New Commercial FM Programming Non-Duplication Rule Goes Into Effect on August 2, 2024

The FCC recently announced that August 2, 2024, is the effective date of its newly reinstated programming non-duplication rule for commercial FM stations. As we have previously noted here, that rule, which was reinstated in a June 2024 Reconsideration Order, prohibits commonly owned or operated commercial FM stations with overlapping service contours from duplicating more than 25% of their programming. The FCC repealed the rule in August 2020, but reinstated it in response to requests from music industry groups and LPFM interests.

Commercial FM stations currently duplicating more than 25% of station programming will have a six month grace period (until February 3, 2025) to comply or to request a waiver to continue that level of duplicated programming.  The FCC “strongly encourages” stations filing waiver requests to do so by October 31, 2024, though waiver requests filed after that time will be considered. The FCC will permit FM stations currently employing duplication that exceeds the 25% duplication allowance to continue to transmit their programming in excess of the 25% duplication allowance unless and until the waiver request is denied. In the event that the FCC denies such a waiver, it may grant additional time, not to exceed six months, for the licensee to come into compliance with the nonduplication rule. In addition, the general process for seeking a waiver of the reinstated rule will continue to remain available beyond, and apart from, the grace period and ninety-day recommendation for requesting a waiver.  So, licensees of FM stations that seek to commence exceeding the 25% programming duplication limit in the future may seek a waiver at that time.

Please contact us if you have any questions, or would like to file for a waiver.

 

FCC Received Petition for New FM Broadcast Station Class

On June 20,  the FCC released a Public Notice announcing a June 13 Petition for Rulemaking  submitted by Commander Communication Corporation (“Commander”) to create a new FM station class “A10.” In its Petition, Commander proposed a new FM class with operating parameters of maximum of 10,000 watts effective radiated power (ERP) and 100 meters height above average terrain (HAAT). Commander also proposed amending current facilities requirements to accommodate its new FM broadcast class.

The Commission is seeking comments on the proposal and has established a deadline to do so of July 22, 2024. If you have questions about the proposal or are considering filing comments, please contact your FHH attorney.

Partial Return of the Radio Duplication Rule

Continuing its progression of reversals, the FCC announced on June 5, 2024 that it would once again reinstate section 73.3556 of the Commission’s rules (the “Radio Duplication Rule” or “Rule”) for commercial FM stations.  The Radio Duplication Rule does not apply to noncommercial educational stations nor AM stations. 

As some of our readers might recall, the FCC first limited the duplication of programming by commonly-owned radio stations serving the same local area in 1964.  Since then, the FCC has alternatively tightened, loosened, or done away with the Rule in its entirety.  Most recently, the FCC completely eliminated the Rule in August of 2020, with support from the National Association of Broadcasters.  Still, this repeal was appealed by REC Networks, the musicFIRST Coalition, and the Future of Music Coalition, who filed a Petition for Reconsideration, from which this month’s Order on Reconsideration reinstituting the Rule stems. 

Beginning thirty days after publication in the Federal Register, the Radio Duplication Rule will once more prohibit commercial FM stations from devoting more than 25 percent of the total hours in their average broadcast week to programs that duplicate those of any other commonly-owned FM station; or with which it has a time brokerage agreement if the principal community contours (defined as predicted 3.16 mV/m) of the stations overlap and the overlap constitutes more than 50 percent of the total principal community contour service area of either station.  Stations that exceed this limit may file a waiver request to exceed the 25% duplication allowance based on special circumstances, so long as such deviation serves the public interest. 

To minimize possible service disruptions and burdens for FM stations, and to provide them with an ample runway back to compliance with the reinstated Rule, the Order provides a six-month grace period after the Rule’s effective date to allow the stations to come into compliance.  The six-month grace period will begin when the reinstated rule becomes effective.  Consistent with this grace period, the FCC strongly encourages any FM station that currently exceeds the duplication allowance, and that intends to seek a waiver, to submit its waiver request within the first ninety days after the new rule becomes effective.  Such stations will be permitted to continue to transmit their programming in excess of the 25% duplication allowance unless and until the waiver request is denied. 

If you have any questions or would like assistance with bringing your affected FM station back into compliance, please contact your FHH attorney. 

 

FCC Amends and Clarifies Foreign Sponsorship ID Requirements

On Monday of this week, the FCC issued a Second Report and Order amending and clarifying its rules concerning the disclosure of foreign sponsorship of programming. 

