The FCC’s Video Division yesterday issued a Notice of Apparent Liability to a Baltimore TV station for airing a commercial for a Hot Wheels product in eight showings of the program “Team Hot Wheels.”  The Commission has, for almost 30 years, had a policy against what they term “program-length commercials” – programs that feature characters who are also featured in a commercial that runs during the program.  The FCC has been concerned that children may not perceive the difference between a program and a commercial that runs in that program if both feature the same characters.  If the whole program is perceived as promoting the product, then the program would exceed the commercial limits in children’s programming set by Congress and incorporated in Section 73.670 of the rules – 10.5 minutes per hour on weekends and 12 minutes per hour on weekdays.

A decade ago, this was a significant issue.  On one day in 2010, the FCC issued seven Notices of Apparent Liability, seeking fines of as much as $70,000 for these violations (see our article here).  Even before that, we noted how stations can inadvertently find themselves in these situations when featured characters unexpectedly pop up in commercials for products other than those that are directly for products featuring those characters.  So, where a cartoon character appears on an ad for a video game, that can make the entire program a commercial – even though the broadcaster may not have realized until after the fact that the character would be featured in the video game commercial.  In this week’s case, the facts are a little different, but still emphasize the care that TV broadcasters need to exert to ensure that nothing is aired that could make a program into a program-length commercial.
Continue Reading FCC Proposes $20,000 Fine for TV Station Program-Length Commercial in Children’s Programming

Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • After reviewing comments submitted this summer (we wrote about the rulemaking, here), the FCC will vote at its next

It has been a busy week for regulatory actions affecting broadcasters.  Here are some of the significant developments of 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 held a virtual Open Meeting on Tuesday, voting to approve an

In the last few weeks, we have received several inquiries from broadcasters about the FCC’s enforcement of its requirements that broadcasters conduct non-vacancy specific outreach efforts to educate their communities about broadcast employment opportunities and to train their staff to assume greater responsibility at stations and otherwise assist them in their career development (not to train them for their current positions, but to prepare them to assume a position with more responsibilities as their careers advance).  Stations are required to undertake a variety of activities to educate the public about broadcast employment opportunities (and the experience and skills that will be helpful to obtain these broadcast positions) and to train their employees to advance in their careers beyond their current positions.  These outreach efforts must be undertaken even when stations don’t have job openings.  The FCC has a whole list of “menu options” to meet these obligations (see them listed in the EEO training presentation that I did last year for a state broadcast association, available here).  While these menu options were designed for a “normal” work environment, many can be adapted to today’s world where so much business and education is being done virtually.

When asked if these rules are still in effect, I have been telling broadcasters that the FCC has not said that these obligations are suspended during the pandemic.  In fact, the FCC has been conducting EEO audits throughout the course of the pandemic (see our article here, for instance), so it appears that enforcement of the EEO rules continues unabated.  While I expect that the FCC will be somewhat flexible in assessing compliance in these present circumstances, stations can accomplish many of the activities listed in the menu options even in the pandemic.  In a webinar that I conducted recently for many of the states with upcoming radio license renewal deadlines, and in another webinar for a public broadcasters group in a midwestern state, I discussed some of those opportunities.
Continue Reading Looking at FCC Non-Vacancy Specific EEO Outreach Efforts – the “Menu Options” – in a Pandemic World

As the campaign enters its final weeks, the FCC has begun to send out the next round of proposed consent decrees to radio broadcasters unable to certify in their license renewal applications, because of perceived deficiencies in their political file, that that every document was placed into their FCC-hosted online public inspection file on a timely basis (see, for instance, this decree released yesterday).  The certification of public file compliance is required of every applicant for license renewal.  As with any other certification, a licensee must review its records and truthfully answer the application’s question, either certifying that it has complied with all of the public file obligations or disclosing any deficiencies.  As we wrote last year, in cases of substantial noncompliance, the FCC has fined stations that essentially ignored the public file rules.  But, until recently, in cases where a station had made a good faith effort to comply but had some minor deficiencies in the public file (as is natural over an eight-year renewal period), the FCC has generally been granting renewals, acknowledging that minor violations do not signal that a broadcaster is not operating in the public interest.  However, in August, the Commission initiated a new policy for stations that reported deficiencies in the political portion of the public inspection file, sending draft consent decrees to virtually all stations unable to certify full public file compliance because of any political file issue.

These consent decrees were modeled on the ones that were sent in July to six large radio broadcast groups as a result of an earlier FCC review of their political files (see our article here on those consent decrees, which also provides a review of a broadcaster’s political file obligations).  The difference is, of course, that the July decrees went to large radio groups for what the FCC described as hundreds of violations at many radio stations.  The new renewal-driven consent decrees were sent to all stations that did not certify political file compliance, even to stations that had only a handful of political advertising sales if those stations determined that they could not certify that all required documents went into the file in a timely fashion.  While the decrees carry no monetary fine, they do require that the signing station enter into a compliance program – appointing a compliance officer, having a written compliance plan, reporting any violations to the FCC as they occur, and providing a report to the FCC at the end of each calendar year for two years cataloging all political sales and when the required documents went into the political file.
Continue Reading More FCC Consent Decrees for Political File Violations – Issues to Watch in the Last Weeks of the Election

Here are some of the regulatory and legal actions and developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC released the agenda and items to be considered at its October 27 Open Meeting.

Where do all the Washington DC legal issues facing TV broadcasters stand? While we try on this Blog to write about many of those issues, we can’t always address everything that is happening. Every few months, my partner David O’Connor and I update a list of the legal and regulatory issues facing TV broadcasters.

With the October 1 deadline coming up for retransmission consent/must carry elections, and the likely commencement of many retransmission consent negotiations throughout the country, the FCC last week issued a decision that emphasizes the importance of “good faith” retransmission consent negotiations.  In this action, the full Commission denied an Application for Review that sought to reverse the Media Bureau’s ruling that eighteen stations had failed to negotiate in good faith with an MVPD for retransmission consent. The Commission’s decision also included a Notice of Apparent Liability announcing that each station faces a $512,228 penalty for these violations of the requirements for good faith negotiation.

In May, we wrote about the earlier stages of this case where another licensee agreed to a consent decree based on essentially the same allegations addressed in last week’s decision. The consent decree was based on violations described in a decision of the FCC’s Media Bureau released last November (here) finding that 18 television station licensees, operating stations in separate markets, had failed to negotiate retransmission consent in good faith.  Given the size of the proposed fines on the stations named in last week’s Notices of Apparent Liability, it is worth reviewing the basis of this decision.  Even though many of the details are redacted to protect proprietary information, the basis for the decision can still be gleaned from this series of decisions.
Continue Reading FCC Proposes $512,228 in Fines to TV Stations for Violating Rules Requiring Good Faith Negotiation of Retransmission Consent Agreements

Here are some of the regulatory and legal actions and developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC acted this week on two media modernization items that had been teed up for

A $12,000 fine issued to an FM translator operator for operating with a transmitter power output that exceeded its licensed limits was upheld by the FCC’s Enforcement Bureau in a decision released this week.  The Commission rejected the licensee’s argument that the Commission should have first given it notice and an opportunity to fix