Artificial intelligence has been the buzzword of the last few months.  Since the public release of ChatGPT, seemingly every tech company has either announced a new AI program or some use for AI that will compete with activities currently performed by real people. While AI poses all sorts of questions for society and issues for almost every industry, applications for the media industry are particularly interesting.  They range from AI creating music, writing scripts, reporting the news, and even playing DJ on Spotify channels.  All these activities raise competitive issues, but there have also begun to be a number of policy issues bubbling to the surface. 

The most obvious policy issue is whether artistic works created by AI are entitled to copyright protection – an issue addressed by recent guidance from the Copyright Office suggesting that a work created solely by a machine is not entitled to protection, but that there may be circumstances where a person is providing sufficient guidance to the artificial intelligence such that the AI is seen as more of a tool for the person’s creativity, and that person can claim to be the creator of the work and receive copyright protection. 

Continue Reading Looking at the Some of the Policy Issues for Media and Music Companies From the Expanding Use of Artificial Intelligence

Every year at about this time, we worry that radio stations may be tempted to run some big April Fools’ Day stunt.  But, with the country seemingly on edge because of natural and human emergencies in the news almost every day, a prank that may seem funny to some could trigger concerns with others.  As we do every year about this time, we need to play our role as attorneys and ruin any fun that you may be planning by repeating our reminder that broadcasters need to be careful with any on-air pranks, jokes or other on-air bits prepared especially for April 1.  Particularly as the day falls on a Saturday this year, and less experienced personnel who may not be as familiar with legal concerns may be manning stations, a warning seems again to be appropriate.  While a little fun is OK, remember that the FCC has a rule against on-air hoaxes, and there can be liability issues with false alerts that are run on a station.  Issues like these can arise at any time, but a broadcaster’s temptation to go over the line is probably highest on April 1.

The FCC’s rule against broadcast hoaxes, Section 73.1217, prevents stations from running any information about a “crime or catastrophe” on the air, if the broadcaster (1) knows the information to be false, (2) it is reasonably foreseeable that the broadcast of the material will cause substantial public harm and (3) public harm is in fact caused.  Public harm is defined as “direct and actual damage to property or to the health or safety of the general public, or diversion of law enforcement or other public health and safety authorities from their duties.”  If you air a program that fits within this definition and causes a public harm, you should expect to be fined by the FCC.

