[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 8154 Introduced in House (IH)]
<DOC>
116th CONGRESS
2d Session
H. R. 8154
To direct the Federal Communications Commission to establish a
broadcast incubator program to support the entry of new and diverse
voices in the broadcasting industry by providing for an established
broadcaster and an emerging broadcaster to enter into a qualifying
incubation relationship.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
September 1, 2020
Mr. Walden introduced the following bill; which was referred to the
Committee on Energy and Commerce
_______________________________________________________________________
A BILL
To direct the Federal Communications Commission to establish a
broadcast incubator program to support the entry of new and diverse
voices in the broadcasting industry by providing for an established
broadcaster and an emerging broadcaster to enter into a qualifying
incubation relationship.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Broadcast Diversity in Leadership
Act''.
SEC. 2. BROADCAST INCUBATOR PROGRAM.
(a) Findings.--Congress finds the following:
(1) Our Nation continues to respond to the ongoing COVID-19
pandemic, and all Americans must have access to accurate,
reliable information.
(2) Americans are fighting racial injustice, and promoting
local and diverse media will play an important role in limiting
misinformation.
(3) Congress should commit to promoting media diversity and
pledging to work with media entities and diverse stakeholders
to develop common-ground solutions to eliminate barriers to
media diversity.
(4) The principle that an informed and engaged electorate
is critical to a vibrant democracy is deeply rooted in our laws
of free speech and underpins the virtues on which we
established our Constitution: ``in Order to form a more perfect
Union, establish Justice, insure domestic Tranquility, provide
for the common defence, promote the general Welfare, and secure
the Blessings of Liberty to ourselves and our Posterity''.
(5) Having independent, diverse, and local media that
provide exposure to a broad range of viewpoints and the ability
to contribute to the political debate is central to sustaining
informed engagement.
(6) It is in the public interest to encourage source,
content, and audience diversity on our Nation's shared media
platforms.
(7) The survival of small, independent, and diverse media
outlets that serve diverse audiences and local media markets is
essential to preserving local culture and building
understanding on important community issues that impact the
daily lives of residents.
(8) Research by the American Society of News Editors, the
Radio Television Digital News Association, the Pew Research
Center, and others has documented the continued challenges of
increasing diversity among all types of media entities.
(9) With increasing media experience and sophistication, it
is even more important to have minority participation in local
media to ensure a diverse range of information sources are
available and different ideas and viewpoints are expressed to
strengthen social cohesion among different communities.
(10) The constriction in small, independent, and diverse
media outlets and limited participation of diverse populations
in media ownership and decisionmaking are combining to
negatively impact our goal of increasing local civic engagement
and civic knowledge through increased voter participation,
membership in civic groups, and knowledge of local political
and civil information.
(11) The Advisory Committee on Diversity and Digital
Empowerment of the Commission, and predecessor Federal advisory
committees, have recommended for decades that the Commission
adopt an incubator program providing structural rule changes to
facilitate new and diverse entrants into the marketplace.
(12) The Broadcast Incubator Program established under this
section is consistent with the national policy described in
section 257(b) of the Communications Act of 1934 (47 U.S.C.
257(b)): ``to promote the policies and purposes of this Act
favoring diversity of media voices, vigorous economic
competition, technological advancement, and promotion of the
public interest, convenience, and necessity''.
(b) Establishment.--Not later than 270 days after the date of the
enactment of this Act, the Commission shall promulgate regulations
establishing a program, to be known as the ``Broadcast Incubator
Program'', to support the entry of new and diverse voices in the
broadcasting industry by providing for an established broadcaster and
an emerging broadcaster to enter into a qualifying incubation
relationship with respect to one or more incubated stations of the
emerging broadcaster.
(c) Qualifying Incubation Relationship.--
(1) Requirements.--The Commission shall establish in the
regulations promulgated under subsection (b) requirements for a
qualifying incubation relationship under the Program that
include the following:
(A) Eligibility criteria that an established
broadcaster and an emerging broadcaster shall meet in
order to enter into such relationship, including--
(i) a limit, expressed in terms of a number
of broadcast stations, on how many broadcast
stations of which an emerging broadcaster may
have effective control on the day before the
date on which the established broadcaster and
the emerging broadcaster submit the application
for the Program under subsection (d);
(ii) a cap, expressed in terms of a dollar
amount, on the gross revenue that the emerging
broadcaster may earn during the calendar year
ending most recently before the date on which
the established broadcaster and the emerging
broadcaster submit the application for the
Program under subsection (d); and
(iii) a requirement for the established
broadcaster to have effective control of--
(I) if any incubated station under
such relationship will be a radio
broadcast station, any class of AM or
FM radio broadcast station (except for
a low power radio station or a radio
translator station); and
(II) if any incubated station under
such relationship will be a television
broadcast station, any class or
assignment of television broadcast
station (except for a low power
television station or a television
translator station).
