Civil Law

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’s Enforcement Bureau released its second EEO audit notice for 2023, which targets 150 radio and television stations for review of their EEO compliance.  The FCC randomly audits approximately 5% of all broadcast stations each year regarding their EEO compliance.  Audited stations and their station employment units – which are commonly owned stations serving the same area – must provide to the FCC their last two years of EEO Annual Public File Reports and documentation demonstrating that the stations did everything that is required under the FCC’s EEO rules.  Audited stations have until December 14, 2023 to upload that information to their online public inspection files.  As with the last FCC audit, the FCC staff will review the audit responses and ask for additional information if they find the public file documentation to be incomplete, but they will not inform audited stations that their EEO performance was found satisfactory.  See this week’s blog article here for more detail on the EEO audit and how seriously the FCC takes broadcasters’ EEO obligations. 
• The White House issued an executive order directing federal agencies to address the risks of generative AI.  The order is quite lengthy and includes some matters of potential interest to broadcasters.  For instance, the order directs the Department of Commerce to protect Americans from fraud and deception from “synthetic media” and other uses of AI by identifying standards and best practices for detecting AI-generated content and authenticating official content.  We recently wrote here and here about the legal issues from AI-generated content facing broadcasters in both the evaluation of political ads and the concerns about falsification of celebrity endorsements and other content.  The order also encourages the FTC to exercise its authority to promote a fair, open, and competitive AI system.  We noted here the FTC’s recent investigatory hearing on the harms of generative AI to the creative community.  While this week’s order encourages the FCC to consider actions related to how AI will affect communications networks and consumers, the FCC thus far has considered AI matters only as to robocalls and not yet generative AI matters directly impacting broadcasters. 
• The FCC this week released a Second Order and Second Notice of Proposed Rulemaking on changes to the use of the 6 GHz band to encourage more unlicensed wireless use in that band (including expanded wi-fi).  That band is currently used for many things including Broadcast Electronic News Gathering and Auxiliary Services.  In its Order, the Commission rejected requests by the National Association of Broadcasters to limit the power of these unlicensed uses, accepting arguments from tech companies that any interference can be managed.  The Commission did ask for additional comment on whether there should be restrictions on the use of these devices near EMG “receive sites” including ENG trucks and, if so, what limits should be imposed.
• The FCC’s Media Bureau partially granted two Pennsylvania television stations’ request for waiver of the significantly viewed exception to the FCC’s network non-duplication and syndicated exclusivity rules.  Under the FCC’s rules, if a local television station has exclusive rights to distribute network or syndicated programming within a market, cable operators in that market are precluded from carrying a duplicating program broadcast by a “distant” station located in another market – unless the distant station is “significantly viewed” in that market.  A television station, however, may seek to reinstate its exclusivity rights against such a distant station by demonstrating that the station is no longer significantly viewed in the market.  Here, the television stations located in the Johnstown-Altoona, PA market sought to reinstate their exclusivity rights against a distant station located in the Pittsburgh, PA market which was being carried by cable operators within the Johnstown-Altoona market.  The Bureau concluded that the Johnstown and Altoona stations’ network affiliation agreements granted them exclusivity rights in certain communities in their market – known as a “zone of exclusivity.”  Furthermore, the Bureau found that while the stations provided sufficient information demonstrating that the Pittsburgh station was no longer significantly viewed in certain communities within the stations’ zones of exclusivity, they did not provide enough data to make such a determination in other communities.  Therefore, the Bureau only granted the waiver for the communities where the stations had provided sufficient data that the Pittsburgh station was no longer significantly viewed. 
• The FCC’s Media Bureau continues to substitute UHF channels for VHF channels to improve reception of the digital signals of over-the-air television channels, the most recent example being its substitution of channel 34 for channel 11 at Des Moines, Iowa.  In that decision, the Bureau also substituted vacant channel 34 for vacant channel 21 at Ames, Iowa to ensure that the Des Moines channel substitution met the FCC’s distance separation requirements. 
• The FCC’s Media Bureau issued an Order to Pay or to Show Cause to a Missouri FM station, proposed to revoke the station’s license unless, within 60 days, the licensee pays the delinquent regulatory fees and interest, administrative costs, and penalties.  According to the Order, the FCC’s records indicate that the station currently has unpaid regulatory fee debt totaling $ 25,893.90 for FYs 2010 through 2023.
• The FCC’s Media Bureau issued three Forfeiture Orders against a LPTV station and four TV translator stations for failure to timely file their license renewal applications.  In these decisions, the Bureau continued its recent practice of assessing a $ 1,500 fine against a LPTV or TV translator station for failure to timely file a license renewal application.  In the first decision, the Bureau issued a $ 1,500 fine against the licensee of an Oregon LPTV station for filing its renewal over one month late.  In the second decision, the Bureau issued a $ 4,500 fine against the licensee of three Washington TV translators for filing their renewals over two months late.  In the final decision, the Bureau issued a $ 1,500 fine against the licensee of a Montana TV translator station for filing its renewal over one month late.

Last Monday was the 85^th anniversary of the radio broadcast of the Orson Welles production of The War of the Worlds.  To note this occasion, we published an article on our Broadcast Law blog examining whether the panic that broadcast caused could happen today in light of the FCC’s rule prohibiting the broadcast of hoaxes and other FCC rules seeking to bar programming that upsets audiences or potentially imperils public safety – such as false EAS tones. 

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