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With the Super Bowl fast approaching, broadcasters and other media companies are planning advertising and promotions around the big game.  Here is some advice to broadcasters from Mitchell Stabbe, a lawyer from my firm who has spent over 30 years counseling businesses on trademark issues, about legal cautions to consider in finalizing your plans:

In addition to the monies it receives annually for the right to broadcast the Super Bowl, the NFL receives more than $1 billion in income from licensing the use of the SUPER BOWL trademark and logo.  Not surprisingly, it 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 need to take special care before publishing ads or engaging in promotional activities that refer to the Super Bowl.  Broadcasters and media organizations have slightly greater latitude than other businesses, but still need to wary of engaging in activities that the NFL may view as trademark or copyright infringement.  (These risks also apply to the use of “Final Four” or “March Madness” in connection with the upcoming NCAA Basketball Tournament.)

Simply put, the NFL views any commercial activity that uses or refers to the Super Bowl to draw attention as a violation of its trademark rights.  Many of the activities challenged by the league undoubtedly deserve a yellow flag.  However, the NFL’s rule book defines trademark violations very broadly.  If anyone were willing to throw the red flag to challenge the league’s position, a review from the booth might reverse some of those calls.  But, unless you are ready to take on the NFL in that fight, proceed with caution. 
Continue Reading As The Golden Super Bowl Approaches, Be Aware of The NFL’s Efforts to Protect Its Golden Goose from Unauthorized Ads and Promotions

It’s that time of the year when we need to dust off the crystal ball and make predictions about the legal issues that will impact the business of broadcasters in 2016.  While we try to look ahead to identify the issues that are on the agenda of the FCC and other government agencies, there are always surprises as the regulators come up with issues that we did not anticipate. With this being an election year, issues may arise as regulators look to make a political point, or as Commissioners look to establish a legacy before the end of their terms in office.  And you can count on there being issues that arise that were unanticipated at the beginning of the year.

But, we’ll nevertheless give it a try – trying to guess the issues that we will likely be covering this year.  We’ll start today with issues likely to be considered by the FCC, and we’ll write later about issues that may arise on Capitol Hill and elsewhere in the maze of government agencies and courts who deal with broadcast issues.  In addition, watch these pages for our calendar of regulatory deadlines for broadcasters in the next few days.

So here are some issues that are on the table at the FCC.  While the TV incentive auction may well suck up much of the attention, especially in the first half of the year, there are many other issues to consider.  We’ll start below with issues affecting all stations, and then move on to TV and radio issues in separate sections below. 
Continue Reading What Washington Has in Store for Broadcasters in 2016 – Looking at the Legal Issues that the FCC Will Be Considering in the New Year

While many broadcasters’ thoughts are on holiday celebrations, the political process leading to the 2016 elections marches on. Last week, Bobby Baker, the head of the FCC’s Office of Political Programming and I conducted a webinar for broadcasters in 16 states on the legal issues that need to be considered in connection with the upcoming political season. The slides from that presentation are available here.

The week before last, I wrote about some of the issues that broadcasters should already be considering in connection with the 2016 election. With Lowest Unit Charge windows either open or to open this month in Iowa and New Hampshire, and windows opening in South Carolina and Nevada in the first week in January, stations need to be paying attention to their political obligations. Even though political windows are not yet open in other states, stations in these other states nevertheless need to pay attention to their political obligations. As I explained in the webinar, those windows apply only to Lowest Unit Rates. All other political obligations, including reasonable access for Federal candidates, equal opportunities, and the no censorship provisions of the rules apply once you have legally qualified candidates – not just during political windows. See our article here and here on that subject.
Continue Reading Understanding a Broadcaster’s Political Broadcasting Obligations Under FCC Rules – A Webinar Outlining the Requirements

The Sunlight Foundation, along with Common Cause and the Campaign Legal Center, have filed with the FCC complaints against 18 TV stations claiming that these stations violated the FCC’s sponsorship identification rules by not identifying former New York City mayor Michael Bloomberg as the true sponsor of issue ads bought by the Independence USA political action committee.  The complaint (available on the Foundation’s website as part of a press release on the action) alleges that stations have an obligation to look behind the named organizational sponsor to identify Mr. Bloomberg as the true sponsor of these ads, as he has provided all of the organization’s funding and directs its actions.  These same organizations filed a similar set of complaints last year, some also targeting Mr. Bloomberg and the PAC with which he is associated, complaints which, for the most part, remain pending at the FCC (see our article here).

