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[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).
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