A Call to Regulate E-Cig Advertising – What is the FCC’s Role in Regulating Advertising For the Vices?

In recent months, there have been many calls to regulate e-cigs, and potentially to regulate the marketing of all sorts of vaping products, including a call last week by an FCC Commissioner in an op-ed article in USA Today. As we wrote several months ago, these suggestions have been based in the fear that increased promotion of vaping products have led to an increase in tobacco use among children. While the FDA has been taking efforts to crack down on flavored vaping products to reduce their appeal to kids, the makers of e-cigs still advertise, including on radio and TV. And those advertisements bring us frequent questions about whether the FCC has rules about advertising these products. So far, the FCC has had no real role in regulating these products. In fact, one wonders if it really has any authority to take action against the advertising of e-cigs without Congressional action.

So far, all the limits on e-cig advertising have been imposed by other agencies – principally, the FDA. The FDA requires a tag on all vaping ads, stating that these products contain nicotine, which is an addictive substance (see our articles here and here for more details about that requirement). And these ads should not claim health benefits for vaping. Given the FDA’s concern about children, any ads should also stay out of programming with a large audience of children. Could the FCC itself do more? Continue Reading

FCC Starts First EEO Audit of Radio and TV Stations for 2019 – And Announces Upcoming Review of its EEO Audit and Enforcement Program

By David Oxenford on February 17, 2019 Posted in EEO Compliance/Diversity, FCC Fines, License Renewal

On Friday, the FCC issued its first EEO audit of almost 300 radio and TV stations across the country (see the model audit letter and list of stations affected here), the day after announcing its intent to abolish the Form 397 EEO Mid-Term Report (see our articles here and here). In the Order announcing the forthcoming abolition of the Mid-Term Report, the FCC also noted its intent to being a proceeding in the next 90 days to reexamine the effectiveness of its EEO program – signaling that EEO remains a priority of the FCC and that this audit should be taken very seriously. While the FCC each year promises to audit 5% of all full-power broadcast stations, and this audit is likely but the first of a number of EEO audits for the coming year, this upcoming review of the effectiveness of the FCC’s EEO process highlights the continued importance of EEO enforcement to the FCC.

The response to the audit must be completed by April 1. 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 anywhere, at any time, as long as they have an internet connection. The upcoming license renewal cycle 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). The audit requires that the broadcaster submit their last two EEO Public File Reports (which should already be in the online public file) and backing data to support all of the outreach efforts listed on those public file reports. Broadcasters subject to the audit should carefully review the audit letter to see the details of the filing. Continue Reading

Washington Legal Issues for TV Broadcasters – Where Things Stand

By David Oxenford on February 15, 2019 Posted in General FCC, Television

Where do all the Washington DC legal issues facing TV broadcasters stand? While we try on this Blog to write about many of those issues, we can’t always address everything that is happening. Every few months, my partner David O’Connor and I update a list of the legal and regulatory issues facing TV broadcasters. That list of issues is published by TVNewsCheck and the latest version, published today, is available on their website, here. It provides a summary of the status of legal and regulatory issues ranging from the adoption of the ATSC 3.0 standard at one end of the alphabet to White Spaces and Wireless Microphones on the other – with summaries of other issues including Ownership Rule Changes, Children’s Television, Media Regulation Modernization, EEO Compliance, Political Advertising, Sponsorship Identification and dozens of other topics, many with links to more detailed discussions here on the Blog. Of course, the status of these issues changes almost daily, so watch this Blog and other trade publications, and consult your own legal counsel, for the latest Washington news of interest to broadcasters.

