Yesterday, the President reportedly used the word “shithole” to describe certain countries whose immigrants were seemingly less favored than others. This predictably caused outrage in many quarters – and left the electronic media, especially broadcast TV in a quandary. Do they broadcast the purportedly used term, or do they use some euphemism so that “shit,” one of those words that the FCC has from time to time found inappropriate to be used on the air, does not reach tender ears? The New York Times ran a story describing how different media outlets handled the story here. What is a broadcaster to do?

The FCC has said repeatedly that there is no blanket rule exempting news programming from its indecency rules – so theoretically, a broadcaster could face an indecency action at the FCC for the use of a proscribed word on the air, even in a newscast. However, the FCC has recognized that decisions made about the language used in newscasts are subject to a different level of First Amendment protection than language that might be included in an entertainment program. So, for instance, when NPR aired excerpts from a tape of mobster John Gotti that had been introduced during his criminal trial, and that tape contained multiple words usually not allowed on broadcast stations, the FCC and the courts found that, in the circumstances of news coverage, the use of these words was not actionable. In another case, a CBS Morning News interview with the winner of the Survivor television program, there was a similar decision from the FCC. On the morning news program, the winning contestant labeled a competitor a “bullshitter.” The FCC took no action, deferring to the licensee’s decision given that it was made in the context of a news program. So, while there is no blanket exception for indecency in news programs (witness the huge fine issued to a TV station that had not properly edited a news segment on a former adult industry movie star turned first responder, about which we wrote here), certainly the FCC has provided stations more discretion to air otherwise prohibited words in their news if necessary to provide context to their news coverage. But with FCC Chairman Pai admonishing broadcasters to “keep it clean,” and with the FCC’s indecency rules still on the books, and any complaint likely to cost time and money to defend, broadcasters may want to be cautious in their approach to these situations, even in the context of news programs.

Update: 1/12/2018;  Tonight, on All Things Considered, there was a very good discussion (available here) of NPR’s use of the term supposedly used by the President, and how the specific words were used only where they were thought to be newsworthy – and the term was used sparingly.  That story struck me as containing good advice for those stations that decide to use any such term on the air in a news report – the profane term should be used sparingly and only when it is newsworthy.  A repeated use of the profane word, even in news reporting, could be used to question the news judgment of the station.  So use judgement and discretion – there is no blank check even in news reports.

It’s a new year, and a good time to reflect on where all the Washington issues for TV broadcasters stand at the moment, especially given the rapid pace of change since the new administration took over just about a year ago. While we try on this Blog to write about many of the DC issues for broadcasters, we can’t always address everything that is happening. Every few months, my partner David O’Connor and I update a list of the legal and regulatory issues facing TV broadcasters. That list of issues is published by TVNewsCheck and the latest version, published this week, is available on their website, here. It provides a summary of the status of legal and regulatory issues ranging from the adoption of the ATSC 3.0 standard at one end of the alphabet to White Spaces and Wireless Microphones on the other – with summaries of other issues including the Incentive Auction, Ownership Rule Changes, Media Regulation Modernization, EEO compliance, Political Advertising and Sponsorship Identification, along with dozens of other topics, many with links to our more detailed discussions here on the Blog. Of course, the status of these issues changes almost daily, so watch this Blog and other trade publications for the latest Washington news of interest to broadcasters.

A Washington Post article published this weekend was titled “Is there anything you can’t say on TV anymore? It’s complicated.” And, it really is. The Post article presents a very good overview on the status of the FCC’s indecency rules. What will happen with those rules has been a matter of conjecture for several years, ever since the Supreme Court threw out the fines that the FCC had imposed for fleeting expletives that had slipped out in the Golden Globes and other awards programs, a case that also had the effect of negating that other fine for a “slip,” the notorious Janet Jackson clothing malfunction during her Super Bowl performance. Other than a well-publicized $325,000 fine on a Roanoke TV station for a short but very explicit image that slipped into the corner of a news report on a porn star turned first responder (see our article here on the Roanoke case), the FCC has been largely quiet on the indecency front since it launched a post-Supreme court proceeding to determine how they should amend their rules in light of the Court’s decision (see our summary here).

As we wrote when comments were filed in that proceeding, it drew much attention, with many commenters fearing that the FCC would back away from all indecency regulation on broadcast TV. In an election year like this one, don’t expect in the near future to see any definitive answers as to what is indecent and what is not. Neither political party wants to be tagged with being pro-smut by one side of the political spectrum, or anti-First Amendment expression by the other. But the Post article raises other very interesting questions about the difference in legal treatment between cable and broadcast programming, especially when so many viewers hooked up to some cable or satellite service don’t really understand the difference between cable network programming and that from broadcast sources.

We have written before about the fact that all cable – basic cable and premium channels – are not subject to the same indecency rules as are broadcast stations. While the government years ago tried to expand broadcast indecency regulation to cable channels, the Courts threw out such regulation, finding that cable was different than broadcast. In essence, as cable was invited into the home, and could be uninvited by cancelling a subscription, or specific channels could be blocked, the government’s interest in restricting adult programming did not overcome the free speech rights of cable systems to provide, and cable viewers to receive, that programming. As the Post article points out, to the extent that basic cable has not had an explosion of “F-bombs” or the more explicit programming that might be expected on HBO, Showtime or one of the other premium cable channels has been simply a matter of marketing and advertising. Providers have been leery of offending viewers or advertisers with more explicit programming on basic cable, and thus have not indulged in the manner that they legally could have though, as the article points out, that is changing gradually to meet audience demands for more adult programming.

Broadcast TV has no doubt itself evolved from the twin beds used by the married couple in the Dick Van Dyke show of so long ago, but the indecency rules still apply to broadcast stations, as evidenced by the big Roanoke fine. Broadcasters do have greater leniency after 10 PM to run more adult fare, but again driven by marketing and advertising concerns, most still refrain from using those four-letter words and other explicit content that you might see on cable channels. For instance, on an episode of the Stephen Colbert show that aired this week, the new book written by X Files actor David Duchovny was being discussed, and the four-letter word in the title was bleeped over a dozen times from the conversation, and the title of the book (and the lips of Colbert and Duchovny) were blurred to avoid even showing the word in any visual manner (see this article from USA Today with a link to the program).

In a recent seminar that I did for a College Broadcaster’s organization, the topic came up in connection with song lyrics. Apparently, some college radio stations are more adventuresome with their music selections in the 10 PM to 6 AM safe harbor hours. Certain genres of music where lyric choices are not G-rated are played during those hours. While they might bring complaints, the FCC should dismiss complaints for content aired during those hours (unless it were to veer from merely indecent to the far more explicit category of obscenity, which has no socially redeeming value and is always prohibited, but which the Supreme Court itself has had trouble defining in any clear, easy to apply test). Of course, stations need to be careful if they are located near a time zone barrier, as what may be permitted where it is broadcast could be a problem if it is received in an area where the time is an hour earlier.

So the Post got it right – the current state of broadcast indecency is complicated and will no doubt remain that way for the foreseeable future – and perhaps longer. But, as the Roanoke case shows, even without clear rules on all content, if a broadcaster goes too far, the FCC will crack down.

