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 released the final text of its Report and Order eliminating the 39% national TV ownership cap – an Order adopted at its August Open Meeting (see our note here). The FCC will now do a case-by-case review of any proposed TV combination exceeding the 39% cap to see if it is in the public interest by weighing factors including the transaction’s potential benefits (e.g., increased local programing and innovation) and its potential harms (e.g., decreased local programming, increased retransmission consent fees, and loss of jobs of communications workers). By abolishing the cap, the FCC appears to be starting from a position that the cap is no longer necessary so any objections to proposed combinations that would exceed the current cap must provide specific showings why the transaction before the FCC would harm the public interest (e.g., by showing historical tendencies of the acquiring company to engage in conduct that produced negative results).
- FCC Commissioner Gomez issued a dissenting statement repeating her earlier statements (see our note here) that only Congress could change the cap and that eliminating the cap risks greater consolidation, less independent/local news, reduced viewpoint diversity, and higher retransmission-consent costs.
- The FCC released a Report and Order and Further Notice of Proposed Rulemaking significantly revising the FCC’s procedures under the National Environmental Policy Act (NEPA) for determining if constructing communications facilities, including broadcast towers, affect the environment. These reforms include limiting the scope of the FCC’s NEPA review, streamlining and expediting the FCC’s NEPA review process, and requiring NEPA review for broadcast activities only if a new tower needs an Antenna Structure Registration. The FNPRM seeks comment on the FCC’s related National Historic Preservation Act (NHPA) framework, including whether the FCC’s licensing procedures trigger NHPA review and whether the FCC should change its NHPA procedures like it did with NEPA.
- The FCC released a Memorandum Opinion and Order concluding that a TV station can be a must-carry signal in only one DMA. This overturns a 2024 Media Bureau decision finding that DISH Network had to accord must carry rights to a station licensed to Opelika, AL in both the DMA where the station is located (the Columbus-Opelika, GA-AL DMA) and the market to which Nielsen assigns it (the Atlanta, GA DMA). Under the Satellite Home Viewer Improvement Act of 1999 (SHVIA) and the FCC’s satellite carriage rules, satellite TV providers must carry a TV station in its local market upon demand. This week’s Commission decision concludes that a station will receive must-carry only in the market to which it is assigned (and, if the station’s city of license is outside that market, in the county where its community of license is located). The FCC accepted DISH’s assertion that the station could choose which of the two DMAs was the one to which it is assigned and ordered the parties to come into compliance with the ruling within 30 days.
- The Media Bureau released a Public Notice announcing that it is requesting one more set of comments on the Bureau’s March Public Notice which “reminded” broadcasters that Lowest Unit Charges (LUC) apply to advertising bought by political parties and joint fundraising committees when authorized by a federal candidate (see our article here). These comments, due by October 12, with replies due October 19, seek comment on TVB’s application for review of the Bureau’s denial of its petition for reconsideration of the Public Notice. TVB argues that Section 315(b) of the Communications Act of 1934 clearly limits LUC eligibility to federal candidates and their authorized committees, the LUC violates broadcasters’ First Amendment rights by dictating their programming decisions, and the LUC Public Notice harms broadcasters economically. As the Bureau stated in last month’s Public Notice seeking comment on several Democratic candidates’ application for review of the LUC Public Notice (see our note here), failing to allow public comment on TVB’s application for review could be legally problematic. The opening of this comment period was brought to the attention of the 4th Circuit Court of Appeals by the FCC to augment its argument that the Court should not order the FCC to act on the Democratic candidate’s request to force quick Commission action on the requests to review the Public Notice (see our article here on that request), seemingly making any change in the policies announced by the Public Notice before the November elections.
- Comments and reply comments were also filed in response to the Democratic candidates’ application for review of the LUC Public Notice. Commenters were split over whether the LUC Public Notice should be rescinded. Some commenters (see here, here, and here) say that the LUC is limited to federal candidates and their authorized committees, and the LUC’s extension to political parties and joint fundraising committees decreases broadcaster revenues—particularly for smaller stations. Other commenters (see here, here, here, and here) say that the Bureau’s March LUC guidelines should stay in place as political campaigns and parties have already purchased advertising for the midterm elections, and changing those guidelines now could create legal issues for broadcasters. The Center for American Rights says that the LUC’s mandate of preferential pricing for only federal candidates and their authorized committees violates the First Amendment
- The Media Bureau released an Order in the FCC’s ongoing Delete, Delete, Delete proceeding (see our article here) deleting the FCC’s rules requiring broadcasters to file the FCC Form 395-B—an annual report that, in the past, was to be placed in stations’ online public files classifying all their employees by race, gender, and employment position. The Bureau found that the Form 395-B rules had to be deleted after the U.S. Court of Appeals for the Fifth Circuit ruled last year that the FCC lacked authority to require broadcasters to file the form (see our article here). The Bureau said that since the deletion of the rules was a ministerial action, there would not be a public comment period before the deletions take effect.
- The FCC and the FCC Wireless Telecommunications Bureau released two items concerning earth station licenses:
- The Wireless Telecommunications Bureau released a Public Notice seeking comment on the Upper C-band Transition Preliminary Cost Catalog. In July, the FCC adopted rules reconfiguring the upper C-band (3.7-4.2 GHz) for terrestrial wireless use and requiring incumbent operators to clear the band, including relocated lower C-band earth stations used by broadcasters for receiving satellite-delivered programming (see our note here). The FCC required new upper C-band licensees to reimburse eligible incumbent earth station operators for their transition costs and directed the Bureau to create a catalog of reimbursable costs. The Bureau seeks comment on the proposed cost catalog and whether the lower C-band’s reimbursement policies and procedures should be used or adjusted for the upper C-band transition. Comments and reply comments responding to the Notice are due October 20 and November 9, respectively.
- The FCC released an item updating its earth station rules and seeking comment on encouraging new and more intensive satellite communications use in certain spectrum bands. These changes include placing a filing freeze on new earth station license applications in the 12.7 GHz band, adopting a 10-year sunset period for protected terrestrial earth station operations in the 12.7 GHz band, and limiting earth station deployment opportunities in the 42 GHz band. The FCC also seeks comment on limiting earth station operations in other bands, including the Ku-Band, the Ka-Band, and the 2360-2395 MHz band, to allow new uses of those bands.
- The Media Bureau updated the FM Table of Allotments to resolve short-spacing issues created by 2 vacant FM allotments in Tennessee and Michigan. The Bureau deleted vacant Channel 288A at Selmer, Tennessee to resolve a short-spacing conflict with a nearby FM station but did not substitute the vacant allotment with another channel because there were no other channels that could resolve the issue. The Bureau also substituted Channel 258A for vacant Channel 248A at Whitehall, Michigan to resolve short-spacing conflicts to 3 nearby FM stations while keeping a second local service at Whitehall.