Broadcast Law Blog

Broadcast Law Blog

Actions Taken at July Meeting – FCC Adopts Changes to Children’s Television Rules and to TV MVPD Carriage Election Notices Procedures

By David Oxenford on Posted in Cable Carriage, Children's Programming and Advertising, Television

The FCC at its open meeting last week took two actions important to TV broadcasters – modifying its children’s television rules and changing the process by which TV stations give notice to MVPDs of their must carry or retransmission consent elections.  On the children’s television rules, the FCC largely adopted the proposals in their draft order, which we summarized here.  The major additions to the final version of the Order (here) were the individual statements of the Commissioners, where the Republicans supported the decision as a common-sense reaction to changing market conditions (including an increase in the number of over-the-air stations since the rules were initially adopted, as well as all sorts of new media competition), while the Democrats worried that moving some long-form educational and informational programming addressed to children off the broadcaster’s primary program streams, and the replacement of some of that programming with short-form programming, would have an adverse impact on children – particularly children in lower-income households with less access to digital alternatives.  The new rules will become effective after their publication in the Federal Register.  Comment dates on the Further Notice of Proposed Rulemaking to consider whether TV broadcasters can be relieved of some children’s television obligations by supporting the development of educational and informational programming on other TV stations will also be determined after Federal Register publication.

Also adopted at the meeting was a Report and Order setting out new rules allowing TV broadcasters to give notice of their next set of must-carry or retransmission consent notifications electronically rather than by certified mail, as is currently required.  The Order sets out a process where, before the next election deadline in October 2020, broadcasters need to include in their online public files a statement as to whether they have elected must-carry or retransmission consent on MVPDs in their market (and, if the station has elected one carriage option for all systems, the notice can be as simple as “Station WXYZ has elected must-carry on all cable systems in the Anytown DMA”).  If the station decides to change that election for any MVPD, they notify the MVPD of the change by email.  MVPDs must register a contact person for the receipt of such notices in their public files and in the FCC’s COALS database, so that broadcasters know who to contact if they are planning to change their election.  The broadcaster emails its notice of a changed election to the cable system (with a copy to a new FCC email address) and puts a copy of the election in its online public file.  The cable system is supposed to electronically acknowledge the receipt of the notice (if it does not, the broadcaster is supposed to call the COALS-registered person at the registered phone number to make sure that the notice has been received – but if there is no response, the FCC and public file notices will suffice.  Of course, not having this information in a TV station’s public file would be a violation of the public file rules. Continue Reading

More Time for Comments on DOJ Review of ASCAP and BMI Consent Decrees – Now Due August 9

By David Oxenford on Posted in Broadcast Performance Royalty, Intellectual Property, Internet Radio, Music Rights

In a very important proceeding we summarized here, the Department of Justice’s Antitrust Division is reviewing the antitrust consent decrees that govern ASCAP and BMI – the decrees that require that these performing rights organizations treat similarly situated licensees (and artists) in the same way and which allow a Court to review the reasonableness of the rates that ASCAP and BMI propose. Those comments were initially due tomorrow, but the DOJ announced on its website that the comment deadline has been extended until August 9, giving interested parties more time to prepare and document their submissions.  As broadcasters and internet audio companies rely on the consent decrees to regulate the fees that they pay for the public performance of musical compositions, this extension should give more parties the opportunity to consider how important these decrees are to the efficient operation of the entertainment marketplace and file their comments by the new deadline.

FCC Highlights State EAS Plans – Is Your Station Doing What It is Supposed to Be Doing?

By David Oxenford on Posted in Emergency Communications

The FCC earlier last week posted on its Blog an article from the Chief of its Public Safety and Homeland Security Bureau about state EAS plans, stressing how important these plans are to making sure that any emergency message conveyed through an EAS alert is properly transmitted to all who are supposed to receive it, so that it ultimately reaches the members of the public who should be aware of the emergency situation which triggered the alert.  The article contains a link to all of the state EAS plans that have been submitted to and approved by the FCC.  The FCC urges that state EAS managers regularly review and send updates to these plans to the FCC at least yearly and urges stations to review the plans to make sure that they comply with their state requirements by monitoring the stations or other sources that they are supposed to monitor to get the emergency information which they relay to the public.  As broadcast employees and stations change ownership and call letters change over time, it is important that stations review their state plan and alert their state EAS committee of any needed changes. Only with an updated and accurate plan can the FCC be assured that word gets out to the right people in the event of an emergency.  A link to the state plans available is available here on the FCC website.