With the Super Bowl soon to kick off in Houston, the New York Times just ran a story (here) recalling that during the last Super Bowl held in Houston, the notorious “wardrobe malfunction” occurred.  The article highlighted the NFL’s concerns since then in picking halftime performers. To readers of this blog, that incident raises a whole host of other issues, as it triggered a re-examination of the FCC’s indecency rules which, 13 years after the incident, does not appear to have any end in sight. The Super Bowl incident, as well as various other instances of “fleeting expletives” that slipped out during TV awards shows, led to numerous FCC fines in the early 2000s, and a long string of court appeals thereafter. These court appeals culminated in a Supreme Court decision throwing out the FCC’s fines against broadcasters, not because the FCC did not have the authority to issue fines for indecent conduct, but instead because the FCC did not give adequate notice to stations as to what was permitted and what was prohibited as it had not adequately explain why it had decided to abandon its prior policy of just issuing admonitions to stations that had inadvertent fleeting indecency slip-ups.

After the Supreme Court’s decision almost 5 years ago, the FCC initiated a proceeding to re-examine its indecency rules which drew broad comment and much controversy (which we wrote about here and here). But no resolution to that proceeding has ever been reached (see our article here reacting to a Washington Post article asking what the current bounds of broadcast indecency are). In the last several years, but for one $325,000 fine for what the FCC believed to be an egregious violation of the rules, we have not seen much indecency enforcement out of the FCC. Will that change in the next administration? That is one question to which we don’t have the answer – as indecency is a notoriously difficult area in which to make rules. Limits are hard to define, and it is extremely sensitive politically to adopt positions relaxing any FCC enforcement. Perhaps it won’t be until the next wardrobe malfunction or the next egregious violation that we will see any further clarification of the FCC’s indecency rules.

A new President and a new Chair of the FCC have already demonstrated that change is in the air in Washington. Already we’ve seen Chairman Pai lead the FCC to abolish the requirement that broadcasters maintain letters from the public about station operations in their public file (which will take effect once the Paperwork Reduction Act analysis is finalized), revoke the Media Bureau guidance that had limited Shared Services Agreements in connection with the sales of television stations, and rescind for further consideration FCC decisions about the reporting of those with attributable interests in noncommercial broadcast stations and the admonitions given to TV stations for violations of the obligation for reporting the issues discussed in, and sponsors of, political ads (see our article here). Also on the table for consideration next week are orders that have already been released for public review on expanding the use of FM translators for AM stations and proposing rules for the roll-out of the new ATSC 3.0 standard for television. Plus, the television incentive auction moves toward its conclusion in the repacking of the television spectrum to clear space for new wireless users. Plenty of action in just over 3 weeks.

But there are many other broadcast issues that are unresolved to one degree or another – and potentially new issues ready to be discussed by the FCC this year. We usually dust off the crystal ball and make predictions about the legal issues that will impact the business of broadcasters earlier in the year, but we have waited this year to get a taste for the changes in store from the new administration. So we’ll try to look at the issues that are on the table in Washington that could affect broadcasters, and make some general assessments on the likelihood that they will be addressed this year. While we try to look ahead to identify the issues that are on the agenda of the FCC, there are always surprises as the regulators come up with issues that we did not anticipate. With this being the first year of a new administration that promises a different approach to regulation generally, what lies ahead is particularly hard to predict.

But, we’ll nevertheless give it a try – trying to guess the issues that we will likely be covering on the Blog and dealing with on behalf of our clients this year. We’ll start today with issues likely to be considered by the FCC, and we’ll write later about issues that may arise on Capitol Hill and elsewhere in the maze of government agencies and courts who deal with media issues.  For information about standard filing dates for broadcasters, see our calendar of regulatory deadlines for broadcasters published last month.

So here are some issues that are on the table at the FCC. The aftermath of the TV incentive auction may well suck up much of the attention, especially in the first half of the year, and we’ll write about that separately. But there are many other issues to consider. We’ll start below with issues affecting all stations, and then move on to TV and radio issues in separate sections below.

General Broadcast Issues

Issues likely to be considered this year that could affect both radio and television broadcasters, include:

Multiple Ownership Rules Review: Last year, the FCC addressed its long outstanding Quadrennial Review of the broadcast multiple ownership rules by declining to make any changes in its ownership rules except to effectively ban new Joint Sales Agreements in television except between two stations that can be commonly owned under the multiple ownership rules, and requiring more reporting on various forms of shared services agreements (see our articles here and here). Despite calls for reform and relaxation of the rules, no changes were made in the local TV ownership rules nor in the ban on the cross-ownership of newspapers and broadcast stations. Both of the Republican Commissioners dissented from that decision, suggesting that times had changed and the rules needed to adapt.

Now those same Republicans are in the majority at the FCC, and broadcasters are expecting things to change. Already, petitions for reconsideration of this decision have been put on public notice for comment, with comments by broadcasters and newspaper companies supporting reconsideration, and public interest groups and some cable associations (with respect to loosening of the local television ownership rules) questioning the need for changes in the rules adopted last year. Issues to be considered on reconsideration include revisions to the local ownership limits for TV (including loosening or abolishing the ownership caps for TV stations in individual markets), elimination of the newspaper-broadcast cross-ownership rule, and elimination of the FCC’s recordkeeping requirements for stations operating with Shared Services Agreements. For radio, a request is on file to change the Commission’s treatment of the ownership attribution of stations in embedded markets. We would expect FCC action this year on these proposals (any appeals of which would likely be consolidated with appeals of last year’s decision which are pending in the US Court of Appeals).

Also under consideration is whether the FCC should continue to apply “the UHF discount” in assessing compliance with national ownership caps for TV, an issue which is discussed in more detail in the Television section, below.

In short, given the past statements of the two Republican commissioners who now form the majority at the FCC, expect to see deregulation in these ownership rules. Fast consideration can be given to those issues that are already before the FCC on reconsideration. It may be a longer time before we see other changes, e.g. changes in the local radio ownership rules, But we expect change are coming.

General Regulatory Underbrush: The new Administration, and both of the Republican commissioners, have indicated a real interest in doing away with rules with little real public interest benefit that require the time and resources of broadcasters to achieve regulatory compliance. We would expect action in this area this year, with new proposals being advanced to cut down on the regulatory burden of broadcasters and other FCC regulates. Already eliminated is the requirement that broadcasters retain letters from the public about station operations – the last vestige the paper public file for many stations. Some broadcasters suggest that the FCC go even further and reduce other public file requirements. When the file was on paper and stored at the station (as it still is for many radio licensees), broadcasters were almost unanimous in stating that the file was virtually never visited – except perhaps when a competitor sought to stir up trouble, or when a local university broadcasting professor assigned a class project requiring students to visit stations and ask to view their public files. Now that these are online and hosted by the FCC, viewership statistics for these files might be very illuminating to see just how often they are visited by the public.

The main studio rules themselves are viewed by some as being an anachronism by many broadcasters. Over the years, the FCC has eliminated rules that require specific amounts of programming originated from main studios. Now that the public file has gone online, all of the theoretical reasons for mandating access to the studio has disappeared. While it may still be important that local residents be able to communicate with their local stations to report matters of public interest and to comment on station operations, do these matters really require a local main studio manned during all business hours? As much communication already takes place by electronic means, and face-to-face meetings can easily be set up by making appointments, the costs of manning a main studio could be eliminated. Especially given the security concerns noted in the proposals on the elimination of the paper public file, we would expect the FCC to review the main studio rule, and perhaps many other rules, in the near term. Many other similar areas may be ripe for review in the coming months as well as the FCC looks to abolish unnecessary regulation.

