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.
- In Trump v. Slaughter, the U.S. Supreme Court affirmed the President’s power to remove independent federal agency heads by upholding his firing of an FTC Commissioner—a decision seemingly giving the President the power to fire members of most Congressionally created “independent agencies” that exercise executive duties including interpreting and administering laws. This likely includes the FCC, the SEC, and many other government commissions and agencies. The decision overturned a 1935 Supreme Court decision called Humphrey’s Executor, which had limited the President’s power to remove the heads of independent agencies. This decision could lead to more partisan administrative agencies with larger policy shifts from one Presidential administration to another. On our Broadcast Law Blog this coming week, we plan to write more about the impact of this decision.
- President Trump posted on Truth Social that the Slaughter decision was a “BIG WIN” and a “Historic and Unprecedented Ruling” and noted that the decision “greatly increas[es] Presidential Power at a time when it is most needed!”
- FCC Commissioner Gomez released a statement critical of the Slaughter decision, stating that it “puts at risk how Congress intended independent agencies to function in American democracy.” She stated that “Independent agencies exist to make decisions based on facts and the law…. [W]hen commissioners can be removed for their policy views rather than for cause, the inevitable result is an agency that pulls its punches and defers to political winds rather than the record before it.” Gomez also stated that “we are already seeing what political control of this agency looks like in practice, through investigations targeting broadcasters and government critics for coverage this administration finds unfavorable.”
- The Supreme Court also released its decision in National Republican Senatorial Committee v. Federal Election Commission, holding that federal political parties can coordinate their campaign activities, including their advertising spending, with their candidates. Before this decision, parties were only able to spend a small amount of money in coordination with their federal candidates. Based on a March Public Notice released by the FCC’s Media Bureau stating that coordinated party spending is to be accorded lowest unit rates in the 45 days before a primary and the 60 days before a general election, the Court’s decision will likely mean much more political advertising will be at lowest unit rates as parties, who previously had to buy at issue rates, will now be able to place ads authorized by federal candidates at the LUC rates. For more on this decision and some of the issues it leaves unanswered, see our Broadcast Law Blog article here.
- The FCC released the full text of its Report and Order and Further NPRM adopted at its regular monthly Open Meeting last week to increase the security of the Emergency Alert System (EAS). As we detailed in our article here, the Order requires that broadcasters, within 60 days, comply with new rules setting out a three-point program to secure their EAS equipment, studio transmitter links, and any remotely managed equipment used for routing, processing, or inserting content into their programming streams. The requirements include stricter password controls, updates to EAS systems and equipment, and putting all parts of the system behind a firewall or otherwise isolating it from other Internet-connected devices. The FNPRM seeks comments on several other proposals including whether to require authentication of all EAS alerts before transmission, taking other steps to make EAS alerts more accurately targeted, and whether software-based EAS encoders/decoders should be allowed in addition to the current hardware devices.
- The FCC released two draft items on satellite earth station issues that it will consider at its next regular monthly Open Meeting on July 22:
- The FCC released a draft Report and Order and Further Notice of Proposed Rulemaking, which, if adopted, would make significant changes to its space and earth station rules. For earth stations, the changes would include extending license terms to 20 years; allowing earth stations to be licensed on a nationwide, non-site basis; permitting conditional grants for earth stations while frequency coordination remains ongoing under certain circumstances; and standardizing and streamlining earth station application procedures and processing. In the FNPRM, the FCC seeks comments on several issues including whether to retain rules for receive-only earth stations, possible revisions to certain earth station technical rules and definitions, and further refinements to the nationwide, non-site earth station license rules.
- The FCC also released a draft Report and Order, Order of Proposed Modification, and Order on Reconsideration, which, if adopted, would reconfigure the Upper C-band (3.7-4.2 GHz) for terrestrial wireless flexible use through an auction of a portion of the band (3.98-4.14 GHz) with a portion of the band acting as a guard band (4.14-4.16 GHz). This will require the clearing of incumbent operators from the 4.0-4.16 GHz portion of the band, including earth stations that recently relocated from the lower C-band. This will include broadcasters who receive satellite-delivered programming in that band. The draft item establishes a deadline of June 30, 2031 for relocation of all incumbent operators from the 4.0-4.16 GHz portion of the band (which some operators will have to clear by December 30, 2030). As with the previous lower C-band transition, the draft item states that incumbent operators will be reimbursed for certain relocation costs. The draft item also states that incumbent operators remaining in the 4.16-4.2 GHz portion of band will receive interference protection.
- The FCC announced that June 30 is the effective date of its May Report and Order streamlining Disaster Information Reporting System (DIRS) filing obligations, which are voluntary for broadcasters. While under FCC Chairwoman Rosenworcel, the FCC proposed requiring TV and radio stations to report their operating status during disasters in the FCC’s DIRS database (see our note here), the Order did not make the filing mandatory. The FCC did adopt a “one-click” filing option to reduce all DIRS participants’ filing burdens.
- The FCC issued a $40,000 fine against an individual in Waterbury, Connecticut for operating a pirate radio broadcast station. The pirate broadcaster now has 30 days to pay the fine, or the FCC may refer the case to the U.S. Department of Justice. The FCC itself cannot sue to collect fines or take actions against individuals who ignore these fines. It must rely on the DOJ to enforce them in Court.
On our Broadcast Law Blog, in addition to the articles on the steps broadcasters are required to take to secure their EAS systems and on the impact of the Supreme Court decision on political parties being able to coordinate their spending with their candidates on broadcasters’ obligations to offer lowest unit rate to party ads and, we highlighted July regulatory dates and deadlines affecting broadcasters.