  They wrote in connection with take-down notices recently sent to broadcast stations from a PAC affiliated with the President, with the PAC arguing that broadcasters have potential FCC liability for allegedly false statements made in an issue ad attacking the President on his handling of the coronavirus.  The members of Congress, in their letter to Chairman Pai, asked that he release a statement that the FCC would not get involved in assessing the truth or falsity of political speech.  In a response issued at the end of last week, here, the Chairman seemingly agreed that the FCC will stay out of any assessments of political speech.  The Chairman further challenged the Congressmen, to be consistent, to issue a statement condemning Free Press’ attempts to get the FCC into content regulation.

While the exchange in these communications may seem political, it actually reflects a consistent theme of the FCC over the years to avoid the appearance of censoring broadcast programming decisions.  We have written many times about how the FCC sees the First Amendment and Section 326 as generally restricting its ability to get into any sort of content regulation.  This consistent theme has run through decisions in a variety of areas.  See, for instance our article here on the FCC’s reluctance to get involved in assessing the truth of attacks made in political ads; our articles here and here on the FCC’s policy that it does not regulate the format of broadcast stations; the FCC’s decision to end enforcement of the Fairness Doctrine (see our article here); its denial of previous requests that it penalize a licensee for allegedly airing fake news reports (see our article here); and its decisions to not substitute its judgement for that of the licensee in cases where the FCC was asked to deny renewal applications based on a petitioner’s assessment that the programming selected by the licensee did not best serve the public interest (see our article here).

The First Amendment limitations on content regulation is different than that reflected in broadcast policies in many other countries, where there are often strict limits on format changes, tight limits on political debate, and enforced fairness on the airwaves.  See for instance my article here where I wrote about international broadcast regulatory schemes after spending time meeting with broadcasters and regulators in an eastern European country in the process of revising its media laws.  The US system has created a diverse, competitive media landscape with minimal regulatory intervention by the government.  These recent communications by the FCC, indicating that it intends to keep limited its intervention in questions of a licensee’s choice of broadcast content, provide welcome consistency in these confusing times.

A Webinar on FCC Issues for Broadcasters During the Current Crisis – And One More FCC Action on Sponsorship Identification on Paid PSAs

Delivered... David Oxenford | Scene | Mon 6 Apr 2020 3:24 pm

In the last three weeks, we have written about actions that the FCC has taken to help broadcasters through the current crisis caused by the COVID-19 virus.  The FCC appears to realize that the business of broadcasting in the current crisis is vastly different than it was just a month ago.  The FCC has provided relief on TV newsgathering and news sharing arrangements,  issued a determination that no charge spots unrelated to an existing advertising schedule do not affect lowest unit rates, granted liberal extensions to stations in Phase 9 of the TV repacking, deferred the filing of Quarterly Issues Programs Lists and the Annual Children’s Television Reports to July 10, and recognized that college-owned stations that are silent when students are no longer on campus do not need an STA to remain silent.  In a webinar I conducted for a number of state broadcast associations last Thursday, I summarized these developments and talked about other FCC rules and policies that broadcasters need to continue to observe during the current crisis.  That webinar is available on the website of the Indiana Broadcasters Association which hosted the session and can be viewed here.

On Friday, the FCC added to the actions that it has taken to assist broadcasters – issuing a Public Notice adopting a policy that, through June 30, commercial advertisers can donate ad time to government agencies or charities to run PSAs dealing with issues relating to COVID-19 without the station having to identify the companies donating the spots as sponsors of the PSA.  Even though the commercial sponsors paid for the time, they don’t need to associate themselves with the virus spots.  This was at the request of the Ad Council, which suggested that some advertisers had ad time that they no longer needed but were reluctant to donate it to COVID PSAs as they feared that, if they were identified as sponsors, their businesses would somehow be associated with the virus.  While it may be the unusual situation where an advertiser cancels its ad schedule and is willing to donate the advertising time for charitable uses without acknowledgement, in some cases it may give broadcasters one more way to try to convince advertisers not to totally cancel their schedules.  And it shows that the FCC is continuing to do its best to assist advertisers in this trying time.  Watch for more developments in the coming weeks.

