Looking at “Legal” Marijuana and CBD Advertising – A Presentation on the Issues

Perhaps some of the most controversial areas in broadcast advertising are those surrounding the advertising of cannabis products. While many states claim to have legalized marijuana, either for medical or recreational purposes, the Federal government still considers its possession and distribution a felony, and has specific laws that criminalize the use of radio frequencies, the Internet, and publications to promote its use. At the same time, the Federal government has recently decriminalized the possession of various hemp-based products with less than .3% THC (the psychoactive ingredient in marijuana) in the 2018 Farm Act. This has led to an explosion in the sale of CBD products – even though the production of such products is, for the most part, to only be conducted after either the adoption of state laws approved by the US Department of Agriculture or under Federal rules that the USDA is supposed to approve – none of which has happened yet. With all these issues outstanding, I was recently asked to talk about the advertising issues surrounding these products before a continuing legal education seminar sponsored by the New York State Bar Association. The slides from my presentation are available here.

As we have advised broadcasters before, because they are Federal licensees, and marijuana is still a federally prohibited substance, there is substantial risk in running any advertising for products supposedly “legal” in the state in which they are being used. These ads are particularly of concern during the license renewal cycle that begins next month, as objections from anti-marijuana activists could put this issue directly before the FCC. Even though states may have adopted rules governing advertising for these products, the federal law still poses great risks for broadcast licensees – just as it does for other federally-regulated entities. That is one of the reasons that federally-chartered and insured banks have stayed away from taking deposits from marijuana-related businesses (a bill is presently pending in Congress to allow banks to take deposits, but its prospects are uncertain). Continue Reading

What Do New Drug Ad Price Disclosures Mean for TV?

By David Oxenford on May 15, 2019 Posted in Advertising Issues, Television

Last week, the US Department of Health and Human Services (HHS) adopted a new rule mandating, at some point later this year after Paperwork Reduction Act approval, that prescription drug advertising on TV contain certain price information. Specifically, HHS will require TV ads for prescription drugs covered by Medicare or Medicaid to include the list price for a month’s supply or for the usual course of therapy, if that price is $35 or more. While some advertising groups argue that this requirement is an unconstitutional infringement on free speech (see this article from the ANA – the Association of National Advertisers), assuming that the rule goes into effect as planned, what effect will the rule have on TV?

Most importantly, the new rules do not impose obligations on TV stations themselves. Instead, the rule looks to the Lanham Act for enforcement. As noted in the HHS rulemaking order, that means that the primary means of enforcement will be by one drug manufacturer suing another for failing to meet the new guidelines under Lanham Act provisions governing false and misleading advertising. Thus, it appears that TV stations themselves will not be principally in the line of regulatory fire on this issue. But, as with any other government-mandated advertising disclosure, broadcasters should be aware of their clients’ obligations to make sure that clients are not putting themselves at risk, and be sure that in any production done for an advertiser, the ads are placed appropriately and presented against a contrasting background for sufficient duration, and in a size and font style that allows the information to be read easily. So far, the rules have not been extended to radio or online, but HHS says that they will monitor advertising to see if future additions are warranted. Obviously, check with your own counsel for more details on this new requirement – and be prepared when one more disclosure likely comes your way later this year.

Video Looking at the Basics of the Online Public Inspection File and Quarterly Issues Programs Lists

By David Oxenford on May 13, 2019 Posted in FCC Fines, General FCC, License Renewal, On Line Media, Programming Regulations, Public Interest Obligations/Localism, Uncategorized

Looking for a brief explanation of the online public inspection file and Quarterly Issues Programs List, and how they will be viewed in connection with the upcoming license renewal cycle – including the potential fines for violations of the rules? The Indiana Broadcasters has just released this video of me discussing those issues available here.

We have written in more depth about these issues, including our discussion of the importance of the online public file for the renewal process (here and here), the importance of Quarterly Issues Programs lists (here) and the required content of the online public file (here and here). With the license renewal filing process starting for radio stations in June (see the schedule of filing for stations, which is done on a state by state basis, here) and for TV a year later, these obligations, while basic, are very important. So if you have questions about these issues, check out these resources, and contact your own legal advisor for more information.

