This week, I spent some time at the Podcast Movement Annual Convention, this year held in the DC area.  While the convention is always a good time to catch up with industry friends and to spot new trends (AI was, of course, a topic that was discussed on several panels as it is at virtually every media conference these days), it was also a reminder that with all that has been going on at the FCC and with other regulations, we have not written much about podcasting in the recent past.  Previously, we have covered many issues related to the use of music in podcasts (see, for instance, our articles here, here, and here).  We’ve written about other legal issues that need to be considered in connection with podcasting including getting releases from guests, making sure that ownership of the podcast is clear (an issue potentially of more importance if the Federal Trade Commission’s ban on noncompete agreements in employment contracts goes into effect, as it could result in more changes in employment of employees working on podcasts, though the effective date of any noncompete ban is questionable based on a court action this week that throws out that ban – a decision likely to be appealed), and other issues that I covered in the slides from a presentation presented at the Podcast Movement conference several years ago that remain relevant.   Today, I thought that I would revisit another topic from my prior coverage of podcast legal issues, one that was given new urgency by another recent FTC ruling – sponsorship identification. 

Broadcasters are familiar with the FCC requirements for the identification of those who provide something of value to a station in exchange for any on-air content.  Fines can be issued (and big payments under consent decrees have resulted see, for instance, the cases we noted here and here) from broadcasters who do not follow the FCC’s sponsorship identification rules.  But broadcasters are not as familiar with the fact that the FTC also has rules about sponsorship identification requirements that go beyond the FCC’s obligations, looking at questions including the truthfulness of endorsements and testimonials for products and services.  FTC enforcement can be as severe, if not more severe, than that of the FCC (see, for instance, the FTC’s fines we wrote about two years ago on Google and a broadcaster for having DJs talk about their use of Pixel phones that they had not in fact used).  The FTC last week expanded on its policies by adopting a final rule prohibiting the purchase and sale of fake reviews and testimonials concerning products and services, and allowing the agency to seek civil penalties against knowing violators.  Among other things, the new rule prohibits activities including the buying or selling of fake consumer reviews or testimonials, buying positive or negative consumer reviews, using certain insiders to create consumer reviews or testimonials without clearly disclosing their relationships, creating a company-controlled review website that falsely purports to provide independent reviews, using certain review suppression practices, and selling or purchasing fake indicators of social media influence.  We plan to write more about this FTC decision in the near future, but it is important to note that these FTC policies apply with equal force to podcasters and any other online communications medium.Continue Reading Podcasters and Broadcasters – Disclose Those Sponsors!