Some PACs Stop Running "Electioneering Communication" Ads to Avoid Reporting Requirements

In recent days we have seen political action committees (PACs) claiming they are "prohibited" from running political ads in primary states due to "new rules" regarding "electioneering communications."  As explained below, these claims are incorrect.  What they are really doing is trying to avoid the need to reveal the identity of their contributors, following a US District Court decision in March.

Under Federal Election law, an "electioneering communication" is a broadcast, cable or satellite communication that refers to a clearly identified candidate for federal office within 30 days of a primary or 60 days of an election, targeted to 50,000 or more people in the state or district the candidate seeks to represent. For President and Vice Presidential candidates, an "electioneering communication" is one that can be received by 50,000 or more people within 30 days of a state primary or the nominating convention.

By federal statute, sponsors of "electioneering communications" must disclose the names and addresses of each donor who contributed $1000 or more to the sponsoring organization. This is is the provision that led to the US District Court decision at issue.

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MARCH MADNESS: An Unusual Case of Reverse Confusion

As we wrote about last year around this time, MARCH MADNESS is a term that is protected by trademark law.  It is owned by the March Madness Athletic Association (MMAA), a joint venture between the NCAA and the Illinois High School Athletic Association (IHSA).   The IHSA was actually first to begin using this mark to describe its high school basketball tournament in the 1940s. 

Brent Musburger brought MARCH MADNESS to public attention in using that term to describe the NCAA college basketball tournament, during which many hearts are broken each year....if you are lucky enough to have a team that made it this far. (Northwestern came this close to its first NCAA appearance.)

Normally, this would be a case of so-called "reverse confusion," in which the junior user of a mark (here, the NCAA) is so much bigger than the senior user of the mark (the IHSA) that the public thinks the mark belongs to the junior user.  In the typical reverse confusion case, the senior user can stop the junior user from using the mark.  But that did not happen here.  Why? 

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$44,000 Fine for Radio Station Not Including Sponsorship Identification in Paid Message

The FCC proposed a $44,000 fine on a Chicago radio station for running 11 announcements that did not contain a sponsorship identification.  This fine was not for 11 different announcements for different groups, but instead a single announcement run 11 times.  Each airing of the announcement triggered a $4000 fine (which is the amount of the FCC "base fine" for a sponsorship identification violation).  According to the FCC decision, a group called the Workers Independent News ("WIN") bought 2 two-hour programs, one one-hour program, and a number of shorter promotional announcements for those programs. 11 of the promotional announcements did not specifically state that they were sponsored.  Instead, these 11 announcements - each 90 seconds long - consisted of an interviewer, identifying himself as being with Workers Independent News, discussing a local issue with local legislator.  While the announcement did open with a mention of WIN, it didn't specifically say that they had paid for the spot.  Presumably, the FCC feared that the spot sounded like a program element, perhaps even a news interview (even though it ran in a commercial break), and held that the mere reference to WIN without any explicit statement that the spot was paid for by that group was not enough to convey sponsorship of the ad or to meet the FCC rules requiring sponsorship identification.

The decision here shows how seriously the FCC takes the issue of being able to identify who is trying to influence listeners by providing some form of valuable consideration to a broadcast station in exchange for the broadcast of a message.  This issue is the subject of an FCC rulemaking proceeding, has previously led to fines for other stations (though rarely ones of this magnitude, even where the FCC has found whole programs or portions of programs to have been sponsored - see, for example, the cases we've written about here and here dealing with "video news releases"), and has become part of the proposals for the new on-line public file, suggesting that sponsorship identification information be made available for any "pay-for-play" programming in such a file.  The issue has even become important in the online world, with the FTC issuing rules that require similar sponsorship identification even in connection with social media posts for which the author has received consideration (see our summary of the FTC order here).

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Is Super Bowl Protected by Trademark or Copyright Law? Try Both.

One of the questions we commonly get from broadcasters and others around this time of year is whether and/or how they can use the term SUPER BOWL.  Some refer to it as a trademark while others call it a copyright.  Who is right...and how can it be used?  The term SUPER BOWL is a registered trademark owned by the National Football League. We previously discussed this issue in 2009, 2010 and 2011

Actually, the NFL owns at least eight trademark registrations containing the words SUPER BOWL, as well trademark registrations for the terms PRO BOWL and even SUPER SUNDAY.  Aside from these trademark registrations, the NFL also owns the copyright to the telecast of the game itself.  You may have heard that in past years, the NFL tried to stop Super Bowl parties shown on large TV screens.  This was an enforcement of the NFL's copyright in the game.  Now, the NFL apparently no longer tries to stop Super Bowl parties unless the proprietor charges admission to see the game.  Again, this is a copyright issue.  But what do these rights mean for a broadcaster who wants to run a Super Bowl promotion or an advertiser who wants to run a campaign involving the Big Game?

 

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A Sumamry of the FCC Rules Implementing the CALM Act to Regulate Loud TV Commercials

The FCC this week adopted its rules implementing the CALM Act to address the public perception that commercials are too loud – louder than the programming which they accompany. Congress passed a law last year requiring that the FCC address the issue, and this week’s order adopts these implementing rules which will go into effect on December 13, 2012 (see our articles on the passage of the Act here, and on the Notice of Proposed Rulemaking in this proceeding here). The rules adopted by the FCC allow television stations and MVPDs (multichannel video programming distributors – cable and satellite TV companies) to meet the requirements of the Act by relying on the A/85 Recommended Practice, a standard adopted by the ATSC (the Advanced Television Standards Committee) setting out a process by which these TV providers can assure that commercials that they insert into program streams are not louder than the programs that they accompany. The rules also allow a safe harbor by which stations and MVPDs can comply with the Act in connection with “embedded commercials”, i.e. commercials that are sent to the station or system by a network or other program supplier.

The specific requirements for compliance with the new rules depend on whether the advertisements that are being broadcast are originated by the station or system, or whether they come embedded from some third-party program provider. For commercial insertions by the station or MVPD, compliance is assumed if they install the equipment required by A/85, use it in connection with their insertions, and maintain and repair it as necessary to keep it in good working order. For embedded commercials, stations can run all the programming through some sort of real time processing to ensure that the audio loudness is uniform. However the Commission was concerned would audio processing would degrade the audio quality of the programming provided by third parties. Thus, the Commission offered an alternative safe harbor with respect to embedded advertising. To comply with the safe harbor, stations and systems would either:

  • Rely on widely available certifications from networks and other program suppliers that they have complied with the standards necessary to assure that the commercials are no louder than the programming in which they are embedded, or
  • The stations and systems will need to perform “spot checks” on programming for which they have obtained no certification. Spot checks are done as follows:
    • Large stations (with over $14 million in annual 2011 revenue based on BIA Media Access Pro information) and very large MVPDs ( those with over 10 million subscribers) needs to annually spot check 100% of their non-certified programming. Large MVPDs (those with between 500,000 and 10 million subscribers) need to spot check 50% of their programming. Small stations and systems are exempt from regular spot check obligations
    • The spot check is a once-a-year obligation, requiring the station or system to do 24 hours of monitoring within a 7 day period, including at least one complete program from each non-certified program supplier, to ensure that the programs comply with the A/85 standards
    • Spot checks will phase out over 2 years as more and more programming is brought into compliance
    • If a spot check reveals an issue, the station or system needs to notify the program provider and the FCC, and do another spot check of the non-compliant programming within 30 days . If the programming continues to be noncompliant, then the programming is outside the safe harbor (meaning that, if a station or system continues to run it, they can be subject to fines)

The Order also set out additional details about what kinds of programming are subject to the rules, the complaint process for those who believe that stations or systems are not complying with their obligations, and waivers for small stations and systems.  These matters are discussed below.

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4As Adopt Antidiscrimination in Advertising Policy - Should Help Broadcasters Comply With Requirements for Antidiscrimination Provisions in Advertising Agreements

When the requirement that broadcasters have an antidiscrimination provision in their advertising contracts became effective, the FCC's Enforcement Bureau issued a Fact Sheet that stated that broadcasters needed to make sure that this provision was not only in their own contracts, but also in that of rep firms and others who sold advertising on behalf of the stations (see our coverage here).  Many stations feared that this policy would alone be difficult or impossible to enforce, as the stations simply had no way of policing the actions of the reps.  There was also the fear that advertisers and their agencies would not want to sign agreements with these provisions, or that they would nevertheless buy advertising that avoided certain minority-formatted stations, just without the open "no urban, no Spanish" dictates that the rule was designed to guard against.  In an action this week, the American Association of Advertising Agencies, or the 4As as it is more popularly known, adopted a policy requiring equal opportunities for all "vendors" of member agencies.  As stations are considered vendors to the advertising agencies, selling them ad time, this policy is read as prohibiting its members from selecting stations on which to advertise with a discriminatory purpose - essentially filling in the other side of the equation that the FCC tried to enforce through the broadcast certification.  The 4As policy can be found here.  The policy establishes a procedure for complaints to its members for perceived violations of the policy.

This action was applauded in statements by FCC Commissioners McDowell and Copps, who both recognized that the FCC certifications could go only so far in combating discriminatory ad buying practices.  By having a strong partner in a strong trade organization working on these issues from the buyers' side, the potential for the policy to have a real impact is increased.  The action should make the lives of broadcasters easier, by making advertisers more aware, through their own trade organization, of the general public policy against discrimination in advertising.  But broadcasters are in no way excused from continuing to enforce the FCC policy, and including the required disclaimer in their advertising contracts and other sales materials.  See our article here  for more information about this policy, some suggested language for the certification, and for ideas of what to do if the station does not routinely use advertising contracts in the sale of all of its advertising time.  Remember, this obligation on broadcasters is reviewed through a certification that the policy is in place at the station on the license renewal application, so take this requirement very seriously. 

California Federal Prosecutor States Interest In Prosecuting Broadcast Stations for Medical Marijuana Advertising

The tenuous legal status of marijuana advertising on broadcast stations just got a little more tenuous as a Federal prosecutor in Southern California has reportedly indicated an intent to prosecute radio and TV stations, as well as newspapers and magazines, that advertise medical marijuana clinics.  As we have written before, advertising such clinics was always a legal grey area, as marijuana use and possession is still a Federal felony, even though many states have passed laws to decriminalize the use of medical marijuana.  While the Federal Department of Justice had indicated that marijuana prosecutions were a low priority for prosecution, as the number of medical marijuana clinics have mushroomed in many states, and the controls exercised over them by state authorities have been lax, some Federal prosecutors have seemingly taken action on their own (as we warned was possible in a prior article on medical marijuana advertising).  The prosecutor in Southern California has indicated an interest in going after property owners who lease space to clinics, and now seemingly has expanded her interest into going after media outlets who advertise for such clinics. 

Whether or not these prosecutions will be successful on their own may be subject to debate, but broadcasters, as Federal licensees, need to be particularly careful in their actions.  There is rumored to be at least one complaint pending at the FCC against a broadcaster who ran medical marijuana ads.  As an agency of the Federal government, whose Justice Department has said that pot is not a legal drug, the FCC would be hard-pressed to say that it is alright for a station to advertise for a marijuana clinic.  With license renewals now pending or about to be filed by all broadcast stations, the opportunities for more objections, and sanctions based on any such complaint, are many.  So, once again, we caution restraint when a broadcast station is offered the opportunity to make a few dollars from a clinics ads.  The dollars you make may be far overshadowed by the dollars you spend defending a legal action - whether it be before the FCC or before a Federal court.  So think twice!

