A Broadcaster’s Guide To Washington Issues

TVNewsCheck‘s quarterly quick briefing on the legal and regulatory proceedings affecting broadcasters from communications attorneys David Oxenford and David O’Connor.

From the Supreme Court’s much-anticipated decision on media ownership to the adoption of new FCC rules mandating sponsorship identification of foreign government-provided broadcast programming and proposals to extend the FCC’s EAS rules to streaming services, there have been several developments in the first quarter of 2021 that are likely to be of interest to broadcasters. We expect 2021 to continue to be active here in Washington, even though the question of who will ultimately lead the FCC in a Biden administration remains unresolved. Acting Chair Jessica Rosenworcel is among the numerous candidates to serve as the permanent FCC chair, and there is much anticipation as to when – and who – Biden will name to fill this position and set the agenda for the FCC for the next several years.

Beyond the many matters that we regularly address in this update, there is one issue that seems to be gaining greater prominence in regulatory circles – how to deal with Big Tech platforms. As we note below, the answer to that question may affect broadcasters as tech companies compete with broadcasters for advertising dollars and listener attention, while being subject to few of the rules and obligations that govern broadcasters. The government seems to be interested in adopting rules of various sorts to rein in these companies, but how that will be accomplished remains to be seen. Broadcasters will need to watch these issues carefully, as the adoption of new rules for these platforms can also spill over and impact a TV company’s own digital initiatives.

In addition to these big picture items, routine regulatory obligations for broadcasters will continue uninterrupted, as they always do. And even though it is an off-year for most political advertising at the national level, be sure to watch for state and local elections in your area this year and comply with the FCC’s stringent political file requirements, particularly as the license renewal cycle is underway.

Throughout what is sure to be a busy year for broadcasters, visit us at the Broadcast Law Blog where we cover, often daily, FCC broadcast issues, rules, and regulations.

This briefing on some of the major issues currently being considered in Washington is prepared by David Oxenford and David O’Connor, attorneys in the Washington office of law firm Wilkinson Barker Knauer LLP. You can reach Oxenford at [email protected] or 202-383-3337 and O’Connor at [email protected] or 202-383-3429. This briefing is provided for informational purposes only and does not constitute legal advice.

In alphabetical order:


ATSC 3.0 (NextGen TV)

In 2017, the FCC voted to adopt new rules authorizing TV stations to use the ATSC 3.0 standard on a voluntary, market-driven basis. The new rules became effective in 2018 (see our discussion here) and the FCC announced in May 2019 that it would begin accepting applications for 3.0 licenses. Stations in about 25 markets have already converted to the new standard, and it is anticipated that many more will be coming on line this year.

The 2017 decision was the culmination of years of efforts to introduce this new standard (aka “Next Generation TV” or “NextGen TV”). The ATSC 3.0 standard was developed by the Advanced Television Systems Committee (ATSC). The new standard incorporates Internet protocol digital encoding and allows for many other major advances, including 4K capabilities, high-efficiency video coding, enhanced compression and significant improvements for both mobile reception and data transmission.

The FCC’s decision incorporates only a portion of the new standard into its rules — specifically, it incorporated two parts of the ATSC 3.0 “physical layer” standard into the rules:

  • The ATSC A/321:2016 “System Discovery & Signaling” (A/321), which is the standard used to communicate the RF signal type that the ATSC 3.0 signal will use.
  • The A/322:2017 “Physical Layer Protocol” (A/322), which is the standard that defines the waveforms that ATSC 3.0 signals may take. With respect to A/322, the FCC decided to apply the standard only to a Next Gen TV station’s primary free over-the-air video programming stream and incorporate it by reference into the FCC rules for a period of five years. The FCC denied a petition seeking to eliminate the regulatory sunset, thus allowing the transmission standard to evolve over time (see our article here).

The 3.0 standard is an alternative to, but not a replacement for, the current ATSC 1.0 DTV transmission standard. Stations are not required to transition to the new standard. The FCC also declined to mandate that TV manufacturers include a 3.0 tuner in television sets, in keeping with the voluntary nature of this new standard.

Full-power and Class A TV stations choosing to operate using the 3.0 standard are required to simulcast their primary video programming stream of their 3.0 channels in an ATSC 1.0 format, so that viewers will continue to receive 1.0 service. Stations can comply with this requirement by partnering with another station (i.e., a temporary “host” station) in their local market to air a 1.0 simulcast channel at the temporary host’s facility, while converting their original facility to provide a 3.0 channel.

Until July 17, 2023, the programming aired on the 1.0 simulcast channel must be “substantially similar” to the programming aired on the 3.0 channel. LPTV and TV translator stations are exempt from the local simulcasting requirement. The NAB has asked the FCC to declare that the legal responsibility for this “lighthouse signal” should be that of the station that originates the programming, not the station that is its host. We took a closer look at this issue, here. The comment period on this issue ended in January 2021.

A full-power 3.0 signal does not have mandatory carriage rights on MVPDs for as long as the FCC requires local simulcasting, but these carriage issues can be addressed in retransmission consent agreements. Carriage rights instead attach to the 1.0 signal. The commission has made clear that a station will retain its current significantly viewed status on MVPDs even if its signal changes because of a sharing agreement allowing it to broadcast in both the old and new transmission standards. Other conditions and restrictions apply, so stations that are considering deploying 3.0 should review the FCC’s decisions and any retransmission consent agreements carefully to avoid raising issues with their carriage rights.

In 2020, the FCC adopted a declaratory ruling and new rules regarding “Broadcast Internet” service, which is essentially datacasting using a station’s ATSC 3.0 signal. The declaratory ruling clarified that the leasing of television spectrum for datacasting uses does not trigger FCC multiple ownership issues (this means an entity can lease capacity of one or more TV stations for datacasting purposes, and those leases are not considered attributable interests for multiple ownership purposes).

The FCC also clarified the fees that must be paid to the FCC because of these new services. The 5% annual ancillary and supplementary fee paid on a TV broadcaster’s revenue for non-broadcast uses of its spectrum, while including lease fees that the broadcaster is paid for that spectrum, does not include the revenue generated by the lessee’s use of the spectrum, unless the broadcaster and lessee are affiliated.

The FCC also decided to reduce the fees to 2.5% of the revenue from any noncommercial educational Broadcast Internet services that are provided by a noncommercial licensee.

Finally, the FCC retained its requirement that TV broadcasters who offer Broadcast Internet services offer at least one, free, over-the-air standard definition video signal. See our articles here and here.

Audio Description (formerly Video Description)

The audio description rules (which, until recently, were known as the “video description” rules) are intended to assist individuals with visual impairments by requiring the insertion of audio narrations into the natural pauses in programming to describe what is happening on-screen. These narrations are carried on the secondary audio program (SAP) channel.

As of 2018, each broadcast station affiliated with a Top 4 broadcast network (ABC, CBS, Fox and NBC) in the top 60 markets, and each of the Top 5 non-broadcast networks (currently Discovery, HGTV, History, TBS and USA) must provide 87.5 hours of qualifying audio-described programming per quarter on each stream or channel on which it carries an included network.  A 2020 rulemaking expanded the audio description requirements applicable to stations affiliated with one of the Top 4 broadcast networks to television markets 61 through 100 effective Jan. 1, 2021, followed by an additional 10 TV markets each year for the next four years. Television stations covered by the rules had to start complying by Jan. 1, 2021. We wrote about the rulemaking here.

The FCC provided flexibility to allow some non-prime time, non-children’s video-described programming to count towards the additional 37.5 hours per quarter. The FCC left unchanged the rule that a particular video-described program/episode can be counted toward the benchmark no more than a total of two times on each channel on which the program is shown.

The rules also require that all television stations and MVPDs, regardless of market or system size, “pass through” any such video-described programming. All of these requirements are now in effect.

In early April 2021, the FCC issued a Public Notice seeking comment on whether updates to the rules implementing the 21st Century Communications and Video Accessibility Act of 2010 (CVAA), the statute authorizing the audio description and other accessibility rules, are necessary due to changes in technologies and practices. Of interest to broadcasters, the FCC seeks comment on additional initiatives the FCC could undertake to improve access to video programming. Comments are due by May 24 and reply comments are due by June 21

Auxiliary Facilities 

In 2015, the FCC issued a Notice of Proposed Rulemaking proposing to eliminate outdated rules in order to promote the conversion of analog remote pickup facilities to digital. The NPRM is available here. The pleading cycle in this proceeding closed in 2015.

CALM Act/Loud Commercials

In 2011, Congress enacted the CALM Act with the aim of ending loud commercials on TV, and the FCC’s rules implementing the CALM Act went into effect in 2012. To comply, TV stations must use equipment that adheres to the A/85:2013 standards adopted by the ATSC, a standard that has been in place since June 2015. See our summary of CALM Act requirements here and here.

The FCC has indicated that it is monitoring complaints related to loud commercials, and suggested that if a particular station receives a sufficient number of complaints, the FCC will issue a Letter of Inquiry regarding the station’s CALM Act compliance. So far, there have been no public actions by the FCC for CALM Act violations, though a recent Public Notice issued in response to a letter from Congresswoman Anna Eshoo (D-Cal.) suggests that this could be an area where the FCC could become active in enforcing the current rules.

The Public Notice asks industry to comment as to whether the CALM Act rules continue to be effective in combatting loud commercials or if they need to be changed to better reflect current industry practices and technologies. The FCC also asks consumers to let the FCC know about their experiences in watching television programming and the commercials carried in such programs. Comments are due by June 3, and reply comments are due by July 9. See our articles on this topic here and here. C-Band Transition

Many broadcasters have legacy satellite dishes (also called earth stations) that have long operated in the 3700-4200 MHz band. The FCC has repurposed the lower 300 MHz of that band and auctioned it off to mobile broadband providers, earning the federal government more than $80 billion in the process, according to press reports. Earth stations are being forced out of this lower 3700-4000 MHz band, and have elected to either be repacked into the upper 200 MHz (4000-4200 MHz) or cease operations.

