September 2006

A front page article in today’s Washington Post reports that the National Republican Congressional Committee expects to spend about $45 million on negative campaign ads this year, attacking Democratic challengers on personal and character issues.  One academic quoted in the article indicated that this year’s election may be "a more negative campaign that any in recent memory."

If the Republican Party spends money, no doubt the Democrats and other interest groups will be spending as well in this tight election with control of Congress potentially at stake.  For broadcasters, this means that they will be in for lots of controversy, and lots of work. 

When a legally-qualified candidate buys advertising time on a broadcast station, the station cannot censor that ad.  Therefore, the station is exempt from any liability for the content of that ad.  But when the ad is purchased by a non-candidate third party group, the station has no obligation to run the ad, and therefore, if the ad is defamatory, the broadcaster could have liability for running it.  Particularly if the broadcaster knows or suspects from the content of an ad that it is false, or is put on notice that the facts contained in the ad are untrue, the broadcaster faces liability if it does nothing to investigate the truth of that ad.  So, if a broadcaster is running an attack ad and gets a complaint about the truth of the ad (most likely from the candidate being attacked), the broadcaster needs to verify the truth of the claims being made before any further airing of the ad.  And usually the proponent of the ad will have reams of paper to support the claims that are made – support that needs to be evaluated by the broadcaster.Continue Reading Negative Ads Expected to Increase

Today, the FCC released an order fining a station over $16,000 for not having a local main studio, for operating over its authorized power at night, and for not maintaining a local public inspection fine.  Many might think that these violations are obvious ones.  Yet weekly, the FCC issues notices of fines for stations all over the country. …

A few weeks ago, the New York Times featured an interesting article about the impact of Internet video and other new technologies on the traditional media.  The premise of the article is that big media players, like AOL, FOX and Disney are being forced into bold moves to keep up with the the Internet.  Decisions such as AOL’s recent decision to from a subscription to a free service is one move cited by the article as being driven by the availability of free on-line content.  A comment by Rupert Murdoch that he would consider merging Direct TV with Echostar because of the competition from Internet video was another instance that the article cites as support for its premise.  This Sunday’s Times featured another article on the impact of Internet technology on the distribution of music, including traditional radio.

These changes impact not only big media, but local media and small Internet players as well.  The choice provided by the Internet has already caused changes in everything from local television to Internet radio.  I started writing this post from rural Wisconsin, where I was for a family event.  Watching the local television station, WEAU-TV in Eau Claire, Wisconsin, I was somewhat surprised to see an a promotion for "build your own newscasts."  The station was promoting its website, and the ability to watch local news stories produced by the station on the website, watching only those stories that you want to see, when you want to see them.  This on-demand availability of new stories when done with local stories avoids most copyright issues.  And it allows local media to serve their audience in the way that the audience wants to be served.  Continue Reading New Media Changes Everything?

This Friday, September 8, begins the 60 day "window" during which lowest unit rates will apply for broadcast advertising for the November 7 general election.  Stations should already be observing equal opportunities obligations and maintaining their political files, as these obligations exist as soon as there are legally qualified candidates, even outside of the political windows.  Reasonable access, the right of Federal candidates to demand to buy time on commercial broadcast stations, also applies as soon as there are legally qualified candidates.

According to reports in many publications, including the Wall Street Journal and Broadcasting and Cable Magazine, this may be one of the most active political broadcasting years ever.  With many observers believing that both the US House of Representatives and the Senate are potentially up for grabs, and there being many significant gubernatorial races in large states including New York, California, Texas and Michigan, money should flow into political advertising, straining the inventories of some broadcast stations in battleground states.  Now is the time, early in the campaign, for broadcasters to consider how to manage these political buys.  Remember that a station must give equal opportunities to opposing candidates to match spots run by their opponents within the prior 7 days.  So stations, when approached early in a campaign by candidates with lots of available funds, need to be careful about booking too many large buys from one side of a political race for spots to be run in the last days of the campaign.  By booking too many large buys now from only one side, the station may find itself, in the last few days of the campaign, with requests from the opposing candidate for equal time, which will have to be accommodated.  Accommodating those equal opportunities may require the preemption of commercial advertisers, something that stations may be loath to do to advertisers who will be around well after the political season ends.Continue Reading Political Broadcasting – The Window Opens

In our posting of July 17, we asked whether President Bush’s comments to Tony Blair at the G-8 summit, which had occurred earlier that day, could get broadcasters who aired the unedited version into trouble under the Commission’s indecency policies.  Well, it looks like the President may have indeed found a unique way to raise government revenue.  Press reports yesterday reported that  complaints were filed with the FCC asking that fines be imposed on stations that aired the President’s comments without bleeping the "S-word."  Specifically, at least one complaint named a Maine television station airing the unedited comments, while another complaint was registered by the FCC about NPR’s coverage of the event.

While unedited coverage of a news event had, in the past, in more tempered times, been found by the FCC to be permissible if the station felt that it was necessary to convey the context of the story (for instance, in the case of coverage of a mobster using some colorful language about the prosecution’s case as he emerged from a courthouse).  But these days, with the recent FCC crackdown on even fleeting uses of expletives, stations are unsure of the law, and frightened of FCC actions.  And, with recently legislated higher indecency fines, which we reported on on June 16, the fears take on even more urgency for broadcasters.

For instance, CBS plans to air a documentary on 9-11, which includes footage of the reactions of emergency personnel at the site of the collapsing World Trade Center.  The reactions to the tragic events include some use of FCC-prohibited expletives.  This documentary has already aired twice on CBS without any adverse action.  Yet now, certain groups have reportedly suggested that complaints should be filed at the FCC about the upcoming airing of the program.  And now, reports state that at least one broadcaster has announced that they will delay the program until after 10 PM – in the FCC’s "safe-harbor" where adult content will not be subject to FCC penalties as the potential for children in the audience is less. Continue Reading George Bush, 9-11 and Potential Big Fines