It’s a new year, and a good time to reflect on where all the Washington issues for TV broadcasters stand at the moment, especially given the rapid pace of change since the new administration took over just about a year ago. While we try on this Blog to write about many of the DC issues for broadcasters, we can’t always address everything that is happening. Every few months, my partner David O’Connor and I update a list of the legal and regulatory issues facing TV broadcasters. That list of issues is published by TVNewsCheck and the latest version, published this week, is available on their website, here. It provides a summary of the status of legal and regulatory issues ranging from the adoption of the ATSC 3.0 standard at one end of the alphabet to White Spaces and Wireless Microphones on the other – with summaries of other issues including the Incentive Auction, Ownership Rule Changes, Media Regulation Modernization, EEO compliance, Political Advertising and Sponsorship Identification, along with dozens of other topics, many with links to our more detailed discussions here on the Blog. Of course, the status of these issues changes almost daily, so watch this Blog and other trade publications for the latest Washington news of interest to broadcasters.
Yesterday, the President reportedly used the word “shithole” to describe certain countries whose immigrants were seemingly less favored than others. This predictably caused outrage in many quarters – and left the electronic media, especially broadcast TV in a quandary. Do they broadcast the purportedly used term, or do they use some euphemism so that “shit,” one of those words that the FCC has from time to time found inappropriate to be used on the air, does not reach tender ears? The New York Times ran a story describing how different media outlets handled the story here. What is a broadcaster to do?
The FCC has said repeatedly that there is no blanket rule exempting news programming from its indecency rules – so theoretically, a broadcaster could face an indecency action at the FCC for the use of a proscribed word on the air, even in a newscast. However, the FCC has recognized that decisions made about the language used in newscasts are subject to a different level of First Amendment protection than language that might be included in an entertainment program. So, for instance, when NPR aired excerpts from a tape of mobster John Gotti that had been introduced during his criminal trial, and that tape contained multiple words usually not allowed on broadcast stations, the FCC and the courts found that, in the circumstances of news coverage, the use of these words was not actionable. In another case, a CBS Morning News interview with the winner of the Survivor television program, there was a similar decision from the FCC. On the morning news program, the winning contestant labeled a competitor a “bullshitter.” The FCC took no action, deferring to the licensee’s decision given that it was made in the context of a news program. So, while there is no blanket exception for indecency in news programs (witness the huge fine issued to a TV station that had not properly edited a news segment on a former adult industry movie star turned first responder, about which we wrote here), certainly the FCC has provided stations more discretion to air otherwise prohibited words in their news if necessary to provide context to their news coverage. But with FCC Chairman Pai admonishing broadcasters to “keep it clean,” and with the FCC’s indecency rules still on the books, and any complaint likely to cost time and money to defend, broadcasters may want to be cautious in their approach to these situations, even in the context of news programs.
Update: 1/12/2018; Tonight, on All Things Considered, there was a very good discussion (available here) of NPR’s use of the term supposedly used by the President, and how the specific words were used only where they were thought to be newsworthy – and the term was used sparingly. That story struck me as containing good advice for those stations that decide to use any such term on the air in a news report – the profane term should be used sparingly and only when it is newsworthy. A repeated use of the profane word, even in news reporting, could be used to question the news judgment of the station. So use judgement and discretion – there is no blank check even in news reports.
For many years, we have posted guidelines about engaging in or accepting advertising or promotions that directly or indirectly allude to the Super Bowl without a license from the NFL. We are at that time of year again, so here is an updated version of our prior posts.
The Super Bowl means big bucks. It is estimated that each of the three television networks that broadcast the Super Bowl pay the NFL in excess of $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. Of course, the game generates hundreds of millions of dollars for the networks from advertisers. In addition to the sums paid to have their commercials seen (approximately $5 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 in income from licensing the use of the SUPER BOWL trademark and logo.
Not surprisingly, 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 need to 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 wary of engaging in activities that the NFL may view as trademark or copyright infringement. (These risks also apply to the use of “Final Four” or “March Madness” in connection with the upcoming NCAA Basketball Tournament.) Continue Reading
At its next open meeting to be held on January 30, the FCC will consider two more proposals in its Modernization of Media Regulation Initiative. As with many of the other proposals that have been advanced by the FCC as part of this initiative thus far, these proposals address relatively minor matters concerning paperwork obligations rather than substantive FCC rules. Draft proposals were released yesterday by the FCC dealing with two matters. The first is a Notice of Proposed Rulemaking suggesting the elimination of requirements that broadcast licensees file paper copies of certain contracts with the FCC. The second is an Order deleting certain rule sections that explicitly deal with the operations of full-power analog television stations – stations which no longer exist.
