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.

  • Payola on broadcast stations suddenly was in the news this past week.  Early in the week, Senator Marsha Blackburn (R-TN) sent Chairman Carr a letter requesting that the FCC ban radio stations from asking musicians to play “free radio shows” (including “listener appreciation shows” or “charitable concert events”) in exchange for more airplay on stations or by threatening them with less airtime if they don’t participate.  Blackburn claimed that this practice constitutes payola (payment for airtime without disclosing to the audience that the broadcast was sponsored) in violation of federal law and the FCC’s sponsorship identification rules.  Carr responded by asking the FCC’s Enforcement Bureau to examine the issue, which resulted in the Bureau quickly releasing an Enforcement Advisory warning stations and their employees that they can be fined up to $10,000, imprisoned for up to one year, or both, for compelling or accepting unreported free or reduced fee performances by musicians in exchange for more favorable airplay.  The Advisory also talked about other actions that stations should be taking to ensure that they do not face payola issues.  Stations may also be subject to FCC fines for payola violations.  Look for more on these actions on our Broadcast Law Blog early this coming week.
  • The U.S. Court of Appeals for the Fifth Circuit heard oral argument on the legal challenge to the FCC’s reinstatement of the FCC Form 395-B (a recording of the oral argument can be found here).  In February 2024, the FCC reinstated the Form 395-B, which requires that broadcasters yearly prepare a report for a station’s online public file classifying all of its employees by race, gender, and employment position (see our article here about that decision).  The decision is being challenged by several broadcasters who argue that requirement to prepare and file the form is unconstitutional for reasons including that it unlawfully pressures broadcasters to engage in race- and sex-conscious employment practices (see our discussion here and here).  At the argument, the FCC conceded (as did the DOJ the week before in a letter we noted in our last weekly update) that the inclusion in the form of a “non-binary” gender category could no longer be defended based on President Trump’s Executive Order that the federal government will recognize only two genders.  Questions were also raised at oral argument as to whether the FCC would reverse the remaining requirements imposed by the Form 395-B’s reinstatement following President Trump’s Executive Order suspending federal DEI initiatives, but the FCC nevertheless defended the FCC’s reinstatement of the form (other than the nonbinary provision).  After oral argument, the FCC filed a letter with the Court stating that the agency could not reverse the form’s reinstatement because the current FCC Commissioners were deadlocked on the issue. It is now up to the Court to decide whether the data collection requirements should be upheld (though it is also possible that, between now and when the Court rules, the reinstatement could be revisited by the FCC by ruling on pending petitions for reconsideration when a new FCC Commissioner is seated). 
  • The U.S. Copyright Office initiated a Notice of Inquiry requesting public comment on issues related to the performing rights organizations (PROs).  The Copyright Office notes that performance rights in musical compositions have for over 80 years been licensed by three PROs – ASCAP, BMI, and SESAC.  Yet, since 2013, three new PROs have begun (GMR, PRO Music, and AllTrack), and Congress has received complaints that businesses using music have been confused by demands for royalty payments from these new organizations, accompanied by threats of lawsuits if royalties are not paid.  The Copyright Office also noted the impact of “fractional licensing,” where multiple composers represented by different PROs collaborate to write a song, giving each a fractional interest in that song –requiring a music user to have rights from all of the PROs having any interest in the song in order to perform it.  The Copyright Office asked for comment on a number of issues including whether the proliferation of PROs has increased the financial and administrative costs of music users, and whether the increased number of PROs has affected the distribution of the royalties to songwriters and copyright holders. The results of the inquiry will be compiled into a report to Congress on whether any legislative action is necessary. 
  • The FCC released a draft of a Notice of Proposed Rulemaking proposing a review of the rules adopted to implement the Commercial Advertisement Loudness Mitigation Act of 2010 (CALM Act), which was intended to protect viewers from excessively loud TV commercials.  This draft will be considered at the FCC’s next regular monthly open meeting on February 27.  If the NPRM is adopted, based on thousands of viewer complaints received about the continuing loudness of TV commercials, the FCC will be seeking comment on whether the FCC should update or change its CALM Act regulations – including whether to extend the rules to cover commercials on streaming services and other online platforms. 
