Longtime First Amendment lawyer Floyd Abrams is supporting the campaign against a license renewal for Fox station WTXF Philadelphia (see 2310100068). Abrams is known for defending newspapers and broadcasters against the government in high-profile cases such as the New York Times' litigation over the Pentagon Papers. “Broadcasters do have considerable First Amendment rights -- a good deal of my career has been devoted to seeking to establish just that -- but ... repeated distortion of information that is broadcast about a forthcoming election is precisely what a broadcaster may not do and that the Commission may consider in determining whether license renewal is appropriate,” said Abrams in informal comments filed with the FCC. Former FCC Chairman Alfred Sikes and former Weekly Standard editor William Kristol are also part of the campaign, which the Media and Democracy Project and former Fox and Disney executive Preston Padden are spearheading. Senate Commerce Committee Ranking Member Ted Cruz, R-Texas, denounced the effort, and the FCC has received letters supporting WTXF from public officials and organizations, including former Undersecretary of the Army Patrick Murphy, the African-American Chamber of Commerce for Pennsylvania, New Jersey and Delaware, and the Democratic chairwoman of the city’s delegation to the state House. Padden Thursday also filed comments calling on the agency to include in its record a recent New York State Supreme Court ruling denying Fox’s motion to dismiss a defamation claim from voting machine company Smartmatic. “The Media and Democracy Project petition to deny the license renewal of WTXF-TV is frivolous, completely without merit and asks the FCC to upend the First Amendment and long-standing FCC precedent,” said Fox. “WTXF-TV / FOX 29 News Philadelphia is one of the finest local news stations in the country, broadcasting over 60 hours of local news and locally produced programming every week, and has tremendous broad political and community support.”

Connecticut low-power TV broadcaster Radio Communications Corp. (RCC) seeks “expedited consideration” of its Jan. 10 petition for review to overturn the FCC’s Dec. 12 order implementing the 2023 Low Power Protection Act (LPPA), said RCC's emergency motion Tuesday (docket 24-1004) at the U.S. Court of Appeals for the D.C. Circuit. The LPPA allows certain LPTV stations to upgrade to Class A status (see 2401180075), RCC also requests a stay of the FCC order and expedited case processing should a stay be entered, said the motion. The FCC opposes the motion, and DOJ takes no position, RCC said. The company argues that the FCC order unconstitutionally restricts program content for Class A eligibility purposes, and unlawfully precludes Class A licensees from asserting cable TV must-carry rights, said the motion. The order also fails to follow the LPPA’s “direction” to protect LPTV stations, it said. The stay, expedited review, and summary reversal are warranted, it said. Expeditious consideration is required because the FCC “announced the imminent commencement of the one-year LPTV license upgrade filing window under the LPPA to change station class from LPTV to Class A “with the same license terms as full power TV stations,” it said. But the FCC order “precludes RCC from filing an LPPA Class A upgrade application,” said the motion. Absent expedited consideration of its petition, “it appears unlikely that RCC would be able to fully litigate this case, come into compliance with full power TV rules, and then timely file a Class A license upgrade application within the LPPA’s one-year window,” it said. RCC’s loss of its Class A license upgrade “filing right” causes irreparable injury because “the only opportunity to file for the economic benefits afforded during the LPPA’s one-year Class A license upgrade period will be lost forever,” the motion said. “Loss of license by displacement” will also cause irreparable injury because RCC would lose revenue and viewers, “and viewer relationships would be damaged,” it said: “Lost viewers would necessarily move on to other program content providers and that lost good will could never be recaptured even if RCC were somehow able to locate new spectrum.”