FCC Adopts Order to Eliminate the EEO Mid-Term Report and Starts Rulemaking Proceeding to Review Proceedings on Grants of New Noncommercial and LPFM Stations

By David Oxenford on February 15, 2019 Posted in EEO Compliance/Diversity, FM Translators and LPFM, License Renewal, Noncommercial Broadcasting

The FCC at its meeting yesterday adopted the two broadcast items that it was expected to consider (see our article on the agenda here) – one agreeing to eliminate the FCC Form 397 EEO Mid-Term Report and a second starting a proceeding to reexamine certain aspects of the criteria used to select the applications to be granted for new Noncommercial Educational radio and television and LPFM stations. We wrote about the draft order to abolish the Form 397 here, and the draft Notice of Proposed Rulemaking on the noncommercial criteria here. We will post the final orders in these proceedings here when the FCC releases them – quite possibly later today (Update, 2/15/2019, 1:50 PM EST – the text of the NCE/LPFM NPRM is now available here; Update 2:30 PM EST – the text of the order that will eliminate the Form 397 is now available here).

The elimination of the Form 397 does not become effective immediately as it still needs to be published in the Federal Register and undergo Paperwork Reduction Act review. So TV stations in the northeast, who are due to file their mid-term reports in the coming months, will continue to have this obligation. The change will have no practical effect for more than 4 years, until the first mid-term after the upcoming license renewal cycle hits in June 2023 (see our article here on the start of the radio license renewal cycle in June 2019). The elimination of this report also does not have any substantive effect on the obligations of full-power broadcasters who are part of employment units with 5 or more full-time employees to widely dissemination information about their job openings and to engage in community outreach efforts (even if they have no job openings) to educate the public about employment opportunities in broadcasting and to train existing employees for more advanced positions. So this really is just the elimination of a paperwork burden. Continue Reading

Elimination of Requirement for Broadcasters to File Contracts and Agreements with the FCC Becomes Effective

By David Oxenford on February 14, 2019 Posted in General FCC

Back in October, the FCC eliminated the requirement that broadcasters file contracts and organizational documents with the Commission. See our post here for more details. That change became effective on January 22, 2019, as noted in an FCC Public Notice released earlier this week. This change was part of the Modernization of Media Regulation initiative, and was another change made possible by the online public file. As documents related to control of a broadcaster (including stock pledges, options and similar documents) and the organizational documents of any company that owns a broadcast licensee either need to be included in the public file, or specified on a list made available in the public file and made available on request within 7 days, the FCC no longer saw any need for those same documents to be submitted to the FCC. One more filing requirement eliminated – but don’t forget to include these documents (or at least a list of them) in the public inspection file.

Copyright Royalty Board Announces Changes in Judges

By David Oxenford on February 14, 2019 Posted in Cable Carriage, Intellectual Property, Internet Radio, Music Rights

With the Copyright Royalty Board now in the early stages of the next proceeding to consider webcasting royalties (see our article here) as well as other proceedings including the distribution of cable and satellite television royalties to TV programmers (see these CRB notices), the Chief Judge of the CRB, Suzanne Barnett, announced her retirement earlier this month. The Librarian of Congress has announced that Copyright Royalty Judge Jesse Feder has been elevated to the Chief Judge’s position. That position requires experience in the administration of judicial proceedings – and presumably his experience on the CRB qualified him for the Chief Judge’s position. His old position will be filled, at least temporarily, by Richard Strasser, who currently serves as legal counsel to the CRB and has, in the past, served as an interim Copyright Royalty Judge. This second position on the Board requires someone experienced in copyright legal issues – again something that Mr. Strasser has from his experience at the CRB. His position is temporary, so it is possible that a new Judge could be appointed for this slot at some point in the future. The third position on the Board, which requires someone experienced in economic issues, continues to be held by Judge David R. Strickler. So, for the time being, these three judges will consider the cases pending before the CRB.

FEC Seeks Comment on Proposal for Change in TV Political Disclosures

By David Oxenford on February 12, 2019 Posted in Payola and Sponsorship Identification, Political Broadcasting, Television

We usually think of the FCC as the agency that sets the details of the broadcast disclosure obligations for political candidate’s TV ads. But the Federal Election Commission has its own rules for political advertising that are binding on the candidates, rather than on the stations. But because these ads run on broadcast stations, stations need to pay attention to them to avoid getting caught up in arguments about whether candidate ads are legal, and because the FEC rules often get adopted by the FCC. For these reasons, broadcasters need to pay attention to an entry in today’s Federal Register, where the FEC gives notice of its receipt of a Petition for Rulemaking proposing changes to the textual disclosures made in TV political ads.