(B) Criteria for the incubation activities that the
established broadcaster shall perform as part of such
relationship. Such activities shall include the
provision by the established broadcaster to the
emerging broadcaster of training, financing, or access
to resources.
(C) A requirement that the established broadcaster
and the emerging broadcaster establish mutually agreed-
upon goals for such relationship.
(D) A requirement that the established broadcaster
and the emerging broadcaster establish a mutually
agreed-upon limitation on the amount of equity (if any)
that the established broadcaster may hold in the
emerging broadcaster.
(E) A minimum duration of 2 years for such
relationship.
(F) An option, which may be exercised upon the
agreement of the established broadcaster and the
emerging broadcaster, for such relationship to continue
on an ongoing basis.
(G) A requirement that, upon successful completion
of such relationship in accordance with the application
approved by the Commission under subsection (d) and in
compliance with the other requirements for the Program
established by the Commission, the emerging broadcaster
shall have effective control of each incubated station
under such relationship.
(2) Determination of successful relationship.--The
Commission shall provide in the regulations promulgated under
subsection (b) for the determination of whether a qualifying
incubation relationship is being carried out successfully or
has been completed successfully to be made by the Commission on
a case-by-case basis based on information provided in the
application process and related forms and materials.
(d) Application Process.--
(1) Joint application.--The Commission shall require an
established broadcaster and an emerging broadcaster who propose
to enter into a qualifying incubation relationship under the
Program to submit to the Commission a joint application for
participation in the Program.
(2) Process, forms, and materials.--The Commission shall
develop an application process and related forms and materials
necessary to carry out the Program.
(3) Application review process.--
(A) Deadline.--
(i) In general.--Except as provided in
clause (ii) and subparagraph (B), the
Commission shall approve or deny an application
for participation in the Program not later than
90 days after the date of the submission of the
application.
(ii) Additional time needed by
commission.--If the Commission determines that,
because an excessive number of applications
have been filed at one time, the Commission
needs additional time for employees of the
Commission to process the applications, the
Commission may extend the deadline described in
clause (i) for not more than 45 days.
(B) Opportunity for applicant to cure deficiency.--
If the Commission determines that an application is
materially deficient, the Commission shall provide the
applicants a 15-day period to cure the defect before
denying the application. If such period would extend
beyond the deadline under subparagraph (A) for
approving or denying the application, such deadline
shall be extended through the end of such period.
(C) Effect of denial.--Denial of an application for
participation in the Program shall not preclude the
applicants from resubmitting the application or any
applicant from submitting a new application for
participation in the Program at a later date.
(4) Certifications.--The Commission shall require each
applicant submitting an application for participation in the
Program to certify to the Commission in the application that,
as of the date of the submission of the application--
(A) the applicant intends to participate, in good
faith, in the Program;
(B) in the case of an emerging broadcaster, the
applicant would be unable, without the qualifying
incubation relationship proposed in the application--
(i) in the case of any incubated station of
which the applicant has effective control as of
such date, to continue to successfully operate
such station; and
(ii) in the case of any incubated station
of which the applicant proposes to acquire
effective control after such date, to acquire
such effective control;
(C) the applicants have established the mutually
agreed-upon goals required by subsection (c)(1)(C); and
(D) the applicants have established the mutually
agreed-upon limitation required by subsection
(c)(1)(D).
(5) Limitation on reapplication by established broadcaster
after failed relationship.--If, in 3 or more instances, the
Commission has terminated the participation of an established
broadcaster in the Program under subsection (f) and determined
that such established broadcaster was primarily at fault in
causing the circumstances on which the termination was based,
such established broadcaster may not submit another application
for participation in the Program.
