Broadcast Law Blog : Broadcast Lawyer & Attorney : Davis Wright Tremaine Law Firm : Broadcast Law Blog : Seattle, Los Angeles, Washington D.C., New York, San Francisco, Shanghai

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. 

• Email This
• Print
• Comments
• Share Link

The FCC has requested public comment on the proposal (about which we wrote here) to increase the power of the digital radio transmissions from 1 per cent of a primary station's power to 10 per cent of that station's power.  The proposal to increase power for stations using the HD Radio system is supposed to help overcome reception issues, especially in buildings and in areas with terrain obstacles.  The Commission pointed to the discrepancy between that request, which minimized problems that would occur from such a power increase in HD Radio's In Band On Channel digital operation, and the report issued by National Public Radio (about which we wrote here) that suggested that such a power increase would result in significant interference.  This proposal may well divide FM broadcasters between those who feel that it is more important to increase power to help digital broadcasts penetrate buildings and other obstacles, and those who fear that this increased power will interfere with their analog operations - particularly affecting stations operating on channels adjacent to stronger stations operating in digital or with a fringe signal in their target market.  Comments are due November 28, and replies on January 4.  As with any proposal on radio's digital conversion, this is bound to be controversial. 

• Email This
• Print
• Comments
• Share Link

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.

• Email This
• Print
• Comments
• Share Link

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. 

• Email This
• Print
• Comments (6)
• Share Link

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 public about the February 17, 2009 switch to DTV.  Now that stations are approaching the home stretch, however, the FCC's rules require additional efforts.

Specifically, for those stations that elected to follow “Option Two” of the DTV Consumer Education requirements -- which seems to be the vast majority of television stations -- beginning on November 10, 2008, television stations must begin a "100-Day Countdown" to the transition consisting of enhanced efforts leading up to February 17, 2009.  During this period, each station following Option Two must air at least one of the following per day:

Graphic display:  A graphic super-imposed during programming content that reminds viewers graphically there are “[X] number of days” left until the transition, and that visually instructs viewers to call a toll-free number or to visit a web site for further details.  The graphic's duration may vary from 5 to 15 seconds, at the discretion of the station.

Animated graphic: A moving or animated graphic that concludes with a countdown reminder, which will remind viewers that there are “[X] number of days” until the transition. Viewers are to be visually instructed to call a toll-free number or to visit a website for details.  The graphic's duration may vary from 5 to 15 seconds, at the discretion of the station.

Graphic and audio display: Either a graphic display or animated graphic along with an added audio component.  The duration may vary from 5 to 15 seconds, at the discretion of the station.

Longer form reminders: Stations may choose from a variety of longer form options in order to communicate the countdown message.  Examples might include an “Ask the Expert” segment in which viewers can call in to a phone bank and ask knowledgeable people questions about the transition.  The length of these segments can vary from 2 to 5 minutes, at the discretion of the station.  (Some stations may also choose to include during newscasts DTV “experts” who may be asked questions by the anchor or reporter about the impending Feb. 17, 2009, deadline).

With this 100-Day Countdown, the Commission hopes to push strong to the finish line and build viewer and consumer momentum for the final switch to digital on February 17th.  The FCC has been paying close attention to station compliance with the DTV Consumer Education requirements and stations are advised to start planning now for their 100-Day Countdown efforts.  One additional note, stations that have elected to follow Option Two should also be sure to air at least one longer form program (at least 30 minutes in length) if they have not done so already.   At least one such program must be run between the hours of 8:00 AM and 11:35 PM prior to February 17, 2009.  

• Email This
• Print
• Comments
• Share Link

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 now coming down the home stretch, stations that have not already completed the transition to digital must once again update their status reports.  Specifically, stations that by October 20th have not filed a covering license application and notified the FCC that they are operating with full and final DTV facilities must update their Form 387 DTV Status Report by October 20.

A copy of the Public Notice is available here.  Stations should make sure that the Form 387 provides:  (1) the station's detailed plan for the remaining steps in the transition, (2) dates for completion of construction and commencement of full, final DTV operations, and (3) plans for terminating existing service (e.g., reduction or termination of analog or pre-transition digital service).  All stations that have not completed their full and final DTV facilities by October 20th need to review the status of their DTV transition and update the Form 387 accordingly.

In addition, stations are reminded that the Commission's DTV Orders contain specific rules regarding the early termination or reduction of analog service.  In particular, stations that intend to permanently reduce or cease analog operations prior to November 19, 2008, must have obtained authority from the FCC to do so and must have aired the appropriate viewer notifications.  For stations intending to permanently reduce or cease analog operations after November 19th, but before the February 17, 2009 switchover do not require prior FCC approval, however, the station must give the FCC 30-days advance notice, and must also air 30 days of viewer notifications letting the audience know that the analog will be terminated early.  Stations should also include this information in their Form 387 reports so that the FCC knows when the station intends to permanently terminate their analog service.

