In a very busy week, here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.

  • The Federal Trade Commission and seven state Attorneys General announced a settlement with Google LLC and iHeart Media, Inc. over allegations that iHeart radio stations aired thousands of deceptive endorsements for Google Pixel 4 phones by radio personalities who had never used the phone.  The FTC’s complaint alleges that in 2019, Google hired iHeart and 11 other radio broadcast companies to have their on-air personalities record and broadcast endorsements of the Pixel 4 phone, but did not provide the on-air personalities with the phone that they were endorsing.  Google provided scripts for the on-air personalities to record, which included lines such as “It’s my favorite phone camera out there” and “I’ve been taking studio-like photos of everything,” despite these DJs never having used the phone.  The deceptive endorsements aired over 28,000 times across ten major markets from October 2019 to March 2020.  As part of the settlement, subject to approval by the courts, Google will pay approximately $9 million and iHeart will pay approximately $400,000 to the states that were part of the agreement.  The settlement also imposes substantial paperwork and administrative burdens by requiring both companies to submit annual compliance reports for a period of years (10 years in the case of iHeart), and create and retain financial and other records (in the case of iHeart, the records must be created for a period of ten years and retained for five years).
    • This case is a reminder that stations must ensure that their on-air talent have at least some familiarity with any product they endorse, particularly where on-air scripts suggest that they have actually used the product.  Stations should not assume that talent know the relevant rules – they more likely will just read whatever is handed to them without understanding the potential legal risk for the station, which, as demonstrated in this case, could be significant.


Continue Reading This Week in Regulation for Broadcasters: November 26 to December 2 , 2022

In a Federal Register notice published today, the Copyright Royalty Board announced cost-of-living increases in the statutory royalties paid by webcasters for the public performance of sound recordings.  These are the royalties paid to SoundExchange by those making noninteractive digital transmissions of sound recordings.  This included broadcasters who simulcast their over-the-air programming on the internet or through mobile apps (or through other digital means including smart speakers like Alexa, see our article here).  The CRB notice sets out the computations that the Board used to determine the amount of the cost-of-living increase.  Those computations led to a royalty rate for 2023 of $.0024 per performance for services that do not charge a subscription fee.  For subscription services, the rate will be $.0030 per performance.  A performance is one song played to one listener – so for one song paid to four listeners one time each, a webcaster pays about a penny.

Given the rate of inflation in the general economy, it is perhaps no surprise that the rates for 2023 represent a substantial increase from the royalties paid last year, and from those that were in place in 2021, the first year of the current 5-year royalty period.  As we wrote here, when the CRB decided on the rates for 2021-2025, the nonsubscription rate was $.0021 per performance.  But the CRB provided for cost of living increases.  That led to rates in 2022 for commercial webcasters, including broadcasters streaming their programming on the internet, of $.0022 per performance for a nonsubscription transmission and $.0028 per performance for a subscription transmission (see our article here mentioning the 2022 increase).
Continue Reading Copyright Royalty Board Announces Cost-of-Living Increase for 2023 Webcasting Royalties – Including Royalties for Broadcasters Who Simulcast Their Programming Online

Until recently, to many in the industry, HD radio seemed to be an afterthought – maybe useful in feeding analog translators, but otherwise not very accessible to the public.  But there is now more and more interest in HD radio given the increased inclusion of receivers for this digital service as standard equipment in a majority of new cars.  This means that consumers have ready access to programming on digital FM subchannels that the technology allows, plus the digital sound quality that HD radio provides and the auxiliary data services that can be conveyed along with the audio programming.  This week, the FCC’s Media Bureau issued a Public Notice asking for comments on two technical proposals to enhance service to the public while minimizing interference that the service might otherwise cause to nearby adjacent-channel stations.

Comments are sought on a proposal by the National Association of Broadcasters and Xperi, Inc. (which acquired iBiquity, the company that developed the HD Radio technology) seeking adoption of an updated formula for computing the power level of the “sidebands” on which the HD service resides. The request also asks that the proposal be combined with a 2019 request that FM stations be allowed to operate an HD service with “asymmetric sidebands” without having to seek experimental authority.  What do these requests mean and why might they be important?
Continue Reading FCC Seeks Comments on HD Radio Technical Standards – Could a Power Increase for Digital FM Radio Be Coming?

Even with the holidays upon us, regulation never stops.  There are numerous regulatory dates in December to which broadcasters need to pay heed to avoid having the FCC play Grinch for missing some important deadline.

December 1 is the deadline for license renewal applications for television stations (full power, Class A, LPTV and TV translators) licensed to communities in Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont.  Renewal applications must be accompanied by FCC Form 2100, Schedule 396 Broadcast EEO Program Report (except for TV translators).  Stations filing for renewal of their license should make sure that all documents required to be uploaded to the station’s online public file are complete and were uploaded on time.  Note that your Broadcast EEO Program Report must include two years of Annual EEO Public File Reports for FCC review, unless your employment unit employs fewer than five full-time employees.  Be sure to read the instructions for the license renewal application and consult with your advisors if you have questions, especially if you have noticed any discrepancies in your online public file or political file.  Issues with the public file have already led to fines imposed on TV broadcasters during this renewal cycle.

