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


This Week in Broadcast Regulation: May 1, 2021 to May 7, 2021

Delivered... David Oxenford and Adam Sandler | Scene | Sun 9 May 2021 3:01 pm

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

  • The FCC released a Notice of Proposed Rulemaking that sets out its tentative plan for assessing broadcast regulatory fees to be collected before October 1 of this year to pay for FCC operations for the current fiscal year. The notice proposes sticking with last year’s decision to assess television fees based on the population served by a station.  The proposed fees to be paid by each TV station are included in an Appendix to the Notice.  While proposing to use these unique fees for each station for this year, the FCC proposes for next year to group TV station fees within tiers, and it seeks comments on the tiers to be used.  While the total fees to be paid this by the radio industry are the same as last year, each station is proposed to pay more, apparently based on the FCC’s estimates that there will be fewer total stations paying fees.  The FCC also asks if it should again provide some relief to companies that, because of COVID-related financial difficulties, cannot pay their fees or cannot pay them on time.  Comments on the FCC’s proposal are due by June 3 and reply comments are due by June 18.  (Notice of Proposed Rulemaking)
  • As we noted a few weeks ago, FEMA has now officially chosen August 11, 2021 as the date for the next national EAS test (with August 25 as a backup date). The test will originate through Primary Entry Point facilities (i.e., principally through broadcast transmissions) rather than through internet dissemination via the Integrated Public Alert & Warning System (IPAWS) to test how well alerts are distributed if internet delivery is unavailable.  (FEMA Letter)
  • The C-band Relocation Payment Clearinghouse (RPC) posted its Draft C-band Handbook and will accept comments on the draft before 6:00 p.m. Eastern on May 14. The handbook covers, among other things, how funds will be distributed from the money received from entities that purchased C-band spectrum rights to those entities, like broadcasters, eligible for reimbursement for clearing the spectrum. In the past week or two, many broadcasters who are eligible for reimbursement, either through lump-sum payments or through the actual reimbursement of out-of-pocket expenses, have heard directly from the companies coordinating the reimbursement process asking questions about the details for such reimbursement.  Stations should be sure to quickly respond to these inquiries to avoid delays or other problems with those payments.

This Week in Regulation for Broadcasters:  April 24, 2021 to April 30, 2021

Delivered... David Oxenford and Adam Sandler | Scene | Sun 2 May 2021 3:48 pm

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

  • The FCC’s new rules that permit AM broadcasters to convert to all-digital operations became effective April 29.  The new rules require the filing of the FCC’s Digital Notification Form (Form 335-AM) within 10 days of the start of all-digital AM operations. A station converting to all-digital operations must run on-air notices for 30 days before converting to alert analog listeners of their plans.  See our blog post, here, for more on all-digital AM.  (Public Notice)
  • The FCC released a guide summarizing TV closed captioning quality standards (accuracy, synchronicity, completeness, and placement). The guide includes best practices and discusses how TV stations must monitor and maintain their equipment and signal transmissions associated with closed captioning, perform technical equipment checks, take any corrective measures necessary to ensure that captioning is passed through to viewers intact, and keep records of these activities for a minimum of two years.  The guide serves as a good reminder to TV stations of their closed captioning obligations.  (Closed Captioning Compliance Guide)
  • The application window is now open for parties interested in participating in the FCC’s upcoming auction of construction permits authorizing the construction of 136 new FM stations and 4 AMs (Auction 109). The application window will close on May 11 at 6:00 p.m. Eastern Time.  (FCC Auction 109 Page)
    • Following the Supreme Court decision reinstating the FCC’s 2017 changes in its ownership rules, which also reinstated the FCC’s incubator program (see our article here), the FCC noted that the broadcast interests of certain investors in auction applicants classified as “eligible entities” under that program may not need to be counted against the applicant if it is seeking bidding credits in the auction for having three or fewer other broadcast interests. The application of these rules is very fact dependent so consult your attorney for advice on how this change might affect your status in the auction.  (Public Notice)
  • New radiofrequency (RF) exposure rules, adopted in 2019, will go into effect on May 3, 2021, requiring that all new facilities must comply with the new rules beginning May 3, 2021 and providing a two-year compliance transition period for existing facilities. The new rules include updated signage requirements for areas of high RF radiation.  They also make changes to the “categorical exemption” or “categorical exclusion” rules by which some facilities were exempted from demonstrating compliance with RF exposure limits.  (Public Notice)
  • The FCC cleaned up its retransmission consent rules to make them consistent with certain statutory changes, making clear that the requirement for parties to negotiate retransmission consent agreements in good faith and the prohibition on exclusive agreements will continue indefinitely. The language of the FCC rules, which was based on prior statutory language, suggested that these provisions terminated on January 1, 2020.  This week, the FCC made clear that they have no expiration date and thus remain in effect.  (Order)

For more on upcoming regulatory dates and deadlines coming up in May and early June, read this article.  These dates include the close of the application window for Auction 109, the effective date for new distributed transmission systems rules, and upcoming license renewal and EEO deadlines.

May Regulatory Dates: Auction Applications for AM and FM Construction Permits for New Radio Stations, New DTS Rules, License Renewals and More

Delivered... David Oxenford | Scene | Thu 29 Apr 2021 5:00 pm

May is somewhat lighter on broadcast regulatory dates and deadlines than some recent months, but there are still dates to note.  Among other things, the FCC will begin the process of auctioning 140 construction permits for new AM and FM radio stations across the country.  Also, broadcasters in several states, with an eye on the June 1 deadline, should be preparing now to file applications for license renewal or to prepare and upload to their public inspection file EEO public file reports, demonstrating their compliance with the FCC’s equal employment opportunity requirements.  So let’s take a look at some of the important dates for May (and early June).  As always, be sure to consult with your communications counsel on the dates and deadlines applicable to your operation.

