Many stations seem unsure of how to apply the recent FCC guidance  that no charge spots given to advertisers to help them through the pandemic do not need to be counted in computing a station’s Lowest Unit Charge, as long as the no-charge spots are not part of paid advertising contracts and are not

Yesterday, the FCC released two public notices reflecting its attempts to assist broadcasters coping with the COVID-19 crisis.  The first public notice deals with the attempts of several broadcasters to support their advertisers while at the same time filling advertising inventory holes that have been created by the cancellation of other advertising schedules.  Broadcasters who

In recent days, we have seen Presidential primaries delayed by the coronavirus in at least six states – including Ohio which was originally set to vote yesterday but has postponed its primary until June 2.  We expect that additional states will be looking at extensions in the coming days.  As lowest unit rate windows had

While the NCAA has called off March Madness, promotions may still be continuing, and we certainly hope that the tournament will be back again next year.  So we figured that, as this article was already written, we might as well publish it.  Yesterday, we 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, we’ll provide some examples of the activities that bring unwanted NCAA attention to your operations.
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With the NCAA Basketball Tournament about to begin (though without an audience at the games), broadcasters, publishers and other businesses need to be wary about potential claims arising from their use of terms and logos associated with the tournament, including 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®.  The NCAA has a pending application to register March to the Madness as well.

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, e.g., March Madness Live, March Madness Music Festival and Final Four Fan Fest.

Although the NCAA may use the federal registration symbol (®) with any of its federally registered marks, it is not obligated to do so.  Thus, it should not be assumed that the lack of the symbol means that the NCAA is not claiming trademark rights.
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The FDA last week issued an update on its review of issues related to the sale and marketing of CBD products.  The guidance reiterates the kinds of warnings that we have given before (see, for instance, our articles here and here) about not advertising specific health benefits of CBD products as, except for two approved CBD-based drugs used to control seizure-related disorders, the FDA has not yet approved other medical uses of CBD products.  The FDA release provides numerous general cautions about the use of CBD products including concerns about their interactions with other drugs and the potential side-effects of their use.

The statement includes only two paragraphs devoted to marketing of CBD products.  In these paragraphs, the FDA discusses the enforcement actions it has taken (see our posts here and here) against companies that provide specific guidance on health benefits of CBD not only because of the fears of side-effects, but also because of the potential for consumers to be led to believe that CBD products should be used to treat medical conditions to the exclusion of other proven therapies.  The warnings about marketing also extended to the concerns about product labeling, including worries about products being claimed to contain CBD that do not or containing other unknown substances not listed on any label.
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One presidential caucus down, 49 (primaries and caucuses, plus a few more in the territories) to go in the next four months – with primaries for Congressional, state and local offices stretching out through August.  This presidential primary race has already seen unprecedented amounts of advertising on local stations, including through network advertising buys.  Based

With the holiday season getting smaller in the rear-view mirror and many parts of the country dealing with ice, snow, and single-digit temperatures, broadcasters could be forgiven for dreaming about the sunshine and warmth that come with spring.  Before spring arrives, however, broadcasters need to tend to important regulatory matters in February.  And, if you find yourself eager to plan past February, use our 2020 Broadcasters’ Calendar as a reference tool for tracking regulatory dates through the end of 2020.

But focusing on the month ahead, by February 3, all AM, FM, LPFM, and FM translator stations in Arkansas, Louisiana, and Mississippi must file their license renewal applications.  For the full-power stations in the state, there’s an additional EEO task to complete irrespective of how many employees a station employment unit (SEU) has.  Before filing for license renewal, stations in these three states must submit FCC Schedule 396. This schedule is the Broadcast Equal Employment Opportunity Program Report, which is a reporting to the FCC of the SEU’s equal employment opportunity activities for the last license period (SEUs with fewer than five full-time employees are not required to maintain an EEO recruitment program and are only required to check a box that they have fewer than 5 full-time employees and skip ahead to the certification).  The sequencing here is important: When filing for license renewal, the application (Schedule 303-S) asks for the file number of your already-filed Schedule 396.  So, without having already filed the schedule, you won’t be able to complete your renewal application.
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For several years, I have posted guidelines about engaging in or accepting advertising or promotions that directly or indirectly reference the Super Bowl without a license from the NFL (see, e.g. our articles here and here).  It’s that time of year again, so here is an updated version of my prior posts.

The Super Bowl means big bucks.  It is estimated that each of the three television networks that broadcasts the Super Bowl pays the NFL over $1 billion per year for the right to broadcast NFL games through 2022, including the right to broadcast the big game on a rotating basis once every three years.  The investment seems to pay off for the networks.  The Super Bowl broadcast alone generates hundreds of millions of dollars for the networks from advertisers.  In addition to the sums paid to have their commercials aired (reported to be approximately $5.6 million for a 30-second spot), many advertisers spend more than $1 million to produce each ad.  In addition, the NFL receives hundreds of millions of dollars from licensing the use of the SUPER BOWL trademark and logo.

Given the value of the Super Bowl franchise, it is not surprising that the NFL is extremely aggressive in protecting its golden goose from anything it views as unauthorized efforts to trade off the goodwill associated with the game.  Accordingly, with the coin toss almost upon us, advertisers must take special care before publishing ads or engaging in promotional activities that refer to the Super Bowl.  Broadcasters and news publishers have greater latitude than other businesses, but still need to be wary of engaging in activities that the NFL may view as trademark or copyright infringement.  (These risks also apply to other named sporting events, for example, making use of the terms “Final Four” or “March Madness” in connection with the upcoming NCAA Basketball Tournament – see, for instance, our articles here and here.)
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On January 18, the lowest unit charge window for Presidential primaries or caucuses begins in Super Tuesday states including Alabama, American Samoa (D), Arkansas, California, Colorado, Maine, Massachusetts, Minnesota, North Carolina, Oklahoma, Tennessee, Texas, Utah, Vermont, and Virginia.  The LUC window opened on January 15 for South Carolina’s Democratic primary and will open on January 23 for stations in Puerto Rico.  Soon behind, on January 25, lowest unit charge windows for presidential contests open in Hawaii, Idaho, Michigan, Mississippi, Missouri, North Dakota (D), and Washington State.  The window opens on January 27 in the US Virgin Islands and West Virginia. January 29th is the opening of the window for contests in Guam (R), N. Mariana Islands (D) and Wyoming (R).

In these windows, when broadcasters sell time to candidates for ads in connection with the races to be decided on these dates, they must sell them at the lowest rate that they charge commercial advertisers for the same class of advertising time running during the same time period. For more on issues in computing lowest unit rates, see our articles herehere and here (this last article dealing with the issues of package plans and how to determine the rates applicable to spots in such plans), and our Political Broadcasting Guide, here.
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