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 U.S. Court of Appeals for the Fifth Circuit rejected the FCC’s 2024 attempt to reinstate Form 395-B which, had it become effective, would have required broadcasters to annually classify all of their employees by race, gender, and employment position and upload that information to their FCC-hosted online public inspection files. The Court found that the collection of this data was beyond the statutory authority of the FCC. The Court said that the general public interest standard set forth in the Communications Act, upon which the FCC relied for its authority to collect the data, merely tells the FCC how to regulate; it does not tell the FCC what it can regulate. The Court found that as this employee data was not needed to regulate in any of the areas that the FCC was authorized to regulate by the Act, its adoption was not a proper exercise of the FCC’s statutory authority. On our Broadcast Law Blog, we delved deeper into the Fifth Circuit’s decision and how it may limit the FCC in other areas where it attempts to justify regulation solely by the Communication Act’s public interest standard.
- In a post on X about the Fifth Circuit’s decision, FCC Chairman Carr cited to his dissent to the FCC’s February 2024 decision to reinstate the Form where he said that the reinstatement “was an unlawful effort to pressure businesses into discriminating based on race & gender.” FCC Commissioner Gomez also released a statement stating that although she was disappointed in the Court’s decision, she thought that the ruling established that the FCC lacked authority to police private companies’ DEI practices.
- FCC Commissioner Starks announced at the FCC’s regular monthly Open Meeting that it would be his last monthly meeting as a commissioner. In March, Starks announced his intent to resign his seat “this spring.” Starks’ departure will leave the FCC with a 2-1 Republican majority, which may soon increase to 3-1. Olivia Trusty has been nominated for the third Republican seat and has been approved by the relevant Senate committee, and her confirmation may soon come from the full Senate. President Trump has not nominated a replacement to fill Starks’ seat. FCC Commissioners Gomez and Simington released statements thanking Starks for his service and professionalism. See our Broadcast Law Blog article for our thoughts on what actions we can expect from a Republican-controlled FCC.
- At its Open Meeting, the FCC adopted a Notice of Proposed Rulemaking proposing to require certain FCC-regulated entities and auction applicants, including all broadcast licensees and permittees, to file a certification identifying if they are owned or controlled by a foreign adversary. The final version of the NPRM has not yet been released, but the FCC did issue a news release announcing its action. The draft of the NPRM released in anticipation of this action proposed to define foreign adversaries as the Peoples’ Republic of China, Cuba, Iran, North Korea, Russia, and Venezuela. Entities certifying yes would then need to disclose all ownership interests held by a foreign adversary (including interests held by their citizens or companies organized under their laws) of 5% or greater and describe the nature of the foreign adversary’s control. They would also need to report changes in such interests within 30 days. The FCC proposes to revoke FCC authorizations for entities filing false or incomplete certifications or for failing to file certifications when required. For broadcasters, the FCC seeks comment on whether to use the broadcast ownership rules’ attribution criteria for determining a foreign adversary’s attribution to a broadcaster, and whether to make any changes to the existing foreign sponsorship identification rules to require disclosures for programming provided by foreign adversaries. Watch for the release of the final version of the NPRM for any changes from the draft, as well as for the comment deadlines.
- The FCC’s Media Bureau announced that May 23 was the effective date of the FCC’s modified rules for the use of asymmetric sidebands for digital operations by FM stations. As we noted here, the FCC released a Report and Order in September 2024 permitting digital FM radio stations to operate at different power levels on their upper and lower digital sidebands. In that Order, the FCC said that to initiate operations with asymmetric sidebands, a notification of digital FM operations would have to be made using the Form 335-FM. That form that was just recently approved, leading to this effective date.
- The FCC released a Public Notice reminding broadcasters and others that the increases in its application fee became effective May 23, and announcing that Application Fee Filing Guides will be available on the FCC’s website here Though, thus far, no new fee guides have been posted). The fee increases were approved by the FCC in January, increasing broadcast application fees by an average of more than 17% to reflect changes in the Consumer Price Index. When they were adopted, we provided more details on our Blog about these increases.
