With the holiday season getting smaller in the rear-view mirror and many parts of the country dealing with ice, snow, and single-digit temperatures, broadcasters could be forgiven for dreaming about the sunshine and warmth that come with spring.  Before spring arrives, however, broadcasters need to tend to important regulatory matters in February.  And, if you find yourself eager to plan past February, use our 2020 Broadcasters’ Calendar as a reference tool for tracking regulatory dates through the end of 2020.

But focusing on the month ahead, by February 3, all AM, FM, LPFM, and FM translator stations in Arkansas, Louisiana, and Mississippi must file their license renewal applications.  For the full-power stations in the state, there’s an additional EEO task to complete irrespective of how many employees a station employment unit (SEU) has.  Before filing for license renewal, stations in these three states must submit FCC Schedule 396. This schedule is the Broadcast Equal Employment Opportunity Program Report, which is a reporting to the FCC of the SEU’s equal employment opportunity activities for the last license period (SEUs with fewer than five full-time employees are not required to maintain an EEO recruitment program and are only required to check a box that they have fewer than 5 full-time employees and skip ahead to the certification).  The sequencing here is important: When filing for license renewal, the application (Schedule 303-S) asks for the file number of your already-filed Schedule 396.  So, without having already filed the schedule, you won’t be able to complete your renewal application. Continue Reading February Regulatory Dates for Broadcasters—License Renewals, EEO Reporting, Rulemaking Comments, FM Auction Filing Deadline, Lowest Unit Rate Windows, and More

For several years, I have posted guidelines about engaging in or accepting advertising or promotions that directly or indirectly reference the Super Bowl without a license from the NFL (see, e.g. our articles here and here).  It’s that time of year again, so here is an updated version of my prior posts.

The Super Bowl means big bucks.  It is estimated that each of the three television networks that broadcasts the Super Bowl pays the NFL over $1 billion per year for the right to broadcast NFL games through 2022, including the right to broadcast the big game on a rotating basis once every three years.  The investment seems to pay off for the networks.  The Super Bowl broadcast alone generates hundreds of millions of dollars for the networks from advertisers.  In addition to the sums paid to have their commercials aired (reported to be approximately $5.6 million for a 30-second spot), many advertisers spend more than $1 million to produce each 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 game.  Accordingly, with the coin toss almost upon us, advertisers must take special care before publishing ads or engaging in 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 terms “Final Four” or “March Madness” in connection with the upcoming NCAA Basketball Tournament – see, for instance, our articles here and here.) Continue Reading “Come See Us At The Superb Owl” – Don’t Try This At Home!  2020 Update on Super Bowl Advertising and Promotions

On January 18, the lowest unit charge window for Presidential primaries or caucuses begins in Super Tuesday states including Alabama, American Samoa (D), Arkansas, California, Colorado, Maine, Massachusetts, Minnesota, North Carolina, Oklahoma, Tennessee, Texas, Utah, Vermont, and Virginia.  The LUC window opened on January 15 for South Carolina’s Democratic primary and will open on January 23 for stations in Puerto Rico.  Soon behind, on January 25, lowest unit charge windows for presidential contests open in Hawaii, Idaho, Michigan, Mississippi, Missouri, North Dakota (D), and Washington State.  The window opens on January 27 in the US Virgin Islands and West Virginia. January 29th is the opening of the window for contests in Guam (R), N. Mariana Islands (D) and Wyoming (R).

In these windows, when broadcasters sell time to candidates for ads in connection with the races to be decided on these dates, they must sell them at the lowest rate that they charge commercial advertisers for the same class of advertising time running during the same time period. For more on issues in computing lowest unit rates, see our articles here, here and here (this last article dealing with the issues of package plans and how to determine the rates applicable to spots in such plans), and our Political Broadcasting Guide, here. Continue Reading Lowest Unit Charge Windows Open in About 30 States and Territories – Reviewing A Broadcaster’s Political Advertising Obligations

Earlier this week, the FCC’s Enforcement Bureau released an Order approving a consent decree with Scripps Broadcasting where Scripps agreed to pay a penalty of $1,130,000 for perceived violations of the FCC’s rules requiring tower light monitoring for towers used by a number of TV stations that it had recently purchased.  The company also agreed to adopt numerous procedures to insure continuing compliance, including notification to the FCC of future issues.  The FCC began the investigation when a plane crashed into one station’s tower.  While the FCC specifically states that it did not find any evidence that any of the “irregularities” in the tower monitoring process contributed to the plane crash, the crash opened the door to the FCC’s investigation of the company’s tower light monitoring process at all of its stations, leading to this fine.  Are you ready for such an investigation?