• Email This
• Print
• Comments
• Share Link

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.

• Email This
• Print
• Comments (2)
• Share Link

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.

• Email This
• Print
• Comments
• Share Link

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 list of MVPDs that have been hit by the audit can be found appended to the Notice.  Each company that was audited has 30 days to respond to the FCC with details of its compliance with the EEO rules, including information about the wide dissemination of information about each of its job openings and other EEO outreach efforts that it has made.  The FCC's policy is that it will audit the EEO performance of 5% of all of its broadcasters and MVPDs each year - so use this audit notice as a reminder to review your EEO program.  Details of the FCC's requirements for a broadcaster's EEO obligations can be found in Davis Wright Tremaine's advisory, here.

• Email This
• Print
• Comments
• Share Link

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.   

• Email This
• Print
• Comments (2)
• Share Link

According to numerous press articles, including this one in Multichannel News, the FCC has begun an investigation into several commentators on TV news programs to see if they were receiving payments or other consideration for presenting a particular viewpoint on military issues on which they were interviewed.  According to press reports, the FCC has sent letters requesting information about the arrangements to both television networks and the commentators themselves.  This investigation would appear to be a continuation of the FCC's concern about undisclosed sponsors of programming attempting to convince the public of a particular position on any controversial issue of public importance.

This investigation seems to be very similar to a case about which we wrote last year, where the FCC issued fines to a station group that aired programming that included commentator Armstrong Williams, who had been receiving consideration to speak in support of the No Child Left Behind program.  The FCC has also been looking at similar issues in its Sponsorship Identification and Embedded Advertising Proceeding, about which we wrote here.  In both of these proceedings, the FCC has warned broadcasters that they need to assess whether anyone who is supplying programming material to the station is receiving consideration for the views expressed on that programming, particularly where that programming involves something that could be considered a controversial issue of public importance.  Thus, stations should be asking networks, program syndicators, and others appearing on a program whether they are receiving any consideration for the views that they are about to express - particularly where that is not clear from the context of the program.  While the FCC has not explicitly so stated, it would seem like an interview of an author about his new book or an actor about his new movie would clearly imply that the author or actor received consideration.  But where someone is expressing an opinion on some matter where it is unclear that there is any commercial or financial interest, and such an interest does indeed exist, the station should be aware  of that interest and disclose that connection on-air.  See our discussion here for another case where the FCC imposed fines on a cable system for not disclosing such interests.  One more thing to worry about!

• Email This
• Print
• Comments
• Share Link

In a recent decision, the FCC adopted new rules for AM station proofs of performance that make the process much simpler.  We wrote about this proposal when it was advanced, here.  The order adopted a week ago allows stations installing new series fed AM directional antennas to avoid the time-consuming and expensive process of doing a full proof of performance, by instead using a computer modeling process plus a limited number of actual measurements.  Comments filed in the proceeding convinced the FCC that this process would be as accurate as the full proofs that had previously been required for new AM stations and for many changes to existing stations.  Providing this option to AM broadcasters should greatly simplify and expedite the process of completing AM construction and the licensing of such stations.

As part of this order, the FCC also asked for further comments to discuss whether the construction of communications towers - even those that do not otherwise fall under FCC jurisdiction because, for instance, they are too short to require tower registration which is primarily triggered by FAA considerations - near to AM directional towers should also be required to use this same computer methodology to determine the effect that new construction would have on the nearby AM station.  If so, would parties proposing such new construction have to notify nearby AM stations, or just some subset of AM operators (such as those that are themselves operating under program tests).  If notification is to be required, how much advance notification should be required?  Comments on this proposal are due 30 days after this order is published in the Federal Register. 

• Email This
• Print
• Comments
• Share Link

The Barack Obama Channel – a surprising concept to find on your satellite television dial. Yet there appears to in fact be such a channel, according to a columnist at Politico, who found that the Dish Network is dedicating a whole channel to Obama commercials run back to back. Has Dish owner Echostar decided to stake out a partisan position in this hotly contested election? No, instead, it appears that the Obama campaign has decided to purchase time on that channel to run their ads. Leaving aside the question of whether this is a wise expenditure of campaign funds, the question is raised – is this legal?

The answer appears that it is legal, as long as the McCain campaign is given equal opportunities to buy their own channel at a similar price. The Direct Broadcast Satellite (“DBS”) Companies – Dish and DIRECTV – are subject to the FCC’s political broadcasting rules in the same manner as broadcasters (rules more strict than those that apply to cable companies, as reasonable access requirements are imposed on DBS requiring that they sell reasonable amounts of commercial time to Federal candidates who may request it). Thus, the equal time or equal opportunities rule would apply to DBS.  Because of the equal opportunity obligations, the mere fact that only one candidate has decided to avail themselves of the opportunity to buy the time does not make it problematic. Dish just needs to maintain enough channel capacity to create a McCain channel should that campaign decide, at some point between now and the election, to spend its resources to buy a channel of its own. The Obama Channel is another in a seemingly never-ending stream of weird political broadcasting issues that have come up in this election season. Our coverage of some of the other issues that have come up this year can be found here, and our Political Broadcasting Guide, setting out many of the rules of the road for this election season, is available here.

