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.
- The FCC’s Media Bureau issued an Order that dismissed a petition for reconsideration of its March Public Notice purporting to remind broadcasters about their lowest unit charge (LUC) obligations for political ads – a Public Notice that had for the first time extended the LUC obligation to joint fundraising committees and ad buys by political parties that are coordinated with the party’s federal candidates. The challenge to the Public Notice was brought by TVB, a television station advertising trade association. The Petition for Reconsideration raised many of the questions that we wrote about in our Broadcast Law Blog article here, including whether the ruling that the ads from these non-candidate organizations had to be given reasonable access and “no censorship” treatment, and asking how the Public Notice could claim to “remind” broadcasters about obligations that had never been stated by the FCC without seeking any public input on these new requirements. This week’s Order claimed that the March Public Notice did not create or change any FCC rules, and thus it was not the proper subject of a Petition for Reconsideration. The Bureau claimed that the Notice merely summarized longstanding FCC interpretations as to who is eligible for LUC rates for political advertisements, even though the Order could cite no instance in which the FCC had issued any order or decision requiring LUC for coordinated political party buys or for joint fundraising committees. The Order nevertheless claimed that extending LUC to coordinated party buys was a matter of past Commission informal advice that should have been appealed when it was initially given (even though many broadcasters may not have been aware of that advice since it was never written in any public document released by the FCC) and that, under FEC rules, joint fundraising committees are “authorized committees” and therefore entitled to LUC so that TVB is not arguing with an FCC rule but instead an FEC one which the FEC, not the FCC, would have to address (ignoring TVB arguments that the provisions of Section 315 of the Communications Act which set out who is entitled to LUC do not in fact say that “authorized committees” are entitled, extending that right only to candidates themselves – the statute talks about “authorized committees” only in other contexts).
- On Friday, August 7, the 4th Circuit Court of Appeals held an oral argument on the challenge to the Media Bureau’s March Public Notice brought by several Democratic federal candidates. Those candidates argue that the Communications Act and the FEC rules do not support the interpretations advanced by the Bureau in the Public Notice when the notice extends LUC to joint fundraising committees and coordinated political party ads. Two of the three judges on the panel asked many skeptical questions of FCC counsel who tried to argue that the Democratic challenge was not procedurally or substantively justified (we noted the arguments made in the FCC’s brief in this case here). From the argument, it appears that the Court will rule on this challenge very soon – before the September 4 start of the Lowest Unit Charge window for the November election.
- The Media Bureau announced that it has created a docket for public comment on DIRECTV’s applications for review of the Bureau’s grants of the assignment of TV stations from Gray Media to Scripps, Allen Media to Gray Media, and SagamoreHill and Block Communications to Gray Media. As we noted here, here, and here, the Bureau previously dismissed DIRECTV’s petitions to deny against the assignment applications. DIRECTV alleged that the applicants failed to show that the sales were in the public interest and argued that they were not in the public interest because they would lead to higher retransmission consent fees. The Media Bureau had dismissed these arguments finding that a special public interest showing was not required for applications complying with the Local TV Ownership Rule’s two-station limit, and that DIRECTV’s arguments about the transactions’ harms were speculative. Setting up a special docket for public comment is unusual in that no docket has been established in other similar cases.
- The FCC’s Enforcement Bureau issued four Notices of Violation against 3 Texas FM translator stations and an LPFM station for failing to operate in the manner represented to the FCC. The Bureau found that, after inspecting and monitoring the 3 translator stations, the translators were not rebroadcasting their designated primary station (see Notices here, here, and here). The Bureau, in an inspection of the LPFM’s transmitter site, found that the LPFM station was operating at 475% of its authorized power (see the Notice here). The stations must now explain to the Bureau how they will correct the apparent rule violations and prevent future violations from occurring.
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