FCC Proposes to Prioritize Application Processing for Stations that Provide Locally Originated Programming

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.

Eligible Stations

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.

Qualifying Programming

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asked whether it should adopt a definition based upon the station’s community of license like that used in the now-repealed main studio rule, or whether the “local” market could simply be defined as the station’s service contour.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.

FCC Releases NPRM Proposing New Reporting Requirements for Retransmission Consent Blackouts

On December 21, 2023, the FCC released a Notice of Proposed Rulemaking (“NPRM”) proposing new reporting requirements for multichannel video programming distributors (“MVPDs”).  The amendments to the FCC’s rules, if enacted, would give MVPDs 48 hours to notify the FCC when a blackout of 24 hours or more of a broadcast television station, or stations, occurs on a video programming service due to a breakdown in retransmission consent negotiations.  The new rules would also require that MVPDs notify the FCC within two business days of a blackout’s resolution.  The FCC has invited public comment on its proposals, and commentators have 30 days from the NPRM’s publication in the Federal Register to do so. 

The newly proposed rules come on the heels of an increasing number and duration of broadcast station blackouts on MVPD platforms across the country over the past decade.  Under existing FCC rules, broadcast television stations and MVPDs are required to negotiate retransmission consent agreements in good faith, and if a party to a retransmission consent negotiation believes the other party has not acted in good faith, it may file a good faith complaint with the FCC.  The FCC historically has relied, at least in part, on good faith complaints to ascertain the market landscape for blackouts.  However, in the NPRM, the FCC found that “given that many broadcast station blackouts on MVPD platforms occur without either party filing a complaint with the Commission, we cannot rely on good faith complaints to inform us when a deal impasse has resulted in a blackout, nor can we consider such complaints an accurate sampling of significant service disruptions.”  The FCC also depends on media reports or informal communications with staff to learn of breakdowns in negotiations and resultant blackouts.  Given the secondhand nature of these information sources and the accompanying uncertainties of what is essentially an ad hoc process, the FCC posits that the new notification requirements are in the public interest.  

Specifically, MVPDs would be required to notify the FCC both at the start and conclusion of a qualifying broadcast station blackout (i.e., one that exceeds 24 hours in length) through a new online reporting portal.  The new online portal would be modeled after the FCC’s Network Outage Reporting System (“NORS”) and “would use an electronic template to promote the ease of reporting and encryption technology to ensure the security of the information.”   

If a qualifying blackout occurs, MVPDs would have 48 hours to provide basic blackout information to the FCC (the “Initial Blackout Notification”).  The NPRM proposes that MVPDs provide the following information in the Initial Blackout Notification: (i) the name of the reporting entity; (ii) the station or stations no longer being retransmitted, including network affiliation(s), if any, of each affected primary and multicast stream; (iii) the name of the broadcast station group, if any, that owns the station(s); (iv) the Designated Market Areas in which affected subscribers reside; and (v) the date and time of the initial interruption to programming.  Subscriber information would be provided confidentially through the new online portal, without the need for a separate filing.  

Once a blackout is resolved, MVPDs would then have two business days to publicly identify the date retransmission resumed and provide updated information via another notification (the “Final Blackout Notification”).  The amended data contained in this notification would be public. The FCC specifically requests comment on the information disclosures required, the proposed two-business-day reporting window, and the public treatment of the disclosures. 

If you have any questions or would like assistance with preparing comments to the NPRM, please contact your FHH attorney.  Happy New Year from FHH! 

FCC Releases Report and Order Concluding Its 2018 Quadrennial Regulatory Review

After receiving a mandated deadline from the U.S. Court of Appeals for the D.C. Circuit, the FCC presented its long-awaited Christmas gift to the broadcast industry with the December 26 release of the 2018 Quadrennial Review Report and Order (“R&O”).  By a 3-2 vote, with both Republican commissioners dissenting, the R&O found that the FCC’s existing broadcast ownership rules, with some minor adjustments, remain necessary and in the public interest.  This FCC action brings to a close yet another chapter in the FCC’s Sisyphean saga of quadrennial reviews and resultant litigation.