Amidst growing concerns regarding the potential influence of Russian, Chinese, and other foreign governments on recent U.S. elections, the FCC implemented new rules in 2022 requiring broadcasters to conduct independent research on all program sponsors and disclose any involvement of “foreign governmental entities” in the production and distribution of content.  As part of their research, broadcasters were required to take five specific steps, one of which was to check two specific, government sources to verify the identity of their sponsors: the Department of Justice’s FARA website and the FCC’s semi-annual U.S.-based foreign media outlets reports.  

The rules went into effect in 2022, but they had already been met with legal challenges. Soon after the FCC laid out its new foreign sponsorship ID requirements in 2021, the National Association of Broadcasters (“NAB”) petitioned the U.S. Court of Appeals for the District of Columbia Circuit for review, alleging that the new requirements were “unnecessary and overly burdensome.”  

In particular, the NAB took issue with the requirement to consult specific, government sources, arguing that “nothing in the law affords the Commission the latitude to require broadcasters to conduct research or investigations using any sources of information other than persons with whom broadcasters deal directly.” 

The court agreed with the NAB and decided to vacate the requirement: “Remember the only obligation that § 317(c) places on a broadcaster: It must ‘exercise reasonable diligence to obtain from its employees, and from other persons with whom it deals directly . . .  information to enable [the broadcaster] to make the announcement required by [47 U.S.C. § 317(c)].’ The FCC’s verification requirement ignores the limits that [47 U.S.C. § 317(c)] places on broadcasters’ narrow duty of inquiry.” 

In Monday’s Report and Order, the FCC acknowledged the court’s decision by replacing the “federal sources” requirement with “two options for demonstrating that [broadcasters] have met their duty of inquiry” when leasing airtime. 

Under the first option, “both the licensee and the lessee must complete a written certification,” a form of which is provided in Appendices C and D of Monday’s Report and Order.  

Under the second option, broadcasters must ask “whether the lessee is a registered FARA agent, or is listed in the Commission’s U.S.-based foreign media outlet report. If the lessee responds ‘no,’ the licensee would then ask the lessee to provide screenshots showing the results of lessee’s searches of both of these websites.” 

The FCC further clarified on Monday that the foreign sponsorship ID rules do not apply to “sales of advertising for commercial goods and services” to the extent that the name of the product or service would constitute a sponsorship identification, or to political candidate advertisements. The rules do, however, apply to issue advertisements and paid public service announcements. In addition, while the FCC noted that the foreign sponsorship ID rules “are not likely” to apply to NCE stations, they declined to create an exemption for “religious programming and locally produced and/or distributed programming.” 

Keep in mind: the other requirements contained in the existing foreign sponsorship identification rules remain intact. If you need a refresher on those requirements, read our last blog post on this topic here or feel free to contact an attorney here at FHH.

FCC Announces Lift of Channel Change Freeze for Class A Television, LPTV, And TV Translator Stations

The FCC has announced that the current freeze on major modification to Class A television, LPTV, and TV translator stations will be partially lifted to allow applications to change channels as of August 20, 2024, subject to certain limitations.  Channel change applications will be permitted on a nationwide basis without geographic limitation.  For the limited number of new but unbuilt LPTV stations that were authorized under the 2009 Rural LPTV Window, the FCC will permit them to also apply to change their channel in order to avoid the need to double build their facilities.  However, all other major modification applications as well as applications for new LPTV and TV translator stations will remain frozen. 

All channel change applications filed during the window will be processed by the Commission on a first-come, first-serve basis and will be “cut off” daily for purposes of determining mutual exclusivity.  In the event of mutual exclusivity, applicants will have the opportunity to resolve the issue through either settlement or the filing of an engineering amendment that may be submitted during a settlement window to be announced by the FCC at a later date. 

Applications that fail to comply with the parameters of this filing window may be amended within thirty (30) days to come into compliance, so long as the amended filing does not result in a new mutual exclusivity situation with another application.  Any application that fails to come into compliance during this thirty (30) day period will be dismissed. 

At a future date, the FCC will announce plans and procedures to lift the freeze on all major changes to Class A, LPTV, and TV translator stations (e.g., channel change, relocating transmitter sites greater than 30 miles or without contour overlap, etc.) and resume first-come, first-serve applications for new LPTV and TV translator stations.  The opportunity for Class A, LPTV, and TV translator stations to change channels will remain available unless subsequently frozen by the Commission. 