  • The FCC announced a public comment period on the reinstated Center for American Rights’ complaint against a CBS-owned TV station alleging news distortion in its broadcast of a “60 Minutes” interview with former Vice President Harris.  Comments and reply comments on the complaint are due March 7 and March 24, respectively.  CAR’s complaint was dismissed as one of the FCC’s last major actions under former FCC Chairwoman Rosenworcel, but was reinstated one week later under FCC Chairman Carr (see our notes of these action here and here).  In response to the FCC’s request, this week CBS provided the FCC with an unedited transcript and video of the 60 Minutes interview, which both CBS and the FCC made public.  The FCC also released additional video of the interview that was posted on YouTube.  The FCC stated that it wanted to open the proceeding to public participation given the value of transparency and the degree of public interest in the matter.  FCC Commissioner Gomez objected, stating that the FCC should end its investigation because interview’s transcript and video did not demonstrate any FCC rule violation, that further inquiry risked politicizing the FCC’s processes, and that the public statements about the process undermined trust in the Commission’s impartiality (see her statement here).  President Trump, on the other hand, demanded that CBS be stripped of its broadcast licenses due to the 60 Minutes broadcast, suggesting that it was “the biggest Broadcasting SCANDAL in History” (caps in the original Truth Social post). 
  • Chairman Carr released a statement supporting the Senate Commerce, Science, and Transportation Committee’s passage of the AM for Every Vehicle Act.  Carr stated that ensuring that AM radios remain in new vehicles, the bill will “help keep this linchpin of our emergency response system in place and also ensure that Americans can continue to access relevant news, information, and entertainment programming.”  As we discussed this week on our Blog, the bill requires that automobile manufacturers keep AM radio on the car dashboard.  This bill has much the same language as the version introduced in Congress last year – which was never passed despite broad bipartisan support.  Following this week’s committee approval, the bill now proceeds to the full Senate for a vote.  This week, Congressmen Bilirakis (R-FL) and Pallone (D-NJ) also reintroduced the bill in the House of Representatives.
  • Congresswoman Majorie Taylor Greene (R-GA), Chairwoman of the House Subcommittee on Delivering on Government Efficiency (DOGE), sent letters to NPR and PBS requesting that their CEOs testify next month before the subcommittee regarding whether Congress should stop funding the networks due to alleged political bias in their programming.  In scheduling the hearing, Greene pointed to investigatory topics including claims that NPR decided not to report on the Hunter Biden laptop story, allegations of systemic liberal bias at the network, and PBS’ reporting last month implying that Elon Musk gave a fascist salute at President Trump’s inaugural celebrations.  Greene stated her view that NPR and PBS political bias undermines public trust, and the networks’ reporting should serve the entire public since they receive federal funding.
  • The FCC’s Media Bureau entered into a Consent Decree with a San Francisco, California noncommercial TV station after finding that the station filed its license renewal application late, uploaded Quarterly/Issues Programs Lists to its Online Public Inspection File late, and incorrectly certified in its renewal application that it timely complied with its OPIF obligations.  The Consent Decree requires that the station pay a $25,000 penalty and enter into a compliance plan to ensure that future FCC rule violations do not occur. 
  • The Media Bureau and Office of Managing Director issued an Order to Pay or to Show Cause against two FM stations located in Yoakum and Halletsville, Texas proposing to revoke the stations’ licenses unless, within 60 days, the stations pay their delinquent regulatory fees and interest, administrative costs, and penalties, or show that the debts are not owed or should be waived or deferred.  The Yoakum station has an unpaid regulatory fee debt totaling $8,774.02 for fiscal years 2017, 2018, 2019, 2020, 2021, 2022, and 2024.  The Hallettsville station has an unpaid regulatory fee debt totaling $7,912.83 for fiscal years 2017, 2018, 2019, 2021, 2022, and 2024.
  • The Media Bureau released a Public Notice identifying two mutually exclusive applications (applications that cannot all be granted consistent with the FCC’s technical rules) filed in the December 2024 NCE TV filing window.  Unopposed applications were filed for eight other channels available in that window.  The two mutually exclusive applicants have until March 24, 2025 to settle their mutual exclusivity via a technical resolution or settlement agreement. 
  • The Media Bureau took three other actions on pending LPFM and NCE construction permit applications:
    • The Bureau affirmed its grant of an Indiana NCE FM construction permit application over an objection filed by a mutually exclusive applicant alleging that, in the points system analysis used to decide among mutually exclusive applications for new NCE FM stations, the FCC incorrectly denied it diversity of ownership points (a credit awarded when an applicant has interests in no other stations in the proposed station’s service area).  The Bureau found that the objector could not claim the diversity credit (and thus could not be the mutually exclusive application group’s tentative selectee) because it did not provide supporting documents required to support the claim for a preference, and because it had incorrectly certified that no party to its application had any attributable interests in any other broadcast station (when one did).  
    • The Bureau dismissed an Ohio LPFM construction permit application for applicant’s failure to obtain reasonable assurance of the availability of the site specified in the application, a defect not curable by amendment under the procedures governing the processing of applications in the LPFM window.  Due to the application’s dismissal, the Bureau granted its mutually exclusive application.
    • The Bureau also reversed its dismissal of a Texas LPFM construction permit application for failing to comply with the LPFM minimum distance separation requirements for protecting co-channel FM translators.  The Bureau rejected the applicant’s argument that it should accept its alternative spacing methodology, but it gave the applicant 30 days to amend its application to use the methodology prescribed by staff informal guidance. 