Continue Reading Broadcasters Beware – April Fools Day Can Trigger FCC Concerns

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

  • FCC Chairwoman Rosenworcel announced a proposal which would require that all pay TV providers prominently display “all in” pricing on bills and in advertising so that consumers know what their monthly charges will be.  The News Release about the proposal states that its aim is to eliminate “the misleading practice” of describing video programming costs, including retransmission consent fees paid to broadcast stations, as a tax, fee, or surcharge rather than as part of the price of the service.  The News Release suggests that these practices make it difficult for a consumer to compare prices among competing video providers and can surprise consumers with unanticipated costs.  The details of the proposal have not been made public but are circulating among the FCC Commissioners for their consideration.
  • In a similar attempt to enforce billing transparency, the Federal Trade Commission (“FTC”) released a Notice of Proposed Rulemaking to amend the FTC’s existing “Negative Option Rule.”  That rule addresses “negative options” used in marketing and sales that come in a variety of forms, which each contain a term or condition that allows a seller to interpret a customer’s silence, or failure to take an affirmative action, as acceptance of an offer to sell and charge for goods or services. Negative option marketing generally falls into four categories: (1) prenotification plans (the only ones currently covered by FTC rules – like “book of the month clubs,” where a product is regularly offered to a consumer and then shipped and charged unless the consumer affirmatively declines the offer), (2) continuity plans (where a product is routinely shipped and charged to a consumer until they say to stop – like bottled water delivery services), (3) automatic renewals (like magazine subscriptions or credit monitoring services where subscriptions automatically renew upon expiration), and (4) free trial marketing where a free or nominal price offer is made which automatically converts to a paid plan with recurring charges after a certain period if not cancelled.  The proposal would amend the existing rule to: (i) expand its scope to cover all negative marketing practices and cover offers made in all media, including Internet, telephone, in-person, and printed material; (ii) require businesses to obtain consumers’ express informed consent before charging them for a good or service they subscribe to; (iii) require businesses to provide a simple cancellation mechanism to immediately halt any recurring charges; and (iv) require businesses to provide an annual reminder to consumers enrolled in negative option plans involving anything other than physical goods.  Comments on the Proposed Rule will be due 60 days after it is published in the Federal Register.
  • The FCC’s Media Bureau proposed to impose a $4,500 fine on the licensee of three Nevada television translator stations that without explanation filed its renewal applications nearly four months late. Ordinarily, the FCC’s rules require a fine of $3,000 per station for such a violation.  The Bureau reduced the fine to $1,500 per station in recognition of the fact that translator stations only provide a secondary service, but also provide important “fill-in” service to areas that otherwise may be unable to receive over-the-air television signals.  For similar reasons, the Bureau proposed to impose a $1,500 fine on a second Nevada television translator licensee (this time for only one station) and a $13,500 fine on a third Nevada television translator licensee (for nine stations) that each filed their renewal applications nearly four months late.
  • The Media Bureau, jointly with the FCC’s Managing Director, issued an Order to Pay or to Show Cause to an FM station that had not fully paid its annual regulatory fees for 2010, 2012, 2013, 2014, 2015, 2016, 2018, 2020, 2021 and 2022. The Order directs the station to either provide the Bureau with evidence of full payment (or, alternatively, a showing as to why payment is inapplicable or should be waived or deferred) in 60 days or risk revocation of its license. While this is an extreme case, it is another reminder that the FCC takes unpaid regulatory fees seriously, and that licensees must ensure that such fees are paid in a timely manner.
  • On our Broadcast Law Blog, we provided more information about the Request for Declaratory Ruling filed by the Florida Broadcasters Association, which we mentioned in last week’s summary of regulatory actions.  This request asks the FCC to conclude that political advertising not sponsored by a candidate’s official campaign committee is not entitled to lowest unit rates during the 45 days before a primary and the 60 days before a general election, even if that advertising claims to be authorized or approved by the candidate. 

In the 45 days before a political primary and the 60 days before a general election, ads by political candidates (federal, state, or local) airing on a broadcast station or inserted by a local cable system into the programming it transmits to the public are entitled to “lowest unit rates” (LUR).  That means that candidates get the best rate offered or sold to a commercial advertiser whose ads are of the same class of time and running in the same daypart or on the same program.  This includes getting the benefit of all volume discounts given to commercial advertisers without having to buy in the volume that the commercial advertiser would need to qualify for the discount.  We have written more about the details of some of the issues with computing lowest unit rate (or “lowest unit charge”) many times before (see, for example, our articles here, here, and here). 

In a request for declaratory ruling filed by the Florida Association of Broadcasters, an interesting question has been posed to the FCC – can other political advertisers who buy time during the LUR period be entitled to these low rates if they are “authorized” by the political candidate?  Normally, such non-candidate political ads (usually referred to as issue ads) are charged much higher rates than those charged to candidates.

Continue Reading Are Issue Ads By Non-Candidate Groups Entitled to Lowest Unit Rates Just Because a Candidate Approves the Ad?  The FCC Is Asked for Its Opinion

This week, the FCC released two Notices of Apparent Liability proposing to impose big fines on two pirate radio operators.  Using the enforcement tools – particularly the higher fines – authorized by the PIRATE Act passed by Congress in 2020, the FCC proposed a to impose a fine of $2,316,034 on one alleged operator of a pirate radio station in the New York City area, and a fine of $80,000 fine on another operator of a pirate station in Oregon.  We’ve written in the past about the FCC sending warning letters to landowners and pirate radio operators threatening big fines if they don’t cease operations (or, for landowners, if they don’t force their tenants to cease illegal operations).  But, as noted in the FCC’s Press Release, this is the first time since the adoption of the PIRATE Act that the FCC has gone beyond the warning phase to issue these notices of multimillion dollar “forfeitures” (fines) on pirate operators and, in the New York case, use the full force permitted by the law to levy the multimillion dollar fine.  Theoretically, the alleged pirates could respond to the Notices and contest the fines, but the FCC’s decisions seem adamant that these operators should be paying a substantial penalty.  It is probably no coincidence that these Notices were issued a little over a month after the FCC sent its annual report to Congress on its activities under the PIRATE Act, promising increased efforts to combat pirate radio in the new year. 