The Auction 109 window for “short-form” applications to participate in the auction of 136 FM construction permits and 4 AM construction permits began at 12:00 p.m. Eastern Time on April 28 and will close at 6:00 p.m. Eastern Time on May 11.  By that deadline, interested parties must file with the FCC their short-form applications (FCC Form 175) setting out information including their ownership and the channels on which they are interested in bidding.    The auction is scheduled to begin on July 27.  A freeze on the filing of FM minor modification applications remains in effect until the end of the auction filing window.  This freeze was imposed to ensure that Commission staff and auction bidders have a stable database to work with during the auction.  Read more about the auction and freeze, here and here.

On May 24, new rules for distributed transmission systems (DTS, also known as single frequency networks) will go into effect.  These new rules are designed to give broadcast TV stations greater flexibility in the placement of multiple transmitters throughout their protected service area to provide a stronger, more uniform signal throughout their markets.  This is seen as important to facilitate the provision of the additional services that can be offered through the new ATSC 3.0 transmission standard (NextGen TV).  Note that, although the rules for full-power stations go into effect on May 24, the rules that apply to Class A, low power TV, and TV translator stations have to undergo additional review by the executive branch and will become effective sometime after May 24.  For more information, see our article here.

Looking ahead to early next month, by June 1, radio stations in Arizona, Idaho, Nevada, New Mexico, Utah, and Wyoming and television stations in Michigan and Ohio must submit applications for renewal of their license.  See our article, here, about preparing for license renewal.  These 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 on their station website a link to their Annual EEO Public Inspection File report covering their hiring and employment outreach activities for the twelve months from June 1, 2020 to May 31, 2021.

In addition to the stations noted above filing for license renewal, radio stations in Michigan and Ohio, TV stations in Arizona, Idaho, Nevada, New Mexico, Utah, and Wyoming, and radio and TV stations in the District of Columbia, Maryland, Virginia, and West Virginia must, if they are part of a station employment unit with 5 or more full-time employees, upload to their public file and post on their station website a link to their Annual EEO Public Inspection File report covering their hiring and employment outreach activities for June 1, 2020 through May 31, 2021.

By June 3, comments are due in the FCC’s new proceeding looking at the Commercial Advertisement Loudness Mitigation Act (“CALM Act”), which is meant to regulate the volume of commercials on broadcast TV and radio.  After inquiries from a Member of Congress, the FCC is asking the public and industry to weigh in on the current rules and whether changes need to be made.  Reply comments are due by July 9.  We wrote more about the CALM Act, here.

Be sure to watch our blog, FCC releases, trade press, and advisories from your legal counsel throughout the month for updates on these dates and other regulatory developments of importance to broadcasters.

This Week in Regulation for Broadcasters: April 17, 2021 to April 23, 2021

Delivered... David Oxenford | Scene | Sun 25 Apr 2021 1:57 pm

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

  • At the FCC’s regular monthly Open Meeting, the Commissioners voted to adopt new rules mandating sponsorship identification of foreign government-provided broadcast programming. The new rules require on-air and public file disclosures when programming is supplied by a foreign governmental entity.  Even though many broadcast groups argued for rules requiring broadcasters to take specific steps to warn programmers about these requirements and to research the foreign-government connections of programmers only when they had reasons to suspect a programmer of having such connections, the FCC required that these steps be taken whenever they enter into any agreement to lease airtime.  (Report and Order)
  • As we noted last week, Congresswoman Anna Eshoo (D-CA) wrote to Acting FCC Chairwoman Jessica Rosenworcel requesting that the agency look at the reported increase in complaints tied to the loudness of TV commercials and, if necessary, take enforcement action under the CALM Act. The FCC wasted no time acting on this letter and is now seeking comment on whether updates are needed to the FCC’s rules that implemented the CALM Act.  The FCC wants to hear from consumers about their television-watching experience as it relates to the loudness of commercials and from the industry about whether the rules are serving their intended purpose.  Comments are due by June 3 and reply comments are due by July 9.  We wrote more about this issue and the request for comments, here.  (Public Notice)
  • The FCC adopted a ten-application limit for the upcoming filing window for noncommercial FM radio stations to operate in the reserved band below 92 MHz on the FM band. (Public Notice).  The Media Bureau also set the dates for the filing of applications for these new noncommercial stations – requiring that they be submitted during a filing window running from 12:01 Eastern Time on Tuesday, November 2, 2021 through 6:00 pm Eastern Time on Tuesday, November 9, 2021.  More details about these applications will be released by the Commission at some point in the future.  Read more about this upcoming window on our blog, here.  (Public Notice)
  • New rules for distributed transmission systems (DTS, also known as single frequency networks) will go into effect May 24, 2021. The new rules are designed to give broadcast TV stations greater flexibility in the placement of multiple transmitters throughout their protected service area to provide a stronger, more uniform signal throughout their markets.  This is seen as important to facilitate the provision of the additional services that can be offered through the new ATSC 3.0 transmission standard (NextGen television).  The new rules provide broadcasters with a bright-line rule that will expand the permissible range of “spillover” by DTS facilities beyond current protected service areas.  The rules for full-power stations go into effect on May 24, but rules that apply to Class A, low power TV, and TV translator stations will not be effective until some later date following approval by the Office of Management and Budget.  (Federal Register)

In the week ahead, parties interested in participating in the FCC’s upcoming auction of 136 FM and 4 AM construction permits (Auction 109) can begin submitting their short-form applications (Form 175) on April 28 at 12:00 p.m. Eastern Time.  The application window will close on May 11 at 6:00 p.m. Eastern Time.  (FCC Auction 109 Page)

FCC Announces that Window to Apply for New Noncommercial FM Stations Will Open in November

Delivered... David Oxenford | Scene | Thu 22 Apr 2021 4:17 pm

The FCC released its decision to limit to 10 the number of applications that can be filed by one party in the next window for new noncommercial FM stations in the reserved FM band (those channels below 92.1 on the FM dial).  No party can have attributable interests in more than 10 applications filed in the window.  By making this decision, the FCC cleared the way for the window itself, which was first hinted at last summer (see our article here).  So, having cleared the way, the FCC’s staff, in another public notice, announced that the filing window will be in early November – and run from 12:01 AM EDT on November 2, 2021 until November 9, 2021 at 6 PM EST.