EEO Rules: One of those other areas ripe for the review that take up significant amounts of broadcaster’s time and resources is EEO. There are fundamental issues about the FCC’s EEO policies that have not been addressed in the 12 years since these rules were first adopted. Already teed up to the Commission is a proposal that would make the EEO rules comport with today’s business reality by allowing required EEO recruiting outreach to be conducted solely through online sources, a reversal of the position taken in several recent cases (see our post here). As Commissioner O’Rielly has been a big proponent of online recruiting (see our article here), we would not be surprised to see this proposal to move quickly through the FCC.

One question that has arisen since the election is whether EEO reform should go even further. The new administration has floated ideas about transferring FCC oversight of certain activities from the Commission to other agencies specialized in handling such issues. Some broadcasters have noted that the EEOC and state employment agencies are charged with overseeing all employers to assure that they do not discriminate in hiring. Is there really a need for the FCC to impose additional EEO burdens on broadcasters on top of the paramount requirement that they don’t discriminate? At the same time, many equal employment advocacy groups argue that these rules are still important, and even that they should be more stringent in certain areas. Time will tell whether the FCC takes further steps to review the regulatory burdens on broadcasters in this area, but we would expect that the issue will be raised with the FCC.

FCC Reform. While Congress is considering its own proposals for regulatory reform of the FCC, one issue that has been mentioned in many articles on the new administration has been the proposal to reduce the scope of the issues considered by the agency – leaving many issues to other agencies with more expertise. Leaving merger review to antitrust authorities, leaving sponsorship and contest issues to the FTC, and moving authority for EEO to the EEOC and state employment agencies would be some examples of where power could be devolved from the FCC. Will it? It certainly would be a process that would take more time than many of the other changes mentioned in these pages so it will be something to watch.

Political Rules: We just saw the new FCC rescind the decision of the old one – a decision which had attempted to clarify its political disclosure rules by requiring broadcasters disclose in their public files a list of all issues addressed by any political ad, and all executive officers or directors of third-party groups buying political advertising time. The decision was rescinded, but the issues remain pending. The two Republican commissioners expressed concern that they had not approved the final decision in these cases. Some clarification of this decision is likely, if only to address whether, in candidate ads, stations really need to look at each candidate ad and identify all of the specific issues addressed. Look for further action on these issues to come quickly.

While there have been calls for even more disclosure since the Supreme Court’s Citizens United case allowed for more significant political spending on broadcast commercials by corporations and other third-party organizations, that traditionally has not been an issue that the current majority political party has wanted to tackle. Another area that loomed large with the last administration was in the area of sponsorship identification. We saw the FCC impose a large sanction – $540,000 – on a radio operator for not fully identifying the sponsor of an issue ad. Plus there are complaints pending against many TV stations for not identifying the “true” sponsor of a PAC ads, where the PAC was principally funded by a single individual. We are still looking at other outstanding issues pending before the FCC from previous elections – including appeals of the decision of the FCC, issued just before the 2012 Presidential election, holding that TV stations have to give candidates equal access to certain single-issue candidates – even though such candidates are qualified only in the distant reaches of the station’s coverage area, and even when such candidates are “running” for office not with any expectation that they will be elected, but instead simply so that they can get access to television stations to run some controversial commercials not primarily intended to promote their candidacy, but instead to promote their position on some other issue. The FCC also asked about the “last in, first out” policies that some stations use to determine which ads to preempt when they have too many preemptible ads, and whether such policies, when applied to political candidates, are an issue.   While these questions are outstanding, they would not seem like high priority issues for this new administration, so we’ll have to see if they are even addressed in the coming year. Given that this is an off-year in the election calendar, perhaps it would be a good time for all sorts of political broadcasting issues to be tackled by the FCC, but we are not sure if it will be a priority.

Foreign Ownership of Broadcast Stations.  In late 2013, the FCC issued a statement clarifying its policies on the foreign ownership of broadcast licensees, making clear that what was thought to be an absolute prohibition on the ownership of more than 25% of the stock of the parent company of a licensee by non-US citizens was in fact only a guideline that could be exceeded if proposed greater foreign ownership of a station would not adversely affect the public interest.  While many thought that this would bring an influx of foreign investors to the US broadcast marketplace, the first company to file an application seeking FCC consent under this new policy was Pandora, and not because it believed that its foreign ownership exceeded 25%, but instead because, as a public company, they could not absolutely prove the citizenship of all of their shareholders using standards that the FCC adopted in the 1970s, long before many of the current ways of trading public securities came into being.  Last year, the FCC simplified rules for public companies to assess their foreign ownership, and early this year approved two transactions involving Spanish-language broadcasters allowing foreign ownership to exceed 25%, and this week approved another application allowing a Cayman Islands-based company to increase its investment in Pandora. Still pending, however, is a case where foreign owners seek to acquire 100% of a radio company, as well as other cases involving other foreign ownership combinations in excess of 25%. While the Republican Commissioners were fully supportive of the liberalization of the foreign ownership rules that have occurred thus far, we wonder if the political rhetoric about foreign trade will inhibit the FCC from taking the next step to approve 100% foreign ownership of a broadcast station. Given the number of pending cases, some indication should come relatively soon (or if they are not approved in the next few months, that alone may provide some indication there as to the new administration’s view on these issues).

Indecency: After the Supreme Court decision in June 2012, upholding the FCC’s right to regulate indecency but questioning the current procedure for doing so, the FCC’s regulation of indecency has been up in the air. In 2013, the FCC took public comments asking how it should proceed in this area, suggesting that it reserve enforcement actions for egregious violations – and asking for comments on how such complaints should be identified.  While 2015 brought a $325,000 fine for a violation of the indecency rules (the first fine of that magnitude issued by the FCC), in general, the FCC has been quiet in enforcing its indecency rules since the Supreme Court decision. As the FCC’s 2013 proposals drew many agitated comments and prompted much media attention, we question whether a clarification of these long-ambiguous rules will be in the cards in the first year of this new administration.

Public Interest Programming Reports: In a proposal released in 2011, the FCC issued a Notice of Inquiry to look at the adoption of a new form on which broadcasters would report the public interest programming that they do. This form would replace the Quarterly Issues Programs list, and the Form 355 adopted in 8 years ago for television but never implemented. The proposal was simply a Notice of Inquiry, meaning that the FCC would need to adopt a Notice of Proposed Rulemaking to move further on this proposal. We have not heard much about the status of this proposal lately.  As no Notice of Proposed Rulemaking has yet to be released, before any new rules were adopted a whole new set of comments would need to be received. Given the inclinations of the current majority of Commissioners, we would not expect any action on this matter this year (except to, perhaps, close the book on the proposal).