Updates on CALM Act Implementation and LPTV/TV Translator Digital Conversion Rulemakings

For our readers in the television business, there have been recent developments in two proceedings about which we have written recently.  Last week, we wrote about the extension of time to file reply comments on the CALM Act implementation Notice of Proposed Rulemaking, where the FCC is implementing a Congressional act to curb loud commercials.  The extension on the reply comments was granted as the Advanced Television Systems Committee was about to announce new amendments to its protocol that is the standard proposed as the basis by which compliance with the act is measured.  Given the importance of these standards, the FCC wanted to give interested parties at least a brief opportunity to comment on the revisions, thus warranting the extension.  According to an FCC Public Notice, those revised standard have now been announced, and can be viewed on the ATSC website, here.  Interestingly, as I write this article, the link to the Standards provided in the FCC Public Notice does not work, and the full report is not evident on the ATSC site.   Hopefully, those issues will be short lived, as the Reply comments are due on August 1.

Another recent proceeding of interest to television operators is the recent Order of the FCC dealing with the digital conversion of LPTV stations, Class A TV stations and TV translators.  We wrote about that proceeding here.  That Order sets deadlines this year for stations still operating in the portions of the television band that have already been reclaimed for use by wireless companies (Channels 52 to 69).  Any LPTV or TV translator still on these channels must file for a construction permit to move to the core television band by September 1 of this year.  The Order further requires that these stations stop operating on their current channels by the end of this year.  So that Channels 52 to 69 can be cleared on this very quick schedule, the FCC is expediting this proceeding, and has already published the Order in the Federal Register.  While this publication triggers the effective date of the Order (August 26 except for the portions dealing with fees for ancillary and supplemental services, which will be set at a later date), it also signals the start of the period in which Petitions for Reconsideration or Court appeals can be filed.  A not-so-fearless prediction - some sort of appeal will be filed, but it seems unlikely that it will be resolved by the September 1 filing deadline absent very unusual Court or Congressional intervention.  But watch for the filings in any event but, if you operate one of these stations on any channel between 52 and 69, be prepared to vacate the channel if nothing unusual changes the FCC's collective mind between now and then.

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Update - 7/28 - from an alert reader on the location of the new ATSC protocol:

I checked the ATSC website and the Recommended Practice is there.  Look under "Standards" and drop to "Recommended Practices".  There is probably confusion because the ATSC's A/85 is not a "Standard" but a "Recommended Practice".

recommended-practices/185-a85-techniques-for-establishing-and-maintaining-audio-loudness-for-digital-television

The FCC link is wrong

 

FCC Extends Reply Comment Date on CALM Act Implementation Rules as ATSC Plans Update of Compliance Protocol

The FCC has granted a short extension for Reply Comments on the implementation of the CALM Act.  The new deadline for Reply Comments is August 1, 2011.  We wrote about the issues in this porceeding here,  The CALM Act ("Commercial Announcement Loudness Mitigation" Act), which must be implemented by the end of this year, is meant to require broadcasters, cable companies and other MVPDs to eliminate loud commercials - commercials that are substantially louder than the associated programming.  As we set out in our previous article, the Commission looks to establish compliance based on a series of recommended best practices developed by the Advanced Television Systems Committee.  As the ATSC is about to release an updated version of this protocal (to be released on its website on July 26), a short extension was deemed to be appropriate so that interested parties could review the updated standards.  If you are concerned about compliance with the proposed new rules, take this extended opportunity to review the new ATSC recommended practices, and file your comments on or before August 1.

Comment Date Set on Rulemaking to Implement the CALM Act Regulating Loud TV Commercials

Dates for comments and replies on the FCC's Notice of Proposed Rulemaking to implement the CALM Act, regulating the volume levels of commercials, have now been set.  We provided a detailed summary of that NPRM here.  As set out in that summary, the NPRM asks many questions of broadcasters, cable companies, and other Multichannel Video Programming Distributors about implementation of the CALM Act, including who must comply, how compliance can be achieved, and the impact of reliance on program suppliers (networks, broadcast programming carried on cable, etc.) on compliance.  Comments are due on July 5, with replies due on July 18.  The FCC Public Notice setting out those dates also provides links to additional specifics about filing comments in the proceeding.  To avoid ruining your holiday weekend, get started on comments early!

FCC Seeks Comments on Implementation of CALM Act Regulating Loud Commercials on Broadcast and Cable Television

In December, the Commercial Advertisement Loudness Mitigation (“CALM”) Act was adopted by Congress and signed by the President, addressing consumer complaints about television commercials that seem louder than the program content that they accompanied. As we wrote in our summary of the Act when it was adopted, Congress has long received many complaints about loud commercials and decided to act, even though many industry groups were concerned about the ability to design an effective system to deal with the contrasts that sometimes exist between the quiet dialogue that might precede a commercial break and the commercial advertisement itself. Nevertheless, Congress adopted the CALM Act, and instructed the FCC to adopt implementing rules within a year. This past week, the FCC released its Notice of Proposed Rulemaking, looking to adopt rules to implement the statute for over-the-air television broadcast stations, cable systems, satellite, and other multichannel video programming providers. In its NPRM, the FCC asks many questions trying to clarify the details of CALM Act implementation.

The NPRM raises a broad array of implementation issues, ranging from deciding exactly which broadcast stations and which MVPDs are subject to its terms, to the establishment of safe harbors for technical compliance. As discussed in more detail below, the Commission also asks whether stations and systems can shift the burden for compliance with these rules to program suppliers, such as broadcast and cable networks, and whether contractual means of guaranteeing compliance (such as indemnification provisions in contracts between networks and affiliates) are sufficient to ensure compliance by these program providers. Questions about how MVPDs deal with retransmission of broadcast programs, and who is responsible for noncompliant broadcast programming, are also asked. Finally, the FCC suggests processes for consumer complaints and the grant of waivers to stations and systems that cannot quickly comply with the new rules.

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More Concerns About The Broadcast of Medical Marijuana Ads

In March, we cautioned broadcasters against the airing of ads for medical marijuana.  Our concerns stemmed not only from a complaint pending at the FCC, but also because, despite the widespread belief that the Federal government no longer cared about medical marijuana use and sale, the Department of Justice had only said that prosecution was no longer a priority, not that it was no longer illegal.  In recent months, our concerns seem more and more justified.  We had worried about some local Federal prosecutor deciding that he or she had time to prosecute offenses, even though DOJ headquarters did not think it to be a priority.  But, based on press reports and DOJ's own press releases, it looks like there has been at least some rethinking of the policies in Washington, DC as well.  The DOJ appears to be backtracking on medical marijuana, now saying only that it won't prosecute individuals who use medical marijuana, but that dispensaries, even if set up under the color of state laws, are still illegal under Federal law and subject to Federal prosecution.  Thus, broadcasters, as Federal licensees, need to exercise extreme care in advertising such dispensaries.

In the last few days, NPR has broadcast stories about the Department of Justice writing letters to authorities in Rhode Island and Arizona, in both cases saying that the Federal government still considers the sale of marijuana, even medical marijuana, to be a Federal felony subject to prosecution.  Both states are now reconsidering their laws that would otherwise allow for the operation of medical marijuana dispensaries.  The DOJ, on its website, cites a US Attorney in Washington State who has written to the landlords of medical marijuana dispensaries, warning them of the penalties that they may face if they allow these dispensaries to continue to operate, going so far as to warn them that they may face the forfeiture of their property to the government as it is being used to distribute prohibited drugs.  As this letter states, “We intend to use the full extent of our legal remedies to enforce the law.”  This language should serve as a warning to broadcasters of the Federal government's attitude toward marijuana dispensaries.

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FTC Requests Comments on Guidelines for Advertising Unhealthy Foods to Children

The advertising to children of food deemed unhealthy has been the subject of government concern for many years.  We wrote about the efforts of then-Senator Brownback to limit such ads - either by voluntary industry action or by government regulation.  These concerns led to the formation of a public-private task force to come up with voluntary actions to limit advertising unhealthy foods to children.  The FTC this week released a draft of that report - proposing prohibitions on advertising most unhealthy food to children that would be in place by 2016 (with certain additional restrictions becoming effective 5 years later).  These guidelines would apply not only to broadcast advertising, but also to marketing on the Internet and in many other media.  While the report talks about voluntary industry guidelines, the NY Times quotes some as asking just how voluntary such guidelines really would be - asking if the government might not step in to mandate compliance if industry was unsuccessful (see the Times article here, subscription may be required).  Comments on the FTC proposals are due on June 13, 2011.

The guidelines published by the FTC ask many questions about how to define what foods are considered unhealthy, and also about whether the timeline of 2016 for implementing a ban on unhealthy food advertising is reasonable (the later 2021 deadline would apply to certain restrictions on salt in food).  Advertising would be restricted for those up to 17 years of age, and extends to 20 categories of advertising including radio and TV, online ads, sweepstakes, ads in video games, and other marketing in traditional and digital media directed to children.  Broadcast programming that reaches an audience that is 30% children 2 to 11 would be deemed "targeted" to them, for children 12 to 17, the programming would be deemed targeted to children if there were a 20% representation of those age groups in the audience.  Internet ads would also use the 20% standard.

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FCC Fines Two TV Stations $4000 For Airing Video News Releases Without Sponsorship Identification, Even Though the Stations Were Not Paid for the Broadcast

The FCC has issued two Notices of Apparent Liability, each proposing fines of $4000 to TV station licensees, both for airing video news releases ("VNR") in news or information programs without sponsorship identifications.  In both cases, the station received the VNRs for free, but was paid nothing for including them in their programming.  The station had no indication that any other party supplying the VNRs were paid for providing them to the station.  Nevertheless, relying on some very old statements of policy contained in an FCC Public Notice from 1975, the FCC concluded that the provision of the VNRs in and of themselves, constituted valuable consideration to the station, and the fact that they highlighted the commercial products of the companies that produced them "to an extent disproportionate to the subject matter of the film", mandated a sponsorship identification.

Both cases rely on an FCC Public Notice, first issued in 1963 and updated in 1975 (which I have been unable to locate on the FCC's website), which sets out examples of how to comply with the sponsorship identification rules. These two old Public Notices were cited, but not reproduced, in a 2005 Public Notice, warning broadcasters to be careful with their use of VNRs.  The specific example cited by the FCC was one set out in these notices dealing with a film on scenic roadtrips provided by a bus company.  In the examples provided, the FCC stated that if the video did not show the bus company's name, or the bus company's name was shown only "fleetingly" in pictured of the highway in a manner reasonably related to the program, there would be no sponsorship identification requirement.  In cases where the bus company's name was clearly shown, "disproportionate to the subject matter of the film", then sponsorship identification would be required "as the broadcaster has impliedly agreed to broadcast an identification beyond that reasonably related to the subject matter of the film."  Based on these examples, the FCC levied the fines in the cases just released.  An examination of the facts of these cases is important to understand these fines and how far the FCC ruling in these cases extends.

