On January 17th, 2024, the FCC released a Notice of Proposed Rulemaking (“NPRM”) in its Docket 24-14 proposing to prioritize processing of renewal applications and applications for assignment or transfer of license applications filed by commercial and noncommercial radio and television broadcast stations that broadcast three (3) hours per week of “locally originated” programming. The stated goal is to “provide additional incentive to stations to provide programming that responds to the needs and interests of the communities they are licensed to serve” especially, in the FCC’s view, due to the 2017 elimination of the main studio rule.

The proposal states applications without holds or other processing issues requiring additional staff review, also referred to as “simple” applications, would be acted upon consistent with current routine processing procedures, while those which are more complex would be subject to the proposed priority system. Also, the text notes that the decision by a licensee to elect to certify that the station meets the local programming guidelines is purely voluntary.

One might ask, what is the problem with application processing priority for stations with 3 hours per week of locally originated programming? Of course, the devil is in the details. For some stations the proposal will be a problem delaying action on their applications but for other stations, the proposal could expedite action on their filed applications. There are too many nuances in the NPRM to discuss here but consider the following major points:

First, under the proposed rules, a licensee would have to “certify under penalty of perjury” that it broadcast 3 hours of “locally originated” programming. A false certification would bring fines or more serious penalties which means stations would have to maintain program logs of daily programming to prove the broadcasts occurred. Further, the NPRM asks if the certification of 3 hours per week of programming should continue after an application is granted.

Important to a certification under penalty of perjury is exactly what is the definition of “locally originated” programming?

As to the station’s “local” area for purposes of local origination of programming:
The NPRM notes the former main studio rule required each AM, FM, and television broadcast station to maintain a main studio that is located either: “(1) within the station’s community of license; (2) at any location within the principal community contour of any AM, FM, or TV broadcast station licensed to the station’s community of license; or (3) within twenty-five miles from the reference coordinates of the center of its community of license as described in § 73.208(a)(1).”

In its draft proposed rules attached to the NPRM, the FCC adopts the foregoing geographical areas for production of “locally” originated programs.

The definition of “origination” at a station is proposed as “any kind of activity involved in creating audio (radio) or video (TV) programming that occurs within the “local” market, as defined in this proceeding, would be sufficient. Local program origination could involve, for example, activities such as program scripting, recording (video or audio) at a studio or other location in the local market, or editing. Our proposed approach would include programming that contains video or audio recordings that were made at locations outside the local market, as long as the program also includes some other element of local creation. For particular programming that contains content made at locations outside the local market, should we establish a minimum amount of required locally originated programming? What other kinds of local activities should qualify as local program origination?”

The proposed rules attached to the NPRM generally track the concepts above but also lists what is not included in locally originated programming as follows: “Locally originated programming does not include: the broadcast of repetitive or automated programs or time-shifted recordings of non-local programming whatever its source; a local program that has been broadcast twice, even if the licensee broadcasts the program on a different day or makes small variations in the program thereafter. In addition, with respect to television stations, locally originated programming is programming containing simultaneous video and audio programming where the audio portion of the programming directly relates to the video portion of the program.”

It is clear how difficult it will be to “certify under penalty of perjury” that a station is complying with the criteria. Program logs are needed and a careful review of the nature of the programming under the definitions provided.

The NPRM recognizes that the proposed rules set forth in the NPRM will impose new or additional filing, recordkeeping and reporting requirements. Obviously, a certification requires both maintenance of program logs and careful decisions if a licensee elects to certify that the station meets the local programming guidelines in order to avoid a false certification. A question will be what is entailed in a basis for making a certification. Further, as the FCC has limited staff, the impact of the proposal on routine normal processing procedures for “simple” applications will be a critical question in the proceeding. Finally, whether there is need for the proposed new rules will be hotly debated in comments in the proceeding.

The National Association of Broadcasters, other organizations and individuals will file comments and reply comments. As of this date, it is impossible to determine if the new proposed rules will actually be adopted or will wither as a footnote in FCC history of failed proposed rules. Stay tuned!

In another action by the Commission on January 17, 2024, the FCC emphasized the importance of compliance with sponsorship identification and online political file rules in a decision including a Consent Decree and a $500,000 Civil Penalty as to two Idaho AM Stations. In a nutshell, the Commission found the two Stations violated FCC rules by failing to provide numerous on-air sponsorship identification announcements for multiple episodes of a paid-for political program, and advertisements promoting the program, broadcast over the Stations from October 2021 to March 2023. The Stations also failed over the same timeframe to upload to the Stations’ political files the records of the program including uses by legally qualified candidates for public office and communicating messages relating to political matters of national importance. Coupled with the $500,000 penalty, the Consent Decree, including reporting to the FCC, ensured future compliance by the Stations with the FCC’s rules.

Read the weekly summary of FCC activity crafted by David Oxenford and the team at Wilkinson Barker Knauer, LLP in Washington DC at https://vab.org/this-week-at-the-fcc/