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 FTC announced that it will hold a 45-minute webinar on May 14 at 11:00 a.m. ET to provide an
  • The FCC issued a Notice of Apparent Liability proposing to fine Nexstar Media Group,
  • 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 February on the use of Super Bowl trademarks (see here) and my 2018 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 “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.Continue Reading Guard Yourself Before Moving Forward When Accepting or Engaging in Advertising or Promotions that Use FINAL FOUR or Other NCAA Trademarks:  2024 Update – Part II

    Each year, as the NCAA basketball tournaments get underway, my colleague Mitch Stabbe highlights the trademark issues that can arise from uses of the well-known words and phrases associated with the games in advertising, promotions, and other media coverage. Here is Part I of his review. Look for Part II tomorrow.

    The last few years have filled with changes in college sports.  Teams that have been part of a conference for decades have decided to jump to another conference, with movement of different schools from or to the Big 12 Conference, the Big Ten Conference, the Pac 12, the Atlantic Coast Conference, the Southeastern Conference and others.  In addition, we are starting to see the consequences of the NCAA finally allowing athletes to monetize the commercial use of their name, images and likenesses, now called “Name, Image and Likeness” (NIL) and previously described as the Right of Publicity.

    One thing that has not changed is the NCAA’s hard line against unauthorized uses of FINAL FOUR or its other marks.  Thus, broadcasters, publishers and other businesses need to be wary about potential claims arising from their use of terms and logos associated with the tournament.

    NCAA Trademarks

    The NCAA owns the well-known marks March Madness®, The Big Dance®, Final Four®, Women’s Final Four®, Elite Eight,® Women’s Elite Eight®  and The Road to the Final Four® (with and without the word “The”), each of which is a federally registered trademark.  The NCAA does not own “Sweet Sixteen” – someone else does – but it does have federal registrations for NCAA Sweet Sixteen® and NCAA Sweet 16®.Continue Reading Guard Yourself Before Moving Forward When Accepting or Engaging in Advertising or Promotions that Use FINAL FOUR or Other NCAA Trademarks:  2024 Update – Part I

    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.

    Today’s post will be a bit more into the legal weeds than many of our articles, addressing the standards used by courts to review the decisions of administrative agencies like the FCC.  Last month, there was a Supreme Court argument in a case called Relentless, Inc. v. Department of Commerce that the popular press suggested was going to end the regulation of media companies.  Even the media trade press seemed to think that the decision could cut back on regulations that come from the FCC and other agencies.  As with much popular coverage of legal issues, the real-world impact of the case, while certainly significant in legal practice, is probably overstated.

    The Relentless case challenges a judicial precedent in place since a 1984 decision in another case, Chevron [U.S.A.] Inc. v. NRDC, Inc.  The policy adopted in that case, referred to as the “Chevron Doctrine,” says that the courts will defer to the decision of an administrative agency interpreting an ambiguous Congressional statute unless the agency’s decision is arbitrary and capricious or contrary to law.  What that basically means is that, if a policy adopted by Congress is capable of many different interpretations, the Courts will defer to the interpretation of the expert agency that is supposed to enforce that statute, unless the interpretation cannot be squared with the language of the statute or the record before the agency.  We’ve written many times on this blog about this doctrine without necessarily identifying it by name, usually in connection with appeals of a Copyright Royalty Board or FCC decision and how difficult it is to convince a court to overturn these actions.Continue Reading What Does the Supreme Court’s Review of the Chevron Doctrine Mean for Media Companies Challenging Decisions of the FCC and Other Government Agencies? 

    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 announced the circulation for Commissioner review and approval of two decisions of interest to broadcasters, signifying that we

    Mitchell Stabbe, our resident trademark law specialist, today takes his annual look at the legal issues in Super Bowl advertising and promotions (see some of his past articles here, here, and here).  Take it away, Mitch:  

    As a life-long fan of the Baltimore Ravens (the life of the Ravens, not my life), my interest in the Super Bowl XVII has waned a bit.  The opposite is true for those who seek to profit from the playing of the game.  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.  But, first, a trivia question.  Who won Super Bowl I.  (Answer at end)

    The Super Bowl means big bucks.

    There are currently four primary television networks that broadcast and stream NFL games in the United States (CBS/Paramount+, Fox, ABC/ESPN/ESPN+ and NBC/Peacock).  It is estimated that, with the new contract which took effect this year, each will pay the NFL an average of over $2 billion per year for those rights through 2032, including the right to broadcast the Super Bowl on a rotating basis.

    The investment seems to pay off for the networks.  Reportedly, it will cost $7M for a 30-second spot during this year’s Super Bowl broadcast, which is about the same as last year.  It has also been reported that last year’s game brought in advertising revenue totaling $600 M (up from $545 M the prior year).  These figures do not include income from ads during any pre-game or post-game programming.  (In addition to the sums paid to have their commercials aired, some advertisers spend millions of dollars to produce an ad.)  In addition, the NFL receives hundreds of millions of dollars from licensing the use of the SUPER BOWL trademark and logo.Continue Reading 2024 Update on Super Bowl Advertising and Promotions

    We often write about issues concerning the royalties paid by radio stations for their various uses of music.  It is not just paying the royalties that are important, but stations must also observe all of all the other obligations under each of their license agreements.  The Radio Music License Committee asked us to remind commercial

    President Biden’s signing of the Continuing Resolution last week (see our discussion here) has kept the federal government open, with the FCC and FTC having money to stay open through March 8.  So the FCC will be open and thus there are February regulatory dates to which broadcasters should be paying attention. 

    February 1 is the deadline for radio and television station employment units in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma with five or more full-time employees to upload their Annual EEO Public File Report to their stations’ online public inspection files (OPIFs).  A station employment unit is a station or cluster of commonly controlled stations serving the same general geographic area having at least one common employee.  For employment units with five or more full-time employees, the annual 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 each station’s website, if the station has a website.  Be timely getting these reports into your public file, as even a single late report can lead to FCC fines (see our article here about a recent $26,000 fine for a single late EEO report).Continue Reading February Regulatory Dates for Broadcasters – Annual EEO Public File Reports, C-Band Transition Reimbursement, Political Windows, and More