Earth stations that elect to be repacked will be reimbursed by their satellite vendors (primarily Intelsat and SES), although many elected a lump sum payment instead and will be obligated to handle their own transition. Lump sum elections were made in 2020, and the auction which provides the funds to pay broadcaster expenses has been completed. The FCC’s contractor dealing with these issues is reviewing the elections and lump sum payments are expected at some point. Stations not electing lump sum payments should already be in contact with administrators dealing with the transition of the spectrum to coordinate the changes necessary to their facilities.

Channel 6

The FCC in 2020 modified its rules relating to the protection of TV ch. 6 stations by FM stations operating in the portion of the FM band reserved for use by noncommercial stations, allowing FM stations to make a showing that they will not interfere with digital ch. 6 operations. The commission  will further review this issue to assess if the ch. 6 protections are still necessary. See more on this issue here and here.

From time to time, the FCC has asked in various proceedings if channel 6 should be reallocated to FM use. See, for instance, our articles here and here. While this proposal does not appear to be actively under consideration at the current time, from time to time it is mentioned in various pleadings and trade press articles.

There are LPTV stations that continue to operate in analog and use the audio portion of their signals to provide FM-like services that can be received on FM radios, at least until July 13, when all analog LPTV operations must cease. There are proposals to allow these stations to continue to broadcast an analog audio signal to allow these FM services to continue even when the LPTV station has converted to digital. See more on this issue here, and see the discussion under the LPTV heading below for an update on the status of such services with the impending transition of LPTV to digital.

Children’s Programming

In 2019, the FCC adopted major reforms to the children’s television rules, including the elimination of minimum programing requirements for multicast channels and providing additional flexibility to broadcasters for meeting the requirement of the broadcast of a minimum of 3-hours per week of educational and informational programming addressed to children. These changes allow for a station to meet approximately one-third of its obligation with programming broadcast on a digital subchannel, and one-third with programs that had not previously been considered “Core Programming” including specials or short-form programs.

The FCC also eliminated the quarterly reporting and certification requirements, moving to an annual process instead. Starting in 2021 and on a going-forward basis, the report (filed on FCC Form 2100, Schedule H) will be due annually by January 30. See our articles here and here for more on the rule changes. The final order also eliminated the need for noncommercial stations to identify on screen educational and informational programming to be identified on-screen with an “E/I” symbol. The obligation for such identification remains for commercial broadcasters.

In connection with that obligation, note that in 2017, the FCC entered into a consent decree with a TV station that had not been identifying educational and informational programming addressed to children with the on-air “E/I” symbol. For this and other related violations, the station agreed to make a $17,500 payment to the government. See our description of this decision here.

This enforcement action is similar to past cases, where fines were issued for not including the “E/I” symbol on educational and informational programs, and for broadcasting the URL of a commercial website in the body of a program directed to children ages 12 and under. See our summaries of some of these cases here and here. In the past, fines have also been issued for stations that failed to publicize that educational and informational programming in local program guides. See, for example, the FCC decision here.

There are numerous other aspects of the children’s television rules to which stations must pay close attention. In a 2015 decision, the FCC warned stations to carefully assess the educational and informational aspects of programs used to meet the minimum requirements to make sure that there can be no reasonable question as to whether the programs have, as a “significant purpose,” the positive development of children’s cognitive and social skills. The FCC has warned stations about taking too broad an interpretation of “children’s programming,” noting that the FCC “does not automatically accept” a licensee’s claim that its programming adequately meets the standards for children’s programming, but will instead “require the licensee to present credible evidence to support its position in such a situation.”  See our summary here.

Stations can also find themselves facing fines over lack of compliance with the commercial limits in children’s programming rules. These issues often arise when stations run commercial advertisements that feature one or more of the characters who appear in the program. When this happens, the commission views the entire program as a “program-length commercial,” causing the station to exceed the statutory commercial limits. Stations are ultimately responsible for the programming carried over their air, even if the programming is delivered by a network. We wrote here about a recent case where this issue arose.

In the past, the FCC issued significant fines to TV stations for late-filed FCC Form 398 children’s programming reports. See our article here. With television license renewals again being filed and reviewed by the FCC, these issues may once again arise.

Closed Captioning

TV Closed Captioning — In 2015, new closed captioning obligations for TV broadcasters became effective. These new “quality” standards for captioning include four distinct areas: accuracy, synchronicity with the words being captioned, caption completeness from the beginning of a program to its ending, and caption placement, so that the caption text does not obscure other important on-screen information.

TV stations are required to use “best efforts” to obtain compliance certifications from their programming providers. For more on the obligations for quality captioning, see our article here.

In 2016, the FCC adopted a Second Report and Order which reallocates responsibility for compliance with the closed captioning rules between video programming distributors and video programmers (VPs). The new rules also include methods for measuring closed captioning compliance and responding to consumer complaints. New certifications by VPs to the FCC will also be required. The rules became effective in 2017.

A closed captioning compliance guide focused on quality standards and allocating compliance responsibilities, issued by the FCC on April 23, 2021, is available here.

At the same time, the FCC has restricted the waiver process for closed captioning under the standard that excused programmers when they could show that captioning would cause them an “undue economic burden.”  That standard is significantly more stringent now than in previous years. The FCC has been reviewing the captioning waivers and issuing public notices soliciting comments. Consumer groups have actively opposed waiver requests.

The Media Bureau has denied a number of closed captioning waiver requests filed by various churches and other organizations. In doing so, the bureau has conducted a detailed analysis of the financial status of the requesting party, and frequently has concluded that the organization had adequate finances to pay for captioning, and thus a waiver was not warranted. The bureau has concluded that there are no religious freedom constitutional issues presented by these cases. See our commentary here.

From these cases, it is clear that waivers will be granted only when the captioning responsibilities would put a burden on the overall financial health of a program producer, and not simply because the cost of captioning would cause the producer to lose money on the program itself.

Top-4 network stations in the top 25 markets have long been prohibited from using the Electronic Newsroom Technique (ENT) to caption their news and other live programming. While other stations can still rely on that technique, the FCC now requires stations to take additional actions with their ENT, including scripting in-studio produced programming, weather information and pre-produced programming (to the extent technically feasible). In May 2019, the FCC held a forum to discuss ENT issues. See our discussion here.

Live interviews and breaking news segments need to include crawls or other textual information (to the extent technically feasible). Stations must train news staff on ENT scripting and appoint an “ENT coordinator” accountable for compliance. See this article here for further information.

The FCC required the broadcasting community to submit a report detailing their experiences with the new ENT rules and the extent to which the new ENT rules have been successful in providing full and equal access to live programming on television. The NAB submitted a report on behalf of the TV industry in 2015, and a copy is available here. The FCC’s Disability Advisory Committee continues to review ENT rules and other accessibility issues, and additional recommendations from that committee may be forthcoming.

IP Captioning — FCC rules require the closed captioning of certain video programming delivered via Internet Protocol. The rules are a result of the 21st Century Communications and Video Accessibility Act (CVAA), a federal law designed to improve the accessibility of media and communications services and devices. As noted in the Audio Description section above, the FCC has recently issued a Public Notice seeking comment on whether updates to the rules implementing the CVAA are necessary due to changes in technologies and practices.

Under the rules, if programming is delivered using IP, whether it is recorded video programming, live or “near live” programming, it must be provided with closed captions if the programming was shown on television in the United States with captions. However, if the programming aired on TV before certain dates in 2012 and 2013, it may be exempt unless it is shown again on TV (the dates will depend on the type of programming — e.g., live programming had a later phase-in date).

TV stations and other video programming distributors are required to make captions available for “archival” IP-delivered video programming within 15 days of the date that an archived program aired on television with captions.

Brief video clips and outtakes (including excerpts of full-length programming) taken directly from captioned TV programming and displayed online must be captioned. In addition, “montages” of multiple clips from captioned TV programs must also be captioned if they are displayed online. Clips from live and “near-live” TV programming must also be captioned if they are displayed online.

However, such clips may be posted online initially without captions if captions are added to clips of live programming within 12 hours, and to clips of “near-live” programming within eight hours, after the conclusion of the television showing of the full-length programming.

The FCC has an open proceeding about how to deal with clips of captioned TV programs that are contained in a “mash-up” with other content that has not been shown on TV with captions. This proceeding also asks whether the grace period provided for live and near-live clips should be phased out over time, and whether the captioning rules should be extended to clips that run on third-party websites or apps. For background, see our summaries here and here.

These requirements govern cable systems, TV stations, broadcast and cable networks and virtually every other professional video program producer who is now, or will be in the future, making programming available online, to the extent that the programming is also exhibited on TV.


In 2016, new FCC rules became effective which give broadcasters greater flexibility in their disclosure of the material terms of contests which they conduct. Under these rules, broadcasters may disclose material contest information online in lieu of making on-air announcements, subject to certain requirements. Click here for further information, and click here for our discussion of potential pitfalls when running station contests.

The FCC in 2020 issued fines to two radio stations for failing to conduct their contests substantially as advertised by not awarding prizes in a timely manner. Station management eventually awarded substitute prizes to the winners and, though both winners appeared satisfied by those prizes and withdrew their FCC complaints, the FCC nevertheless issued the fines finding that the contests had not been conducted as promised. See our article here for more on these enforcement actions.

Copyright Infringement Lawsuits for Unauthorized Uses of Internet Photos and Videos

There are regular reports in the broadcast trade press of lawsuits filed against broadcasters for using photos on their websites and even on their social media accounts without permission of the photographer. In most cases, these photographs were found by station employees on the Internet and used to illustrate articles on station websites without obtaining permission of the copyright holder.

Similar complaints have been leveled against TV stations for taking Internet photos or video and using them in their on-air programming. Simply because material has been posted on the Internet does not mean that the material is in the public domain and can be reused without permission of the creator. See our articles here, here, here, here and here for more information about these issues.