Applying the FCC Guidance on No-Charge Spots and Lowest Unit Charge During the Pandemic

Delivered... David Oxenford | Scene | Mon 30 Mar 2020 4:44 pm

Many stations seem unsure of how to apply the recent FCC guidance  that no charge spots given to advertisers to help them through the pandemic do not need to be counted in computing a station’s Lowest Unit Charge, as long as the no-charge spots are not part of paid advertising contracts and are not otherwise considered bonus spots.  We wrote about that guidance last week when it was first released by the FCC, here.  Because this issue can get complicated quickly, we recommend that individual stations talk to their counsel about any specific application of the FCC’s Public Notice to their situation.  However, as we were involved in seeking the guidance from the FCC, what follows are some general thoughts as to issues that stations should keep in mind in applying the FCC’s decision.

To be exempt from Lowest Unit Charge calculations, any no-charge spots should not be added to any existing advertising package, nor should they be used as a direct incentive to buy a new package, e.g., no promises should be made to give 20 no-charge spots to an advertiser if they buy a paid schedule of 20 spots.  The whole idea is that these spots are gifts to the advertiser to help them through the crisis, separate and apart from any commercial advertising transaction – while at the same time building goodwill for the station and helping the station fill holes in their inventory that have resulted from cancelled advertising.  These gifts should be viewed as a temporary measure to get through the crisis.  Because these no-charge spots cannot be tied to paid packages, stations should be careful on how they promote them to advertisers.  Here are some ideas:

  • Don’t call them “bonus spots” in any communications.  Call them “goodwill spots” or “covid-19 spots” or something else, but you do not want to imply that they are a bonus associated with another package.
  • Don’t give them in strict proportion to any existing contract, e.g., don’t give an advertiser 10% of its paid schedule in “goodwill spots.”  That also makes it look too much like they are part of a paid schedule.
  • Don’t list them on the same invoice or affidavit of performance that you provide to an advertiser showing its paid spots.  There is no requirement that you provide specific documentation to advertisers of what you run, but if you do, keep it apart from the documentation of paid schedules.
  • The spots should be preemptible.  Don’t make any promises or guarantees of any specific number of spots that will be provided and remind advertisers that this situation is temporary and simply an expression of good will on your station’s part during these difficult times for everyone.  You also should not guarantee any particular audience size or reach or frequency.
  • While not required, having a unique message relating to the pandemic, or packaging multiple advertisers together in spots to promote local businesses, can help differentiate these spots from normal paid schedules that are still subject to LUC consideration.

This is a unique solution for a unique time, but one that some stations may be able to employ as a win-win for both the stations and their communities.  Talk to your counsel for more details on how to employ this kind of program without running afoul of the FCC guidance.



FCC Issues Guidance on No-Charge Advertising and Lowest Unit Charges, and News Sharing Agreements and LMA Rules During COVID-19 Crisis

Delivered... David Oxenford | Scene | Thu 26 Mar 2020 3:09 pm

Yesterday, the FCC released two public notices reflecting its attempts to assist broadcasters coping with the COVID-19 crisis.  The first public notice deals with the attempts of several broadcasters to support their advertisers while at the same time filling advertising inventory holes that have been created by the cancellation of other advertising schedules.  Broadcasters who we represented requested that they be permitted to schedule no-charge advertising for some of their clients where those spots were not part of negotiated advertising packages, without those spots affecting lowest unit charges in the political windows (likely to be opening in many states in the coming weeks).  The FCC agreed that free spots provided to merchants that are not part of an existing commercial contract or otherwise are not provided as a bonus tied to any contract would not affect lowest unit rates.  This is a limited ruling for broadcasters to use to build up good will with advertisers, and to provide them with assistance in this time of crisis.  It is a limited, nuanced ruling that you should discuss with your counsel – but it does provide broadcasters with the opportunity to be creative in helping support their advertisers in this most unusual time.

In addition to the lowest unit rate issue, the FCC issued another public notice about TV Local Marketing Agreements and similar agreements.  In TV (as in radio), if one broadcaster programs more than 15% of the programming time of another station in their market, the station to which they provide programming becomes “attributable” for multiple ownership purposes, i.e., it counts in determining compliance with the ownership rules.  In markets where one owner cannot own an additional station, news-sharing agreements where one station provides news to another are permissible, as long as those agreements do not constitute more than 15% of the programming time of the second station.  The notice released yesterday indicated that, if the brokering station wants to expand news coverage on the brokered station during this crisis time, the FCC will be liberal in granting waivers to permit the agreement to exceed 15% of the airtime of the brokered station – though prior FCC approval is required.  The waiver will be limited to the period of time that the COVID-19 outbreak remains a national emergency.  The public notice provides email addresses to which such requests should be sent.  These two decisions provide more evidence of the welcome flexibility and relief that the FCC is providing broadcasters in helping to deal with this current crisis.