The New York pirate appears particularly brazen, prompting the largest fine yet levied against a pirate radio operator.  According to the Notice of Apparent Liability, two individuals have operated a pirate radio station in the New York borough of Queens for over a decade.  In 2013, the FCC’s Enforcement Bureau issued three Notices of Unauthorized Operation to the operators, warning them that their operations were illegal and needed to stop.  In 2014, agents personally confronted one of the operators who admitted ownership of the equipment, and again told him to stop operating.  When operations continued, a proposed fine of $20,000 was issued in 2015, but never paid or contested.   In 2016, as operations had continued, Federal Marshalls seized the station’s equipment.  Yet the pirate came back and continued operations – even using a website and social media to promote programs hosted by the two individuals named in this week’s Notice.  The FCC emphasized that the repeated, ongoing nature of the violation even after multiple warnings and prior government action prompted its substantial fine.  The PIRATE statute limits fines to $2,316,034 – otherwise, the FCC would have proposed a fine ten times larger, given the nature of the violation and the pirate’s apparent disregard of the FCC’s prior attempts to enforce the law.

Continue Reading Two Million Dollar Fine for Pirate Radio – Don’t Cross the Commission Again After You’ve Been Caught Once, Especially as More Enforcement Appears to be on the Way

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

  • As widely reported, Gigi Sohn has asked President Biden to withdraw her nomination to become the third Democratic FCC Commissioner (her statement to the Washington Post about her withdrawal is available here).  Had it been successful, Sohn’s nomination would have eliminated the 2-2 deadlock between Republicans and Democrats that has existed at the FCC for over two years.  Sohn’s withdrawal came shortly before Sen. Joe Manchin of West Virginia became the first Democrat to formally oppose her confirmation.  As of the date of publication of this article, the White House had not provided any updates regarding potential replacement nominees.  For a further discussion of Sohn’s withdrawal and its implications for broadcast regulation, see the article on our Broadcast Law Blog, here.
  • As we reported in our weekly update the week before last, the FCC’s Media Bureau issued a hearing designation order referring to an Administrative Law Judge for an evidentiary hearing questions about the proposed acquisition of the TEGNA broadcast stations by Standard General Broadcasting.  This week brings news that the parties have filed a Motion asking that the Judge certify this designation to the FCC Commissioners for a determination as to whether the case really should have been designated for hearing.  For more details on this matter and the legal issues associated with it, see our Blog article here.
  • The FCC issued an Order temporarily staying the March 6, 2023 sunset of the requirement that television station’s that convert to the new ATSC 3.0 transmission standard must maintain their primary broadcast streams in accord with the ATSC A/322 standard, which defines the waveforms that ATSC 3.0 signals must take.  In June 2022, the FCC issued a Third Further Notice of Proposed Rulemaking (Third FNPRM) seeking comment on, among other things, whether to retain the requirement that broadcasters comply with the ATSC A/322 standard and, if so, for how long.  The Order leaves the requirement in place indefinitely (thus maintaining the status quo) until the Third FNPRM is resolved.  In support, the Order notes that virtually all who commented on the Third FNPRM supported at least a temporary extension of the requirement; that it is unclear whether any consumer receive equipment could display 3.0 signals that are noncompliant with A/322; and that there is no information in the record indicating that any party would be harmed by the grant of an interim stay.
  • The FCC issued its Application Fee Filing Guide for its Media Bureau.  The Guide, which provides fee amounts and instructions for paying those fees, covers applications filed by, among others, commercial television stations, commercial AM and FM stations, TV translators and LPTV stations, FM translator stations, Class A television stations, and FM booster stations.  The FCC’s Managing Director subsequently issued an Erratum correcting the fees for certain types of AM applications.
