A recent controversial court of appeals decision on a defamation claim brought by Congressman Devin Nunes sends a signal to broadcasters about the care they need to give to reviewing commercial messages – particularly political attack ads – when questions are raised as to the truth of the assertions made in those ads.  As we have written before, broadcasters are immune from civil liability for defamation claims when they broadcast an ad from the campaign of a legally qualified candidate, as a station cannot censor a candidate ad.  Because broadcasters must transmit the ad as produced, they are immune from liability for its content.  But ads from non-candidate groups, including political parties and PACs, can be censored by stations – so stations that decide to run such ads are subject to liability for their content.  Under Supreme Court precedent, defamation of a public figure (like a political candidate) is found when material is transmitted to the public that is false and results in injuries to the candidate plus, unique to public figures, the ad was transmitted with “actual malice.” Malice means that it was transmitted either knowing that the ad was false or having reason to believe that it was false.  See our article here about the analysis of this issue in other cases.  When a broadcaster receives objections alleging that content in the ad is false, it can be argued that the station has been put on notice that it has an obligation to assess the truth of the ad, and thus would need to take it down if the ad includes defamatory claims being made.

We recently wrote about the opinions from two Supreme Court justices suggesting that it should be easier for public figures to prove defamation claims. The case that led to the recent court of appeals decision began when Congressman Nunes brought a defamation lawsuit in response to a magazine’s publication of allegations that his family’s farm used illegal migrant labor and suggested that his political positions against immigration were thus hypocritical.  That lawsuit urged the same change in defamation law suggested in the Supreme Court opinions, and also alleged that the implications in the article were false, as Nunes know nothing about the migrant laborers.  A few months later, a reporter tweeted a link to the article, suggesting that his twitter followers look at the allegations in the article.  While the court found that the article itself was not defamatory (since the publisher had no reason to believe the information in the article was false at the time of publication, and thus acted without malice), it also found that the reporter’s tweet was potentially defamatory since, after the article was published, Nunes had filed his lawsuit against the magazine claiming that the article’s suggestion that he knew about the illegal workers was false.  The court held that a summary decision in favor of the reporter was not proper, finding that a jury could determine that the reporter’s tweet was defamatory even though the underlying article was not, as the tweet came after the claim by Nunes that he knew nothing about the illegal workers. Continue Reading Defamation by Tweet – Court Case Reminds Broadcasters to Take Cease and Desist Requests about Attack Ads Seriously

Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.

  • The Copyright Office initiated a study of the rights of publishers, to explore ways to assist local journalism. The notice of inquiry seeks comments on the protections afforded to publishers under Copyright law and whether these protections should expand to shield publishers from the dilution of their product by digital services.  The study asks for comments on the rights of news aggregators and whether there should be additional limits on their distribution of information about stories that publishers originate.  In addition, the study asks whether there should be more protections for “hot news,” protecting the facts contained in such stories instead of just protecting the way those facts are expressed.  Ideas for reimbursing publishers for the use of their content by digital platforms, similar to laws recently adopted in Australia and in parts of Europe, are also part of the inquiry (see our article here for more on this idea).  Comments on notice of inquiry are due November 26, 2021 (Notice of Inquiry).  This study could lead to more protections for the news content of broadcasters, but also limit their ability to distribute content that originates with others.  Watch for more on this proceeding in our Broadcast Law Blog this week.
  • The FCC updated the list of applicants eligible to participate in Auction 111, an upcoming closed auction of LPTV and TV translator construction permits. The applicants who can participate in the auction submitted mutually exclusive applications either during a 2009 filing window for new LPTV stations or in a 2018 window for stations displaced by the Incentive Auction.  Short-form applications by auction participants are due between November 1 and November 9, 2021 and bidding begins February 23, 2022.  See the updated list of the construction permits available and eligible participants, here.  (Public Notice)
  • The FCC entered into a consent decree with a North Dakota noncommercial FM station over its failure to comply with the public file rules and its failure to file biennial ownership reports since 2014. As the biennial ownership report filing window is currently open through December 1, stations should make sure their reports are completed and filed on time, especially as the FCC is scrutinizing stations’ compliance with its rules during the license renewal process. (Consent Decree)