The FCC Enforcement Bureau issued 44 notices in fiscal year 2023 to owners or managers of properties where apparent pirate radio broadcasts operate, warning them of consequences, the agency said Wednesday. In its annual report to Congress required under the 2020 Preventing Illegal Radio Abuse Through Enforcement Act, the agency said 25 notices related to pirate sweeps. It said the Enforcement Bureau will continue monitoring the properties, saying pirate radio stations often stop operations temporarily and then resume. The bureau said it hired four full-time staffers in FY 2023 focusing on pirate radio and is hiring more. In addition, it ordered six mobile direction-finding investigative vehicles to support the additional staff. Those vehicles will be outfitted this year or next with specialized hardware and software for detecting pirate radio operators. The commission's online pirate radio database went live this week (see 2301240056).

The FCC identified tentative selectees in six groups of mutually exclusive applications for noncommercial educational FM construction permits from the November 2021 NCE window, according to a unanimously approved order Wednesday. Selectees include New Hope Baptist Church in Gallup, New Mexico. The order also rescinded a previous grant of New Media Humanity Association's application at Weeki Wachee, Florida, with Call Communications Group's reconsideration petition granted and its application reinstated. Also rescinded was a previous grant for Sound in Spirit Broadcasting's application in Burlington, Iowa, with Heritage Baptist Church tentatively selected instead. In addition, the commission rescinded a previous grant for Teleamerica Communications West Palm Beach's application in Key West, Florida, tentatively selecting instead Newland Broadcasters. Petitions to deny the applications of the selectees are due 30 days after the order.

The FCC Media Bureau initiated a proceeding that will revoke the licenses of two Daniel Stratemeyer-owned radio stations due to nearly $25,000 in unpaid regulatory and administrative fees, according to an order to pay or show cause in Friday’s Daily Digest. The delinquent fees are for WRIK(AM) Brookport, Illinois, and KZMA(FM) Naylor, Missouri, from fiscal years 2010, 2012 and 2013, the filing said. The FCC sent the bills to the Treasury Department for collection, and Stratemeyer has 60 days to show the fees are paid, or his stations could lose their licenses.

Connecticut low-power TV broadcaster Radio Communications wants the U.S. Court of Appeals for the D.C. Circuit to overturn an FCC order creating a window for certain LPTV stations to upgrade to Class A status. “Review is required” because the FCC’s implementation of the Low-Power Protection Act “fails to protect, in a very substantial manner," LPTV stations and licenses, and the newly created Class A stations, as Congress required, said a petition for review filed with the D.C. Circuit Jan. 10 and posted Thursday (docket 24-1004). The order, parts of which will take effect Feb. 9, would open a one-year window only for LPTV stations that broadcast a minimum of 18 hours a day, carry three hours per week of local programming and are located in markets of 95,000 households or fewer -- and that already met those requirements 90 days prior to the LPPA's Jan. 5, 2023, approval by Congress. LPTV groups were critical of the LPPA and the subsequent FCC order for allowing only a few stations to convert to Class A (see 2312080043). The petition asks the court to review the order on an expedited basis, stay it, find it unlawful and rule that RCC isn’t precluded from applying for the window, that program content can’t be used to deny Class A licenses and that Class A stations can assert must-carry in their markets. Radio Communications CEO Robert Knapp told us the company plans to ask the court for summary judgment against the FCC.

The FCC approved an NPRM on a 3-2 party line vote that prioritizes evaluation of applications from broadcasters that originate local programming. “Here, we propose to sweeten the incentives for locally-originated news and content,” said Chairwoman Jessica Rosenworcel in a statement released with the item. “Without it, stations can just pump in programming from the largest metropolitan areas and miss opportunities for content creation in their own backyard.” The NPRM proposes to use station quarterly programming lists to evaluate whether a station originates local programming, and prioritizing review of applications from those stations. The priority review would apply only to applications that aren’t going through a “simple” review process, such as those with holds or petitions to deny, the NPRM said. The item positions the proposal as a correction of the 2017 removal of the main studio rule. In it, the agency questions “whether the Main Studio Elimination Order’s predictive judgment -- that the Commission’s action there would foster creation of more and better local content -- has actually come to pass." The order’s criticism of the elimination of the main studio rule is the basis for Commissioner Brendan Carr’s dissent, he said: “There is no basis for asserting that conclusion here, but more fundamentally there is no reason to get into that rule at all in this Notice.” Carr said the majority declined to remove the language. “How can the FCC ground its localism proposal in the FCC’s record-less conclusion that the 2017 main studio repeal was an error while simultaneously not proposing to reinstate that rule?” Carr said, adding that he hoped the disagreement was “an isolated hiccup in our otherwise good working relationship.” Commissioner Nathan Simington was similarly critical of the NPRM: “This is a collateral attack on the Commission’s elimination of the Main Studio Rule, and the item all but says so.”