It is certainly difficult to argue with the FCC’s decision to delete rules that apply to a service that no long exists, so it is obvious that the more substantive of the two proposals advanced yesterday is the one dealing with the filing of contracts with the FCC by broadcast licensees. But even this proposal was not particularly substantive, proposing only the elimination of the rules requiring the filing of physical copies of the required contracts, not the obligations that these contracts be available for public inspection and review. The NPRM suggests that instead of filing the required contracts with the FCC, the inclusion in a broadcaster’s online public file of information about these agreements is sufficient to eliminate the need for the filing with the FCC of physical copies of these documents. The agreements that are now required to be filed are also required to either be included in the public file or the licensee may opt to include in the public file a list of the contracts with a commitment to produce them within 7 days upon request. The NPRM also proposes to formalize the practice specifically adopted in connection with some but not all of the required documents – allowing broadcasters to redact financially sensitive business information from any document that it provides upon request. The NPRM as currently drafted does not ask whether the FCC should examine whether the filing of some or all of these contracts, or even their inclusion in a station’s public file, should be required at all. Continue Reading
Published today in the Federal Register were two notices from the FCC implementing November’s decision on the FCC’s ownership rules. First, a summary of the changes in the rules was published in the Federal Register. These changes particularly affect the local TV ownership rules (changes that we summarized here). Changes included, among other things, the elimination of the rule that required that there be 8 independent owners of TV stations in a market before any party can own two TV stations, elimination of ownership attribution for Joint Sales Agreements between television stations in the same market (meaning that such arrangements do not count in any analysis of compliance with the local TV ownership rules), and a plan to review proposals to combine two of the top 4 stations in any market on a case-by-case basis. These rule changes become effective on February 7.
Also published in the Federal Register was a summary of a different part of the order, one asking questions about how the FCC should structure an incubator program that would support diversity in the ownership of broadcast stations. In that Notice of Proposed Rulemaking, the FCC asks a series of questions as to how a program could be established in a way that would benefit minorities and other new broadcast entrants. As the usual discussion about such programs involves providing established broadcasters a waiver of an ownership rule or other incentive to assist the new entrant, one of the central issues is how to establish a program providing real benefits without creating a loophole in the ownership rules for the sponsoring broadcaster. Comments on the Notice of Proposed Rulemaking are due on March 9, with replies on April 9. Some of the questions asked by the FCC are summarized below. Continue Reading
Yesterday, Attorney General Jeff Sessions issued a one-page memo (here) advising Federal prosecutors to use their discretion in pursuing marijuana prosecutions – even in states where state law has made marijuana legal for either medical or recreational use. Even though some states have removed state law restrictions on the sale or use of marijuana, marijuana remains illegal under Federal law as we wrote here when the FDA, under the Obama administration, refused to remove the drug from “Schedule 1” – the category of drugs most restricted under Federal law. As we wrote here, because marijuana is illegal under Federal law, and broadcasters are Federal licensees, running advertising for a substance that is generally illegal to use or possess under Federal law poses real risks for broadcast licensees. Yesterday’s action by the DOJ, essentially repealing guidance given to Federal prosecutors not to pursue marijuana cases where there was no abusive conduct (e.g. no sales to children, no attempts to sell outside states where the drug is legal under state law, no cooperation with international drug dealers, etc.), does nothing to lessen the risk to broadcasters of running such ads, and in fact likely ups those risks.
Some broadcasters may have taken hope from a decision of a federal appeals court from 2016 finding criminal prosecutions by the Department of Justice of entities and individuals who were complying with state laws decriminalizing medical marijuana were barred by a rider to a federal appropriations bill. Some saw this decision as a broad statement that the federal government would not be enforcing its marijuana laws in any context. But, as we wrote here, the bar on the spending of any money on prosecutions applies only to the DOJ (not to other federal agencies such as the FCC) and only to medical marijuana. Moreover, the decision practically quoted the same warning that I have included in my articles on the topic – the rider does not change the underlying law declaring the sale and distribution of marijuana illegal under federal law. Moreover, the Court observed that administrations can change (as they did), changing prosecution priorities. This rider can also expire, increasing the potential for prosecutions in the new atmosphere at the DOJ. Given the DOJ decision yesterday, broadcasters need to remain very cautious about marijuana ads of any sort, and seek counsel on any such ads that they are considering.