On our Broadcast Law Blog, we discussed the National Music Publishers Association’s announcement that it had sent Spotify a take-down notice asking Spotify to remove “thousands of unlicensed uses of NMPA members’ works” from Spotify-hosted podcasts, and how that action highlights the perils of music use in podcasts and reinforces the need for easy, reasonable music licensing.  We also discussed last week’s reintroduction in Congress of the American Music Fairness Act, which proposes requiring broadcasters to pay performing artists and copyright holders (usually their record companies) royalties for over-the-air broadcasting of sound recordings (in addition to the royalties paid to the PROs for the performance of musical compositions). 

For years, we have warned about the need to license music in podcasts – and how such licenses need to be obtained directly from copyright holders.  We’ve noted demand notices sent to podcasters causing those podcasters to pull their programs from various distribution platforms (see, for instance, our articles here and here).  We warned that, as podcasts are on-demand performances and are permanently “fixed” with other audio, the public performance rights given by the licenses that broadcasters and some other services obtain from ASCAP, BMI, SESAC, GMR, and even SoundExchange, are insufficient to cover broad uses of music in podcasts (see, for example, our articles here and here).  A Press Release yesterday from NMPA (the National Music Publishers Association that represents publishing companies that generally hold the copyrights in musical works – the musical compositions that provide the word and music in a song) announces that the organization has sent a take-down notice to Spotify asking it to remove from podcasts hosted by Spotify “thousands of unlicensed uses of NMPA members’ works.”  The Press Release indicates that over 2,500 notices have been sent, and that more are on the way.

This action should reinforce our concerns about the use of unlicensed music in podcasts.  But, contrary to the suggestion that the NMPA letter makes that licensing “is not hard to do,” for many podcasters, it is in fact hard.  There is no central organization, like the PROs or SoundExchange, that provides blanket licenses that cover all music uses in podcasts.  A podcaster who wants to use a popular song in a podcast has to find the copyright holder (or, more frequently, the copyright holders) to both the sound recording (the artist who recorded the music or their copyright holder, often the record company) and to the musical work (the composer or composers and lyricists or their publishing companies, which normally hold the copyrights) and get their permission to include the song in the podcast – most often at a price.  This often involves significant research to find the proper rightsholders. 