In the consent decree, the Commission cites various tower-related FCC rules that must be observed by tower owners.  The rules include Section 17.47(a), which requires antenna structure owners to monitor the status of a structure’s lighting system by either (1) making “an observation of the antenna structure’s lights at least once each 24 hours either visually or by observing an automatic properly maintained indicator designed to register any failure of such lights” or (2) by “provid[ing] and properly maintain[ing] an automatic alarm system designed to detect any failure of such lights and to provide indication of such failure to the owner.”  That rule also requires that the tower owner inspect any automatic monitoring system at least once every 3 months to make sure that it is working correctly, unless the owner is using a system certified as reliable and not requiring such inspection by the Wireless Bureau of the FCC (see our articles here and here where FCC fines were issued when monitoring systems did not alert the tower owner of tower lighting issues).  Continue Reading FCC Consent Decree Requires $1,130,000 Payment to Settle Issues About Monitoring Tower Lights – Are You Doing What’s Required?

This weekend, the New York Times ran an article seemingly critical of Facebook for not rejecting ads  from political candidates that contained false statements of fact.  We have already written that this policy of Facebook matches the policy that Congress has imposed on broadcast stations and local cable franchisees who sell time to political candidates – they cannot refuse an ad from a candidate’s authorized campaign committee based on its content – even if it is false or even defamatory (see our posts here and here for more on the FCC’s “no censorship” rule that applies to broadcasting and local cable systems).  As this Times article again raises this issue, we thought that we should again provide a brief recap of the rules that apply to broadcast and local cable political ad sales, and contrast these rules to those that currently apply to online advertising.

As stated above, broadcast stations and local cable systems cannot censor candidate ads – meaning that they cannot reject these ads based on their content.  Commercial broadcast stations cannot even adopt a policy that says that they will not accept ads from federal candidates, as there is a right of “reasonable access” (see our article here, and as applied here to fringe candidates) that compels broadcast stations to sell reasonable amounts of time to federal candidates who request it.  Contrast this to, for instance, Twitter, which decided to ban all candidate advertising on its platform (see our article here).  There is no right of reasonable access to broadcast stations for state and local candidates, though once a station decides to sell advertising time in a particular race, all other rules, including the “no censorship” rule, apply to these ads (see our article here).  Local cable systems are not required to sell ads to any political candidates but, like broadcasters with respect to state and local candidates, once a local cable system sells advertising time to candidates in a particular race, all other FCC political rules apply.  National cable networks (in contrast to the local systems themselves) have never been brought under the FCC’s political advertising rules for access, censorship or any other requirements – although from time to time there have been questions as to whether those rules should apply.  So cable networks, at the present time, are more like online advertising, where the FCC rules do not apply. Continue Reading Facebook Not Fact-Checking Candidate Ads – Looking at the Contrast Between Online Political Ads and Those Running on Broadcast and Cable

The PIRATE Act, to crack down on pirate radio, passed the Senate this week after having passed in the House of Representatives last year.  It now goes to the President for signature.  We’ve written about this legislation several times before (see for instance, our articles here and here).  In this final version, it provides more tools for the FCC to crack down on pirate radio operators more quickly, plus it imposes obligations on the FCC to make more regularized enforcement efforts against pirate radio operators, although without necessarily providing any more resources with which to do so.

The bill increases the fine for pirate radio to a maximum of $100,000 per day of operation, to a maximum of $2,000,000.  Fines can be imposed on anyone who “knowingly does or causes or suffers to be done any pirate radio broadcasting.”  This would seemingly allow the FCC to go after not just the operators themselves, but also those who “suffer to be done” any pirate radio operation, which could possibly implicate landlords who knowingly allow pirate radio operations on their premises, consistent with some recent FCC cases (see, for instance, the one we wrote about here).  In addition, the bill allows the FCC to immediately issue a Notice of Apparent Liability (a notice of a proposed fine) without having to first issue a Notice of Violation (a notice suggesting that there is a violation of the rules, but allowing the person accused of violating the rule to first respond before the FCC can issue the proposed fine).  The accused party will still be able to argue that no fine should be imposed when it receives the Notice of Apparent Liability (e.g., the party could argue that it had a license or that it did not really broadcast at all, or at a power level that requires FCC approval), but the two-step process currently needed before issuing a proposed fine would no longer be required, thus speeding up enforcement efforts.  Continue Reading PIRATE Act Passes Senate, and Now on to the President for Signature – Provides for Big Fines and Enforcement Sweeps in Big Markets

