With the 2022 NCAA Collegiate Basketball Tournament 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 (see, for instance, our articles last year about this same time, here and here).  In addition, starting this year, there is another issue to consider, which I will discuss tomorrow.

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®.

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 NCAA Tournament Advertising:  Use of Trademarks and … One More Thing (2022 Update – Part 1)

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

  • Following up on its proposals from last summer to clean up radio technical rules that were inconsistent, outdated, or inaccurate,

Ads planned to run in yesterday’s Super Bowl by Republican candidates in primaries to select candidates for 2022 senate elections drew comments and controversy even before the game, with some calls to block the ads from the air.  Ads for a candidate in Pennsylvania used the “Let’s Go Brandon” language generally acknowledged to be an allusion to a profanity directed at President Biden (see article here).  In Arizona, a Senate candidate showed the candidate in a fictionalized old west high noon shootout with characters playing President Biden, Nancy Pelosi and Senator Mark Kelly (see article here), which some found particularly offensive because of its associating gun violence with Kelly whose wife, Gabby Giffords, was a victim of such violence while serving in Congress.  There were calls for the stations running the game to reject these ads, or for the FCC to penalize stations for those ads.  While popular sentiment may call for such actions, the law does not allow that to happen,

We have written about this issue many times before (see, for instance, our refreshers on the rules with respect to candidate ads, here and our article here), yet these issues still come up all the time whenever a legally qualified candidate produces a controversial ad.  Broadcasters need to know the rules so that they don’t pull an ad that they are not allowed to censor under the FCC’s rules, and that they don’t run one for which they could in fact have liability.
Continue Reading Controversial Super Bowl Political Ads on Local Stations – Why They Can’t Be Pulled

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

  • Global Music Rights (GMR) and the Radio Music Licensing Committee (RMLC) announced that enough broadcasters had agreed to GMR licensing

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

  • The FCC adopted two items of interest to broadcasters that were on the agenda for its January 27 Open Meeting.

There was record viewership for the last-second victories in each of the 2022 NFC and AFC Divisional Round games.  Thus, the interest in this year’s Super Bowl game may be unprecedented and advertisers may want to take advantage.  For the last six 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.  Here is an updated version of my prior posts, which may be particularly useful to potential advertisers and broadcasters who may be asked to carry their ads.

The Super Bowl means big bucks.  It is estimated that each of the three television networks that broadcasts the Super Bowl paid the NFL over $1 billion per year for the right to broadcast NFL games through this season, including the right to broadcast the big game on a rotating basis once every three years.  In addition, the NFL has entered into a new contract that goes through 2033, for a reported total of $100 billion, under which CBS, ESPN/ABC and Fox, will have television rights for three Super Bowls and NBC will have the rights to broadcast two Super Bowls.

The investment seems to pay off for the networks.  Reportedly, it cost $6 M for a 30-second spot during last year’s Super Bowl broadcast, up from $5.6 M the prior year, and national advertising revenue totaled $545 M (up from $448.7 M the prior year) and these figures do not include income from ads during any pre-game or post-game programming.  (In addition to the sums paid to have their commercials aired, some advertisers spend millions of dollars to produce an ad.)  In addition, the NFL receives hundreds of millions of dollars from licensing the use of the SUPER BOWL trademark and logo.
Continue Reading The Clock is Ticking Towards the Super Bowl:  2022 Update on Super Bowl Advertising and Promotions

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

  • The FCC issued a Public Notice urging all communications companies to take steps to ensure the security of their facilities

My law firm partner, Jonathan Cohen, has been closely monitoring the developments in the regulation of social media and other big tech platforms by the current administration.  He offers these thoughts on likely areas of legislative and regulatory action in this area in the coming year. 

Many nights, the last thing I do before falling asleep is put down my phone, and the first thing I do upon waking is pick it up.  I know I’m not alone in this.  And how many times have we made an online purchase from bed?  Internet-enabled digital technologies seem to have transformed life for most Americans, changing how we conduct business, connect with each other, and receive information and entertainment.  The advent of these technologies in recent years is what former FCC Chairman Tom Wheeler, in his 2019 book From Gutenberg to Google, calls the “third major network revolution,” after the invention of movable-type printing and the innovations in travel and communications brought about by railroads and the telegraph.  This new revolution is rapidly changing our information ecosystem.

Beyond the commercial opportunities and challenges presented for tech, media, and telecom companies, as well as content creators, the societal impact of this third major network revolution is fascinating and wide-ranging, but also potentially troubling.  Illustrating the power that tech platforms exert over us, Taylor Lorenz of The New York Times recently reported on a conversation she’d had with a 10-year-old boy who was disappointed that no photos were available when he Googled himself.  The boy felt that he wasn’t a real person until his photo came up in a Google search.  Leaving aside the numerous sociological implications of the tech revolution, the tech sector is under scrutiny as never before.  Its business model of tracking users’ online actions and using the data to sell targeted advertising and feed algorithmic amplification has been described by Harvard professor emerita Shoshana Zuboff as “surveillance capitalism.”  Others call it the “attention economy.”
Continue Reading Hot Topic for 2022: Tech Regulation

The FCC, at its January 27 monthly open meeting, will be voting on the adoption of two relatively minor changes to its political broadcasting rules.  While some press reports suggested that the changes would expand the FCC’s jurisdiction into online political advertising, in fact the draft of the FCC’s Report and Order released last week shows that the two rules at issue deal exclusively with over-the-air political advertising.  Moreover, as we wrote here when the proposals were first advanced for public comment, the changes to be adopted are almost ministerial clean-ups of FCC rules, having little substantive effect on the current political sales practices of most broadcasters.

These two rule changes are likely to be adopted at the end of the month by a 4-member FCC that is still evenly divided between Democrats and Republicans.  The first one deals with the showing that needs to be made by a write-in candidate to show that the candidate is “legally qualified” and thus entitled to take advantage of the FCC’s political broadcasting rules. The second change would conform the FCC’s rules to the already existing statutory provisions that require broadcasters to include, in their online public files, information about the sale of advertising time to non-candidate buyers who convey a message on a matter of national importance, i.e., a federal issue ad.
Continue Reading FCC Plans to Adopt Two Minor Changes to its Political Broadcasting Rules – What is Being Changed?

As the holiday season comes to an end and 2022 comes into focus, broadcasters have several dates and deadlines to keep up with in January and early February.  We have noted below some of the important dates you should be tracking.  However, as always, stay in touch with your station’s lawyers and other regulatory advisors for the dates applicable to your operations.  We wish you a happy, healthy, and successful New Year – and remembering to track important regulatory dates will help you  achieve those ends.

Let’s start with some of the annual dates that always fall in January.  By January 10, full-power radio, TV, and Class A licensees should have their quarterly issues/programs lists uploaded to their online public file.  The lists are meant to identify the issues of importance to the station’s community and the programs that the station broadcast in October, November, and December that addressed those issues.  Prepare the lists carefully and accurately, as they are the only official records of how your station is serving the public and addressing the needs and interests of its community.  See our post here for more on this obligation.
Continue Reading January Regulatory Dates for Broadcasters: Issues/Programs Lists; Digital LPTV Deadline; Audio Description Expansion; Children’s Programming, Webcasting Royalties; NCE FM Settlement Window; and More