Intellectual Property

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  • The FCC’s Media Bureau released a Public Notice purporting to provide guidance directed to broadcast TV stations on whether the
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Mitchell Stabbe, our resident trademark law specialist, today takes the controls of the blog for his annual look at the legal issues in Super Bowl advertising and promotions (see some of his past articles here, here, here, and here).  Take it away, Mitch:  

The 2026 NFL Playoffs have had more down-to-the-wire games this year than ever before.  Consequently, television viewership ratings for these extraordinarily exciting games have been extremely high and interest in the remaining games and the upcoming Super Bowl LX are expected to set records.

Consequently, the value of Super Bowl-related advertising will also be higher than ever and the NFL is therefore likely to be particularly concerned about ensuring that only authorized licensees benefit from advertisements and promotions that draw attention through the use of the SUPER BOWL® and related NFL-trademarks.  Accordingly, following are updated guidelines about engaging in or accepting advertising or promotions that directly or indirectly reference the Super Bowl without a license from the NFL.

More than ever, the Super Bowl means big bucks.  It is estimated that, with the new contract which took effect in 2024, the NFL will be paid an average of over $2 billion per year for broadcasting and streaming rights through 2032, including the right by different media companies to broadcast the Super Bowl on a rotating basis.Continue Reading Tiptoeing on the Sidelines: 2026 Update on Super Bowl Advertising and Promotions

It’s the start of another year, so it is time to dust off the crystal ball and look at what we expect to be the big regulatory and legislative issues facing broadcasters in the new year.  Looking back on our forecast for 2025 that came out just over a year ago, I was surprised to see that we had predicted that the new Commission would be interested in defining the public interest standard, reviewing network-affiliate relations, and looking at the political biases that broadcasters allegedly exhibited.  All of these were in fact issues that came up this year but, as no conclusions were reached on any of these matters, these same issues will no doubt continue to be on the FCC’s agenda in 2026.

Public Interest Standard

Throughout 2025, FCC Chairman Carr has been talking about the public interest standard in most of his many public discussions of media regulation, and those comments have prompted much legal analysis from all corners.  We expect that, in the coming year, there will continue to be discussions about what the public interest standard really means– and just how far that standard goes in authorizing the FCC to act to regulate broadcast operations.

Network-Affiliate Relations

The FCC has also received preliminary comments on the relationship between television networks and their affiliates.  As we noted last week, reply comments were due December 29, so the pleading cycle has now closed.  In the Public Notice asking for these comments, there was a statement that the comments would be used to inform the Commission as to whether a formal rulemaking proceeding was necessary to further review the issues.  With the comments in, we will be watching to see if the FCC moves forward with any additional proceedings. Continue Reading Crystal Ball Time – What Are the Regulatory and Policy Issues Broadcasters Should Be Expecting to Deal With in 2026?

Today, we would normally publish our look back at the prior week’s regulatory activity of importance to broadcasters but, as we noted last week, we are taking this week off and will publish a summary of the regulatory activity during the two week holiday period next Sunday.  But, as the start of a new month is upon us, we instead offer our regular look ahead at regulatory dates and deadlines for January.   

With each New Year, there are a host of new regulatory deadlines to keep broadcasters busy.  In January, this includes some recurring FCC deadlines like Quarterly Issues/Programs lists for all full power broadcasters, and a host of other quarterly obligations that are not as widely applicable.  For TV broadcasters, the month brings obligations including the annual children’s television reports on educational and informational programming and a public file certification on commercial limits, as well as the extension to stations in 10 additional markets of the audio description requirements. 

In addition to comments in rulemaking proceedings described below, January brings some new obligations.  For commercial broadcasters streaming audio programming on the Internet, there are new SoundExchange royalties that cover performances made on and after January 1, and a requirement for a higher minimum fee due at the end of the month.  There is also a freeze that will be imposed on applications for major changes by existing LPTV stations and TV translators related to a window that will open in March, the first window in well over a decade for the filing of applications for new LPTV stations. 