As Presidential Primaries Get Delayed by the Coronavirus, So Too Do Lowest Unit Rate Windows

Delivered... David Oxenford | Scene | Wed 18 Mar 2020 2:52 pm

In recent days, we have seen Presidential primaries delayed by the coronavirus in at least six states – including Ohio which was originally set to vote yesterday but has postponed its primary until June 2.  We expect that additional states will be looking at extensions in the coming days.  As lowest unit rate windows had already opened in many of these states, the postponement will result in the Presidential candidates getting another 45-day window for those low rates in advance of the rescheduled primary date.  But, with the primaries now being scheduled for a later date, there is no FCC requirement that stations continue in the original window period to charge lowest unit rates to the candidates – under FCC rules, stations can wait to make those rates available until the 45-day period before the new primary date.  With so much changing on a daily basis, keep track of these changing deadlines in your state.

March Regulatory Dates for Broadcasters—Children’s Television Reports, Lowest Unit Rate Windows, EEO Audit Responses, AM Revitalization Comments, License Renewal Preparation and More

Delivered... David Oxenford | Scene | Mon 24 Feb 2020 6:06 pm

As the calendar flips to March, many of us have put our trust in Punxsutawney Phil’s weather forecasting expertise that an early spring is coming.  A surer place to put our trust, however, is in the guarantee that there are always some regulatory dates about which broadcasters should be aware.  While March is a month without with many of the regularly scheduled deadlines for renewals, EEO public file reports or Quarterly Issues Programs lists, there are still plenty of regulatory dates about which you should take notice.

The closest we come in March to a broadly applicable FCC filing deadline is the requirement that, by March 30, 2020 television broadcasters must complete and submit through LMS the FCC’s new Form 2100, Schedule H documenting their compliance with the requirements under the children’s television (KidVid) rules to broadcast educational and informational programming directed to children.  This report will document that programming from September 16, 2019 (when the new KidVid rules went into effect) to December 31, 2019.  The March 30 date is a transitional date as the FCC moves away from the old quarterly children’s television reports to ones that will be filed annually – in future years by the end of January.  This year, however, the FCC took time to develop the form for the new annual report and to explain how it should be used, thus the extra time to file.  Once filed, TV broadcasters won’t file another children’s television report until early 2021 reporting on compliance for all of 2020.  For more on the transition to the new KidVid obligations, read our articles here, here, and here.  To learn how to work with the new form, watch the FCC’s archived instructional webinar here.

Other dates affecting many broadcasters are the political windows during which broadcasters must offer lowest unit rate to candidates in upcoming primary elections.  In the 45 days before a primary and the 60 days before a general election, stations (and cable systems) must offer candidates running in those elections the lowest unit rate that they charge any commercial advertiser for a comparable advertisement.  Many of the windows are already open, including those for stations which are among primaries happening on Super Tuesday (March 3).  For later primaries, the window opens on March 14 for the primaries in Connecticut, Delaware, Maryland, New York, Pennsylvania, and Rhode Island.  Later windows open on March 18 for Guam (D) and Kansas (D), March 21 (Indiana), and March 28 (Nebraska).  See our article here for thoughts on some of the issues that broadcasters should be considering for primary season survival.  Learn more about navigating the range of political broadcasting issues by reading our Political Broadcasting Guide and for more guidance on how to compute lowest unit rates, see our articles here, here, and here (this last article dealing with the issues of package plans and how best to determine the rates applicable to spots in such plans).

In early February, about 320 broadcast stations received an unwelcome letter in their mailbox notifying them that they had been randomly selected by the FCC’s Enforcement Bureau to participate in an audit of their compliance with the FCC’s equal employment opportunity (EEO) rules.  Each year, approximately 5% of broadcast stations are selected for auditing and, if you are one of the unlucky 320 who recently received an audit notice, you will want to begin preparing immediately to respond by uploading to the station’s online public file the responsive documents by March 23, 2020.  To see the stations that made the audit list and to read the letter sent to them detailing the matters that the must be covered in the response, visit the FCC’s website here. For more on this first round of 2020 EEO audits, see our article here.