Television Issues

The Incentive Auction has been the dominant concern for TV broadcasters for several years now, and, barring any last minute glitches, this will be the year that it concludes. The Reverse Auction is now closed, and the Forward Auction only has to finalize the allocation of particular channels to winning bidders to close the book on the auction itself, a process that the FCC has said will conclude by the end of March. But then will come reality – the repacking of the remaining TV stations into a much smaller TV band during a 39 month transition period. This smaller band, until the next generation of digital television through ATSC 3.0 becomes a reality, will have less room for new television stations, and may result in the loss of some LPTV and TV translator operators.

While the repacking will be the center of attention for many television stations, there are many other issues before the Commission that could also have a significant impact on the operation of the remaining TV stations.  But there are perhaps not as many issues as in years past, as the FCC concluded the proceeding last year dealing with the relationship between television and MVPDs, and also seemingly decided to not pursue any expansion in the definition of an MVPD to include online video providers. So what is left for TV stations to deal with this year? The two big issues are likely to be the review of last year’s decision on the UHF discount and how it is applied for multiple ownership purposes, and implementation of ATSC 3.0. Review of local TV ownership rules and the treatment of Joint Sales Agreements are also likely on the table for FCC consideration this year. Specific issues for TV include:

UHF Discount:  Last year, the FCC voted 3 to 2 to eliminate the UHF Discount which counts a UHF station as reaching only half of a TV market’s population in assessing a television company’s compliance with the current rules that limit any company to at most stations reaching 39% of the US TV households.  The FCC had concluded that the digital conversion made the discount counterproductive as UHF stations have better coverage in a digital world, instead of suffering from the coverage issues that they faced in analog TV at the time that the rule was adopted.  The Republican Commissioners, who are now in the majority at the FCC, have suggested that the rule should not have been repealed without Congressional authorization, and that any review needs to be tied into a review of the local TV ownership rules. As the local TV rules are now themselves subject to review (as described below), and a petition for reconsideration of the abolition of the UHF discount has already been published in the Federal Register, received comments pursuant to that notice and is now ripe for action, we would look for some reexamination of last year’s decision at some point relatively early this year.

Local TV Ownership Rules: Last year’s FCC ownership decision did not seriously review the local TV ownership rules. Many TV station owners argue that these rules are outdated.  In a multichannel universe, most households have access to dozens, sometime hundreds of nationwide or worldwide networks; many of the most watched channels are commonly owned with no harm to the public. Yet the FCC’s local television ownership rules prohibit the combination of two local stations in all but the largest TV markets (those that will have 8 independent broadcast television owners after the combination) and prohibit the combination of two top-4 stations in any market. As then-Commissioner (now Chairman) Pai once noted, the FCC will allow Charter and Time Warner Cable to combine, but won’t let two TV stations in a small market merge. Moreover, especially in small markets, where the operational costs of running a TV station with local programming is not much different than the costs in large markets but the potential economic return is vastly smaller, having multiple commonly owned stations may be the only way to insure that a market has multiple over-the-air programming options.   While a year ago, reform of these rules may have seemed far-fetched, today they seem very possible.

ATSC 3.0: A year ago, ATSC 3.0 was not even on our list of issues for the coming year. Today, it looks like it could become a reality this year. At next week’s FCC meeting, we are going to see a decision starting the formal rulemaking to adopt technical standards for the voluntary new transmission standard, and looking to set the rules of the road for that conversion. Given the promises of the new standard’s ability to integrate into today’s online digital media world while transmitting multiple programming steams and all sorts of IP-compatible data, many broadcasters see their economic future tied up in the new standard. Given the need to re-engineer so many TV stations as part of the incentive auction repack, this seems to be the time to adopt and implement the new standard – so watch for quick action on the rulemaking that is being put forward by the FCC.

Accessibility: In the last few years, many new rules on making video programming accessible to hearing or visually impaired viewers have come into effect. These include rules mandating the quality of closed captioning, the captioning of online video clips, and rules about making available audio versions on TV stations’ SAP channels of emergency warnings carried in crawls and otherwise visually presented during entertainment programming. The latter issue is still not totally resolved, as there is no technical methodology for easily converting visual images (such as weather maps) into speech for broadcast on the SAP channel (see our post here). Also pending is the resolution of remaining issues relating to the repurposing of captioned broadcast video onto the Internet.  The FCC left open certain issues about the new captioning requirements for video clips – including whether to require that they be captioned when used on third-party websites, and how to deal with “mash-ups” of video clips taken from TV programs with video that comes from other sources.  These issues have not been ones of partisan contention in the past, but whether they will be a high priority for the new Commission remains to be seen.

Radio Issues

Many of the issues for radio are occurring outside the jurisdiction of the FCC, as they deal with copyright issues – especially in the area of music licensing. These issues are considered in Congress and in the Courts, and we will discuss them in a separate article. Other issues affecting radio – like EEO and other possible FCC deregulatory actions, were discussed above in the section on issues affecting all stations though, in many cases, they may affect radio operators more directly than other services. But there are some other radio-specific issues that the FCC will likely consider this year. These include:

AM Radio:  Late in 2015, the FCC finally took its first steps to help revitalize AM radio.  The first effort to assist AM owners began last year, when the window for filing to move FM translators as much as 250 miles to serve an AM station opened. Hundreds of FM translators around the country were moved to serve AM stations. At the FCC meeting next week, we expect the FCC to adopt the order that it put out for public review last month, allowing greater latitude for the location of FM translators for AM stations.

But issues still remain. The FCC has promised to open another window this year, where AM stations that could not buy translators during last year’s windows can file for new translators to rebroadcast their AMs, if there are frequencies available in their community. Other fundamental AM issues, like lessening protections of clear channel stations or, more dramatically, moving to a fully digitized transmission system, are contentious and a resolution seems far off. Chairman Pai has been a big proponent of the rescue of AM, so look for some attention to these issues in the coming year as the Chairman spearheads efforts to find solutions to these difficult issues.

FM Translator Issues: Believe it or not there are still FM translator applications left from the 2003 FM translator window that have not been disposed of. While most of the mutually exclusive applications settled, and thousands of new FM translators from that window were granted in 2013 (see our articles here and here), there are still applications that are mutually exclusive that remain to be processed.  Look for an auction for these final applications to be announced after the incentive auction has been completed.

Local Radio Ownership Rules: While review of the local TV ownership rules is an issue pending before the FCC right now in petitions for reconsideration of the FCC decision on those rules from last year, review of the radio rules (except for the limited issue of how these rules are applied in embedded markets) is not directly on the table. Yet, more and more, broadcasters are talking about whether those rules need to be examined. The issue of whether the sub-caps still make sense, limiting the number of AM or FM stations that one owner can hold in a given market, will be an issue that will be debated more and more in the coming year. While a broadcaster can own up to 8 stations in the biggest markets (those with at least 45 radio signals), they are limited to owning only 5 FM stations. As the audio marketplace is no longer one where radio dominates as it once did in the past, and as the competition only seems likely to increase as the connected car becomes more common, it seems like it is time for these rules to be re-examined.

Other Technical Rules: While not specifically teed up for consideration, we would not be surprised if the FCC looks at other technical rules that have posed issues for radio broadcasters in the past. One area of concern has been the rural radio rules that have restricted the movement of stations to areas where they can serve the most people. Could this policy be up for review? Are there other processing issues that have slowed the provision of service and the highest and best uses of radio facilities? Broadcasters have an FCC that seems much more receptive to business concerns. Thus, we would expect that there will be more proposals that are brought forward in the coming months to lessen the regulatory burden on broadcasters, and to create more opportunities for them to thrive in the coming years.