Let’s look at some of the specific dates and deadlines for broadcasters in January, starting with the routine deadlines that come up every January, and then moving to some of new obligations for 2026.  After that we provide January deadlines for comments in rulemaking proceedings (including reply comments on proposed changes to the FCC’s ownership rules and initial comments on proposals to speed the ATSC 3.0 conversion), a look at lowest unit rate windows that open in January for 2026 elections, and finally a few deadlines in early February.Continue Reading January 2026 Regulatory Dates for Broadcasters – Quarterly Issues/Programs Lists, Children’s Television Programming Reporting, New Webcasting Royalties, Expansion of Audio Description Requirements, Comment Deadlines, Political Windows, and More

  • President Trump this week issued an Executive Order instructing various government agencies to take steps to move marijuana from Schedule
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Last week, the Senate Judiciary Committee held a hearing on the American Music Fairness Act bill which proposes to adopt a new music royalty to be paid by over-the-air radio stations.  The royalty would be payable to SoundExchange for the public performance of sound recordings.  This means that the money collected would be paid to performing artists and record labels for the use of their recording of a song.  This new royalty would be in addition to the royalties paid by radio stations to composers and publishing companies through ASCAP, BMI, SESAC and GMR, which are paid for the performance of the musical composition – the words and music to a song. This legislation is very similar to a bill introduced in the last Congress (see our article here), and is another in a string of similar bills proposing to establish a broadcast performance royalty that have been introduced in Congress over the last decade.  See, for instance, our articles here, here, here and here on previous attempts to impose such a royalty.

This past week’s hearing featured three witnesses.  A broadcast station owner from eastern North Carolina, Henry Hinton, spoke on behalf of broadcasters warning of the impact that such a royalty would have on the economics of broadcasting and the public service that broadcast radio stations provide.  His written statement is here, and a podcast where he further explained his testimony is here.  Michael Huppe, the CEO of SoundExchange, testified in support of the royalty arguing, among other things, that the US was an outlier in not imposing this royalty on broadcasters, and that the broadcast industry should not be able to make its tens of billions of dollars off of artist’s work without compensating them (that revenue figure must have been meant as a historical one, as even he admitted that total revenue for the radio industry was only $14 billion – and some of that comes from talk radio that presumably would not be affected by this royalty).  His statement is here.  Also testifying was Gene Simmons, the frontman of the legendary band Kiss, who argued that this legislation was needed to compensate the next generation of artists so that they get paid for radio play.  His statement is here.  The hearing was contentious at times as most of the committee members in attendance were supporters of the royalty (though at least 25 Senators and close to a majority of the House have signed on to an NAB resolution opposing the royalty).  The entire hearing can be viewed on the Committee’s webpage here.Continue Reading Congressional Hearing on American Music Fairness Act Proposing New Music Royalty on Radio Stations – What is Being Considered

  • The Radio Music License Committee announced settlements with both ASCAP and BMI of rate court litigation over the royalties to
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This week it was announced that the Radio Music License Committee, the organization that represents the commercial radio industry in its negotiations with performing rights organizations over the public performance rights in musical works (the musical compositions – the words and music to any song), had entered into settlement agreements with both ASCAP and BMI to settle rate court litigation over the amount of royalties to be paid by the industry for the period from 2022 through 2029.  Rate courts, pursuant to the antitrust consent decrees under which both ASCAP and BMI operate, determine reasonable rates for music licensed by ASCAP and BMI if parties cannot voluntarily negotiate deals for the use of that music.  Agreements between RMLC and both ASCAP and BMI expired at the end of 2021, so the commercial radio industry has been paying interim rates at the level of the prior agreements since January 1, 2022.  Now both organizations have reached deals with RMLC for the rates for the next three years, and those deals include a “true up” for the difference between the old rates and the new rates for the period from 2022 through the end of 2024. 

The rates for BMI are increasing from approximately 1.7% of a station’s revenue to the following levels:

  • 2.14% for 2022 and 2023,
  • 2.26% for 2024,
  • 2.19% for 2025
  • 2.20% for 2026, 2027, 2028, and 2029

The agreements also contain details about lower rates for stations that have significant talk or other non-music programming, and definitions of what constitutes “revenue” that is subject to royalties.  Under the BMI agreement, the difference between the rates from 2022 to the end of 2024 under the prior agreement (2024 being the last full year for which station revenues have been reported) and that specified in the new settlement must be made up by monthly payments over the next 18 months, starting with payments in October 2025. 

