On January 17, 2024, the FCC released a Notice of Proposed Rulemaking (“NPRM”) seeking comment on a proposed rule that would prioritize review of certain broadcast applications filed by stations that certify that they provide locally originated programming.
Under the proposed rule, priority review would be available to radio and television stations (excluding boosters and translators) that certify that they air locally originated programming for at least 3 hours per week, on average. Such priority review would be further limited to “complex” applications, or applications for which processing is not immediately available because of an existing hold, petition to deny, or other issue that required further staff attention. Since the majority of applications that might be eligible for priority treatment are currently processed routinely, the questions of how the FCC staff might define “complex” and on what basis, as well as how impact this policy would have, become more interesting.
What Counts as Local?
The FCC is seeking comment on how it should define “local” for the purposes of granting priority application review. It specifically asked whether it should adopt a definition based upon the station’s community of license like that used in the now-repealed main studio rule, or whether the “local” market could simply be defined as the station’s service contour.
When is Programming Locally Originated?
As to what would qualify as “local program origination,” the NPRM proposed looking to “any kind of activity” that occurs within the local market. Activities like program scripting, recording, or editing would presumptively qualify. But the FCC specifically is requesting comments on what other activities should qualify as local program origination.
The FCC offered some examples of locally-originated programming, such as music played by an on-site DJ, broadcasts of local school and music events local venues or festivals. Commenters may propose other potential examples. In addition, the FCC sought comment on whether repetitive programming, automated programs, and time-shifted recordings of non-local programming should be excluded from consideration.
How Much of the Program Should be Locally Originated?
Under NPRM, programs would not need to be 100% locally originated to qualify. Instead, a program would simply need to include an element of local creation. However, for programs that contain content made entirely outside of the local market, the FCC sought comment on whether it should require that a minimum portion be locally originated.
Minimum Program Hours
The FCC proposed awarding priority to licensees providing, on average, at least three hours of locally originated programming per week. The FCC is seeking comment on the exact number of hours that it should require, whether eligibility should be limited to stations that satisfy the average for a set period of time, and maintain the average after submission of the application.
Eligible Applications and Priority of Review
Under the proposed rule, only applications for license renewal, assignment of license, and transfer of control would be eligible for priority review. The FCC stated that other applications typically require less processing time but did not elaborate on the differences. Still, the FCC sought comment on whether other applications should be eligible.
For applications that involve multiple stations, the FCC proposed making priority review available only if the applicant certified that all stations listed on the application comply with the criteria. The NPRM is seeking comment on that proposal.
As noted above, the Commission proposed limiting priority review to only applications with some sort of issue. The NPRM proposes prioritizing “complex” applications filed with a certification before those filed without a certification. “Simple” applications, or applications without processing issues, theoretically would not be delayed. It is somewhat unclear, however, whether the definition of applications with issues might shift, or, with limited staff resources, some applications can be prioritized over others without causing delays to the others. On the other hand, prioritization of certain applications could bring the staff to the decision point on difficult issues sooner The NPRM is seeking comment on this approach.
Finally, the FCC proposed making the certification a purely voluntary section in the application. Applicants that choose not to certify will have their applications processed under existing procedures and substantively identical standards. Of course, since those applications without a certification will come after both routine applications and priority, “complex” applications, processing times almost necessarily will increase.
The Commission also spend a great deal of time discussing the now repealed main studio rule, as well as the much longer ago repealed program origination rule, but did not propose reinstituting those rules. The Commission also did not acknowledge that while it has stated a preference for local programming in the past, there is no current, legal requirement for locally originated programming.
Comments in this proceeding will be due 30 days from Federal Register publication of the NPRM. Reply comments will be due 60 days after such Federal Register publication.
For more information or to discuss commenting on any of these proposed rules, please contact your attorney at Fletcher, Heald & Hildreth.