Conclusion

These are but some of the legal and regulatory issues that will be facing broadcasters in the upcoming year. There are many other issues that can pop up at any time – especially in the unpredictable atmosphere of a new administration. And there are many issues in Congress or at other agencies that could affect broadcasters.  We will write about those issues in other articles in the near future.  But, just from the list here, you can see that there is plenty of change on the regulatory horizon for broadcasters likely for 2017 – probably more than we’ve seen in decades.  So pay attention as the issues arise – as, in the coming months, there may be many business opportunities that arise from regulatory changes. Be ready to take advantage of them!

Several articles published at the end of last week suggested that the FCC, based on a statement by FCC Chairman Pai on a radio show, would be investigating comments made by Stephen Colbert on a program last week. The comments, suggesting a sexual act between President Trump and Vladimir Putin, has raised much controversy and apparently resulted in the filing of a number of complaints at the FCC. However, just because the statement was controversial does not mean that the FCC has any jurisdiction to do anything about it consistent with its precedent and constitutional protections which governs speech generally. The Chairman’s statement was no doubt nothing more than an acknowledgement that the FCC would deal with complaints that were filed, rather than any implication that there was likely to be any penalty for the statements of the TV host. Why?

The Colbert Show starts at 11:30 PM on the east and west coasts. Even in the rest of the country where it runs earlier, it begins at 10:30. Under the FCC’s policy on indecency, programs airing after 10 PM and before 6 AM are considered to be in the “safe harbor” where children are unlikely to be in the audience, so indecent programming – programming that “depicts or describes sexual or excretory organs or activities in terms patently offensive as measured by contemporary community standards for the broadcast medium” – is not prohibited. In other words, during these overnight hours, stations can run material that is sexually oriented and which would normally not be acceptable on television – allowing more adult oriented content to run even on broadcast stations. As the Colbert program ran during this safe harbor, the FCC’s indecency rules would not apply. But what about obscenity?

Theoretically, a program that runs during the safe harbor could still be illegal if it is obscene. But for a program to be obscene, it needs to be really bad. Even the Supreme Court has had difficulty finding content to be obscene, looking at factors including whether it is designed to appeal to the prurient interests of the viewer, whether it offends contemporary community standards and whether it is lacking in social significance. This is a very high standard as, under our First Amendment, we only want to ban speech (and that is the purpose of defining something as obscene – it says that it can be banned) that is not only offensive but also serves no social purpose. A television program like that in question here is never going to be found obscene – the words describing the specific sexual act itself was bleeped out of the broadcast, the description was not designed to appeal to prurient interests (sexual interests – it was not delivered in such an explicit way as to appeal solely to sexual interest), and it did have social significance – it was delivered in a politically motivated statement. Under these circumstances, the extremely rigorous obscenity test simply would not be met.

So if the speech is not obscene, and can’t be prosecuted for being indecent because of the hour at which it ran, what does that leave? It seems to me that it leaves a bunch of headlines about an “investigation” destined to go nowhere – much ado about nothing.

When press reports first started to emerge that the FCC was investigating for possible indecency violations a Stephen Colbert bit from his Late Show television program suggesting that the President had engaged in certain sex acts with the Russian President, we wrote that the controversy was much ado about nothing (see our article here). We suggested that the rumors of the FCC “investigation” was simply the FCC doing what it has to do to process any complaint – just looking to see if there were any grounds to indicate that the programming in question filed violated any FCC rules. Given that the actual language used by Mr. Colbert was “bleeped” out of his show, that the show run during the FCC safe-harbor (10 PM – 6 AM) during which indecent content can be run, and as the political nature of the comment (and the way in which it was presented) made it unlikely to be seen as obscene, we did not see that the FCC could take any action in this case. According to press reports, the FCC has concluded the same thing and terminated their review of this case. This does not mean that the FCC will not take action against a broadcaster who runs indecent content if an appropriate case for action is presented (like the $325,000 fine imposed on a TV station for graphic sexual images in a 6 PM newscast, see our story here). It just means that the Colbert case simply did not present that appropriate case for FCC action.

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

• The FCC released the results of the August 11 Nationwide EAS Test, finding that, compared to the 2019 test (the 2020 test was cancelled due to the pandemic), this year’s test message reached more EAS participants (89.3% in 2021 vs. 82.5% in 2019) and it was retransmitted successfully more than it was two years ago (87.1% in 2021 vs. 79.8% in 2019).  However, the FCC received reports on the test from only 75.3% of participants, down from 78.6% in 2019.  79.9% of radio broadcasters filed their reports, and only 67.9% of TV stations – with LPFM and LPTV stations representing many of the non-reporting stations.  The FCC noted that ensuring, for future tests, increased compliance with the mandatory reporting requirement will be a priority. (Nationwide EAS Test Report).
• The date for filing comments on the FCC’s proposal to change the rules for proofing of FM directional antennas was pushed back. Comments are now due by January 20, with reply comments due by February 4.  This proceeding seeks comments on proposals to allow the patterns for directional FM antennas to be verified by computer modeling as opposed to real-world testing.  (Public Notice)
• Senators Roy Blunt and Ron Wyden introduced the Low Power Protection Act, a bill to open a new window during which LPTV stations that originate at least 3 hours of local programming could qualify for Class A status, meaning that they would be protected from being bumped off their channels by future applications by full-power stations (and these stations would have to be protected if the spectrum allocated to TV was further reduced at some future time, as it was as a result of the Incentive Auction). The bill, as proposed, would only allow new Class A stations in DMAs with 95,000 television households or fewer – approximately DMA 175 and below.  (Press Release)   The bill has not been introduced in the House of Representatives, and will need substantial Congressional consideration before becoming law.
• The licensee of several Kansas radio stations entered into a consent decree with the Media Bureau because a number of its stations were silent for long periods of time without receiving special temporary authority from the FCC. The FCC requires Commission notification if a station is silent for 10 days, and an STA must be requested when a station is silent for 30 days.  The licensee will pay a $7000 fine and the stations will receive a 1-year license renewal term, instead of the typical 8-year term.  (Order and Consent Decree).
  • In another decision released last week, the FCC proposed to fine another broadcaster $17,500 for not timely requesting an STA when its AM and associated FM translator went silent, plus its failure to amend its pending license renewal application to report that the stations were silent for several months while the renewal was pending – even though the renewal specifically asks if the station whose renewal is sought is silent. The licensee had also failed to complete and timely upload multiple Quarterly Issues Programs lists to its public file (Order and Notice of Apparent Liability)
• The Media Bureau entered into a consent decree with a radio licensee requiring a $5000 fine because of several violations, including the licensee’s failure to maintain station logs, its failure to upload (or timely upload) certain documents to its online public file, and because its FM translator stayed on the air for extensive periods of time when its primary AM station was not operating, a violation of the rules that prohibit translators from operating when their primary stations are not operating during their authorized hours. This is a reminder to pay close attention to your operations and be sure that you are complying with all applicable FCC rules.  (Order and Consent Decree)
• The FCC proposed to delete 7 vacant FM channels that were included in the last two FM auctions but received no bids in either auction. The channels proposed for deletion are ones in Snowflake, AZ; Millerton, OK; Powers, OR; Mount Enterprise, TX; Paint Rock, TX; Hardwick, VT; and Meeteetse, WY.  Comments on the proposed deletions are due February 14, with reply comments due March 1.  If no party expresses an interest in operating a station on these channels, or files a counterproposal to move the channels elsewhere, they will be deleted.  (Notice of Proposed Rulemaking)
• The FCC cancelled Auction 111 after the only mutually exclusive applicants entered into a settlement agreement. The auction was to be a closed auction of LPTV and TV translator construction permits for applicants who submitted mutually exclusive applications either during a 2009 filing window for new LPTV stations or in a 2018 window for stations displaced by the Incentive Auction.  With no mutually exclusive applications to be resolved by competitive bidding, there is no longer a need for an auction.  (Public Notice)
• The FCC announced its annual calculation of the increase to account for inflation in fines whose amounts are set by the Communications Act. The announced increases include fines for broadcast indecency.  For 2022, indecency fines can be as high as $445,445 for each violation or for each day of a continuing violation, except that the amount assessed for any continuing violation shall not exceed a total of $4,111,796. (FCC Order)