 

Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC issued a Public Notice to remind potential applicants of the upcoming filing window for applications for construction permits for new noncommercial educational FM stations. The application window will open at 12:01 am Eastern Time on November 2 and close at 6:00 pm Eastern on November 9.  Applications will only be accepted for construction permits in the FM reserved band (channels 201-220, 88.1 through and including 91.9).  The Public Notice also reminds broadcasters that there is a filing freeze in place on any application for a minor change that could impact potential filings in the window – freezing minor change applications by existing stations in the FM reserved band and by stations on unreserved channels adjacent to the reserved band (channels 221–223) and those on intermediate frequency (IF) channels (channels 254-274).  The freeze will be in place through November 9.  (Public Notice)
  • The FCC held an information session this past week to explain the requirements for the filing of Biennial Ownership Reports which must be submitted by commercial and noncommercial AM, FM, TV and LPTV operators by December 1, 2021. These reports inform the FCC of the ownership of each station as of October 1, 2021.  The FCC has already warned broadcasters that there will be enforcement penalties for stations that do not file these reports.  A replay of the information session is available on the FCC’s website, here, and on the FCC’s YouTube channel, here.
  • The FCC released a draft Order that cleans up FCC rules that apply to TV and LPTV stations by reflecting changes caused by the broadcast incentive auction and repacking process. If adopted, the Order will revise the DTV Table of Allotments to reflect the current, post-auction channels of TV stations.  The Order would also delete or revise FCC rules that, following the DTV transition, incentive auction, and repack, no longer have any practical effect.  Most of these rules involve references to channels that are no longer part of the TV band or procedures that only applied during the incentive auction and its immediate aftermath.  This Order should be adopted at the FCC’s regular monthly Open Meeting on October 26.  (Draft Order)
  • The FCC published its broadcast station totals as of September 30. The accounting shows 157 fewer stations are licensed now than were licensed at the end of June.  The most significant decrease came in the FM and TV translator category.  (Station Totals)

 

Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.

  • ViacomCBS and its subsidiary Pluto TV agreed to pay $3.5 million and enter into a consent decree with the FCC because Pluto failed to include captions in streamed programming that had previously been broadcast with captions on TV. The FCC’s investigation revealed that Pluto did not enable the delivery of captions provided by the programmer on numerous online platforms that carry Pluto TV, did not implement certain closed captioning functionalities, and did not make contact information for closed captioning complaints available to viewers.  Under FCC rules, all nonexempt full-length video programming delivered over the internet must be closed captioned, if the programming had previously been shown on television in the U.S. with captions.  (Order and Consent Decree)
  • The FCC issued a Public Notice reminding broadcasters that a two-month biennial ownership report window opened Friday, October 1 and will stay open through Wednesday, December 1. All licensees of commercial and non-commercial full power television, Class A television, low power television, AM radio, and FM radio stations must file a report with ownership information current as of October 1.  Filers can watch an online informational session hosted by FCC staff on October 5 at 2:00 p.m. Eastern that will explain the filing requirements.
  • At its monthly open meeting this past week, the FCC started a proceeding looking at ways to make communications networks more reliable and resilient during emergencies. As part of this effort, the FCC asked for comments on whether it should require broadcast stations to report their operational status during an emergency to the FCC using its Disaster Information Reporting System (DIRS).  The use of DIRS by broadcasters is currently optional.  The comment period will open after the Notice of Proposed Rulemaking is published in the Federal Register.
  • The FCC reviews the contents of stations’ online public files, especially as part of the license renewal process, and continues to fine TV stations for their failure to timely upload quarterly issues/program lists. In a decision released this week, an Alabama television station was fined $9,000 for uploading 5 lists more than one year late, 4 lists between one month and one year late, and 5 lists between one day and one month late, without providing an explanation for the late uploads.  (Notice of Apparent Liability for Forfeiture).  Broadcasters should remember that their next quarterly issues/programs list should be uploaded to their online public files by October 10.
  • The FCC adopted rules that formalize and standardize the national security and law enforcement questions to be answered by broadcast applicants seeking permission for foreign ownership in excess of 25%. The questions will be posted on the FCC website to give applicants advance notice of the information that they must submit.  (Report and Order)

