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

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.

  • Music licensing organization Global Music Rights (GMR) has agreed to a three-month extension of its current interim licensing agreement. GMR

The deadline for 2022 candidates in Texas to file for a place on the March 1 primary ballot was this past Monday.  Deadlines in other states will follow during the first part of 2022.  As a result, broadcast stations and cable companies in Texas are already dealing with legally qualified candidates, and the FCC political rules that attach to those candidates.  Stations in other states will follow soon.  Even before these deadlines, stations are dealing with buys from potential candidates, PACs, and other third-party groups looking to establish positions for the important 2022 elections. Spending on political advertising is sure to increase as the new year rolls around, and some suggest that it could rival that spent in 2020. What should broadcast stations be thinking about now to get ready for the 2022 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, which become effective 45 days before the primaries (or before any caucus which is open to members of the general public). In Texas, those rates will begin in mid-January for the March 1 primary, and lowest unit charge (“LUC”) windows will open in other states throughout the first part of 2022.  With these rate windows soon to be upon us, stations should begin the process of determining what rates will apply during the window, as stations are no doubt now writing packages with spots that will be running during the window.  In addition to our Political Broadcasting Guide, we wrote about other issues you should be considering in determining your lowest unit rates here.  These articles provide just an outline of issues to consider in determining the rates that will apply in the window, so start conversations now with your attorney and political advertising advisors to make sure that these rates are being determined accurately and in compliance with FCC rules and policies.
Continue Reading Candidate Filing Deadline for the Primaries in the Texas 2022 Elections Just Passed – What Should Your Station, No Matter Where It Is, Be Doing to Prepare for the Coming Election Advertising Deluge?

With the Administration’s decision to renominate Jessica Rosenworcel for another term on the FCC and to select her as the permanent chair of the Commission, and the nomination of Gigi Sohn to fill the vacant seat on the FCC, and assuming both are confirmed by the Senate (though the Wall Street Journal noted that there

In a Federal Trade Commission notice published last week, the agency warned the advertising industry that penalties could be coming for the use of deceptive endorsements.  The FTC not only released the notice, but it also sent a letter (a version of which is available here) to hundreds of businesses (a list is here) – advertisers, advertising agencies, and a few media companies – reminding them of the FTC’s concerns about deceptive endorsements in advertising.  While the FTC makes clear that this list of recipients of the letter does not indicate that any of them did anything wrong, it does make clear that the FTC takes this issue very seriously and wants to highlight the issue for the entire advertising ecosystem.  The letter reminds businesses that violations can lead to fines of up to $43,792 per violation and other penalties.

What are the FTC concerns?  The FTC said that prohibited practices “include, but are not limited to: falsely claiming an endorsement by a third party; misrepresenting whether an endorser is an actual, current, or recent user; using an endorsement to make deceptive performance claims; failing to disclose an unexpected material connection with an endorser; and misrepresenting that the experience of endorsers represents consumers’ typical or ordinary experience.”  In other words, when an endorser says something about a product, the FTC is expecting that the endorser used the product and the statements that it makes about the product are accurate and reflect what consumers can expect from that product.  This is not the first time that the FTC has raised these issues.
Continue Reading FTC Reminds Advertisers That Deceptive Endorsements in Advertising Can Lead to Penalties

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 Federal Trade Commission issued a press release which warns advertisers to avoid misleading endorsements. The FTC also sent a