And They’re Off: FCC Jumps Out of the Gate with Back-to-Back Enforcement Actions and NPRMs

If there was any doubt that the late-2023 confirmation of Anna Gomez as the fifth commissioner would bring a flurry of FCC activity in 2024, the FCC has laid those questions to rest. In addition to a $150,000 good faith NAL, $500,000 sponsorship ID consent decree, $26,000 EEO report NAL, and some public file NALs, the FCC this week released two Notices of Proposed Rulemaking of potential interest to broadcast licensees.

Priority Application Review NPRM
Up first: a proposal to “prioritize processing review” of certain broadcast TV and radio station applications (including applications to renew, assign, or transfer a license), where the applicant certifies that every station included in the application provides an average of at least three hours per week of locally originated programming. The Priority Application Review NPRM tentatively concluded that (1) processing priority would apply only to “complex” applications (i.e., “applications for which processing is not immediately available because the application has a hold, petition to deny, or other pending issue that requires further staff review”); (2) this approach should not delay review of “simple” applications; and (3) processing priority would not apply to modification applications, waiver requests, or requests for Special Temporary Authority, or to applications filed with respect to radio translators, boosters, or TV translators. The NPRM declined to commit to acting on applications eligible for priority review within any specified time period.

In addition to seeking comment on these proposals, the FCC asked a number of questions, including whether the eligibility threshold should be an average of three-hours per week of local programming, how to define the “local” market, and how to determine whether programming has been “originated” locally to be eligible for priority application review. In this regard, the NPRM proposed that “any kind of activity involved” in the creation of TV or radio programming that happens within the local market would suffice.

Comments and reply comments are due 30 days and 60 days (respectively) after publication of the NPRM in the Federal Register, at which time we’re sure to see whether most interested parties consider this a proposal to “sweeten the incentives” (per Chairwoman Rosenworcel) or just a “collateral attack” on the earlier elimination of the main studio rule (per Commissioner Simington). Stay tuned!

Cable and Satellite Rebate NPRM
The Cable and Satellite Rebate NPRM tees up for consideration whether the FCC should adopt rules requiring cable operators and satellite providers (MVPDs) to give their subscribers rebates following failed retransmission consent negotiations and seeks comment on how any rebate scheme would work in practice. More specifically, the FCC asks how it should determine when and to whom rebates should be issued, including whether an MVPD that fails to ever reach agreement with one or more stations must issue a rebate in perpetuity, whether a subscriber who signs up for service during an ongoing impasse should receive a rebate or receive a lower monthly bill, and how to calculate the rebate amount (for example, whether the MVPD should rebate to the consumer the amount it paid to the station prior to the impasse). The NPRM seeks information about any MVPDs that currently issue rebates during carriage disputes and how those companies handle such rebates.

The NPRM also asks whether the FCC has authority to adopt such a rebate rule. The FCC tentatively concluded that language found in Section 632 of the Communications Act directing the agency to “establish standards by which cable operators may fulfill their customer service requirements” provides such authority with respect to cable operators, and that its broad authority under Section 335(a) of the Act to adopt “public interest or other requirements for providing video programming” covers satellite providers. And because the FCC shares shares enforcement authority over cable companies with state and local governments, the NPRM specifically solicits input from state and local authorities regarding how they currently regulate cable companies and what, if any, role they should play in enforcing a rebate policy.

Expect to see commenters using more page space for pointing fingers than answering the questions asked by the FCC. The comment and reply comment deadlines for the NPRM will be 30 days and 60 days, respectively, after the NPRM’s publication in the Federal Register.