  • The FCC’s Public Safety and Homeland Security Bureau issued a Public Notice encouraging broadcasters who did not file their Form One in the EAS Test Reporting System (ETRS) by the February 28, 2023 deadline to do so now. The Public Notice also provided information about FCC assistance that is available for applicants who have not yet filed this Form One which provides basic information about EAS participants and the EAS equipment that they use.  As we noted in an article on our Blog, the FCC has made clear that this filing is mandatory for virtually all broadcast stations and suggested that there may be consequences for those who have not filed.  This form is the first of three used to report on the results of Nationwide EAS tests – one of which is expected to be conducted later this year.  If your station has not filed the ETRS Form One yet, you should do so immediately. 
  • The FCC’s International Bureau released a Public Notice and a list of the C-Band earth stations that it has found to be “incumbent earth stations” entitled to reimbursement as part of the repurposing of part of this spectrum for wireless uses.  As set out in the Notice, all earth stations continuing to operate in the C-Band are required to register with the International Bureau’s filing system, and any earth stations that are deactivated must also be reported.  If you have C-Band earth stations, review this notice for more details. 
  • With the NCAA Basketball Tournaments for both men and women set to start this coming week, we published on our Broadcast Law Blog a two-part article (here and here) about the NCAA’s trademarks, how it protects those marks, and the legal issues that can arise in broadcast advertising and promotions tied to the tournaments. 
  • Via its “points system” for selecting among mutually exclusive applicants for NCE FM stations filed in the 2021 window for new NCE stations, the Bureau awarded a construction permit to an applicant for a new station at Baker City, Oregon.  The Bureau did so notwithstanding an informal objection by a third party alleging that the winning application should have been dismissed because its proposed directional antenna radiation pattern varied more than 2 dB per 10 degrees of azimuth in violation of section 73.316(b)(2) of the FCC’s rules.  The winning applicant subsequently amended its application to bring its antenna pattern into compliance with the rules.  The Bureau ruled that the antenna pattern was a curable defect and thus the winning applicant’s amendment was permissible, thus mooting the third party’s objection.  The Bureau also found that the winning applicant remained the winner on points even though its amendment resulted in reduced coverage that rendered it ineligible for a point under the “best technical proposal.”
  • The Bureau proposed to substitute Channel 287A for vacant Channel 280A at Peach Springs, Arizona to accommodate a proposed upgrade of an existing FM station from channel 280A to channel 280C2  at Fort Mohave, Arizona.  Channel 280A at Peach Springs became vacant due to the Bureau’s cancellation of the license of the station that previously occupied that channel.
  • The Bureau entered into a consent decree with a student-run NCE FM station that filed its license renewal application nearly four months late.  Consistent with the FCC’s policy for treating first-time violations of FCC “paperwork” rules by student-run NCE radio stations more leniently than violations by other stations, the licensee agreed to implement a compliance plan to prevent future untimely renewals, and make a civil penalty payment to the United States Treasury in the amount of $500.

Yesterday, I wrote about the history of the NCAA’s assembling of the rights to an array of trademarks associated with this month’s basketball tournament.  Today, I will provide some examples of the activities that can bring unwanted NCAA attention to your advertisements or broadcasting of advertising, as well as one more issue that should be considered when considering whether to accept advertising.

Activities that May Result in a Demand Letter from the NCAA

The NCAA acknowledges that media entities can sell advertising that accompanies the entity’s coverage of the NCAA championships.  However, similar to my discussion last  year on the use of Super Bowl trademarks (see here) and my 2018 discussion on the use of Olympics trademarks (see here), unless authorized by the NCAA, any of the following activities may result in a cease and desist demand:

  • accepting advertising that refers to the NCAA, the NCAA Basketball Tournament, March Madness, The Big Dance, Final Four, Elite Eight or any other NCAA trademark or logo (The NCAA has posted a list of its trademarks here.)
    • Example:  An ad from a retailer with the headline, “Buy A New Big Screen TV in Time to Watch March Madness.”
    • Presumably, to avoid this issue, some advertisers have used “It’s Tournament Time!”
  • local programming that uses any NCAA trademark as part of its name
    • Example:  A locally produced program previewing the tournament called “The Big Dance:  Pick a Winning Bracket.”
  • selling the right to sponsor the overall coverage by a broadcaster, website or print publication of the tournament
    • Example:  During the sports segment of the local news, introducing the section of the report on tournament developments as “March Madness, brought to you by [name of advertiser].”
  • sweepstakes or giveaways that include any NCAA trademark in its name (see here)
    • Example: “The Final Four Giveaway.”
  • sweepstakes or giveaways that offer tickets to a tournament game as a prize
    • Example:  even if the sweepstakes name is not a problem, offering game tickets as a prize will raise an objection by the NCAA due to language on the tickets prohibiting their use for such purposes.
  • events or parties that use any NCAA trademark to attract guests
    • Example:  a radio station sponsors a happy hour where fans can watch a tournament game, with any NCAA marks that are prominently placed on signage.
  • advertising that wishes or congratulates a team, or its coach or players, on success in the tournament
    • Example:  “[Advertiser name] wishes [Name of Coach] and the 2022 [Name of Team] success in the NCAA tournament!”

There is one more common pitfall that is unique to the NCAA Basketball:  tournament brackets used in office pools where participants predict the winners of each game in advance of the tournament.  The NCAA’s position (see here) is that the unauthorized placement of advertising within an NCAA bracket and corporate sponsorship of a tournament bracket is misleading and constitutes an infringement of its intellectual property rights.  Accordingly, it says that any advertising should be outside of the bracket space and should clearly indicate that the advertiser or its goods or services are not sponsored by, approved by or otherwise associated with the NCAA or its championship tournament.

It should be noted that the NCAA also imposes strict rules about the authorized uses of its trademarks.  The NCAA’s Advertising and Promotional Guidelines for authorized use of its marks are posted online (see here).

Again, importantly, none of these restrictions prevents media companies from using any of the marks in providing customary news coverage of or commentary on the tournament.  Just be sure that they are just used to identify the tournament and its stages, and don’t in any way imply that there is an association between the station itself or any sponsor or advertiser who does not have the rights to claim such association and the NCAA.

A Surprising History of “March Madness” (For Those Who May Like Sports Trivia)

The NCAA may not have been the first to license the use of “March Madness.”  Beginning in the early 1990’s, the IHSA licensed it for use by other state high school basketball tournaments and by corporations.

Moreover, the NCAA did not originate the use of “March Madness” to promote its collegiate basketball tournament.  Rather, a CBS broadcaster is credited with first using “March Madness” in 1982 to describe the tournament.  As CBS was licensed by the NCAA to air the tournament, the NCAA apparently claims that as its date of first use.

Finally, the NCAA was not the first to register “March Madness” as a trademark.  That honor went to a company called Intersport, Inc., which used the mark for sports programs it produced and registered the mark in 1989.

So, how did the NCAA get to claim ownership of the March Madness® trademark?  The short answer is through litigation and negotiations over a period of many years.  Although it has also been able to obtain federal registrations for Final Four® and Elite Eight,® it was late to the gate and Sweet Sixteen® and Sweet 16® are registered to the Kentucky High School Athletic Association (KHSAA).  (The NCAA, however, has the KHSAA’s consent to register NCAA Sweet Sixteen® and NCAA Sweet 16®.)

The Final Score

Having invested so much in its trademarks, the NCAA takes policing its trademark rights very seriously.  Even so, although the NCAA may call “foul!” and send a cease-and-desist letter over the types of activities discussed above, some claims may not be a slam-dunk as there can be arguments to be made on both sides of these issues.

If you are deciding whether or not to pass on accepting advertising incorporating an NCAA trademark or logo or using an NCAA trademark or logo other than in the context of reporting on the tournament, or if you are not certain whether the NCAA (or anyone else) owns a particular word or phrase as a trademark, you should seek an assist.  An experienced trademark attorney can help you make an informed decision about whether you can successfully post a defense against any such charge and assess possible risks.