• Email This
• Print
• Comments
• Share Link

We’ve previously written about the value of music in connection with the royalties to be paid by Internet Radio and the performance royalty (or "performance tax" as it's labeled by the NAB) proposed for broadcasters. One of the questions that has always been raised in any debate about royalties, and one often dismissed by the record industry, is to what extent is there a promotional value of having music played on the radio or streamed by a webcaster.  In discussions of the broadcast performance royalty, record company representatives have suggested that, whether or not there is promotional value of the broadcast of music, that should have no impact on whether the royalty is paid. Instead, argue the record companies, the creator of music deserves to be paid whether or not there is some promotional value. The analogy is often made to sports teams – that the teams get promotional value by having their games broadcast but are nevertheless paid by stations for the rights to such games. The argument is that music should be no different. That contention, that the artist deserves to be paid whether or not there is promotional value may be tested in connection with what was once thought to be an unlikely source of promotional value for music – the video game Guitar Hero.

Guitar Hero, in its various versions released over the last few years, has proven to be a very effective tool for the promotion of music – with various classic rock bands experiencing significant sales growth whenever their songs are featured on a new version of the game. The use of a sound recording in a video game is not subject to any sort of statutory royalty – the game maker must receive a license negotiated with the copyright holder of the recording – usually the record company.  In previous editions of the game, Guitar Hero has paid for music rights. However, now that the game has proved its value in promoting the sale of music, the head of Activision, the company that owns the game, has suggested in a Wall Street Journal interview that it should be the record companies that are paying him to include the music in the game – and no doubt many artists would gladly do so for the promotional value they realize from the game. 

• Email This
• Print
• Comments
• Share Link

We’ve written much about the FCC Localism proceeding and the potential for some resolution of that proceeding in the near term. At the NAB Radio Show, held the week before last, FCC Chairman Kevin Martin suggested that broadcasters should voluntarily agree on a localism plan before there is any change in the administration at the FCC, suggesting that a future FCC may be less willing to compromise than the current one. Of course, a voluntary plan does not mean a code of conduct that broadcasters could unilaterally adopt and voluntarily agree to abide by, but instead it appears to be a request for standards that are voluntarily agreed to by broadcasters and then turned into some version of mandatory rules by the FCC. In a recent article in TV Newsday, some details of what the Chairman would like to see, and what he has apparently suggested to several state broadcast associations, are set out.

According to the article, a significant piece of the Commissioner’s suggested plan would include a requirement (or an option) for broadcasters to meet a mandatory localism obligation by funding investigative journalism conducted by journalism schools at various universities throughout the country. Apparently, stations that funded such journalism, or which aired the stories produced, would get some sort of localism credit. But what would this mean, and how would it impact broadcasters?

• Email This
• Print
• Comments
• Share Link

Both the House and the Senate have now approved the Webcaster Settlement Act of 2008, which will become law when it is signed by the President. Just what does this bill do? It does not announce a settlement of the contentious Internet Radio royalty dispute, about which we have extensively written here. It does not change the standard for judging Internet radio royalties, as had been proposed in the Internet Radio Equality Act, introduced last year and now seemingly dead in the waning days of this Congress, and in the Perform Act, about which we wrote here (the IREA and the Perform Act proposed different standards – the first more favorable to webcasters and the second more favorable to SoundExchange). These issues will seemingly be left to be disputed in a future Congress. Instead, the Webcaster Settlement Act seems to only adopt a simplified process for the approval of settlements that may be reached by the parties on or before February 15, 2009 – a settlement process that had been previously used in the Small Webcaster Settlement Act (the language of which this bill amends).

What is the significance of these new settlement processes? Under current law, any settlement between any group of webcasters and SoundExchange could only be binding on the entire universe of sound recording copyright holders if that settlement was approved by the Copyright Royalty Board. If an agreement is not binding on all copyright holders, then the reason for the statutory royalty - being able to pay one entity and get access to all the music in the world - would not be met.  The current procedures for approving settlements seem to contemplate such settlements only before a decision on royalties is reached by the CRB.   While some have speculated that the Court of Appeals that is currently considering the CRB appeal could remand the case to the CRB to effectuate a settlement and force the CRB to address it, that is by no means certain. For instance, the large webcasters, through their organization DiMA, reached a settlement with SoundExchange to cap minimum fees at $50,000 per webcaster. In their briefs filed with the Court of Appeals, both DiMA and SoundExchange have asked the Court to remand that aspect of the case to the CRB for adoption – yet that request has been opposed by the Department of Justice acting on behalf of the CRB. Thus, voluntary settlements may not be easy to obtain.

• Email This
• Print
• Comments
• Share Link