October 2008

In two races for the US Senate, candidates have filed defamation lawsuits against their opponents charging that attack ads go over the line from political argument to actionable falsehoods.  However these suits ultimately play out, they demonstrate the premise that we’ve written about before, that broadcast stations are prohibited by FCC rules and the Communications Act from censoring the content of a candidate’s ad, and because they cannot censor the content of a candidate’s ad (or refuse to run a candidate’s ad because of the content of that ad), stations are immune from liability that might otherwise arise from that content.  But the candidates being attacked can sue their opponents for the contents of those ads, and that is just what has happened in the North Carolina and Minnesota Senate races.

In North Carolina, according to press reports, Democratic candidate Kay Hagan has filed suit against the campaign of Elizabeth Dole for a commercial that accused Hagan of being associated with a group called Godless Americans – an ad ending with a woman’s voice that some interpreted as being that of Hagan (when it was in fact not) saying "there is no God."  In Minnesota, Senator Norm Coleman has reportedly filed a lawsuit against Al Franken’s campaign claiming that Franken campaign ads improperly claimed that Coleman was rated one of the four most corrupt Senators and that he was getting an improperly financed apartment in Washington DC. Continue Reading Senate Candidates File Lawsuits For Defamation in TV Commercials – But Not Against the TV Stations

With the final transition of television from analog to digital soon upon us, the FCC has scheduled for consideration at its November meeting two items that will address the use of the television spectrum after the transition – one designed to improve television reception, and the other viewed by television broadcasters as a threat to that reception.  The potential positive development is Distributed Transmission Service ("DTS").  The other proposal – which is far more controversial – is the proposal to authorize "white spaces devices" that operate wireless devices within the portion of the spectrum that will still be used by television stations after the transition.

DTS is the proposal that would allow television stations to use more than one transmitter to reach its service area.  Like the use of FM on-channel boosters, a DTS system would permit stations to use multiple transmitters located throughout their service area, each broadcasting on the same channel, but operating at a lower power than the traditional television station which usually operates from a single high-powered transmitter.  The idea is that, in digital, signals distributed from lower power transmitters spread throughout the service area might be less susceptible to signal impediments from terrain and building obstacles than would a single high-power transmitter.  The FCC proposed adoption of this system several years ago with little opposition, but it has languished.  Some have suggested that the experience in Wilmington, where some people who lived far from the center of the market were having over-the-air reception problems, gave new impetus to DTS as one way to provide better service to these more remote areas.Continue Reading Issues on the Post-Transition Use of the Television Spectrum – White Spaces and Distributed Transmission Service (DTS)

In the FCC’s recent Report and Order on Diversity, released earlier this year, the Commission announced new requirements for all broadcast station’s advertising sales contracts. The new FCC rule requires that all advertising contracts contain clauses ensuring that there is no discrimination based on race or gender in the sale of advertising time. This new requirement, which took effect in July, not only requires broadcasters to have these non-discrimination clauses in their advertising sales contracts, but will also require that broadcasters certify as to the existence of such clauses in their next license renewal application. Thus, to be sure that you can make such certifications, you must revise your advertising contracts to include a nondiscrimination provision, such as the one set out below, if you have not done so already. 

These new measures are intended to increase participation in the broadcast industry by businesses owned by women and minorities. The Commission was concerned that some advertising contracts include either explicit or implicit “no urban/no Spanish” dictates. Such contractual limitations, the Commission explained, may violate U.S. anti-discrimination laws by either presuming that certain minority groups cannot be persuaded to buy the advertiser’s product or service, or worse, intentionally minimizing the number African Americans or Hispanics patronizing advertisers’ businesses. Continue Reading FCC Rules Require Non-Discrimination Clauses in All Advertising Sales Contracts – Act Now to Avoid Trouble Later

As broadcasters are aware, earlier this year, the FCC imposed DTV Consumer Education requirements mandating that television stations and other video providers educate viewers about the upcoming transition from analog to digital television (DTV).  Thus far, the education efforts have consisted primarily of Public Service Announcements (PSAs), crawls, and longer format programs designed to educate the…

The FCC has released a Public Notice reminding TV stations to update their FCC Form 387 DTV Transition Status Reports by October 20, 2008.  If you will recall, these Reports were filed by stations earlier this year (and updated in July) outlining the steps remaining for the stations to complete the transition to DTV.