In 2015, the Copyright Office began a proceeding to study how to best protect the rights of photographers and others who produce digital images, while making it possible for users to get the rights to use such photos. See our summary of the initiation of the proceeding here.

At the end of 2020, Congress authorized a copyright small claims court that would allow photographers and others to more easily enforce their rights. This court will allow claimants seeking less than $30,000 in damages to bring their cases to be heard by dedicated judges using simplified processes. While defendants can opt out of the process, they still must timely respond to any complaint, or the court can enter binding default judgments. The Copyright Office is currently conducting rulemaking proceedings to establish the rules and procedures for this Copyright Claims Board and expects it to be active by the end of the year. See the Copyright Office’s explanation of this board, here.


The FCC has taken a number of actions to help broadcasters navigate the ongoing pandemic and taken other actions made necessary by the FCC staff’s inability to work from FCC headquarters.

One of the actions with perhaps the greatest ongoing impact was the FCC’s decision concluding that free advertising schedules provided to businesses to help them through the pandemic (and to help the broadcaster fill unsold advertising time) would not be considered in assessing the lowest unit charge that is applicable to advertising sold to political broadcasters in the 45 days before a primary or the 60 days before a general election (see the section on Political Broadcasting below).

Such advertising is excluded from LUC calculations, as long as it is not associated with any paid advertising schedule. This policy remains in effect as of this writing. See our blog entry here for suggestions on ways to implement this policy without running afoul of the political broadcasting rules.

Acknowledging that stations may be left with fewer crews to cover local events as infections and quarantining take place and because no one wants a crowd of camera crews and reporters at every news event, the FCC has made news sharing easier for stations. Such news sharing agreements entered into during the crisis for news sharing do not need to be in writing and do not need to be in the public file — an exemption to the normal obligation to reduce any sharing agreement between TV stations to writing and add it to the online public file. Pandemic-related agreements fall under the “on-the-fly” exemption. We wrote about this guidance here.

The FCC in April 2020 announced a policy relieving broadcasters of wide-dissemination EEO obligations in rehiring laid-off employees in a post-shutdown world. This policy shift allows broadcasters who were forced to terminate employees because of the pandemic to rehire those same employees within nine months of the time that they were laid off, without having to go through the “wide dissemination” that the FCC rules normally require before an employment vacancy is filled. See more about this policy here.

Distributed Transmission Systems (DTS)

DTS facilities, also known as Single Frequency Networks, have been a transmission option for TV stations since the DTV transition more than a decade ago. However, the technology has never been widely deployed for ATSC 1.0 stations. Now, however, stations are taking another look at DTS technology as they begin to deploy ATSC 3.0 systems. (See above for a discussion of ATSC 3.0).

In January 2021, the FCC issued a 3-2 decision designed to provide greater flexibility to stations deploying DTS, particularly for DTS signals that extend slightly beyond a station’s authorized service area. In addition, the FCC will allow Class A TV, LPTV, and TV translators to apply for fully licensed DTS authorizations, instead of the experimental licenses that may have dampened interest in DTS deployments for these facilities in the past.

The new rules — opposed by TV white space device advocates — generally will become effective on May 24, though the rules applicable to Class A TV, low-power TV and TV translators will require prior approval from the Office of Management and Budget before taking effect. See our article here for more on the effective date and the impact of the rule change.

Drones/Unmanned Aircraft Systems (UAS)

In late 2018, President Trump signed the “FAA Reauthorization Act of 2018,” a comprehensive statute that includes more than 45 sections related to unmanned aircraft systems (UAS) or drones. The UAS-specific sections represent the most extensive codification to date of federal goals, policies, and directives concerning the drone industry. Based on mandates in this legislation, the FAA has been working on new rulemaking proceedings on various UAS topics, several of which directly affect broadcasters.

In late December 2020, the FAA adopted a rule providing for remote identification of UAS. Requiring such digital “license plates” will allow the FAA and other authorities to pinpoint a drone’s origins. The new regulations apply to all UAS weighing more than 0.55 pounds and will affect commercial drone operators, hobbyists, and drone manufacturers.

The final Remote ID rule differed significantly from the agency’s initial proposal. The FAA decided not to mandate a network/Internet-based Remote ID approach and instead adopted regulations requiring a broadcast — or frequency–based solution.

The new Remote ID rule became effective April 21, although drone operators have 30 months to come into compliance. The rule will lay the foundation for the eventual development — many years away — of a UAS traffic management system, or air traffic control, for drones. While the new requirements have been challenged in court, the appellate filing did not delay their effectiveness.

At the end of 2020, the FAA also issued rules allowing operators to fly drones weighing less than 55 pounds over people and at night. These expanded operational rules specify four categories of eligible drones that may fly over people with varying operational parameters for each category.

This same FAA decision also permits small drones weighing less than 55 pounds to fly at night provided they are equipped with certain types of anti-collision flights. Both of these rules have now become effective, although the flights-over-people rule has various pre-conditions that will delay broadcasters’ ability to take advantage of it for about nine to 12 months.

Since 2016, the FAA’s rules for flying drones have been codified in Part 107 of its rules, but those rules only apply to drones weighing less than 55 pounds and permit only fairly limited operations. As a result, the drone industry continues to be one that is regulated principally through waivers or “by exemption,” or grants of special authority.

Within the last year, the FAA has begun to issue more “Section 44807 exemptions” to various parties, including those in the media. Parties wanting to fly heavier drones must seek such exemptions, a process that replaced the earlier Section 333 process on which thousands of many broadcasters relied before 2016. Applicants using Section 44807 are also able to seek authority for expanded operations for which waivers under Part 107 are not available.

Taking advantage of these options, broadcasters have been increasing their use of drones, particularly to cover news, sports, and high-profile events, and the FAA has worked closely with them to ensure safe operations. For example, over the last few months, television networks have used drones to televise a growing number of sporting events, including outdoor professional hockey games and NASCAR races.

Several dozen parties, including several in the media industry, have also benefited from participation in the Department of Transportation’s Integration Pilot Program, which began in May 2018 and authorized cutting edge operations for its relatively small number of participants. While the IPP program expired in October 2020, the DOT and FAA have replaced it with a new program called Beyond, which will focus on advancing flights “beyond visual line of sight,” analyzing the societal and economic benefits of drones, and increasing community engagement.

EAS — Emergency Information

FEMA has announced that Aug. 11 will be the next national EAS test. See our discussion here. Prior to and following the test, broadcasters will likely need to report to the FCC about their EAS equipment and performance during the test. This information will be used by the FCC in a report on the readiness of EAS in the event of an activation.

The IPAWS Modernization Act, enacted in 2016, requires among other things, a nationwide EAS test at least once every three years going forward. Since 2016, FEMA and the FCC have conducted a nationwide EAS test annually, except for 2020 when the test was cancelled due to COVID. Our comments on cancellation of the test are here.

In 2017, the FCC released a new EAS Operating Handbook, which supersedes all other EAS Handbooks. The handbook is available here. The FCC plans to work with State Broadcasters Associations and State Emergency Communications Committees (SECCs) to update the handbook. In January 2021, the FCC’s Enforcement Bureau issued an Enforcement Advisory to remind broadcasters and others of their EAS obligations.

FCC rules require TV stations to ensure that their EAS messages are accessible to members of the public, including those with disabilities. Specifically, EAS messages must appear at the top of the TV screen or elsewhere on the screen where they will not interfere with other visual messages.

In addition, EAS messages must be displayed in a manner that is readily readable and understandable, and in a manner that does not contain overlapping lines of EAS text or extend beyond the viewable display (except for video crawls that intentionally scroll on and off of the screen). Finally, the entire text of the EAS message must be displayed at least once.

Broadcasters must comply with an FCC requirement that emergency information provided in crawls or in other on-screen presentations during non-news programming be made accessible to individuals who are blind or visually impaired. In doing so, broadcasters must use the secondary audio (or SAP) stream to convey televised emergency information aurally, when such information is conveyed visually during programming other than newscasts (e.g., in an on-screen crawl run during entertainment programming). See our summary here for information about these obligations.

The obligation to convert visually-presented emergency information into speech on the SAP channel has been on hold in one instance — where the information is provided graphically, e.g., by broadcasting a weather map or similar non-textual display. In 2018, the FCC extended the deadline for complying with this requirement for another five years. See our summary of these issues here and here.

For information about these obligations to deliver emergency information to those with disabilities, see our article here reporting on a recent FCC reminder about these issues.

In 2018, the FCC adopted a requirement that, within 24 hours of a broadcaster’s discovery that it has transmitted or otherwise sent a false alert to the public, the broadcaster must send an email to the FCC Ops Center ([email protected]), informing the FCC of the event and of any details that the EAS Participant may have concerning the event. This rule and other rules regarding emergency alerting, including the use of live test codes, went into effect in 2019. See our article here.

In 2017, the FCC added a dedicated event code to facilitate the delivery of “Blue Alerts” over the EAS and Wireless Emergency Alert (WEA) services. This new BLU event code is available for state and local officials to notify the public of threats to law enforcement, similar to current AMBER Alerts for missing children. Broadcasters were required to implement the BLU event code in 2019.

The FCC has specifically declined to mandate multilingual emergency alerts by EAS Participants. In 2017, the DC Circuit Court of Appeals upheld the FCC’s decision not to require multilingual EAS messaging. The full DC Circuit denied a request for rehearing of that decision. See our articles here and here for more details on the appeal. However, the FCC is still reviewing how emergency communications can be conveyed to non-English speaking communities.

The FCC has adopted what amounts to a strict liability standard for the use of EAS tones (or even EAS tone simulations) in non-emergency situations. In 2015, the FCC fined iHeartMedia $1 million over the use of EAS tones in a non-emergency. See our article here. In 2017, a broadcaster agreed to pay a $55,000 penalty and enter into a three-year compliance plan with reporting obligations, in connection with a television commercial which incorporated a simulated EAS tone (see our article here). In a 2019 Enforcement Advisory, the FCC has even suggested that false EAS tones conveyed in online programming could be subject to these rules (see our article here).

