In the last few days, much has been written about the decision of a national radio broadcaster to prohibit the host of a country music radio program from airing an interview of a Democratic Presidential candidate Pete Buttigieg on a nationally syndicated program. This decision has prompted many questions as to when the FCC’s equal opportunities (sometimes referred to as “equal time”) rules apply to appearances of a candidate on a broadcast station.

Two years ago, we wrote about a Declaratory Ruling issued by the FCC’s Media Bureau which addressed many of these issues. In that decision, the FCC determined that a syndicated television program, “Matter of Fact with Fernando Espuelas,” was an “exempt program” which would not give rise to equal opportunities. The FCC rules state that bona fide news interview programs are exempt programs, meaning that appearances on the program by legally qualified candidates for public office would not give rise to equal opportunities for other candidates to get free time on the stations which aired the program. In reviewing that request for declaratory ruling, or in considering whether any program would be exempt, what does the FCC consider?
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Last week, a federal District Court ruled that the US Department of Health and Human Services did not have the authority to require that drug manufacturers include pricing information on their television commercialsWe wrote about that requirement, here – a requirement that was supposed to go into effect this summer.  However, the District

The 2020 presidential elections already loom large, with one of the over 20 Democratic candidates for the Presidential nomination seemingly appearing on whatever TV talk show you tune into on your TV set. With the first debate among these candidates scheduled for late June, it seems like we have a real election already underway – and it is time for broadcasters to start thinking about their political broadcasting obligations under FCC rules and the Communications Act, and beginning to make plans for compliance with those rules.

Stations in Iowa and other early primary states have already been receiving buys from Presidential candidates, PACs, and other third-party groups. That spending is sure to increase in the latter part of the year as these early primaries and caucuses are scheduled early in 2020. What should stations in Iowa and in other states be thinking about now to get ready for the 2020 elections?

We have written about some of the issues that broadcasters should already be considering in our Political Broadcasting Guide (which we plan to update shortly). Obviously, one of the primary issues is lowest unit rates – as those rates become effective 45 days before the primaries (or before any caucus which is open to members of the general public). Thus, the lowest unit charge windows for Presidential campaigns will start for the political contests in Iowa and New Hampshire in December, and roll across the country early next year as the other primaries and caucuses draw near. In addition to our Political Broadcasting Guide, we wrote about other issues you should be considering in determining your lowest unit rates here.
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Perhaps some of the most controversial areas in broadcast advertising are those surrounding the advertising of cannabis products. While many states claim to have legalized marijuana, either for medical or recreational purposes, the Federal government still considers its possession and distribution a felony, and has specific laws that criminalize the use of radio frequencies, the Internet, and publications to promote its use. At the same time, the Federal government has recently decriminalized the possession of various hemp-based products with less than .3% THC (the psychoactive ingredient in marijuana) in the 2018 Farm Act. This has led to an explosion in the sale of CBD products – even though the production of such products is, for the most part, to only be conducted after either the adoption of state laws approved by the US Department of Agriculture or under Federal rules that the USDA is supposed to approve – none of which has happened yet. With all these issues outstanding, I was recently asked to talk about the advertising issues surrounding these products before a continuing legal education seminar sponsored by the New York State Bar Association. The slides from my presentation are available here.

As we have advised broadcasters before, because they are Federal licensees, and marijuana is still a federally prohibited substance, there is substantial risk in running any advertising for products supposedly “legal” in the state in which they are being used. These ads are particularly of concern during the license renewal cycle that begins next month, as objections from anti-marijuana activists could put this issue directly before the FCC. Even though states may have adopted rules governing advertising for these products, the federal law still poses great risks for broadcast licensees – just as it does for other federally-regulated entities. That is one of the reasons that federally-chartered and insured banks have stayed away from taking deposits from marijuana-related businesses (a bill is presently pending in Congress to allow banks to take deposits, but its prospects are uncertain).
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Last week, the US Department of Health and Human Services (HHS) adopted a new rule mandating, at some point later this year after Paperwork Reduction Act approval, that prescription drug advertising on TV contain certain price information. Specifically, HHS will require TV ads for prescription drugs covered by Medicare or Medicaid to include the

The developments surrounding the regulation of cannabis products, and the impact of that regulation on the ability of broadcasters and other media companies to run ads for these products, continue on an almost daily basis.  Of course, the developments don’t all point in a single direction.  As described below, at the same time as the FDA schedules a hearing to look at cannabis products and the rules that should apply to them, the FTC and FDA together have written warning letters to CBD marketers advising them to stay away from making specific health claims about their products and to avoid promoting edible products.  What does this mean for media companies that have been approached to advertise these products?