Further filing details will be provided by the FCC in a subsequent notice.  But applicants can expect that, in the window, they will need to file applications fully setting out their technical proposals so that the FCC can evaluate which applications are mutually exclusive (i.e., which are in technical conflict so that only one can be granted without creating prohibited levels of interference to the other).  Applicants will also need to set out their claims under the “points system” used to choose between applicants who are mutually exclusive (see our articles here and here on recent changes to that points system).  Nonprofit, educational parties interested in filing for a new noncommercial FM channel should start now to consult with their engineers and attorneys about the preparations needed to file for that new station in the upcoming window in November.

This Week in Regulation for Broadcasters: April 10, 2021 to April 16, 2021

Delivered... David Oxenford and Adam Sandler | Scene | Sun 18 Apr 2021 1:22 pm

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

  • According to press reports, broadcasters should pencil in August 11, 2021 on their calendars for the next national test of the Emergency Alert System (EAS). Following the test, broadcasters will need to report to the FCC how their EAS equipment functioned and what, if any, problems were encountered relaying the test message.  This information will be used by the FCC in a report on the readiness of EAS in the event of an activation.
  • The FCC posted an online tutorial for parties interested in participating in Auction 109, the upcoming auction of 136 FM construction permits and 4 AM construction permits which will allow winning bidders to construct new radio stations. The tutorial is available for on-demand viewing on the “Education” tab of the Auction 109 website at http://www.fcc.gov/auction/109.  The window to apply for a construction permit is from 12:00 p.m. Eastern on April 28 to 6:00 p.m. Eastern on May 11.  We wrote about the auction, here.
  • Congresswoman Anna Eshoo (D-CA) wrote to Acting FCC Chairwoman Jessica Rosenworcel requesting that the agency look at the reported increase in complaints tied to the loudness of TV commercials and, if necessary, take enforcement action under the CALM Act. The letter cites press reports of thousands of consumer complaints to the FCC which never resulted in any enforcement action.  Eshoo sits on the House Energy and Commerce Committee, which has jurisdiction over the FCC, so stations should review CALM Act compliance as this may be an area of FCC review in coming months.  (Eshoo Letter)
  • We reminded broadcasters that, even outside of political windows, they must upload appropriate information to the political files folder in their FCC-hosted online public inspection file reporting on ads that run on their stations addressing controversial issues of public importance. (Broadcast Law Blog article).

Looking ahead to next week, earth stations operating in the C-Band that have been reported as no longer operational or that have not responded to communications from the C-Band Relocation Coordinator must act by April 19 and file with the FCC confirming their continuing operational status or their authorizations will be deleted from the FCC’s database and no longer protected.  While this deadline has been the subject of many trade press reports and some widely distributed memos from law firms, it actually affects only a handful of broadcasters.  Earth station operators that have filed for lump sum reimbursement or have otherwise been in contact with the Relocation Coordinator should not appear on the lists and have no April 19 filing obligation.  We posted the lists and wrote more, here, about the deadline.

Also next week, the FCC will hold its required monthly Open Meeting.  Broadcasters will be watching two agenda items in particular: the vote to adopt new rules for identification of programming that is sponsored by a foreign governmental entity and the vote to adopt a ten-application limit in the upcoming noncommercial, reserved band FM construction permit filing window.  We wrote briefly about these items, here.

Closing Out the Incentive Auction and TV Repack – FCC Reminds Broadcasters of End Dates for Submitting Invoices for Repacking Expenses

Delivered... David Oxenford | Scene | Fri 9 Apr 2021 3:49 pm

The Commission’s staff this week issued a Public Notice reminding broadcasters that  the reimbursement program for those broadcasters displaced by the repacking of the television band after the incentive auction is coming to an end.  The FCC reminded broadcasters eligible for reimbursement (including certain FM stations and LPTV licensees – see our article here ) that deadlines to submit invoices for reimbursement will start in six months.  By those deadlines, all remaining invoices for reimbursement from the TV Broadcaster Relocation Fund must be submitted to qualify for reimbursement.

While different deadlines apply to different categories of broadcasters eligible for reimbursement, the Commission “strongly encouraged” all broadcasters to submit all remaining invoices and initiate close-out procedures as early as possible.  The FCC notes in the Public Notice that payments up to the total amount of each entity’s allocation are available upon processing of documents reflecting reasonably incurred costs.  However, the FCC will not be able to make a final allocation up to the full amount of costs incurred until all or virtually all invoices for incurred costs are submitted, or at such time as the FCC can reasonably extrapolate that the total amounts available in the Relocation Fund will be sufficient to meet all of the costs that have to be covered under that program.

The final invoice filing deadlines are:

  • October 8, 2021 for Full power and Class A TV stations assigned transition completion dates in phases 1-5 of the Repack;
  • March 22, 2022 for Full power and Class A TV stations assigned transition completion dates in phases 6-10 of the Repack; and,
  • September 5, 2022 for Low Power TV and TV translator (LPTV/translator) stations, FM stations, and multichannel video programming distributors (MVPDs) who were eligible for reimbursement.

