Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.
- The FCC has sent an e-mail, apparently to all broadcasters, regarding the cybersecurity of broadcast stations that use the DASDEC EAS encoder/decoder device sold by Digital Alert Systems (formerly Monroe Electronics), using software prior to version 4.1. The email states that the Cybersecurity and Infrastructure Security Agency issued an advisory expressing concern that there is a vulnerability in the code used by the system that can be used by remote attackers. The e-mail recommends that stations using this equipment make sure that they have downloaded the latest updates containing a patch to the vulnerability, and adopt good “cyber hygiene,” including the steps set forth in the FCC’s August 5 Public Notice on that subject, which include updating passwords, using firewalls and isolating equipment that may be subject to attack.
- On Wednesday, the House Judiciary Committee held a “mark-up session” for the American Music Fairness Act, which proposes to impose a sound recording performance royalty on over-the-air broadcasting. This bill proposes a royalty paid to SoundExchange by over-the-air radio to benefit the recording artist and copyright holder (usually the record company), in addition to the royalties already paid to composers and publishing companies through ASCAP, BMI, SESAC and GMR. The Committee approved the bill, passing it on to the full House of Representatives for consideration. The full House and the Senate would have to approve it, and have it and signed by the President, before it became law. With the current session of Congress coming to a close at the end of the month, if not approved this month, the proposed legislation would need to start over in the new Congress in January. Thus, unless the bill is tacked on to some must-pass legislation in this “lame duck” session of Congress, this week’s action by the Committee is likely a marker for action in the new year. We wrote more about the bill and its impact this week on our Broadcast Law Blog
- The FCC has published in the Federal Register the Report and Order (R&O) that updates the FCC’s rules to identify Nielsen’s monthly Local TV Station Information Report as the new publication for determining a television station’s designated market area for satellite and cable carriage purposes. As a result, the R&O and associated rule changes will be effective January 6, 2023. For more details, see our articles here and here.
- As we’ve previously reported, the Federal Election Commission (“FEC”) has adopted new disclaimer requirements for internet-based political advertising, including detailing the required identification of the ad sponsor. When it adopted its new rules, the FEC rejected a broader proposal that would have included not just communications where the owner of the digital platform was paid for the inclusion of the ad, but also political communications where the platform itself may not have been paid, but where the sponsor of the communication paid others to promote or otherwise broaden the dissemination of the communication. Instead, the FEC issued a Supplemental Notice of Proposed Rulemaking seeking public comment as to whether disclaimers should be required for such promoted communications. The Supplemental Notice was published in the Federal Register on December 9, meaning that public comments are due by January 9, 2023. The Supplemental Notice asks about the impact of such a rule, and whether the FEC’s proposed rules for sponsorship disclaimers for promoted communications appropriately covered the issues. These rules are important to influencers and other social media users who are paid to promote political messages.
- The FCC’s Media Bureau has entered into a Consent Decree due to the operation of a station by the deceased licensee’s daughter (the licensee’s beneficiary) for nine years after the death of the licensee, without anyone seeking any FCC approval for her assumption of control. The estate and the daughter were required to pay a $7,000 fine and adopt a mandatory plan to ensure compliance with the FCC rules that had been violated. The FCC rules require that the FCC be notified of a licensee’s death within ten days, and to seek approval for an involuntarily transfer control of the station’s license to the estate within 30 days. Once the estate has been probated, another application to transfer control to the beneficiary is also required. None of those applications were filed for nine years in this case. In addition, the parties admitted that they had not timely uploaded records to the station’s online public inspection file, and were further found to have violated the FCC’s ownership report rule, apparently for failing to file a biennial ownership report by December 1 in all odd-numbered years. The case is a reminder that upon the death or incapacity of a licensee or a controlling owner of a licensee, the FCC needs to be notified and approve those who subsequently control the station (similar rules apply where a licensee goes into bankruptcy).
- On our Broadcast Law Blog this week, we wrote more about the meaning and implications for local advertising of the FTC decision we noted in last week’s regulatory update, fining Google and iHeart Radio for running ads by local announcers touting their use of a new Google phone, which they in fact had not used. In our article, we noted that all media companies need to make sure that any ad using endorsements or testimonials is fully accurate and meets FTC guidelines to avoid penalties for deceptive advertising.