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Every election season there is the same refrain from candidates who are attacked in political ads run on broadcast stations – that ad is unfair and the broadcaster who is running it should take it off the air.  Sometime, that request is sent by a lawyer with threats to bring legal actions if the broadcaster does not stop airing the ad.  What is a broadcaster to do when it gets one of these requests to pull a political ad from the air?  While we have written about this issue many times before (see, for instance, our refreshers on the rules with respect to candidate ads, here, and non-candidate, third-party attack ads, here), questions still come up all the time.  Thus, 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.

The rules are actually fairly simple in concept, and for ads sponsored by candidates themselves, the rules are fairly simple for broadcasters to implement.  It’s very basic – broadcasters can’t censor a candidate ad, so they can’t reject it (or remove it from the air) no matter what its content is.  The FCC has made only one exception to this “no censorship” obligation.  That exception was adopted when Larry Flint was planning to run for Federal elective office and stations feared that he would run sexually explicit campaign ads.  At that time, the FCC adopted a policy that broadcasters need not run an ad that would violate a Federal criminal law (e.g. obscenity).  That is a very narrow decision, as the Courts have even forced the FCC to make stations run without censorship graphic anti-abortion ads with disturbing content, where such ads would not be legally obscene (they might be indecent under FCC rules, and may be disturbing to some, but the airing is not a criminal violation, so the Courts said that they cannot be blocked by a broadcaster).  Because broadcasters have essentially no choice but to run a political ad in the form that the candidate provides it, and cannot reject it based on content, the Supreme Court has recognized an exemption from any broadcaster liability for the content of the ad.  So the candidate who claims that he is libeled or defamed by the political ad needs to seek relief from the candidate who ran the attack ad, not from the station.  But there are some important details that need to be observed to make sure that there is no liability for the broadcaster.
Continue Reading Questions about the Truth of Political Ads, What’s a Broadcaster to Do When a Candidate Complains About an Attack Ad? – The No Censorship Rule for Candidate Ads

With the lowest unit charge window for the November elections kicking into effect tomorrow (September 5), we thought that it was a good idea to review the basics FCC rules and policies affecting those charges. With each election seemingly breaking spending records from prior cycles, your station needs to be ready to comply with all of the FCC’s political advertising rules. Essentially, lowest unit charges guarantee that, in the 45 days before a primary and the 60 days before a general election, candidates get the lowest rate for a spot that is then running on the station in any class of advertising time. Candidates get the benefit of all volume discounts without having to buy in volume – i.e. the candidate gets the same rate for buying one spot as your most favored advertiser gets for buying hundreds of spots of the same class. But there are many other aspects to the lowest unit rates, and stations need to be sure that they get these rules right.

It is a common misperception that a station has one lowest unit rate, when in fact almost every station will have several – if not dozens of lowest unit rates – one lowest unit rate for each class of time. Even on the smallest radio station, there are probably several different classes of spots. For instance, there will be different rates for spots that run in morning drive and spots that run in the middle of the night. Each of these time periods with differing rates is a class of time that has its own lowest unit rate. On television stations, there are often classes based not only on daypart, but on the individual program. Similarly, if a station sells different rotations, each rotation on the station is its own class, with its own lowest unit rates (e.g. a 6 AM to Noon rotation is a different class than a 6 AM to 6 PM rotation, and both are a different class from a 24 hour rotator – and each can have its own lowest unit rate). Even in the same time period, there can be preemptible and non-preemptible time, each forming a different class with its own lowest unit rate. Any class of spots that run in a unique time period, with a unique rotation or having different rights attached to it (e.g. different levels of preemptibility, different make-good rights, etc.), will have a different lowest unit rate.
Continue Reading The Political Window Opens Tomorrow – A Refresher on the Basics of Lowest Unit Charge

Get ready for more challenges to issue ads that you may be receiving this election season.  The FCC’s Media Bureau today released a brief decision on the Sunlight Foundation’s complaint petition against two TV stations concerning the proper sponsorship identification for ads by Political Action Committees.  We wrote about those complaints when they were filed back in July, here.  The complaints, arising from elections that took place last year, targeted two PACs that each had single individuals who had donated substantially all of the money that was raised by the PAC.  Sunlight claimed that the stations should have tagged as the true sponsors of the ads the individuals who had provided virtually all of the money for the PACs.  Sunlight alleged that these stations should have known who the true sponsors of the ads were, based on news reports that were run on the stations talking about the individuals who had funded the PACs.  Instead, the stations had run sponsorship identifications identifying only the PACs as the sponsors of the ads. 