(e) Waiver of Local Ownership Rules.--
(1) In general.--If the Commission makes the determination
described in paragraph (2) with respect to an established
broadcaster and an emerging broadcaster, the Commission shall,
not earlier than 1 year after making such determination, grant
to the established broadcaster a waiver of paragraph (a) or (b)
of section 73.3555 of title 47, Code of Federal Regulations (or
any successor regulation) to the extent necessary to permit the
established broadcaster--
(A) to hold a cognizable interest in any incubated
station under the qualifying incubation relationship;
and
(B) to hold a cognizable interest in--
(i) if the established broadcaster had
effective control of an AM or FM radio
broadcast station (except for a low power radio
station or a radio translator station) on the
day before the date on which the established
broadcaster and the emerging broadcaster
submitted the application for the Program under
subsection (d), 1 radio broadcast station in
excess of the number of radio broadcast
stations in which the established broadcaster
is permitted to hold a cognizable interest
under section 73.3555(a) of such title in a
radio market that is--
(I) specified in paragraph (3)(A);
and
(II) selected by the established
broadcaster;
(ii) if the established broadcaster had
effective control of a television broadcast
station (except for a low power television
station or a television translator station) on
the day before the date on which the
established broadcaster and the emerging
broadcaster submitted the application for the
Program under subsection (d), 1 television
broadcast station in excess of the number of
television broadcast stations in which the
established broadcaster is permitted to hold a
cognizable interest under section 73.3555(b) of
such title in a DMA that is--
(I) specified in paragraph (3)(A);
and
(II) selected by the established
broadcaster; or
(iii) if the established broadcaster had
effective control of an AM or FM radio
broadcast station (except for a low power radio
station or a radio translator station) and a
television broadcast station (except for a low
power television station or a television
translator station) on the day before the date
on which the established broadcaster and the
emerging broadcaster submitted the application
for the Program under subsection (d), either
(at the option of the established
broadcaster)--
(I) 1 radio broadcast station in
excess of the number of radio broadcast
stations in which the established
broadcaster is permitted to hold a
cognizable interest under section
73.3555(a) of such title in a radio
market determined in the same manner as
under clause (i); or
(II) 1 television broadcast station
in excess of the number of television
broadcast stations in which the
established broadcaster is permitted to
hold a cognizable interest under
section 73.3555(b) of such title in a
DMA determined in the same manner as
under clause (ii).
(2) Determination of commission described.--The
determination described in this paragraph is a determination
that an established broadcaster and an emerging broadcaster
have entered into and are successfully carrying out a
qualifying incubation relationship under the Program in
accordance with an application approved by the Commission under
subsection (d) and are in compliance (with respect to such
relationship) with the other requirements for the Program
established by the Commission.
(3) Specification of radio markets and dmas.--
(A) In general.--The radio markets or DMAs (as the
case may be) specified in this subparagraph are--
(i) if the highest-ranked radio market or
DMA in which an incubated station under the
qualifying incubation relationship is located
is ranked not lower than 25, all radio markets
or DMAs;
(ii) if the highest-ranked radio market or
DMA in which an incubated station under the
qualifying incubation relationship is located
is ranked lower than 25 but not lower than 75,
the radio markets or DMAs ranked lower than 25;
(iii) if the highest-ranked radio market or
DMA in which an incubated station under the
qualifying incubation relationship is located
is ranked lower than 75 but not lower than 100,
the radio markets or DMAs ranked lower than 75;
(iv) if the highest-ranked radio market or
DMA in which an incubated station under the
qualifying incubation relationship is located
is ranked lower than 100 but not lower than
150, the radio markets or DMAs ranked lower
than 100; and
(v) if the highest-ranked radio market or
DMA in which an incubated station under the
qualifying incubation relationship is located
is ranked lower than 150, the radio markets or
DMAs ranked lower than 150.
(B) Market rankings.--For purposes of subparagraph
(A)--
(i) a DMA ranking refers to the rankings of
DMAs based on the number of television
households, as determined by Nielsen Media
Research and published most recently before the
granting of the waiver in the Nielsen Station
Index Directory and Nielsen Station Index
United States Television Household Estimates
(or any successor publication); and
(ii) a radio market ranking refers to the
rankings of radio markets based on population,
as determined by Nielsen Media Research and
published most recently before the granting of
the waiver in Radio Market Survey Population,
Rankings & Information (or any successor
publication).
(4) Termination of waiver.--The Commission shall specify in
the regulations promulgated under subsection (b) when a waiver
granted under paragraph (1) shall terminate.
(f) Termination of Participation in Program.--
(1) In general.--Except as provided in paragraph (2), if
the Commission determines that an established broadcaster and
an emerging broadcaster are not successfully carrying out a
qualifying incubation relationship in accordance with the
application approved by the Commission under subsection (d) or
are not in compliance (with respect to such relationship) with
the other requirements of the Program established by the
Commission, the Commission shall terminate the qualifying
incubation relationship under the Program and the participation
of the established broadcaster and the emerging broadcaster in
the Program with respect to such relationship.
(2) Exception for transfer of incubated station.--
(A) In general.--The transfer by an emerging
broadcaster of effective control of an incubated
station to another person shall not terminate the
qualifying incubation relationship under the Program,
and such other person shall be substituted as a party
to such relationship, if--
(i) such other person meets the
requirements for an emerging broadcaster under
the Program;
(ii) such other person and the established
broadcaster continue, with respect to such
station, to successfully carry out the
qualifying incubation relationship in
accordance with the application approved by the
Commission under subsection (d) and to comply
with the other requirements of the Program
established by the Commission; and
(iii) in a case in which the original
emerging broadcaster retains effective control
of any incubated station under the qualifying
incubation relationship, such emerging
broadcaster and the established broadcaster
continue, with respect to any such station, to
successfully carry out the qualifying
incubation relationship in accordance with the
application approved by the Commission under
subsection (d) and to comply with the other
requirements of the Program established by the
Commission.