Earlier this year, the FCC adopted a Notice of Proposed Rulemaking seeking to modify certain aspects of the EAS rules, some of which might be relevant to broadcasters, such as how to define what kinds of misuses of the EAS system constitute “false alerts” that must be reported to the FCC. This same item also included a Notice of Inquiry in which the FCC asks whether the EAS should be extended to streaming services. See here and here for more details. Comments on the new rules on false alters were filed in April 2021. Comments on the Notice of Inquiry on the applicability of EAS to streaming services are due May 14, with replies due on June 14, 2021. EEO Rules

The FCC in 2019 opened a rulemaking seeking comment on changes to EEO compliance and effectiveness of the rules. Among the questions the commission asked are whether elements of its EEO enforcement program are effective, whether the commission ’s auditing program captures the correct information, whether its auditing procedures are properly designed to uncover discrimination, and more. The comment cycle has closed. Our discussion of this open rulemaking is here. In February 2021, a draft Further Notice of Proposed Rulemaking was circulated among FCC commissioners that, if adopted, reportedly will seek comment on data collections relating to minority employment, a topic teed up more than 15 years ago but placed on hold due to constitutional concerns.

The FCC also continues to enforce its EEO rules by randomly auditing 5% of all broadcast stations annually, as well as through the review of Form 396, which summarizes a station’s EEO performance in the two years prior to the filing of a station’s license renewal filing. Random EEO audits targeting radio and TV stations were announced in February 2020, in June 2020 and, most recently, in February 2021. See our summaries here, here and here.

In 2019, the FCC decided to eliminate the Mid-Term EEO reports known as FCC Form 397 filed by TV stations with 5 or more full-time employees on the fourth anniversary of the filing of their renewal applications. See our discussion of this decision here and here. The FCC will still review EEO compliance at the mid-term of a license renewal (as well as at license renewal time), but the information will come from a broadcaster’s online public inspection file, not from a separate filing.

In another deregulatory move, the FCC in 2017 determined that broadcasters can rely solely on Internet recruitment sources to meet their requirement to widely disseminate information about their job openings. If a broadcaster, in its good faith judgement, determines that an online source will reach members of all of the significant groups in its community, it can rely solely on this online source when seeking candidates for new job openings.

The FCC suggested that stations should still reach out to community groups and educational institutions when recruiting for job openings, and still use its own airwaves for such recruiting. However, these additional outreach efforts are not mandatory if the online source being used reaches members of all significant groups within a broadcaster’s recruitment area. See our summary of the decision here.

Broadcasters still need to notify specific community groups about job openings if those community groups specifically ask the station to receive such notices, and broadcasters still must conduct non-vacancy-specific outreach efforts to educate the community about broadcast employment.

These include the EEO menu options such as attending job fairs, hosting interns, conducting broadcast scholarship programs, and speaking at community groups and educational institutions about what jobs there are at broadcast stations, how to train for them, and how to find them. For more on the remaining obligations, see our article here. We looked, here, at how stations can meet their menu options requirements during the pandemic.

A reminder that the FCC is still enforcing its EEO rules came in December 2017, when the Enforcement Bureau announced a $20,000 proposed fine for a broadcaster that apparently failed to sufficiently document its EEO compliance. See our summary here.

See the COVID-19 section above for discussion of a narrow waiver relieving stations of some broad recruitment outreach obligations when re-hiring employees laid off due to the pandemic. And see our discussion here about possible ways to conduct required EEO outreach during a pandemic.

FCC Commissioners

Jessica Rosenworcel

The inauguration of Joe Biden as president has led to Jessica Rosenworcel being named Acting Chair of the FCC. President Biden will choose a permanent chair in the coming months (and Acting Chair Rosenworcel could be one of the candidates for that position). Commissioner Michael O’Rielly was replaced by commissioner Nathan Simington in mid-December. Commissioner Simington’s nomination and confirmation was closely tied to his work on reforming Section 230, a liability shield for online platforms in the Communications Act. We wrote about commissioner Simington, Section 230 and other FCC leadership issues, here. Commissioners Brendan Carr (R) and Geoffrey Starks (D) continue to serve, with the final seat to be nominated by the president, subject to Senate confirmation.

Foreign Ownership, Programming and Investment

In September 2020, Chairman Ajit Pai announced the commencement of a proceeding to determine whether to adopt new sponsorship identification rules requiring that a broadcaster who airs programming directly or indirectly sponsored or provided by a foreign government make clear on-air disclosures about the source or funding for such programs. The proposal would require specific standardized disclosures identifying the foreign government that is involved. See the Notice of Proposed Rulemaking, here.

Comments were filed in late December 2020 and reply comments were due in January 2021. At its April 2021 open meeting, the FCC unanimously voted to adopt requirements to mandate sponsorship identification of foreign government-provided broadcast programming. Among other things, the new rules will require broadcasters to exercise reasonable diligence to determine if a foreign governmental entity is the source of programming. These rules are not yet in effect pending OMB approval. See the Report and Order here.

For many years, Section 310(b)(4) of the Communications Act was viewed as strictly limiting foreign ownership in a broadcast licensee to 20% of the company’s stock, and no more than 25% of a licensee’s parent company stock. The FCC has taken several steps to emphasize that the 25% limit is not a hard cap on foreign ownership of broadcast stations, but instead is simply a point at which specific FCC approval is needed for additional foreign ownership.

In 2016, the FCC released an Order extending the same foreign ownership flexibility currently applicable to common carriers, and those rules became effective in 2017. Under this approach, and with a few broadcaster-specific changes, broadcasters are now able to file petitions for declaratory ruling with the FCC to seek authority:

  • To have up to 100% foreign ownership.
  • For any controlling foreign entity to obtain an additional ownership interest of up to 100% without further FCC approval.
  • For a disclosed, non-controlling foreign interest holder to obtain an additional ownership interest of up to 49.9% without further FCC approval.

In addition, any grant of authority by the FCC pursuant to a Section 310(b)(4) petition filed by a broadcaster automatically will extend to all after-acquired broadcast licenses acquired by the broadcaster. See our summary of the Order here.

Parties seeking to exceed the 25% indirect foreign ownership cap must file a petition for declaratory ruling which details the foreign ownership being proposed. The petition needs to set forth the public interest benefits of the transaction and demonstrate why the alien ownership would not jeopardize any of the security interests of the United States. The FCC will allow the public to comment on the petition, and Executive Branch agencies (aka Team Telecom) will be permitted to review the proposal for any national security implications prior to any grant. See our articles here and here for examples. See our post, here, about recent changes to the Team Telecom review process.

Even more regulatory relief was granted to publicly traded U.S. broadcasters that may have incidental foreign ownership. Specifically, broadcasters must consider the citizenship of shareholders only if the shareholder is known or reasonably should be known to the broadcaster in the ordinary course of business exercising due diligence. This approach focuses on only those shareholders that have a reasonable likelihood of influencing the operations of a broadcaster. The FCC will no longer require the use of random shareholder surveys or require broadcasters to assume that unidentifiable shareholders are foreign.

In 2017, the FCC staff approved, for the first time, 100% foreign ownership of a U.S. broadcast station when it allowed an Australian couple to acquire various broadcast licenses in Alaska, Arkansas and Texas. See our article here. Since then, the FCC has approved many other ownership structures where foreign ownership exceeded 25%, including a number where the foreign ownership of the buyers totaled 100%. See, e.g., the cases we wrote about here and here.

Incentive Auction/Repacking

The incentive auction of UHF TV spectrum ended in 2017, with total auction proceeds of about $19.7 billion and with 84 MHz of TV spectrum to be cleared (chs. 37-51). The repacking of TV stations into UHF chs. 14-36 began in late 2018. The last stations to move were to have been transitioned to their post-auction channels by July 3, 2020. The 39-month phased timeline was controversial, but reports indicate that 99% of stations completed their transition by the end of Phase 10 — with only a few waivers due to COVID-19 delays. See our article here.

Repacked stations are entitled to reimbursement for their repacking costs. Initially, there were concerns that the cost estimates for the repacking for broadcasters and MPVDs was more than the amount allocated by Congress. However, Congress alleviated that concern in 2018 with the passage of the Consolidated Appropriations Act, which should make sufficient funds available for all repacked full-power TV stations, and even for low-power TV and radio stations affected by the repack. See our summary of that proposal here. The reimbursement process for LPTV and radio stations is ongoing. See our summary here.

Repacked stations were required to submit quarterly progress reports throughout the transition, with additional reports due as each station’s transition deadline approached. In addition, the FCC announced that it would randomly audit repacked stations to help ensure the integrity of the repack funding process. See our summary of these issues here. In October 2020, the FCC released a Public Notice, available here, announcing the deadlines for submitting repack reimbursement requests and closing out the reimbursement process. The Media Bureau recently issued a Public Notice reminding repacked stations of these deadlines. See our article here.

With the repack largely complete, the FCC on Nov. 27, 2020, lifted its freeze on accepting applications for VHF stations to move to the UHF band. The freeze had been in place for more than 15 years to keep the universe of television stations stable while the FCC worked through the many station moves necessary to complete the DTV transition and incentive auction repack. Read more, here. This has led to a number of VHF TV stations seeking to change their channels to allow for UHF operations, and even a few proposals for the allotment of channels for new television services. See our article here.


While not a major enforcement priority of late, the FCC continues to have enforcement authority over broadcast indecency. In 2015, the full commission issued a Notice of Apparent Liability proposing the statutory maximum fine of $325,000 for a television station that “aired graphic and sexually explicit material” during a 3-second video clip on its 6 p.m. newscast. The licensee argued that the image had not been visible on the monitors in the station’s editing bay, and therefore the station’s management who had reviewed the story did not see the offending material prior to broadcast.