The FCC opted to retain outright the Dual Network Rule, finding that the existing prohibition against common ownership of two or more affiliates of the Big Four broadcast networks (ABC, CBS, Fox, and NBC) in a market remains necessary.  The majority opinion reasoned that “loosening the rule to allow a combination between Big Four broadcast networks would lessen competition for advertising revenue and likely subsequently result in the remaining networks paying less attention to viewer demand for innovative, high-quality programming.”  Further, the Democratic majority of Commission found that the Dual Network Rule increases the bargaining power of local broadcast affiliates and empowers them to influence network programming decisions in ways that better serve the interests of their local communities.  Rather than contract the Dual Network Rule, the FCC’s R&O expands it by preventing the use of LPTV and digital multicast affiliations to circumvent the existing embargo on acquiring a second top-four ranked television station in a market.

By an equally-divided Commission, the FCC also voted to keep in place the Local Radio Ownership Rule, with minor adjustments aimed at making permanent the long-employed interim contour-overlap methodology used to determine ownership limits in areas outside the boundaries of defined Nielsen Audio Metro markets and in Puerto Rico.

The FCC also adjusted the methodology used under the Local Television Ownership Rule to determine station ranking within a market.  Specifically, a television station’s audience share ranking in a Nielsen Designated Market Area (“DMA”) will now be determined based on “the combined audience share of all free-to-consumer, non-simulcast multicast programming airing on streams owned, operated, or controlled by that station as measured by Nielsen Media Research or by any comparable audience ratings service.”  Additionally, the Commission specified a definite time period over which ratings data should be averaged and updated the relevant daypart used to make audience share and ratings determinations.

To the limited extent that the R&O makes any substantive updates to the rules, the changes won’t take effect right away.  The Office of Management and Budget must first review any changes that involve “information collections” while the rest will become effective 30 days after the R&O first appears in the Federal Register.  If you have any questions or would like assistance with complying with these new rules, please contact your FHH attorney.  Until then, we wish you a very Happy New Year!

FDA Adopts New Rules Requirements for “Side Effects” Statements in Prescription Drugs Ads on Broadcast Stations

The Food and Drug Administration (“FDA”) has adopted a Final Rule requiring that when a direct-to-consumer TV or radio ad for a prescription drug makes statements relating to side effects of the drug, those statements must be presented in a “clear, conspicuous, and neutral manner.”  This Final Rule implements one requirement of the Federal Food, Drug, and Cosmetic Act.

Advertisers must begin complying with this rule commencing November 20, 2024.

The FDA will use the following standards to determine whether the statement is presented in compliance with the new rule:

  • Present all information in consumer-friendly language and terminology that is readily understandable;
  • Present audio information regarding the side effects in a manner that is at least as understandable as the audio information presented in the rest of the ad with respect to volume, articulation, and pacing;
  • If in a TV format, present the information using audio and text concurrently, and  present written text on a contrasting background for a sufficient duration and in a size and font that would allow the information to be read easily; and
  • Not include distracting elements, whether in text, images, and/or sounds, which would detract from the statement of side effects.

If you have any questions about these new prescription drug ad requirements or how they should be applied, please contact your friendly FHH attorney.

FCC Adopts Report and Order Allowing Certain LPTVs to Convert to Class A Television Stations

On December 12, 2023, the FCC adopted a Report and Order (“R&O”) providing certain qualifying Low Power TV (“LPTV”) stations with a limited opportunity to convert to Class A status.  The R&O came after the FCC circulated a draft last month and implements the requirements of the Low Power Protection Act (“LPPA”), which is intended to provide eligible LPTV stations with a limited window of one year to apply for a Class A license.  Unlike LPTVs, Class A television stations enjoy primary status, and thereby a measure of interference protection from full service television stations. 

