The 11th U.S. Circuit Court of Appeals asked Gray Television and the FCC Wednesday to prepare supplemental briefs on the effects of the U.S. Supreme Court decision overruling Chevron deference (see 2406280043) on Gray’s pending appeal of a $518,000 forfeiture order. Oral argument in the 11th Circuit case was held in May (see 2405150055). The case concerns the FCC’s ruling that Gray violated an FCC rule -- often called Note 11 -- barring stations from using affiliation deals to skirt ownership limits. Gray has argued that before the FCC enforcement action, the rule was used only to bar swaps of station affiliation, while Gray’s 2020 deal involved the outright purchase of a station’s affiliation. The 11th Circuit order directs Gray and the FCC to file supplemental briefs “addressing whether and to what extent” the Supreme Court's Loper Bright Enterprises v. Raimondo ruling “impacts the analysis on the appropriate deference to afford the FCC’s interpretation of Note 11 in this case.” Broadcast attorneys told us the request for supplemental briefs is likely a positive sign for Gray -- at oral argument a three-judge panel appeared split on the FCC’s interpretation of Note 11. Gray and the FCC didn’t comment. The order gives Gray 14 days to file a supplement. Once that is filed, the FCC has 14 days for a response, and after that filing, Gray has an additional seven days for a final supplemental filing.

The Federal Emergency Management Agency endorsed NAB's proposal for a software-based replacement for emergency alert system equipment, NAB and several broadcasters said in an ex parte meeting last week with Public Safety Bureau staff, according to a filing in docket 15-94. The filing said the replacement would make it easier to improve EAS systems with increased accessibility or multiple languages. NAB proposed the software replacement for physical EAS boxes in December 2022 (see 2306020064). The proposal would be voluntary and able to operate if internet or cloud connectivity is interrupted, the filing said. NAB and the broadcasters -- including iHeartMedia, New York Public Radio and Cox media representatives -- also told the agency they agreed with FEMA objections to an agency proposal to facilitate multilingual EAS alerts with prerecorded templates (see 2404100083). “The costs of the FCC’s approach will outweigh any minor, speculative benefits,” the filing said.

Radio Communications Corporation’s appeal of the FCC’s implementation of the 2023 Low Power Protection Act should be rejected because “Congress meant what it said” when it authored the statute, the FCC told the U.S. Court of Appeals for the D.C. Circuit in a final brief Friday. The text of the LPPA is “unambiguous,” the agency argued. The FCC “correctly interpreted the statutory requirement that an eligible station ‘operate in a Designated Market Area with not more than 95,000 television households’ to mean that an eligible station must be located within a Designated Market Area that has no more than 95,000 television households,” the brief said. That “straightforward conclusion” means RCC is ineligible for a Class A license and resolves the case, the FCC said. The LPPA “does not provide unbounded protection for low power stations. Nor can any unexpressed Congressional purpose override the statute’s plain textual commands.” In addition, the FCC said its use of Nielsen DMAs isn't unconstitutional. “Agencies are free to rely on private entities to provide factual information,” the FCC said. “Doing so here at Congress’s direction violated no constitutional principle.” The court doesn’t need to rule on RCC’s objections to LPPA requirements for local programming or on claims that Class A stations are entitled to mandatory cable carriage because RCC isn’t eligible to be a Class A licensee, the brief said. “Largely ignoring the statute’s plain text,” RCC “fundamentally misreads the Low Power Protection Act,” the brief added.

The FCC’s reinstatement of the radio non-duplication rule for FM stations takes effect Aug. 2, said a Federal Register notice for Wednesday. The rule will prevent commonly owned, same-market FM radio stations from duplicating content beyond a 25% threshold. In 2020, the previous FCC dropped the rule for FM and AM stations, but the current commission reinstated it in response to a petition from REC Networks, the musicFIRST Coalition and the Future of Music Coalition.