FCC Adopts New Rules on FM Translator Interference – With Some Changes

By David Oxenford on May 10, 2019 Posted in FM Radio, FM Translators and LPFM

At its open meeting yesterday, the FCC largely adopted the draft order on changes to its processes for resolving complaints about interference from FM translators to existing FM stations. Its final Report and Order adopting the new rules was released after the meeting yesterday. The general guidelines that we detailed in our summary of the draft order were adopted – so that complaints will generally be considered only when they are from within a primary station’s 45 dBu contour (with a potential for consideration of complaints from outside that contour through a waiver process, where the complaining station shows that there is a significant pocket of listeners outside that contour), and only when a threshold number of bona fide listener complaints have been filed. When a sufficient number of complaints have been filed, the FCC will ask the operator of the translator to either resolve all complaints by resolving the interference complaints of each of the complaining listeners or by working with the operator of the pre-existing station. If no resolution can be worked out, the parties to the dispute are to engage a third party consulting engineer. FCC will make the final determination whether the interference has been resolved based on information provided by the third-party engineer. If the interference is not resolved to the satisfaction of FCC staff, a translator can be ordered off the air.

The biggest change from the draft order is in the number of complaints necessary to sustain a complaint in bigger markets. In the draft order, the Commission proposed that a station with millions of people in its protected service area might need as many as 65 listener complaints to sustain an interference objection. The Order adopted yesterday changed that tentative decision and instead capped the number of listener complaints that were needed to support an interference claim at 25 for stations with over 2 million people in their protected contour. The FCC also made clear that listeners cannot be offered payment or other inducement for submitting a complaint. Finally, the Commission decided that it would resolve all complaints in 90 days unless there was a compelling reason for more time. Once the FCC has determined that an appropriate number of interference complaints have been filed, it will notify the parties of that fact, and provide intermediate deadlines for submission of a remediation plan or other benchmarks as appropriate. If nothing is resolved in 90 days, and there are no unusual circumstances warranting more time, the FCC may order the offending translator off the air at the end of that period. Continue Reading

FCC to Hold Public Forum on ENT Captioning of Live TV Programming Tomorrow, May 10

By David Oxenford on May 9, 2019 Posted in Emergency Communications, General FCC, Programming Regulations, Public Interest Obligations/Localism, Television

The FCC tomorrow will hold a public forum on Electronic Newsroom Technique (ENT) of captioning live TV programming tomorrow from 1 PM to 4:45 PM Eastern Time (see the agenda here). The forum will be available for viewing online (go to the FCC webpage here for information about connecting). This forum may provide a good refresher for stations still using ENT to caption live programming to make sure that they are providing the quality captioning that the FCC expects as outlined in its orders on captioning quality that went into effect on June 30, 2014.

We wrote about some of the goals of the captioning quality proceeding here. The FCC itself has released a good compliance guide, which reminds broadcasters that TV stations that are not Top 25 market affiliates of the Top 4 TV networks can still rely on ENT, but they must be sure that the captions accurately convey what is being said by those speaking during on-air live or near live programing. Specifically, the compliance guide notes these FCC requirements to insure that the ENT captions reflect what is being said on the air:

In-studio produced news, sports, weather, and entertainment programming will be scripted.
For weather interstitials where there may be multiple segments within a news program, weather information explaining the visual information on the screen and conveying forecast information will be scripted, although the scripts may not precisely track the words used on air.
Pre-produced programming shall be scripted (to the extent technically feasible).
If live interviews , live on-the scene, or breaking news segments are not scripted, stations will supplement them with crawls, textual information, or other means (to the extent technically feasible).
The station will provide training to all news staff on scripting for improving ENT.
The station will appoint an “ENT Coordinator” accountable for compliance.

Stations still relying on ENT to meet their captioning responsibilities should review tomorrow’s discussion either live or when it is archived to assure that they are meeting all their responsibilities in following these FCC rules.

FCC Seeks Comments on Univision Request to Exceed 50% Foreign Ownership

By David Oxenford on May 9, 2019 Posted in General FCC, Multiple Ownership Rules, Public Interest Obligations/Localism

The FCC this week released a Public Notice soliciting comments on the request of Univision, which owns US radio and TV stations, to have foreign ownership that exceeds 50%. As we wrote here, the FCC previously permitted foreign ownership of up to 49% of the company. With a restructuring of its investors, the company is now seeking permission for foreign investors to own up to 70% of the company. As we have written here and here, the FCC will permit foreign investors to own a interests above 25% in companies that control licensees of US broadcast stations. But any such ownership first must be reviewed by the FCC and other government agencies to insure that there are not national security issues. Once approved, in the absence of any extraordinary circumstances, the FCC will allow an approved foreign investor to acquire interests in more stations in the US, and to increase their interest in a company to the extent provided that, if they have not been previously approved in a controlling position, they will need specific approval for such ownership. Here, as the foreign investors had previously been approved in a non-controlling position, further Commission approval of the ownership of more than a 50% interest in the company was required.