One Last Advertising Issue:  Endorsements by Individual Student-Athletes

After many years of litigation, in July 2021, the NCAA suspended its policy prohibiting college athletes from profiting from their names, images and likenesses (“NIL”) (or their right of publicity) without losing their eligibility.  However, there is no national set of rules as to what is permissible.  Rather, the right of publicity is governed by state law.  Moreover, colleges and universities still have the right establish some rules or standards.  For example, although student-athletes can now get paid to endorse a commercial product, they are not automatically entitled to use any NCAA or school trademarks.  Thus, a college basketball player may not be authorized to wear their uniform in advertising unless the school has granted permission.  Can the player wear a uniform with the school colors, but no names or logos?  Can the player endorse an alcoholic product?  Answers will vary state by state and school by school, so it will be extremely important to check with experienced counsel before running any advertising that involves college players.

With Selection Sunday this weekend, the 2023 NCAA Collegiate Basketball Tournament is about to begin.  As faithful readers of this blog know, broadcasters, publishers and other businesses need to be wary about potential claims arising from their use of terms and logos associated with the tournament.

NCAA Trademarks

The NCAA owns the well-known marks March Madness®, The Big Dance®, Final Four®, Women’s Final Four®, Elite Eight,® and The Road to the Final Four® (with and without the word “The”), each of which is a federally registered trademark. The NCAA does not own “Sweet Sixteen” – someone else does – but it does have federal registrations for NCAA Sweet Sixteen® and NCAA Sweet 16®.

The NCAA also has federal registrations for some lesser-known marks, including March Mayhem®, March Is On®,Midnight Madness®, Selection Sunday®, 68 Teams, One Dream®, And Then There Were Four® and NCAA Fast Break®. (It also has a registration for SPRING MADNESS®in connectionwith its soccer tournaments.)

Some of these marks are used to promote the basketball tournament or the coverage of the tournament, while others are used on merchandise, such as t-shirts.  The NCAA also uses (or licenses) variations on these marks without seeking registration, but it can claim common law rights in those marks, such as March Madness Live, March Madness Music Festival and Final Four Fan Fest.

Continue Reading March Madness and Advertising: Use of NCAA Trademarks (2023 Update – Part 1)

Yesterday’s big news across the broadcast press was that Gigi Sohn, who had for well over a year been the nominee of the Biden administration to fill the open seat at the FCC, withdrew her name from consideration.  This may have been in reaction to circulated stories that there were several Democratic Senators who still were not committed to vote for her nomination without whose support she could not have been confirmed.  Until the Biden administration can make another nomination and have that nominee go through the confirmation process in the Senate, the FCC will continue to have two Democratic Commissioners and two Republican ones, potentially stalling action on some rulemaking matters where there is a partisan split on the pending issue.  We wrote in January in our look at the issues pending before the FCC about some of the issues that the FCC could face in 2023.  In light of the seeming extension of the partisan divide on the FCC, we thought that we would again highlight some of the issues likely to be affected by the current state of the Commission. 

But it is first worth noting that, merely because there is a partisan split among the Commissioners, this does not mean that nothing of significance will happen at the FCC.  As we wrote yesterday, the TEGNA merger was designated for hearing, potentially leading to its demise.  This was done not by an action of the Commissioners, but instead by its Media Bureau.  Interpretations of FCC authority in specific cases by the Media Bureau, the Enforcement Bureau or other lower-level bureaus and offices within the Commission can be just as impactful on any specific company as are the big policy decisions made by the Commissioners themselves.  Just as the TEGNA designation could have significant ramifications for broadcast dealmaking if its conclusions are taken to their logical ends, Bureau-level decisions can set day-to-day policy on many issues if the Commission itself cannot make broader decisions through their rulemaking process.

Continue Reading Gigi Sohn Withdraws from Consideration for Open Seat as FCC Commissioner – What that Means for Broadcast Regulation