Continue Reading NMPA Calls for Takedowns of Spotify Podcasts Using Unlicensed Music – A Reminder to Podcasters of the Perils of Music in Their Productions

Last week, U.S. Senators Marsha Blackburn (R-Tenn.), Alex Padilla (D-Calif.), Thom Tillis (R-N.C.), and Cory Booker (D-N.J.) introduced the American Music Fairness Act (see their Press Release for more details), with a companion bill to follow in the House.  If adopted, this legislation would impose a new music royalty on over-the-air radio stations.  The royalty would be payable to SoundExchange for the public performance of sound recordings.  This means that the money collected would be paid to performing artists and record labels for the use of their recording of a song.  This new royalty would be in addition to the royalties paid by radio stations to composers and publishing companies through ASCAP, BMI, SESAC and GMR, which are paid for the performance of the musical composition – the words and music to a song. This new legislation is virtually identical to that introduced in the last Congress (see our article here), and is another in a string of similar bills introduced in Congress over the last decade.  See, for instance, our articles here, here, here and here on previous attempts to impose such a royalty.

As in the version of the bill introduced in the last Congress, in an attempt to rebut arguments that this royalty would impose an unreasonable financial burden on small broadcasters, the legislation proposes relatively low flat fees on small commercial and noncommercial radio stations, while the rates applicable to all other broadcasters would be determined by the Copyright Royalty Board – the same judges who set internet radio royalties payable to SoundExchange by webcasters, including broadcasters for their internet simulcasts.  Under the bill, the CRB would review rates every 5 years, just as they do for webcasting royalty rates.

Continue Reading It’s Back!  American Music Fairness Act Proposing New Music Royalties for Over-the-Air Broadcasting Introduced in the New Congress

The AM for Every Vehicle Act has been introduced in the new Congress after dying when the last session of Congress ended in December without it getting to a vote, despite having the announced support of a majority of both the House and Senate.  Pending bills do not carry over to a new session of Congress.  Thus, the bill had to be reintroduced in the current Congress – which it was last week by Senate co-sponsors Ed Markey (D-MA) and Ted Cruz (R-TX). The National Association of Broadcasters quickly released a statement supporting the bill’s reintroduction, stating that the bill “will protect AM radio’s role as an essential public safety tool and ensure Americans can continue to rely on this life-saving resource in their vehicles.” 

Opposition to the bill remains, with opponents arguing that it interferes with automakers’ ability to innovate and provide car buyers with the technologies that they want.  As part of that opposition, Gary Shapiro, the head of the Consumer Technology Association, sent a letter to NAB CEO Curtis LeGeyt, opposing the mandate, arguing among other things that AM is an outdated technology and suggesting that the CTA would support a performance royalty making broadcasters pay SoundExchange royalties for their over-the-air broadcasts if the NAB continued to push the AM legislation. While the legislation is essentially the same as that considered in the last Congress, we should again look at what it provides. 

Continue Reading The AM for Every Vehicle Act Introduced in the New Congress – What Does It Provide? 

Here are some of the regulatory developments from the past 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.

