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 Republican National Committee, along with the Texas Republican Party and four Republican candidates, filed suit against the FCC in US District Court in Texas arguing that the FCC’s application of the lowest unit rate rules was unconstitutional as those rules discriminated between different types of political speakers by forcing stations to give their lowest advertising rates only to candidates, and allowing stations to charge more to parties (and, though not stated in the complaint, other political advertising buyers like PACs). The RNC argues that it is unconstitutional for the government to favor certain classes of political speakers over others who may be delivering messages on the same issues. The RNC asks that, alternatively, all election-related ads get lowest unit charge rates, or that LUC be declared unconstitutional so that no one, including candidates, gets LUC. No responses to this lawsuit have yet been filed. As the lawsuit alleges that Democratic candidates are advantaged by LUC as those candidates tend to raise more money from direct donations to candidates, we would expect Democratic Party representatives to oppose the relief requested in this lawsuit.
- The FCC’s Media Bureau released a Public Notice announcing that comments and reply comments are due December 14 and January 13, respectively, in response to a broadcast consulting engineer’s petition for rulemaking proposing changes to the FCC’s FM station spacing rules to provide FM stations with more leeway to relocate to existing towers from aging towers or lost tower sites. The petitioner proposes allowing FM stations to relocate to existing towers at closer distances than allowed under current rules (including at spacings less than allowed for short-spaced stations under Section 73.215 of the FCC rules which currently permit short-spaced stations but sets absolute minimum required separations that are generally enforced strictly) if the move does not create more interference to short-spaced stations than would be permitted under the current rules. The petitioner states that constructing new towers is not always an option for relocating stations due to tower construction costs and zoning and environmental constraints, and notes that constructing new towers is especially cost prohibitive for stations in smaller markets. The petitioner also notes that allowing such moves should not create unacceptable interference as reserved band FM stations can already make such moves since they are exempt from the minimum distance requirements that apply to commercial stations under the existing rules.
- The FCC announced that comments and reply comments are due November 25 and December 28, respectively, in response to its July Further Notice of Proposed Rulemaking concerning changes to its space and earth station rules. In the accompanying Report and Order, the FCC made significant changes to its earth station rules, including 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 comment on several issues including whether to retain rules for receive-only earth stations, revisions to certain earth station technical rules and definitions, and further refinements to the nationwide, non-site earth station license rules.
- The Media Bureau entered into two Consent Decrees with broadcasters to resolve investigations into the broadcasters’ alleged FCC rule violations:
- The Bureau entered into a Consent Decree with Nexstar Media to resolve an investigation into whether some of Nexstar’s stations violated the FCC’s limitations on commercial matter aired during children’s programming (which, as we noted here, was part of a 2024 Forfeiture Order where the FCC fined over 100 TV stations for exceeding the children’s programming commercial limits during a Hot Wheels program by creating “program-length commercials” – i.e., the stations ran advertising with Hot Wheels characters during the Hot Wheels programs), whether some of Nexstar’s stations failed to comply with their political file obligations, and whether Nexstar failed to timely file license applications after completing construction of three of its stations’ modified facilities. The Consent Decree requires Nexstar to make a “voluntary contribution” of $80,500 to the U.S. Treasury and enter into a compliance plan to ensure that future FCC rule violations do not occur. As part of settling the Hot Wheels matter, the Consent Decree also requires Nexstar to withdraw from the still pending petition for reconsideration filed by several broadcast groups that were fined for running the Hot Wheels commercial (see our notes here, here, here, and here regarding similar Consent Decrees entered into by broadcast groups that ran the Hot Wheels program, and our note here regarding the Consent Decree with Sinclair, the originator of the Hot Wheels program).
- The Bureau also entered into a Consent Decree with an Indiana Class A TV station to resolve its investigation into the station’s compliance with the FCC’s children’s television programming rules so that the Bureau could complete processing of the station’s license renewal application. Under the Consent Decree, the licensee will make a $28,000 “voluntary contribution” to the U.S. Treasury, after which its license renewal will be granted. As we discussed here, in 2019, the FCC revised its processing guidelines for stations’ compliance with their children’s programming obligations (which are assessed with stations’ renewals) and set yearly totals of required regularly scheduled children’s educational and informational programs. If stations do not meet these safe harbor requirements by running the required amount of educational and informational programming, their renewals are referred to the full Commission for review, as happened in this case. In September, the FCC directed the Bureau to complete processing of the station’s renewal (as well as renewals for 4 other full-power TV and Class A TV stations that did not meet the safe harbor) after finding that departing from the normal safe harbor processing guidelines was warranted since the station faced significant regulatory changes during its license term due to the revised safe harbor guidelines and experienced significant operational changes for multiple reasons including the Incentive Auction and the COVID-19 pandemic (see our note here).
- The Media Bureau released a Notice of Proposed Rulemaking proposing the substitution of VHF Channel 7 for UHF Channel 31 at Odessa, Texas. The TV station proposing the substitution seeks to remain on its current Channel 7 after the station determined that it could not build out by its construction permit’s expiration date the facilities to change to Channel 31 that the Bureau had approved at the licensee’s request. Under FCC policies, when the FCC changes the TV Table of Allotments to accommodate a station’s proposed channel change, the Table is changed even before the station builds its new facilities, thus requiring a proceeding like this one to undo the Table of Allotments change when the new facilities are not built.
On our Broadcast Law Blog, we looked at upcoming November regulatory dates and deadlines affecting broadcasters, which include the Nationwide EAS Test and a window during which noncommercial stations can file applications seeking construction permits for new FM translators in the FM Reserved Band.