 

As we enter the last quarter of the year, the broadcasters’ October calendar is full of important regulatory dates and deadlines.  We share some of those dates below and urge you to stay in close touch with your lawyers, engineers, and consultants for the dates and deadlines applicable to your station’s operations.

On or before October 1, radio stations in Alaska, American Samoa, Guam, Hawaii, Marianas Islands, Oregon, and Washington and TV stations in Iowa and Missouri must submit their license renewal applications.  Pay close attention to the contents of your online public file and be sure that all required documents are complete and were uploaded on time.  Stations filing their renewals (other than LPFMs) are also required to file a Broadcast EEO Program Report (FCC Form 2100, Schedule 396), submitting two years of EEO Public File reports for FCC review unless your employment unit employs fewer than 5 full-time employees.  As you are putting the final touches on your applications, be sure to read the instructions for the license renewal application (radio, TV) and consult with counsel if you have questions. Continue Reading October Regulatory Dates for Broadcasters: License Renewals, Broadcast Ownership Filings, Quarterly Issues/Programs Lists, Rulemaking Comment Dates and More

We are nearing the end of September and, in many jurisdictions we are in the heart of political season – though mostly for state and local elections. While most broadcast stations don’t think much about the FCC’s political broadcasting rules in odd-numbered years, they are required to do so, as races for state and local political offices trigger most of the same FCC obligations as do races for federal office.  There are particularly hard-fought elections for Governor in November in Virginia and New Jersey, and all sorts of state and local elections around the country.  These include some mayoral races in major US cities.  Thus, it is worth repeating the reminders that we have published before: most of the political rules apply to these state and local electoral races so broadcasters need to be paying attention.

Whether the race is for Governor or much more locally focused, like elections for state legislatures, school boards or town councils, stations need to be prepared. Candidates for state and local elections are entitled to virtually all of the political broadcasting rights of Federal candidates – with one exception, the right of reasonable access which is reserved solely for Federal candidates. That means that only Federal candidates have the right to demand access to all classes and dayparts of advertising time that a broadcast station sells. As we wrote in our summary of reasonable access, here, that does not mean that Federal candidates can demand as much time as they want, only that stations must sell them a reasonable amount of advertising during the various classes of advertising time sold on the station. For state and local candidates, on the other hand, stations don’t need to sell the candidates any advertising time at all. But, if they do, the other political rules apply. Continue Reading Remember – Political Ads for State and Local Races Trigger FCC Political Obligations

Here are some of the regulatory developments from 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.

