FCC Opens Limited Filing Window for New Noncommercial TV Stations

By Anne Goodwin Crump on Posted in Broadcast, FCC, Filing Window, Noncommercial TV, Television

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

By Anne Goodwin Crump on Posted in AI, Broadcast, 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

By Mark Malonzo on Posted in Broadcast, Cable, Deadlines, EAS, FCC, Satellite

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

By Travis Andring on Posted in Broadcast, FCC, Foreign Sponsors, Sponsorship ID

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:  

  1. Inform the programmer of your foreign sponsorship disclosure obligations;
  2. 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; 
  3. Ask the programmer whether anyone involved in producing/distributing the programming qualifies as a foreign governmental entity; and 
  4. 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: 

  1. 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 
  2. 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

By Mark Malonzo on Posted in Broadcast, FM, Radio

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

By Paul J. Feldman on Posted in Broadcast, FM, Program Duplication Restrictions, Radio

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

By Travis Andring on Posted in Broadcast, FCC, Media, NPRM

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

By Daniel Brown on Posted in Broadcast, FCC, Media, Radio

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

By Travis Andring on Posted in Broadcast, FCC, Foreign Sponsors, Sponsorship ID

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

By Daniel Brown on Posted in Broadcast, Class A, FCC, LPTV, Media, Television

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. 

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