Here we are, more than a week into the New Year, and already we’ve written about a host of regulatory issues that will be facing broadcasters in the first month of the year (see for instance our articles here and here).  But what about the rest of the year?  As we do most years, we’ve put together a Broadcaster’s Regulatory Calendar for 2020, here.  While this calendar can’t be seen as an exhaustive list of every regulatory date that your station will face, it highlights many of the most important dates for broadcasters in the coming year – including dates for license renewal actions, EEO Public Inspection File Report preparation, Quarterly Issues Programs lists, children’s television obligations and much more.  It also provides the dates that the lowest unit charge windows open for most of the Presidential primaries and caucuses, as well as for the November general election.  Certainly, there will be plenty more dates to be aware of.  Follow our blog, read other newsletters and trade publications and consult your own attorney to stay on top of your regulatory obligations.  But, hopefully, our 2020 Broadcasters Regulatory Calendar will give you a good start on spotting some of the important dates that may affect your operations.

Every noncommercial station, including LPFMs, that accepts underwriting announcements should be concerned about making sure that the announcements meet FCC guidelines and remain truly noncommercial.  An FCC Order was released yesterday announcing a consent decree entered into between the University of Arkansas and the FCC’s Enforcement Bureau.  The Order illustrates what can happen if noncommercial stations are not careful – as the University agreed to pay what is essentially a fine of $76,000 and to adopt a compliance plan that forces the University to carefully monitor underwriting announcements for the next five years, as well as engaging in programs to educate and monitor its staff to insure future compliance.  The FCC Order announcing the consent decree should be carefully reviewed by all noncommercial broadcasters to see what can happen if they do not comply with the rules.

The FCC’s Order itself does not go into detail about the alleged instances of where the station exceeded what is permitted by the rules.  But the Order does enumerate the policies that restrict underwriting in the following statement:

such announcements may not contain comparative or qualitative descriptions; price information (sales or discounts); calls to action; inducements to buy, sell, rent, or lease; or excessively detailed “menu listings” of services offered by the entity. Although the Commission has not adopted any quantitative guidelines on underwriting announcements, it has found that the longer the announcement, the more likely it is to contain material that is inconsistent with their “identification only” purpose.

While most noncommercial broadcasters are familiar with the obligations to avoid calls to action, qualitative claims, and price and discount information, some of the more subjective criteria listed in the Order may not be as familiar.  The FCC notes that underwriting announcements, while they can generally mention the services provided by an underwriter, they should not have an excessively detailed list of those services.  In addition, the announcements should not be of excessive length, as they are likely to sound more commercial – going beyond a mere identification of the sponsor.  See our article here for another case where this issue arose. Continue Reading University Pays $76,000 Fine to Settle Complaint About Underwriting Announcements on Noncommercial Station that Went Too Far

The FCC’s proposal to allow AM stations to voluntarily transition into all-digital operations (see our post here for a summary of the FCC’s proposal) was published in the Federal Register today.  That sets the comment deadlines in this proceeding – with initial comments due March 9, 2020 and reply comments due by April 6.  AM stations interested in making this voluntary conversion should file their supporting comments in this filing window.

As we wrote last week, this proposal could, in some instances, tie in nicely with the FCC’s proposal to change their rules that currently prohibit AM stations serving the same geographic area from duplicating more than 25% of their programming.  Were that rule to be changed, an AM station transitioning to digital could theoretically acquire (subject to multiple ownership rule limitations) another local AM to continue to broadcast an analog signal – giving an operator a beachhead in the new digital technology while still serving audiences who do not have digital AM receivers.  We will see how the comments play out in the coming months – but if you are interested in filing, pay attention to these comment dates that have now been set.

While many of us were trying to enjoy the holidays, the world of regulation kept right on moving, seemingly never taking time off.  So we thought that we ought to highlight some of the actions taken by the FCC in the last couple weeks and to also remind you of some of the upcoming January regulatory deadlines.

Before Christmas, we highlighted some of the regulatory dates for January – including the Quarterly Issues Programs Lists due to be placed in the online public file of all full-power stations by January 10.  Also on the list of dates in our post on January deadlines are the minimum SoundExchange fees due in January for most radio stations and other webcasters streaming programming on the Internet.  January also brings the deadline for Biennial Ownership Reports (postponed from their normal November 1 filing deadline).

In that summary of January regulatory dates, we had mentioned that the initial filing of the new Annual Children’s Television Programming Report would be due this month.  But, over the holiday week, the FCC extended that filing deadline for that report until March 30 to give broadcasters time to familiarize themselves with the new forms.  The FCC will be doing a webinar on the new form on January 23.  In addition, the FCC announced that many of the other changes in the children’s television rules that were awaiting review under the Paperwork Reduction Act had been approved and are now effective.  See our article here for more details. Continue Reading While You Were on Vacation….Looking at FCC Regulatory Actions over the Holidays and Deadlines for January