As we’re…

We recently wrote about the controversy before the FCC about Arbitron‘s roll-out of the Portable People Meter ("PPM").  A number of broadcast groups, particularly those who target minority audiences with their programming, have requested that the FCC hold a hearing as to whether the introduction of the PPM in a number of major radio markets should be allowed, arguing that it has the potential to discriminate against minority audiences and to decrease diversity in the media.  Arbitron and other broadcast groups have opposed the initiation of that proceeding, arguing that the regulation of a ratings service exceeds the FCC’s regulatory authority.  Now, the opponents of the PPM have sough relief from a number of state and local governments, with the Attorneys General of New York and New Jersey filing suit to prevent the initiation of service by Arbitron.  The office of New York Attorney General Andrew Cuomo issued this Press Release, and that of New Jersey Attorney General Anne Milgram issued this Release, citing the reasons for the suit.  Both claim that the use of PPM technology, which they claim has methodological flaws, is a deceptive trade practice by a monopoly provider of services.  The NJ suit goes on to claim that the disparate effect of the claimed inaccurate measurements on minority and ethnic stations violated the state’s anti-discrimination laws.  Arbitron of course denies these claims.

The lawsuits have received substantial coverage in both the popular and trade press.  Today’s Washington Post has an article discussing the controversy.  Citing an interview with Alfred Liggins of Radio One, a leading radio group targeting African American listeners, the article suggests that the PPM may take a while for stations to adapt to, but once they do, even minority-targeted stations can obtain valuable programming feedback from the new methodology, as it allows feedback as the ratings information in days rather than the months that that the current diary system requires.  This rapid feedback allows broadcasters to make programming adjustments that will allow them to maintain or improve their ratings position.  Mark Ramsey’s Hear 2.0 blog looks at some anomalies in the PPM in specific demographics, but in another post concludes that despite whatever shortcomings the PPM may have, the industry needs to work with Arbitron on insuring that the PPM works – as an automated system is inherently more reliable than the diary method that relies on listeners recalling and accurately writing down their radio listening.Continue Reading NY and NJ State Attorneys General Sue to Stop Roll Out of PPM – What’s A Station to Do?

As we enter the waning days of this election season, where some candidates get more desperate and the attack ads get sharper, broadcasters are often faced with requests that they pull an ad created by a candidate.  Claims are made that the ad contains untrue claims about an opponent or that the ad contains copyrighted material used without permission.  What is a station to do?  When the ad is an ad purchased by a candidate or their authorized committee, and contains a "use" by the purchasing candidate (a use being a spot where the purchasing candidate’s voice or likeliness appears on the spot) the broadcaster is forbidden from censoring that ad.  Essentially, that means that the candidate can say just about anything in their ad (as long as it does not violate a Federal felony statute), and the FCC’s rules prohibit the broadcaster from refusing to air the ad based on its content.  But, because the station cannot censor the ad, it has no liability for the contents of that ad.  This is in contrast to ads by third parties (e.g. advocacy groups, unions, political parties and others not specifically authorized by the candidate), where the broadcaster theoretically has liability for the content of a political ad (see our post on that subject, here).

Two recent cases illustrate the issue.  In one, according to press reports, in a race for the sole seat in the House of Representatives representing the state of North Dakota, one candidate has claimed that the ads of the other misrepresent the positions of that candidate.  The candidate being attacked has asked that the spots be pulled from the air, while the candidate running the spots has refused to pull them.  Even if requested by the candidate being attacked, and even if the ad is in fact false, broadcasters cannot pull one candidate’s ad if that candidate wants to continue to run it.Continue Reading Broadcasters Prohibited From Censoring a Candidate’s Ad

The FCC has released another Public Notice that it is auditing the EEO performance of a number of the entities that it regulates.  However, this time, the audits are not of broadcasters, but instead of cable companies and other multichannel video programming distributors who are subject to essentially the same EEO rules as broadcasters.  The…

Press Reports (such as this one) have stated that the Obama campaign has purchased half-hour blocks of time on at least NBC and CBS to broadcast a political infomercial to be aired at 8 PM Eastern time on October 29.  Some reports indicate that other broadcast and cable networks will also be broadcasting the same program.  Did the networks have to sell him the time?  In fact, they probably did.  Under FCC rules, Federal political candidates have a right of reasonable access to "all classes" of time sold by the station in all dayparts.  This includes a right to program length time, a right that was affirmed by the US Court of Appeals when the networks did not want to sell Jimmy Carter a program length commercial to announce the launch of his reelection bid.  Because of this right, the networks often had to sell Lyndon LaRouche half hour blocks of time to promote his perennial candidacy for President. 

How often do networks (or stations) have to make such time available?  They only have the right to be "reasonable." While what is reasonable has not been defined, the amount of time that will be requested will probably be limited by the cost of such time.  Even were it not limited by cost, the FCC would probably not require that a broadcaster sell such a prime time block more than once or twice during the course of an election – and given the late stage that we are in the current election, it seems unlikely that more than one such request would have to be honored during these last few weeks of the campaign.  Stations do not need to give candidates the exact time that they requested – so the rumored reluctance of Fox to sell this precise time to the Obama campaign because it might conflict with the World Series would probably be reasonable – if they offered him the opportunity to buy a half hour block at some other comparable time.   Continue Reading Obama Buys A Half Hour of Time on Broadcast Networks – What FCC Legal Issues are Involved?