For a summary of the some of the important regulatory dates in January and early February, review our monthly feature on our Blog that looks at dates and deadlines for month ahead.  (Broadcast Law Blog)

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

• In a Public Notice released late on Friday, the FCC’s Media Bureau extended the deadline for the upload of Quarterly Issues Programs lists to the online public inspection file of full-power broadcast stations.  These reports were due to be uploaded by January 10 but, as the FCC’s online public inspection file system has been experiencing technical difficulties in the new year, the Media Bureau extended the deadline to January 31, 2023.
• The President renominated Gig Sohn for the vacant Commissioner’s seat on the FCC (nomination contained in the list, here).  She was initially nominated in 2021, but her nomination was not approved by the Senate before the last session of Congress ended at the end December, and she thus had to be renominated.  It is unclear when the Senate will consider the nomination and whether the steps taken to consider her nomination in the prior Congress (including public hearings) will need to be repeated.
  • On our Broadcast Law Blog, we posted an article listing many of the issues that will be facing the FCC in the new year, and some of the issues that may be impacted by when the new Commissioner is approved by the Senate. 
• The Federal Trade Commission issued a Notice of Proposed Rulemaking which would ban non-compete agreements in all employment contracts (except where related to the sale of a business)(FTC “Fact Sheet” here).  The proposed rule would apply to any agreement that has the same effect as a noncompete agreement, including broad nondisclosure agreements that would preclude a worker from working in their field at a new company, or contract clauses that require an employee to repay a company for training costs if the employee leaves the company.  The proposed rules would also require that existing contracts be amended to exclude any noncompete language, and workers would have to be informed that any noncompete language is no longer enforceable.  The proposed rule would apply not just to employees of a company, but also to independent contractors, interns, and others performing work for a company.  Comments will be due 60 days after the publication of the Notice of Proposed Rulemaking in the Federal Register. 
• The FCC’s Public Safety and Homeland Security Bureau issued a Public Notice announcing that the EAS Test Reporting System (ETRS) is now open for the filing of ETRS Form One, with a deadline for submission of February 28, 2023.  ETRS is used to report on the results of nationwide EAS tests which assess the ability of the President to get an alert out to the full country.  ETRS Form One requests basic information about contact persons at a station, the model of EAS equipment used, and monitoring assignments under the legacy EAS system.  The Bureau explains that it is important that EAS Participants confirm that the information they enter is accurate and that they correct any past filing errors.  There was no nationwide EAS test during 2022 and, while FEMA has not announced a test date for 2023, one is expected.  See the article on our Broadcast Law Blog, here, for more information. 
• President Biden signed the Low Power Protection Act, which directs the FCC to start a proceeding to give LPTV stations Class A status if they have provided 3 hours of local programming per week in the 90 days prior to the enactment of the legislation.  Class A status means that the stations are protected against interference from any new full-power TV station or other spectrum user.  To qualify, the LPTV station must be in a DMA with not more than 95,000 households.  That is approximately DMA 175 and smaller. 
• The FCC’s adjustment of the maximum amount of FCC fines was published in the Federal Register this week, setting the effective date of these increase as January 15, 2023.  The FCC’s Order adjusting these penalties noted that, for most violations, after the effective date of these increases, a fine shall not exceed $59,316 for each violation or each day of a continuing violation, with a maximum total fine for any continuing violation not to exceed $593,170.  For fines involving indecency, the fines can be up to $479,945 for each violation or each day of a continuing violation, with a maximum for a continuing violation of $4,430,255 for any single act.  For violations of the rules prohibiting pirate radio operations, the fine can be as much as $115,802 per day not to exceed a total of $2,316,034. 
• The Video Division of the Media Bureau issued a list of LPTV and TV translator stations in Alaska, Hawaii, Oregon, and Washington State that did not timely file license renewal applications by the October 3, 2022 deadline.  The licenses for these stations (and their operating authority) will expire on February 1, 2023 if no application is on file by that date. 

Expecting quiet weeks, we took the holidays off from providing our weekly summary of regulatory actions of interest to broadcasters.  But, during that period, there actually were many regulatory developments.  Here are some of those developments, with links to where you can go to find more information as to how these actions may affect your operations. 