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FCC Issues Advisory on Nondiscrimination Clause Required to Be Included in All Broadcast Advertising Contracts - What Should the Clause Say? - Why An Advertising Contract is Important

Last week, we wrote about the new requirement for a nondiscrimination clause in all broadcast advertising contracts.  In the new license renewal applications, broadcasters must certify that they do not discriminate in the sale of advertising time and that their contracts contain the required certification.  Today, the Enforcement Bureau of the FCC issued an Enforcement Advisory, answering questions about the new requirement.  Unfortunately, that advisory really does little but reiterate what the FCC has already said - that the Commission is concerned about "No Urban, no Spanish dictates", and that broadcasters must make sure that there is no discrimination in the purchase of advertising time on their stations.  But, the Commission does make clear in an accompanying News Release, through a statement from Chairman Genachowski, that the Commission "will vigorously enforce its rules against discrimination in advertising sales contracts."  The advisory does highlight one new matter - that stations that use advertising rep firms or other sales agents must make sure that these agents have nondiscrimination clauses in their own contracts used to sell advertising time on the station. 

This policy has raised several questions from broadcasters.  Many have asked what they should do if they have no advertising contracts.  Apparently, many broadcasters, especially in smaller markets or when dealing with regular customers, book advertising through emails or phone calls - not formal contracts.  The FCC does not address how this should be handled.  We've suggested that broadcasters include the nondiscrimination clause in the exchanges that essentially form the contract - e.g. the email confirming the schedule, the rate cards offering the spots for sale, or other communications between the station and the advertiser.  We also suggest that stations adopt written contracts, as these contracts can cover issues that are important to broadcasters, e.g. indemnifications from advertisers that they have the rights to all the music and other material used in their ads, statements that the broadcaster reserves the right to preempt ads if they don't like the content or if the broadcaster needs to run something more important, that advertising sold to one party should not be re-sold to anyone else, that the broadcaster is not liable for any consequential damages if an ad does not run for technical or other reasons, and similar issues.

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Advertising Medical Marijuana on Broadcast Stations - Is It Legal, What Will the FCC Think?

As medical marijuana has become legalized or decriminalized in many states, broadcasters have looked at advertising for the services of clinics and dispensaries as a potential new revenue source. As some community newspapers and other local media have begun to advertise dispensaries in states where medical marijuana is legal, we’ve been asked many times whether broadcasters can start to run such ads as well. Many radio and TV stations have even been approached by the operators of these clinics, seeking to run advertising schedules. Should broadcasters accept such ads? We urge caution.

Even though many states have decriminalized medical marijuana, possession and distribution of marijuana is still a Federal crime.  And broadcasters, unlike most other local media outlets, operate with Federal licenses. While the current US Attorney General has said that he will not criminally prosecute medical marijuana cases, the prohibition against marijuana remains on the books.  A careful reading of the Attorney General's directive on medical marijuana shows that the Department of Justice has not said that medical marijuana is a legal substance, but only that, as a matter of prosecutorial priorities, the DOJ will not use its resources to target dispensaries and clinics operating under the color of state laws.  So, while this Attorney General may not direct his Department to prosecute medical marijuana users or distributors, the possession of marijuana remains a Federal crime, and the Attorney General's memo makes clear that state laws cannot change this conclusion.  Thus, there may be some zealous local Federal prosecutor who decides to enforce the law on his or her own. Or, perhaps of more concern to the broadcaster, is the fact that there may be some local citizen in an area served by a radio or television station that runs such an ad who complains about the content of the ad to the FCC. In fact, we understand that there are already such complaints pending at the FCC. 

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FCC Clarifies Requirement for Antidiscrimination Clause in Advertising Contracts - And Sets Out Other License Renewal Changes

The FCC today released a Public Notice announcing new provisions in its license renewal Form 303S - the form that radio and television stations will be using to file license renewal applications, starting with license renewals for radio stations in DC, Virginia and West Virginia in June.  The Notice addressed several changes in the license renewal form - including the addition of certifications concerning whether a station was off the air at any point during the license term for a period of more than 30 days, whether principals of the licensee have interests in daily newspapers in the same area, and whether the station is in compliance with the RF radiation rules.  Two other issues of note were raised in the Public Notice - one dealing with stations that have not received a license renewal from the last license cycle, and one dealing with the newly required certification that stations must make - that their advertising contracts contain a nondiscrimination provision to assure that advertisers are not purchasing advertising on the station for a discriminatory purpose

We've written about the advertising anti-discrimination certification before, suggesting language that stations include in their contracts.  What is new in today's notice is that the FCC has clarified that the certification only covers the period from today's notice until the filing of the license renewal application.  So stations that do not have such certifications can still get them into their contracts now to avoid certification issues later.  In our previous articles on this subject, we've noted that this is a confusing requirement, and that even its supporters have urged the FCC to clarify it. Today's Notice only says that stations must avoid advertising purchases made on the basis of "no urban, no Spanish" dictates, but does not go any further in interpreting the requirements of this policy. 

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Congress Passes CALM Act to Restrict Loud Commercials

Yesterday, the House of Representatives passed the CALM Act, directing the Federal Communications Commission to adopt regulations controlling the volume of commercials on television broadcast stations, cable systems, satellite, and other multichannel video programming providers. This bill was passed by the Senate in September.  Once signed by the President, the Federal Communications Commission will be required to adopt a rule to implement the legislation within one year, and the rule is to become effective within one year after its adoption. The FCC rule is to adopt parts of the ATSC A/85 standard, which seeks to target the volume of commercials in digital programming to the volume of dialogue (or other “anchor element”) in the accompanying program. An interesting description of the issues that must be addressed in determining just what is "loud," and for controlling that volume, can be found in a recent Wall Street Journal article (here, subscription may be required). 

Congressional estimates are that the costs of necessary equipment range from a few thousand dollars to $20,000 per device, for an aggregate industry cost of tens of millions of dollars. Congress anticipated that the costs may be burdensome for small cable operators and smaller market television broadcasters, and provided that waivers may be granted for financial hardship for one year renewable terms  The Commission may also grant waivers or exemptions from the rule that it adopts for classes of broadcasters and multichannel video programming distributors under the FCC’s general waiver authority.

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FCC Corrects Advertising Nondiscrimination Certification - Removes Gender From Certification

In 2008, the FCC adopted a requirement that broadcast stations include in their advertising contracts a provision that says that advertisers will not discriminate on the basis of race or gender.  We wrote about that requirement here, and our post was greeted with significant surprise by many broadcasters as the requirement did not glean much publicity when it was first adopted.  Today, the FCC issued an Erratum to that two year old requirement, eliminating from the certification its application to discrimination in advertising based on gender.  Instead, the Erratum stated it was only discrimination based on race or ethnicity that was prohibited.  The Erratum stated that this language "more accurately" reflected the "Commission's clear intent" in adopting the requirement for the certification in advertising contracts.

The removal of "gender" from the advertising discrimination certification seems to recognize the common-sense advertising principal that some advertising, by its very nature, may be targeted to one gender or another.  But the correction of this language through an Erratum seems to avoid many of the hard issues that remain with this certification.  The Commission was very terse in its explanation of how this certification was supposed to work and exactly what it was supposed to prevent.  There were certain situations that seem to fit within the prohibitions - situations where the advertiser of a general market product refuses to allow it to be advertised on stations that target minority audiences (see our discussion of the Mini Cooper advertising controversy here).  This was to avoid the "no Spanish, no urban dictates", ruling out advertising on stations with urban formats or those programmed in Spanish, that some felt were attached to some advertising orders.  But there are many other questions that remain to be clarified.

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Using Music in Advertising or In a Video Production? Secure the Necessary Rights - ASCAP, BMI and SESAC Licenses Are Not Enough

Using music in commercials is not as simple as just paying your ASCAP, BMI and SESAC royalties.  While many broadcasters think that paying these royalties is enough to give them the rights to do anything they want with music on their stations, it does not.  The payments to these Performing Rights Organizations (PROs) only cover the right to publicly perform music, i.e. to broadcast it.  They do not give you the right to take the music and "synchronize" it with other words or video material, e.g.  you cannot put music in a recorded commercial or otherwise permanently fix it into a recorded audio or video production.  Instead, to make such a production, the producer needs to get the rights to both the underlying musical composition (the words and musical notes) and, if you are planning to use a particular recording of a song, the rights to use that particular recording ( the "sound recording" or "master recording").  Getting these rights may very well require that you deal both with the record company or performing artist whose recording you plan to use, and the publishing company that represents the composer of the music.  And, as some artists may have concerns about having their music used to pitch some products, getting the rights to that artist's version of a particular song may not be easy. 

Even using the tune of a familiar song in an advertisement, with different words, is not permitted without getting the rights to do so from the publishing company.  A copyright holder in a musical composition has the right to prepare "derivative works" of that composition.  A derivative work is one that uses the original copyrighted material, but changes it somehow - like putting new words to an old tune.  Many think that "fair use" permits the making of a parody of a song, so they are allowed to use the tune as long as they produce a new version that is funny.  However, in the copyright world, fair use is not that simple.  A parody, to allow use of the original tune, must be making commentary or criticism of the original song.  Being independently funny or amusing, or otherwise dealing with some independent social or political issue, does not give you the right to use the music without securing permission from the composer of the music first.  A recent story in the Hollywood reporter's legal blog, THR,esq.com, told the story of a Congressional candidate, Joe Walsh, who thought that it would be cute to use the music of former Eagle Joe Walsh, to make fun of Democratic politicians.  As set out in that story, Eagle Joe Walsh's attorney did not find the campaign song very funny, and sent a very strong letter objecting to that use (the LA Times site had at one point had a link to a video of a band playing the candidate's version of the Joe Walsh song "Walk Away", but it now says that the video has been taken down due to a copyright objection). Don't let your station be the recipient of such a letter - get the rights to use music in commercials or other productions. 

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Remember "Super Bowl", the "Olympics" and "March Madness" Are Trademarked Terms - Don't Use Them In Advertising Without Permission

With the Super Bowl and the Winter Olympics less than 2 weeks away, and March Madness not far behind, we once again need to remind our readers that all three are trademarked terms, meaning that their use, particularly for commercial purposes, is limited.  We've wrote here last year about the use of the term "Super Bowl" in commercials, and about the use of "Olympics" two years ago (here).  Our warning then bears repeating now - the trademarked terms should not be used in commercial messages except by authorized advertisers.  These advertisers have paid big bucks to be able to say that they are an Olympic sponsor, or that they are having a Super Bowl sale.  The holders of these trademarks enforce them rigorously (so that they can get the big bucks from the official advertisers), so don't risk their use without official permission.  See our Super Bowl post from last year for details on how to refer to these events without running afoul of trademark limitations.

As we wrote last year, this does not prevent all use of these terms.  News reports about the events can still be given.  DJs can still chat about who is going to win the Super Bowl, or about the latest judging controversy in Ice Dancing at the Winter Olympics.  But don't try to commercially exploit these terms (e.g. saying that you are "Springfield's March Madness station") unless you have really paid for the rights to use the trademarked term.  Be careful, as a cute promotional idea can end up costing your station far more than you intended. 

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New FTC Guidelines on Endorsements and Sponsorship Disclosure - Broadcasters and New Media Companies Beware

On December 1, 2009,  FTC revised Guidelines went into effect updating policies dealing with advertising using testimonials and endorsements, specifically affecting celebrity endorsements and sponsorship disclosure.  These revised guidelines directly impact the established practices of broadcasters and new media companies.  These revised endorsement and testimonial guidelines effectively ban the old standard “results not typical” disclaimer so commonly in use in connection with a great deal of testimonial advertising, confirm independent liability for the “endorser” (including celebrities) for false product or service claims, and expand and clarify the need for disclosure of “material connections”, that is consideration (money and other “freebies”) received by new media companies in connection with reviews or other online coverage of products or services.  It is vital that media companies, in particular new media, understand the key provisions of these guidelines to make sure that they don’t become a target of any FTC enforcement action.  The FTC has indicated that for now at least, its focus will be on enforcement in the new media world (bloggers, social media, viral campaigns) and other “non-traditional” advertising (celebrity guests on news and entertainment shows, endorsements by media personnel such as on-air DJ’s).

