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A bill introduced in the House of Representatives last week proposes that the FCC be required to amend its sponsorship identification rules to require not just the name of the sponsor of an ad addressing “a controversial issue of public importance,” but also the names of any “significant donors” to the…

A group of radio broadcasters have asked the FCC to agree to waive some provisions of the current sponsorship identification rules of the FCC to permit stations that have sponsored music or sports programming to move some of the required sponsorship identification online (the request is available here). This is to provide listeners with a more detailed and accessible means of determining the sponsor of certain broadcast programming. The FCC’s Mass Media Bureau has asked for public comments on this proposal, with comments due by April 13, and reply comments by May 12.

The examples of situations where the waiver would be used as provided in the Petition are for sponsored music programming (e.g. if a particular music label was to purchase an hour to feature their recordings) or sports programs (e.g. if a team were to purchase time on a station to do a coaches program or even a full game). The current rules require that the identification must be broadcast at the time of the broadcast – which has often been interpreted to mean at the time of the program, which is why you see the sponsorship acknowledgements at the end of TV quiz shows, acknowledging all the companies who provided free stuff to the program producers to get their products mentioned on air. The proponents of the new approach set out in this petition suggest that the online disclosure might actually provide more information to listeners of a radio program as, if the listeners don’t happen to be listening at the top of the sponsored hour (or three hours for a sponsored baseball game broadcast), they don’t hear the fleeting announcement. So the broadcasters have suggested what they see as a better way of providing that announcement.
Continue Reading FCC Asks for Comment on Radio Broadcasters Proposal for Moving Online Some Sponsorship Identifications

We are in March, which means that the minds of many turn to basketball, specifically March Madness as the NCAA hosts its annual championship tournament to crown college basketball’s national champion. And many broadcasters want to take advantage of the tournament to promote their stations or the products of their sponsors. Because of this inclination, we post this warning each year (see, for instance, here and here) – just like we do around the Super Bowl or the Olympics – these championship names are trademarked, and the owners are active in policing and protecting their marks, as sponsors pay the NCAA big bucks for association with the championship – so be careful about using “March Madness” in promotions and advertisements, as these uses could bring trouble.

Each year, we get the question “is March Madness a trademarked term” or, as it is sometimes formulated, “is March Madness copyrighted” (in fact, in this context, when talking about the name which brands an event, we are talking about trademark law, not copyright). And each year we say “yes.” But what does that mean? That does not mean that your newscasters, sports reporters or morning DJs can’t talk about the tournament using the name of the event. Instead, what it means is that commercial uses of the term, that could imply some association with the event for which sponsors pay money, can be problematic – and could cause the NCAA and their lawyers to pay attention, and could cost you or your sponsor money or time defending the use. So the safest way to avoid issues is to avoid the trademarked phrase in promotions and advertisements.
Continue Reading March Madness is a Trademarked Term – Use Caution in Using it in Advertising and Promotion

In a Public Notice issued yesterday, the FCC asked for comments from the public on whether broadcast stations should be able to enforce “Last In, First Out” (“LIFO”) pricing against political candidates in election races.  During the 45 days before a primary election or the 60 days before a general election, for advertising buys by a political candidate’s authorized campaign committee, a station cannot charge more than the lowest price charged to the station’s best commercial advertiser for that same class of advertising time.   What the Commission asks in its Public Notice is whether the practice of stations of deciding that particular classes of advertising time are effectively sold out discriminates against candidates – as candidates routinely buy their advertising time late in an election cycle.  These issues come up often, particularly late in any political window as demands on the advertising inventory of stations can become very tight as an election approaches.

So what does this petition ask?  First, let’s take a step back and look at how lowest unit charges work in broadcast (and cable) political advertising.  An easy example would be where a candidate wants to buy a fixed position advertisement on a radio station during its morning drive program.  For that ad, a candidate can be charged no more than the lowest price that the station charged to any commercial advertiser for a similar fixed-position spot that runs in that same time period.  Different classes of time have different lowest unit rates.  That means that, in that same morning drive program, there might be a lowest rate for these fixed position adverting spots that are guaranteed to run at the time that they are scheduled, but a lower price for spots that can be preempted by higher priced spots.  If there are different make-good rights associated with a class of preemptible time (e.g. one type of spot must be “made-good” by the station within a week if it is preempted, while another might just need to be made-good within the next month), both of those classes could have different lowest rates.  See more about lowest unit rate here and here. 
Continue Reading Comments Sought by FCC on Political Broadcasting Lowest Unit Rate Implications of Last In First Out Pricing

The FCC seems to be making another statement – releasing one decision upholding two very large fines against major cable programmers for improper use of EAS tones in ads for a movie, while just two days later releasing another decision approving a consent decree with a broadcaster imposing a penalty and monitoring conditions for using those tones in a radio show.  The first decision was by the full Commission.  It upheld a preliminary decision by its staff that we wrote about here, imposing fines of $1,120,000 against Viacom and $280,000 against ESPN.  The new case was against a Univision radio station in New York – agreeing in a consent decree to a $20,000 penalty.