  • At the last minute, the deadline for broadcasters to pay their annual regulatory fees was extended to Monday, September 27, 2021 at 11:59 PM Eastern Time. The deadline had been Friday, September 24.  Procrastinators need to file by the new date to avoid the 25% penalty for late-filed fees.  (Public Notice) (Fee Filer Website)
  • The FCC opened a rulemaking to consider whether unlicensed spectrum users, like large technology companies, should be required to pay annual regulatory fees. It has been argued that these companies receive benefits from FCC regulation and thus should pay fees that offset the FCC’s costs of operation, reducing the fees paid by regulated entities, including broadcasters. Commenters are invited to comment on whether the FCC has the authority to impose such fees and, if so, how such fees should be assessed.  Comments are due by October 21 and reply comments are due by November 5.  (Federal Register)
  • Both the Audio and Video Divisions of the FCC continued to penalize broadcasters for late uploads to their online public inspection files discovered during the license renewal process. One Class A TV station was issued an admonition for failing to timely upload 11 Quarterly Issues Programs Lists to its public file (all uploads were less than a month late).  Several other TV stations also received admonitions (admonitions can be considered in assessing penalties for future violations) for violations discovered by the FCC’s staff in their review of stations’ public files.  Among the actions taken against radio stations was a consent decree with a Kentucky AM station requiring a $4500 monetary penalty plus the requirement for a compliance plan imposing significant paperwork requirements.  The station had not submitted an EEO Program Report with its renewal application and had not uploaded to its public file quarterly issues programs lists during the renewal term.
  • The FCC issued rules for Auction 111, which is open to a limited group of applicants for low power TV and TV translator stations. The applicants who can participate in the auction submitted mutually exclusive applications either during a 2009 filing window for new LPTV stations or in a 2018 window for stations displaced by the Incentive Auction.  Short-form applications are due between November 1 and November 9, 2021 and bidding begins February 23, 2022.  (Public Notice) (Eligible Applicant List)
  • We wrote on our Broadcast Law Blog about the effort to bring back the old FCC Form 395-B which required broadcasters to report on the racial and gender make-up of their workforce in various job categories. Comments on the FCC’s Further Notice of Proposed Rulemaking proposing to revive this form are due by September 30 and reply comments are due by November 1.  (Broadcast Law Blog)
  • Fans of copyright law will enjoy reading our look at the federal court decisions that led to the termination of operations by streaming company Locast which, before the court orders, had been transmitting broadcast TV stations’ programming on the internet without the permission of the stations. (Broadcast Law Blog)

For next week, keep an eye on the Broadcast Law Blog for our monthly update on important broadcast regulatory dates and deadlines coming in October. Also, don’t forget that Monday, September 27, is the deadline for broadcasters to file ETRS Form Three.  This form details each station’s participation in the August 11 national EAS test, including whether the station received the test and relayed it successfully.  We wrote about the form, here.

Comments are due on September 30 on the FCC’s Further Notice of Proposed Rulemaking looking to bring back some form of the old FCC Form 395B, the Annual Employment Report.  That form required broadcasters to report on the racial and gender make-up of their workforce in various employment categories.  The use of the form has been on hold for almost two decades after two rulings from the US Court of Appeals that found it was unconstitutional for the FCC to use the information collected from the Form 395B to determine if a broadcaster’s license renewal application deserved extra scrutiny.  In effect, the court found using the reports in this way compelled broadcasters to make hiring decisions based on the race and gender of employment candidates, which was discriminatory and thus could not be compelled by the FCC.

This created a tension between a law requiring that the FCC gather information on the racial and gender make-up of the broadcast workforce to determine if affirmative action efforts should be made on an industry-wide basis, versus  the prohibition on gathering this information on a station-specific basis where the temptation would always be to look at a specific station’s data and make assumptions about whether it had been  in making employment decisions in color blind manner.  While the FCC has over the last two decades repeatedly considered bringing back the form to collect information on an industry-wide basis, questions have always arisen as to how the accuracy and completeness of that information could be assured if the information gathered did not identify the station providing it.  And, once that information was in hand, would it be subject to Freedom of Information Act (FOIA) obligations that could force its disclosure which could lead to it potentially being used in an enforcement context? Continue Reading The Return of FCC Form 395B?  – The FCC Looks at Reviving Reports on the Race and Gender of Broadcast Employees

In recent weeks, decisions of a US District Court judge in the Southern District of New York led to the suspension of service by the Internet streaming company Locast, which built its business on streaming local television stations generally without obtaining the consent of TV stations or the copyright holders in the programs they broadcast.  Facially, the service looked much like that offered by Aereo, which the Supreme Court determined seven years ago violated federal copyright law by retransmitting TV stations without first obtaining the consent of the copyright holders (see our article here on the Aereo Supreme Court decision).  Locast offered a novel defense to the claims that it was nothing but an Aereo imitator, contending that the Copyright Act permitts nonprofit entities to retransmit copyrighted materials without the consent of copyright owners.  The federal judge in the Southern District rejected that argument in his opinion on a motion for summary judgement, and then issued an injunction ordering the service to cease operating (though Locast had already suspended those operations after the initial decision on the motion for summary judgement).  What did the judge find?

