This Week in Regulation for Broadcasters

Here are some of the regulatory developments of significance to broadcasters from the last week (6/11-17), with links to where you can go to find more information as to how these actions may affect your operations.

• Comment dates have been announced in the Federal Register for the FCC’s Notice of Proposed Rulemaking proposing to authorize LPTV stations operating on TV channel 6 to continue to provide an analog audio stream that can be received on FM radios at 87.7. Comments are due July 18, 2022; reply comments are due August 1, 2022.  The proposal would limit that authorization in many ways, including suggesting that the authority would be restricted to those LPTV Channel 6 stations already providing such an audio service.  The Notice also asks for comments as to whether Channel 6, in geographic areas where it is not currently used for TV services, should be repurposed for FM use (a proposal that has previously been advanced by the FCC, see our Broadcast Law Blog article here on previous FCC requests for comment on this issue).
• The Radio Music License Committee has asked a single court to decide what a reasonable license fee would be for royalties owed by commercial broadcasters to both ASCAP and BMI. Both the ASCAP and BMI licenses with the radio industry expired at the end of 2021.  As both ASCAP and BMI routinely argue in license proceedings that they have the largest share of the music played by radio stations, RMLC suggests that a combined case, arguably permitted for the first time by the Music Modernization Act, would allow for this issue to be decided in a uniform way by a single judge.  See the RMLC press release for more information.
• The FCC’s Video Division proposed to fine a television translator permittee $6500 for filing an application for a license to cover its displacement construction permit over three years after completing construction and nearly six months after its permit expired. As no license had been filed before the permit expired, this fine also covered the unauthorized operation of the station during the six months after the permit expired. The mere fact that the FCC’s database did not reflect the cancellation of the permit after its expiration did not excuse the late filing.  When completing construction of new facilities authorized by a construction permit, a broadcaster must file a license application demonstrating that construction was completed as authorized by the permit.
• Issues with a license application resulted in the FCC’s Audio Division rescinding the license of an FM translator. The FCC found that the licensee had falsely stated in its license application that it had completed construction at its authorized location.  The licensee had instead constructed its facilities in a recreational vehicle (“RV”) park approximately 30 yards away from its authorized site, receiving power through a permanent electric outlet shared with an RV.  The FCC emphasized that “[c]onstruction permits expire automatically and are forfeited if the facilities authorized therein are not completed by the established deadline; use of an alternate site or construction of temporary facilities does not prevent such forfeiture.” As an alternate basis for rescission, the FCC also found that the licensee had failed to comply with a condition in its license requiring continuous operation for the first year and establishing that station silence within that period evidenced unlicensable, temporary construction (the Media Bureau has placed this condition on all new radio broadcast licenses since 2015 to address perceived abusive practices in the industry).  As evidence of the temporary construction, the FCC cited, among other things, the fact that RVs are inherently mobile and also noted the absence of any written lease with the RV owner or any agreement with the landowner of the RV park.
• The FCC’s Video Division also proposed to fine a full power television licensee $6,000 for failing to timely file its quarterly issues/programs lists and failing to report these violations in its license renewal application. Specifically, the licensee uploaded one list to its online public inspection file more than one year late, and seven lists between one month and one year late. The FCC also found, however, that the licensee’s violations did not constitute a “serious violation” warranting designation of the license renewal application for hearing, it would grant the license renewal application at the conclusion of the forfeiture proceeding if there were no other issues with the application.
• The FCC’s Enforcement Bureau issued Notices of Illegal Pirate Radio Broadcasting to two property owners for allegedly hosting unlicensed FM broadcast stations in Queens, New York and Newark, New Jersey, respectively. The Notices each included the following language: “[Y]ou are hereby notified and warned that the FCC may issue a fine of up to $2,000,000 if, following the response period set forth below, we determine that you have continued to permit any individual or entity to engage in pirate radio broadcasting from the property that you own or manage.”

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access). There are no additional costs for the call; the advice is free as part of your MAB membership.