While substantial foreign investment in US broadcasting companies is not commonplace, more and more transactions have been approved in recent years (see, for instance, our articles here and here) as the FCC appears to have become comfortable to the notion that investors from many foreign countries pose no threat to the public interest.

May Regulatory Dates for Broadcasters – License Renewal Activities and Lots of Comment Dates

By David Oxenford on April 25, 2019 Posted in AM Radio, EEO Compliance/Diversity, FCC Fees, FM Radio, FM Translators and LPFM, General FCC, Incentive Auctions/Broadband Report, License Renewal, Low Power Television/Class A TV, Multiple Ownership Rules, Noncommercial Broadcasting, Television

With the June 3 filing deadline fast approaching for license renewals for radio stations in Maryland, DC, Virginia and West Virginia, stations (including FM translators and LPFMs) licensed to any community in any of those states should be beginning to prepare their applications. As we wrote here, the FCC forms should be available next week, so once May 1 rolls around, early birds in those states can start to file their renewal applications and the accompanying EEO program report. These stations should also be running their pre-filing license renewal announcements on the 1^st and 16^th of May. Radio stations in the next renewal group, stations in North and South Carolina, should be prepared to begin their license renewal pre-filing announcements in June – so in May they should be recording and scheduling that announcement to run for the first time on June 1 (see this article on pre-filing announcements for more information).

While May is one of those months with no other regularly scheduled regulatory filing deadlines, it is full of other FCC deadlines including comment dates in several proceedings of importance to broadcasters. In addition, broadcasters in Arizona, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, Wyoming, and the District of Columbia that are part of an Employment Unit with 5 or more full-time employees should also be preparing to add to their online public inspection file their Annual EEO Public File Report – due to be added to their files by June 1. Continue Reading

C Band Earth Station Registration Updates Due May 28

By David Oxenford on April 24, 2019 Posted in General FCC

Earlier this month, the FCC released a Public Notice announcing that companies that are licensees, or have otherwise registered their fixed C Band satellite earth stations in the 3.7 to 4.2 GHz band, must certify the accuracy of the information on file with the FCC by May 28, 2019. Operators of fixed earth stations who filed registrations last year between April 19 and October 31 using the simplified process that the FCC allowed during that period are exempted from this updating process (see our posts here and here on last year’s window). However, registrants and licensees of transportable or temporary fixed earth stations, including those registered last year, have additional required registration requirements during this same window. These filings will be considered by the Commission in connection with their consideration of expanded uses of this spectrum. So broadcasters with earth stations in this band should familiarize themselves with this new filing requirement, and be sure to file, if required, by the May 28 deadline.

FCC Makes Available TV Incentive Auction Information for Non-Winning Bidders

By David Oxenford on April 24, 2019 Posted in Broadcast Auctions, Incentive Auctions/Broadband Report, Television

The FCC this week released a Public Notice announcing that it was making available information about all bidders in the TV incentive auction – including information about TV stations who had bid to surrender their licenses in the auction and were unsuccessful in those bids. The FCC had promised to keep that information confidential for two years after the conclusion of the auction. Proving how time really does fly, that two year period has now run its course since the FCC released its Incentive Auction closing notice. So if you are interested in the stations willing to surrender their licenses who were not selected in the auction, that information is available on the Auctions section of the FCC website, here.

FCC Releases Proposed Revised Rules for Resolving FM Translator Complaints – Order to be Considered at May 9 Commission Meeting

By David Oxenford on April 22, 2019 Posted in FM Translators and LPFM

The FCC last week released a draft order (available here) in its proceeding looking at revising the procedures to resolve complaints of interference by translators (and certain LPFM stations) to existing FM stations. The draft order proposes many changes to the current process. For the most part, these changes will provide more certainty to translator operators as to whether the new translator they are constructing will be subject to being forced off the air, while making it somewhat more difficult for full-power stations to sustain a claim of interference from new translators. We wrote about the FCC’s initiation of this proceeding here and here.

The headline in many reports about this draft order is the FCC’s tentative decision to allow translators that do cause interference to move to any available FM channel to resolve that interference. In the past, channel moves have been limited to moves to adjacent channels that would be considered a “minor change” by the FCC. In many markets, this will provide the translator operator more opportunities to continue to operate its translator if it does in fact create areas of new interference. Of course, in some spectrum-limited markets, there may not be an alternative channel on which a new translator can be authorized if it has to move off its initial channel (and interference complaints may well be more likely in such spectrum-limited markets as the translator operator may not have had many channels that were clearly free from interference concerns from which to select). But the proposed new rules would also make objections harder to support. Continue Reading