If you have any questions or would like assistance with preparing a channel change application for your station, please contact your friendly FHH attorney. 

FCC Announces Exercise of the Disaster Information Reporting System (DIRS)

The FCC released a Public Notice today announcing a June 10-12 exercise of the Disaster Information Reporting System (DIRS).  Communications providers, including broadcast, wireless, satellite, broadband, and wireline providers, interested in participating must register by June 3.   

DIRS is the FCC online system through which providers report information on the operational status of communications assets during disasters and recovery efforts.  The FCC shares DIRS information with emergency management officials and the public.  The data also informs restoration efforts by federal partners.   

The exercise will begin on June 10 with a mock activation letter requesting that providers report data on communications assets that fall within a hypothetical disaster area.  Participants, including those that do not have any assets in the hypothetical disaster area, may submit mock data.  Participants’ initial data is due by June 11 at 10am (EST), and updated reports are due by June 12 at 10am (EST).  The exercise will conclude with a deactivation letter on June 12 at 3pm (EST). 

While participation in this exercise is voluntary, the FCC has already adopted a rule that will require wireline, wireless, interconnected VoIP, and cable providers to participate in DIRS (effective date TBD). 

To participate in the exercise, providers must send an email by June 3 to michael.caiafa@fcc.gov and john.healy@fcc.gov, containing (in Excel format): 

  1. Name of the provider; 
  1. Name, email, and phone number of each participant from the provider; and 
  1. Counties that the provider would like to be included in the hypothetical disaster area for the exercise (optional). 

For more information on DIRS, please contact your attorney at Fletcher, Heald & Hildreth. 

FTC Votes to Ban Noncompete Agreements

In late-breaking news, the Federal Trade Commission (“FTC”) has adopted a final rule banning new noncompete agreements for all workers and effectively nullifying existing agreements and requiring companies to notify most current and past employees that the company will no longer enforce such agreements. In a change from the prior FTC proposal, however, the agreements may remain in effect for senior executives.

This rule is scheduled to go into effect 120 days after publication in the Federal Register, though its future is a bit uncertain. Various business groups, including the U.S. Chamber of Commerce, have indicated that they will sue to stop the rule from becoming effective. After receiving over 26,000 comments, the FTC adopted the rule on a 3-2 vote. Proponents argue that noncompete agreements are unfair and suppress worker pay and entrepreneurship, while also imposing costs and unfair terms of competition on firms wanting to hire workers bound by the agreements. Business groups, on the other hand, say noncompete agreements are critical for protecting proprietary information and intellectual property and for justifying investments in workers and their training. Without noncompetes, employers would need to worry that after sinking much time and money into training, employees might immediately jump to a better-paying competitor that did not have those costs. Nondisclosure agreements might protect some secrets but would not fully solve the problem.

Leaving aside policy questions, the dissenting Commissioners strongly questioned whether the FTC had the authority to issue such a blanket ban on noncompetes without an express directive from Congress. While various members of Congress on both sides of the aisle have introduced bills to reform noncompete agreements, none of them has been enacted. The dissenters argued that without a valid grant of authority from Congress, the final rule is unlawful. The retroactive nature of the ban adds further legal issues.

While there does seem to be a general move toward requiring certain reforms in noncompete agreements, it remains to be seen how the new FTC rule will fare in court. It is sure to face strong opposition both on policy grounds and due to claims of regulatory overreach.

Broadcast Station Contest Rules Aren’t Just for Contestants, They Apply to the Stations, Too!

The FCC recently released a Notice of Apparent Liability (“NAL”) for a forfeiture of $8,000 that should be a cautionary tale for other broadcast licensees that conduct contests for listeners or viewers.  This fine arose out of the station’s failure to conduct a contest in accordance with its announced terms, and specifically to make payment of a prize by the deadline which the station had established for itself.  The FCC found that this failure was a violation of its contest rules. 

Section 73.1216 of the FCC’s rules requires that broadcast licensees must fully and accurately disclose the material terms of any licensee-conducted contest and also must conduct such contests substantially as announced and advertised.  Included among “material terms” are not only eligibility restrictions and details as to how winners will be selected, but also the extent, nature, and value of prizes, which must be awarded promptly. 