Look for more details about the process in the FCC’s Public Notice as well as in a prior Public Notice about these deadlines that was released on October 7, 2020.  These notices also remind broadcasters that submitting the invoices and receiving the reimbursement is not the end of the line – they must retain documents supporting the claimed expenses for a period ending 10 years after the date they receive their final payments from the Reimbursement Fund – just in case questions come up about the reimbursement claimed.  So if you have not made claims for reimbursement for repacking expenses, now is the time to do so.

 

With a Change at the Top at the NAB as CEO Gordon Smith Plans His Departure – What are the Regulatory Issues That are Facing Broadcasters?

Delivered... David Oxenford | Scene | Thu 8 Apr 2021 4:21 am

The broadcast trade press is full today with the news that NAB CEO Gordon Smith will be stepping back from that position at the end of the year, to be replaced by current COO (and former head of Government Relations) Curtis LeGeyt.  As many will remember, Smith took over the organization over a decade ago during a turbulent time for the industry.  At the time, TV stations faced increasing calls for other uses of the broadcast spectrum, and radio stations faced a possible performance royalty on their over-the-air broadcasts of sound recordings.  Since then, through all sorts of issues, there has been a general consensus in the industry that its leadership was in capable hands and meeting the issues as they arose.

But many issues remain for broadcasters – some of them ones that have never gone away completely.  The sound recording performance royalty for over-the-air broadcasting remains an issue, as do other music licensing issues calling for changes to the way that songwriters and composers are compensated, generally calling for higher payments or different compensation systems (see our articles here on the GMR controversy and here on the review of music industry antitrust consent decrees).  TV stations, while having gone through the incentive auction giving up significant parts of the TV broadcast spectrum, still face demands by wireless operators and others hungry for more spectrum to provide the many in-demand services necessary to meet the need for faster mobile services (see our articles here on C-Band redeployment and here on requests for a set aside of TV spectrum for unlicensed wireless users).  But competition from digital services may well be the biggest current issue facing broadcasters.

Digital services compete directly with broadcasters for both audience and advertising dollars.  The FCC’s 2017 changes in the ownership rules upheld by the Supreme Court last week (see our article here) were premised on changes brought about by digital competition.  Certainly, the abolition of the newspaper-broadcast cross-ownership restrictions was directly tied to the newspaper industry being fundamentally weakened by digital competition.  Forty-five years ago, when the prohibition was initially approved, newspapers had the largest share of the local advertising market.  As much of their readership and advertising is gone, many papers are struggling to stay alive. Thus, the newspaper has gone from a competitor whose combination with a broadcaster threatened the competitive balance in a market to one where that combination can be a lifeline to the paper.

The TV rules were also relaxed by the Court’s decision.  In light of competition from streaming services and online content, the FCC decided to allow TV owners in small and medium markets to own up to two TV stations, so that those owners can continue to provide the local services and free entertainment for which they have been known.  While there have been some calls to revisit those decisions, one can only imagine that the pandemic has accelerated trends toward more reliance on streaming services.  Moving away from the modest 2017 relaxation in local TV ownership rules in today’s environment would only set the stage for a weakened TV industry in the future.

Radio too faces these threats (see our articles here and here).  As radio audiences are eroded by streaming and podcasting, and over-the-air radios are becoming harder and harder to find in stores and even in homes, one cannot help but see the impact of digital competition on the health of the industry.  In 2019 when the FCC took comments on the radio ownership rules, economic studies showed that the big tech companies are now taking more than 50% of local advertising dollars in virtually every market in the country.  This has reduced the revenue that formerly supported local media like radio (which has always received the bulk of its advertising sales from local advertising, not national ads).  Allowing local radio stations to combine to battle the digital media giants will be another battle that will have to be faced by the NAB in the near term.

Regulation of the online platforms themselves is certainly going to be another issue on which the NAB will have to weigh in.  We recently wrote about the proposals for changes to the antitrust laws to allow broadcasters and other traditional media companies to jointly negotiate for fair compensation and other rules of the road with online service providers who distribute their content.  The NAB already has endorsed that call.  That issue will no doubt be just one of the many issues about digital regulation that will arise.  There have been some calls for creating a must-carry/retransmission consent regime for the virtual MVPDs that are now competing with traditional cable and satellite TV providers.  And there are a whole host of other proposed regulations on these digital platforms that the NAB will no doubt need to consider (see our article here for a summary of some of these issues).

These big picture items are just some of the many regulatory issues facing broadcasters.  There are always tax issues (like advertising sales taxes and ad tax deductibility) that could cause problems for broadcasters.  Other advertising issues regularly arise.  In the past few months, we have seen more and more calls for limitations on press freedoms and First Amendment protections that should trouble broadcasters.  And the FCC is always doing something that could affect broadcasters in some way, requiring industry vigilance.

The broadcaster’s regulatory plate is full.  We look forward to seeing Senator Smith at industry events during the remainder of his term to wish him well and thank him for his service.  And we extend our congratulations to Curtis LeGeyt and look forward to working with him, as he will now be charged with tackling all of the issues that face the industry in the coming years.

FCC Clarifies Upcoming Windows for Construction Permits for New Commercial and Noncommercial FM Stations (and a Few AMs Too)

Delivered... David Oxenford | Scene | Mon 5 Apr 2021 4:42 pm

At the end of last week, the FCC released several orders clarifying the rules for upcoming windows where construction permits for new FM channels will be made available to parties interested in starting new radio stations, and a few AM construction permits will also be auctioned off.  The Public Notice released on Thursday for commercial operators set the important filing dates and procedural rules for the July auction of 136 FM permits, as well as 4 AM permits in the St. Louis area that are available after an AM licensee whose license was challenged at renewal time surrendered the licenses for these AM stations (see the list of available channels here).  The FCC also issued a Public Notice setting a freeze on changes to other FM stations during the initial filing window, to stabilize the FCC’s database for parties interested in these new FM channels.  Also on Thursday, the FCC issued a draft order on the number of applications for which applicants will be able to apply in an upcoming reserved-band FM (channels below 92 on the FM band) filing window for noncommercial educational stations (NCE stations).