- The Presidential Commission to Make America Healthy Again, created by an Executive Order of the President, released its assessment identifying what it saw as the key drivers behind “the childhood disease crisis.” Media companies should be aware that the report identified distorted marketing to children of ultra-processed foods (pp. 29-30), the overuse of technology and excess “screen time” (Section Three), and prescription drug advertising (p. 70) among the causes of unhealthy outcomes. Be alert for regulatory actions which may follow the release of this report.
- Committees in the House and Senate held hearings regarding regulation of artificial intelligence use:
- The Senate Judiciary Committee held a hearing titled: “The Good, the Bad, and the Ugly: AI-Generated Deepfakes in 2025.” The hearing featured testimony from Martina McBride (country music singer), Mitch Glazier (Recording Industry Association of America), Christen Price (National Center on Sexual Exploitation), Justin Brookman (Consumer Reports), and Suzana Carlos (YouTube). The hearing discussed possible ways to minimize the harms of AI-generated deepfakes, including by passing the No Fakes Act and the Take It Down Act. The hearing also discussed the role of service providers in removing deepfakes, and concerns for artists about AI-generated content. A video of the hearing and copies of witness testimony can be found here.
- The House Commerce, Manufacturing, and Trade Subcommittee held a hearing titled: “AI Regulation and the Future of U.S. Leadership.” The hearing featured testimony from Sean Heather (U.S. Chamber of Commerce), Adam Thierer (R Street Institute), Marc Bhargava (General Catalyst), and Amba Kak (AI Now Institute). Key lines of questioning included the status of state AI regulations and the U.S.’s AI regulatory approach. The hearing memo is available here. A video of the hearing can be found here.
- The Media Bureau entered into a Consent Decree with the licensee of three Montana TV translator stations for failing to timely file their license renewal applications and operating without FCC authorization after their licenses had expired. The Consent Decree requires that the licensee enter into a compliance plan to ensure that future FCC violations will not occur. Noting that the translators provided essential public safety and weather information to the public by rebroadcasting three network-affiliated TV stations, the Bureau declined to impose a monetary penalty as part of the Consent Decree because doing so could negatively impact the licensee’s ability to operate the locally tax-funded translators.
- The Media Bureau granted several construction permit applications for new NCE FM and LPFM stations on time-sharing bases because applicants were tied in the FCC’s points system analysis used for resolving conflicts between applications for new noncommercial stations:
- The Bureau granted two Wisconsin NCE FM station construction permit applications on a time-sharing basis over the objections of one applicant who claimed that it had a superior technical proposal (where its proposed service area and population served are 10% greater than those of the other applicant). The Bureau rejected that claim because its calculations demonstrated that the objecting applicant would only serve 8.4% more area and only 5.1% more population than the other applicant. Since the Bureau found that the applicants qualified for the same number of points under the points system analysis, the Bureau ordered the applicants to operate under a time-sharing arrangement where each operates for 12 hours each day on the same channel.
- The Bureau also granted three Puerto Rico LPFM construction permit applications on a time-sharing basis out of a group of six mutually exclusive applications. Under the time-sharing arrangement, each applicant was assigned an 8 hour period each day in which to operate, the FCC basing the selection of hours on how long each applicant had an established community presence in their proposed LPFM station’s community of license (the applicant existed as a nonprofit educational organization either physically headquartered or 75% of its board members resided within 10 miles of its proposed station’s transmitter site). The Bureau assigned the longest established local applicant the 10:00 a.m. to 5:59 p.m. timeslot (its first choice), the second longest applicant the 2:00 a.m. to 9:59 p.m. timeslot (its second choice), and the third longest applicant the 6:00 p.m. to 1:59 a.m. timeslot (the remaining timeslot).