In today’s action, the Bureau dismissed the complaints.  However, the Bureau did not find Sunlight’s allegations to be incorrect.  Instead, the complaints were dismissed because Sunlight never went to the stations to ask that they change the sponsorship identification on the PAC spots during the course of the election.  The Bureau stated that it was using its “prosecutorial discretion” not to pursue these complaints, going so far as to say that the ruling might have been different had the request for a proper identification been made to the stations during the course of the election.
Continue Reading Identification of Sponsors of Non-Candidate Political Ads May Be More Controversial This Election Season as FCC Suggests that Broadcasters May Need to Determine Who is Behind Third Party Ads

An active political broadcasting season is already upon us, with things more likely to get even more hectic between now and November.  Are you ready to handle all of the FCC’s political broadcasting obligations?  We’ve prepared an updated Guide to the FCC’s political broadcasting rules in a question and answer format, and it is available here.  We hope that this Political Broadcasting Guide will give you a primer on many of the questions that arise in any political broadcasting season so that you can intelligently discuss the issues with your attorneys when issues arise, and with your staff and media buyers when dealing with routine matters.  And the issues will arise.

Already we have seen a number of contested races, including a primary for the November elections recently held in Texas, and a special election in Florida to fill an open House seat. As in any other even-numbered year, all of the US House of Representatives and one-third of the seats in the US Senate will be filled in the November elections, and there are a great many elections for state and local offices, including many high-profile governor’s races, that will be contested this year.  Check out our 2014 Broadcasters Calendar for some of the upcoming dates for primaries and lowest unit rate windows in your state.  As explained in our Political Broadcasting Guide, there are things that you should be doing now to get ready for the political season, and you will have obligations to potential candidates once they become legally qualified candidates, even if you are not yet in the political window (45 days before a primary and 60 days before a general election).  For instance, as we wrote here, reasonable access applies to Federal candidates even outside the political windows, and equal opportunities and the paperwork and public file requirements apply to all candidates as soon as they are candidates – even outside the actual lowest unit rate windows.
Continue Reading Answering Your Questions on the FCC’s Political Broadcasting Rules – A Guide to Political Broadcasting from Candidates and Issue Advertisers

The FCC has recently staked out a policy that the any use of EAS tones, or tones that sound like those alerts, outside of a real emergency, will lead to big fines.  Since the beginning of the year, the FCC has issued notices proposing fines totaling over $2.2 million against some of the biggest media companies in the country for such violations (see this decision proposing a $300,000 fine against Turner Broadcasting System Inc. for tones mimicking the EAS alerts that were included in a commercial transmitted nationwide in cable network programming, and this decision imposing cumulative fines of over $1.9 million on 3 cable network programmers for transmitting ads for the movie Olympus Has Fallen that included portions of the EAS alert tones).  Only days after the latter decision, a new warning about EAS tones or sound effects made to mimic those tones was sent out by the Southern California Broadcasters Association alerting broadcasters to a commercial for a charcoal briquettes company that seemingly contained such tones.  Given the strict liability that the FCC has been imposing for such commercials, watch for this recent ad and any other programming that might contain EAS tones or anything that sounds like them – and keep them off the air. 