  • FCC Chairman Carr sent a letter to NPR and PBS announcing that he has asked the FCC’s Enforcement Bureau to open an investigation into whether their radio and television station affiliates have aired commercial advertisements.  Noncommercial broadcast stations, including NPR and PBS affiliates, are prohibited by law from airing commercial advertisements.  They are limited to airing “underwriting announcements” that identify their sponsors without promoting the sponsor’s products or services.  FCC Commissioners Gomez and Starks released statements questioning the basis for the investigation, suggesting that it is as an attempt to intimidate or silence these broadcasters.  For more about this action and what the FCC’s underwriting policies require, see the article that we posted on our Broadcast Law Blog on Friday, here.
  • The Department of Justice filed a letter with the US Court of Appeals for the Fifth Circuit in connection with the court challenge to the FCC’s reinstatement of the FCC Form 395-B.  The letter suggested that the U.S. government may no longer aggressively defend that reinstatement.  In February 2024, the FCC reinstated the Form 395-B, which requires that broadcasters yearly prepare a report for a station’s online public file classifying all of its employees by race, gender, and employment position (see our article here about that decision).  The decision is being challenged by several broadcasters, including the NRB and the Texas Association of Broadcasters, who argue that the form is unconstitutional for reasons including that it unlawfully pressures broadcasters to engage in race- and sex-conscious employment practices (see our discussion here and here).  The DOJ’s letter admits that some EEO data collection is required by Congressionally imposed mandates, but that the government “no longer subscribes” to the FCC’s defense of the form’s reinstatement to the extent that the data collection is not required by law and is inconsistent with President Trump’s Executive Order suspending government diversity, equity, and inclusion (DEI) initiatives.  As we discussed here, oral argument on the Court challenge to the form’s reinstatement is scheduled for February 4.  It remains unclear the extent to which the FCC will defend the form’s reinstatement.  Chairman Carr vocally opposed the FCC action last February, stating that the requirement to make this information public was unconstitutional as it could be used to harass broadcasters and to force them to make hiring decisions based on race and gender (see his 6 page dissent to the reinstatement, here).
  • Senators Cruz and Markey reintroduced the AM Radio for Every Vehicle Act, which requires that automobile manufacturers keep AM radio on the car dashboard.  The proposed bill has the same language as the version of the bill introduced last year but never passed despite broad bipartisan support in both the House and the Senate (see our discussion here, here, and here).  The National Association of Broadcasters released a statement supporting the bill’s reintroduction, stating that the bill “will protect AM radio’s role as an essential public safety tool and ensure Americans can continue to rely on this life-saving resource in their vehicles.”  Opposition to the bill remains, with opponents arguing that it interferes with the car maker’s ability to innovate and provide buyers with the technologies that they want.  Gary Shapiro, the head of the Consumer Technology Association, sent a letter to NAB CEO Curtis LeGeyt, opposing the mandate, arguing among other things that AM is an outdated technology and suggesting that the CTA would support a performance royalty making broadcasters pay SoundExchange royalties for their over-the-air broadcasts (see the bullet below) if the NAB continued to push the AM legislation.
  • On the subject of performance royalties for over-the-air broadcasting, the American Music Fairness Act was again introduced in the new Congress by U.S. Senators Alex Padilla (D-Calif.), Marsha Blackburn (R-Tenn.), Cory Booker (D-N.J.), and Thom Tillis (R-N.C.).  This bill proposes to require that broadcasters pay performing artists and copyright holders (usually their record companies) royalties for over-the-air broadcasting.  Currently, broadcasters pay royalties for over-the-air transmissions to songwriters and the copyright holders in musical compositions, and they pay artists and labels (as well as composers and publishing companies) when that music is digitally streamed.  If passed, the Copyright Royalty Board would set these new royalties.  We wrote this bill in more detail when it was considered in the last Congress, and the new version appears to be similar if not identical to the prior version.   
  • Congressman Pat Ryan and Senator Chris Murphy introduced the “Stop Sports Blackouts Act” which would require cable and satellite providers to refund to their customers a portion of their subscription fees if programming from a channel was blacked out as a result of the failure of negotiations over the continued carriage of that channel.  The bill, if adopted, would require refunds not only when blackouts occur when broadcasters and MVPDs are not able to agree on retransmission consent fees, but also when MVPDs are not able to reach continued carriage agreements with other cable programming providers.  A statement released by the bill’s sponsors argue that consumers should not have to pay for channels that they are not able to watch. The American Television Alliance, a trade group for various MVPDs, condemned the legislation, blaming television networks and other big programmers for holding MVPDs “ransom” for higher programming fees. 
  • Last week, Chairman Carr removed all items listed on the FCC’s circulation list (those orders or rulemaking proposals that have been drafted and are currently circulating among the Commissioners for review and vote).  These were items drafted during the prior administration.  This week, Carr released a statement regarding the removal of one of those items – a Notice of Proposed Rulemaking proposing rules on siting wireless and broadcast towers in flood plains.  Carr stated that the NPRM was removed from the FCC circulation list because the proposed rules would have slowed tower construction by subjecting towers to additional environmental regulations.  Also removed from the list was a draft order on a proposal to require Emergency Alert System participants, such as broadcasters and cable providers, to notify the FCC of EAS equipment problems, to have contingency plans for distributing alerts if their EAS system is down, and to adopt and report to the FCC on cybersecurity measures for their EAS systems.  Carr has not released any statement regarding the future of that order. 
  • The FCC’s Media Bureau dismissed a construction permit application for a new LPFM station at Carrollton, Texas, for failing to meet the FCC’s LPFM localism requirement because the applicant’s headquarters and all of its directors’ residences were located more than 10 miles from the proposed station’s transmitter site (the limit for LPFM applicants in the top 50 urban markets).  Due to the application’s dismissal, the Bureau granted the mutually exclusive application for a new LPFM station at Lancaster, Texas.

