Opinions and Legal Insights

This Week in Regulation for Broadcasters:  November 14, 2020 to November 20, 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.

  • After reviewing comments submitted this summer (we wrote about the rulemaking, here), the FCC will vote at its next Open Meeting, on December 10, on new rules for Broadcast Internet (ATSC 3.0) services. The principal changes addressed in the FCC’s draft order are clarifications of the rules on the annual “ancillary and supplementary services” fee that broadcasters offering non-broadcast services on their television channels must pay.  The changes in the draft order include reducing the fees to be paid by noncommercial television stations that offer new noncommercial, non-broadcast services through their ATSC 3.0 operations.  These services are not allowed to “derogate” the broadcast service and, in the draft order, the Commission would retain its current interpretation that this means that a station must continue to offer at least one standard definition television programming channel.  (Draft Report and Order)
  • The FCC voted this week to update its rules dealing with cable programming disputes, including a clarification as to when a complaint can be made against a cable or satellite operator for alleged program carriage or retransmission consent violations. Under the old rules, such a complaint could be made up to one year after the cable and satellite operator was notified of the complaint.  Now, complaints can be made up to one year after the alleged violation, closing a loophole that potentially allowed complaints to be made for conduct that occurred years in the past.  The new rules will be effective 30 days after publication in the Federal Register.  (Report and Order)
  • The FCC and NAB submitted their briefs this week to the Supreme Court in the FCC v. Prometheus Radio Project case, in advance of oral arguments and a decision in 2021. Reply briefs on behalf of Prometheus Radio Project are due by December 16.  This case is a review of a lower court’s decision to reject the FCC’s 2017 broadcast ownership changes.  See our post, here, about the Supreme Court review.  (Court Docket)
  • In the last 10 days, two lawsuits by the Trump campaign alleging defamation against media entities, including the lawsuit against a Wisconsin television station for airing an attack ad by Priorities USA about the President’s response to the coronavirus, were dismissed. We wrote about those dismissals here, addressing the issues that these actions highlight for broadcasters who run attack ads that are not sponsored by a candidate’s campaign committee.

Expected to be released soon, possibly this week, will be an FCC Notice of Proposed Rulemaking starting a proceeding looking to authorize FM boosters to transmit limited amounts of programming different than that being broadcast on their primary station.  This “zonecasting” proposal would allow for different commercials or news reports to be broadcast in different parts of a station’s service area.  See our articles here and here on the initial FCC request for comments on this proposal.