These complaints are very similar to the ones filed in 2014, arguing that where a PAC is 100% financed by a single individual, the individual should be identified on the air as the sponsor, not the PAC itself.  The petitioners claim that, by not identifying Mr. Bloomberg as the true sponsor, the public is deceived as to who is behind the ads.  This is despite the fact that, in the required sponsorship disclosure statements filed in the stations’ public files, Mr. Bloomberg is identified, as required by the rules, as the Chairman of the PAC and as one of its two officers.  Apparently, this required disclosure is deemed insufficient by these groups.  But what will the FCC think?
Continue Reading More Complaints Filed Against TV Stations for Allegedly Not Disclosing the True Sponsor of PAC Ad on Political Issues

With the broadcast and cable news (and the monologs of TV talk show hosts) already dominated by discussions of the 2016 elections, broadcasters thoughts may be turning to that election and the expected flood of money that may come into the political process.  We are, after all, only two months away from the first ballots in Iowa and New Hampshire. But dreams of big political spending should not be distracting broadcasters from thinking about their political broadcasting obligations under FCC rules and the Communications Act, and from making plans for compliance with those rules.  I’ve already conducted one seminar on political broadcasting obligations with the head of the FCC’s Office of Political Broadcasting, several months ago, for the Iowa Broadcasters Association, and we will be doing another, a webcast for about 20 state broadcast associations on December 17 (hosted by the Michigan Broadcasters, see their announcement here). Check with your state broadcast association to see if they are participating in the webcast, as we should be covering many of the political broadcasting legal issues of importance to broadcasters.

Stations in Iowa have been receiving buys from Presidential candidates and PACs and other third-party groups since this past summer, and that spending is sure to increase in these last few weeks before the 2016 start of the primaries and caucuses. What should stations in Iowa and in other states be thinking about now to get ready for the 2016 elections?
Continue Reading Political Broadcasting Issues that Radio and TV Stations Should Be Thinking About Now As We Approach a Very Active Election Season

Today, the FCC published notice in the Federal Register of the adoption of the new simplified rules for publicizing the material rules for contests conducted by broadcasters. This publication was for purposes of review by the Office of Management and Budget under the Paperwork Reduction Act, a review necessary before any new rules requiring…

The FCC yesterday agreed to modernize its contest rules, allowing broadcasters to publicize the material terms of a contest that is conducted by a station through posting those rules on an Internet website, rather than requiring that the material rules be read on the air often enough so that a listener is likely to have heard them. The FCC’s order does impose obligations that the website location be announced on the air and that the site be accessible to everyone, but the changes, once they go into effect, will be a relief to many broadcasters who have had so much trouble in recent years with the current rules requiring on-air disclosure of a contest’s material terms (see, for instance, the many fines that have been issued to broadcasters for violations of these rules, about which we wrote here, here and here).

When these new rules go into effect (after approval by the Office and Management and Budget after a Paperwork Reduction Act review – an exercise that the FCC must go through for all new rules with any paperwork requirements even though it would seem to be a formality here where the rules clearly work to reduce the burden on broadcasters), a broadcaster will be able to satisfy the requirement to disclose the material rules of a contest either by continuing the old practice of reading the material rules on the air, or by posting those rules to an accessible website, and publicizing the Internet location of those rules on the air. The website hosting the rules can either be the station website or some other site, but the rules state that the site must be available to everyone who visits it without having to register to use the site or to pay any sort of fee to access the site. The on-air announcement about the website does not need to give the exact URL of the page on which the rules can be found, as long as the announcement is specific enough so that a listener will be able to find the rules (e.g. by saying something like “go to the K-100 website, k100.com, and click on the ‘contest’ tab”). The FCC also makes clear that, if a station is sending its audience to the station’s homepage to find the contest rules, that there should be a tab, link or other clearly identified location on the homepage to make clear where listeners should go to find the contest rules.
Continue Reading FCC Revises Broadcast Contest Rules – Allows Disclosure of Material Rules on the Internet

In an article posted on the FCC’s blog yesterday, FCC Chairman Tom Wheeler listed four actions that would soon be coming out of the FCC to address broadcast issues. For TV, these include looking at what constitutes “good faith negotiations” in the retransmission consent context, and whether to do away with the FCC’s network nonduplication protection rule. For radio, the long-delayed AM revitalization docket will apparently soon be considered by the FCC. And, finally, the FCC may modernize the contest rules for all broadcasters by allowing more online disclosure of contest rules. What are these proceedings all about?

