FCC Proceedings and State Association Support
The Massachusetts Broadcasters Association, under the guidance of federal legal counsel Scott Flick with the Washington, DC law firm of Pillsbury Winthrop Shaw Pittman, LLP, has provided support (in the form of Joint Comments and/or Joint Reply Comments alongside state broadcast associations nationwide) in the following FCC filings:
These examples of advocacy before the FCC illustrate how vigorous the participating State Broadcasters Associations have been in protecting and advancing the best interests of the free, local, over-the-air, radio and television industries before the FCC.
2021
In the Matter of Resilient Networks, Amendments to Part 4 of the Commission’s Rules Concerning Disruptions to Communications, and New Part 4 of the Commission’s Rules Concerning Disruptions to Communications, Notice of Proposed Rulemaking, PS Docket No. 21-346, PS Docket No. 15-80, and ET Docket No. 04-35, FCC 21-99. The Massachusetts Broadcasters Association, in combination with the state broadcasters associations of 49 states, the District of Columbia, and Puerto Rico, filed Joint Comments in this proceeding on behalf of broadcasters urging a flexible approach to promoting broadcaster resiliency during emergencies. Specifically, the Joint Comments urged the FCC to reject any effort to shift from voluntary to mandatory filing requirements in the Disaster Information Reporting System (DIRS). The Joint Comments argued that making such filings mandatory would merely divert precious station resources during a disaster from maintaining technical operations and gathering and disseminating news and emergency information to the public with little benefit to the FCC. In that regard, the filing noted that local broadcasters have a long history of cooperating in emergencies to share resources, facilities and equipment to ensure all stations can stay on the air delivering important information, and that as a result, mandatory DIRS filings would provide little actionable information to the FCC. Cluttering DIRS with mandatory station filings indicating all is fine would merely serve to distract from the voluntary filings made by stations that are actively seeking FCC assistance in obtaining fuel for generators or access for station employees to their stations and transmitter sites in a disaster area. The Joint Comments therefore urged the FCC to instead focus its efforts on promoting broadcast station resilience in emergencies by working with state, local, and other federal agencies prior to a disaster to ensure procedures and resources are in place so that a DIRS filing requesting fuel or help with employee access to a disaster area will lead to rapid governmental assistance to keep stations operating.
In the Matter of Assessment and Collection of Regulatory Fees for Fiscal Year 2021, MD Docket No. 21-190. The Massachusetts Broadcasters Association, in combination with the state broadcasters associations of all 50 states, the District of Columbia, and Puerto Rico, filed extensive Joint Reply Comments urging the FCC to expand both the types and numbers of parties charged FCC regulatory fees to include all beneficiaries of FCC services, including large technology companies and equipment manufacturers that benefit from selling devices which use unlicensed spectrum and/or are allowed access to the U.S. market only because they have been FCC-certified. Since the inception of FCC regulatory fees as the manner in which the FCC funds its operations, broadcasters and others holding FCC licenses have paid a disproportionate share of the FCC’s expenses. Particularly in light of changes to the regulatory fee statute made by the RAY BAUM’s Act of 2018 and a recent court decision interpreting it, it is clear that the law requires all “beneficiaries” of FCC activities, not just those holding FCC licenses, to pay annual regulatory fees covering the costs of those FCC activities. The State Associations urged the FCC to modify the process by which it sets and collects regulatory fees to create a fairer system which recognizes the many benefits received by device manufacturers and marketers, and which therefore charges them appropriate annual regulatory fees. Expanding the base of regulatory fee payors in this manner will reduce broadcasters’ share of FCC expenses that must be paid for through regulatory fees, hopefully reducing each station’s future annual regulatory fees significantly.
In the Matter of Review of the Commission’s Broadcast and Cable Equal Employment Opportunity Rules and Policies, MB Docket No. 98-204. The MBA, in combination with the state broadcasters associations of all 50 states, the District of Columbia, and Puerto Rico, filed extensive Joint Reply Comments urging the FCC to reject the proposed reinstatement of FCC Form 395-B, which requires broadcast stations to report annually to the FCC their employee workforce categorized by race, ethnicity, gender and job category. The Joint Reply Comments noted that the FCC ceased use of the Form 395-B twenty years ago in response to two separate decisions by the U.S. Court of Appeals that found prior iterations of the FCC’s associated EEO rules to be unconstitutional, in part because the employee data collected through the Form 395-B was used by the FCC to effectively enforce racial and gender quotas on stations whose workforces did not adequately match the characteristics of the local labor force. The Associations noted that the FCC lacks an adequate government interest in collecting such data, and particularly given the history of the form and those prior court decisions, reinstating the Form 395-B would place impermissible pressure on broadcasters to make race- and gender-based hiring decisions in order to achieve FCC-favored outcomes. The Joint Reply Comments argued that the FCC lacks any statutory authority for such data collection, and that alternate sources of such information, such as the EEOC and RTDNA, can provide similar information without creating the constitutional and statutory issues raised by the Form 395-B. Finally, should the FCC nonetheless proceed with reinstatement of the Form 395-B, the Associations urged the FCC to maintain the confidentiality of the collected information, and to use it only in aggregate form for industry trend purposes rather than station-specific actions.
In the Matter of Assessment and Collection of Regulatory Fees for Fiscal Year 2021, MD Docket No. 21-190. Your Association, in combination with the state broadcasters associations of 49 states, the District of Columbia, and Puerto Rico, filed extensive reply comments in this proceeding opposing the FCC’s proposed increase in broadcast regulatory fees for 2021. The Joint Reply Comments argued that the FCC’s methodology for setting broadcast regulatory fees does not comply with the RAY BAUM’s Act of 2018, citing the recent decision of the U.S. Court of Appeals for the D.C. Circuit in Telesat Canada v. Federal Communications Commission. That ruling held that the “touchstone” for charging a party FCC regulatory fees is the benefit received by the party from the FCC’s operations, and that Congress empowered (and required) the FCC to collect such fees from all parties receiving such benefits, not just those that hold FCC licenses. The Joint Reply Comments argued that the FCC therefore cannot justify the substantial increase in regulatory fees proposed for broadcasters in 2021, and must revamp the process by which it establishes who pays regulatory fees and how much, spreading the burden of funding the operations of the FCC across all parties benefiting from its operations, including technology and other companies that benefit from the FCC’s efforts to make unlicensed spectrum available while only increasing interference to broadcasters. Finally, the Joint Reply Comments argued that the Commission should not adopt a less precise “tiered” approach for setting television station regulatory fees, and that since Congress exempted noncommercial broadcasters from the payment of regulatory fees entirely, the costs of such regulation should be treated as FCC “overhead,” the cost of which is spread across all regulatory fee payors, rather than being placed on commercial broadcasters in the form of higher broadcast regulatory fees.