The bipartisan nature of this decision suggests that the FCC may not change course on indecency regulation whether the FCC is led by Republicans or Democrats. In a news release, the then-chief of the FCC’s Enforcement Bureau noted that the decision sent a clear signal that there are “severe consequences” for broadcasting sexually explicit material when children are likely to be in the audience. More information on this decision is available here.

Meanwhile, a 2013 proceeding on whether to make changes to the FCC’s indecency policies remains pending. In that proceeding, the FCC asked for comments on whether it should continue to apply the hardline enforcement standard against fleeting expletives that was adopted by the FCC in the early 2000s, or whether it should go back to the old standard that required a more conscious and sustained use of expletives to warrant FCC action. For a description of some of the issues involved in this proceeding, see our articles here, here, here and here.

Indecency enforcement continues, with a New York broadcaster entering into a $10,000 consent decree to resolve indecency allegations in 2017.

Joint Sales Agreements/Shared Service Agreements

In November 2017, the FCC repealed the attribution rules for TV joint sales agreements (JSAs), meaning that such agreements would not count against another in-market station for purposes of assessing compliance with the local ownership rules limiting the number of TV stations in the same market in which one party can have an interest. That decision was overturned in 2019 by the Third Circuit Court of Appeals (along with other changes to the ownership rules discussed below) and remanded to the FCC for further consideration. See our summary here. On April 1 the U.S. Supreme Court vacated the Third Circuit decision, and upheld the FCC’s decision to eliminate the TV JSA attribution rule. See our summary here. Even though TV JSAs are not attributable, TV stations are still required to upload copies of any JSA to their online public inspection files.

The FCC has also required commercial TV stations to disclose any shared service agreements (SSAs), regardless of whether the agreement involves commercial TV stations in the same market or in different markets, by uploading copies to their online public inspection files. That decision became fully effective in 2018, and was recently upheld by the Supreme Court in its April 2021 media ownership ruling. The FCC does not require the filing of “ad-hoc” agreements such as news sharing of a particular event, or clearly non-broadcast issues like the sharing of the costs of the upkeep of a building, or of janitorial services. But shared service agreements dealing with broadcast operations must be posted in online public files. The decision stated that the filing was not for purposes of regulation, but instead for purposes of understanding the marketplace. More information is available here.

In the December 2018 Notice of Proposed Rulemaking initiating the next Quadrennial Review, discussed below in the Ownership Limits section, the FCC has asked whether it should continue to require the disclosure of SSAs, or whether that requirement can be eliminated. See the “Ownership Limits” section below for a discussion of the current status of this proceeding.

License Renewals

The license renewal cycle for television stations (including LPTV stations, TV translators and Class A stations) began in June 2020, with the filing of renewals by stations in Maryland, Virginia, West Virginia and the District of Columbia. Renewal applications will be filed by stations in specified states every other month for three years, with the TV renewal cycle ending in 2023. Several changes have been made to the TV renewal application form since the last renewal cycle. For example, stations are no longer required to report on any comments received from the public about violent programming. Stations with renewal applications due in the next few months should begin preparing by reviewing the new form and discussing any relevant issues with counsel.

In reviewing license renewal applications, the FCC has paid particularly close attention to public inspection file issues. For example, many stations were fined in the last renewal cycle for failing to timely file FCC Form 398 children’s programming reports (see our discussion above for changes to children’s programming report filings). The online nature of public files makes it very easy for FCC staff and the public to verify the timeliness (or untimeliness) of station uploads to the public file, including the uploading of the Quarterly Issues/Programs Lists. See our article here about some of those fines, and our article here about issues to consider during this renewal cycle.

The timeliness of uploading political file documents has been a matter of great scrutiny for radio stations that have been going through the license renewal process a year ahead of their TV stations in the same state. See our article here on consent decrees with the FCC entered into by radio broadcasters because of political file issues. TV stations may face some of these same issues as their renewals are reviewed.

LPTV Stations and TV Translators

All LPTV stations and TV translators will be required to sunset any remaining analog operations and commence digital operations by the end of the repacking process — July 13 — unless they receive specific extensions or tolling of their construction permit based on unique circumstances. Stations had until March 13 to request a one-time extension of the July 13 transition deadline. See the FCC’s Public Notice here and our summary, here and here.

In 2015, the FCC decided that LPTV operations may continue operating on new wireless band frequencies until the wireless companies have “commenced operations,” which the FCC defines as the date the wireless company conducts “site commissioning tests.” In other words, the wireless operator needs to buy and test equipment before it fully starts operations, and once it starts the process through testing on the new spectrum, the LPTV operators need to cease operations. See our article here for further details. However, LPTV stations and TV translators operating on chs. 38, 44, 45 and 46 should have vacated those channels by July 13, 2020. See our article here.

The FCC also announced that LPTV stations and TV translators can share channels or can even share channels with full-power stations. Channel sharing with a full-power station would confer some degree of protection against their channel being bumped by future full-power TV facilities changes, as long as the channel sharing arrangement is in place. See our article here.

It remains an open question whether LPTVs on ch. 6 may continue transmitting, post-digital transition, an analog audio channel. The analog audio from these stations act as radio stations as they can be received on FM radio receivers on 87.7 MHz (these stations have come to be known as “Franken FMs”). In 2019, the FCC issued a Public Notice seeking additional comment and to refresh the record on Franken FMs and whether their continued operation should be permitted after the July digital transition. See our summaries of the proposals here and here. Although the July conversion deadline is quickly approaching, the FCC has not yet issued a formal decision on this question.

Main Studio Rule

In 2017, the FCC decided to abolish all main studio requirements, including the requirement that a station maintain a minimum staff presence and program origination requirements. The elimination of these requirements was effective as of Jan. 8, 2018. See our summary here.

Market Modifications

See Retransmission Consent section below.

Modernizing Media Regulation

The FCC through 2020 continued to make media modernization items a priority. The FCC initiated a number of proceedings to eliminate or modify outdated media regulations, and has eliminated the following:

  • The main studio rule
  • The obligation to maintain paper copies of the FCC’s rules
  • The obligation to post copies of FCC licenses at station control points
  • The obligation to file paper copies of various contracts with the FCC
  • The requirement to file ancillary/supplementary DTV service reports annually, unless a station actually provided ancillary/supplementary services
  • The obligation to file mid-term EEO reports
  • The requirement for broadcasters to notify MVPDs by mail of must carry/retransmission consent elections
  • The obligation to air pre-filing announcements and the requirement to publish public notices in a newspaper (allowing stations to instead broadcast certain notices or post them on their websites)
  • Elimination of the rule that forced TV and FM licensees to share unique tower sites with other licensees

Among the proposals the FCC is considering are changes in the 1970s-era rules for establishing whether a TV station is “significantly viewed” in a market other than its home market, and whether the FCC has the statutory authority to make changes to these rules. A designation of being a significantly viewed station has implications for whether a cable system or satellite television company will carry a TV station in areas that are not part of its home market and whether the station is subject to the network nonduplication and syndicated exclusivity protections provided to home market stations. See our summary of these issues here and here. With the change in administration, it remains to be seen whether these media modernization efforts will continue.

Music Licensing 

The Department of Justice completed its review of the antitrust consent decrees under which ASCAP and BMI currently operate and decided to take no action. While there are those who are advocating for changes to these decrees, at least for now, the decrees will remain in place and ASCAP and BMI will have to treat all television stations alike, and their rate proposals will be subject to review by a federal court for reasonableness unless these organizations can negotiate satisfactory rates with industry organizations. See our article here for more on the DOJ’s decision.

Litigation between Global Music Rights (GMR) and the Radio Music Licensing Committee (RMLC) is ongoing. The dispute centers on whether the rates set by GMR should be subject to some sort of antitrust review. The rates set by ASCAP, BMI and SESAC are all subject to review by a rate court or arbitration panel. The TV industry has not yet entered into an industry-wide agreement with GMR and thus TV broadcasters should track the radio industry litigation. Fines for copyright violations can reach $150,000 per violation. We wrote about the GMR-RMLC litigation and licensing issues here.

Over-The-Top Video as A Multichannel Video Programming Distributor (MVPD)

The Supreme Court’s 2014 Aereo decision prompted renewed questions about what it means to be an MVPD, and whether the definition of MVPD should include over-the-top (OTT) providers like Hulu and Sling. That same year, the FCC released a Notice of Proposed Rulemaking proposing to modernize its interpretation of the term “MVPD” to include “services that make available for purchase, by subscribers or customers, multiple linear streams of video programming, regardless of the technology used to distribute the programming.”  The comment cycle in this proceeding has closed, and it remains an open matter at the FCC. Click here for more on this item.

Copyright issues about OTT systems continue to be litigated in the courts. A 2015 court case in California determined that, under the Copyright Act, OTT providers qualified as “cable systems” that could rely on the statutory license to retransmit the signals of local television stations. See our summary here. However, in December 2015, a District Court in Washington, D.C., reached the opposite conclusion (see our summary here), and in March 2016, another court in Illinois agreed with the DC court’s decision  (see our summary here).

The Ninth Circuit Court of Appeals then overturned the California decision, concluding in March 2017 that FilmOn X, an Aereo-type service, is not a “cable system” for Copyright Act purposes. See our summary of that decision here. Following the defeat in the Court of Appeals, FilmOn reached a settlement with broadcasters and dismissed all further appeals, so these cases may be over for now. The Copyright Office sought comments on its tentative conclusion that the Copyright Act’s definition of a cable system does not include online video services like those of Aereo and FilmOn. Reply comments in that proceeding were due by October 2018, and the rulemaking remains open. See our articles here and here for more information.