While some might think that the business of deregulation is easy, that usually is not the case, as comments on the FCC’s proposals to modify the public notice requirements for broadcast applications make clear. In a Notice of Proposed Rulemaking about which we wrote here and here, as part of its initiative on the Modernization of Media Regulation, the FCC looked to modify the rules governing public notice that broadcasters must give when they file certain types of broadcast applications – particularly license renewals and applications for the assignment or transfer of broadcast stations. The FCC asked whether the obligations requiring most of these notices to be published in a local newspaper, in addition to being broadcast on the station, could be replaced by giving an online public notice. The Commission even asked if on-air notice was still necessary. The FCC also asked how the rules should be unified, so that the various exceptions and textual differences that apply to different rules could be made simpler to understand. Comments on these proposals were filed last week between the holidays.
While this proposal seems very straightforward, and many of the comments took the sides that one would expect, there were numerous comments that range from support for continued newspaper publication (principally from the newspaper industry), to calls for more detailed on air-announcements from certain public interest groups, to suggestions that the on-air notice be more abbreviated and used to direct listeners and viewers to a more detailed online disclosure. Let’s look at some of the specific comments that were filed. Continue Reading
When the FCC adopted its Report and Order authorizing the “next generation TV” standard ATSC 3.0, it did not resolve all issues, instead leaving a few for further public comment. Notice of the issues raised in the Further Notice of Proposed Rulemaking was published in the Federal Register just before Christmas, setting February 20 as the deadline for initial comments on the outstanding issues, and March 20 as the deadline for reply comments. What issues are left to be resolved?
In allowing the voluntary transition to ATSC 3.0, the FCC required that stations choosing to transition to the new standard must enter into agreements with another station in their market to remain in the current ATSC 1.0 transmission standard and host a “lighthouse” signal rebroadcasting the primary video signal of the converting station on one of the multicast streams of the host station. The FCC recognized that not all stations would be able to find a partner with a signal covering the converting station’s city of license that could host the lighthouse signal in the old standard, and agreed to consider waivers of that requirement. The Further Notice raises questions as to whether the FCC should issue further guidance on the standards that it will apply to such waiver requests. Continue Reading
The holidays are over, and while the regulation never stops, it is time to once again buckle down and look at what is on the horizon for broadcasters. While, in the next few days, we will have our typical look ahead at the broadcast regulatory agenda in Washington for the New Year, we also need to look at more immediate deadlines in the month of January. As we are at the beginning of a calendar quarter, the tenth of the month is the date for broadcasters to add their Quarterly Issues Programs Lists for the just completed quarter to their public file – whether it be the online public file for TV broadcasters and the many radio groups that have already converted to the online file, or into the paper file for those radio broadcasters waiting until the last minute before making the conversion to the online file as required by March 1. These Quarterly Issues Programs lists are the only FCC-required documents showing how a broadcaster has met its public interest obligations to serve their communities and, as we have written many times (see, for instance, here and here), the FCC considers them to be very important, and thus have led to numerous substantial fines for broadcasters who have not met the FCC’s requirements.
TV broadcasters also need to file their Children’s Television Reports with the FCC by the 10th of the month, and place information into their public file about how they complied with the commercial limits on children’s television programming. As we have written before (see our articles here and here), these, too have been the subject of numerous FCC enforcement actions when the Commission becomes aware that the reports were not filed, or were submitted late. So be sure to timely file these reports with the FCC, and place the information about compliance with the commercial limits in your online public file by the deadline. Continue Reading
Recently, we wrote about a proceeding initiated by the Copyright Office to review the reporting obligations of cable and satellite television systems related to the statutory license that permits those systems to carry the programming of local television stations. Systems must report information including revenue and subscriber information that allow royalties to be computed. This proceeding also included a section asking for comments on the Copyright Office’s tentative conclusion that the Copyright Act’s definition of a cable system did not extend to online services, like those that had been proposed by Aereo and FilmOn. See our article here about the Copyright Office’s request for comments. The Copyright Office has just announced that they are extending the comment period in this proceeding. Comments are now due March 16, with replies due on April 6, 2018.