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.
- At its regular monthly Open Meeting, the FCC adopted a Report and Order, Order of Proposed Modification, and Order on Reconsideration which reconfigures the Upper C-band (3.7-4.2 GHz) for terrestrial wireless use. This will make available spectrum in a portion of the band (3.98-4.14 GHz) to be auctioned to wireless users, with another portion of the band acting as a guard band (4.14-4.16 GHz). The Order requires clearing of incumbent operators from the band, including earth stations that recently relocated from the lower C-band such as those used by broadcasters who receive satellite-delivered programming. The Order establishes a deadline of June 30, 2031 for relocation of all incumbent operators from the band (with operators in some larger markets needing to clear the band by December 30, 2030). As with the previous lower C-band transition, the Order states that incumbent operators will be reimbursed for certain relocation costs.
- The FCC also released a Report and Order and Further Notice of Proposed Rulemaking which makes significant changes to its space and earth station rules. For earth stations, the changes adopted in the Report and Order 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. Comments and reply comments are due 30 and 60 days, respectively, after the item’s publication in the Federal Register.
- The FCC filed its brief opposing the Court challenge by several Democratic candidates to the FCC Media Bureau’s Public Notice that extended Lowest Unit Rates to joint fundraising committees and federal political parties where their ads are coordinated and authorized by federal candidates. The FCC argued that, procedurally, the challengers could not raise these arguments because they did not have “standing” to challenge the Public Notice as they were not harmed by the notice (as they could themselves take advantage of the ruling by using joint fundraising committees or coordinating with their parties – that only broadcasters are really harmed by the lower rates, and they are not involved in the appeal) and because the Public Notice can’t yet be appealed to the courts as it is not a final action of the full Commission which has not yet ruled on the challenges brought by the candidates. Substantively, the FCC argued that FEC rules say that joint fundraising committees are in fact “authorized committees” of the candidate and thus they should get LUR, and that the FCC has routinely advised broadcasters in the past that coordinated buys with political parties get LUR, the only difference is that, in light of a recent Supreme Court decision, there is more money available to the parties, and that should not change the policy that has been in place for many years. See our note here on the FCC Public Notice and our Broadcast Law Blog article here on the pending litigation. The Court is to hear oral arguments in this case on August 7 in hopes of resolving the issues before the LUR period for the November election opens in early September.
- The National Association of Broadcasters announced that NextGen TV is now available in the top 25 TV markets following the launch of ATSC 3.0 service by 5 TV stations in the Cleveland, OH market this week. The NAB stated that “NextGen TV is more than a technology upgrade,” and “is a pathway to a stronger, more resilient local broadcasting system that enhances public safety, supports local journalism and ensures communities have access to trusted, free, over-the-air service when it matters most.” The NAB also stated that “NextGen TV helps ensure local broadcasters can continue serving every community, free and over the air, including enhancing access to marquee live sports and other major local events that bring communities together.”
- The FCC’s Media Bureau granted a Lexington, Kentucky TV station’s assignment application, resulting in the assignee owning two TV stations in that market. DIRECTV filed a petition to deny against the application, alleging that the applicants failed to show that the assignment was in the public interest and arguing that the assignment would lead to higher retransmission consent fees. Citing its recent approvals of TV station assignment applications where DIRECTV raised similar arguments (see our notes here, here, here, here, and here), the Bureau again found that a special public interest showing was not required for applications complying with the Local TV Ownership Rule’s two-station limit, and that DIRECTV’s additional arguments about the transactions’ harms were speculative.
On our Broadcast Law Blog, we posted an article that discussed the debate about the FCC’s proposed plan to raise the 39% national TV ownership cap. We also, in light of a recent lawsuit against a radio broadcaster for using copyrighted photos on its Facebook page without consent of the copyright holder, posted an article that discussed how using photos on social media sites without permission can cause legal issues for broadcasters.