The FCC Media Bureau proposed a $16,500 forfeiture for Shelby Broadcast for operating a translator station at variance from its FCC authorization and for not disclosing the unauthorized operation, according to an order and notice of apparent liability in Wednesday's Daily Digest. The proposed penalty concerns translator W252BE Tarrant, Alabama, which Shelby allegedly operated at a different height and power level than authorized since a cable was severed in 2015, the order said. Shelby didn’t renew a grant of special temporary authority for the translator, and the matter was brought to the FCC’s attention by repeated filings and interference complaints from broadcaster Marble City Media. Marble City also petitioned against the renewal of Shelby’s license, but the order authorizes the station’s renewal. “We find no evidence of violations that, when considered together, evidence a pattern of abuse,” the filing said.

The FCC unanimously ordered Cumulus to pay a $26,000 penalty for a late annual equal employment opportunity report, over the objections of the broadcaster and the NAB (see 2203300067), said a forfeiture order Tuesday. “Cumulus’s characterization of the requirement to upload an Annual Report to the station online public inspection file and website as a mere administrative task undermines the Commission’s goal of ensuring meaningful public input via public access to the Annual Report,” said the order. The third-largest U.S. radio group, Cumulus reported a Q3 net revenue of more than $200 million. Cumulus had argued that although the report was filed late, it was completed on time and the FCC should have merely admonished the radio broadcaster. The agency rejected that argument, and said failing to upload a completed annual report analyzing EEO activities on time is the same as failing to conduct the analysis altogether. Cumulus also said the FCC shouldn’t adjust the penalty upward due to Cumulus’s multiple past EEO violations, because those occurred before the company’s bankruptcy reorganization. The FCC rejected those arguments, noting that many of the same executives still lead Cumulus. The company hasn’t provided evidence that bankruptcy proceedings are “intended to absolve licensees of the consequences of pre-bankruptcy violations of the FCC’s rules,” the order said. Unusually for an enforcement proceeding, NAB informally filed comments supporting Cumulus, which the FCC dismissed. “NAB offers no legal or procedural basis for submitting its nonparty filing,” the order said. “More broadly, NAB urges the Commission to apply a more balanced and reasonable approach to proposed forfeitures going forward, claims that are more appropriately raised in a petition for declaratory ruling.” The FCC reduced Cumulus’s forfeiture from the originally proposed $32,000, conceding that in the past the agency hasn’t treated late filed EEO reports the same as failing to prepare one. “Although nothing in our case law suggests that such a failure does not also amount to a violation of our self-assessment rule, Cumulus may not have had the requisite notice” of that policy, the order said. “Going forward, Cumulus and all other licensees are on notice” that the FCC will consider the timeliness of posting EEO reports when it considers if stations are meeting their EEO obligations, the order said. The FCC is considering a draft EEO order that would require additional workforce diversity reporting from broadcasters (see 2312220061).

The FCC Enforcement Bureau warned property owners in Newark, New Jersey, and Brooklyn, New York, of possible forfeitures for allegedly hosting pirate radio stations, said letters Tuesday. Property owners Phalaine Vital in Newark and Royalty Realty in Brooklyn could each face a forfeiture of up to $2.3 million, the letters said. The letters demand proof that the unauthorized transmissions EB field agents found have ceased and that the unauthorized broadcasters be identified. The property owners have 10 business days to respond, the letters said.