First, let’s look at the noncommercial draft order that is expected to be adopted at the FCC’s regular monthly Open Meeting on April 22 unless changes are made between now and then.  That order, about which we wrote here, asked whether the FCC should adopt a limit of 10 applications in the upcoming window for new noncommercial FMs or for major changes in existing stations.  While there were parties that requested that the limit be higher (particularly in rural areas where the likely demand will not be as great), and other parties expressed a belief that the limit should be lower (particularly as there will be few open channels in larger markets), the draft order suggests that the FCC will stick with the limit of 10 applications.  The FCC’s intent in adopting an application cap is to reduce processing backlogs and limit the number of situations where applicants will file applications that are mutually exclusive (i.e. where both cannot be granted without creating prohibited interference), while still allowing applicants to provide new noncommercial services throughout the country.  According to the draft order, the 10-application limit used in previous NCE windows still makes sense as a happy medium between the competing desires for expanded or narrower limits.

The dates for this NCE filing window have not yet been announced.  Presumably, the filing dates will be set once this order on application limits is finally adopted by the FCC.  If you are a nonprofit, educational entity interested in pursuing an application in this window, stay alert for the announcement of the dates for filing applications in this window.

For the commercial FM window, the FCC set the final rules for the auction, and established the other important dates leading up to the auction itself which it to start on July 27.  The most important of those dates is the window between 12:00 p.m. Eastern on April 28 through 6:00 p.m. Eastern on May 11 for the filing of “short-form” applications to participate in the auction.  If you want to be a bidder in July, you need to file a short-form application in this window.  That application will list the channel or channels in which you are interested in bidding, as well as providing information about the applicant including its owners and its other broadcast interests, and whether it has ever defaulted on obligations in past FCC auctions.  Other important dates include the following:

Auction Tutorial Available (via Internet) by April 14, 2021
Short-Form Application (FCC Form 175) Filing Window Opens April 28, 2021, 12:00 noon Eastern Time (ET)
Short-Form Application (FCC Form 175) Filing Deadline May 11, 2021, 6:00 p.m. ET
Upfront Payments (via wire transfer) June 16, 2021, 6:00 p.m. ET
Mock Auction July 23, 2021
Auction Bidding Begins July 27, 2021

Interested parties should read the Public Notice setting out the auction rules.  Especially if you have not participated in prior auctions, watching the FCC tutorial is also an important step in the preparation for the auction.

FM minor change applications will be frozen from April 28 to May 11 to stabilize the database for parties interested in filing in the window for short-form applications. As applicants in their short-form applications can reserve specific preferred transmitter sites for use on any of these new FM allotments, that freeze is important to assure the FCC that no one files a minor change application that ends up in a technical conflict with one of the auction applications.

If you are interested in starting a new radio station or adding to your existing holdings, this may be your chance no matter whether you are a commercial or noncommercial operator.  Pay attention to the rules already adopted for the commercial channels leading up to the July auction, and watch for more details if you are interested in the yet-to-be announced noncommercial filing window.

 

This Week in Broadcast Regulation – March 27, 2021 to April 2, 2021

Delivered... David Oxenford | Scene | Sun 4 Apr 2021 4:57 am

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

  • The Supreme Court this week announced its decision in Federal Communications Commission v. Prometheus Radio Project, the broadcast ownership case that was argued before the Court in January. In a unanimous opinion, the Court sided with the FCC and with broadcasters and upheld the FCC’s 2017 ownership rule changes which eliminated the newspaper-broadcast cross ownership rule, the radio-television cross ownership rule, and the television “8-voices test” allowing combinations of two TV stations in any market where at least one of the stations is not one of the top-4 ranked stations.  Also gone is the blanket prohibition on combinations involving two top-4 TV stations in a market, which is replaced with a case-by-case analysis by the FCC.  Our discussion of the opinion is here and the full opinion is available here.
  • Comment and reply comment deadlines were set for the FCC’s proposal to update its Emergency Alert System (EAS) and Wireless Emergency Alerts system (WEA) rules, including enhancing the reporting requirements for false EAS alerts, and its inquiry into whether emergency alerts can be delivered through the internet, including through streaming services. Comments on the EAS/WEA proposal are due by April 20, 2021, and reply comments are due by May 4, 2021.  Comments on the delivery of alerts by internet are due by May 14, 2021, and reply comments are due by June 14, 2021.  We wrote about the proposal and inquiry, here.  (Federal Register)
  • The FCC released more details for its upcoming Auction 109, which will auction the rights to 136 FM construction permits and 4 AM construction permits, allowing winning bidders to start new radio stations in the listed communities. The auction itself is scheduled to begin on July 27, 2021 (a list of the permits to be auction is here, with opening bid amounts).  Interested applicants must submit “short-form” applications to participate in the auction during a window that runs between 12:00 p.m. Eastern on April 28 through 6:00 p.m. Eastern on May 11.  For more details, review the Public Notice and our article here.  A freeze on FM minor change applications will be in place during the filing window.
  • The Copyright Royalty Board was given another two months to complete its work setting the royalty rates to be paid in 2021-2025 to SoundExchangefor the public performance of sound recordings by webcasters, including broadcasters who simulcast their programming on the internet.  Instead of a decision in the next two weeks (which we anticipated in our summary of April regulatory dates for broadcasters), the CRB decision can now be expected by June 14.  We wrote about the extension and the ongoing proceeding, here.  (News Release)
  • There are two items of interest to broadcasters on the agenda announced this week for the FCC’s April 22 required monthly Open Meeting. Scheduled to be voted on are:
    • New rules for standardizing and formalizing sponsorship identification requirements for broadcast stations that accept foreign government-provided programming. (Draft Report and Order)
    • Adoption of a ten-application limit per applicant in the upcoming 2021 noncommercial educational radio filing window where nonprofit educational broadcasters will be able to file for construction permits to build new noncommercial stations in the reserved band (below 92 FM). (Public Notice)
  • Two items we covered on the blog this week are also worth noting, one of which is regulatory and one of which is legislative. We wrote about the recent spate of noncommercial educational stations entering into consent decrees with the FCC over public file noncompliance tied to their license renewal applications.  On the legislative side, we wrote about a congressional effort to provide an antitrust exemption for creators of news content to get together to negotiate collectively with tech companies for payments for the use of that content on social media and other digital platforms.

