This Week in Regulation for Broadcasters: January 23, 2023 to January 30, 2023

Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.

• The FCC issued a Public Notice extending the deadlines for all filings in the FCC’s LMS or online public file systems.  The new deadline is February 28, 2023.  The extension was necessitated by widespread technical issues throughout the month of January with the FCC’s LMS and online public file systems.  The February 28 deadline applies to TV license renewal applications in New York and New Jersey, Annual Children’s Programming Reports, Quarterly Issues Programs lists for all broadcast stations (the deadline for which was already extended once before), and EEO Public File Reports for broadcast employment units with 5 or more full-time employees in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma.  Notwithstanding the extension, licensees should not wait until the last minute to upload documents, as there may still be residual issues with the system for some time.  For more details about the extension and about other technical issues with the FCC’s filing systems, see the article we recently published on our Broadcast Law Blog.  
• The FCC issued a Notice of Apparent Liability (NAL) proposing a penalty of $504,000 against Fox Corporation and related entities for apparently violating Section 11.45(a) of the FCC’s rules, which prohibits false or deceptive emergency alert system (EAS) codes or EAS Attention Signals.  According to the NAL, on November 28, 2021, Fox transmitted a three second excerpt of the EAS Tones during a Fox National Football League broadcast in a short comedic promotional segment for an upcoming game.  The segment was run on its 18 owned-and-operated stations, on 190 network affiliated stations, on Fox Sports Radio (reaching nearly 15 million listeners on iHeartRadio and FOXSportsRadio.com), and on the “Fox Sports on XM” channel carried nationwide on the Sirius XM satellite digital audio radio service.  The FCC applied an $8,000 base penalty multiplied by 18 (i.e., the number of Fox owned-and-operated stations involved) to arrive at a total base penalty of $144,000, with an upward adjustment to $504,000 due to the audience reach of the Fox stations, the fact that the creation and transmission of the segment involved self-promotion by Fox for the purposes of economic gain, and as Fox is an experienced broadcaster well aware of the FCC rules.  While the FCC also found Fox responsible for transmitting the segment to its affiliates nationwide in violation of the rule, the FCC did not fine Fox as a programming network because the one-year statute of limitations period applicable to non-broadcasters had expired.
• The FCC’s Audio Division released a Public Notice informing broadcasters that 2020 census data is now available and should be used for all technical applications when computing areas and populations served by any proposal.  The Notice also describes the Census Bureau’s new list of Urbanized Areas, relevant to FCC applications including those that involve an analysis of the Commission’s Rural Radio policy. 
• The Copyright Royalty Board published in the Federal Register the proposed rates for the public performance of musical compositions by noncommercial broadcasters for the period 2023 through 2027.  The rates reflect settlements between ASCAP, BMI, SESAC and GMR with various organizations representing noncommercial broadcasters, including the Corporation for Public Broadcasting and the NRB (the religious broadcasters’ organization which has a noncommercial licensing committee).  The decision also includes rates for noncommercial stations licensed to colleges, universities, and other schools.  Comments and objections, if any, to these proposed rates are due on or before February 27, 2023.  More information about the rates and the CRB proceeding is available in this article we published on our Blog.
• In 2018, the FDA announced that it would be adopting rules for CBD health claims and the inclusion of CBD in ingestible products.  The FDA this week announced that it has been unable to reach a decision, as it was not in a position to approve CBD as a food additive or health supplement, suggesting that Congress should address these issues.  Broadcasters should consult with counsel before running CBD advertising that makes health-related claims, or ads for ingestible CBD products.
• Several decisions were issued in connection with applications filed in the 2021 noncommercial FM window.
  • The Bureau rescinded its selection of the winning applicant for an NCE FM station at Dasher, Georgia, after considering a petition to deny that it did not review before the winning applicant was selected.  The Bureau had mistakenly relied on the applicant’s original population coverage analysis submitted in its application in finding the applicant to be preferred in a “fair distribution” analysis, overlooking an amended analysis submitted later.  After considering the amended analysis, the Bureau found that the winner’s coverage proposal exceeded that of the remaining competing applicant by less than the 5,000 people necessary for a decisive preference.  Accordingly, the Bureau referred the two applications to the full FCC for evaluation under its point system analysis.
  • The Bureau also rescinded the tentative selection of an applicant for a new NCE FM station at Shiner, Texas, finding that the applicant lacked reasonable assurance of the availability of its tower site when it filed its application. An NCE applicant is required to specify in its application the name of the person contacted about the site, the person’s telephone number, and the person’s authority to give permission (i.e., are they an owner, agent, or authorized representative).  The applicant instead submitted information regarding an individual employed by a tower company unrelated to the actual tower owner, and never amended its application to correct the error or to provide information that it had received permission from the tower owner.
  • The FCC issued a Memorandum Opinion and Order tentatively selecting winning applicants from 34 groups of mutually exclusive NCE FM applications using its points analysis.  The decision is a good primer on how the FCC’s point system works and what the FCC considers when performing the points analysis.
• The Bureau entered into a consent decree with a student-run NCE FM station to resolve the station’s acknowledged violation of the FCC’s rules relating to timely filing of renewal applications and maintenance of an online public inspection file.  As this was a first-time paperwork violation by a student-run station, it fell within the policy treating such violations leniently, so the consent decree required a penalty payment to the United States Treasury in the amount of only $500 and implemented a comprehensive plan to ensure future compliance by the station with the FCC’s online public inspection file and application filing obligations.
• The FCC’s Wireless Telecommunications Bureau issued updated instructions to the tower industry for considering as part of an applicant’s environmental review the potential effects that proposed facilities could have in the northern long-eared bat’s (Myotis septentrionalis) range.  The U.S. Fish and Wildlife Service’s new rule on the subject will go into effect on March 31, 2023.  The most recent Public Notice on these items is available here.
• The FCC’s Media Bureau issued a Public Notice requesting comment on a proposal that would require the FCC to consider proximity, discoverability, previewability, consistency, and persistence when determining whether closed captioning display settings are readily accessible.  The Public Notice is an offshoot of the FCC’s ongoing rulemaking on requiring manufacturers of video displays, including television sets, to make closed captioning display settings readily accessible to individuals who are deaf and hard of hearing.  Comments and reply comments will be due 30 and 45 days, respectively, from the date on which the Public Notice is published in the Federal Register.