The FCC’s Video Division yesterday issued a Notice of Apparent Liability to a Baltimore TV station for airing a commercial for a Hot Wheels product in eight showings of the program “Team Hot Wheels.”  The Commission has, for almost 30 years, had a policy against what they term “program-length commercials” – programs that feature characters who are also featured in a commercial that runs during the program.  The FCC has been concerned that children may not perceive the difference between a program and a commercial that runs in that program if both feature the same characters.  If the whole program is perceived as promoting the product, then the program would exceed the commercial limits in children’s programming set by Congress and incorporated in Section 73.670 of the rules – 10.5 minutes per hour on weekends and 12 minutes per hour on weekdays.

A decade ago, this was a significant issue.  On one day in 2010, the FCC issued seven Notices of Apparent Liability, seeking fines of as much as $70,000 for these violations (see our article here).  Even before that, we noted how stations can inadvertently find themselves in these situations when featured characters unexpectedly pop up in commercials for products other than those that are directly for products featuring those characters.  So, where a cartoon character appears on an ad for a video game, that can make the entire program a commercial – even though the broadcaster may not have realized until after the fact that the character would be featured in the video game commercial.  In this week’s case, the facts are a little different, but still emphasize the care that TV broadcasters need to exert to ensure that nothing is aired that could make a program into a program-length commercial. Continue Reading FCC Proposes $20,000 Fine for TV Station Program-Length Commercial in Children’s Programming

Here are some of the regulatory 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.

  • After reviewing comments submitted this summer (we wrote about the rulemaking, here), the FCC will vote at its next Open Meeting, on December 10, on new rules for Broadcast Internet (ATSC 3.0) services. The principal changes addressed in the FCC’s draft order are clarifications of the rules on the annual “ancillary and supplementary services” fee that broadcasters offering non-broadcast services on their television channels must pay.  The changes in the draft order include reducing the fees to be paid by noncommercial television stations that offer new noncommercial, non-broadcast services through their ATSC 3.0 operations.  These services are not allowed to “derogate” the broadcast service and, in the draft order, the Commission would retain its current interpretation that this means that a station must continue to offer at least one standard definition television programming channel.  (Draft Report and Order)
  • The FCC voted this week to update its rules dealing with cable programming disputes, including a clarification as to when a complaint can be made against a cable or satellite operator for alleged program carriage or retransmission consent violations. Under the old rules, such a complaint could be made up to one year after the cable and satellite operator was notified of the complaint.  Now, complaints can be made up to one year after the alleged violation, closing a loophole that potentially allowed complaints to be made for conduct that occurred years in the past.  The new rules will be effective 30 days after publication in the Federal Register.  (Report and Order)
  • The FCC and NAB submitted their briefs this week to the Supreme Court in the FCC v. Prometheus Radio Project case, in advance of oral arguments and a decision in 2021. Reply briefs on behalf of Prometheus Radio Project are due by December 16.  This case is a review of a lower court’s decision to reject the FCC’s 2017 broadcast ownership changes.  See our post, here, about the Supreme Court review.  (Court Docket)
  • In the last 10 days, two lawsuits by the Trump campaign alleging defamation against media entities, including the lawsuit against a Wisconsin television station for airing an attack ad by Priorities USA about the President’s response to the coronavirus, were dismissed. We wrote about those dismissals here, addressing the issues that these actions highlight for broadcasters who run attack ads that are not sponsored by a candidate’s campaign committee.

Expected to be released soon, possibly this week, will be an FCC Notice of Proposed Rulemaking starting a proceeding looking to authorize FM boosters to transmit limited amounts of programming different than that being broadcast on their primary station.  This “zonecasting” proposal would allow for different commercials or news reports to be broadcast in different parts of a station’s service area.  See our articles here and here on the initial FCC request for comments on this proposal.

 

In the last few days, two defamation cases filed against media companies by the Trump campaign have been dismissed – one on the merits and one by agreement of the parties.  This includes the suit filed by the campaign against Northland Television, the licensee of a rural Wisconsin television station.  That station was perhaps the smallest TV station to air an ad by a non-candidate group, Priorities USA, that the Trump campaign alleged was misleadingly edited to assert that the President had labeled the coronavirus a “hoax.”  As we wrote here when that suit was first filed, the campaign claimed that the reference to the hoax was not about the virus itself but was actually a reference to “the Democrats’ exploitation of a pandemic and related characterization of the candidate’s response to the pandemic.”  This suit was vigorously opposed by the station and the sponsor of the ad.  The parties have now agreed to voluntarily dismiss that suit with prejudice, meaning that it cannot be refiled.