 

Supreme Court Reinstates 2017 FCC Changes to Broadcast Ownership Rules Including the End to Newspaper-Broadcast Cross-Ownership Ban – But Radio Changes Yet to Come

Delivered... David Oxenford | Scene | Fri 2 Apr 2021 12:10 pm

The United States Supreme Court yesterday released its decision upholding the FCC’s 2017 changes to its ownership rules in the FCC v Prometheus Radio Project case (see our summary here).  Those rules had been put on hold in 2019 by a decision by the Third Circuit Court of Appeals which held that the FCC had to develop a more detailed record on the impact of rule changes on minority ownership before making any such changes (see our summary of that decision here).  The Supreme Court did not issue a sweeping decision evaluating the competitive landscape for the broadcast industry, nor was it expected to.  Instead, the Court decision was a narrow legal one, looking at whether the decision of the FCC was entitled to traditional judicial deference to expert administrative agencies.

The Supreme Court was reviewing the legal question of whether the FCC’s 2017 review of diversity was adequately justified.  In 2017, the FCC determined that that no substantial impact on diversity was proven by any party who filed comments in the media ownership proceeding and, to the extent that there was an impact, the benefits of making broadcast companies stronger competitors in today’s media marketplace outweighed that impact.  The Third Circuit would have had the FCC conduct a sweeping historical analysis of the impact of past instances where the ownership rules were relaxed to see the impact on minority ownership so that the FCC could judge the likely impact of new changes to the rules.  The Supreme Court found that the FCC had no obligation to conduct its own studies into that issue and, based on the evidence before the FCC, its decision to relax the rules was not an arbitrary one.  Thus, it was entitled to the deference given to decisions of expert regulatory agencies (see our article here on the deference given to administrative agency decisions).  In essence, this was a narrow decision based on principles of administrative law to which all nine Justices, liberal and conservative, could agree.

The practical result of this decision is that the newspaper-broadcast cross-ownership prohibition will end.  We have speculated before that the ban might well outlive the daily newspaper, but it appears that this will not be the case.  We certainly do not think that any future FCC would try to reinstate the cross-ownership ban given the current state of the newspaper industry.  Also abolished in 2017 and now formally ended are the radio-television cross-ownership restrictions.  The 2017 decision also did away with the requirement that, to combine two TV stations in the same market, there had to be 8 independently owned and operated stations in that market.  It also ended the strict prohibition on combining two of the top 4 TV stations in any market (substituting a case-by-case review by the FCC of proposed top 4 combinations).  These 2017 decisions were also upheld by the Court’s decision.

The decision does not directly affect the local radio ownership rules, which were left unchanged in the 2017 decision (except for a very narrow change concerning embedded markets – see our article here).  Changes to the radio rules were under consideration in a new ownership review started in late 2018, with comments filed in 2019 (see our summary here of the questions asked in that proceeding).  Consideration of any changes to the radio rules, such as the significant changes proposed by the NAB, were delayed after the Third Circuit’s decision because, under that court’s reasoning, before any such changes to the rules were made, there would need to be that detailed review of the potential impact on minority ownership.

Now that the Third Circuit’s reasoning has been rejected, that still does not mean that the FCC, particularly a Democratic-controlled FCC, will automatically look to relax the radio rule.  Instead, we think it likely that the Commission will ask for more comments on the issues raised in the 2018 proceeding.  This will likely include a request to discuss the impact of the Supreme Court decision on the Commission’s evaluation of proposed changes to its rules.  It would not be surprising for the FCC to also ask for an update of the comments filed in 2019 to reflect the state of current marketplace.  In other words, any change in the radio ownership rules will not come quickly.

The FCC may also ask for other comments on other ownership rules in light of the Court’s decision – including potentially revisiting some of the issues decided in 2017 (particularly the combinations of top 4 TV stations as, in the 2019 ownership proceeding, the FCC had asked for comments on when such combinations should be allowed).  With a new Commission that will in the not-too-distant future have a third Democratic Commissioner, the attitudes toward relaxation of the ownership rules may well be far different than they were in 2017.  In fact, Acting Chairwoman Rosenworcel issued a statement expressing her disappointment in the Court’s decision.  In contrast, Commissioner Carr, one of the Republican holdovers, stated his wholehearted approval of the Court’s decision.

So this decision, while reinstating the changes made in 2017, sets the stage for more ownership debates to come.  Watch for developments on these issues in the coming months.

 

 

Plan April Fools’ Day On-Air Stunts With Care – Remember the FCC Hoax Rule

Delivered... David Oxenford | Scene | Tue 30 Mar 2021 3:42 pm

After so much turmoil in the last year, radio stations may be inclined to blow off some steam this year with some big April Fools” Day stunt.  But because of the continuing issues with the pandemic and social tensions throughout the country, a prank that may seem funny to some could trigger concerns with others.  As we do every year about this time, we need to play our role as attorneys and ruin any fun that you may be planning by repeating our reminder that broadcasters need to be careful with any on-air pranks, jokes or other on-air bits prepared especially for the day.  While a little fun is OK, remember that the FCC does have a rule against on-air hoaxes.  Issues under this rule can arise at any time, but a broadcaster’s temptation to go over the line is probably highest on April 1.