In order to qualify for a Class A license, LPTV stations must: 

  • have satisfied the same requirements applicable to stations that qualified for Class A status under the Community Broadcasters Protection Act of 1999 (“CBPA”), including the requirements with respect to locally produced programming during the 90-day period preceding the date of enactment of the LPPA (i.e., between October 7, 2022 and January 5, 2023); 
  • during that same 90-day period, have complied with the FCC’s requirements for LPTV stations; 
  • satisfy the Class A Service requirements of 47 CFR § 73.6001(b)-(d) or any successor regulation, which contain the requirements that Class A stations broadcast a minimum of 18 hours per day and broadcast an average of at least three hours per week of locally produced programming each quarter; 
  • demonstrate that it will not cause any interference as described in the CBPA; and 
  • demonstrate that, as of January 5, 2023, the station operated in a Designated Market Area (“DMA”) (as defined by the Nielsen Local TV Report) with not more than 95,000 television households.  If the population in the station’s DMA later exceeds the threshold amount for specific reasons beyond the station’s control, this requirement will not apply. 

The filing window will open on the date that the FCC’s rules implementing the LPPA become effective and cease one year thereafter.  However, if an applicant faces circumstances beyond its control that prevent it from filing by the deadline, the FCC will examine such instances on a case-by-case basis. 

The FCC also found that television translator stations are unlikely to satisfy the eligibility requirements of the LPPA, and that LPTV stations that have not completed their digital transitions prior to the 90-day period preceding the enactment of the LPPA are not eligible for Class A designation.  Additionally, the FCC declined to extend must carry rights to LPPA Class A stations and declined to adopt a requested de minimis exception to the DMA eligibility requirement. 

If you have any questions or would like assistance with converting your LPTV to Class A status, please contact your FHH attorney.  Merry Christmas and happy holidays from FHH! 

FCC Adopts Final Deadlines for Submission of C-Band Reimbursement Claims

On December 5, 2023, the FCC released a Public Notice adopting two final reimbursement claims submission deadlines for eligible incumbents and stakeholders as part of the ongoing transition of the 3.7-4.2 GHz band (“C-band”).  Claimants seeking reimbursement for all claims for C-band transition costs incurred and paid by claimants as of December 31, 2023, including all lump sum election claims by incumbent earth station operators, must file no later than February 5, 2024.  For any costs incurred after December 31, 2023, claimants will have until July 1, 2024.  Claimants must submit any and all reimbursement claims to the C-band Relocation Payment Clearinghouse (“RPC”) by these dates. 

The RPC has been accepting C-band reimbursement claims for processing since August 2021, and the Commission anticipates wrapping up the C-band reimbursement program by the middle of next year.  In order to facilitate the RPC’s processing of claims on a rolling basis and to expedite the completion of the C-band reimbursement program, the Commission strongly encourages claimants to submit any claims incurred within 30 days of payment and not wait until the deadlines to do so.   

For the small number of anticipated claims that may be incurred and/or paid after July 1, 2024, whether a one-time or recurring cost, the claimant must submit the claim(s) for RPC review through its Coupa portal to be considered for reimbursement, and pursuant to its procedures before the July 1, 2024 deadline, must include the best supporting documentation and information available at that time.  Any claims which are not submitted in this manner by the relevant deadline will be considered by the RPC as untimely and will not be processed or reimbursed. 

If you have any questions or would like assistance with filing any C-band reimbursement claims, contact your FHH attorney for guidance. 

Reminder: Annual DTV Ancillary/Supplemental Services Report Due December 1st

All commercial, Class A, and Low Power television stations that provided feeable ancillary or supplemental services between October 1, 2022 and September 30, 2023 must file an Annual Ancillary/Supplemental Service Report by December 1, 2023.  Reports are filed on a station-by-station basis in the FCC’s Licensing and Management System (LMS) on Form 317.  

“Ancillary or supplementary services” include any services provided on the portion of a station’s spectrum not needed to transmit the one free, over-the-air video broadcast that licensees are required to transmit.  Multiple video streams that are received free to the public are not considered ancillary or supplementary services.         

The reports must describe the feeable ancillary or supplemental services, list the amount of DTV bitstream used to provide them, and identify gross revenues derived from the services.  Stations must also concurrently pay to the FCC 5% of that gross revenue. 

