This Week in Regulation for Broadcasters

Here are some of the regulatory developments of significance to broadcasters from the last week (5/14-20), with links to where you can go to find more information as to how these actions may affect your operations.

• The FCC issued a draft Notice of Proposed Rulemaking to be considered at its required monthly open meeting on June 8 that asks for public comment on its proposal 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. Its 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).  If the FCC adopts this Notice at its June meeting, comment dates will be announced by a Federal Register publication (draft Notice of Proposed Rulemaking).
• The FCC, at its May open meeting held Thursday, adopted its order approving the use of computer modeling for FM directional antenna – eliminating the need under current rules for a measured relative field pattern verified through either a full-scale mockup or a scale model on a test range or in an anechoic chamber. The Order will be effective at a later date after publication in the Federal Register (Report and Order).
• The FCC’s Office of Economics and Analytics issued the FCC’s annual call for comments on the State of Competition in the Communications Marketplace. Comments are due July 1 with reply comments due August 1.  These comments are used to prepare a report to Congress on communications competition issues and are sometimes referenced by the FCC itself in proceedings dealing with competition issues.  The FCC seeks comments on a list of questions about competition in both the Video and Audio marketplaces, including the impact of digital competitors on traditional providers and the role that regulation plays in the competitive landscape (Public Notice).
• In its continuing review of applicants for new noncommercial FM stations filed during the filing window in 2021, the FCC reversed a decision granting an application for a new station in Mississippi based on its proposed coverage. The decision was reversed as the FCC found that a showing of the populations covered by the proposed new station, which supported the claims for that preference, was not filed by the deadline date for the filing of applications.  As the FCC procedures for the filing window required all claims for preferences be filed by the application deadline, the grant was rescinded, and another application was granted instead (Letter Decision).
• In Auction 112, the sale of construction permits for 27 new full-power TV stations, mostly in rural western markets, the FCC announced that there were 10 qualified applicants who had paid their upfront fees to participate in the auction where bidding is scheduled to begin on June 7, 2021. (Public Notice)(List of Qualified Bidders)
• On Capitol Hill, a bipartisan group of 4 senators introduced legislation which, if adopted, would force large online platforms to own only one of the three parts of the digital ad ecosystem – they could only be a Supply-side ad provider (bundling advertising availabilities to provide them to an ad exchange), an Advertising Exchange (where buyers and sellers are matched) or a Demand-side provider (where those buying advertising come to buy ads on the exchanges). Smaller digital advertising platforms would also be regulated to require more transparency and to avoid internal conflicts of interest.  The proposed legislation is intended to boost competition in digital advertising sales and to lower the costs allegedly imposed by the overlapping interests of companies with interests in multiple aspects of the digital ad sales process.  (Press Release)(Summary)(Text of Proposed Legislation)
• At a meeting this week, the Federal Trade Commission announced that it is considering changes to its endorsement guidelines which regulate false and misleading reviews of products and services, and which require disclosure of anything that the endorser receives in exchange for its review. While principally targeted to online marketing, these rules also apply to endorsements on more traditional media platforms.  (Press Release)(Notice of Proposed Changes and Request for Comments)

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.