Right now, the written disclosures of the sponsor of political ads need to run at 4% of vertical picture height for not less than 4 seconds – the same requirement reflected in both the FEC and FCC rules. The proposal on which the FEC seeks comment suggests that the screen height requirements in the current rules are outdated in the digital television world. According to the Petition, current industry guidelines for a normal disclaimer size is 22 pixels (approximately 2% of the vertical picture height) using HD resolution. Thus, the Petition suggests that 2% be adopted as the standard for political disclosures when shown on high definition digital television transmissions, with the 4% obligation being retained for standard definition broadcasts. After receiving comments, the FEC will decide whether to commence a formal rulemaking proceeding. Comments on this proposal are due on or before Monday, April 15, 2019.

Elimination of Requirement that Broadcasters Post Their Licenses Becomes Effective

By David Oxenford on February 8, 2019 Posted in AM Radio, FCC Fines, FM Radio, General FCC, Television

As we wrote here, at the FCC’s December meeting, the FCC was scheduled to adopt an order eliminating the requirement that broadcasters post a physical copy of their licenses and other instruments of authorization at their control points or transmitter sites. In fact, the Commission adopted that order before the meeting, and it today published the order in the Federal Register, meaning that it is effective as of today. This order was adopted as part of the FCC’s Modernization of Media Regulation initiative. As a station’s licenses are now generally available online, the FCC stated that they saw no reason to require that they be posted at station locations not normally accessible to the public. So there is now one less regulatory requirement for broadcasters to worry about.

Important Dates for Broadcasters in 2019 – A Broadcaster’s Calendar

By David Oxenford on February 6, 2019 Posted in EEO Compliance/Diversity, General FCC, License Renewal, Political Broadcasting, Public Interest Obligations/Localism

While the shutdown of the Federal government delayed FCC activities in January, with the government back in business (hopefully for the long term), we have put together a Calendar of Important Dates for Broadcasters for 2019, available here. The calendar highlights normal regulatory dates like those for Annual EEO Public Inspection File Reports, Quarterly Issues Programs Lists, Quarterly Children’s Television Reports, and Biennial Ownership Reports, it also includes dates relevant to the repacking of the TV spectrum and, something that we have not seen in the last 5 years, dates relevant to the radio license renewal cycle that begins this year. We also have the December start dates for the lowest unit rate windows for the Iowa Caucuses and New Hampshire primary. While this is not a comprehensive list of all regulatory dates that a broadcaster can expect, and while there can be some changes in these dates as the year goes on, it does provide a start keeping you on top of your regulatory burdens. Obviously, consult your own counsel for dates that affect your own station.

FCC Seeks Comments on Video Description Marketplace for Report to Congress

By David Oxenford on February 5, 2019 Posted in Programming Regulations, Television

Commercial television broadcast stations that are affiliated with one of the top four commercial television broadcast networks (ABC, CBS, Fox, and NBC) and are located in the top 60 television markets are required to provide 50 hours per calendar quarter of video-described prime time or children’s programming, and to provide an additional 37.5 hours of video-described programming per calendar quarter at any time between 6 a.m. and midnight. Other network affiliated stations outside the Top 60 markets must pass through any video-described programming provided by their network. Video description provides an explanation of the action in a TV program that is not evident from the dialog, so that those with visual disabilities can understand what is happening in a TV program. Video description was mandated by Congress, and the FCC yesterday issued a Public Notice asking for comment on this requirement for a report to Congress.

Specifically, the FCC is asking parties to comment on the following questions:

The types of described video programming that are available to consumers;
Consumer use of such programming;
The costs to program owners, providers, and distributors of creating such programming;
The potential costs to program owners, providers, and distributors in designated market areas outside of the top 60 of creating such programming;
The benefits to consumers of such programming;
The amount of such programming currently available; and
The need for additional described programming in designated market areas outside the top 60

Comments are due by April 1, and reply comments should be filed by May 1.