On our Broadcast Law Blog, we provided our regular monthly summary of upcoming regulatory dates affecting broadcasters, looking at those for February and early March.  We also took our annual look at the legal issues in Super Bowl advertising and promotions.  Finally, we discussed how a Washington state court’s upholding of a $24.6 million penalty against Meta for failing to meet its political advertising disclosure requirements under Washington State laws serves as a warning to all media companies, including broadcasters, to understand and comply with state laws on public disclosure of political advertising sales – rules that, in many states, cover media (like various internet-delivered communications) not subject to FCC regulation.

Yesterday, the new FCC Chairman Brendan Carr sent a letter to NPR and PBS announcing that he has asked the FCC’s Enforcement Bureau to launch an investigation into their advertising practices – suggesting without specifics that these entities had gone beyond the permitted underwriting announcements by airing prohibited advertisements for commercial products and services (Commissioner Starks and Gomez issued statements questioning the basis for this investigation).  While the Chairman’s letter was vague on specifics, and unclear as to whether there were specific listener or viewer complaints that triggered the investigation (which is how the FCC typically initiates an investigation into a broadcaster’s regulatory compliance ), the letter does suggest that all noncommercial broadcast stations, including all LPFM stations and other full-power stations not affiliated with NPR or PBS, should examine their practices to ensure that they comply with the FCC’s underwriting policies. 

What do these rules require?  Noncommercial stations can air acknowledgments of those making financial contributions to stations, but the identification of such sponsors must be limited – you can give their name, a general description of what their business is and where they are located, but such information must be provided in an objective, non-promotional manner. FCC standards prohibit calls to action (e.g., “visit this store,” “come on down”), inducements to buy (e.g., “we have a two for one special,” “mention the station and you’ll get a discount on all that you buy”), price information (e.g., “tickets only $29.99” or “this week, we have our end-of-year sale” or “10% senior discounts”) or qualitative claims (“the best pizza in town,” “quality merchandise and a friendly staff”).  We have written many articles on these issues (see, for instance, articles here, here and here) and the fines that have arisen when the rules were not followed.  

Continue Reading As FCC Chairman Announces an Investigation into Alleged PBS and NPR Advertising, a Look at the Underwriting Requirements for All Noncommercial Broadcast Stations

Washington DC is not the only place where there are regulatory or political decisions made that affect broadcasters and advertising for candidates or political issues.  We’ve written many times about state laws that govern the use of AI in political advertising, with more than 20 states already having laws on their books and more considering such legislation in legislative sessions this year (see our articles here and here).  We have also noted that there are a number of states that have laws requiring media companies, including digital media companies, to keep records of political advertising sales and, in some cases, to make those records available to the public (see, for example, our article here).  While there are few federal elections in 2025, there are state and local elections in many states – and most of these laws are targeted to those state and local elections, so broadcast stations and cable systems regulated by the FCC need to be aware of these state laws.  But most of these laws reach far beyond FCC-regulated entities and apply to digital and even print media – so all companies need to be paying attention to their requirements.  And a number of recent actions highlight these concerns.

No state has been as active in enforcing such requirements as Washington State.  In a December decision seemingly overlooked by much of the trade press, the Washington State Court of Appeals upheld a decision fining Facebook parent company Meta $24.6 million for its failure to comply with the extensive political disclosure rules adopted by that state.  This decision upheld a summary judgement by a state trial court finding Meta liable for a $24.6 million penalty for violating the state’s public disclosure rules that apply to political advertising (for more on the trial court decision, see our article here). 

