FHH attorneys Frank Montero and Seth Williams will present a webinar for the Media Financial Management Association’s town hall series. Their presentation, titled Advertising Marijuana and other “Vices” Under the Trump/Carr FCC, will take place March 20, 2025, at 2:00 PM EDT. The presentation will last about an hour, including time for questions. Those interested in attending can register at http://www.mediafinance.org/town-hall-webinars and use promo code XTRA32025. We hope to see you there!
FCC Amends Schedule of Application Fees
On January 7, 2025, the FCC released an Order announcing adjustments to its Schedule of Application Fees, which will become effective 30 days after the Order’s publication in the Federal Register. Congress mandates that the FCC make these adjustments every two years, and this year’s changes reflect a 17.41% inflationary increase in the Consumer Price Index (CPI) since the FCC’s 2022 adjustment. The updated Fee Schedule affects a broad range of FCC applications, including those for broadcasters, wireless licensees, satellite services, and more.
Commissioner Brendan Carr issued a concurring statement, expressing frustration with the fact that some applications will soon “cost hundreds, or in some cases, thousands of dollars more than they did just a few years ago.” Commissioner Carr also acknowledged, however, that the FCC has little discretion when making these adjustments.
You can find the full text of the Commission’s Order here.
As always, do not hesitate to contact an FHH attorney if you have any questions.
FCC Requires MVPDs to Submit Reports of Broadcast Station Blackouts
Tags: Broadcast, TV, MVPD, Cable, Satellite, FCC, Retransmission Consent, Medi
The FCC adopted rules on January 3 that require Multichannel Video Programming Distributors, including cable or satellite providers (“MVPDs” or “Reporting Entities”) to report certain broadcast station blackouts. The rules will be effective 30 days after publication in the Federal Register, but MVPDs will not be required to comply until the FCC develops a reporting portal.
Reportable Events
Under the new rules, Reporting Entities must report qualifying blackouts (“Broadcast Station Blackouts”). Broadcast Station Blackouts are blackouts in which: (1) an MVPD ceases retransmission of a commercial television broadcast station’s signal due to a lapse in the broadcast station’s retransmission consent; and (2) the blackout lasts longer than 24 hours. The rule applies to retransmission of full power, Class A, and LPTV stations.
Required Submissions
Under the new rules, Reporting Entities are required to submit an Initial Blackout Notification and a Final Blackout Notification.
Reporting Entities must submit an Initial Blackout Notification no later than two business days after a blackout has become reportable. In effect, the initial notification is due two business days after the blackout enters its 24th hour. An Initial Blackout Notification must include:
(1) the name of the reporting entity;
(2) a list of all commercial stations no longer being retransmitted (including, for every primary and multicast stream, the call sign, Facility ID and network affiliation);
(3) identification of the DMA in which affected subscribers reside;
(4) the time and date of the initial interruption to programming; and
(5) a good faith estimate of the number of subscribers affected.
Reporting Entities must submit a Final Blackout Notification no later than two business days after the MVPD resumes carriage of the station. The Final Blackout Notification must state, for each station identified in the initial notification, the date on which retransmission resumed. If no final notification is filed within three years of the initial notification, the FCC will consider the station(s) as no longer carried by the MVPD.
Broadcasters May Submit Supplemental Notices
If a broadcaster named in an MVPD’s notifications believes that any substantive information in the reports is incomplete or incorrect, the broadcaster may voluntarily submit a supplemental notice. Broadcasters must identify the exact fields of the MVPD report that contain errors and provide information that the broadcaster considers to be complete and correct. The MVPD will be notified of the broadcaster’s submission. All reporters are required to correct information that they believe to be incorrect.
Electronic Submissions
The FCC will establish an online reporting portal modeled after the Commission’s Network Outage Reporting System (NORS) through which reporters will file electronically. Although information in notifications submitted through the portal will become publicly available on the FCC’s website, the FCC will treat estimated subscriber counts as presumptively confidential.
The FCC will release further details and instructions via Public Notice at least 30 days prior to the effective date of the requirements.
For further information regarding the new requirements, carriage disputes, or retransmission consents, please contact your Fletcher, Heald & Hildreth attorney.
FCC Opens Limited Filing Window for New Noncommercial TV Stations
The Federal Communications Commission (“FCC” or “Commission”) has issued a public notice, DA 24-1065, which announces the opening of a filing window for applications for construction permit for new noncommercial educational (“NCE”) TV stations in 12 specified communities in various areas of the United States. This window opens at 12:01 a.m. EST on December 4, 2024, and will close at 6:00 p.m. EST on December 11, 2024.
As is normally the case, all applications must be filed electronically in the Commission’s Licensing and Management System (“LMS”), and the deadlines will be strictly enforced. Note that the opening time and deadline time are Eastern Standard Time, not local time. Unlike some prior filing windows, applications filed early, as well as those filed late, will be dismissed.
