This Week in Broadcast Regulation: October 17, 2020 to October 23, 2020
Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.
- The FCC’s International Bureau released a Public Notice on its review of the requests for “lump sum reimbursement requests” for stations that have C Band earth stations that will be affected by the repacking of the band for wireless uses. The Public Notice contains a list of all applications for lump sum reimbursement and the status of each applicant’s request. While most applications are listed as “approved,” for applicants with identified issues with their requests, the Public Notice says that failure to resolve the issues by October 28 may result in dismissal of the lumps sum reimbursement requests, though applicants would still be eligible for the normal reimbursement process. (Public Notice)(List of requests for lump sum reimbursement)
- A window to submit applications for new noncommercial educational FM stations will open in 2021. This week, the Commission asked for comments on its tentative conclusion to limit parties to submitting ten applications during the window, which was the same limit imposed in 2007 during the last noncommercial reserved-band window. The Commission reasons for the proposed limit include that it will prevent mass filings by speculators, avoid some instances where applications are mutually exclusive, and allow for quicker processing of applications by FCC staff. Interested parties should start preparing their comments, as those comments will be due 15 days after the Public Notice is published in the Federal Register. Reply comments will be due 10 days after the comment deadline date. (Broadcast Law Blog) (Public Notice)
- After voting in August to eliminate the radio program duplication rule for AM and FM stations, the rule change became effective October 22. The rule had prohibited radio stations in the same service (AM or FM) that have over 50% overlap of their principal community contours (the 70 dBu contour for FM stations and the 5 mV/m contour for AM stations) from duplicating more than 25 per cent of the total hours in their average programming week. We covered the rule repeal on the blog in August, and posted a short note on this week’s abolition of the rule. (Federal Register)
- FCC General Counsel Thomas M. Johnson, Jr. published a blog post laying out the legal reasoning behind why the FCC has the authority to interpret and clarify Section 230, the section of the Communications Act that gives online platforms immunity from liability for what third-party users post on those platforms. Johnson points to language of the statute and to Supreme Court cases that held that the Commission has authority to interpret the Communications Act unless the Act specifically says that authority rests elsewhere. As Section 230 is part of the Communications Act and makes no mention of removing the FCC’s authority to interpret it, Johnson argues that the FCC is free to interpret the section’s language, just as it does for other parts of the Communications Act. We noted in our blog post from June that there are plenty of debates over whether the FCC has the power to interpret Section 230 and Johnson’s 2,600+-word blog post appears to be an attempt to anticipate those arguments. Watch for a Notice of Proposed Rulemaking on Section 230 soon.
- On the blog this week, we posted our thoughts on how broadcasters can re-think their EEO programs and compliance efforts to tailor them to the pandemic reality we live in. Depending on where your station is in your two-year EEO reporting period, your station might need to get creative to satisfy the non-vacancy specific outreach efforts (the “menu options”) required by the rules. We note in the post that, unlike other areas where the FCC has issued waivers or otherwise shown leniency about compliance, EEO is still a priority for the Commission and, in fact, random audits have continued throughout the pandemic. (Broadcast Law Blog)
- We looked at the Broadcast Diversity in Leadership Act, introduced last month in the House of Representatives by former radio broadcaster and current Member of Congress, Greg Walden (R-Ore). The bill seeks to put into law much of what the FCC has tried to do with its incubator program, fostering ownership by minorities and other new entrants. The FCC’s program was blocked by the Third Circuit Court of Appeals decision on the broadcast ownership rules that is now before the Supreme Court for review. With so few days left this year on the legislative calendar and Congressman Walden’s retirement at the end of the year, it will fall to another Member of Congress to run with this effort in the next congressional session. (Broadcast Law Blog)
Looking ahead to next week, the FCC will hold an Open Meeting on Tuesday, October 27. Broadcasters will be watching three items: A Report and Order that would expand audio description requirements to more markets, a Report and Order that would authorize all-digital AM transmission, and a Report and Order that would allow expanded use of higher-powered unlicensed devices in the TV white spaces (industry reporting indicates we could see a Further Notice of Proposed Rulemaking that incorporates changes sought by Microsoft). We took a closer look at these three items when the drafts were released. The meeting will again be conducted virtually and can be viewed here.