The new case arose at a Spanish language station, where DJs in a comedy sketch on a morning radio show played the EAS tones repeatedly while joking about men who gain weight, and once even joking that playing the tone was illegal.  The FCC was alerted to the use of the tones by a radio listener who apparently was scanning the radio band, heard the tones and tried to determine what the emergency was – eventually figuring out that the alerts were not really part of an emergency at all.  The $20,000 penalty was combined with the FCC’s imposition of a requirement that the station prepare a compliance manual for its employees about the EAS system, conduct training programs, and report to the FCC about its compliance with the plan and the EAS rules for the next three years – including any EAS noncompliance at any of its stations.
Continue Reading More Big Penalties for Use of EAS Tones in Non-Emergency Programming

With the college football champion now decided, and the NFL league championships this coming weekend to decide this year’s Super Bowl teams, it’s that time when we post our warning about being careful with using the phrase “Super Bowl” in your promotions and commercials.  Both copyright and trademark issues can arise at Super Bowl time.  Trademark is usually the biggest concern, as there are always issues when broadcasters and advertisers don’t watch their commercials and promotions to avoid improper uses of a trademarked phrase like “Super Bowl.”  But copyright issues can also arise when broadcasters or others make a commercial use of part of the game’s TV coverage, or hold commercial paid viewing parties where proper rights to display the telecast has not been obtained.

First the trademark issues that arise not only with the Super Bowl, but also with other big brand events like March Madness which will begin to be hyped soon after the Super Bowl.  As we do every year when the Super Bowl and March Madness roll around, we remind broadcasters to scrutinize their advertising and promotions to avoid anything that appears to imply a tie-in with any of these events – especially where the trademark-protected name of the event is used in the ad or promotion itself. (See past articles here, here and here). 
Continue Reading Beware of the Trademark and Copyright Issues in Ads and Promotions Involving the Super Bowl

Each year, at about this time, we pull out the crystal ball and make predictions of the issues affecting broadcasters that will likely bubble up to the top of the FCC’s agenda in the coming year.  While we try each year to throw in a mention of the issues that come to our mind, there are always surprises, and new issues that we did not anticipate. Sometimes policy decisions will come from individual cases, and sometimes they will be driven by a particular FCC Commissioner who finds a specific issue that is of specific interest to him or her.  But here is our try at listing at least some of the issues that broadcasters should expect from Washington in the coming year.  With so many issues on the table, we’ll divide the issues into two parts – talking about FCC issues today, and issues from 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 – starting first with issues affecting all stations, then on to TV and radio issues in separate sections below. 

General Broadcast Issues

There are numerous issues before the FCC that affect both radio and television broadcasters, some of which have been pending for many years and are ripe for resolution, while others are raised in proceedings that are just beginning. These include:

Multiple Ownership Rules Review: In April, the FCC finally addressed its long outstanding Quadrennial Review of the broadcast multiple ownership rules – essentially by punting most of them into the next Quadrennial Review, which probably won’t be resolved until 2016.  Issues deferred include any revisions to the local ownership limits for radio or TV (such as loosening the ownership caps for TV stations in smaller markets, which the FCC tentatively suggested that they would not do), any revision to the newspaper-broadcast cross-ownership rule (which the FCC tentatively suggested that they would consider – perhaps so that this rule can be changed before the newspaper becomes extinct), and questions about the attribution of TV Shared Services Agreements (which the FCC is already scrutinizing under an Interim Policy adopted by the Media Bureau).
Continue Reading What Washington Has in Store for Broadcasters in 2015 – Part 1, What’s Up at the FCC

Perhaps Sunday’s anniversary of Pearl Harbor made the FCC want to make this week one which concentrated on emergency communications issues, or perhaps it is just a coincidence.  But the FCC has been active in the past 7 days dealing with emergency communications related items for broadcasters.  On Wednesday, it issued a consent decree by which a broadcaster agreed to a $46,000 fine for the use of EAS tones in a commercial message. This decision follows on the heels of an investigatory letter sent to a satellite radio programmer about the apparent use of a simulated EAS tone in a commercial message when, of course, there was no real emergency.   On Monday, there were two fines for non-operational EAS receivers and EAS recordkeeping failures.  At the end of last week, comments were filed in an FCC proceeding looking at the retransmission of EAS alerts in non-emergency situations, such as when a tone is included in programming on a station, and what can be done to avoid those alerts being sent throughout the system.  Comments are also due by the end of the month on suggested best practices on security for the EAS system, in light of the many issues that have arisen with the hacking of EAS receivers.  Here is a quick look at each of these issues.

