Discussion of FCC, copyright, advertising and other legal issues of importance to radio and television broadcasters and other media companies
Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.
Last week, the Federal Election Commission (FEC) adopted new disclaimer requirements for internet-based political advertising, including the identification of the ad sponsor. This decision resolves many of the issues that have been debated at the FEC for over a decade as to what internet content is considered a “public communication” that requires a disclosure of the sponsor of the content – and just what the disclosure should reveal. We wrote about a 2018 rulemaking soliciting comment on these issues that was just part of the process that led to the vote taken last week. While the FEC had generally acknowledged that online political ads should have some sponsorship identification, it is only now that the FEC has adopted detailed requirements for this identification. As discussed below, the proceeding requires disclosures when a sponsor pays an online platform to transmit the political message. However, the FEC postponed for another day consideration as to whether the disclaimers would be required when the sponsor pays others to promote or widely disseminate the message to platforms that are not paid (e.g., where people are paid by a sponsor to post political messages on social media sites). These rule changes will impact most media companies with websites and mobile apps, as well as the nationwide streaming services now developing ad supported platforms.
Specifically, the FEC adopted a proposal that would amend its rules to require a disclaimer on those “communications placed for a fee on another person’s website, digital device, application, or advertising platform.” The FEC also issued a Supplemental Notice of Proposed Rulemaking seeking public comment as to whether disclaimers should be required for political communications where the platform itself may not have been paid, but where the sponsor of the communication paid others to promote or otherwise broaden the dissemination of the communication.
Continue Reading Federal Election Commission Adopts New Rules for Sponsorship Disclaimers for Online Political Advertising – And to Consider Rules for Political Marketing Through Social Media Influencers
Here are some of the regulatory and legal actions and developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.
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Almost every broadcaster and other media company uses digital and social media to reach their audiences with content and information that can be presented in ways different than those provided by their traditional platforms. Whether it is simply maintaining a website or streaming audio or video or maintaining a social media presence to reach and…
Last week, FCC Commissioner Michael O’Rielly was in the news for sending a letter to the major record labels asking for information about their practices in paying broadcast stations for airing the label’s music. The letter follows correspondence last year between the Commissioner and the RIAA (the Recording Industry’s trade group) asking for similar information, which the RIAA claimed that it did not have. This process began after a Rolling Stone magazine article suggested that “payola” was still a common practice in the broadcast industry. These actions, and the press reports that followed, raise a couple of interesting questions including what the FCC rules are on payola, and how broadcast practices compare to those of online companies.
The Communications Act prohibits the practice of “payola” by requiring, in Section 317, that when any content is aired on a station in exchange for anything of value, the station must disclose that “consideration” has been paid by the person or entity that pays for the consideration. Thus, “payola” arises when a broadcast station employee or contractor receives or is promised anything of value in return for putting any content on the air, and that payment is not disclosed to the public. Payola usually occurs when someone makes a gift or payment to a person involved in station programming (i.e., station employees, program producers, program suppliers) in exchange for favorable on-air exposure of a product or service. While the term “payola” is most often associated with the receipt by a station announcer or music director of money, trips or other value for playing songs on the station, the same prohibition applies whenever any station programming personnel receive anything of value in exchange for airing any content where a sponsorship identification is not broadcast. For examples of fines for airing programming for which consideration was received without acknowledging the receipt of valuable consideration, outside the context of music, see our articles here, here and here.
Continue Reading FCC Commissioner Asks Record Labels for Information About Payola Practices – What are the FCC Rules? How Do These Practices Compare to Online Music Providers?
In recent weeks, we’ve written about a number of legal issues that need to be considered in connection with podcasting – getting releases from guests, making sure that ownership of the podcast is clear, and considering music royalties. Another issue that I discussed in my presentation on legal issues for broadcasters entering…
Last week, it was announced that Google through its DoubleClick platform, would be offering programmatic buying opportunities for advertisers looking to place audio ads into online streams. While that system is initially being rolled out among the big digital audio services, if it or other similar platforms are expanded more broadly, it could bring more advertising into internet radio, podcasting and other digital audio program channels. But, being the spoilsports that we tend to be as lawyers, we wanted to pass on some issues to consider in accepting programmatic buys – whether in online streams or in over-the-air broadcasts. The immediacy of the audience’s perception of an audio insertion into a program stream can bring unintended results – some of which may have legal consequences.