While the ASCAP rates have not been made public, we can assume that the increase is not as large as that for BMI, as BMI announced their rate increase as being one of “historic” size.  But the ASCAP announcement does reference an increase.  Stations should learn the details of that increase from private correspondence from ASCAP or the RMLC in the near term.  Why would RMLC agree to these rate increases?Continue Reading BMI and ASCAP Enter into Agreements with Commercial Radio Industry – Music Royalty Rates Going Up Retroactive to 2022

  • The NAB and SoundExchange filed with the Copyright Royalty Board a proposed settlement of the pending litigation over the 2026-2030
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Yesterday, I wrote about the history of the NCAA’s assembling of the rights to an array of trademarks associated with this month’s college basketball tournaments.  Today, I will provide some examples of the activities that can bring unwanted NCAA attention to your promotions or advertising, as well as an increasingly important development that should be considered when considering whether to accept advertising.

Activities that May Result in a Demand Letter from the NCAA

The NCAA acknowledges that media entities can sell advertising that accompanies the entity’s coverage of the NCAA championships.  However, similar to my discussion in January on the use of Super Bowl trademarks (see here) and my 2024 discussion on the use of Olympics trademarks (see here), unless authorized by the NCAA, any of the following activities may result in a cease and desist demand:

  • accepting advertising that refers to the NCAA®, the NCAA Basketball Tournament, March Madness®, The Big Dance®, Final Four®, Elite Eight® or any other NCAA trademark or logo.  (The NCAA has posted a list of its trademarks here.)
    • Example: An ad from a retailer with the headline, “Buy A New Big Screen TV in Time to Watch March Madness.”  Presumably, to avoid this issue, some advertisers have used “The Big Game” or “It’s Tournament Time!”
  • local programming that uses any NCAA trademark as part of its name.
    • Example: A locally produced program previewing the tournament called “The Big Dance: Pick a Winning Bracket.”
  • selling the right to sponsor the overall coverage by a broadcaster, website or print publication of the tournament.
    • Example: During the sports segment of the local news, introducing the section of the report on tournament developments as “March Madness, brought to you by [name of advertiser].”
  • sweepstakes or giveaways that include any NCAA trademark in its name. (see here)
    • Example: “The Final Four Giveaway.”
  • sweepstakes or giveaways that offer tickets to a tournament game as a prize.
    • Example: even if the sweepstakes name is not a problem, offering game tickets as a prize will raise an objection by the NCAA due to language on the tickets prohibiting their use for such purposes.
  • events or parties that use any NCAA trademark to attract guests.
    • Example: a radio station sponsors a happy hour where fans can watch a tournament game, with any NCAA marks that are prominently placed on signage.
  • advertising that wishes or congratulates a team, or its coach or players, on success in the tournament.
    • Example: “[Advertiser name] wishes [Name of Coach] and the 2022 [Name of Team] success in the NCAA tournament!”

There is a common pitfall that is unique to the NCAA, namely, basketball: tournament brackets used by advertisers, in newspapers or other media, or office pools where participants predict the winners of each game in advance of the tournament.  The NCAA’s position (see here) is that the unauthorized placement of advertising within an NCAA bracket and corporate sponsorship of a tournament bracket is misleading and constitutes an infringement of its intellectual property rights.   Accordingly, it says that any advertising should be outside of the bracket space and should clearly indicate that the advertiser or its goods or services are not sponsored by, approved by, or otherwise associated with the NCAA or its championship tournament.

It should be noted that the NCAA also imposes strict rules about the authorized uses of its trademarks.  The NCAA’s most recent Advertising and Promotional Guidelines for authorized use of its marks are posted online (see here).

Again, importantly, none of these restrictions prevents media companies from using any of the marks in providing customary news coverage of or commentary on the tournament. Trademark law allows you to make references to trademarked terms in news or informational programming where you convey information about those trademarked activities.  But these references should not imply any association between the station (or any sponsor who does not in fact have the rights to state that they are a sponsor) and the NCAA or the tournament (e.g., don’t say that you are the March Madness station in Anytown unless you in fact have the rights from the NCAA to say that). Continue Reading The More Things Change, the More They Remain the Same:  Risks of Using or Accepting or Engaging in Advertising or Promotions that Use FINAL FOUR or Other NCAA Trademarks:  2025 Update – Part II