May Regulatory Dates for Broadcasters – Rulemaking Comments on Various TV Issues and More
May 5, 2023
By: David Oxenford, Wilkinson Barker Knauer
May is relatively light on scheduled regulatory deadlines for broadcasters, but the following dates are worthy of note. In addition, always remember to keep in touch with your legal and regulatory advisors to make sure that you don’t overlook any regulatory deadlines that are specific to your station.
Comments are due on May 15, with reply comments due on June 13, on the FCC’s Notice of Proposed Rulemaking (NPRM) requesting comment on a variety of proposed rules implementing the Low Power Protection Act (LPPA). The LPPA provides certain low power television stations in small markets with a “limited window of opportunity” to apply to become Class A television stations with primary status, protecting them from interference from new or improved full-power stations. The FCC is seeking comment on interpreting the eligibility requirements for stations seeking this status.
LPTV, TV translators, and Class A stations can also take advantage of the FCC rule changes allowing operations with a Distributed Transmission Service (DTS) that could slightly expand the protected coverage area of the station through the use of a single frequency network. While the FCC adopted these rules to cover all stations in 2021 (see our article here), as new forms were needed for LPTV, translator, and Class A stations, these rules are only now becoming effective, on May 18, 2023, as the forms needed approval from the OMB which has only recently occurred.
Reply comments are due May 15 on the Further Notice of Proposed Rulemaking (the full text of which is available here) seeking comment on whether the FCC should apply its audio description requirements to the TV markets where those requirements do not already apply (i.e., DMAs 101 through 210). Audio description inserts narrated descriptions of a television program’s key visual elements during natural pauses in the program’s dialogue, for the benefit of individuals who are blind or visually impaired. The FCC proposes that, if it determines that the costs are reasonable, the phase-in of the requirements will begin with DMAs 101 through 110 on January 1, 2025, and extend to an additional 10 DMAs per year, concluding with DMAs 201 through 210 on January 1, 2035. Comments are due April 28, with reply comments due May 15.
Reply comments are also due, on May 1, on the FCC’s proposal to extend the deadline by which TV stations need to comply with Section 79.2(b)(2)(ii) of the Commission’s rules, which requires television broadcasters to provide an aural description of visual, non-textual emergency information, such as radar maps or other graphics, on the station’s SAP channel, i.e., a secondary audio stream. The FCC has already issued such an extension three times since the initial compliance deadline of May 26, 2015, as the NAB contends that there still is no workable technology that can perform the functions required by the rule (see our Broadcast Law Blog article here from the last extension 5 years ago).
May 22 is the date that Standard General has given to the FCC as the date on which its financing to acquire the TEGNA TV stations expires. The FCC Administrative Law Judge, who is overseeing the hearing ordered by the Media Bureau on certain alleged factual issues that the Bureau has identified with the proposed acquisition, recently put the proceeding on hold so that the parties do not need to spend more money litigating if the deal will not happen. The ALJ ordered the applicants to file a status report on or before June 1, 2023 to update the record.
Under the banner of “coming attractions,” June 1 is the deadline for Radio and Television Station Employment Units in Arizona, District of Columbia, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, and Wyoming with 5 or more full-time employees to upload to their online public inspection file their annual EEO Public File Report. This annual report covers hiring and employment outreach activities for the prior year. A link to the uploaded report must also be included on the home page of a station’s website, if it has a website. In other EEO news, on April 24 the FCC’s Enforcement Bureau initiated a new round of random EEO audits of radio and television stations. Licensees that have been randomly selected should review the FCC’s public notice and prepare their response by the deadline on June 8, 2023.
Also, comments are due by June 23 on the Federal Trade Commission (“FTC”) Notice of Proposed Rulemaking (the “Proposed Rule”) that proposes to amend the FTC’s existing Negative Option Rule. That rule addresses “negative options” used in marketing and sales that come in a variety of forms, which each contain a term or condition that allows a seller to interpret a customer’s silence, or failure to take an affirmative action, as acceptance of an offer to sell and charge for goods or services. The FTC is proposing to amend the Negative Option Rule to: (i) expand its scope to all negative marketing options and cover offer made in all media, including Internet, telephone, in-person, and printed material; (ii) require businesses to obtain consumers’ express informed consent before charging them for a good or service they subscribe to; (iii) require businesses to provide a simple cancellation mechanism to immediately halt any recurring charges; and (iv) require businesses to provide an annual reminder to consumers enrolled in negative option plans involving anything other than physical goods.
As always, this list of dates is not exhaustive, and deadlines can change. Always review these dates with your legal and technical advisors, and note other dates not listed here that may be relevant to your operations.
David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access). There are no additional costs for the call; the advice is free as part of your MAB membership.