With past warnings on this issue (see our article from November about another set of FCC fines for similar broadcasts,  and the release of an FCC press release warning media companies about the issue) and the recent large fines imposed on major media companies – both broadcast and cable – it is clear that all media companies need to be on the alert to monitor their broadcast material for the any content sounding like EAS alerts, and advertisers and program producers need to be aware that anything they produce that contains the alert tones is likely to cause problems at the FCC.  Note that these recent decisions imposed penalties on cable networks – so it is not just licensees who need to be vigilant.  In these decisions, the FCC has rejected any arguments that the media companies that transmitted the advertising containing the alert tones should be excused from liability as they did not themselves produce the ads.  So watch for these tones – even if they are packaged in someone else’s programming. 
Continue Reading Be on the Alert for EAS Tones in Non-Emergency Situations – Big FCC Fines for These Violations and Other EAS Issues

We recently wrote about FCC issues that will be facing broadcasters in this new year.  While broadcasters will no doubt be busy keeping track of what the FCC is up to, they also need to have their eyes on other government agencies, as there are numerous issues that may come from Congress and the other regulatory agencies in DC that could affect their bottom lines.  So, with a watchful eye on the FCC for the issues we wrote about earlier in the month, what other issues should broadcasters be watching for from all of the other regulatory power centers in DC? 

While this is an election year, and that makes many big pieces of legislation unlikely, the discussions that occur in 2014 on these issues may pave the way for action late in the year, or in 2015 after the new Congress is in place and before the Presidential election in 2016 commands everyone’s attention.  Here are some of the issues of interest to broadcasters likely to be on the DC agenda in 2014:
Continue Reading What’s Up in Washington For Broadcasters in 2014? — Part 2, Issues beyond the FCC Including Ad Taxes, Music Royalties, Privacy Reforms, and More

It’s that time again when broadcasters and advertisers need to watch their commercials and promotions to avoid improper uses of trademarked phrases – with the Super Bowl only weeks away, the Winter Olympics to follow soon thereafter and March Madness to follow closely after that.  Already, Stephen Colbert is making jokes about not using the Olympic rings in promotional announcements (see the first segment of last night’s show), so you know that the issue is arising at media outlets across the country.  As we do every year when the Super Bowl and March Madness roll around (and every other year at Olympics time), 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 protected name of the event is used in the ad or promotion itself. (See past articles here and here). 

The Super Bowl and March Madness are both trademarked terms, and violations of the trademarks have been vigorously prosecuted by the NFL and the NCAA, respectively.  The US Olympic committee has gone one better, getting specific statutory protections in the US for the use of the term the Olympics and the interlocking rings that symbolize the games.  Sponsors of these events pay big bucks for the privilege of being associated with the events, and the organizations putting on the events rely on the money from these sponsors to fund their operations.  So they go out of their way to protect their trademarks.  I wrote the summer before last about my own experiences at the London Summer Olympics, where even the trademarks on the plumbing fixtures at the Olympic sites were obscured where the manufacturers had not obtained Olympics sponsorships.  So there are obviously limits on what can and cannot be said about these marks.  What are those limits?
Continue Reading Super Bowl, the Olympics and March Madness – Watch Your Advertising and Promotions for Unauthorized Uses of Trademarked Phrases

Section 399b of the Communications Act bans advertising for for-profit companies, as well as political and issue advertising, on noncommercial radio and television stations.  While Congress over 20 years ago loosened some restrictions on fundraising by allowing paid ads by nonprofit groups on noncommercial stations, and permitting commercial entities to provide some minimal information about their businesses (including their logos) on sponsorship underwriting on public TV, the ban has otherwise prohibited commercial and political ads containing qualitative claims, price information or calls to action.  In a recent decision, the US Court of Appeals for the Ninth Circuit affirmed a decision of a California District Court upholding the constitutionality of that ban against a challenge by a noncommercial TV station operator who contended that the rule was an unconstitutional abridgement of the First Amendment.  The case is particularly interesting not just for the analysis by the Court in upholding the ban, but perhaps more so for the dissenting opinion of the Court’s Chief Judge, who found that the Court’s analysis ignored modern realities of the broadcast world in adopting a reduced standard of First Amendment protection for broadcasters leading the majority to be too timid in questioning the justification for the ban advanced by the government.  Thus, the case has importance not just for noncommercial broadcasters looking for new sources of revenue, but also for other broadcasters concerned about intrusive government regulation of their industry and the standard of First Amendment review that would be applied to such regulation.