The need to review these plans is particularly important given the upcoming EAS test. As we wrote here, a Nationwide EAS test is scheduled for August 7. All broadcast stations have an obligation to report to the FCC on their ability to receive and retransmit the nationwide test. Last week was the due date for the updating of ETRS Form One which makes sure that information about EAS participating stations is accurate. Once the test is conducted, stations need to report on the day of the test, using ETRS Form Two, whether they received and broadcast the alert message. Flaws in EAS operations and incorrect monitoring of assigned stations could become evident at that time. So this is a good time to check your monitoring assignments and the state of your EAS equipment to make sure that, when the test is conducted, your station will be able to report that it received the alert as expected and, more importantly, in the event that there is a real emergency, your station will be in a position to relay important emergency information.

More on CBD – FDA Taking Comments on the Production, Sale and Marketing Through July 16

By David Oxenford on Posted in Advertising Issues, Programming Regulations

We have written several articles (see our articles here and here) about the regulation of CBD and the risks inherent in the broadcast of advertisements for these products.  CBD is in a legal limbo, as the Farm Act of 2018 took hemp products with less than .3% THC off the list of prohibited drugs on Schedule I of the Controlled Substances Act, but the production of these products is still subject to rules that have not yet been written by the USDA.  Moreover, CBD products that are marketed as drugs or which are contained in food are regulated by the FDA and their advertising is regulated by the FTC (see our article here).  The FDA last week published a long article on its website setting out the state of its regulation of CBD, noting that it was still studying the health effects of these products, as well as issues relating to the sale and marketing of CBD.  The FDA is taking comments on CBD issues through July 16 (see the notice here extending the comment deadline which was originally July 2), and urges interested parties to file comments on the issues raised in its proceeding.

While CBD products seem to be everywhere, in the last week, perhaps influenced by last week’s FDA article, there were two articles of note in DC publications noting the legal ambiguity of CBD products (see the Washington Post article here and the Morning Consult article dealing with online advertising issues here).  These are the same issues that we have been highlighting for broadcasters over the last few months.  These products are ubiquitous, but their use may not be legal in many states, and the promotion of certain uses (particularly anything that is ingested or any use claiming specific health benefits) is clearly a concern to federal authorities.  So, when approached by potential marketers of CBD products, broadcasters need to carefully discuss with their legal advisors the specific advertisement and its ramifications and a make a decision whether the revenue from the ad is worth the risk of its airing in light of these regulatory uncertainties.  Hopefully, the FDA and other government agencies will move quickly to resolve this legal limbo in which these products now exist.

FCC Adopts Notice of Proposed Rulemaking to Review EEO Rules

By David Oxenford on Posted in EEO Compliance/Diversity

When the FCC initiated its most recent EEO audits, we mentioned that the Commission was planning a rulemaking to review the effectiveness of its EEO rules for broadcasting and multi-channel video operators. The FCC’s Notice of Proposed Rulemaking seeking to review these rules has now been released. This review was prompted by complaints raised in connection with the abolition of the FCC Form 397 Mid-Term EEO Report (see our articles here and here) that the rules were not doing enough to foster minority hiring.

The NPRM raises few specific issues. It instead asks a series of general questions asking for comments on the effectiveness of the Commission’s current EEO program, and what actions the FCC could take to make it more effective. The only specific issue identified in the NPRM as a potential problem area is the concern that the outreach for recruits to fill job openings may be done in some instances after the jobs that are being advertising have already been filled. The NPRM asks whether that is in fact happening and what can be done to prevent such practices. Otherwise, the request is a general one looking for suggestions on how to make the EEO recruitment process more effective. Comments will be due 30 days after the NPRM is published in the Federal Register, with reply comments due 45 days after that publication.