In the wake of the Aereo and FilmOn decisions, a nonprofit service called Locast has arisen, retransmitting over-the-air TV signals to viewers through the Internet. Founders of the service claim that a nonprofit service like this is legal under an exception to the Copyright Act provisions that blocked commercial services such as Aereo and FilmOn. The Locast service has more than 1.4 million registered subscribers and was sued in 2019 by ABC, CBS, Fox, and NBC. The suit alleges that Locast violates copyright law because it has not secured the right to retransmit broadcast signals. The litigation is ongoing.

Network Nonduplication/Syndicated Exclusivity

See the Retransmission Consent discussion below.

Ownership Limits

Every four years, the FCC is required by Congress to review and consider updating its broadcast multiple ownership rules. In August 2016, the FCC released an order dealing with its ownership rules. The FCC retained the local TV ownership restrictions, the dual network restriction, and the radio/TV cross-ownership restrictions. The FCC also decided to adopt a new obligation for commercial TV stations to disclose any shared services agreement by placing a copy of the agreement in their online public inspection file (but the FCC did not make SSAs attributable). The FCC also retained the newspaper/broadcast cross-ownership prohibition but added a waiver exception for failed and failing broadcast stations and newspapers.

In November 2017, under a new administration and in response to petitions for reconsideration of the August 2016 decision, the FCC took steps to roll back its regulation of media ownership. Specifically, the FCC:

  • Repealed the newspaper-broadcast cross-ownership rule
  • Repealed the radio-television cross-ownership rule
  • Eliminated the requirement that at least eight independently-owned television stations remain in the market after ownership of two stations is combined, i.e., the ‘Eight Voices’ test
  • Incorporated a case-by-case review option of the prohibition against common ownership among the top four stations in the market
  • Repealed the attribution rules for television joint sales agreements (JSAs)
  • Retained the disclosure requirement for SSAs involving commercial television stations
  • Adopted an incubator program to promote new entry and ownership diversity in the broadcast industry

However, the Third Circuit in late 2019 vacated the FCC’s November 2017 changes, forcing the FCC to reinstate the pre-November 2017 rules.

On April 1  the Supreme Court issued a decision upholding the FCC’s 2017 changes to the ownership rules. As a result of this decision, the newspaper-broadcast and radio-television cross-ownership rules have now formally ended, as has the Eight Voices test and the television JSA attribution rule. The requirement that commercial television stations place SSAs in their online public inspection files remains in place. The ruling does not impact the local radio ownership rule or the UHF discount. See our discussion of the Supreme Court’s decision, and what is next in this litigation here.

In December 2018, the FCC initiated a new Quadrennial Review of its multiple ownership rules. A copy of that Notice of Proposed Rulemaking is available here. Among other things, the FCC is seeking comment on all aspects of the local TV ownership rule, and whether the current version of the rule is necessary to serve the public interest in the current television marketplace. If retained, the FCC asks if there should be more explicit rules as to when two top-4 TV stations in a market can be co-owned, rather than the ad hoc process it adopted in November 2017.

The FCC is also seeking comment on whether the Dual Network Rule, which effectively prohibits a merger between or among the Big 4 broadcast networks (ABC, CBS, Fox and NBC), is still necessary and in the public interest, or whether it should be modified or repealed. See our look at the issues that were teed up for comment in the NPRM here.

Comments and reply comments were due in spring 2019, but consideration has been on hold pending the outcome of the Supreme Court appeal of the Third Circuit decision. Even though the Supreme Court rejected the Third Circuit’s ruling, this does not mean that the FCC, particularly under Democratic leadership, will automatically look to relaxing ownership restrictions as part of the Quadrennial Review process. Instead, we think it likely that the FCC will seek to refresh the record in the open ownership proceeding, perhaps with an eye towards revisiting some of the issues decided in 2017. See our views on the future of this proceeding here.

Ownership Reporting

All commercial and noncommercial broadcasters must file their next biennial ownership reports by Dec. 1, reporting on their ownership as of Oct. 1. See our summary of this obligation here.

As part of its media modernization efforts, the commission eliminated the obligation to file with the FCC paper copies of network affiliation agreements, lender agreements, corporate bylaws, and similar documents. Instead, a broadcaster may either upload copies of those materials to its online public file, or provide a list of such documents in its online public file, and provide a copy to any requesting party within seven days of the request. Copies of time brokerage agreements, joint sales agreements and shared service agreements also must be uploaded to the online public file. See our summary here.

The FCC long ago sought comment on whether biennial ownership reporting requirements should include interests, entities, and individuals that are not attributable because of (a) the “single majority shareholder” exemption and (b) the exemption for interests held in eligible entities pursuant to the higher “equity debt plus” threshold. Reply comments in that proceeding were due in 2013. See our summary here. The FCC announced in 2016 that it would address these issues in a subsequent decision, but that has yet to happen.

Political Broadcasting.

Several states will hold statewide, local and runoff elections in 2021. Lowest unit charges must be extended to any political candidate (federal, state or local) 45 days before any primary or caucus and 60 days before any general election. Read more about lowest unit charges here.

Federal candidates, like those running for president, have reasonable access rights even outside these political windows. Once you have a legally qualified candidate for federal office, the reasonable access obligations are triggered. Reasonable access requires that broadcasters sell reasonable amounts of commercial airtime, during all classes and dayparts, to federal candidates. See our refresher on reasonable access here.

While stations do not have an obligation to sell time to candidates for state and local races, once they decide to do so, all other political obligations arise. Thus, lowest unit rates and equal opportunities apply to state and local candidates, just as they do to candidates running for federal office. See our article here for more on this obligation.

Stations also need to be careful about on-air employees who decide to run for an elective office, as their on-air appearances will trigger equal opportunities rights for their opponents. See our story about a radio sportscaster who decided to run for mayor and the issue that it raised under the political broadcasting rules, here.

In many contentious races, you may see third-party ads from SuperPACs and other non-candidate organizations. These organizations may also be buying ads on other controversial issues before Congress or in local areas, and may raise many of the same issues that are raised when they advertise in political races.

Because third-party advertising does not provide the same liability protections that candidate ads provide, stations need to be careful with such ads. While stations are generally immune from any liability for statements made in candidate ads, there is potential liability if the station is put on notice of defamatory content or other illegal material in non-candidate ads. See our article about these issues here.

Such claims are increasingly common. See our articles here and here. In fact, last year, President Trump’s campaign committee sued a Wisconsin TV station for defamation in connection with a PAC ad critical of the President’s handling of the coronavirus. The case was dismissed in November 2020. See our article, here, on the dismissal.

As noted above, candidate ads are covered by the “no censorship” provisions of the Communications Act. Thus, as long as the ad is a “use” by the candidate (i.e., it is sponsored by the candidate’s official campaign committee, and features the candidate’s “recognizable voice or image,” the spot cannot be rejected based on its content, and a station cannot (except in very limited circumstances not relevant here) take it down at the request of a complaining opponent.

Numerous requests for take-downs of candidate ads occurred in races across the country in recent elections, so stations need to be aware that they usually cannot honor those requests, even if the broadcaster does not like the content of the candidate’s ad. We wrote more about the no-censorship rule here.

These are just some of the political broadcasting rules. For more information on these rules, see our Guide to Political Broadcasting here. In addition, the NAB’s 18th edition of its Political Broadcast Catechism is a helpful guide to answering political advertising questions. There have also been some recent developments on political broadcasting issues that should be top of mind as we head into the 2021 and 2022 election seasons.

The FCC in October 2019 acted on complaints that alleged that TV broadcasters did not place enough information in their public files about the issues addressed in non-candidate advertising on Federal matters. The FCC decided that it will require broadcast licensees to maintain an online political file that contains information regarding any request to purchase airtime that “communicates a message relating to any political matter of national importance,” including:

  • A legally qualified candidate
  • Any election to federal office
  • A national legislative issue of public importance

The FCC requires that the public file disclosure include “the name of the candidate to which the communication refers and the office to which the candidate is seeking election, the election to which the communication refers.”

In addition to the information about any candidate mentioned, licensees must identify all political matters of national importance referenced in a non-candidate issue ad. This listing requires that all federal candidates and all federal issues mentioned in the ad be listed, so stations need to review these ads to make sure that their public file disclosures are complete.

Finally, if the public file disclosure provided by the ad buyer includes a single name of the members of the sponsor’s governing board, the station must inquire to the sponsor as to whether there are additional officers or directors. See our discussion of the orders here and our discussion here of the FCC’s further clarification that the Orders apply only to federal issue ads (and not to candidate ads) and that the FCC is looking for good-faith compliance efforts from stations. And, see our discussion here on public disclosures for state issue ads.

The timeliness of the uploading of political file documents has also been a matter of controversy. The FCC requires that information about advertising orders by political buyers ordinarily be uploaded immediately. The FCC has been scrutinizing the timeliness of such uploads during the license renewal process. See our article here on consent decrees entered into by radio broadcasters for political file issues.

There are other old petitions for rulings on political broadcasting matters that are still pending at the commission. In 2015, the FCC sought public comment on a complaint filed by Canal Partners Media during the 2014 election cycle, in which Canal claimed that two television stations were violating Section 315(b) of the Communications Act, as amended, by prioritizing commercial advertisers over political candidates when making preemption determinations.

Specifically, Canal claimed that the stations’ “Last-In-First-Out” (LIFO) policy preempted candidates’ advertisements in favor of commercial advertisements purchased earlier. Canal’s complaint requested that “if broadcast stations are using LIFO as a method to determine preemption priorities, they must treat political candidates as being the “First-In” advertiser regardless of when the candidate purchased its airtime in order to be in compliance with Section 315(b) of the [Act].” See our summary of the issues here.

Sunlight also filed complaints against two other stations alleging that they did not adequately disclose the true sponsor of PAC ads. The complaints alleged that the sponsorship identification of the PAC that sponsored ads attacking political candidates was insufficient when the PAC was essentially financed by a single individual. In September 2015, the Media Bureau dismissed the complaints.

However, the bureau did not specifically find the allegations to be incorrect. Instead, the complaints were dismissed because petitioners never went to the stations to ask that they change the sponsorship identification on the PAC spots during the course of the election.