Continue Reading Washington State Court of Appeals Upholds $24.6 Million Penalty Against Meta for Not Meeting State Political Advertising Disclosure Requirements – A Warning to All Media Companies to Assess and Comply with State Political Disclosure Rules

Mitchell Stabbe, our resident trademark law specialist, today takes his annual look at the legal issues in Super Bowl advertising and promotions (see some of his past articles here, here, and here).  Take it away, Mitch:  

As a life-long fan of the Baltimore Ravens (the life of the Ravens, not my life), my interest in the Super Bowl XVII has waned a bit.  The opposite is true for those who seek to profit from the playing of the game.  Accordingly, following are updated guidelines about engaging in or accepting advertising or promotions that directly or indirectly reference the Super Bowl without a license from the NFL.  But, first, a trivia question.  Who won Super Bowl I.  (Answer at end)

The Super Bowl means big bucks.

There are currently four primary television networks that broadcast and stream NFL games in the United States (CBS/Paramount+, Fox, ABC/ESPN/ESPN+ and NBC/Peacock).  It is estimated that, with the new contract which took effect last year, each will pay the NFL an average of over $2 billion per year for those rights through 2032, including the right to broadcast the Super Bowl on a rotating basis.

The investment seems to pay off for the networks.  Reportedly, it will cost more than $8 Million for some of the 30-second spots during this year’s Super Bowl broadcast, up from last year.  It has also been reported that last year’s game brought in advertising revenue totaling more than the $600 M from the prior year (with as much as an additional $60 million from ads run when last year’s game went into overtime).  These figures do not include income from ads during any pre-game or post-game programming.  (In addition to the sums paid to have their commercials aired, some advertisers spend millions of dollars to produce an ad.)  In addition, the NFL receives hundreds of millions of dollars from licensing the use of the SUPER BOWL trademark and logo.

Given the value of the Super Bowl franchise, it is not surprising that the NFL is extremely aggressive in protecting its golden goose from anything it views as unauthorized efforts to trade off the goodwill associated with the mark or the game.  Accordingly, with the coin toss almost upon us, advertisers should take special care before publishing or engaging in advertising or other promotional activities that refer to the Super Bowl.  Broadcasters and news publishers have greater latitude than other businesses, but still need to be wary of engaging in activities that the NFL may view as trademark or copyright infringement.  (These risks also apply to other named sporting events, for example, making use of the phrases “Final Four” or “March Madness” in connection with the annual NCAA Basketball Tournament.)

Continue Reading 2025 Update on Super Bowl Advertising and Promotions

While the new Republican-led FCC will no doubt tackle many policy issues in the upcoming months (see our article looking at some of the issues that we expect the FCC will address this year), there are also standard dates and deadlines in February to which broadcasters still need to pay attention. Here are some of those dates:

February 3 (as February 1 is a Saturday) is the deadline for radio and television station employment units in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma with five or more full-time employees to upload their Annual EEO Public File Report to their stations’ online public inspection files (OPIFs).  A station employment unit is a station or cluster of commonly controlled stations serving the same general geographic area having at least one common employee.  For employment units with five or more full-time employees, the annual report covers hiring and employment outreach activities for the prior year.  A link to the uploaded report must also be included on the home page of each station’s website, if the station has a website.  At this time, these reports appear unaffected by any actions by the new FCC.  While Chairman Carr last week issued a statement suspending all DEI efforts by the FCC, that statement did not specifically mention routine broadcast EEO filings so, until they hear otherwise, broadcasters should continue to observe these deadlines. 

The filing of the Annual EEO Public File Reports by radio station employment units with eleven or more full-time employees or TV stations with five or more employees triggers a Mid-Term EEO Review that analyzes the last two Annual Reports for compliance with the FCC’s EEO requirements.  The Mid-Term EEO Review begins February 3 for these larger radio station employment units in Kansas, Nebraska, and Oklahoma.  Television station employment units in Arkansas, Louisiana, and Mississippi are also subject to this review.  Radio stations located in Kansas, Nebraska, and Oklahoma that are part of station employment units with five or more full-time employees must also indicate in their OPIFs whether their employment unit has eleven or more full-time employees, using a checkbox now included in the OPIF’s EEO folder.  This allows the FCC to determine which station groups need a Mid-Term EEO Review.  See our articles here and here for more on the Mid-Term EEO Review.