The FCC should stay the collection of broadcast workforce diversity data using Form 395-B until legal challenges against the FCC’s equal employment opportunity order are resolved, a joint request for stay posted Friday in docket 98-204 said. The National Religious Broadcasters, the American Family Association, and the Texas Association of Broadcasters made the request. The three groups have challenged the EEO order in court (see 2405130041), arguing that it violates the First Amendment by compelling controversial speech and the Fifth Amendment by “unlawfully pressuring broadcasters to engage in race- and sex-conscious employment practices.” The associations “will incur unrecoverable costs” by “spending time and resources to categorize their employees by race and sex,” and having to “endure and respond to the trolling and harassment, online and elsewhere, the publication of the data will bring,” the joint filing said. “By contrast, no party would be substantially harmed by a stay,” the groups said. “The FCC has not collected or published Form 395-B data for over two decades,” making it “implausible third parties would be substantially harmed by maintaining the status quo,” the joint filing said.

An Arab, Alabama, radio station and its owner are liable for three claims of willful copyright infringement, based on their unauthorized public performance of musical compositions from the BMI repertoire, BMI and four music publishers alleged in their complaint Thursday (docket 1:24-cv-00847) in U.S. District Court for Northern Alabama. All the claims for copyright infringement joined in the lawsuit “are governed by the same legal rules and involve similar facts,” the complaint against Fun Media, operator of WAFN-FM, and its owner, Michael St. John, said. BMI has reached out to the defendants more than 80 times since March 2021 to educate them about their obligations under the Copyright Act and “the necessity of purchasing a license for the public performance of musical compositions” in the BMI repertoire, the complaint said. Included in the correspondence were cease and desist letters, providing WAFN-FM and St. John with formal notice that they must “immediately cease” all use of BMI-licensed music, it said.

The U.S. Court of Appeals for the D. C. Circuit should overturn the FCC’s implementation of the 2023 Low Power Protection Act because it favors full-power stations, unlawfully uses data from Nielsen, and limits the number of Class A stations, according to a final brief and final reply brief from Radio Communication Corp. Tuesday. The FCC’s Class A license allocation system is “designed to protect NAB’s Clients” -- the brief defines NAB’s Clients as full-power stations -- and turns “the LPPA’s LPTV protection purpose on its head.” The FCC has said that its LPPA order followed the plain direction of the LPPA's text: The agency “correctly interpreted the statutory requirement that an eligible station ‘operate in a Designated Market Area with not more than 95,000 television households’ to mean that an eligible station must be located within a Designated Market Area that has no more than 95,000 television households,” the FCC has said. RCC has argued that the term “operates” refers to a station’s community of license rather than its Nielsen-designated market area. “There is no way for the general public, or this Court, to know how Nielsen created and maintains DMAs or even ascertain what the boundaries of Class A licensing markets are without first subscribing to Nielsen’s service in exchange for payment,” RCC said. “We do not know, and cannot verify, whether parties paid money to Nielsen to have the DMAs drawn after Congress began working on the LPPA legislation, nor whether Nielsen has altered DMAs since the LPPA was adopted, or might alter the DMAs in the future based upon its own decision-making or because a broadcaster pays for the change.” The case isn't scheduled for oral argument. Instead, a D.C. Circuit merits panel will decide it on briefs alone.

The FCC should grant the renewal of Fox station WTXF Philadelphia’s license “without further delay,” Fox said in a letter posted Tuesday (docket 23-292) (see 2406130060). The renewal process stalled in June 2023, when the Media and Democracy Project filed a petition against it over Fox’s dissemination of misinformation about the 2020 election. “With each month that passes and each filing entered into this docket, it becomes even more evident that the record in this proceeding is complete,” Fox said. “MAD has not introduced any additional points that could salvage its petition” in the 10 months since the FCC opened a docket on the matter, Fox argued. The FCC “should weigh the evidence in the record, apply the law fairly, and grant Fox 29 Philadelphia’s license renewal application,” the petitioner added.

The FCC Media Bureau is seeking comment on channel substitutions for King Broadcasting Company and Gray Television Licensee, NPRMs in Monday's Federal Register said. Comments are due July 24 in docket No. 24–152 for King’s request to switch the channel for KTVB Boise from 7 to 23, and in docket No. 24–153 for WRDW–TV Augusta, Georgia, to change from 27 to 12, the NPRMs said.

The National Religious Broadcasters (NRB) added 15 members, it said in a release Thursday. “Each new member brings unique experience and expertise that benefits our coalition of Christian communicators,” NRB president and CEO Troy Miller said. New members include American Evangelical Bible College and Seminary, Lighthouse Arab World and Love & Truth Network.