With Two Nominations to Fill Out the FCC, What Are the Issues for Broadcasters?
By: David Oxenford,
Wilkinson Barker Knauer LLP
With the Administration’s decision to renominate Jessica Rosenworcel for another term on the FCC and to select her as the permanent chair of the Commission, and the nomination of Gigi Sohn to fill the vacant seat on the FCC, and assuming both are confirmed by the Senate (though the Wall Street Journal noted that there could be some objections to the Sohn nomination), the FCC could be back at full strength by the first of the year. As Chairwoman Rosenworcel’s current term ends at the end of this year, Senate confirmation hearings for these nominees are expected shortly with a vote to follow. What are the broadcast issues that a full FCC Commission will be facing?
During the Pai administration at the FCC, there was a constant stream of media regulatory reforms, particularly as part of his Modernization of Media Regulation initiative. While many of the rule changes were small, there were significant changes as well, including changes to the media ownership rules that were affirmed by the Supreme Court earlier this year (see our article here), revisions to the children’s television rules (see our article here), the adoption of rules for Next Gen TV (ATSC 3.0 – here and here), and the relaxation of the public file and local main studio rules (here and here). Some of these changes have drawn some concerns from public interest advocates, so there is a chance that some of these matters will be revisited by a new FCC. We did note, for instance, that the FCC is looking at accessibility and captioning of children’s programs on multicast channels as perhaps one place where a reexamination of the children’s television rules could occur. What other issues are pending?
For the radio industry, the outstanding Quadrennial Review looks at the potential for relaxation of the local radio ownership rules. As we have written, some broadcasters and the NAB have pushed the FCC to recognize that the radio industry has significantly changed since the ownership limits were adopted in the Telecommunications Act of 1996, and local radio operators need a bigger platform from which to compete with the new digital companies that compete for audience and advertising in local markets. Other companies have been reluctant to endorse changes – but even many of them recognize that relief from the ownership limits on AM stations would be appropriate.
The Quadrennial Review also looks at the dual network rule that currently forbids the common ownership of two of the Top 4 TV networks. Also under consideration is the potential for the combination of two of the Top 4 television stations in any local market. Common ownership of such stations is only permitted now through what is essentially a waiver process. The FCC has asked if there are specific criteria that could be adopted to evaluate those requests (e.g., a combination of the 3rd and 4th stations would be allowed if their market share did not exceed a specific percentage of the market – or the share of the higher rated stations in the market) so that applicants would have more certainty about whether a proposed combination would be allowed. Look for possible resolution of these issues in 2022. In addition, because 4 years have passed since the 2018 Quadrennial Review began, we may see the initiation of a new Quadrennial Review process in 2022 as well.
For TV, the FCC last week released a Further Notice of Proposed Rulemaking seeking comment on the interplay between multicast channels and the ASTC 3.0 conversion – particularly in the context of the responsibility for “lighthouse” ATSC 1.0 programming streams left behind on a host station by a station that has converted to the new transmission standard. Other Next Gen TV issues, including the expansion of single-frequency networks will likely be on the FCC’s agenda (see our article here on an FCC action approving these distributed transmission services – that decision is still subject to FCC review because of reconsideration filings). Issues of TV white spaces devices and other unlicensed uses of the television spectrum also are under FCC consideration.
Enforcement issues affecting both radio and TV also could be considered by a full-strength FCC. The FCC has recently requested comments on bringing back the annual EEO Form 395, reporting on the race and ethnicity of broadcast employees (see our article here). A rulemaking looking at broader reform of the EEO rules is also still outstanding and could be given further consideration (see our article here). If passed by Congress, the FCC would also have a role to play in drawing up rules for the implementation of the return of the minority tax certificate (here and here).
Political broadcasting is always an issue. The requirement for quicker disclosure of advertising orders placed by political candidates and issue advertisers has been brought to the foreground by the hundreds of consent decrees signed by broadcasters across the country in the last 15 months (see our articles here and here). But there are also reconsideration requests pending seeking clarification of the FCC’s order mandating more fulsome disclosure of the issues discussed in non-candidate ads on matters of national importance (i.e., federal issue ads – see our articles here and here). Disclosure requirements about the funding of political advertising backers has also been considered in previous administrations – and could make a return in this one (see our articles here and here). Watch for developments in the political broadcasting area, especially in light of the wave of political advertising expected for the 2022 election.
For radio, there are various technical proposals that are still on the table for possible consideration. Proposals for a Class C4 FM service (here) and the limited origination of programming on FM boosters (here) are pending and could be given further consideration, though any resolution is unlikely in 2022 given the procedural status of these proposals.
And, of course, the debate over regulation of tech platforms is an issue affecting the media industry generally. The FCC’s involvement in this area may grow in the future, either through Congressional delegation of specific powers or the FCC’s own actions on issues including the review of Section 230 (see our article here) or net neutrality.
These are only some of the potential policy issues affecting broadcasters that could be on the plate of a full Commission in 2022. Watch as the nominations progress to see what other issues of importance to broadcasters come up in the discussions on Capitol Hill. Be prepared for change of some sort – though it may well be in some area that we haven’t even mentioned here. The FCC adapts to the issues of the day, and broadcasters need to be prepared for whatever comes their way from the new Commission.
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