Like all FTC Guidance concerning advertising, the revised guidelines are specific regulations, but instead they set out standards (in essence a safe harbor) that outline how the FTC will review advertising to determine if it is “false and deceptive” or otherwise misleading to the consumer in violation of Section 5 of the FTC Act.  The revised guidelines provide specific examples as to how they will apply to insure sufficient disclosure so that the listener has all the background necessary to be able to evaluate the strength of the endorsement for him or herself.  For broadcast advertising, the new guidelines make clear that endorsers can themselves be liable for misleading statements made during a product pitch.  So a radio announcer paid to try a diet plan or some other product and to report about its results on the air needs to be sure not only that his statements are truthful, but that the “results” claimed are in line with what the advertiser can actually prove for the product through clinical study and research.  The radio pitchman cannot turn a blind eye to claims that are inherently incredible.  In the past, a simple disclosure that "your results may vary" or "these results are not necessarily typical" was sufficient.  Today, that disclaimer is no longer enough.  Instead, the new guidelines state that any testimonial about the results of using a product be accompanied with a disclosure of the results that a typical user can expect to get from the product.  So the announcer must be informed as to what results can be expected by the typical user, and that these results are objectively verifiable, so that the proper disclosure can be made.  As the announcer (or the station) can now be liable for statements made in such testimonials, stations should take care to be prepared to make the required disclosures. 

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No FCC Rules Against Beer Ads, But NCAA and Other Program Suppliers May Have Their Own Limits

Many broadcasters have had the conception that there are FCC rules against liquor advertising,  As we wrote in 2007, the FCC has never directly regulated liquor ads.  Many years ago, the FCC did ask broadcasters seeking a license if they would rely on the NAB Code of voluntary conduct, which set out limits on broadcaster advertising for alcoholic beverages (essentially forbidding hard liquor ads).  When the Code was declared unconstitutional in the 1980s, there was no longer any FCC review, direct or indirect, of any alcoholic beverage advertising.  But that is not to say that there were no restrictions, as many programming providers and rights holders themselves limited the kinds of ads that could accompany their programs and, as we wrote in our previous post, the alcoholic beverage trade associations had voluntary codes of conduct, which the FTC looks to in determining whether advertising is an unfair trade practice.  The rightsholder restrictions were demonstrated this past week, when the University of Wisconsin reportedly banned beer advertising on broadcast coverage of its school's football games.  Private contracts from program suppliers and rights holders, including sports programming from schools and colleges, often include restrictions against certain types of advertising which, if breached, can carry contractual penalties including the potential for the cancellation of a station's authority to continue to carry the programming.  Especially where such rights were the subject of competitive bargaining, broadcasters want to insure that they do not violate these restrictions and put their valuable programming rights at risk.

Some of the broadest restrictions on advertising accompany sports programs.  On Friday, there was a story in Inside Radio (subscription required) about the NCAA's requirements for broadcast advertising.  With college football season up us, we thought that we'd look at some of those advertising restrictions.  Those restrictions can be found on the NCAA website, here.  The NCAA has a list of specific products that are permitted to be advertised, with guidelines on how those presentations should be made when the product is pitched.  In addition, the list includes certain products that should not be advertised on NCAA games.  For instance, while beer advertising is permitted, the NCAA says that such ads should not take up more than 60 seconds of commercial time per hour (one 60 second ad or two 30 second ads).  The ads should feature no "gratuitous and overly suggestive sexual innuendo, no displays of disorderly, reckless or destructive behavior."  The ads also should include a "drink responsibly" message.  Hard liquor, on the other hand, cannot be advertised in NCAA programs.  Similarly, there are prohibitions on gambling ads of any kind (including ads for casinos or race tracks); firearms; adult entertainment locations including pool halls; adult movies and video games (with NC-17 ratings); ads promoting any products containing NCAA banned substances (including ginseng); and ads for controversial and political issues.  

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Mini Cooper Ad Request Reminds Broadcasters of No Urban Dictate Certification

A request for advertising rates by an ad agency representing the Mini Cooper serves as a reminder to broadcasters of the recently-imposed obligation to insure that broadcast advertisers do not discriminate on the basis of race or gender.  As we wrote several months ago, the FCC has adopted a new requirement that a broadcaster certify at license renewal time that their advertising contracts require advertisers certify that they were not making advertising decisions based on the race or gender of the audience of the broadcast station.  This was to eliminate the "no urban/no Spanish" dictates that many felt were a discriminatory part of the advertising landscape.  As demonstrated by the controversy that erupted when this request for rates was circulated, stations need to insure that their contracts contain language prohibiting discrimination in advertising buys, as any such dictates will not be a secret.  And once they get out, if a station has run a campaign purchased by an advertiser who had included such dictates, the station running the campaign may have difficulty in making the required certification as the station knows that the actions of the advertiser contradict any certifications that the advertiser may have made in signing the station advertising contract containing the required certifications.

Our earlier post on the issue suggested some language to include in an advertising contract disclaimer, and also discussed the issue of the positive use of racial or gender advertising specifications for ads targeting minority and gender specific audiences.  But the issue in the Mini Cooper case makes clear that many in the advertising community, and probably many in the media community, do not know about the adoption of the FCC's policy, or the proposal to extend the policy to cable advertising.  It is also interesting to note that the FCC has refused to provide more specific guidance on this rule, not even specifying the language that should be used in contracts.  Nor has the new license renewal form containing the required certification that the broadcaster must make about his compliance with this rule been released, making it unclear if this form has even passed review by the Office of Management and Budget under the Paperwork Reduction Act. 

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A Full Five Person FCC - What's Next For Broadcasters?

For the first time since the term of FCC Commissioner Tate expired and Chairman Martin resigned, the FCC will be back to full strength with the Senate's approval of new FCC Commissioners Mignon Clyburn and Meredith Attwell Baker.  What issues of importance to broadcasters will the Commission, now headed by Chairman Julius Genachowski, take up in coming months?   The new Chairman, who gave a number of interviews last week with the trade and popular press, emphasized the importance of the broadband rollout.  Beyond that, his priorities for the broadcast media were not detailed.  He did, however, emphasize, that any broadcast regulation (specifically referencing the mandatory review of the broadcast ownership rules that must begin next year), would have to take into account the realities of the marketplace - including the current economic conditions.

Beyond that, there were few clues as to the new FCC's priorities in the broadcast world.  But, even though there are no indications of the FCC's priorities, there are many open broadcast issues that the Commission will, sooner or later, need to resolve.  Some involve fundamental questions of priorities - trying to decide which user of the spectrum should be preferred over others.  Other issues deal with questions of what kind of public service obligations broadcasters will face.  And yet another set of issues deal with just the nitty gritty technical issues with which the FCC is often faced.  Let's look at some of these open issues that may affect the broadcast industry. 

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Health Policy Ads on Broadcast Stations - Remember Your Public File Obligations

A story in today's Wall Street Journal discusses the significant amount of money being spent on television advertising for and against pending proposals for health care reform.  As we have written before, broadcasters are required to keep in their public file information about advertising dealing with Federal issues - records as detailed as those kept for political candidates.  Information in the file should include not only the sponsor of the ad, but also when the spots are scheduled to run (and, after the fact, when they did in fact run), the class of time purchased, and the price paid for the advertising.  Clearly, the health care issue is a Federal issue, as it is being considered by the US Congress in Washington.  So remember to keep your public file up to date with this required information. 

Section 315 of the Communications Act deals with these issues, stating that these records must be kept for any request to purchase time on a "political matter of national importance", which is defined as any matter relating to a candidate or Federal election or "a national legislative issue of public importance."  Clearly, health care would fit in that definition.  The specific information to be kept in the file includes:

  • If the request to purchase time is accepted or rejected
  • Dates on which the ad is run
  • The rates charged by the station
  • Class of time purchased
  • The issue to which the ad refers
  • The name of the purchaser of the advertising time including:
    • The name, address and phone number of a contact person
    • A list of the chief executive officers or members of the executive committee or board of directors of the sponsoring organization.
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Advertising Industry Publishes Self-Regulatory Principles for Online Behavioral Data Collection

The Advertising industry recently published self-regulation guidelines for "behavioral advertising," i.e. advertising that is targeted to the user based upon data regarding that user’s activities across various Web sites.  The Federal Trade Commission has been urging the industry to develop such standards for some time.  These practices have also attracted considerable attention on Capitol Hill.  To summarize the new guidelines, Davis Wright Tremaine has published an Advisory, summarizing the new guidelines.  You can find the advisory here

Any company engaging in any behavioral advertising on their websites, including broadcasters and other digital media companies, should pay attention to these guidelines.  As noted in the memo, Congress continues to consider other regulatory steps to govern such advertising.  The more effective industry self-regulation is, the less the need for government intervention. 

Don't Use "Super Bowl" in an Ad Without Permission - But How About in Other Programming?

The term "Super Bowl" is a trademark owned by the National Football League, and it is protected very aggressively. What does that mean?  The biggest no-no of all is to use the term "Super Bowl" in any advertising or promotional announcements that are not sanctioned by the NFL.  This prohibition includes sweepstakes and contests as well.  Advertisers pay high licensing fees to the NFL for the right to use the term "Super Bowl" in their advertising.  You will almost certainly hear from the NFL's attorneys if you use the term in advertising without explicit authorization from the NFL.  So no "Super Bowl sales" in your ads - and don't refer to your station as the "Super Bowl Authority" in your promotional statements.  These restrictions explain why you often hear it referred to as "The Big Game."  But this restriction does not mean you cannot utter the words on air under any circumstances. 

There is a court-created trademark concept known as "nominative fair use."  Under this concept, trademarks can be used when necessary under certain conditions.  First, the mark must not be readily identifiable in any other way.  For example, you do not have to refer to the Pittsburgh Steelers as "the professional football team from Pittsburgh."  Secondly, you can only use the mark to the extent necessary to identify it.  Repeated gratuitous use would cross the line - for instance if you repeatedly state that your station is "the place to hear everything about the Super Bowl."  And third, you cannot do anything to suggest a false connection or sponsorship arrangement.   What does this really mean?  It means that DJs can use the term "Super Bowl" editorially in discussing the game on air (but not in a way to imply that the station has a connection to the game, or not in a repeated way analogous to a station slogan or positioning statement).  It means that news stories about the game can refer to the "Super Bowl."  The NFL will not consider such uses to be trademark infringement so long as the use is reasonable.  In fact, from an editorial perspective, the NFL appreciates some hype about the game to attract viewers and general consumer interest in the game.

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Gazing Into the Crystal Ball - The Outlook for Broadcast Regulation in 2009

Come the New Year, we all engage in speculation about what’s ahead in our chosen fields, so it’s time for us to look into our crystal ball to try to discern what Washington may have in store for broadcasters in 2009. With each new year, a new set of regulatory issues face the broadcaster from the powers-that-be in Washington. But this year, with a new Presidential administration, new chairs of the Congressional committees that regulate broadcasters, and with a new FCC on the way, the potential regulatory challenges may cause the broadcaster to look at the new year with more trepidation than usual. In a year when the digital television transition finally becomes a reality, and with a troubled economy and no election or Olympic dollars to ease the downturn, who wants to deal with new regulatory obstacles? Yet, there are potential changes that could affect virtually all phases of the broadcast operations for both radio and television stations – technical, programming, sales, and even the use of music – all of which may have a direct impact on a station’s bottom line that can’t be ignored. 