The bureau said that it was using its prosecutorial discretion not to pursue these complaints, going so far as to say that the ruling might have been different had the request for a proper identification been made to the stations during the course of the election. Thus, broadcasters should be alert for complaints alleging that they have not properly identified the true sponsor of a PAC ad, and treat such complaints seriously. See our summary here.

After the 2014 elections, another complaint was filed by the same groups against a Chicago TV station claiming that the station should have identified former New York City mayor Michael Bloomberg as the true sponsor of an ad run by a PAC. In this case, the station apparently was given written notice of the claim that the sponsorship identification should have included Bloomberg, which may distinguish it from prior cases. That issue remains pending. See our summary here.

Public Inspection File

TV stations are required to place their public inspection files online on an FCC-hosted website. The elimination of the requirement to retain copies of letters and emails from the public removed any responsibility for broadcasters to maintain a paper public file at their studio. See our article here.

On a related note, the FCC has changed TV renewal applications to remove the requirement that TV stations identify any comments from the public about violent programming on the station. Copies of joint sales agreements, time brokerage agreements, and shared service agreements must be uploaded to the online public file, though confidential information can be redacted. See our separate discussion in the “Ownership Reporting” section above regarding the FCC’s elimination of the obligation to file paper copies of contracts but with new online public file obligations regarding those contracts. See also our reference to the political section of the online public file, above.

For a summary of the general online public file obligations, see our summary here.

Regulatory and Filing Fees

The method for calculating TV regulatory fees changed for 2020 and beyond, moving to a methodology for setting fees more like that used in radio, by assessing fees for full-power broadcast TV stations based on the population covered by the station’s contour, instead of by the station’s DMA (with some limitations relating to fees for VHF stations that have obtained waivers allowing them to operate at power levels exceeding the maximum power levels permitted by the rules). For more information, see our article here. Regulatory fee payments for the 2021 fiscal year are likely to be due in late September.

The fees tied to certain broadcast applications will see changes in the near future, after the FCC has had time to update its internal databases and procedures. The FCC has analyzed the legal, engineering, and supervisory resources it devotes to each type of application and adjusted its fee schedule to better reflect the actual resources spent reviewing applications. Application types that require more resources will see a fee increase while applications that use less resources will see a fee decrease. The fee schedule is available here.

Retransmission Consent/Must Carry/STELAR/STCPPA

Must carry or retransmission consent elections for 2021-23 had to have been made been made by Oct. 1, 2020. A broadcast station no longer needs to mail a paper letter to each MVPD in its market confirming the type of carriage it has chosen. Instead, a station should have uploaded its election to the station’s online public file by Oct. 1, 2020, and every three years thereafter. If a station is changing its carriage type, it must send notice to the MVPD by email and post that notice in its public file. Read more about this rule change here and here.

In 2016, then-FCC Chairman Thomas Wheeler, in connection with a review of the retransmission consent process, noted that the FCC’s existing “totality of circumstances” standard for weighing complaints about violations of the requirements to negotiate retransmission consent agreements in good faith was sufficiently inclusive to give the FCC scope to take enforcement action if parties tried to abuse the negotiation process. See our analysis here and here.

As an example of violations of the good faith requirements in action, the Media Bureau entered into a consent decree with one broadcaster, who paid a $100,000 penalty, based on its stations violating three of the nine good faith requirements at two of its stations. The stations were found to have:

  • Refused to negotiate retransmission consent agreements
  • Refused to meet and negotiate retransmission consent at reasonable times and locations or acted in a manner that unreasonably delayed retransmission consent negotiations
  • Failed to respond to a retransmission consent proposal of the other party, including the reasons for the rejection of any such proposal.

See more on this action here. In September 2020, the FCC denied an application for review of the Media Bureau decision on which that consent decree was based and issued a Notice of Apparent Liability in the amount of $512,228 per station to each of the 18 other stations that had not entered into consent decrees. See the FCC decision here.

As required by the STELA Reauthorization Act of 2014, the FCC adopted a new rule prohibiting the joint negotiation of retransmission consent agreements by two stations in the same market that are not “directly or indirectly under common de jure control,” regardless of whether those stations are among the top-4 stations in the market.

In 2016, the FCC’s Media Bureau entered into a Consent Decree with Sinclair regarding this prohibition. While the company did not admit liability, the Consent Decree includes a finding that the company engaged in such negotiations on behalf of 36 non-owned stations. The company agreed to make a $9.495 million settlement payment and to implement a compliance plan. See our summary here.

Congress, at the end of 2019, adopted the Satellite Television Community Protection and Promotion Act of 2019, which effectively dismantled much of the STELAR legislation that previously allowed satellite television providers (Dish Network and DirecTV) the ability to import distant network affiliated stations into underserved areas of television markets.

This year, the Copyright Office began an inquiry to review the impact of the elimination of the provisions of the statutory license which had allowed this importation of distant signals. The Copyright Office seeks comments as to whether the elimination of these STELAR rules met it policy goals. See our description of that proceeding, here.

The FCC itself has been looking at changes to its determinations as to which stations are “significantly viewed” in a television market. The current rules have largely been unchanged since 1972. The proposed changes are summarized in our article here. Comments were filed in June 2020 on this proposal.

In 2015, following a rulemaking proceeding to address requirements of previous STELAR legislation, the FCC adopted new rules permitting the modification of satellite television markets. Under the rules, the FCC may, upon the request of a television station, satellite operator or county government, modify a commercial TV broadcast station’s local television market to add or delete communities from the market. We wrote briefly, here, about the elements the FCC is looking for in petitions for change of market.

A related Further Notice of Proposed Rulemaking proposed eliminating the network nonduplication protection rules and the syndicated exclusivity rules, but those proposals have not advanced. See our discussion here for more details of the proceeding.

Social Media/Tech Regulation

As huge digital media platforms have developed in this century, these platforms have taken away over half the local advertising revenue in virtually all media markets — revenues that had supported local journalism. The perception is that this has been done without significantly adding to the coverage of local issues and events in these markets.

Many legislators around the globe have come to the conclusion that these digital platforms attract audiences by featuring content created by the traditional media sources that have been so impacted by online operations. To preserve and support original news sources, various ways in which the content creators can be compensated for the use of their works are being explored. To this end, in March 2021, U.S. Sens. Amy Klobuchar (D-Minn.) and John Kennedy (R-La.) and Reps. David Cicilline (D-R.I.) and Ken Buck (R-N.Y.) introduced the Journalism Competition and Preservation Act which, if enacted, would provide an exemption to the antitrust laws to allow creators of news content — including any FCC-licensed broadcaster that airs original news and related content  – to collectively negotiate with digital platforms. See our article here on that proposal.

In addition, there are many other proposals for additional regulation of social media and other platforms run by the Big Tech companies. These range from changes to the antitrust laws, to revisions to Section 230 of the Telecommunications Act which gives online platforms immunity for content created by others and posted on their sites (see our article here), to various proposals to regulate the content posted on these sites. See our article here more on the debate surrounding regulation of social media and other tech platforms.

Sponsorship Identification

Enforcing sponsorship identification rules continues at the FCC, and a recent advisory issued by the Enforcement Bureau suggests that this is an area of concern for the current administration. See our article here.

In 2017, the Enforcement Bureau proposed a fine of more than $13.3 million for apparent sponsorship identification violations by Sinclair Broadcast Group. The FCC alleged that program segments contained in news broadcasts of certain Sinclair stations and certain program-length reports featuring stories about the Huntsman Cancer Institute were not tagged as being sponsored — even though they were broadcast as part of a contract that required that Sinclair air advertising for the Institute and develop programming about the Institute’s activities. In May 2020, Sinclair entered into a Consent Decree with the FCC and agreed to pay a $48 million fine to settle the sponsorship ID inquiry and two other unrelated inquiries. See our summary of the sponsorship ID issue here and details of the Consent Decree here.

In 2016, the Enforcement Bureau announced a Consent Decree with Cumulus Radio to settle a matter in which full sponsorship identification announcements were not made on issue ads promoting an electric company’s construction project in New Hampshire. In the Consent Decree, Cumulus agreed to pay a $540,000 civil penalty to the FCC for the violations of the rules — plus it agreed to institute a company-wide compliance program to make sure that similar violations did not occur in the future. See our article here. In connection with two subsequent violations of the rules, the company was fined an additional $233,000 (see the FCC order here). The size of these fines makes clear the commission ’s continuing concerns about these issues.

In 2014, the Enforcement Bureau entered into a Consent Decree with a television licensee for broadcasting “Special Reports” formatted in the style of a news report and featuring a station employee without disclosing that they were actually commercials paid for by local car dealerships, as required by the sponsorship identification rules. The licensee admitted liability and agreed to pay a $115,000 civil penalty. The accompanying order described the rules not only as protecting consumers by “ensuring they know who is trying to persuade them,” but also as protecting competition by “providing a level playing field for advertisers who follow the rules.” See our summary here.

While a proposal was filed in 2015 suggesting that many sponsorship identification obligations be moved online, similar to the disclosure obligations for contest rules (see our summary of the proposal here), the Pai FCC did not move ahead with that proceeding, and it is still pending.

See the “COVID-19” section above for a discussion of a limited pandemic-related sponsorship ID waiver.

Video News Releases (VNR) — The FCC has issued fines to television stations for airing freely-distributed video news releases without identifying the party who provided the VNR, and for broadcasting other programming for which the station or program host received consideration that was not disclosed.

For political matter or other programming on controversial issues, the station must announce who provided any tape or script used by the station.

For commercial programming, if the station airs content provided by a commercial company, and that use features the product of the company in more than a transient or fleeting manner, the party who provided the content must be disclosed.

A summary of some of the FCC cases where stations were fined for VNRs is available here.

Foreign-Sponsored Programming — The FCC is also recently adopted rules that require enhanced sponsorship identification of programming provided or sponsored by foreign governments. See the discussion in the Foreign Ownership, Programming and Investment section above for more details.