If you have questions or need any assistance with this filing requirement, please contact your FHH attorney. 

FCC Releases Draft Report and Order to Allow Certain LPTVs to Convert to Class A

On November 22, 2023, the FCC circulated a draft Report and Order (“R&O”) that would, if adopted, provide some Low Power TV stations with the opportunity to convert their stations to Class A status. The draft Report and Order is slated to be voted on at the FCC’s next Open Meeting on December 13, 2023.

If adopted at the Open Meeting, the R&O would implement the requirements of the Low Power Protection Act (“LPPA”) for this filing window, including eligibility criteria, requirements based on local production of programming, operation requirements, and interference requirements, as well as other items.

Generally, the LPPA limits filing eligibility to those LPTV stations that can demonstrate that they operated as of January 5, 2023 in a DMA with not more than 95,000 television households. Further, during the period of October 7, 2022 through January 5, 2023 (i.e., 90 days before enactment of the LPPA), stations must have satisfied all of the requirements both for LPTV stations as well as for Class A stations under the Community Broadcasters Protection Act, which established the Class A TV service. Lastly, converted stations would be subject to the same terms and renewal standards as a full-power TV licensee and would generally be required to remain in compliance with the LPPA’s eligibility criteria during the term of the station’s license.

The FCC has not yet indicated when the filing window would open, but the R&O provides that the window will be open for a period of one year, absent circumstances that prevent a licensee from timely filing, which will be evaluated on a case-by-case basis.

Stay tuned for updates on this filing window, and if you have any questions regarding the draft R&O or the proposed filing window, please contact your FHH attorney. Happy Thanksgiving!

Reminder: November 29th Deadline for FCC Filing to Protect 12.7-13.25 GHz Broadcast Auxiliary/Cable Relay Licenses

We remind parties with 12.7 – 13.25 GHz (“13 GHz”) Broadcast Auxiliary/Cable Relay licenses that you have until November 29, 2023 to make a filing at the FCC to protect those licenses, as the FCC moves towards repurposing some or all of that band for other uses.    

In a May 19, 2023 Notice of Proposed Rulemaking, the FCC proposed to repurpose some of the 13 GHz Band for use as mobile broadband.   In that Notice, the Commission proposed to define certain incumbent operations entitled to protection or relocation during a transition period, based on the FCC’s licensing records.   For most Broadcast Auxiliary (“BAS”) and Cable Relay  (“CARS”) licenses, the Commission proposed to limit eligibility for protected  incumbent status to licenses for which the licensee has filed a required certification regarding the accuracy of the information on their licenses, and that the licenses remain in use.   The only exception to this filing requirement is for BAS/CARS licenses filed for after January 1, 2021.  

In a subsequent Public Notice, the FCC provided detailed instructions as to how to make the required filing in FCC databases.   Entities with 13 GHz BAS or CARS licenses who seek to maximize the protection of those licenses should review the instructions in the Public Notice and file the required certification.    

If you have questions about these requirements, or need assistance in filing, please contact us.  

FCC Announces Another Round of EEO Audits

On October 30, 2023, the FCC released yet another list of broadcast stations that will be audited regarding their compliance with the FCC’s Equal Employment Opportunity (“EEO”) rules. Licensees of the audited stations will have to upload their audit responses to their online public inspection files by December 14, 2023.   

Approximately twice per year, the FCC randomly selects stations for audit to ensure that they are fulfilling their EEO obligations.  Broadcast “Employment Units” (as that term is defined by the FCC) with five or more full-time employees (30+ hours per week) are required to recruit broadly for minority and female applicants for job openings, and, critically, to document their efforts.  For broadcast employment units with fewer than five full-time employees, an audit response is still required, but response requirements are less rigorous.   

It is essential that stations keep detailed records of their recruitment activities as they will be expected to produce relevant documentation if they are audited.  If you do the job but forget your homework, you can be in for a world of trouble. 

If your station is on the FCC’s EEO audit list, be sure to carefully review the instructions provided in your audit letter and if you have any questions, contact your FHH attorney for guidance.