Continue Reading February 2025 Regulatory Dates for Broadcasters – EEO, Comment Deadlines, FM Duplication Rule, Political Windows, and More

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.

  • President Trump issued several Executive Orders that could affect FCC decision-making, including an Executive Order suspending government diversity, equity, and inclusion (DEI) initiatives; and an Executive Order advising federal departments and agencies to freeze implementing or proposing new regulations for 60 days until they have been reviewed by the appropriate department or agency head appointed by the President.  While it is unclear whether Executive Orders can legally bind independent agencies such as the FCC, we have already seen FCC Chairman Carr’s acting in accordance with the Trump directives.  For instance:
    • Carr announced that the FCC will end its DEI initiatives.  While his announcement does not specifically address broadcast EEO policies, Carr vigorously opposed the FCC’s reinstatement of FCC Form 395-B, which requires that broadcasters yearly prepare a report classifying all of its employees by race, gender, and employment position (see the discussions of this obligation on our Broadcast Law Blog here, here, and here).  As an oral argument on Court challenges to the FCC’s reinstatement of the form is scheduled for February 4, we may soon see how Carr’s announcement is applied to the FCC’s defense of that form.  FCC Commissioner Gomez released a statement opposing the end of the FCC’s DEI initiatives. 
  • The FCC’s Media and Enforcement Bureaus reinstated the Center for American Rights’ complaints against TV stations owned by the ABC, NBC, and CBS broadcast networks for aspects of their coverage of the 2024 presidential campaign.  These complaints alleged that the stations violated FCC rules prohibiting broadcast news distortion or those requiring equal opportunities for political candidates.  As we discussed in our weekly update last week, as one of the last major actions of the Commission under former Chairwoman Jessica Rosenworcel, CAR’s complaints (along with those of other parties and a complaint against the renewal of a Fox television station) were dismissed by the Bureaus, finding no evidence to support claims of FCC rule violations and that any action on the complaints would involve the FCC in a prohibited intrusion on the First Amendment.  In this week’s action, the Bureaus, under acting Chiefs newly appointed by Carr,  stated that the dismissals of the complaints were premature because they were based on an insufficient record and that they required further investigation. FCC Commissioner Gomez issued a statement opposing the reinstatement of these complaints.
  • There was a Federal Register announcement of the opening of a comment cycle for a petition for reconsideration filed against the FCC’s September 2024 First Report and Order allowing FM stations to operate at different power levels on their upper and lower digital sidebands and permitting FM stations to begin such service simply by notifying the FCC (we noted the First Report and Order in a weekly update here).  The Petitioner raises several arguments against the order and concerns about digital “HD” operations in general, particularly complaining about HD interference to Class A FM stations.  The Petitioner’s proposals include that the FCC should require an FCC application or direct notice to affected stations before an HD operation is implemented and an annual filing of evidence of a station’s continued compliance with their HD authorizations; it should allow objections to HD operations based on real or predicted interference to other FM stations; and that the FCC should provide Class A FM stations with greater interference protection from HD stations.  Comments and reply comments responding to the petition are due February 6 and February 18, respectively.
  • The Federal Register notice of the FCC’s TV blackout reporting requirements adopted last month were sent to the Office of Management and Budget for review before they can take effect.  In December, the FCC released a Report and Order requiring multichannel video programming distributors to report TV station blackouts resulting from failed retransmission consent negotiations (see the discussion of that order in our weekly update here).  
  • The FCC released a Small Entity Compliance Guide summarizing the “all-in” pricing rule adopted in its April 2024 Report and Order.  The rule requires cable operators and direct broadcast satellite providers to provide the “all-in” price for video programming as a single line item in promotional materials and on subscribers’ bills, including charges for broadcast retransmission consent, regional sports, and other programming.  Cable operators and DBS providers had to begin complying with the “all-in” rule last month.  Small cable operators (those with $47 million or less in annual receipts), however, have until March 19 to comply with the rule.