We have already written about the issues for some of the programmatic buying platforms that are inserting ads into broadcast radio and television programming. As we wrote here and here, these ads can potentially impact a broadcaster’s legal compliance – particularly in the area of political broadcasting, where these ads could affect a station’s lowest unit rate, as well as reasonable access, equal opportunities and even political file disclosure obligations. While none of these FCC issues apply directly to online ads, as we wrote here, there are potential rules on political advertising that may soon be applied to online ads, either through actions by the Federal government or by the enactment of rules to implement a recently passed New York State law that compels disclosures for online political ads similar to those required by the FCC for broadcast ads. There are other considerations as well.
Continue Reading Google Announces Programmatic Buys of Audio Ads – Looking at Legal Issues with Programmatic Sales
With high profile primaries in numerous states and similar elections last week, and more coming over the next few months in preparation for the November election, broadcasters are dealing with the legal issues that arise with on-air advertising that either promotes or attacks candidates and which addresses other important matters that will be decided in the election – including ballot issues in a number of states. While we have addressed many of the legal questions that arise with on-air political advertising in other posts on this blog and elsewhere (see, for instance, our Political Broadcasting Guide here and these slides from my recent presentation on the FCC political advertising rules for the Washington State Association of Broadcasters), we thought that it was worth discussing some of the efforts that are underway to bring FCC-like regulation to the world of online political advertising.
Thus far, the FCC has tended to stay out of the online political broadcasting world. As we wrote a decade ago, other than having to give some consideration to the value of online advertising thrown into a package with over-the-air ads, the FCC avoids regulation of ad sales on websites and advertising delivered solely through other digital media platforms. So a broadcaster who sells stand-alone online ads to political candidates or issue advertisers need not worry about questions of lowest unit rates, reasonable access, or the political file.
Continue Reading Moving Broadcast Political Advertising Rules to the Online World – NY State Adopts a New Law While Congress Considers Online Political Advertising Disclosures, and the FEC Considers Enhanced Online Sponsorship Identification
Broadcasters and advertisers should take note of the more than 90 warning letters that the FTC sent out this week as a reminder of the need to disclose material sponsorship connections in social media promotions and endorsements. The FTC has since 2009 announced a policy that any online content for which anything of value has been received must disclose that consideration – even social media posts (see our article here about that policy). This is in the nature of the FCC’s sponsorship identification rules for broadcast content. That same policy statement addressed the need for those making personal endorsements to make these sponsorship disclosures. The recent warning letters are notable not only for their sheer number, but also because the warning letters were addressed to marketers and social media “influencers” – the individuals whose social media followings make their endorsements valuable. To date, the FTC has only named marketers (Warner Brothers Home Entertainment and Lord & Taylor) in its social media endorsement cases. Although the FTC did not say who received warning letters, its press release noted that the letters were “informed by petitions filed by Public Citizen and affiliated organizations” in September 2016.
By directing warning letters to marketers and influencers, the FTC is sending a firm reminder that both sides of a sponsorship arrangement need to disclose their connection, “unless the connection is already clear from the context of the communication containing the endorsement.” Specifically, the FTC advises influencers that they must “clearly and conspicuously” disclose any material connection with a marketer; and marketers, in turn, should ensure that the influencers they sponsor disclose their material connections.
Continue Reading FTC Puts “Influencers” on Notice: Disclose Marketing Relationships in Social Media Posts
It’s the holiday season, and many of us are turning our thoughts to celebrating with friends and family. It is also high season for shopping, which means the airwaves, social media, websites and print pages are full of opportunities to buy, sell, and advertise. Whether you consider that to be a feature or a bug,…