• The biggest news from the holiday period was that FCC finally released a Report and Order concluding its long-delayed 2018 Quadrennial Review of the broadcast ownership rules.  The FCC had until December 27 to conclude the overdue 2018 Review in order to comply with an order of the U.S. Court of Appeals for the District of Columbia (see our article for more on the Court order).  The FCC released its decision the day before the deadline, making no significant changes to its local radio ownership rule, its rules that generally prohibit ownership combinations of two of the Top 4 ranked TV stations in any market without a special public interest showing (and refusing to offer any specific circumstances in which Top 4 waivers would be routinely granted), or its rule that prohibits one party from having interests in two of the Top 4 TV networks.  The FCC generally found that, despite increased competition from digital media, broadcasting remained a unique market where any further consolidation of ownership should be prohibited.  The only change the FCC did make was to extend a prohibition on one network-affiliated Top 4 station acquiring the top-four network programming of another station in the market and moving that programming to a full-power station commonly owned by the acquiring party.  The FCC’s order extends that prohibition to situations where the acquiring party would move the acquired network programming to a commonly controlled LPTV or Class A TV station, or to a multicast stream of one of its stations.  For more on the FCC’s decision, see our Broadcast Law Blog article here.
• The FCC’s December 29 report listing the items on circulation (those orders or rulemaking proposals that have been drafted and are currently circulating among the Commissioners for review and a vote) included an Order and Further Notice of Proposed Rulemaking in the proceeding proposing to reinstate the FCC’s Form 395-B.  That form was once filed yearly by each broadcaster and detailed the gender, race, ethnicity, and job function of all station employees.  The filing requirement was suspended over 20 years ago when a court suggested that its use was discriminatory because the FCC was penalizing stations that did not meet specific racial or gender quotas in their workforce (see our article here for more on the proposal to bring back the Form 395-B).  In December, Commissioner Starks and members of Congress called (see here, here, and here) for the Form 395-B’s reinstatement – so apparently there is now an order seeking to do just that (though the draft is not available for public review).  We will be watching for more information as it becomes available.
• The Copyright Royalty Board published in the Federal Register a notice asking for Petitions to Participate in the next proceeding to determine the royalties to be paid to SoundExchange for the performance of sound recordings in the period 2026-2030.  These royalties are paid by webcasters who provide a non-interactive music service, which includes broadcasters who stream their signals on the internet or through mobile apps.  Parties interested in participating in the proceeding to determine the royalties for 2026-2030 must file a petition with the CRB by February 6, 2024, with a $150 filing fee.  Watch our Broadcast Law Blog on Monday, January 8, for an article with more information about this proceeding.
• The FCC also acted in a number of other rulemaking proceedings, or took actions to make routine updates to rules already in place, including the following:
  •  FCC released a Notice of Proposed Rulemaking, in which it proposes to require multichannel video programming distributors (MVPDs) (cable and satellite television providers) to notify the FCC when a blackout of a television station results from a breakdown in retransmission consent negotiations between the station and the MVPD.  The FCC proposes to require MVPDs to notify the FCC within 48 hours of the commencement of any blackout lasting more than 24 hours, and to then notify the FCC of the resolution of any blackout within 48 hours of resumption of carriage of the affected stations. 
  • The FCC released a draft Notice of Proposed Rulemaking (NPRM) in which it proposes to require TV and radio stations to file reports with the FCC regarding station outages and their operating status during disasters.  Cable and telephone providers must report on network outages in the FCC’s Network Outage Reporting System (NORS) database and on their operational status during disasters in the FCC’s Disaster Information Reporting System (DIRS) database (reporting in the DIRS database is currently optional for broadcasters).  In the NPRM, the FCC proposes to mandate NORS and DIRS reporting requirements for broadcasters in an unspecified “simplified” manner – the nature and scope of which the FCC will formulate based on comments submitted in the proceeding.  The FCC contends that expanding the reporting requirement to broadcasters is essential given their role in the national Emergency Alert Service and the continued reliance on the broadcast service by underserved and non-English-speaking communities for emergency and weather-related information.  The FCC is slated to vote on the draft NPRM at its January 25th regular monthly open meeting.
  • The FCC announced that comments responding to the FCC’s Notice of Proposed Rulemaking (NPRM) – which proposes to eliminate video service “junk fee” practices by cable and direct broadcast satellite (DBS) service providers – will be due February 5, 2024, and reply comments will be due March 5, 2024.  As we discussed here and here, the NPRM proposes customer service protections that include prohibiting cable operators and DBS providers from imposing a fee for the early termination by a subscriber of their service contract.
  • The FCC’s Enforcement Bureau released an Order adjusting for inflation the maximum penalties that can be assessed for FCC rule violations – which will become effective upon publication in the Federal Register.  After the effective date, the fine for most violations will not exceed $61,238 for each violation or each day of a continuing violation, with a maximum total fine for any continuing violation not to exceed $612,395.  Fines involving indecency will now be up to $495,500 for each violation or each day of a continuing violation, with a maximum of $4,573,840 for any single act.  Fines for violations of the rules prohibiting pirate radio operations will now be as much as $119,555 per day not to exceed a total of $2,391,097.  We’ll let you know when the new fines take effect. 
  • The FCC’s Media Bureau announced that all rules and filing requirements for FM6 LPTV stations adopted by the FCC in July 2023 were effective as of December 28, 2023, and that all FM6 LPTV stations must notify the Bureau by January 29, 2024 of their intent to continue providing FM radio service and to confirm their operational parameters.  As we previously discussed here and here, in July 2023, the FCC permitted a limited group of fourteen LPTV Stations operating on TV channel 6 (which is adjacent to the FM band) to continue providing analog FM service on 87.7 MHz – even though these stations have converted to digital operations for their video programming. 
• The FCC’s Media Bureau granted a petition for declaratory ruling filed by a New York FM station’s licensee to exceed the 25% limit on foreign investment established by Section 310(b)(4) of the Communications Act.  As we wrote here, the petition asked for approval of a transfer of 100% control of the station’s licensee to a Delaware corporation whose sole shareholder is a Canadian corporation, which is in turn owned by two Canadian citizens and their respective family trusts.  The Bureau concluded that it was in the public interest to grant the declaratory ruling – noting that no oppositions were filed against the petition and that all Executive Branch agencies involved in broadcast station foreign ownership reviews had no objections to the proposed transaction.  We wrote more about the FCC’s process of approving foreign ownership of U.S. broadcast stations on our blog here and here.
• The FCC’s Media Bureau took several actions dealing with stations that had a history of long periods where they were silent, including:
  • The Bureau denied a petition for reconsideration of its earlier decision finding that a Florida FM station’s license expired as a matter of law under Section 312(g) of the Communications Act because it had either been silent or was operating from an unauthorized site for over one year.  Section 312(g) states that the license of a broadcast station that has not operated as authorized for a full year is automatically cancelled, unless the FCC makes an affirmative determination that there are public interest factors warranting the preservation of the license.  In this case, the Bureau previously concluded that the station failed to provide documentation refuting the Bureau’s conclusion from its investigation that the station was not operating from an authorized site for over one year.  The station also failed to provide any evidence that its unauthorized operations were due to factors beyond its control – which could have enabled the Bureau to exercise its discretion in reinstating its license. 
  • The Bureau granted the renewal application of an Oklahoma AM Station for a one-year license term because the station had been silent for more than four months during the station’s previous one-year license term (a short license term that was imposed, as we discussed here, because the station had been repeatedly silent in the prior license term).  As the station continues to operate at reduced power, the Bureau warned the licensee that, if it did not return to full power during this new one-year renewal period, the FCC could take further actions including potentially holding a hearing as to whether the license should again be renewed.
  • The Bureau also granted a California FM station a one-year license renewal because the station: (1) was silent for over half of its preceding license term; (2) failed to timely upload issues/programs lists to its public inspection file for several quarters during the preceding license term; and (3) failed to provide sufficient information in several of its issues/program lists demonstrating that the station provided public service programming to its community of license.  The Bureau also conditioned the renewal grant on the station coming into compliance with its outstanding public inspection file obligations by March 1, 2024. The Bureau also noted that, for any quarter where the station was silent and thus broadcast no issue-responsive programming, it should have noted that fact in its online public inspection file to explain the absence of a quarterly issues programs list. 
