David Oxenford

By: David Oxenford, Wilkinson Barker Knauer

Editor's note:  On Thursday, November 21, the MAB will present a free webinar for members titled "The Election is Over - What It Means for Broadcasters for 2025 and Beyond" with David Oxenford and Shawn Donilon, head of Government Relations for the NAB. Register Here.

With the election over, broadcasters and their Washington representatives are now trying to decipher what the next administration will have in store at the FCC and other government agencies that regulate the media.  Already, the DC press is speculating about who will assume what positions in the government agencies that make these decisions.  While those speculations will go on for weeks, we thought that we would look at some of the issues pending before the FCC affecting broadcasters that could be affected by a change in administration.

There are two issues presently before the courts where the current Republican Commissioners dissented from the decisions which led to the current appeals. The FCC’s December 2023 ownership decision (see our summary here) is being appealed by both radio and television interests, arguing that the FCC did not properly relax the existing ownership rules in light of competition from digital media, as required by Congress when it established the requirement for Quadrennial Reviews to review the impact of competition and assess whether existing radio and TV ownership rules remain “necessary” in the public interest.  While briefs have already been filed in that case, it will be interesting to see how the new administration deals with the issues raised, as both sitting Republican Commissioners dissented, saying that the FCC should have considered digital competition in substantially relaxing those rules (see Carr dissent here and Simington Dissent here).  Even if the change in administration does not change the Commission’s position in court, the 2022 Quadrennial Review has already been started (see our article here), so a new administration already has an open proceeding to revisit those rules.

Similarly, the FCC’s reinstatement of the Form 395-B annual report on the race, ethnicity, and gender of all broadcast employees was also opposed by the two Republican commissioners (see our article here on the reinstatement of the form).  Issues have been raised as to why, after 20 years of inaction, the FCC decided that it had to quickly reinstate the form and make the form a public document when, for the decades when it was not in use, the FCC was trying to craft a way to collect general information on industry employment trends without requiring that the information  be made public on a station-specific basis.  Challenges to that decision are already pending in the courts, and the NAB has sought reconsideration of the Commission decision.  One way or another, it would appear that a review of the Commission’s action is likely, perhaps even before the Form 395-B receives OMB approval (which is currently holding it up from being effective).

There are many other pending issues at various stages of review that may also be affected by a new FCC.  The FCC currently has a proceeding pending on whether to impose a requirement on broadcasters to disclose when artificial intelligence is used in political advertising (for details, see our article here).  That proposal was opposed by the Republican Commissioners, questioning whether the FCC had the jurisdiction or expertise to impose these requirements.  In a Republican administration, it may well be that this proceeding will not advance any further.

The enhanced sponsorship identification required for programing sponsored by a foreign government was a bipartisan effort that requires, since 2022, that broadcasters get certifications from the buyers of program time on their stations that assure the broadcaster that the programmers are not representatives of foreign governments.  While the initial rules were bipartisan, the recent extension of the rules to cover spot advertising that is not for a commercial product or service or for a political candidate (including paid PSAs and non-candidate political ads)(see our article here) was opposed by the Republican Commissioners as being beyond the scope of the rulemaking itself.  As various requests for review of that decision are pending, perhaps this regulatory expansion is another issue that will be re-examined by a new Commission.

The NAB also has a pending petition for reconsideration of the FCC’s decision to reinstate the FM non-duplication rule (see our article here).  This rule prohibits commercial FM stations from duplicating more than 25% percent of the programming of a commonly owned or brokered station, if the stations’ contours overlap by more than 50%.  The NAB argues that the FCC had no basis for reinstating the rule and failed to seek public comment to determine if, in the 4 years when the rule was not in effect, any real public interest issues developed from its absence.  We anticipate that a Republican-led Commission will likely look more favorably on the NAB’s petition, given that both Republican Commissioners dissented from the FCC’s decision to reinstate the rule.

Commissioner Simington has also been concerned about the FCC’s continued authority to issue fines following a Supreme Court decision last term that suggested that there were limits on an agency’s ability to impose fines without a jury trial.  The Commissioner has been seeking a Commission review of its power to issue “forfeitures,” i.e., fines, and how that power may be affected by this court decision, so it would not be a surprise if such an examination took place.

There are a host of other pending technical issues which, while not necessarily partisan, have nevertheless been languishing in the current FCC.  Consideration of whether online streaming services that carry local television stations – virtual cable systems or vMVPDs – should be regulated like cable and direct broadcast satellite stations for must carry and retransmission consent purposes.  Thus far, the FCC Chair, despite requests from Congress, has withheld refreshing a record on this issue that was last compiled about a decade ago.  Broadcasters will be watching whether there is a change in this position in a new administration.

In the last Trump administration, the President asked the FCC to review Section 230 of the Communications Decency Act which insulates big tech platforms from liabilities for posts on their platforms that come from third parties (see our articles here and here).  Both political parties have questioned the breadth of Section 230, though there have been questions as to whether the FCC has jurisdiction to review these platforms.  A new administration could revive that effort.

Other issues on the table include the television transition to ATSC 3.0, including whether there should be a sunset date for the current ATSC 1.0 transmission system.  Proposals for technical reforms of AM and FM rules – including the possibility of a Class A10 FM station – are on the table, and these issues are not necessarily partisan.  Nevertheless, they could possibly advance in a new administration.

Beyond these specific areas, new Commissions can change broadcast regulation by the processing of routine applications and through their general attitude toward regulation and enforcement.  Often the FCC wants to solve perceived issues through more paperwork – but the last Republican administration conducted a concerted push to abolish unnecessary broadcast regulations (see our articles here and here).  Many broadcasters would welcome the reinstitution of that effort, and have the FCC look at abolishing other rules that impede the functioning of an efficient market (see, for instance, our article here on the rural radio rules) or that impose unnecessary “gotcha” paperwork obligations or fines.  Aggressive enforcement of vague or unclear broadcast regulations (see, e.g., the fines we noted here imposed on broadcasters who purchased network affiliations when there were no rules against doing so or the fine noted here based on interpretations of the rules on “sidecar” arrangements) are also a matter of regulatory attitude at an administrative agency.  We will all be looking at how these matters will be handled in a new administration.

I’ll be conducting a webinar on how the transition may affect broadcasters for many state broadcast associations on November 21.  I will be joined by Shawn Donilon, head of the NAB’s government relations team, who will likely discuss many of the changes in Congress and how those will affect media regulation.  Check with your state association to see if it is participating in this webinar.

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.