Another suit was brought by the campaign against CNN alleging that CNN had libeled the President by publishing on its website an article from one of its contributors who alleged that the campaign had assessed the risks of seeking Russian assistance in the 2020 campaign and had “decided to leave that option on the table.”  The campaign alleged that the statement was false and defamatory – and published with knowledge that it was false.  CNN had countered that the statement was protected as it was presented as opinion, not fact, and moreover it was published without “actual malice.”  As we have written before (see, for instance, our articles here and here), under Supreme Court precedent, a claim about a public figure for defamation can only be sustained if it is both false and published with “actual malice” – meaning that the publisher knew that it was false, or acted with reckless disregard as to whether or not it was false and published it anyway. Continue Reading Two Trump Defamation Claims Dismissed Including Claim Against TV Station for Political Attack Ad – What is the Relevance for Broadcasters? 

Here are some of the regulatory 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.

  • On November 12, the notice was published in the Federal Register of the lifting of the filing freeze for certain television applications including those that seek modifications to increase a full-power TV or Class A station’s service area, requests for DTV channel changes and new DTV allotments, and requests for changes to communities of license. While the Federal Register notice said the lifting of the freeze was effective as of the date of publication, we understand that to be an error as the notice itself says that it is effective 15 days after publication.  Thus, the freeze should be lifted as of November 27. We wrote about the lifting of these freezes, here.  (Federal Register)
  • With the coming change in the administration, the president-elect’s allies in Congress sent a letter to the Chairman of the FCC demanding that the Chairman pause all work on controversial agency matters. The letter from House Energy and Commerce Chairman Frank Pallone, Jr. (D-NJ) and Communications and Technology subcommittee Chairman Mike Doyle (D-PA) was sent to Chairman Pai on November 10 and was echoed by public statements from Democratic Commissioners Jessica Rosenworcel and Geoffrey Starks.  (Pallone-Doyle Letter)  (Rosenworcel Statement)  (Starks Statement)
  • FCC Commissioner nominee Nathan Simington visited the Senate Commerce Committee this week to answer questions from senators in his bid to become the next Republican Commissioner. Several questions focused on Simington’s role in drafting NTIA’s Section 230 petition for rulemaking (read about Simington and Section 230 here and here).  Senator Richard Blumenthal (D-CT) announced that he would hold up Simington’s nomination until the nominee pledges to recuse himself from the FCC’s work on Section 230.
  • Two Louisiana FM stations filed their applications for license renewal about six months after their December 2, 2019 due date and now face $3,000 fines. These actions are another reminder that you need to pay attention to the license renewal application filing deadlines and be sure your application is filed with the FCC on or before the date your application is due.  Radio stations in Colorado, Minnesota, Montana, North Dakota, and South Dakota and TV stations in Alabama and Georgia should be reviewing their public files and getting their license renewal applications ready to submit by December 1, 2020.  We previewed this December 1 obligation, here.  (KLSP(FM) proposed file) (KVDP(FM) proposed fine)

Looking ahead to next week, there are three dates to watch on your calendar.  First, briefs are due to the Supreme Court by November 16 in the FCC v. Prometheus Radio Project case reviewing an appeals court reversal of the Commission’s 2017 decision revising its ownership rules (in advance of oral arguments and a decision in 2021).  Second, the FCC will hold its monthly Open Meeting on Tuesday, November 18, where the only media-related item on the agenda is a proposal to change the procedures for filing program carriage complaints against multichannel video providers.  We took a quick look at this, here.  We should also get a preview on November 18 of the agenda items up for consideration at the December 10 Open Meeting.  Third, the FCC moves closer to decommissioning its CDBS filing database when assignment and transfer applications are migrated to the newer LMS database.  Specifically, Forms 314, 315, 316, and 345 must be completed and filed through LMS starting November 18.  See our post, here, about the Public Notice announcing these changes.