The FCC in March takes another step in its plan to revitalize AM radio.  As we noted in earlier posts here and here, the FCC adopted a Notice of Proposed Rulemaking (NPRM) that proposes allowing AM radio broadcasters to voluntarily transition to an all-digital signal.  Currently, most AM operations are analog, though some operate in a hybrid analog-digital mode.  Among the questions asked in the NPRM are whether all-digital operations would provide a better listening experience with less interference, whether AM broadcasters could use the digital signal to transmit artist and song data to listeners, and how AM broadcasters should be required to notify the FCC if they begin digital operations or revert to analog operations. The NPRM asks many technical questions, so you may want to put on your broadcast engineer hat when writing your comments.  The FCC is accepting comments on its proposal through March 9Reply comments are due by April 6.

The National Association of Broadcasters (NAB) together with Xperi Corporation and National Public Radio (NPR) petitioned the FCC in December 2019 to revive a currently-dormant issue dealing with HD radio technology.  The petition asks the FCC to begin a rulemaking that would amend the Commission’s rules to allow FM stations to use asymmetric sideband power levels without special authorization which could enable stations to maximize their digital coverage area and match their analog coverage to the greatest extent possible, within existing digital power limits while minimizing interference to adjacent channel stations.  If you are interested in supporting or opposing a potential rulemaking, you have until March 6 to submit comments.  You can read the petition for rulemaking here.

The repacking of the broadcast TV band, made necessary by the FCC’s broadcast incentive auction, continues across the country.  Stations assigned to Phase 8 must complete the transition to their new channels by March 13, 2020.  One day later, on March 14, 2020, stations assigned to Phase 9 of the repack may begin testing and operating on their new channels.

Looking ahead to early April, all AM, FM, LPFM, and FM translator stations licensed to Indiana, Kentucky, and Tennessee must file their license renewal application by April 1, 2020. Beginning on April 1, 2020, stations filing renewals by that date must begin airing a series of six post-filing announcements (one announcement each on April 1April 16May 1May 16June 1, and June 16).

Full-power AM, FM, LPFM, and FM translator stations in Michigan and Ohio and full-power TV, Class A TV, TV translator, and LPTV stations in DC, Maryland, Virginia, and West Virginia (the first TV window in the current license renewal cycle) are due to file license renewal applications by June 1, but, before that, those stations must air a series of announcements alerting listeners to their upcoming license renewal filing.  The first of four of these pre-filing announcements begin on April 1, with further required pre-filing announcements to air on April 16May 1, and May 16.  For more on pre-filing announcements, including the timing of the announcements and sample text to use, visit the FCC’s radio license renewal page here and the TV license renewal page here.

April 1 also brings the obligation for full-power radio and television stations in DelawareIndianaKentuckyPennsylvaniaTennessee, and Texas with five or more full-time employees in their station employment unit to place in their online public file and on their station website their Annual EEO Public Inspection File Report documenting their hiring from April 1, 2019 to March 31, 2020.

Be sure to bookmark our blog to read updates throughout the month or, better yet, sign-up in the box on the right side of your screen (or at the bottom of your screen if you’re visiting on a mobile device) to receive email alerts every time we publish a new article.  And check with your own counsel for details about these obligations and for other dates we have not highlighted here, including any dates that may be uniquely applicable to your own station.

Quick Thoughts on a Few Political Broadcasting Legal Issues to Survive the Primary Season

Delivered... David Oxenford | Scene | Wed 5 Feb 2020 6:25 pm

One presidential caucus down, 49 (primaries and caucuses, plus a few more in the territories) to go in the next four months – with primaries for Congressional, state and local offices stretching out through August.  This presidential primary race has already seen unprecedented amounts of advertising on local stations, including through network advertising buys.  Based on campaign announcements made in recent days, the advertising is likely to only increase as we move to the Super Tuesday states.  As the Democratic party nomination race heats up, broadcasters are likely to continue to see a flood of political buys, as candidates, PACs and other groups try to get the last word before the voters go to the polls. Here are four issues that broadcasters should be considering in this active, condensed broadcast season:

  1. Practice Inventory Management. In the last days before an election, there will be many demands on the commercial inventory of many stations, and stations will need to be careful in managing that inventory. Remember, all candidates have the right to buy equal time to the time aired by opposing candidates in the prior 7 days. While candidates cannot sit on their equal opportunity rights until the last minute, equal opportunity buys can place real demands on your commercial inventory, especially if one candidate tries to reserve lots of time in the days immediately preceding a vote. Plus, you will be getting demands from candidates for new time, and requests from PACs and other political advertisers. Thus, be sure that you have practiced wise inventory management so that there is room for all of the spots that you are obligated to run. Be particularly careful about selling a large schedule to one candidate now, reserving big blocks of time in the final days before the primary date, as opposing candidates will need to be able to get their equal opportunities before the primary – even if you have to bump commercial advertisers – and potentially eat into program time.
  2. Weekend Access. The FCC has said that if a station has, in the year prior to the election, made its employees available to a commercial advertiser for new orders or changes in copy on the weekend prior to an election, they need to make employees available for those activities to political candidates. Even if the station completely shuts down on the weekend, and no salesman ever signs a deal with an advertiser during a Saturday golf outing and no weekend employee ever agrees to change the copy on a big advertiser’s spots, the station may still need to make employees available during the last weekend before the election to allow candidates to exercise the equal opportunity rights discussed above. Start planning now as to the staffing you may need to handle last-minute political requests that weekend before the primary.
  3. Be Prepared for Take-Down Demands. In the last days before any election, the ads can get more pointed, and some may trigger take-down notices from candidates who are being attacked. Remember, if the attack ad is run by a candidate’s authorized campaign committee, you can’t censor the ad based on its content. That means you are legally forbidden to pull the ad even if it lies about the opponent. But ads bought by PACs and other non-candidate groups can be refused based on their content. So you need to carefully evaluate the claims made by the party demanding that the spot be pulled, because if the claims made in the spot are in fact false and defamatory, the station could have liability for continuing to run the non-candidate attack ads after receiving notice demanding that they be taken down. We wrote more about this subject here and here.
  4. Keep Your Public File Up to Date. While you may be incredibly busy just getting political ads on the air, don’t forget your public file obligations.  The required information about advertising buys by candidates and issue advertisers (including, for candidate and federal issue ads, all the information about the schedule bought, the price paid, the class of time for the spots purchased) need to get into the political file “immediately” – i.e., on a same-day or next business day basis – so that other candidates and the public can see what has been bought.  With the recent FCC rulings requiring stations to disclose all the federal candidates, all the federal offices, and all the national issues that are included in any federal issue ad (see our posts here and here).), you need to have staff ready to fulfill your obligations.

Only nine more months and political season will be over, when your station can go back to simply dealing with its normal commercial advertisers. Until then, you need to deal with all of these issues.  More on political advertising can be found in our Guide to Political Broadcasting, here, and in the slides that I recently used in a webinar on political broadcasting issues that I did last week for broadcasters in 4 states (available here).  Remember, none of this guidance is definitive, as facts are really important in assessing any legal issue – especially in the political broadcasting context.  But these guides can help to identify the issues that you should be considering.  For now, be prepared for the onslaught of political advertising issues, and have your communications lawyer’s phone number on speed dial!

Looking Ahead to the Rest of 2020 – Potential Legal and Regulatory Issues For the Remainder of the Year

Delivered... David Oxenford | Scene | Wed 29 Jan 2020 5:35 am

Most years, at some point in January, we look into our crystal ball and try to see some of the legal and regulatory issues likely to face broadcasters.  We already provided a calendar of the routine regulatory filings that are due this year (see our Broadcaster’s Regulatory Calendar).  But not on that calendar are the policy issues that will affect the regulatory landscape in the coming year, and into the future.  This year, the biggest issue will no doubt be the November election.  Obviously, broadcasters must deal with the many day-to-day issues that arise in an election year including the rates to be charged political candidates, the access to airtime afforded to those candidates, and the challenges associated with the content of issue advertising that non-candidate groups seek to transmit to the public.  The election in November will also result in a President being inaugurated in just less than a year – which could signal a continuation of the current policies at the FCC or potentially send the Commission in a far different direction.  With the time that the election campaigns will demand from Congress, and its current attention to the impeachment, Congress is unlikely to have time to tackle much broadcast legislation this year.

The broadcast performance royalty is one of those issues likely on hold this year.  While it was recently re-introduced in Congress (see our article here), it is a struggle for any copyright legislation to get through Congress and, in a year like the upcoming one, moving a bill like the controversial performance royalty likely will likely not be high on the priorities of Congressional leaders.  This issue will not go away – it will be back in future Congresses – so broadcasters still need to consider a long-term strategy to deal with the issue (see, for instance, our article here on one such strategy that also helps resolve some of the music royalty issues we mention later in this article).