In order to be eligible to file in this NCE TV window, all applicants must be non-profit educational organizations, and not individuals. If such a non-profit educational organization is neither a school nor a governmental entity, it must also be able to certify that a majority of its governing board or leadership are local members representative of a broad cross-section of community elements. Any address used to establish a member’s localism must be that of the member’s business or residence and not a post office box, lawyer’s office or the like. In order to be considered broadly representative, the governing board or leadership must represent at least four different elements of the community. Examples of the different groups that are considered elements of the community are businesses, labor, minority and ethnic groups, military, professions, religion, and organizations for youth, the elderly, or women.
A further threshold requirement for all applicants is that they must propose to advance an educational objective through its programming. While not all of the planned programming must be instructive or otherwise educational, the applicant must show that the station will be used primarily for the advancement of an educational program. If an applicant has had its educational program approved in the past, it may simply refer to that prior approval.
Other certifications which must be provided are that the application is financially qualified and that it has reasonable assurance that the specified transmitter site is available to it. Financial qualification means that the applicant has sufficient funds available to it to construct and operate the proposed station for three months without further revenue. Reasonable assurance of site availability means that, if the applicant does not own the site, that is has contacted the land or tower owner and reached a basic agreement in principle that, all things being equal, after the construction permit is granted, the owner will make the site available. Absolute agreement on final terms is not required, but a basic meeting of the minds is.
Once the window closes, the Commission will determine which applications are mutually exclusive with each other. It then will apply its NCE point system selection criteria to determine the winning applicants for each allotment. Those points may be awarded on the basis of being an established local applicant, diversity of ownership, being part of a statewide network providing programming to schools, and technical parameters. Applicants must be able to document any claims of comparative qualifications and must submit any required documentation with their applications in order to have those qualifications credited. All comparative factors are fixed as of the window filing deadline and may not be improved, but only diminished, after that time.
In order to provide a stable database while the NCE TV filing window is open, the FCC has imposed a filing freeze, effective 12:01 a.m. EST on December 3, 2024, for all major and minor change applications for TV and Class A TV stations and all channel change petitions for full-power TV stations. This freeze will remain in effect until the close of the NCE TV filing window.
If you are interested in filing during this window or have any questions, please contact your FHH attorney, who will be happy to assist you.
Comment Deadline Set for Proposed Disclosure Requirements for AI Content in Political Ads
As has been widely publicized, the FCC has proposed that broadcasters be required to air an announcement for all political ads, including both candidate and issue ads that contain content generated by artificial intelligence (AI). The deadlines for comments on this proposal have now been set. Initial comments will be due by September 4, 2024, and reply comments will be due by September 19, 2024.
Because of the potential impact of such rules, we would encourage broadcasters to consider filing comments to point out some of the burdens that could be imposed. Even though the Chairman seems determined to adopt such rules, some Commissioners seem to view the number of comments on each side of an issue as having weight in the decision-making process.
Specifically, what the FCC has proposed is to require that all broadcasters provide on-air announcements for all political ads that contain AI-generated content to disclose such content, and that broadcasters place a notice of the AI-generated content in their online political files. In addition to applying the same requirements to cable companies and satellite operators that originate programming, the Commission is proposing to apply them to U.S. entities that produce programming for foreign stations with signals that reach into the U.S.
The Commission emphasizes that it is not banning or restricting the use of AI-generated content in political ads, and broadcasters are prohibited by both statute and rule from censoring or altering the content of candidate advertisements, though the same prohibition does not apply to issue ads. The FCC also recognizes that both the Federal Election Commission and a number of states have taken action to regulate AI content in political ads. Nonetheless, it has proposed to require that broadcasters inform all purchasers of political ads of their obligation to disclose AI-generated content and inquire whether the ad in question contains such content.
There are many questions which surround this process, such as how broadcasters will document that the inquiry was made, whether the person buying the ad time will even know if an ad includes AI content, what a broadcaster needs to do if an advertiser does not respond to an inquiry, and what extra steps a broadcaster must take if an outside party alleges that an ad has AI-generated content of which the broadcaster was previously unaware. Additional questions surround how and when the disclosure should be made – before, during or after the ad, and in what language? Further, what should be done about ads embedded in syndicated programming? Even more fundamental is determining what the definition of AI-generated content should be. The FCC is seeking comment on all of these issues.
The obvious questions not specifically asked are how will it be determined if broadcasters made sufficient efforts to learn of any AI-generated content, and what penalties will be imposed if they did not. Does the fact that broadcasters serve the public interest mean that they have to become AI enforcement officers?
The FCC did, however, seek from commenters a cost-benefit analysis, weighing the burdens on broadcasters against the unknown number of ads that might have content that would require an announcement. Finally, comment is sought on the truly fundamental issues of whether the FCC has the statutory authority to impose these requirements, and whether the proposed rules would create First Amendment issues.