We very recently wrote about the murky state of the law on CBD advertising (mentioning our continuing concerns about marijuana advertising even in states where it has been “legalized”).  In that article, we warned that broadcasters should be particularly concerned about selling advertising that markets CBD products to be ingested, or advertising which makes unsupported health claims.  In a joint action announced last week, the FTC and the FDA wrote letters to three sellers of CBD products, warning those companies that their marketing raised legal issues.  In these letters, the FTC expressed concern that the marketing contained health claims that could not be substantiated, and the FDA was concerned about the marketing of supplements and other CDB products to be taken orally that had not been approved by the FDA as either foods or medicines.  At least one of the letters cited a “salve” that presumably was not to be ingested, so the concern there seemed to be solely the specific health claims made for the product.  These letters reinforce the concerns that we expressed about advertising that contains specific health claims or which deals with products to be taken by mouth (either as dietary supplements, medicines or in other foods) – so stations should be especially wary of such ads. 
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In the last few months, we probably have had more questions about advertising for CBD products than any other topic. At this point, CBD products seem to be sold in nearly every state in the country, and discussions about CBD’s effectiveness seem to be staples on national and local television talk programs. Broadcasters naturally ask whether they can advertise these seemingly ubiquitous products. Unfortunately, the state of the law on CBD at the current time is particularly confusing, as discussed in this article.

First, a primer on terminology. CBD, short for cannabidiol, is a derivative of the Cannabis sativa plant. Industrial hemp is produced from portions of a strain of the same plant containing low concentrations of the psychoactive chemical known as THC, or tetrahydrocannabinol, and hemp can also be used to produce CBD. In contrast, recreational and medical cannabis, derived from the dried flowers, leaves, and stems of the female Cannabis plant (which we’ll call marijuana to distinguish it from hemp), contains higher concentrations of THC and lower concentrations of CBD. Preliminary clinical research has shown the potential benefits of using CBD to treat anxiety, cognition, movement disorders, and pain, and certainly these properties are attributed to the substance in popular culture. But is it legal?
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Alternate Title: March Madness Trademarks: It’s March Spring and You Do Not Want to Make the NCAA Mad Angry at You

As we have previously reported, the National Collegiate Athletic Association (NCAA) is very serious about taking action against anyone who may try to trade off the goodwill in its March Madness marks — even if the NCAA’s actual marks are not used. For example:

  • Readers may recall that the NCAA filed a trademark infringement action in 2017 against a company that ran online sports-themed promotions and sweepstakes under the marks “April Madness” and “Final 3.” The defendant stipulated to an order providing that it would cease using those marks at least until the end of the year, but the order did not provide for dismissal of the case. The defendant failed to file an answer to the complaint and the NCAA was granted a default judgment, after which it filed a motion requesting an award of attorneys’ fees against the defendant in the amount of $242,213.55. In May 2018, the Court awarded attorneys’ fees in the amount of $220,998.05.
  • The NCAA sued a car dealership that had registered and was using the mark “Markdown Madness” in advertising. (The case was settled.)
  • Even schools that are part of the NCAA are not immune from claims of infringement. Seven years after the Big Ten Conference started using the mark “March Is On!,” the NCAA opposed an application to have that mark federally registered. (Ultimately, the opposition was withdrawn, the mark was registered, but the registration was assigned to the NCAA.)

These actions illustrate the level of importance that the NCAA places on acting against the use of trademarks which seek to create an association with its annual Collegiate Basketball Tournament. Clearly, such activities continue to carry great risks. Accordingly, following is an updated version of our prior blog posts on this subject.

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With the NCAA Basketball Tournament about to begin, broadcasters, publishers and other businesses need to be wary about potential claims arising from their use terms and logos associated with the tournament, including March Madness®, The Big Dance®, Final Four® or Elite Eight,® each of which is a federally registered trademark. March Mayhem® is also registered to the NCAA, which is currently seeking to register March to the Madness.

The NCAA Aggressively Defends Against Unauthorized Use of its Trademarks

The NCAA states that $844.3M of its annual revenues derives from the licensing of television and marketing rights in the Division I Men’s Basketball Tournament. Moreover, its returns from the tournament have historically grown each year. Most of this income comes from broadcast licensing fees. It also has a substantial amount of revenue from licensing March Madness® and its other marks for use by advertisers. As part of those licenses, the NCAA agrees to stop non-authorized parties from using any of the marks. Indeed, if the NCAA did not actively police the use of its marks by unauthorized companies, advertisers might not feel the need to get a license or, at least, to pay as much as they do for the license. Thus, the NCAA has a strong incentive to put on a full court press to prevent non-licensees from associating their goods and services with the NCAA tournament through unauthorized use of its trademarks.
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