At the FCC, one would think that political broadcasting issues, like the reconsideration request we wrote about here seeking changes in the FCC’s recent controversial decisions on the disclosure of all issues and candidates in every non-candidate ad, would be high on the list of issues to be considered.  But political issues are also complex – October’s decision on issue ad disclosures took almost 3 years to be released, after a prior Media Bureau decision on the same issues was rescinded in early 2017.  Thus, it would not be at all surprising if these issues don’t get resolved this year.

Many people expected that we would see ownership reform in 2020– especially for radio.  Last year, the FCC started its Quadrennial Review to look at these issues.  But the September decision of the Third Circuit (see our articles here, here and here), overturning changes made in 2017, may have clouded the potential for any changes in the ownership rules this year.  These issues can be controversial in an election year.  But we have in the past seen FCC ownership decisions in the lame-duck period after an election but before a Presidential inauguration, so stay alert to what happens in this area.

In the interim, license renewal applications will trudge on, with TV starting to file their renewals in June of this year (starting with stations in Maryland, DC, Virginia, and West Virginia).  So far, the FCC has been judicious in issuing fines for public file violations disclosed in a license renewal application, only fining those stations who totally ignored their obligations (see our stories here and here).  We are waiting for the FCC’s patience to end – and would not be surprised to see the FCC become stricter in policing these issues in the future.

What other issues have we seen the FCC take comments on but not yet resolve?  EEO was one area that generated lots of comments earlier in 2019 (see, for instance, our article here).  But, with the FCC’s rulemaking notice being so general in its questions, and many of the proposals made in the proceeding so specific, if anything happens out of the proceeding, the most likely action would seem to be a further notice of a proposed rulemaking to give parties notice of any specific proposals the FCC wants to pursue.

For television, ATSC 3.0 looks to become a reality this year as stations begin to roll out the new technology and ATSC 3.0-compatible television receivers become available at consumer electronics stores.  On the regulatory front, the FCC still has some issues to resolve, including dealing with stations that cannot find a partner station to provide a “lighthouse signal” in the current digital technology when they are ready to convert to the new standard.  The TV band will also shrink, as the repacking following the incentive auction concludes in July – with all TV stations moved into the channels below 37.

The oldest of the broadcasting services, AM, will also possibly be looking at its own digital conversion – though the FCC will have to move very fast to get it done this year.  The proposal to allow AM stations to convert to full digital operations has been formally advanced through a notice of proposed rulemaking, with comments due March 9 and replies on April 6 (see our articles here and here).  The issues seem relatively simple, and for a voluntary conversion, relatively noncontroversial.  A decision before the end of the year is possible, though such quick action would require everything to fall into place just right.

Some of the biggest issues for broadcasters may come not from the FCC, but from other agencies or courts.  As we wrote here and here, the Department of Justice is considering changes to the antitrust consent decrees that govern ASCAP and BMI.  Should the DOJ review reach a conclusion and suggest a radical restructuring or abolition of the current system, Congress would almost assuredly have to step in to take action.  We’ll be watching closely to see if any action comes from the DOJ this year.

BMI is currently in rate court litigation with the Radio Music License Committee over the rates that radio stations should pay for the use of BMI music.  That proceeding could result in higher fees for radio broadcasters.  SESAC’s three-year license with the radio industry (see our article here) has also expired, meaning that if no new rates can voluntarily be arrived at, their rates will be decided by an arbitration panel.  SESAC has added some new songwriters (including Adele), so you can be sure that they will want more money from the radio industry.  And, of course, the litigation with GMR goes on, though it may not be concluded this year.

What will be concluded before the end of the year is the new rates that webcasters (including broadcasters who stream their audio signal on the Internet) will pay SoundExchange for the right to publicly perform sound recordings on a digital platform for the period from 2021 through 2025.  The Copyright Royalty Board is currently considering proposals from music services and SoundExchange for new rates – SoundExchange looking for a significant increase while the services are looking for a decrease.  A trial is scheduled for March, with a decision required by law before the end of the year.

With the election coming in November, the prospects for other “big” issues being tackled this year seem to be less than in most years.  We have noted (see, for instance, or articles here and here), that the FCC has been very active in enforcing the rules that it does have – which may be a safe political course for it to pursue but one fraught with potential dangers for broadcasters and other regulated entities.  But each year issues come up that surprise us, so watch the FCC releases, the trade press, this blog and others like it, and be ready for whatever regulatory issues may come your way in 2020.

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