July Regulatory Dates for Broadcasters – Quarterly Issues Programs and Children’s Television Reports, Renewal Announcements, Copyright Filings, EAS, EEO and More

By David Oxenford on Posted in Cable Carriage, Children's Programming and Advertising, Digital Television, EEO Compliance/Diversity, Emergency Communications, FCC Fees, FM Radio, General FCC, Incentive Auctions/Broadband Report, Intellectual Property, License Renewal, Music Rights, Programming Regulations, Public Interest Obligations/Localism, Television

July is an important month for regulatory filings – even though it is one of those months with no FCC submissions tied to any license renewal dates. Instead, quarterly obligations arise this month, the most important of which will have an impact in the ongoing license renewal cycle that began in June (see last month’s update on regulatory dates, here).  Even though there are no renewal filing deadlines this month, radio stations in Maryland, Virginia, West Virginia and DC must continue their on-air post-filing announcements on the 1st and 16th of the month.  On these same days, pre-filing announcements must be run by radio stations in North and South Carolina, who file their renewals by August 1.  Stations in Florida and Puerto Rico, who file on October 1, should be prepared to start their pre-filing announcements on August 1.  See our article here on pre-filing announcements.

Perhaps the most important date this month is July 10, when all full power AM, FM, Class A TV and full power TV stations must place their quarterly issues/programs lists in their online public inspection files.  The issues/programs list should include details of important issues affecting a station’s community, and the station’s programming aired during April, May, and June that addressed those issues.  The list should include the time, date, duration and title of each program, along with a brief description of each program and how that program relates to a relevant community issue.  We have written many times about the importance of these lists and the fact that the FCC will likely be reviewing online public files for their existence and completeness during the license renewal cycle – and imposing fines on stations that do not have a complete set of these lists for the entire license renewal period (see, for instance, our articles here, here and here).  So be sure to get these important documents – the only official documents that the FCC requires to show how a station has met its overall obligation to serve the public interest – into your online public file by July 10.  Continue Reading

FCC Releases Draft Order on Changes to Children’s Television Rules – Action Expected July 10

By David Oxenford on Posted in Children's Programming and Advertising, Programming Regulations, Television

In anticipation of its July 10 open meeting, the FCC last week released its draft Order making changes to its rules requiring television stations to broadcast specific amounts of educational and informational programming directed to children.  The current rules require that stations air an average of three hours of such programming every week for every channel of programming they broadcast.  The current rules also impose all sorts of restrictions on programming for it to be considered “Core Programming” that can be counted toward meeting the three-hour per channel obligation.  The draft Order, if adopted at the July meeting, would ease some of the restrictions and, perhaps most importantly, eliminate the requirement that, for each multicast channel, three hours of unique educational programming directed to children be broadcast.

The Commission surveyed the current TV marketplace and found that, in the 15 years since it adopted the requirement that there be 3 hours of programming per multicast channel, much more educational and informational programming for children has become available – through public broadcasting and through new programming sources, including those delivered online.  Providing those three extra hours of educational and informational programming imposed significant cost burdens on broadcasters (even a weather radar channel carried with it a three-hour children’s programming obligation) for seemingly little benefit given the availability of so much other kids’ programming elsewhere.  The FCC draft Order also would change some of the specific requirements for station’s primary video channel. Continue Reading

Another EEO Audit Released – Looking at the FCC’s Current EEO Obligations

By David Oxenford on Posted in EEO Compliance/Diversity

The FCC yesterday released another of its regular EEO audit notices (available here), asking that approximately 80 radio stations, and the employment units with which they are associated, provide to the FCC (by posting the information in their online public inspection file) their last two year’s EEO Annual Public File reports, as well as backing data to show that the station in fact did everything that was required under the FCC rules. Audited stations must provide copies of notices sent to employment outreach sources about each full-time vacancy at the stations as well as documentation of the supplemental efforts that all station employment units with 5 or more full-time employees are required to perform (whether or not they had job openings in any year). These non-vacancy specific outreach efforts are designed to educate the community about broadcast employment positions and to train employees for more senior roles in broadcasting. Stations must also provide, in response to the audit, information about how they self-assessed the performance of their EEO program. Stations that are listed in the audit notice have until July 29, 2019 to upload this information into their online public file.

