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This Week in Regulation for Broadcasters: December 10 to December 16, 2022

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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.

  • By a Public Notice issued on December 15, the FCC’s Public Safety and Homeland Security Bureau told broadcasters to submit their annual Form One filings for calendar year 2022 in the online EAS Test Reporting System (“ETRS”) between January 3 and February 28, 2023.  ETRS Form One requests basic information about contact persons at a station, the model of EAS equipment used, and monitoring assignments under the legacy EAS system.  The Bureau explains that it is important that EAS Participants confirm that the information they enter is accurate and that they correct any past filing errors.  Further information about the filing will be provided in a future Public Notice. There was no nationwide EAS test during 2022 and, while FEMA has not announced a test date for 2023, one is expected in the coming year.
  • The FCC’s Media Bureau issued a Public Notice granting an extension of the deadlines for comments and reply comments on the FCC’s Second Notice of Proposed Rulemaking on its foreign government sponsorship identification rules. Comments are now due January 9, and reply comments are due January 24.  As we wrote on our Broadcast Law Blog, the Second Notice seeks comment on proposals to adopt an enhanced and standardized certification that all buyers of program time on any broadcast station (or those who provide any pre-produced programming received for free) would have to sign to verify whether that programming comes from a “foreign government entity,” i.e., a foreign government or one of its agents. Programming provided by a foreign government entity is subject to extensive public disclosure obligations.  The Second Notice also proposes that the certifications, whether or not they indicate that the program buyer is a foreign government entity, be included in a station’s online public file, and also proposes to confirm that advertising material two minutes or less in length, is not “program time” subject to the rule.
  • The FCC issued an Order announcing its required adjustment in the amount of the fees paid for FCC applications, including fees paid by commercial broadcasters for applications for construction permits, assignments and transfers, license renewal, and even for the Biennial Ownership Reports that will be due late in 2023. The FCC is required by law to adjust the fees every other year to reflect the increase in the Consumer Price Index.  The increase in CPI in the last two years will mean an upward adjustment in the fees of approximately 11.6%, effective 30 days after this Order is published in the Federal Register.
  • The Media Bureau fined an AM licensee $20,000 (an unusually large amount for an AM station) for variety of rule violations stemming from the station’s operation at variance from its authorized parameters. The station had been authorized to operate in a non-directional mode at 10 kilowatts during daytime hours, and in a directional mode at 5 kilowatts during nighttime hours.  The station conceded that, for over 30 years, notwithstanding multiple complaints and an Enforcement Bureau inquiry, it had operated non-directionally at night at 1 kilowatt to overcome coverage issues.  The station never sought special temporary authority nor applied to modify its license for such operation, even though it was told to do so at least twice since 2016.  The Bureau rejected the licensee’s arguments that it should not be fined, and actually adjusted the fine upward, due to the licensee’s willful conduct, from what would be the normal $10,000 base fine for an unauthorized operation.
  • The Media Bureau issued a letter in which it denied an objection seeking dismissal, under the FCC’s “inconsistent applications” rule, of one of two mutually exclusive applications filed by an applicant during the 2021 NCE FM Filing Window. The rule is a general one, prohibiting the filing of inconsistent or conflicting applications by the same applicant.  Here, the objecting party, citing the rule, alleged that the applications were inconsistent as both could not be granted due to prohibited contour overlap, and that the latter-filed application should therefore be dismissed.  The Bureau pointed out that the FCC has held that the rule does not apply to applications to be awarded by auctions, and that same reasoning should apply to processing new, mutually exclusive NCE FM applications as these applications would not unduly burden the FCC’s resources or slow the processing of applications filed in the window.
  • The Media Bureau has issued a Notice of Proposed Rulemaking requesting comments on the proposed allotment of FM channel 277C2 to Wharton, Texas, as the community’s second local service. Comments are due February 6 and reply comments are due February 21.  If allocated as requested, the channel would be available for applications for a construction permit for a new FM station in a future FM auction window.
  • The Federal Election Commission’s December 1 action providing details on the sponsorship disclosures required for paid online political communications is scheduled to be published in the Federal Register on Monday, meaning that the new rules will be effective on March 1. We wrote about the FEC’s action here.
  • On our Broadcast Law Blog this week, we wrote about the recent statements by Senator Ed Markey and FCC Commissioner Nathan Simington in support of AM service, a recent statement from the BBC about the possible end of broadcast service, and how those actions should inform future FCC regulatory actions, particularly regarding broadcast ownership limits. We also wrote more about a recent FCC e-mail to all broadcasters warning them of a cybersecurity flaw in the DASDEC EAS encoder/decoder device sold by Digital Alert Systems (formerly Monroe Electronics), using software prior to version 4.1.

We will not publish this update next week because of the holidays but will be back in the New Year with a summary of any regulatory actions of importance to broadcasters that occur in the last two weeks of the year.  In the interim, we’ll highlight any major actions on our Broadcast Law Blog.

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