With the digital conversion, one would think that television broadcasters have all the technical issues that they need for 2009. But the FCC’s recent adoption of its “White Spaces” order, authorizing the operation of unlicensed wireless devices on the TV channels, insures that there will be other issues to watch. The White Spaces decision will likely be appealed. While the appeal is going on, the FCC will have to work on the details of the order’s implementation, including approving operators of the database that is supposed to list all the stations that the new wireless devices will have to protect, as well as “type accepting” the devices themselves, essentially certifying that the devices can do what their backers claim – knowing where they are through the use of geolocation technology, “sniffing” out signals to protect, and communicating with the database to avoid interference with local television, land mobile radio, and wireless microphone signals.

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FCC Rules Require Non-Discrimination Clauses in All Advertising Sales Contracts - Act Now to Avoid Trouble Later

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. 

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NY and NJ State Attorneys General Sue to Stop Roll Out of PPM - What's A Station to Do?

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.

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Remember the "Olympics" are Trademarked - Advertisers Beware

Last week, an article in the Wall Street Journal focused on the enforcement of the trademark that the United States Olympic Committee has in the word "Olympics."  Thus, anyone who wants to call some sort of competition an "Olympic" contest, or anyone who uses any derivation of that word, is asking for potential issues should the USOC get word of that use.  What the article did not address was the issue that this raises for broadcasters and advertisers.  Just as the trademarked term "Super Bowl" can cause problems for companies that use it in advertisements without permission of the NFL, advertisers should refrain from the use of the term Olympics in connection with promoting their products.   Companies have paid huge rights fees to get the exclusive rights to use the Olympics in their advertising campaigns, usually getting exclusive rights in a particular product category.  These companies and the Olympic committee do not like to see local advertisers appropriating the use of the Olympics name (or the interlocking circles that comprise their symbol) in someone else's ad.  So, just as electronic stores promote the sale of their big screen TVs before the Super Bowl by talking about the "Big Game" rather than using the trademarked phrase, advertisers must use care and avoid any trademark infringement by trying to tie their products to the Olympics during this upcoming event. 

Comment Dates Set for Embedded Advertising and Sponsorship Identification Proceeding - While Coffee Cups on the Anchor Desk Put the Issue in the Headlines

The FCC's Notice of Inquiry and Notice of Proposed Rulemaking on Sponsorship Identification issues (which we summarized in our firm's advisory and about which we wrote here), which deals with a host of issues including embedded advertising and product placement, was published in the Federal Register late last week, starting the clock on the filing of comments.  Comments on this wide-ranging proceeding are due on September 22, and replies on October 22.  With the broad range of issues that are discussed in this proceeding, from proposed rules on the size and length of textual sponsorship identifications in television advertising to sponsorship identification requirements for live-read radio commercials, there is something on which almost every broadcaster will want to comment.

A recent New York Times article helped bring the proceeding to the attention of the general public.  The article writes about television stations which are paid to have morning show hosts place coffee cups with identifiable logos (in this case cups of McDonalds coffee) on the desk of the news anchors of a morning news program.  Under some of the proposals identified in the Notice of Inquiry in this proceeding, some sort of identification (perhaps a crawl or superimposed message) of the sponsor for the placement of those cups would be required concurrently with the visual images of the cups on the screen.  The same would be true of the appearance of a product in any scripted comedy or drama, and perhaps even when feature films are run on TV in which the filmmaker was paid to include specific products in the movie.   Adoption of any of these suggestions could certainly change to face of broadcast television, particularly as it adapts its advertising practices to deal with Digital Video Recorders and other technological advances.  For broadcasters to retain their flexibility in such matters, they should file comments on or before the September 22 filing deadline. 

FCC Begins Investigation of Embedded Advertising and Sponsorship Identification

Last week, the FCC commenced its long anticipated proceeding to reexamine its sponsorship identification rules. This proceeding has been rumored for over six months, having appeared on an agenda for a Commission open meeting in December, only to be pulled from the agenda days before it was to have been voted on. The Commission has initiated this proceeding, to a great degree, at the urging of Commissioner Adelstein who has been vocal in his concerns that the broadcast and advertising industries, in adopting advertising techniques to respond to technological and marketplace changes, has been exposing the public to commercial messages without their knowledge.  One of the principal practices of concern to the Commission, though not the only one, is embedded advertising (as the Commission refers to product placement and product integration into the dialog and/or plot of a program). While many of the trade press reports have focused on embedded advertising, this proceeding is wide-ranging and important to the broadcast, cable and advertising industries. Comments on the proceeding will be due 60 days after its publication in the Federal Register, with replies 30 days later.   We have prepared an Advisory, summarizing the issues raised by the Commission in this proceeding, which can be found here.

According to trade press reports, this proceeding was initially planned as a Notice of Proposed Rulemaking (NPRM), which would have proposed rules which, after public comment, could have been immediately adopted. After significant lobbying from the advertising community, the Notice was released in two parts. First, there is a Notice of Inquiry (NOI), asking a series of questions about the current state of advertising on broadcast and cable outlets, and asking how the Commission should amend its rules to deal with new advertising techniques. Second, the Commission’s announcement contains an NPRM with respect to certain specific items, including proposing to clarify the type of sponsorship identification necessary in television advertising, the extension of the sponsorship identification rules beyond local origination cablecasting to cable network programming, and clarification of the rules with respect to live-read radio commercials. The specifics of the NOI and the NPRM are set forth in our Advisory

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The Regulation of TV Programming for Children - Embedded and Interactive Advertising, Violence, and Ratings

In several recent speeches and press releases, FCC Commissioner Jonathan Adelstein has challenged the FCC to do more in the regulation of children's programming.  In a recent Press Release, the Commissioner outlined proposals including the following:

  • Improve the V-Chip and other program blocking technologies
  • Improve ratings information for television programming - including potentially having third parties review programming for its suitability to children as opposed to the television programmers themselves doing the ratings
  • In the context of a proceeding on Embedded Advertising that has been rumored for quite some time, look at how such advertising is used in children's programming
  • Restrict interactive advertising directed at children.
  • Convene a summit to explore these issues

In addition to these proposal, the Commissioner gave a recent speech to the Media Institute in which he expanded on these ideas, and also lengthened this agenda to include further Commission action to define and restrict violent programming.  He also expressed his regrets over the recent decision overturning the FCC's fines for fleeting expletives and urged that action be taken to overturn this decision (see our post here on the FCC's appeal of that decision).  And in yet another recent speech, he emphasized the proceeding on Interactive advertising in children's programming, remarking on how the Commission has a pending proceeding that has been pending and unresolved for several years.  He cited the Commission's tentative conclusion to ban such ads, as broadcasters form a "portal" for children's entrance to the Internet.  While the Commissioner expressed that the FCC had little jurisdiction to do much on the Internet itself (but see our recent post as asking whether the FCC may soon get more power over the Internet), he felt that restrictions on the links to the Internet from television programs would be useful in protecting children. 

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Prescription Drug Advertising Restrictions - Back on the Table?

Last year, Congress considered limits on direct to consumer (DTC) prescription drug advertising (about which we wrote here), but this effort stalled.  A recent letter from two Congressional leaders of the Energy and Commerce Committee suggest that Congress is looking at these issues once again.  This advertising has become important to television networks, and to drug manufacturers anxious to distribute information about their latest products to consumers.  Congress held a hearing in May to consider issues about this advertising.  One concern was whether ads could be misleading when they featured celebrities (a particular concern was when Robert Jarvic, the inventor of the artificial heart who is not an medical doctor, was seen in a drug commercial, which some felt implied that he was giving medical advice). Other concerns include the potential for advertising to build up large demands for new drugs, quickly exposing these drugs to large populations, when a slower roll out would give the companies and the medical community more time to discover any unanticipated side effects.  An article about these concerns is available to Wall Street Journal subscribers, here.  The Congressional letters, which can be accessed here, address both of these issues.

The letter, from Congressmen Dingell and Stupak, both from Michigan, ask several drug companies and the Pharmaceutical Research and Manufacturers of America (the trade association for Pharmaceutical companies), if they were planning to update their guidelines on direct to consumer advertising to address the issue of celebrity advertising.  Also, the letter asked if the companies and the association would back a voluntary two year moratorium on advertising for new drugs, presumably while new guidelines are worked out.  FDA guidelines already require a statement on the major risks of the drug and information on where consumers can learn more about the risks of the drug (suggesting a combination of 4 datapoints in each ad - a toll-free telephone number, a website, a recent print publication - all dealing in more detail with side effects and cautions - and a recommendation to "ask your doctor" about the effects of the drug).  The Congressional Research Service of the FDA has prepared a good  history of regulations in this area and a summary of the issues.  Watch upcoming Congressional actions to see if even more disclosures will be necessary.

Broadcasters and the Regulatory Pendulum - Swinging Toward More Regulation

In recent months, the broadcast industry has experienced one of the most active periods of regulatory activity in recent memory. Since November, the FCC has adopted enhanced disclosure obligations concerning the public interest programming of television broadcasters and requirements for an on-line public inspection file; rejected most calls for increased deregulation of broadcast ownership (allowing only the cross-ownership of broadcast stations and newspapers in the largest markets); established specific prohibitions against advertising practices that involved “no Spanish, no urban dictates”; placed mandatory disclosure obligations on television broadcasters in connection with promotion of the DTV transition; proposed rules that could favor low power FM stations over improvements in full-power broadcast services and existing FM translator licensees; and proposed sweeping regulation of broadcasters which could potentially require specific amounts of nonentertainment programming by all stations, restrict the flexibility of broadcasters' location of their main studios, require 24-7 live staffing for all stations that operate on that basis, and perhaps even evaluate the music selection process of radio operators. Rumored to be in the offing are proposals to regulate embedded advertising, to adopt enhanced rules on sponsorship identification in connection with video news releases and payola-like practices, and perhaps even expand EEO reporting requirements (as the FCC recently asked for public comment on the employee-classification information for its long-suspended requirements for the filing of FCC Form 395 – the Annual Employment Report in which stations categorize all their employees by their employment duties, race and gender). And Congress has not been idle, with proposals introduced for the adoption of a performance royalty on over-the-air radio for the use of sound recordings, hearings about potential restrictions on prescription drug advertising, and a proposal to roll back the limited ownership reform adopted by the Commission in December.

With all this activity in a six month period under a Republican administration with a Republican majority on the FCC, during a time of great turmoil in the broadcast industry itself, as television prepares for the digital transition and broadcast revenue growth is slow or nonexistent (based on a variety of factors including general economic conditions and competition from the plethora of new media choices), many broadcasters are wondering what’s going on? And some fear even more changes could come about in any new administration that may come to Washington after the November elections, no matter what the result of that election. The one candidate with the most experience in the regulation of broadcasting, Senator McCain who has chaired the Senate Commerce Committee which regulates the broadcast industry, has by no means been a captive of the broadcast industry – leading efforts to enhance the use of LPFM and at one point pushing a spectrum tax proposal for television broadcasters for the use of the digital spectrum.