The FCC’s rule against broadcast hoaxes, Section 73.1217, prevents stations from running any information about a “crime or catastrophe” on the air, if the broadcaster (1) knows the information to be false, (2) it is reasonably foreseeable that the broadcast of the material will cause substantial public harm and (3) public harm is in fact caused.  Public harm is defined as “direct and actual damage to property or to the health or safety of the general public, or diversion of law enforcement or other public health and safety authorities from their duties.”  If you air a program that fits within this definition and causes a public harm, you should expect to be fined by the FCC.

This rule was adopted in the early 1990s after several incidents that were well-publicized in the broadcast industry, including one case where the on-air personalities at a station falsely claimed that they had been taken hostage, and another case where a station broadcast bulletins reporting that a local trash dump had exploded like a volcano and was spewing burning trash.  In both cases, first responders were notified about the non-existent emergencies and emergency teams responded to the fake events after listeners called.  Thus, these crucial emergency personnel were temporarily not available to respond to real emergencies.  After the publicity from these incidents, the FCC adopted its prohibition against broadcast hoaxes.

And, as we’ve reminded broadcasters before, the FCC hoax rule is not the only reason to be wary about on-air pranks on April 1.  Beyond the potential for FCC fines, any station activity that could present the risk of bodily harm to a participant also raises the potential for civil liability.  In cases where people are injured because first responders had been responding to the hoaxes instead of to real emergencies, stations could have faced potential liability.   If some April Fools’ stunt by a station goes wrong, and someone is injured either because police, fire or paramedics are tied up responding to a false alarm, or if someone is hurt rushing to or from the scene of the non-existent calamity that was reported on a radio station, the victim will be looking for a deep pocket to sue – and broadcasters may become the target.  Even a case that doesn’t result in liability can be expensive to defend and subject the station to unwanted negative publicity.  So, have fun, but be careful how you do it.

This Week in Regulation for Broadcasters: March 20, 2021 to March 26, 2021

Delivered... David Oxenford and Adam Sandler | Scene | Sun 28 Mar 2021 4:35 am

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

  • We noted last week that updated fees for broadcast applications would take effect April 19. After clarification from the FCC, while the rules adopting those fees will be effective on that date, the updated fees themselves will not be assessed until later.  That will probably be sometime May, after the FCC has time to update its databases, internal procedures, and fee filing documents.  Watch for an announcement from the FCC as to the exact date that the new fees will go into effect when those updates are complete.
  • It was announced this week that new penalties for pirate radio go into effect on April 26. The FCC will have the ability to assess fines of $100,000 per day (up to a total of $2 million) against pirate radio operators.  Landlords who are found to have “willfully and knowingly” allowed pirates to broadcast from their properties can also face penalties.  (Federal Register)
  • The FCC’s new Broadcast Internet rules became effective March 25. The principal effect of the new rules was to clarify issues about the FCC fees to be paid by TV stations for ancillary and supplementary non-broadcast services using their datacasting capabilities.  We wrote about the new rules, here.  (Public Notice)
  • In connection with the FCC’s decision to not set aside a vacant TV channel in each market for use by wireless microphones and unlicensed devices, two wireless microphone companies have petitioned the FCC to reconsider that decision. Oppositions to the petition are due by April 9 and replies to the oppositions are due by April 19.  Broadcasters argued successfully that reserving a channel in every market would further shrink a TV band already made smaller by the incentive auction and could harm future broadcast innovation.  (Federal Register)
  • Visit our blog to read our monthly feature on some of the important regulatory dates and deadlines coming up in April. These include the April 1 deadline for radio stations in Texas and television stations in Indiana, Kentucky, and Tennessee to file their license renewal applications and Broadcast EEO Program Reports. In addition, TV and radio stations in Texas, Indiana, Kentucky, Tennessee, Delaware, and Pennsylvania that are part of a station employment unit with five or more full-time employees must post to their online FCC public inspection file their Annual EEO Public Inspection File Report covering their hiring and employment outreach activities for the twelve months from April 1, 2020 to March 31, 2021.  They must also add a link to that report on the homepage of their station’s website. (Broadcast Law Blog)

April Regulatory Dates for Broadcasters: License Renewal, Issues/Programs Lists, EEO, Webcasting Royalties and More

Delivered... David Oxenford | Scene | Fri 26 Mar 2021 3:37 pm

After a long winter, spring has finally arrived and has brought with it more daylight and warmer temperatures—two occurrences that do not necessarily pair well with keeping up with broadcast regulatory dates and deadlines.  Here are some of the important dates coming in April.  Be sure to consult with your FCC counsel on all other important dates applicable to your own operations.

On or before April 1, radio stations in Texas (including LPFM stations) 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).

Both radio and TV stations in the states listed above with April 1 renewal filing deadlines, as well as radio and TV stations in Delaware and Pennsylvania, if they are part of a station employment unit with 5 or more full-time employees (an employment unit is a station or a group of commonly controlled stations in the same market that share at least one employee), by April 1 must upload to their public file and post a link on their station website to their Annual EEO Public Inspection Report covering their hiring and employment outreach activities for the twelve months from April 1, 2020 to March 31, 2021.

By April 10, all full-power radio and TV stations, commercial and noncommercial, must post to their online public inspection file their Quarterly Issues/Programs Lists reporting on the issues that faced their communities and the on-air programming that they presented addressing those issues in the first quarter of 2021 (January, February, and March).  These documents are the only FCC-required record of how a broadcast station has served the public interest in its service area.  We wrote about the importance of these lists, here.