We had written about an earlier decision in this case here and here.  The case arose when a public television operator in the San Francisco area, Minority Television Project, Inc., was fined by the FCC for having run promotional ads for commercial and political advertisers, and decided to fight that ban in court.  A panel of the Court of Appeals determined that the fine was appropriate for running commercials for for-profit companies, but unexpectedly threw out the Section 399b restriction on ads on political or controversial issues, finding that the public good of speech on these topics outweighed the government’s interest in fostering public broadcasting.
Continue Reading Court of Appeals Upholds Communications Act Ban on Commercial and Political Advertising on Public TV Stations – Significant Analysis of the Standards for First Amendment Review of all Broadcast Regulation

The FCC is cracking down hard on television stations and cable companies who use EAS alerts – or even simulations of such alerts – in advertising, promotions, and programming.  In two orders released this week, the FCC imposed big penalties on video companies who used fake EAS alerts in commercial messages.  In one case, it fined a cable programmer (Turner Broadcasting) $25,000 for the use of a simulated EAS tone (not using the actual tone, but just a set of tones that sounded like the EAS alert) in a promotion for the Conan O’Brien program.  In a consent decree with a TV broadcaster, in exchange for a $39,000 voluntary payment to the FCC and the adoption by the station of a series of policies to avoid similar problems in the future, the Commission agreed to dismiss a complaint against a station that had used simulated EAS tones in a commercial for a local store.  These decisions were coupled with two other announcements to make the point that the FCC wanted to demonstrate the importance that it places on EAS and its lack of tolerance for any non-emergency use of anything sounding like the EAS tones that could possibly confuse the public.

At the same time as the two decisions were released, the FCC issued a press release emphasizing the importance of EAS and how such actions trivialized the alert system.  A Fact Sheet was also released, making four documents all emphasizing the importance of EAS, and the threat posed to real warnings by any sort of use of sounds that could be confused for the EAS alerts.  Where does the FCC get its authority to impose such fines?
Continue Reading Penalties of $39,000 and $25,000 Assessed For Video Programming Containing Fake EAS Messages

There have been many Washington developments for broadcasters in the last week – and while it was all occurring, our Blog was undergoing a makeover, so some of the articles that we published in the last week may have been missed.  Perhaps the biggest news was the confirmation and swearing in of the new FCC Chairman, Tom Wheeler.  Last week, we wrote this article setting out the many legal issues of relevance to broadcasters that will be facing the new Chair.  Among the first issues that will be dealt with is the modification of the FCC’s limits on the foreign ownership of broadcast stations, which is scheduled for consideration by the FCC at their open meeting next Thursday.  We wrote about the issues in that proceeding here.

One of the last issues considered by Acting Chairwoman Mignon Clyburn was the FCC’s Notice of Proposed Rulemaking on the revitalization of the AM radio band.  We summarized the issues set out in that proceeding, and wrote in more detail about the proposal likely to have the biggest impact on AM broadcasters – a window for AM stations to seek FM translators.  That article also discussed how the FCC has seemingly decided to pull back from Mattoon waivers as part of that proceeding, and in a separate decision where the FCC decided that Mattoon waivers could not be used if the primary station is an FM.  We’ll write more about the rest of the AM revitalization proposals soon.  And, related to translators, we wrote about the extension of the last day for filing applications in the LPFM filing window to next week. 

As last week was Halloween, and also the 75th Anniversary of the broadcast of Orson Welles War of the Worlds, we wrote about the changing views on broadcast hoaxes, and what the FCC would do if the program was broadcast today.  Speaking of emergency broadcasts, the FCC yesterday issued a number of notices on fake emergency broadcasts.  We’ll write more about that issue shortly.
Continue Reading While Our Blog Was Getting A Makeover, Did You See Our Stories on the New FCC Chairman, Foreign Ownership of Broadcast Stations, AM Revitalization, Orson Welles and the Hoax Rule and More?