(B) Treatment as single qualifying incubation
relationship.--If, after a transfer described in
subparagraph (A), the original emerging broadcaster
retains effective control of any incubated station
under the qualifying incubation relationship, any such
station and any station of which effective control has
been so transferred shall be treated as being part of a
single qualifying incubation relationship.
(3) Revocation of waiver prohibited.--
(A) In general.--Except as provided in subparagraph
(B), the Commission may not, as a penalty for or
consequence of the termination under paragraph (1) of a
qualifying incubation relationship between an
established broadcaster and an emerging broadcaster,
revoke any waiver granted to the established
broadcaster under subsection (e)(1) as a result of such
relationship.
(B) Exception for willful and knowing violations.--
If the Commission determines that the circumstances on
which the termination under paragraph (1) of a
qualifying incubation relationship between an
established broadcaster and an emerging broadcaster is
based involve a willful and knowing violation by the
established broadcaster of this section or a regulation
promulgated under this section, the Commission may
revoke any waiver granted to the established
broadcaster under subsection (e)(1) as a result of such
relationship.
(g) Exclusion From Quadrennial Review.--The Program, the
regulations promulgated by the Commission under this section, and any
waiver granted under subsection (e)(1) shall not be subject to review
under section 202(h) of the Telecommunications Act of 1996 or section
11 of the Communications Act of 1934 (47 U.S.C. 161).
(h) Implementation and Enforcement.--The Commission shall implement
and enforce this section as if this section is a part of the
Communications Act of 1934 (47 U.S.C. 151 et seq.). A violation of this
section, or a regulation promulgated under this section, shall be
considered to be a violation of the Communications Act of 1934, or a
regulation promulgated under such Act, respectively.
(i) Consideration in Communications Marketplace Report.--Section
13(d) of the Communications Act of 1934 (47 U.S.C. 163(d)) is amended
by adding at the end the following:
``(4) Considering effectiveness of broadcast incubator
program.--In assessing the state of competition under
subsection (b)(1) and regulatory barriers under subsection
(b)(3), the Commission, with the input of the Office of
Communications Business Opportunities of the Commission, shall
consider the efficacy of the Broadcast Incubator Program
established under section 2 of the Broadcast Diversity in
Leadership Act in promoting competition.''.
(j) Rule of Construction.--Nothing in this section shall be
construed to limit the development by the Commission of additional
programs or policies to promote the entry of new and diverse voices in
the broadcasting industry.
(k) Definitions.--In this section:
(1) Broadcast station.--The term ``broadcast station'' has
the meaning given such term in section 3 of the Communications
Act of 1934 (47 U.S.C. 153).
(2) Cognizable interest.--The term ``cognizable interest''
has the meaning given such term in note 1 to section 73.3555 of
title 47, Code of Federal Regulations (as in effect on the date
of the enactment of this Act).
(3) Commission.--The term ``Commission'' means the Federal
Communications Commission.
(4) DMA.--The term ``DMA'' means a Designated Market Area,
as determined by Nielsen Media Research and published in the
Nielsen Station Index Directory and Nielsen Station Index
United States Television Household Estimates (or any successor
publication).
(5) Emerging broadcaster.--The term ``emerging
broadcaster'' means a person who--
(A) has effective control of a broadcast station
(including any class or assignment of television
broadcast station and any class of AM or FM radio
broadcast station) that such person would be unable to
continue to operate successfully without a qualifying
incubation relationship under the Program; or
(B) plans to acquire effective control of a
broadcast station (including any class or assignment of
television broadcast station and any class of AM or FM
radio broadcast station) that such person would be
unable to acquire without a qualifying incubation
relationship under the Program.
(6) Established broadcaster.--The term ``established
broadcaster'' means a person who--
(A) has effective control of a broadcast station,
including any class or assignment of television
broadcast station (except for a low power television
station or a television translator station) and any
class of AM or FM radio broadcast station (except for a
low power radio station or a radio translator station);
and
(B) is established in the broadcasting industry, as
determined by the Commission.
(7) Incubated station.--The term ``incubated station''
means a broadcast station--
(A) of which an emerging broadcaster has (or plans
to acquire) effective control; and
(B) with respect to which an established
broadcaster performs (or will perform) incubation
activities as part of a qualifying incubation
relationship under the Program.
(8) Low power television station.--The term ``low power
television station'' does not include a low power television
station that has been accorded primary status as a Class A
television licensee under section 73.6001(a) of title 47, Code
of Federal Regulations.
(9) Program.--The term ``Program'' means the Broadcast
Incubator Program established by the regulations promulgated
under subsection (b).
(10) Radio market.--The term ``radio market'' means a radio
market, as determined by Nielsen Media Research and published
in Radio Market Survey Population, Rankings & Information (or
any successor publication).
<all>