The two most recent decisions highlight the severity with which the FCC is treating the use of EAS tones – real or simulated – in non-emergency programming.  We have written about past cases where the FCC has issued very substantial fines for the use of such tones in nonemergency situations, here and here.  In the decision released on Wednesday, the licensee of a Michigan radio station admitted to having broadcast ads for a storm-chasing tour which contained the EAS warning tones.  The National Weather Service received complaints, and in turn filed a complaint with the FCC.  The Consent Decree does not provide much more information, but to indicate that the commercial containing the EAS tones was broadcast on only a single day.  A $46,000 fine for a one-day violation demonstrates the gravity with which the FCC views these violations.  And it is a sense of importance that attaches not just to licensees, but to programmers as well.
Continue Reading A Week of Emergency Alert System Actions at the FCC – Fines Including One for $46,000 for EAS Tones in a Commercial, and Reviews of Best Practices for the System

On Friday, the FCC released an Order and Consent Decree by which Journal Broadcasting agreed to pay a fine of $115,000 and to enter into a compliance program to settle complaints that it had not adequately identified that a program aired on its Las Vegas TV station was sponsored by a local car dealership.  According to the FCC press release issued at the same time as the Order and Consent Decree, the program was labeled a “Special Report,” was hosted by a station employee who stated that she was “reporting on behalf of Channel 13,” was made to look like a news report (with the reporter interviewing various employees of the dealership about their liquidation sale), and was run immediately adjacent to the local news.  The Press Release stated that this action was important to insure “transparency” where consumers are not misled as to who is trying to persuade them about commercial product.  “[A] pseudo news report invites viewers to rely on their perception of the station’s independence and objectivity when, in fact, the message has been bought and paid for by an undisclosed third party,” stated the FCC in the press release.

While the licensee argued that the context of the program made clear that it was a sponsored ad, the Commission’s insistence on the payment of a fine here is evidence of much the same thinking as the decisions the FCC has reached in past cases where there was entertainment or informational programming presented without a sponsorship identification even where the programming was sponsored by a commercial entity.  Even simply providing a recorded program unduly promoting a commercial product has been found to be sufficient to trigger the FCC’s requirement that a sponsor be identified when a station receives valuable consideration for the airing of a program broadcast to the public (see our article here).
Continue Reading TV Station Agrees to $115,000 FCC Fine for Not Identifying Sponsor of Program Promoting a Sale at Auto Dealership

The FCC yesterday issued an order declining to allow experimentation with the noncommercial underwriting rules that was requested by the licensee of noncommercial radio stations in the Phoenix area.  The licensee had asked the FCC for permission to conduct a three year experiment by relaxing the underwriting rules in certain ways to determine the effect such a relaxation would have on its ability to raise revenue, and the impact on the listening and support that the station currently enjoys.  In denying the station experimental authority to conduct the test, the FCC determined that it lacked the authority to authorize it, as the relaxation that the license was seeking would be prohibited not only by FCC rules, but also by statute, and the FCC cannot waive or grant an exception to a statutory provision (unless specifically permitted by the statute). 

The underwriting rules prohibit noncommercial stations from running advertising for commercial entities.  These rules have been relaxed somewhat over the last 30 years to allow for “enhanced underwriting” announcements, which allow noncommercial stations to identify their sponsors, and provide limited information about the products and services of those sponsors.  But the information cannot be promotional in nature.  Specifically, there are a number of limitations put on these announcements.  Some of these limitations include: (1) the announcements cannot contain “calls to action” – statements that suggest that listeners buy from the sponsor or patronize their place of business; (2) the announcements cannot have qualitative claims – so noncommercial stations cannot say that their sponsor was voted the “best car repair shop in the city by City Magazine,” even if that statement of fact is true; and (3) the announcement cannot provide price or other information relevant to a buying decision, e.g. where tickets are sold, interest rates, etc.  For more information about these rules, see some of our previous articles on this topic here, here, here and here, as well as a presentation on that issue that is discussed here.  What did this licensee seek to change in its experiment?
Continue Reading FCC Declines to Allow Experimentation with Noncommercial Underwriting Rules