December 1 is also the deadline by which radio and television station employment units with five or more full-time employees licensed to communities in Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, and Vermont must upload Annual EEO Public File Reports to station online public inspection files (also, the FCC has issued an extension that permits stations in Florida that suffered the effects of Hurricane Ian to upload their Annual EEO Public File Reports by December 12).  This annual EEO report covers hiring and employment outreach activities for the prior year.  A link to the uploaded report must also be included on the home page of a station’s website, if it has a website.
Continue Reading December Regulatory Dates for Broadcasters – License Renewals, EEO Reports, Rulemaking Comments on Foreign Government Programming and EAS, and More

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

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

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

  • The effective date of a recently adopted FCC Report and Order aimed at making emergency alerts delivered over television and

At each of the last two of the FCC’s recent regular monthly open meetings, the Commission addressed EAS issues that affect broadcasters. In one case, it adopted new rules that will, among other things, require that broadcasters use on-air the “IPAWS” internet-delivered emergency message in the CAP format, if the broadcaster receives the alert in both the CAP and traditional over-the-air formats.  The second action starts a rulemaking to look at imposing on broadcasters an obligation to secure their EAS systems from hacking and other electronic intrusions – and to regularly report to the FCC about what they are doing in connection with such security measures.  Let’s look in a little more depth at these actions (which we have previously briefly summarized in our weekly updates, here and here).

At its September 29 open meeting, the FCC adopted a Report and Order with the announced intention of making emergency alerts delivered over television and radio stations more informative and easier to understand by the public, particularly people with disabilities. The updated rules require broadcasters, cable systems, and other Emergency Alert System participants to transmit the Internet-based version of alerts when available (those transmitted through the internet based Integrated Public Alert and Warning System, “IPAWS,” using the Common Alerting Protocol or “CAP” protocol)  rather than transmitting the legacy over-the-air “daisy chain” version of alerts which often contain less information or have lower quality than that of CAP-delivered alerts.  As noted by the FCC, the CAP format allows for more information, including video clips (for TV), augmented warning information, and even foreign-language versions of alerts to be transmitted – information not available from alerts that are transmitted over-the-air.
Continue Reading FCC Looks at EAS Rules – Requires That Broadcast Alerts Default to CAP, and Seeks Comments on Securing the System

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

  • The FCC issued a Forfeiture Order imposing a penalty of $518,283 against Gray Television, Inc., for violating the FCC’s prohibition

There is but a week to go before the mid-term elections, and political ads blanket the airwaves across the country.  From discussions that I have had with many attorneys, broadcasters and other campaign observers, the ads this year have been particularly aggressive.  Some publications have even suggested that, in the waning days of the campaign, the ads may become even worse as desperate campaigns look for some last-minute claim that could turn the tide in an election.  In this rush to election day, broadcasters need to be on the alert for allegations that an attack ad from a non-candidate group is false or defamatory, because in certain instances, the ad could result in a claim against the broadcaster.

As we have written before, broadcasters (and local cable companies) are forbidden from censoring the message of a candidate (see, for instance, our articles here and here).  Section 315 of the Communications Act forbids a broadcaster or a local cable operator from censoring a candidate ad.  Because broadcasters cannot censor candidate ads, the Supreme Court has ruled that broadcasters are immune from any liability for the content of those ads.  (Note that this protection applies only to broadcasters and local cable companies – the no censorship rule does not apply to online distribution – see our articles here and here – so other considerations need to be considered when dealing with online political ads).  But some have taken that to mean that broadcasters have no fear of liability for any political ad.  As I explained in a recent interview with a Detroit television station, that is not true – broadcasters do theoretically have the potential for liability if they run an ad from a non-candidate group either knowing that ad to be false, or by continuing to run a false ad after being put on notice that the ad was false and ignoring that notice (see also this article about this distinction between candidate and non-candidate ads, and how the media’s coverage of campaigns can overlook these distinctions).  In 2020, President Trump’s campaign brought a lawsuit against a Wisconsin television station alleging that a PAC ad run on the station was false and defamatory (see our articles here and here on that suit).  In this election cycle, there are press reports of a lawsuit by Senate candidate Evan McMullin against a political party’s campaign committee and three local TV station owners for running an ad that had allegedly edited remarks by McMullin to make it seem like he said all Republicans were racist (see articles here and here).  Even Roy Moore, the defeated Senate candidate from several years ago in Alabama, successfully pursued a defamation suit against the sponsor of an ad that Moore claimed falsely accused him of improper conduct (this decision was not against a broadcaster, but instead against the ad’s sponsor, see report here).

Continue Reading With A Week to Go Before the Midterm Elections, Watch for Last Minute Unfounded Attack Ads – The Potential Liability of Stations for False Claims in Ads from PACs, Parties and Other Noncandidate Groups