In this case, Station KXOL-FM, Los Angeles, California, conducted a contest in 2019 which promised to award each winner a cash prize of $396.  KXOL-FM’s announced contest terms specified how and when winners would receive their prizes, with a self-imposed payment deadline of 30 business days after a winner had submitted all required documentation to the station.  One listener won the prize on October 24, 2019, and had turned in all of the required documentation by January 16, 2020, but the station did not award the prize until May 2021.  Although the FCC focused on this incident, it also indicated that KXOL-FM had admitted that payment of a large number of other prizes also was delayed. 

When asked to explain itself, KXOL-FM pointed to the beginning of the COVID-19 pandemic and inability to access files during the transition to work-from-home, a ransomware attack that disabled corporate IT systems from October 2020 until March 2021, and staffing shortages after the ransomware attack.  Unfortunately for the station, the payment deadline established by the contest terms was March 2, 2020, and the problems used as excuses all started after that.  No matter how compelling they may have been, they did not explain why the prize was not awarded when due.  That fact left the station with no reasonable explanation for what could only be described as undue delay in paying the prize.   

As a result, the FCC determined that a fine was warranted.  Fortunately for the licensee, the decision was made that a forfeiture would be assessed for only the one incident about which the full facts were known and not for the other, admitted prize payment delays.  Less fortunately, while the base fine for violation of the contest rules is $4,000, the FCC has proposed a fine double that amount because the licensee’s corporate parent is large and prosperous.  It is not clear why good business management increases culpability, but the FCC has long said that profitable businesses may expect increased fines so that such punishments create some pain and are not viewed as acceptable costs of doing business.   

The lessons from this case are that stations need to pay attention to the rules that they have established for contests, follow them carefully, and award the stated prize reasonably promptly.  Before announcing contest terms, a station should be confident that it can carry them out and has access to the prize described.  In particular, while a station should not unreasonably delay awards of prizes, it also should not set for itself too short a deadline because the licensee will be bound by its own rules.  Here, contest terms that allowed for a slightly longer period before payment was due might have made all the difference.  For this reason, stations would be advised to periodically review, and where warranted, update their contest rules.  If they have questions, they should consult with their counsel here at FHH.

Comments on Proposed Rules for Program Originating Booster Stations Due May 16, Reply Comments Due June 17

The FCC released a Public Notice today establishing deadlines for submitting comments on its proposed rules to permit limited, voluntary program origination on FM boosters.  Comments must be filed no later than May 16.  Reply comments must be filed no later than June 17. 

The proposed rules would provide flexibility for stations to use boosters to transmit hyper-local advertising and programming, independent of the primary station signal.  

As discussed in our prior post, the FCC is seeking comment on issues including:  

  • Whether to limit each full-service FM station to 25 program originating boosters; 
  • How to select between mutually exclusive booster applications; 
  • Whether rules should include a mechanism for addressing claims of predicted interference while the booster’s construction permit is pending; 
  • Whether to require broadcasters to synchronize the signal of a program originating booster with the signal of its primary station; 
  • Whether broadcasters should be required to notify all EAS participants monitoring the primary station that its booster originates programming; and 
  • Whether broadcasters should be required to maintain a political folder for the booster within the political file of its primary station. 

For more information or to discuss commenting on any of the proposed rules by the May 16 and June 17 deadlines, please contact your attorney at Fletcher, Heald & Hildreth. 

Fletcher, Heald & Hildreth Attorney Peter Tannenwald Recognized by LPTV Broadcasters Association with Gravino Lifetime Achievement Award at NAB 2024 

At this year’s LPTV Broadcasters Association meeting during the NAB convention in Las Vegas, Peter Tannenwald, retired member of Fletcher, Heald & Hildreth, received the Mike Gravino Lifetime Achievement Award. This award recognizes individuals who contribute to the advancement of the low power TV industry and who exemplify the highest standards of excellence in their work with LPTV stations. Keith Larson, Larry Rogow, and Paul Koplin were also recognized for their service.  

Over the course of his career spanning more than 40 years, Peter Tannenwald was an early advocate for LPTV stations and was instrumental in the creation of the Class A television service through the passage of the Community Broadcasters Protection Act of 1999.  Mr. Tannenwald attended President Clinton’s signing of the legislation.  

Congratulations to Peter and all those honored by the LPTV Broadcasters Association!

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