The FCC has promised to randomly audit 5% of all broadcast stations each year. As the response (and the audit letter itself) must be uploaded to the public file, it can be reviewed not only by the FCC, but also by anyone else with an internet connection anywhere, at any time.  The license renewal cycle which just began adds to the importance of this audit, as a broadcaster does not want a recent compliance issue to headline the record the FCC will be reviewing with its license renewal (see our article here about the upcoming license renewal cycle). So this is a good time for broadcasters to review what is required by the FCC’s EEO rules. Continue Reading

Preparing for the 2020 Elections – Our Updated Political Broadcasting Guide

By David Oxenford on Posted in Advertising Issues, Political Broadcasting

2020 will no doubt be a very active year for political advertising. To help broadcasters sort out the confusing rules they need to follow in connection with such advertising, we have updated our Political Broadcasting Guide for Broadcasters (note that the URL for the updated version has not changed from prior versions, so your bookmarks should continue to work). The revised guide is much the same as the one that we published two years ago, formatted as Questions and Answers to cover many of the issues that come up for broadcasters in a political season. This guide is only that – a guide to the issues and not a definitive answer to any of the very fact-dependent legal issues that arise in election season. But we hope that this guide at least provides a starting point for the analysis of issues, so that station employees have a background to discuss these matters with ad buyers and their own attorneys.

In looking at the Guide that we prepared two years ago, really not much has changed. The online public inspection file has now become a reality for all broadcasters, so that adds a new layer of transparency (and scrutiny) to broadcasters’ political advertising decisions. There also has been some discussion of the disclosures necessary for issue advertising – though because this guidance is still somewhat up in the air (see our posts here and here), our Guide highlights the questions and our understanding of where the FCC appears to be heading on this topic. We have also made some clarifications and updates on other issues based on issues we have seen arise in the last year.

Again, this Guide is just a starting place for analyzing political broadcasting issues, but we hope that many broadcasters find it to be helpful in giving them some of the tools that are needed to analyze the complex questions that come up during this election year. But resolving these issues is very dependent on the facts of any particular situation, so stay in close touch with your attorneys and advisers experienced in these issues to make sure that you get the law right. In the upcoming months, I will be doing a number of seminars on these rules for various broadcast associations – watch for announcements on those in the coming months. Last week, I spoke at the Iowa Broadcasters Association annual convention, where broadcasters are already gearing up for their Presidential caucuses early in 2020. With the Democratic debates starting this week, it looks like we are about to enter this crazy season. We trust that our Guide will assist broadcasters in spotting issues in this very active political year.

FCC Incubator Order Becomes Effective Just as Third Circuit Hears Arguments on 2017 Order Relaxing FCC Broadcast Ownership Rules

By David Oxenford on Posted in EEO Compliance/Diversity, FM Radio, Multiple Ownership Rules, Television

The Office of Management and Budget, acting pursuant to the Paperwork Reduction Act, has just approved the FCC’s broadcast incubator program, about which we wrote here.   That approval makes the program effective.  The program permits an established broadcaster to provide assistance to a new broadcaster (generally, a qualified small business) to enter the radio broadcast industry.  If, over a 3-year period, the assistance provided by the existing broadcaster (usually either financial assistance or management training) is deemed a success, the established broadcaster can receive a credit allowing it to purchase a station in excess of the radio ownership limits allowed for broadcasters in a market of similar size to the one in which the incubation occurred.  It is interesting that this rule became effective just as the US Court of Appeals heard oral argument on the question of whether that program does enough to encourage new entrants into broadcast ownership to meet court-imposed obligations to address these issues.

The oral argument is on the appeal of the FCC’s 2017 ownership decision which, among other things, did away with the prohibition on newspaper-broadcast cross-ownership and the rule that required that there be 8 independently owned TV stations in a market before one owner could own two stations in that market.  The appeal, as we wrote here, essentially argues that the FCC has not done enough to promote minorities and other new entrants to get into broadcast ownership.  Reports are that the judges asked the FCC many questions at yesterday’s argument as to whether the FCC had enough data to conclude that the changes that were made in 2017 were in the public interest and would not unduly burden new entrants who want to get into media ownership. Continue Reading