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No State Lottery in Your State? - No Gambling Ads Even For a State Lottery In a Nearby State

In a decision released last week, the FCC imposed a fine of $4000 on a broadcaster licensed to a community in the state of Arkansas for airing an advertisement for the Missouri State Lottery.  In this case, a station licensed to Arkansas ran a remote broadcast from a store in Missouri.  During the course of the remote, the on-air announcer invited listeners to come to the store and made some not-too-subtle remarks implying that, when they did, they could buy Missouri lottery tickets.  As there is a statutory provision prohibiting a station located in one state from running an ad for a lottery in another state if its own state does not have a lottery, the Commission issued this fine.

This ban is based on a statute passed  by Congress, and approved by a Supreme Court decision 15 years ago - finding a compelling state interest in protecting the citizens of states that ban gambling from allowing stations in their states from advertising that prohibited activity.  Of course, in many cases, a station licensed to one state may be heard (and may in fact be physically located) in another state.  Even so, the city of license is what counts - so a station has to observe the laws of that state.  In some cases, that can mean that there are different rules that apply to different stations in the same cluster (and possibly located in the same building, with advertising being sold by the same sales people).

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FCC Takes Actions to Increase Diversity in Broadcast Ownership

At its December meeting, at the same time as it adopted rules relaxing the newspaper-broadcast cross-ownership rules, the FCC adopted new rules to expand diversity in the ownership of broadcast stations, encouraging new entrants into such ownership.  The full text of that decision was just released last week, providing a number of specific rule changes adopted to promote diverse ownership, as well as a number of proposals for changes on which it requests further comment.  Comments on the proposed changes will be due 30 days after this order is published in the Federal Register.  As this proceeding involves extensive changes and proposals, we will cover it in two parts.  This post will focus on the rule changes that have already been made - a subsequent post will cover the proposed changes.  The new rules deal not only with ownership rule modifications, but also with issues of discrimination in the sale of broadcast stations and in the sale of advertising on broadcast stations, new rules that leave some important unanswered questions. 

The rules that the Commission adopted were for the benefit of "designated entities."  Essentially, to avoid constitutional issues of preferences based on race or gender, the definition of a designated entity adopted by the Commission is based on the size of the business, and not the characteristics of the owners.  A small business is one designated as such by the Small Business Administration classification system.  Essentially, a radio business is small if it had less than $6.5 million in revenue in the preceding year.  A television company is small if it had less than $13 million in revenues.  These tests take into account not only the revenue of the particular entity, but also entities that are under common control, and those of parent companies.  For FCC purposes, investment by larger companies in the proposed FCC licensee is permissible as long as the designated entity is in voting control of the proposed FCC licensee and meets one of three tests as to equity ownership: (1) the designated entity holds at least 30% of the equity of the proposed licensee, or (2) it holds at least 15% of the equity and no other person or entity holds more than 25%, or (3) in a public company, regardless of the equity ownership, the designated entity must be in voting control of the company.

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Does the FCC's Approval of the Clear Channel Transfer of Control Provide a Window Into the Future?

Last week, the FCC approved the long-pending application for the transfer of control of Clear Channel Broadcasting from its public shareholder to several private equity funds. Even though the application had been pending at the FCC for over a year, the Commission’s decision was notable for the paucity of issues that were discussed. The decision approves the transfer, conditioned on certain divestitures by the Company and by the equity funds that will control the new company, including divestitures previously ordered by the Commission in connection with the investment of one of these funds in Univision Broadcasting but not yet completed, and rejects three petitions that, from the Commission’s description, did not involve fundamental issues about the nature of the overall transaction, but were instead devoted to certain limited issues, in two cases involving actions in a single market. The divestiture conditions were approved seemingly as a matter of course, and do not provide any new insights into the law concerning the FCC’s attribution rules (unlike the recent decision approving the transfer of control of Ion Television, about which we wrote here, which contained an extensive detailed discussion of what it takes to make an ownership interest “nonattributable” for purposes of the FCC multiple ownership rules). Given the lack of controversy in the Commission's order, what is perhaps most noteworthy about the decision are the concurring statements of the two Democratic Commissioners, which may provide some indication of the concerns of the Commission should we have a Democratic-controlled Commission following this year’s Presidential election.

Of course, as we’ve described in our posts about the FCC’s Localism Notice of Proposed Rulemaking (here), and the new rules regarding Enhanced Disclosure requirements for television broadcasters (here), the Commission has already begun to act in a far more regulatory manner than any other Commission in the past 20 years. Yet the issues raised by the Democrats in this decision are in areas not yet considered by the Commission. Commissioner Copps expresses his concern about the role of private equity in broadcast ownership, and whether such ownership is in the public interest. In numerous proceedings and in response to the presentation made at the FCC’s January meeting by the Media Bureau, Copps has suggested that private equity should be investigated, both to determine whether the Commission is fully aware of all ownership ties of the companies involved, and also (as emphasized in this case) for the potential economic impact on the operations of the broadcast stations caused by the new debt involved in the acquisition. Here, Commissioner Copps questions whether the announcement of a potential downgrade of the bonds of the Company if these deals occur should have been of more concern to the Commission. Private equity should be aware that, in a future FCC, an investigation of the economics of their operations should be expected.

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Advertising Issues on Washington's Agenda for 2008

As 2007 wound to an end, advertising issues figured prominently on the agenda of Washington agencies, including both the FCC and the FTC.  While the FCC is looking at specific regulatory requirements governing broadcast advertising, the FTC is investigating the privacy issues raised by advertising conducted by on-line companies.  In November, the FTC held a two day set of workshops and panels where interested parties discussed issues of behavioral advertising - advertising that can be targeted to individuals based on their history of Internet use, and whether or not regulation of these practices was necessary.  The wide-ranging discussion is summarized on our firm's Privacy and Security Blog, here.  After gathering this testimony, we will see if the FTC decides to proceed to propose any regulations dealing with this sort of personalized, on-line advertising.

At the FCC, there are two separate proceedings dealing with advertising issues for broadcasters.  The first came about as part of the FCC's diversity initiatives adopted at its December meeting.  There, the Commission determined that broadcasters will need to certify in their renewal applications that they have not discriminated in their advertising practices.  While this proposal was adopted at the Commission's December 18 meeting, the full text of the decision has yet to be released, so we do not know the specifics of this new requirement.

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FCC Meeting Agenda for December 18 - Potentially One of the Most Important in Recent Memory - Multiple Ownership, Localism, Minority Ownership, Product Placement and Cable TV National Ownership Caps

The FCC has released its agenda for its December 18 meeting - and it promises to be one of the most important,and potentially most contentious, in recent memory.  On the agenda is the Commission's long awaited decision on the Chairman's broadcast multiple ownership plan relaxing broadcast-newspaper cross-ownership rules (see our summary here).  Also, the FCC will consider a Further Notice of Proposed Rulemaking on Localism issues (pending issues summarized here) following the conclusion of its nationwide hearings on the topic, as well as an Order and Further Notice of Proposed Rulemaking on initiatives to encourage broadcast ownership by minorities and other new entrants (summary here).  For cable companies, the Commission has scheduled a proposed order on national ownership limits.  And, in addition to all these issues on ownership matters, the FCC will also consider revising its sponsorship identification rules to determine if new rules need to be adopted to cover "embedded advertising", i.e. product placement in broadcast programs.  All told, these rules could result in fundamental changes in the media landscape.

The broadcast ownership items, dealing with broadcast-newspaper cross-ownership, localism and diversity initiatives, all grow out of the Commission's attempts to change the broadcast ownership rules in 2003.  That attempt was largely rejected by the Third Circuit Court of Appeals, which remanded most of the rules back to the FCC for further consideration, including considerations about their impact on minority ownership.  The localism proceeding was also an outgrowth of that proceeding, started as an attempt by the Commission to deal with consolidation critics who felt that the public had been shut out of the process of determining the rules in 2003, and claiming that big media was neglecting the needs and interests of local audiences.

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Will You Drink to That? - Advertising Liquor on Broadcast Stations

The New York Times recently published an article about NBC's owned and operated station in New York City acceptance of advertising for liquor.  While ads for beer and wine have been a staple on broadcast stations (though see our discussion of the limits on that advertising, here), ads for other alcoholic beverages ads have been less frequent.  Many broadcasters have for years believed that such ads were prohibited by the FCC or some other government agency.  In fact, alcohol ads have not been prohibited by law, but instead by voluntary actions of trade associations representing broadcasters and the alcoholic beverage industry .

Until the early 1980s, the National Association of Broadcasters had a voluntary code of conduct for broadcasters, suggesting good standards and practices for broadcasters: limiting some broadcast content while encouraging broadcasters to air other programming perceived to be in the public interest.  Among the conduct that the Code prohibited was the advertising of hard liquor. While the NAB Code was not mandatory for broadcasters, in filing many routine applications for new stations and for the acquisition of existing stations, the FCC in the past had requirements that the potential broadcasters explain how their programming would serve the public interest.  Most applicants would shorthand their compliance plans by simply promising to abide by the NAB code, in effect binding themselves to the code through those representations made to the FCC.  The Code was in place until the early 1980s, when the Department of Justice became concerned that code provisions suggesting maximum commercial loads and similar matters functioned as a restraint of trade in violation of the antitrust laws, and the NAB Code was abandoned.

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Britney and No Beer - Why Beer Companies Don't Advertise on Radio Stations With Young Demos

I had an interesting question this week - asking why beer companies won't advertise on radio stations with younger demographics.  Was it a law or just a marketing decision?  What I found is that it is a little of both.  While there are no laws specifically prohibiting the advertising of beer on radio stations with younger audiences, the Federal Trade Commission and Congress have been very concerned about all alcohol advertising, especially advertising that appears to encourage under-aged drinking. Thus, to avoid regulation, the Beer Institute has adopted voluntary standards that require its members to advertise only on radio stations which have an audience that is at least 70% comprised of those older than the legal drinking age. 

The FTC has periodically issued reports on advertising for alcoholic beverages, the last report having been issued in 2003.  Appendix D to that report contains the Beer Institute guidelines.  As set forth in those guidelines, the industry looks to audience demographics, by daypart, in deciding whether or not its members should buy time on a particular station.  If the Arbitron or similar ratings data shows 30% or more of a station's audience in a given daypart is under 21, then there will be no advertising in that daypart on the station.

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FCC Proposes Fines for Political Sponsorship ID Violations

The FCC has taken the unusual step of issuing a Notice of Apparent Liability, i.e. an announcement that it has fined a broadcaster, against two TV station owners for failing to provide a sponsorship identification for political material sponsored by another Federal agency--the Department of Education ("DOE").  The proposed fines for these two broadcasters totaled over $70,000.  In connection with the same broadcasts, the Commission also issued a citation against the producer of the programs for failing to include a disclosure of the sponsor of the programs, warning that company that it would be fined if it were to engage in such activity in the future, even though the entity was not an FCC licensee.  These actions demonstrate the concern of the Commission over programs that attempt to influence the public, particularly those dealing with controversial issues of public importance, where those who have paid to do the convincing are not evident to the public.

These cases all stem from programs associated with conservative political commentator Armstrong Williams, who was paid by DOE to promote the controversial No Child Left Behind Act ("NCLBA") supported by the current administration.  He did so on two television programs:  his own show, titled "The Right Side with Armstrong Williams" and on "America's Black Forum," where he appeared as a guest.  These shows were aired by various television stations without any sponsorship identification to indicate that Williams was paid by DOE to promote NCLBA on the air.