The 200 or so stations that received an EEO audit notice at the end of February must post their response to that audit to their public file by April 26.  Among other things, stations must upload their last two annual EEO public file reports and supporting documentation detailing the station employment unit’s compliance with the EEO rules.  Station employment units with fewer than five full-time employees are still required to respond but, as they are exempt from most of the EEO outreach rules, they have lesser documentation requirements.  We wrote about what is required under these audits and more generally about the broadcast EEO rules and compliance, here.

The FCC has identified a limited number of earth stations operating in the C-Band that have been reported as no longer operational or that have not responded to communications from the C-Band Relocation Coordinator.  Owners of the earth stations on these lists that are in fact still operating must by April 19 file a notice with the FCC confirming their continuing operational status or their authorizations  will be deleted from the FCC’s database and no longer protected.  The Public Notice, with more information on this deadline is available here.  The stations that have been identified as being no longer operational are listed here.  The stations that have been identified as being unresponsive to outreach efforts are listed here.  Operators of earth stations who have filed for lump sum reimbursement or who are otherwise in contact with the Relocation Coordinator should not be on these lists and, if they are in fact not on the lists, do not have any obligation on April 19.

New penalties for pirate radio go into effect on April 26.  These penalties were permitted by the PIRATE Act, signed into law in early 2020, which gave the FCC the ability to assess higher penalties against pirate radio operators and allows those penalties to be levied more quickly as the FCC does not need to first issue notice to the suspected pirate of its violation before imposing a fine.  Illegal operators of stations could face fines of $100,000 per day, up to a total of $2 million.  The law also allows penalties against landlords who are found to have “willfully and knowingly” allowed pirates to broadcast from their properties.  The Federal Register notice of the effective date of these new rules is here and we wrote more about the PIRATE Act, here.

We will also be watching for some upcoming decisions.  By April 15, we should see a decision from the Copyright Royalty Board on the new royalty rates for royalties paid to SoundExchange by broadcasters and other webcasters for the public performance of sound recordings in non-interactive audio programming streamed on the Internet.  These rates will be retroactive to January 1, 2021, so there will be a true-up process as stations and other streamers have been paying the old rates for the last few months and will continue to do so until the new rates are finalized.  The new rates will be effective through the end of 2025.  We wrote more about the upcoming decision and the pandemic-related delays which prevented a decision before the effective date for the new rates, here.  Some Supreme Court watchers think a decision could come as early as April in FCC v. Prometheus Radio Project, the case argued in January of this year reviewing the FCC’s media ownership rules, including the abolition of the newspaper-broadcast cross-ownership prohibition and the relaxation of local TV ownership rules.  The Court generally issues opinions through the end of its term in early July, so release of the opinion will likely fall between now and then.  We wrote about the case and the January oral argument, here.

Thank you for reading and, as always, stay tuned to the blog throughout the month for updates and commentary on broadcast and media issues.

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

Delivered... David Oxenford and Adam Sandler | Scene | Sun 14 Mar 2021 12:23 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.

  • The FCC’s Enforcement Bureau reminded stations of their obligation to comply with all sponsorship identification rules and to disclose information about the sponsors of all paid-for programming. It is the station licensee’s responsibility to ensure that, if it receives anything of value in exchange for the airing of any on-air content, the station must disclose that consideration to its listeners.  Stations also have an obligation to inquire of each of their program providers, including syndicators and time brokers, to assure that none have received any undisclosed consideration for the inclusion of any content in programs that they provide.  (Public Notice)
  • The FCC’s Media Bureau reminded commercial broadcasters of their obligation to upload to their online public files every “sharing” agreement for the operation of a station whether involving time brokerage agreements (TBAs), joint sales agreements (JSAs), or shared services agreements (SSAs). These agreements must be placed in the public file within 30 days of execution and remain there for as long as the agreement is in force.  (Public Notice)
  • The FCC will conduct a hearing to determine whether a Georgia AM station’s license renewal should be denied. At issue is the station’s extended periods of silence since January 2018 when the current licensee took control of the station.  In recent years, the FCC has been aggressive with stations that have been silent for extended periods during their license term, denying license renewals or imposing other sanctions (like short-term renewals).  (Hearing Designation Order)
  • As part of the COVID-19 relief package signed Thursday by President Biden, $175 million was allocated to the Corporation for Public Broadcasting for COVID-related emergency assistance for public radio and television stations, including a provision for fiscal stabilization grants.  The infusion of funds is intended to help public broadcasters respond to the coronavirus, allow them to maintain programming and services, and to preserve small and rural stations threatened by declines in non-Federal revenue, like revenue from state governments and private sources lost due to the economic downturn. (R.1319 Section 7601)
  • The FCC’s Audio Division acted on a complaint of interference by a full-power station against a new FM translator. As part of its decision, the FCC required that the complaining station and the translator operator jointly conduct on-off tests to determine if the translator is the source of the alleged interference – and to report the results of the tests to the FCC.  The decision is a good review of the FCC’s policies for resolving translator interference complaints.  (Audio Division letter).  See our articles here and here for more on the FCC’s procedures for resolving engineering complaints about new FM translators.

Looking ahead to next week, Monday, March 15 is the deadline to file for a one-time extension of not more than 180 days of the July 13 date which is important for (1) analog low-power TV and TV translator stations which must transition to digital by that date and (2) construction permits for new digital LPTV stations granted prior to the TV Incentive Auction which expire on that date.  We wrote more about this deadline, here.  Also, with March Madness starting next week, if you are planning advertising or promotions around these basketball games, you should review the articles here and here from our Broadcast Law Blog to make sure that you do not run afoul of the NCAA’s enforcement of its trademark rights in the many catchphrases used in connection with the tournaments.

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