While last Tuesday’s elections may well affect broadcast regulation in the future, there were several regulatory developments in the last week of immediate significance to broadcasters.  Here is a summary of some of those developments, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC this week announced some changes to the rules and procedures for filing certain applications.
    • Beginning November 18, Forms 314, 315, 316, and 345 will transition to the FCC’s Licensing and Management System (LMS) and will no longer be available in the Consolidated DataBase System (CDBS). These four forms relate to the assignment and transfer of control of broadcast station licenses and construction permits.  See our short blog post, here.  (Public Notice)
    • Noncommercial educational and LPFM parties filing Schedule 318 applications, Form 314 and 315 Assignment and Transfer of Control applications, and Schedule 340 NCE Construction Permit applications, as of October 30, have new rules and interim processing procedures to follow. The new rules that are now effective require information about reasonable assurance of transmitter site availability in construction permit applications, information on applications specifying LPFM directional antennas, and certifications regarding holding periods for stations received through point systems awards. The FCC staff still has some backend IT work to conform its forms to the new rules, so the Public Notice details how to provide the required information in the meantime.  We wrote about this on our blog, here.  (Public Notice)
  • Comments are due on or before November 20 on the FCC’s proposal to establish a ten-application limit in the 2021 filing window for new noncommercial FM stations. (Federal Register)
  • A Virgin Islands radio station and a Louisville, Kentucky radio station each face $3,000 fines for failing to file their license renewal application on time. Stay on top of your renewal application filing date, so you avoid a fine, avoid putting your license at risk, or both.  License renewal application filing deadlines for TV stations are here and the filing deadlines for radio are here.  (VI Notice of Apparently Liability for Forfeiture) (KY Notice of Apparently Liability for Forfeiture)
  • After a review of more than a year, the FCC granted iHeartMedia’s petition allowing it to exceed the 25% foreign ownership cap that applies to broadcast licensees. The FCC ruling is a good example of the process that the FCC goes through to assess whether to permit a company to obtain foreign investments above 25% to improve its financial position to better to compete in the media marketplace.  (Declaratory Ruling)

Earlier this week, we wrote that the FCC issued a public notice stating that Lowest Unit Charges (or lowest unit rates as they are often called) do not apply to post-election political ads (e.g. ads that urge ballots to be counted in any particular manner).  One important caveat to that advice is that LUC does apply to any elections that are held based on outcomes that were not determinative on Tuesday’s Election Day.  So, for instance, the run-off election (or elections) for the US Senate from the state of Georgia, that will be held on January 5, 2021, have an LUC period that begins today, November 6 – 60 days before that run-off.  The 60-day period applies as the run-off is considered by the FCC to be another general election.  Other states have similar rules for run-offs where no candidate receives 50% of the vote.  So if there are run-offs in your service area in which candidates want to buy political advertising time, LUC will apply to those elections, and you will need to compute the appropriate period for during which candidates cannot be charged more than the lowest unit charge for commercial advertising of the same class that runs in the same time period.

The FCC’s request for comments on the number of applications for new noncommercial FM stations in which one party can have an interest in the upcoming filing window was published in the Federal Register this week. We wrote about the FCC proposal to limit applicants to having an interest in no more than 10 applications in our article here.  This limit is proposed for the filing window for new noncommercial FM stations in the reserved band (below 92.1 on the FM band) expected in early 2021.  Comments are due November 20, with reply comments due on November 30.

While much of the world was focused on election results, the FCC announced its transition of a few more of its applications from the CDBS database that it has used for several decades to its newer LMS database.  The FCC’s Public Notice released earlier this week announced that assignments and transfer applications (both long-form Form 314 and 315 applications and short-form applications for pro-forma changes in ownership – like changes from one legal entity to another with no real change in control – filed on Form 316) will now be available in LMS.  Form 345 for the assignment or transfer of an LPTV station or an FM or TV translator will also be moved to LMS.  This follows the move of many FM technical applications to LMS last year (see our post here) as the FCC phases out the CDBS database.  The change will take place on November 18, 2020 and all applications previously filed on these forms in CDBS will be filed in LMS as of that date, as will all related pleadings and correspondence.

Earlier this week, the FCC announced that changes in its processing of LPFM and Noncommercial (NCE) full-power station applications became effective on October 30.  We wrote about some of those changes here and here.  Of immediate importance is the need to include a certification of reasonable transmitter site assurance in any application for any technical change to an LPFM or an NCE station – even for minor changes in the station’s facilities.  These certifications require a statement that the applicant believes that it has a commitment for the use of the proposed transmitter site, and requires the submission of the name and telephone number of the person who provided that assurance with some identification of who they are (e.g. owner, agent, or other authorized representative.  The rule changes also require certifications that applicants have met certain holding periods for the assignment or transfer of stations that resulted from a point system award when the applications for these new stations were mutually exclusive with other applicants in a filing window.  See the FCC’s Public Notice for complete information as to how to provide this information while the appropriate LMS forms are being updated to reflect these new changes.

The FCC also released a Public Notice announcing that October 30, 2020 was the effective date for changes to LPFM technical rules.  These changes allowed LPFM stations to use directional antennas (see our article here on that change in the FCC rules). The Public Notice provides details of the forms to be used by LPFM applicants to file an application for approval for the use of a directional antenna.