Locast had argued that Section 111(a)(5) of the Copyright Act permits “secondary transmissions” of a “primary transmission” (i.e., an internet transmission of an over-the-air television signal) without permission of copyright holders if the retransmissions are made by a government body or nonprofit organization “without charge to the recipients of the secondary transmission other than assessments necessary to defray the actual and reasonable costs of maintaining and operating the secondary transmission service.”  This provision of the rules was intended to allow governments and local nonprofit associations in rural communities to provide TV translators or community antenna systems to bring television service to their communities.  Locast argued that the provision should also be interpreted to authorize its service, which interrupted service every 15 minutes to ask for donations unless a user paid a $5 monthly “contribution” to the service.  The judge determined that the payment of this $5 monthly fee took Locast outside the narrow “nonprofit organization” exception provided by the law. Continue Reading Looking at the Court Decision Which Led to the Shuttering of Locast’s Retransmission of Local TV on the Internet

Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.

  • In anticipation of this week’s deadline for payment of annual regulatory fees – 11:59 pm, Eastern Daylight Time on Friday, September 24, 2021 – the FCC’s Media Bureau released a guide to computing the fees due for broadcast stations (Media Bureau Fee Filing Guide) and made available a fee lookup webpage. A separate Fact Sheet on who is regularly exempt from paying these fees (including noncommercial stations and those payors with total obligations of $1000 or less) was also released this week.  Read our summary of all of the FCC notices on the procedures and requirements for paying these fees on our Broadcast Law Blog, here.
  • The FCC released a draft rulemaking that asks, among other things, whether broadcast stations should be required to report their operational status to the Disaster Information Reporting System (DIRS) when it is activated during an emergency. That reporting is currently voluntary.  If the rulemaking is adopted by the FCC, it would ask about the burden that mandatory reporting would place on stations in the middle of an emergency and whether the burden would impede coverage by the station of the emergency, whether the FCC has the legal authority to require reporting, and the penalties that could be tied to a failure to report.  The draft will be considered at the FCC’s September 30 regular monthly open meeting.  (Draft Notice of Proposed Rulemaking)
  • NAB and two other media trade groups are trying to delay the effective date of the FCC’s new rules which require the on-air identification of programs supported by foreign governments (and require research by broadcasters as to whether any buyer of program time is a representative of a foreign government), while the groups pursue a review of the rules in federal court. The groups argue that they are likely to win in court, so implementation of the rules before the court acts would be premature and unnecessarily costly for stations.  We mention the foreign government sponsorship identification rules in one of our weekly updates, here and the court case, here. (Petition for Stay)
  • A New York federal district court judge issued a permanent injunction blocking Locast from any further operation of its service which had retransmitted on the internet the programming from over-the-air television stations without consent of the stations. The same federal judge two weeks ago ruled that Locast’s operation violated federal copyright law.  We noted that decision, here.
  • About a hundred organizations wrote Acting FCC Chairwoman Jessica Rosenworcel urging the FCC to formally examine what is claimed to be the agency’s history of systemic racism in its policies and licensing. The letter calls on the FCC to “investigate its own history of anti-Black racism in the policies it has adopted” and to “identify reparative actions it will take to redress the structural racism that exists in our media system due to those FCC policies.” (Letter)  This letter comes as some of these issues may be considered in in comments due September 30 on the FCC’s rulemaking on whether to bring back the FCC Form 395, reporting on the racial and gender breakdown of each broadcast station’s workforce, and in the October 1 reply comments on the FCC’s inquiry into potential changes to its multiple ownership rules, including changes to the radio ownership rules, changes opposed by several organizations because of the alleged impact that changes would have on minority ownership (see our blog article here about the FCC inquiry on the ownership rules).