This Week in Regulation for Broadcasters: October 1, 2022 to October 7, 2022

This Week in Regulation for Broadcasters: October 1, 2022 to October 7, 2022

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.

  • On October 6, the FCC released a Second Notice of Proposed Rulemaking (Second Notice) proposing to strengthen the process for identifying foreign governmental entities that sponsor or “lease” broadcast programming.  The Second Notice was released in the wake of the D.C. Circuit’s July 2022 ruling in National Association of Broadcasters v. FCC, which rejected the requirement that broadcast licensees independently check two federal databases to verify whether an airtime lessee is a “foreign governmental entity” (see our Broadcast Law Blog article on the Court’s decision here).  While the Court decision did not change broadcasters’ obligation to obtain certifications from all buyers of program time that they are not foreign government representatives and have not been paid by foreign governments to produce the program (see our article here), the Second Notice proposes standardized language for such certifications.  It also provides interested parties an additional opportunity to comment on a long-pending petition for clarification on what constitutes leased program time, asking whether the FCC should establish a presumption that any broadcast matter that is two minutes or less in length, absent any other indicia, should be considered “advertising” that is exempt from the application of the foreign sponsorship identification rules. Comments and reply comments on the Second Notice will be due 30 and 45 days, respectively, following its publication in the Federal Register.
  • Global Music Rights (GMR) has sued three radio groups for not paying royalties for the public performance of songs written by songwriters who are now represented by GMR (see our article on the GMR lawsuit here).  GMR is a performing rights organization (a “PRO”) representing songwriters including Bruce Springsteen, Bruno Mars, Drake, Pharrell Williams, John Lennon, and The Eagles (with a full list of their songwriters available on their website here).  As these songwriters are no longer represented by ASCAP, BMI or SESAC, for a broadcaster to publicly perform any of these songwriters’ music, they generally either need a license from GMR or they need to directly license the music from the songwriters or their agents. The lawsuits seek $150,000 for each copyrighted work that was allegedly infringed – the maximum set out by the Copyright Act for “statutory damages,” i.e., damages that can be collected even without providing evidence of actual harm caused by the alleged copyright infringement. Commercial radio stations that play GMR music and have not entered into an agreement with GMR following the settlement earlier this year of its litigation with the Radio Music License Committee should enter into a license or consult with their attorneys to see if there is any way to otherwise receive permission to use GMR music.
  • On October 6, the FCC released a draft Notice of Proposed Rulemaking that, if adopted, would propose a number of steps designed to strengthen the security of the Emergency Alert System (“EAS”) and Wireless Emergency Alerts (“WEA”).  The draft NPRM is slated for consideration at the FCC’s October 27, 2022 regular monthly open meeting.  In general, the draft NPRM seeks comment on ways to strengthen the operational readiness of EAS and WEA, including, among other things, requiring EAS Participants (including broadcasters) to report to the Commission incidents of unauthorized access of its EAS equipment within 72 hours of when it knew or should have known that the incident occurred, and requiring EAS Participants to submit an annual cybersecurity certification that demonstrates how the participant identifies the cyber risks that it faces, the controls it uses to mitigate those risks, and how it ensures that these controls are applied effectively.  If the NPRM is adopted, comments and reply comments would be due 30 days and 60 days, respectively, after the NPRM is published in the Federal Register.
  • Also on October 6, the FCC released a draft Notice of Inquiry and Order that seeks information on the current use of the 12.7-13.25 GHz band (“12.7 GHz band”). Licensed services in the 12.7 GHz band include satellite communications and mobile TV pickup operations.  The draft Notice of Inquiry seeks information on how the FCC could encourage more efficient and intensive use of the band, and whether the band is suitable for mobile broadband or other expanded use.  The draft Order would extend the temporary freeze on applications in the 12.7 GHz band (see our reference to that freeze here).  If adopted at the FCC’s October 27 Open Meeting, comments and reply comments will be due 30 days and 60 days, respectively, after publication in the Federal Register.
  • The FCC’s Media Bureau (“Bureau”) issued a Notice of Apparent Liability for Forfeiture (“NAL”) proposing a fine of $13,000 against the licensee of two low power television stations, finding that the licensee apparently violated section 74.788 of the FCC’s Rules by filing its “license to cover” applications informing the FCC that it had completed construction of new facilities for the stations when that construction was completed, and for violating section 301 of the Communications Act by engaging in unauthorized operation.  Construction was apparently completed in 2018 but no license application was filed until 2022, a year after the construction permit for the new facilities expired. The Bureau was not persuaded to reduce or eliminate the fine by the licensee’s contention that it was not represented by counsel when it failed to timely file its license applications. It also found that imposition of a proposed fine is consistent with other recent FCC cases that have similar underlying facts (see, for instance, the cases we have noted in weekly updates here and here).
  • Due to damage associated with Hurricane Ian that was caused to broadcasters in South Carolina and Florida, the Media Bureau extended from October 11 to December 12, 2022 the deadline by which the impacted stations in those states must place their Quarterly Issues Programs Lists with material covering the previous calendar quarter in their public inspection file.  All other full-power stations should remember to upload Quarterly Issues Programs Lists to their public files by October 11.  Similarly, for Florida stations, the deadline to place their EEO public file report in their public inspection file is extended to December 12, 2022.
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