• The FCC’s Media Bureau also had a flurry of cases dealing with fines on stations for improper operations.  These include the following:
  • The Bureau proposed a $3,500 fine on a Texas LPTV station for operating for almost seven months after it completed construction of new facilities without filing a license application notifying the FCC of the completion of construction authorized by its construction permit. 
  • The Bureau proposed a $9,500 fine against another Texas LPTV station that failed to file its license application after it completed construction of new facilities and did not do so until four months after its construction permit had expired, and then it operated at reduced power for almost eight months without authorization. 
  • The Bureau imposed a $12,500 fine on a Louisiana FM translator station for: (1) failing to obtain FCC consent to change antennas; (2) constructing and operating with an unauthorized antenna for approximately two months; and (3) inaccurately certifying that the station was constructed as authorized. 
  • In another case involving unauthorized operations and false construction certifications, the FCC’s Media Bureau cancelled a $20,000 fine proposed by the Bureau against the licensee of an Olympia, Washington FM translator station.  As we discussed here, the fine had been imposed because the station was not rebroadcasting its authorized primary station and because the licensee falsely certified in the license application that the translator was constructed and operating as authorized.  The Bureau cancelled the fine because the licensee could not pay it due to financial hardship as the fine was more than 20 times the station’s annual income.  Instead, the Bureau admonished the licensee and warned that future violations would result in financial penalties regardless of the licensee’s financial status. 
• The FCC was also busy with orders dealing with fines and penalties for other violations of its rules, including:
  • The FCC’s Media Bureau entered into a Consent Decree with a group of Illinois radio stations requiring an $8,000 penalty to resolve issues arising from the Bureau’s investigation involving unauthorized transfers of control of the stations’ licensee.  The Bureau found that the stations’ licensee failed to seek FCC consent prior to the transfer of voting stock of the licensee’s sole shareholder to a trust – of which the sole shareholder was also the trustee; and also failed to get FCC consent after the shareholder’s subsequent resignation as trustee.  This is one of several cases that show that changes in the trustee, the death of a controlling owner, or even changes in estate planning by station owners can trigger FCC requirements for approval of changes in control of an FCC licensee, and the penalties that can result when such approvals are not obtained (see, for instance, the cases we noted here, here, here, and here). 
  • The FCC’s Enforcement Bureau issued four Notices of Illegal Pirate Radio Broadcasting to landowners Lake Forest, California, Sweet Home, Oregon, and Brooklyn, New York for apparently allowing illegal broadcasting from their properties.  The Bureau warned each landowner that the FCC may issue fines of up to $2,316,034 under the PIRATE Radio Act if the FCC determines that the landowner continues to permit any individual or entity to engage in pirate radio broadcasting from their property.  The notices are available here, here, here, and here.
  • The FCC’s Media Bureau proposed a $9,000 fine against a California TV station for failing to timely upload its quarterly issues/programs lists to its online public inspection file.  The Bureau alleged that the station had failed to timely upload copies of these lists for a total of sixteen quarters, i.e., five lists more than one year late, six lists between one month and one year late, and five lists between one day and one month late.
• The FCC’s Media Bureau also dealt with FM allocations issues, including:
  • It issued a Report and Order allocating FM Channel 225A at Lac du Flambeau, Wisconsin, as a Tribal Allotment and a first local Tribal-owned service to the community.  As we previously discussed here, the Tribal Allotment was proposed by a local tribal-affiliated entity pursuant to the FCC’s allotment priority established under Section 307(b) of the Communications Act favoring the provision of radio service to tribal lands by stations owned by tribal governments.  The Bureau will release a public notice in the future announcing when eligible applicants (tribal governments and affiliated entities) may file a construction permit application for the new Tribal Allotment. 
  • The Bureau dismissed a Wyoming FM station’s application to change its community of license to Horse Creek, Wyoming.  The Bureau determined that Horse Creek was not a community deserving of an FM allotment as it is not incorporated or listed in the U.S. Census; the applicant did not provide any reliable evidence from residents of the locality demonstrating that they consider themselves to be a cohesive community; and it did not otherwise provide any other evidence that Horse Creek was a real community.  Finding that some of the information from websites submitted by the applicant was misleading or inaccurate, in a warning to future applicants seeking community of license changes, the Bureau said that, if the applicant relies on online sources for information about their proposed community, they must ensure that the online information is accurate, and they must provide additional information to corroborate the online sources.  In addition, the Bureau noted that applicants must use 2020 U.S. Census data to support their applications.
• The FCC’s Public Safety and Homeland Security Bureau granted a request filed by a group of Illinois radio stations for an extension of time to comply with the FCC’s requirement that broadcasters prioritize the Internet-based Common Alerting Protocol (CAP) version of an Emergency Alert Service (EAS) message when a station receives both a legacy version and a CAP-formatted version of the same alert.  As we discussed here and here, all EAS Participants should have complied with the CAP prioritization requirement by December 12, 2023 – except for EAS Participants using Sage manufactured EAS equipment, which have until March 11, 2024 to comply; or those who otherwise obtained a waiver (see, for example, waivers granted here, here, and here).  The Illinois stations claimed that they could not comply with the December 12 deadline because their vendor had not fulfilled their new EAS equipment order – despite timely ordering the equipment.  The Bureau cited the stations’ diligence in seeking EAS equipment upgrades and granted the stations until March 11, 2024, to comply with the new EAS rules.
• The FCC’s Media Bureau designated as mutually exclusive (both could not be granted consistent with FCC’s technical rules preventing interference) two minor modification applications filed on the same day by LPFM stations licensed to Tulsa and Broken Arrow, Oklahoma.  The applications both proposed to move to recently vacated Channel 211.  FCC policy is that minor changes are granted on a first-come, first-serve basis, but no preference is given if two applications are filed on the same day. Thus, the Bureau rejected the Tulsa station’s contention that its earlier filed application should receive first-in-time priority – finding that, as both applications were filed on the same day, no priority is given to an applicant that filed earlier in the day.  The Bureau also rejected the Broken Bow applicant’s assertion that the Tulsa applicant had not shown reasonable assurance of its transmitter site availability, which the Bureau said was not necessary as that applicant is proposing to continue to use its existing licensed site.  The Bureau directed the applicants to find an engineering solution to their mutual exclusivity. 
• The FCC’s Space Bureau announced that it will host an open house on January 10 to discuss earth station licensing for new applicants and entrants.  The event will include an overview of the FCC’s earth station licensing process and timelines, and a review of frequently asked questions as well as answers to pre-submitted questions.  Interested parties may register and submit questions in advance by sending them to satinfo@fcc.gov.  Additional registration information for the event is available here.
• The FTC announced that it will hold a virtual summit on January 25 to discuss key developments in artificial intelligence (AI).  The summit will include a discussion among stakeholders regarding the state of technology, emerging market trends, and real-world impacts of AI.  See here for the summit’s agenda and participation information.  The FTC also announced that it began accepting submissions for its Voice Cloning Challenge.  The contest, as we discussed here, is intended to promote the development of ideas to protect consumers from the misuse of AI-enabled voice cloning.  Finally, the FTC released a report detailing key takeaways from an October 2023 public virtual roundtable which, as we discussed here, examined how generative AI is being used and is affecting professionals in music, filmmaking, software development, and other creative fields.  The report states that, although many of the concerns raised during the event are beyond the FTC’s jurisdiction, the agency can use its existing enforcement authority to help protect fair competition and prevent unfair or deceptive acts or practices in the generative AI market.

On our Broadcast Law Blog, we summarized the upcoming regulatory deadlines for broadcasters in January, and also looked ahead to deadlines for the entire 2024 calendar year with special attention to lowest unit charge political windows.  We also took a look at what matters affecting broadcasters the FCC, as well as the courts and other federal agencies, are likely to act upon in the new year.