The retransmission consent proceeding grows out of Congress’ adoption of STELAR, which authorized the continued retransmission of broadcast signals by satellite television operators. As part of that legislation, which we summarized here, the FCC was directed to start a proceeding to determine whether it should adopt new rules to define what constitutes “good faith negotiation” of retransmission consent agreements. There has already been significant lobbying on this issue by both sides. Right now, good faith negotiation really has not been an area where the FCC has intervened beyond using its bully pulpit to urge parties to retransmission consent disputes to reach a deal. It is commonly recognized that failing to deal with a MVPD at all would be a violation of the good faith standard, but many MVPDs now want the FCC to become more involved, putting limits on TV channel blackouts, especially just before big televised events (like the Super Bowl or the Oscars), limiting the blackout of web-based programming to subscribers of an MVPD that is involved in a dispute, limiting the bundling of Big 4 network programs with programming from other channels provided by the TV broadcaster, and similar limits. The Chairman’s blog is short on specifics, but does suggest that, while some specific prohibitions may be suggested, the FCC would also be able to look at the totality of the circumstances to determine if a broadcaster and an MVPD were negotiating in good faith (note that these rules apply to broadcast retransmission consent negotiation, not those between MVPDs and cable channels not shown on broadcast TV).
Continue Reading FCC Chairman Details Issues Coming Soon for Broadcasters – Review of Retransmission Consent, Network Nonduplication, AM Improvements, and Contest Rules

The FCC recently issued a Declaratory Ruling and Order on the Telephone Consumer Protection Act (TCPA) – and that order highlights many issues with broadcasters who use texts or outbound automated calls to the mobile devices of viewers and listeners. In fact, today the FCC released a Notice of Apparent Liability proposing to fine a travel marketing company $2,960,000 for robocalls to households on the Do-Not-Call list, without having any consent from the recipients of the calls. Certain practices of broadcasters could arguably come under TCPA prohibitions. Thus, Josh Bercu, an attorney in my firm, has prepared the following warning for broadcasters about their potential liability under the TCPA.

Last month, the FCC released a Declaratory Ruling and Order addressing 21 separate requests for clarification and other action regarding the TCPA, a law that restricts businesses and organizations from making calls and texts to consumers’ residential and wireless phones without having first received very specific permission from the recipient. Sending texts to broadcast station viewers or listeners who are contained in a station’s loyal listener or loyal viewer clubs can lead to liability if the proper releases are not obtained, and collecting text addresses from contest participants and adding them to station databases can similarly be problematic.   Because violations of the TCPA can result in civil liability of $500 to $1500 per call or text plus FCC fines, and as there have been a number of law firms around the country that have been active in filing class action suits against businesses to collect those potentially very high per-call damages, broadcasters need to ensure that their practices comply with the TCPA and the FCC’s rules which implement the Act.   While the recent Order provided some specific relief in limited circumstances to businesses, it leaves many well-intentioned companies, including broadcasters, at risk as they try to contact their viewers and listeners. Below we address some commonly asked questions about how the TCPA may apply to broadcasters.
Continue Reading How Broadcasters Could Have Big Liability For Texts And Calls under The FCC’s Recent Order on The Telephone Consumer Protection Act (TCPA)

Twice this morning, I was faced with the question of whether a business needs a license to play a radio or TV station on their premises, once in a story in one of the broadcast trade publications (see the article here, in the You Can’t Make This Up column toward the bottom of the article) about a gas station that thought that they got around paying ASCAP, BMI and SESAC fees by using “6 or 7” consumer radios around the station. After I saw that article, I thought that it was worth writing this article, as the difference between 6 and 7 radios could make a real difference as to whether the business needs to pay music royalties.

Broadcasters need to be careful about urging their clients to play their stations at their business locations. There are very specific rules, and if the rules are not followed, liability can result. But, as detailed below, there are some exceptions to the obligation of commercial establishments to pay ASCAP, BMI and SESAC that apply specifically to establishments that play only FCC-licensed radio or TV stations. But the details of the exceptions must be observed or there can be issues. All of the performing rights organizations have contractors who travel the country, checking out retailers, bars, restaurants, and other commercial establishments to make sure that they are following the rules. There are periodically press reports about these rights organizations seeking royalties (sometimes through legal actions) from coffee shops, nightclubs, and even farmers markets that publically perform music without signing license deals. So these commercial establishments need to know the rules about music use to avoid becoming a target. As set forth below, the rules are very specific, and broadcasters can actually benefit from the exceptions as, in the limited circumstances set out in the Copyright Act, businesses can play music from FCC licensed outlets without a license, but music from other sources could present an issue. But be careful, as there are very specific rules – and the difference between 6 and 7 radios could be a real issue.
Continue Reading Does a Local Business Need Licenses from ASCAP, BMI and SESAC to Play My Radio or TV Station on Their Premises?