If you would like to know more about these proposed rules or have an interest in filing comments with the FCC, do not hesitate to contact the attorneys at Fletcher, Heald & Hildreth.
ETRS Form One Due Oct. 4 for All EAS Participants
The FCC announced today that all EAS Participants must submit their annual Form One filings no later than October 4, 2024. EAS Participants are parties subject to the Emergency Alert System (EAS) rules. Virtually all broadcast stations, wired and wireless cable television systems, Satellite Digital Audio Radio Service, digital audio broadcasting systems, and wireline video systems are considered EAS Participants.
EAS Participants must file Form One in the online EAS Test Reporting System (ETRS). Form One requests identifying information on EAS monitoring assignments, facility location, EAS equipment, and contact information. EAS participants are required to file a separate Form One for each EAS decoder, EAS encoder, or unit combining decoder and encoder functions.
The requirement that EAS Participants review and update the information on Form One is part of the FCC rule that requires participation in nationwide EAS tests. The Federal Emergency Management Agency (FEMA) and the Commission conduct EAS tests regularly to assess the reliability and effectiveness of the nation’s alert and warning infrastructure. The filing deadline for Form One is generally linked to the date of a nationwide test, but there is no indication of such a link this time. The FCC has not yet scheduled a nationwide test for 2024. This announcement raises a question as to whether there will be one.
For more information on EAS or ETRS, please contact your attorney at Fletcher, Heald & Hildreth.
FCC Sets Effective Date for Foreign Sponsorship ID Rule Changes
On July 16th, the FCC announced that two changes to its sponsorship identification requirements for foreign government-provided programming, as detailed in its June 10th Second Report and Order, are set to become effective on August 15, 2024.
Recall that the FCC modified its sponsorship identification rules in March of 2022 to require broadcasters to identify foreign governmental sponsors of programming content. As we explained in our March 15, 2022, blog post, the modified rules require broadcasters to take the following steps in identifying whether program sponsors are foreign governmental entities:
- Inform the programmer of your foreign sponsorship disclosure obligations;
- Directly ask the programmer if they are a foreign governmental entity, which includes governments of foreign countries, foreign political parties, agents of foreign principals, and U.S.-based foreign media outlets;
- Ask the programmer whether anyone involved in producing/distributing the programming qualifies as a foreign governmental entity; and
- Document and maintain a record of steps 1–3 above in case of future FCC inquiry.
As a result of the FCC’s changes announced on July 16th, commencing on August 15th:
- Purchases of broadcast time by or on behalf of legally qualified candidates or their authorized committees will be exempt from the foreign sponsorship identification requirements; and
- Section 325(c) permittees which deliver programming from a U.S. studio to a non-U.S. licensed station in a foreign country for broadcast back into the United States will be subject to the foreign sponsorship identification requirements.
Initially, the foreign sponsorship rules had a fifth requirement that broadcasters verify their sponsors’ status by consulting the Department of Justice’s FARA website and the FCC’s semi-annual U.S.-based foreign media outlets reports. However, as we explained in our June 12, 2024 blog post, this requirement was vacated by the U.S. Court of Appeals for the District of Columbia Circuit.
Following the D.C. Circuit Court’s decision, the FCC proposed a revised fifth step, 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 the FCC’s June 10 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 programmer responded “no,” the station licensee would then need to ask the programmer lessee to provide screenshots showing the results of lessee’s searches of both of these websites.
The FCC has yet to announce the compliance date for this new fifth step.
As always, feel free to contact an attorney here at FHH if you have any questions.
New Pre-Sunrise and Post-Sunset Power Levels Available for Eligible AM Stations
The FCC is now accepting letter requests from AM stations for pre-sunrise authorization (PSRA) and post-sunset authorization (PSSA). PSRA permits AM stations to operate at increased power during the two hours immediately preceding sunrise. PSSA allows for increased power for the two hours immediately following sunset.
According to the FCC’s Public Notice, the Audio Division has implemented new tools to determine permissible power levels for PSRA and PSSA. When the FCC last recalculated these parameters in 2007, technical issues affected the accuracy of the FCC’s calculations. In response, the Commission suspended the affected authorizations.
To request PSRA, PSSA, or both, stations may send a letter request to Joseph Szczesny or Jerome Manarchuck, Audio Division, at PSRPSS@fcc.gov. Stations should state which type of authorization(s) they are seeking and include information about the licensee, the station, and its current authorization. Importantly, stations should also describe the method by which they will reduce power when necessary.
Stations may commence PSRA and PSSA operation immediately upon receipt of the parameters calculated by the FCC. PSSA and PRSA operating parameters divide pre-sunrise and post-sunset periods into 15-minute increments. Power levels are capped at 500 watts and may not exceed a station’s authorized daytime power or critical hours power.
For more information on PSRA and PSSA, please contact your attorney at Fletcher, Heald & Hildreth.
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.