In one case, the television broadcaster received $100 per broadcast for airing Right Side, but failed to reveal that it had received any consideration.  The broadcaster claimed that the consideration received was "nominal," which is generally an exception to the sponsorship ID requirement.  However, the FCC noted that the exception for "nominal" consideration applies only to "service or property" and not to "money," holding that receipt of any money, even if only a small sum, triggers the requirement for sponsorship identification.

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One Sign That Broadcasters Are About to Become Political Footballs - Obama Suggests Shorter Broadcast License Terms and Less Consolidation

At last Thursday's Public Hearing on multiple ownership in Chicago, about which we wrote here, a statement was read by a spokesman for Presidential candidate Barack Obama.  According to press reports, the statement expressed the candidate's positions favoring shorter license renewal terms for broadcasters so that they would be subject to more public scrutiny, as well as criticizing the FCC for allowing broadcast consolidation.  These thoughts essentially echo the comments of FCC Commissioner Copps, especially on the subject of license renewal terms, whose views we wrote about here.  While many press reports have asked if this statement by Senator Obama foreshadows the broadcast ownership debate becoming part of the presidential campaign issues, we worry that it may signal a far broader attack on broadcasters during the upcoming political year.  The statement by Senator Obama is but one of a host of indications that broadcasters may face a rash of legislative issues that are now on the political drawing boards.

Broadcasters make easy targets for politicians as everyone is an expert on radio and television - after all, virtually everyone watches TV or listens to the radio and thus fancies themselves knowledgeable of what is good and bad for the public.  But those in Congress (and on the FCC) have the ability to do something about it.  And, with an election year upon us, they have the added incentive to act, given that any action is bound to generate at least some publicity and, for some, this may be their last opportunity to enact legislation that they feel important.  We've already written about the renewed emphasis, just last week, on passing legislation to overturn the Second Circuit's decision throwing out the FCC's fines on "fleeting expletives" and making the unanticipated use of one of those "dirty words" subject again to FCC indecency fines.  Clearly, no Congressman wants to be seen as being in favor of indecency (look at the rise in the indecency fines to $325,000 per occurrence which was voted through Congress just before the last election), and First Amendment issues are much more nuanced and difficult to explain to the voter, so watch this legislation.

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FCC To Explore Impact of Internet Ad Sales on Lowest Unit Rate

The FCC today issued a Public Notice soliciting comments on the impact of Internet ad sales on the lowest unit rate prescribed by the FCC's Political Advertising Rules.  The Commission's inquiry picks up on an issue we raised in a blog entry last year and responds to a recent Request for Declaratory Ruling filed by a group of state broadcasters associations seeking guidance on the effect that ad sales made via the Internet could have on the rates charged to political candidates.  With the advent of Internet sites, such as Google’s dMarc service, that take remnant advertising inventory from broadcasters and market that inventory on-line, it is possible that a station could sell left-over spot time at prices less than a local advertiser would pay for similar time on the same radio station.  The informal guidance given previously by the FCC's staff has been that if a commercial advertiser can buy a particular spot on a particular station using an on-line service, and that spot carries with it the same rights that a spot purchased directly from the station has (e.g. it runs in the same time period, has the same protections against pre-emption, it carries similar make-good rights), then the spot must be considered in the station’s lowest unit rate analysis for spots of the same class.

With a formal request for clarification now before it, the FCC seeks input to assist it in resolving the issue of whether such ad time sold via these Internet sales must be taken into consideration when determining the station's lowest unit rate for purposes of the political advertising rules.  Among other things, the Commission seeks information regarding the design and operation of these Internet ad sales services.  A copy of the Commission's Public Notice can be found here.  The proceeding has been assigned Docket  MB No. 07-137.  Comments are due by August 6, 2007, and Reply Comments are due by August 21, 2007, and can be filed with the Commission either electronically via ECFS, or on paper. 

Commission Responds to Congressional Inquiry on Children's Junk Food Ads

Three of the FCC Commissioners have responded to the Congressional inquiry about the Commission’s rules regarding junk food advertising about which we wrote here.  This inquiry was initiated by Congressman Ed Markey, Chairman of the House of Representatives Subcommittee on Telecommunications and the Internet. The Congressman's letter had urged the FCC to move quickly to implement rules limiting the advertising of unhealthy food aired during broadcasting directed to children.  The Commissioners' responses uniformly indicate the potential for regulation, depending in part on the outcome of the activities of the industry Task Force formed at the initiation of, and with the participation by, the FCC and Congress. See our reports on the formation of the Task Force, here.  The Commissioners all note that should the Task Force fail to conclude that the industry has achieved satisfactory results through self-regulation, FCC proceedings might be required to insure that children are not unduly exposed to junk food advertisements. 

Two commissioners, Chairman Martin and Commissioner Tate, responded jointly, and indicated that the FCC could explore regulation of unhealthy food, perhaps looking at guidelines adopted in other countries as a model for US regulation.  These Commissioners' statement even address the issue of regulating children's programming on cable television networks, where they claim that there is much exposure to ads for junk food.  These statements make clear that this is not just an issue for the broadcast industry.

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Congress Urges New Children's Television Regulation

In a letter to FCC Chairman Martin and Commissioners Copps and Tate, Congressman Edward Markey, head of the House of Representatives Subcommittee on Telecommunications and the Internet, has asked that the FCC take strong steps to restrict the advertising of unhealthy food in children's television programs.  While applauding voluntary efforts promised by some broadcasters to include in their children's programing more Public Service Announcements (PSAs) for healthy eating, Congressman Markey urged the FCC to do more by cutting in half to 6 minutes per hour the amount of permissible advertising in children's programming , and by finding that a station had not met its obligations to broadcast educational and informational programming directed to children if the station aired ads for unhealthy foods during a program which would otherwise qualify as a toward meeting the station's obligations.

The letter from Congressman Markey, while citing efforts in other countries to enforce similar regulations, does not address basic issues with each of his proposals.  First, if sponsorship of children's programming is cut in half, won't that also cut the incentive of broadcasters to air such programs?  Cutting sponsorship to the bone would seem to guarantee that broadcasters will do the absolute minimum amount of children's programming required, so that they can air programs where there are no advertising restrictions.

These requirements would also seem to make broadcasters into the food police.  Broadcasters will have to educate themselves as to the nutritional qualities of various food products to make sure that nothing impermissible gets on the air.  And where will lines be drawn?  Could a station safely advertise a fast food store if the ads featured only the salads sold by the store - even where that store might also sell not so healthy alternatives?  If definitions are drawn by numerical limits on contents such as sugar, salt and fat (as suggested by the letter), will these limits necessarily lead to advertising the most healthy foods?  Will broadcasters be forced to substitute for parents in making decisions about what their children will eat?

 

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No Jail for Wii Contest Death - But Civil Liability Still Possible

The Sacramento radio contest gone wrong, which led to the death of a contestant, will apparently not lead to any criminal liability for the station or its employees, according to press reports including one in the San Francisco Chronicle, here.  However, as the standards for a criminal prosecution are higher than those for a finding of civil liability, this may not be the last that we hear about this contest.  A complaint is also pending before the FCC about the matter.

We wrote about some of the problems that can arise with contests, here.  Stations should be careful planning and executing any contest.  A company planning a contest should research state law, to be sure that everything is being done is in compliance with all local requirements, and any necessary registrations are filed or local permits obtained.  The rules of the contest must be spelled out, anticipating every eventuality to the extent possible, carefully followed, and publicized (including the requirement for FCC licensees that the principal rules be broadcast on air - see our post here).  And, of course, try to anticipate the participants' possible actions while trying to participate, and avoid situations where the contest could create any dangerous situations.  In this day and age, there is much to consider in planning a simple contest in a manner that avoids potential liability.

FCC Fines Broadcaster for Not Disclosing Contest Rules

The Commission recently issued an Order fining a Kansas broadcaster $4000 in connection with a station contest - "Guess What is in the Santa Sack."  The licensee was faulted for not giving away the prize to someone who correctly guessed what was in the sack, and for also for not broadcasting the rules of the content on the air.  Obviously, a broadcaster must comply with its contest rules and give away a prize as promised.  In fact, as the winner had to complain to the FCC in order to get her prize, broadcasters should know that, when a listener complains, they should investigate immediately, give away the prize if warranted, and avoid the FCC fine that might result if the listener does not get satisfaction and has to ask for the FCC's involvement.  This case also reminds broadcasters that the material terms of any contest must be announced on the air on a periodic basis.

According to the FCC rules, "material terms" include those factors which define the operation of the contest and which how a listener can participate in the contest. Although the material terms may vary  depending upon the exact nature of the contest, they will generally include: how to enter or participate; eligibility restrictions; entry deadline dates; whether prizes can be won; when prizes can be won; the extent, nature and value of prizes; the basis for valuation of prizes; time and means of selection of winners; and/or tie-breaking procedures.   The broadcaster can make a good faith judgment as to how often the terms need to be broadcast .  They do not need to be broadcast every time the contest is mentioned, but should be aired often enough so that listeners can become familiar with the rules.  The complete rules should also be readily available to listeners.  We suggest that they be on the station's website, and hard copies should also be available at the main studio and at the business locations of any principal sponsors where contest entries can be made.  As we've written before, this is the year of the contest gone wrong, so broadcasters must be vigilant to avoid legal problems. 

Violence and Viagra - More Content Regulation on the Way?

Two interesting stories in major national newspapers highlight the attention that the content of broadcast programming is receiving from regulators - both at the FCC and in Congress.  One story, in the Washington Post, reveals a draft FCC report suggesting that the FCC could regulate violent programming in the same way that it regulates indecent programming, if Congress gives the FCC statutory authority to do so.  In another story, appearing in the Wall Street Journal, critics suggest restrictions on when ads for Viagra and other similar medications could be run on television.  That story also mentions pending legislation to restrict all consumer-directed advertising dealing with prescription drugs

Obviously, these proposals for regulation would strike hard at broadcasters - particularly television broadcasters.  Pharmaceutical advertising has become big business for TV companies.  Sure, we've probably all felt uncomfortable at times when a Viagra ad runs in a program we are watching with family members.  But should the government pass laws restricting the the advertising of legal products?  Should we shield viewers from information about these products?  In other contexts, the Supreme Court has struck down restrictions on liquor and legal gambling ads.  How would restrictions on legal drugs fair?

And we all know how well the FCC has done in setting out the limits on indecent programming.  Where would lines be drawn on violent programming?  How does one even define violent programming?  For instance, many of the most popular programs on television are medical programs (e.g. Grey's Anatomy, ER, House).   All feature very detailed and sometimes disturbing visuals of medical procedures - though rarely are there detailed depictions of what most people would characterize as "violent" actions - shootings, stabbings, etc.  Would these medical shows fall under any restrictions?  And how would rules deal with broadcasts such as "Saving Private Ryan," which has already received a dispensation from the FCC for its indecent content which, in other programs, would have resulted in FCC fines.  Would its violent content also receive such a pass?

 

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The RAB Convention - Not Your Father's Radio Sales Convention

I've just returned from this year's Radio Advertising Bureau convention in Dallas.  In reflecting on the convention, and in discussing it with many who were in attendance, the consensus was that this was not your Father's RAB convention.  I was surprised by how little discussion there was of traditional radio at the conference.  The sessions weren't the typical ones about how to make the most money from selling your cluster of radio stations in combination, or how to compete against the newspaper or the Yellow Pages, or how to get the most out of your sales staff.  Instead, virtually every session talked about leveraging your digital assets.  There were discussions of using your website, streaming, podcasts, text messaging, and  audio on cell phones to increase the financial performance of broadcast stations.  There were discussions of HD Radio and some of the opportunities that service might offer if and when it starts getting consumer acceptance.  All in all, it seemed as if radio (or at least those planning the convention sessions) had received the message that the industry needs to take advantage of its ability to drive traffic to new technologies, and drive that traffic to new media sources that stations themselves create. 