Sponsorship Identification Online and In Social Media — In addition to FCC rules, the FTC requires that parties that have received any compensation in exchange for posting any materials online, disclose that the online material was sponsored. The extent of the sponsorship varies by the technological capabilities of the medium — with the FTC suggesting “ad,” “advertisement,” or “sponsored” be used for disclosure language on Twitter and Instagram, with more extensive disclosures on other platforms.

As broadcasters incorporate website content and social media mentions with on-air advertising campaigns, they should be aware of these obligations. See our summary of the FTC rules here, and an article here about letters from the FTC to over 90 online “influencers” reminding them to abide by this policy.


See Retransmission Consent section above.


The Telephone Consumer Protection Act (TCPA) is a law that restricts businesses and organizations from making calls and texts to consumers’ residential and wireless phones without having first received specific permission from the recipient. Sending texts to broadcast station viewers or listeners who are in a station’s loyal listener or loyal viewer clubs can lead to liability if the proper consents are not obtained. Collecting text addresses from contest participants and adding them to station databases similarly can be problematic. Even where proper permission has been obtained, there can be liability for calls and texts to wireless numbers that have been reassigned, as well as to viewers or listeners who have revoked their consent.

Because violations of the TCPA can result in civil liability of $500 to $1,500 per call or text plus FCC fines, and as there have been a number of law firms around the country that have been active in filing class action suits against businesses to collect those potentially very high per-call damages, broadcasters need to ensure that their practices comply with the TCPA and the FCC’s rules which implement the Act. In June 2016, iHeartMedia, settled a TCPA lawsuit for $8.5 million. Read more about this issue here.

The FCC continues to pursue large fines for unlawful robocalling (for example, here) and recently amended its rules to limit the number of certain informational calls that can be made without express consent (though those rules are not yet effective). On April 1  the Supreme Court issued a ruling interpreting the definition of an automatic telephone dialer system (also called an “autodialer”) to include only those devices that have the capacity to store or produce a telephone number using a random or sequential number generator. This ruling resolved a circuit court split regarding the meaning of an autodialer, which has often been a key prerequisite TCPA liability.

In July 2020, the TCPA survived a Supreme Court challenge mostly intact with only a provision related to calls to collect debt owed to or guaranteed by the federal government being discarded. However, courts are still sorting out the enforceability of the TCPA for several years prior to the July 2020 ruling.

Tower and Antenna Issues

Under legislation enacted in July 2016 (the FAA Extension, Safety, and Security Act of 2016), Congress directed the FAA to conduct a rulemaking to adopt rules regarding lighting rural towers that are between 50 feet and 200 feet in height. See more about this issue here. Many in the communications industry expressed concern that the costs of implementing this rule outweighed any potential benefits of the rule.

Congress subsequently revisited this legislation in 2018. Through a coalition including the NAB and other groups that work on tower issues, the legislation passed in 2018 (the FAA Reauthorization Act of 2018) included a carveout for towers that are between 50 feet and 200 feet in height. These towers do not need to be marked or lighted if they are registered in an FAA database.

The FCC has aggressively enforced tower lighting and other tower-related violations, in one case seeking a fine of $25,000. Tower owners have been penalized for failing to have the required tower lights operating after sunset, failing to notify the FAA of any outages in a timely manner (so that the FAA can send out a NOTAM — a notice to “airmen” notifying them to be aware of the unlighted tower), and failing to update tower registration information, particularly when the tower is acquired by a new owner.

Failing to notify the FAA of tower light failures, as required by the rules, can lead not only to FCC fines but also to huge liability issues if the worst case happens and an aircraft should hit the unlighted tower. We discuss many of these issues here and here. The FCC also fines broadcasters whose towers are not properly registered in the name of the actual owner. If a tower’s ownership changes (for instance, in connection with the sale of the station that owns the tower), be sure that the tower registration is updated and the new owner listed.

UHF Discount

Since 1985, to encourage further TV use of the UHF band over traditional VHF channels, TV licensees have received a one-half discount for UHF stations when analyzing the FCC’s 39% cap on the nationwide audience that can be reached by any one owner. In September 2016, the commission voted 3-2 to eliminate the UHF discount. See our analysis here and here. That decision was challenged in court, and a petition for reconsideration was also filed with the FCC. In April 2017, the FCC voted 2-1 to reinstate the UHF discount. See our summaries here and here. In July 2018, the US Court of Appeals in the District of Columbia dismissed, on procedural grounds, an appeal of this decision to reinstate the UHF discount.

Separately, in December 2017, the FCC initiated a comprehensive review of the national audience reach cap and the UHF discount. The FCC’s Notice of Proposed Rulemaking does not draw any conclusions, but sought comment on the following issues:

  • Whether the FCC has the statutory authority to modify or eliminate the national cap
  • If statutory authority exists, whether the national cap should be modified or eliminated in light of increased video programming options or other factors since the FCC adopted the current 39% cap
  • If a national cap is retained, whether it should be raised simultaneously with the elimination of the UHF discount and if so, by how much
  • Whether the national cap continues to serve the public interest and if so, what public interest goals, such as localism, it continues to foster
  • The benefits and costs associated with maintaining or increasing the cap

The comment cycle has closed in this proceeding and the matter is still pending. See our article on this rulemaking here. The change in administration may well mean that these proposals will not move forward.

White Spaces/Unlicensed Devices/Wireless Microphones

At its April 2021 open meeting, the FCC adopted a Notice and Proposed Rulemaking seeking comment on proposed revisions to its Part 74 technical rules (which currently govern low power auxiliary stations commonly used by broadcasters) to permit a new type of wireless microphone system called “Wireless Multi-Channel Audio System” (WMAS).

The proposed rules would permit the use of WMAS on a licensed basis in frequency bands where wireless microphones already are currently authorized, including the TV bands, the 600 MHz duplex gap, and in portions of the 900 MHz, 1.4 GHz, and 7 GHz bands. The FCC states that its goal is to enhance the spectral efficiency of wireless microphone use, and notes that it does not intend to alter the existing spectrum rights or expectations of existing users, including broadcast licensees. To this end, the FCC seeks comment on the potential for WMAS to affect licensed broadcast services in the TV bands. The pleading cycle in this proceeding has not yet been established.

In late 2020, the FCC declined to move forward with a proposal to require that, in each TV market, one UHF TV channel (above ch. 21) that is not assigned to a TV station following the repacking will be designated for use by TV white space (TVWS) devices and wireless microphones.

Microsoft had been pushing unlicensed TV white spaces as a rural broadband solution. The NAB had pushed back, particularly on Microsoft’s effort to set aside one 6 MHz channel in each market for unlicensed devices. Microsoft was not an incentive auction participant, and was arguably trying to get access to unlicensed airwaves without paying for them. There are numerous technological hurdles for Microsoft and other white space operators, and there is of course the potential for harmful interference to over the air broadcasting.

The FCC opened a rulemaking in March 2020 seeking comment on overcoming some of these technological hurdles, and heard from interested parties on proposals to allow unlicensed white space devices to cover larger areas through increased power output and higher antenna heights while still limiting interference from incumbent band users like TV operations.

In November 2020, based on a compromise proposal submitted by the NAB and Microsoft, the FCC adopted rules to provide greater flexibility for TV white space devices to expand their ability to deliver wireless services in rural and underserved areas. Fixed white space devices in less congested areas can operate at higher power and increased height above average terrain. A new class of geo-fenced, mobile white space devices may operate at higher power levels.

Narrowband Internet of Things (IoT) white space devices can be deployed in smaller, 100-kilohertz channels at the same maximum power level permitted for fixed devices. And to prevent harmful interference to broadcast TV stations, the FCC increased the minimum required separation distances between white space devices operating at higher power or height above average terrain and protected services operating in the TV bands.

In addition, the FCC issued a Further Notice looking at whether it can open up even more TV white spaces for rural operators by incorporating smart modelling using Longley-Rice. The decision is available here. We looked at the proposed rulemaking, here.

The use of wireless microphone devices in the 700 MHz band was prohibited by the FCC in 2010. In July 2017, the FCC announced new point-of-sale disclosure requirements for 600 MHz licensed wireless microphones. Effective as of April 2018, the required disclosure language reads as follows:

“This particular wireless microphone device operates in portions of the 617-652 MHz or 663-698 MHz frequencies. Beginning in 2017, these frequencies are being transitioned by the [FCC] to the 600 MHz service to meet increasing demand for wireless broadband services. Users of this device must cease operating on these frequencies no later than July 13, 2020. In addition, users of this device may be required to cease operations earlier than that date if their operations could cause harmful interference to a 600 MHz service licensee’s wireless operations on these frequencies.”

In 2017, the FCC refused to permit wireless microphone users that operate on an unlicensed basis in the TV bands, the 600 MHz duplex guard band and duplex gap to register their operations in the TV white spaces databases to obtain interference protection from white space devices. However, the FCC issued a Further Notice proceeding in which it proposes to permit certain qualifying professional theaters, music, and performing arts organizations to obtain a Part 74 license that would allow them, as licensees, to obtain interference protection in the TV bands and, when needed, also to operate in other spectrum bands authorized for licensed wireless microphone operations. The pleading cycle for this proceeding has closed.

Separately, the Further Notice revisits the FCC’s previous decision that companies that use 50 or more wireless microphones have the same interference protection as low power wireless audio devices. The Further Notice proposes expanding this group to include (a) wireless microphone users that routinely use 50 or more wireless microphones where the use is an integral part of major events or productions (as provided under existing rules) and (b) wireless microphone users that otherwise can demonstrate a particular need for, and the capability to provide, professional, high-quality audio that is integral to their events or productions.

In addition, the FCC clarified various rules for licensed wireless microphone use in the 169-172 MHz band, the 941.5-944 MHz band, and the 1435-1525 MHz band.

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