In the past, there seemed to be a fear about discussing these new technologies.  It was almost as if the technologies weren't discussed, they'd go away.  But at the RAB, and at many of the conventions of the state broadcast associations that I have attended over the last year, broadcasters seemed to have decided that they need to embrace the new media.  While the old fear had been that these new media sources would cannibalize the current broadcast audience, everyone seems to now recognize that the audience is going to use these technologies no matter what - so the broadcaster might as well be the one cannibalizing its own audience.

While legal and regulatory issues do not tend to be the primary topic of discussion at the RAB Conference, as in almost any broadcast discussion, they do come up.  Here too, the discussion was digital.  For instance, in the speech by NAB President David Rehr outlining the priorities of the NAB for the year, only the effort to authorize FM translators for AM stations (which we wrote about here), was not a "digital" topic.  The other issues discussed by Mr. Rehr included pushing the FCC for final rules for digital radio, monitoring the actions of satellite radio companies XM and Sirius, and finally, the issues that arise out of the Perform Act.  The Perform Act is a copyright bill introduced in the Senate last month that would affect digital royalties for music used on the Internet, place restrictions on services promoting the promotion and sale by digital music providers of devices that disaggregate songs contained in a digital stream, and require copy protection technologies to be employed by digital music providers.  Hardly the exciting stuff that makes for an applause line in a convention speech.  While we will write more about the Perform Act in a separate posting, the major concern for broadcasters is that the sponsor, California Senator Diane Feinstein, suggested in her remarks that the performance royalty on sound recordings which now applies to satellite radio and webcasting (which we have written about many times including here), should also apply to broadcast radio.  And that is a big enough issue - one that could hit broadcasters directly in the pocketbook - that it demands the industry's attention in every forum. 

The Year of the Contest Gone Wrong

When was there ever a year where there was more controversy about contests and promotions?  This week, the stories were everywhere about how Boston was shut down by the promotion for a program on the Cartoon Network.  While all the facts are not in on that case, had this been conducted by a broadcaster, the FCC might well be investigating to determine if the promotion violates the Commission's hoax policies, which prohibit the airing of hoaxes that endanger the public by tying up emergency responders.

The FCC already seems to be investigating the contest gone wrong in Sacramento.  According to trade press reports, FCC Chairman Martin asked the Enforcement Branch of the FCC to review the contest that resulted in the death of a participant.  While the FCC may investigate any matter, what is it that they are looking for in connection with the Sacramento contest?  Certainly, the contest  was a tragic event.  And there is the possibility of civil liability from the lawsuit that was filed last week.  But not every action by a broadcaster can or should be the subject of FCC action.  The FCC has never become involved in libel or slander cases, leaving them to the jurisdiction of the civil courts.  Nor has the FCC become involved in cases of personal or property damage from accidents or injuries caused by broadcast vehicles or other equipment.  Again - those matters are left to the Courts.

 

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Task Force on Media and Childhood Obesity Formed

In a Public Notice issued today, the FCC announced the membership of a Task Force to study how the Media affects childhood obesity.  We reported on the formation of the task force in October, but its membership is just being announced, and its first meeting will be taking place on Valentines Day (probably without red hearts filled with chocolates for the members).  The task force is comprised of representatives of various public interest groups, food and media industry representatives, two FCC Commissioners and Senators Brownback and Harkin.  The Public Notice states that the Task Force will focus on voluntary means by which the media can help fight childhood obesity.  At the end of their study, the Task Force will issue a report on its findings.

This issue is one which the broadcaster should follow closely.  Senator Brownback has made this issue his own and, with his announcement this week that he is exploring a run for President, we can be sure that more will be heard about this issue.  We reported in August on his initial attempts to have the industry adopt guidelines to limit the advertising to children of unhealthy foods.  Also, Commissioner Tate has enthusiastically promoted this task force, issuing a statement today applauding the start of its important business of addressing this societal problem.  With these officials invested in this issue, broadcasters will no doubt face pressures to restrict their advertising of unhealthy food.  Watch for the results and recommendations of this Task Force in the next year.

What's Up in Washington for 2007?

About this time every year, predictions are offered as to what will happen in the coming year.  Since everyone else does it, we've offered our own predictions as to what Washington has in store for the broadcast industry in 2007.  Find a copy of our predictions in the memo on our firm website, here.  The advisory offers our thoughts on many of the regulatory issues affecting broadcasters that may well come out of Washington this year.  Our observations are offered on the status of considerations including multiple ownership, the digital television transition, payola, indecency, Internet radio and even the political broadcasting rules. 

Let us know if you think our crystal ball is a little cloudy.

Obesity Task Force Announced

Recently, we wrote about reports that the FCC would be creating an Obesity Task Force.  On September 27, Senator Brownback, FCC Chairman Martin, and FCC Commissioner Tate announced the formation of that task force.  The task force will examine the impact of the media and advertising on children's health.  The press release stated:

“Given the saturation of media in our children’s lives, we need to understand how media impacts their health and behavior,” said Brownback. “I’m pleased that representatives from the public and private sector are coming together to address the rising rate of childhood obesity and its relationship to media and advertising. I hope this task force helps government, parents, and the business community define how to address childhood obesity.”

The full press release can be found here.  This will be a process that broadcasters should carefully monitor

Revised Children's Television Obligations Are on the Way

At the Open Meeting on September 26, the Commissioners unanimously adopted a Second Order on Reconsideration and Second Report and Order resolving several issues regarding the children's television programming obligations for television broadcasters.  Specifically, the Order modifies the children's rules to clarify the FCC's rules regarding host-selling, the definition of commercial matter and the display of website addresses during children's programming, .  The Order also eliminates the cap on the number of preemptions that are permitted for a qualifying core program, and clarifies the limits on the repeat of core programs on multi-cast DTV channels.  The Order is a result of a Joint Proposal of Industry and Advocates that sought reconsideration and clarification of the Commission's 2004 Children's Television Order.  A copy of the Joint Proposal is available on the FCC's website here.  The Commission's News Release provides some details regarding the forthcoming Order, and we will post the full details of the modified rules once the text of the Order is released. 

FCC to Form Obesity Task Force

On August 18, we reported on meetings held between Senator Brownback of Kansas and representatives of the advertising community dealing with the subject of the advertising of "unhealthy foods."  It looks like those meetings have led to action as, according to a Hollywood Reporter story today, the FCC will be forming an obesity task force to look at such advertising.

FCC task forces often do nothing more than study an issue, but sometimes they develop  recommendations that lead to regulatory actions.  No matter where this task force ends up, broadcasters need to stay involved in the process to make sure that it does not lead to ill-defined rules that are difficult or impossible to comply with.  Can you imagine having to weigh the fat content or caloric impact of all foods that are being advertised on your station?  Might you have to channel McDonald's chicken McNuggets ads to some late-night safe harbor, while the ads for salads would be permissible at any time of day?  The permutations that are possible are both innumerable and a little frightening.  This is a proceeding that bears careful monitoring by the broadcaster.

Another On-Line Gambling Site Targeted

Another executive of an on-line betting site was arrested late last week when changing planes in the United States.  According to a New York Times story, the executive of SportingBet was detained based on a warrant issued by Louisiana state authorities. 

As we wrote on July 18 and August 12, the arrest of an officer of BetOnSports.com caused the website to cease its operations in the United States.  This new arrest, based on the actions of state authorities, rather than Federal officials, may signal a new offensive against such sites.  In the past, we have found that many state authorities have been the first to approach broadcasters with threats of legal actions over advertisements for gambling websites.  This action may indicate that authorities will also be going after the sites themselves.

We warned in an August advisory that broadcasters needed to exercise great care in accepting advertising in any way related to on-line gaming.  Even the "dot net" sites, which don't take money for bets, but are for "educational purposes" or for fun using free points instead of money for betting, need to be approached with suspicion.  Check out the advisory for cautions on how to approach this increasingly hot topic.

Restrictions on Advertising Unhealthy Foods?

In the early 1990s, calls were heard in the halls of Congress, among public interest groups and in the press about the harmful effects of advertising on children. Within a few years, we saw legislation and FCC actions limiting the amount of advertising aimed at children, and effectively prohibiting the hosts of children’s programs from promoting goods or services during their programs. We may now be seeing a similar wave building with respect to the advertising “unhealthy” foods - particularly as that advertising affects children.

A recent Broadcasting and Cable article referred to discussions held between advertising organizations and Senator Brownback of Kansas, seeking to encourage industry self-regulation on the advertising and promotion to children of unhealthy foods.   After the discussion, the Senator reportedly agreed to refrain from pursuing any Congressional action at this time, while industry efforts to develop voluntary guidelines proceeded. However, the concern was clearly expressed that, should industry actions not be forthcoming, legislative action may follow.

These efforts to regulate the advertising of unhealthy foods have been arising not only at the Federal level, but also in state legislatures around the country.   Several state broadcast associations have faced proposals in their legislatures to enact restrictions on the advertising of unhealthy foods. So far, most of these efforts have not resulted in actual regulation, at least in part because of the difficulty of defining what foods would be covered by any rules that may be adopted. 

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BetOnSports Terminates US Operations

On July 18, we wrote about the arrest of the CEO of BetOnSports, the Internet gambling site, and the indictment of individuals involved with the Company, including representatives of its advertising agencies.  Yesterday, the New York Times reported that BetOnSports has stopped taking bets from people in the United States in compliance with the US Court Order banning all such activities.  The Times story is here.

Even though BetOnSports has ceased US operations, there are other Internet gambling sites that continue to operate, continue to solicit US citizens to place wagers, and continue to seek to entice broadcasters to run their advertising.  We warned our clients of the risks posed by taking such advertising in our bulletin on the subject.  As we stated in the bulletin, not only is the Federal government active in enforcing restrictions against such sites, but state governments have enforced their own bans.  Given the capitulation of the one of the biggest and best financed of the Internet gambling sites to the US Court order, broadcasters should not be promoting the sites directly, and must very carefully consider the risks of taking any advertising which even indirectly solicits US citizens to patronize these on-line gaming sites.

Danger Signs for On-Line Betting

Yesterday, according to press reports, Federal agents arrested the CEO of BetOnSports.com, an on-line sports gambling site.  The reports state that others involved with this website were indicted, and those involved in companies which were in charge of promotion of this site were also arrested.  Indications are that this may just be the beginning of a Federal crackdown on Internet gambling.

Broadcasters are well aware of Internet gaming sites, as many of these sites have tried to entice radio and television stations to run advertising to promote the sites.  Most stations have wisely stayed away from any promotion of actual gaming sites.  However, the promotion of the so-called "dot-net" sites, i.e. sites with URLs identical to the gaming site, but ending in ".net" instead of ".com."  The dot-net sites have claimed to broadcasters that they are legal because they do not accept bets, instead featuring instructions on how to play various games and allowing people to play the game with free credits assigned by the site.

We have always warned broadcasters to be wary of such advertising.  If the broadcaster decides to accept the "dot net" ads, it should do so only after being very careful to be absolutely sure that these sites do not promote gambling - that they are free of links to the associated gambling site and other promotion for those sites.  With the government arresting people for promoting gambling sites, extra caution about this advertising is warranted.