Discussion of FCC, copyright, advertising and other legal issues of importance to radio and television broadcasters and other media companies
Principal Editor: David O’Connor
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.
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Any media platform that accepts ads for political races and ballot issues in Washington State is aware of the state’s detailed rules that govern all forms of political advertising. Digital platforms, in particular, are concerned by state rules that require the platforms to maintain and make available to the public not only the information…
In a recent state court decision, a King County judge in Washington State concluded that Facebook violated state political disclosure rules by not publicly providing information about the sale of political ads relating to state elections and ballot issues, as required by state law. While there does not yet appear to be a written decision in the case, according to trade press the judge’s ruling rejected motions by Facebook parent Meta to have the law declared unconstitutional and to have penalties asserted by the State attorney general thrown out (see attorney general’s statement here). We have written much on this blog about FCC regulations relating to political advertising and have noted how those rules do not apply to online platforms. This case is but one example of how state laws are filling in some of the gaps in the regulation of political advertising.
As we wrote several years ago, the Federal Election Commission has only general rules requiring that paid online political advertising for federal offices have some identification of the sponsors of the advertising. The FEC in 2018 started a rulemaking proceeding to determine if the “stand by your ad” certifications required in most federal broadcast and cable candidate advertising (the requirement which obligates the federal candidate to say “I’m X and I approved this message”) should carry over into the online world. That proceeding has never been resolved – likely held up both because of the difficulty of resolving sensitive political issues at the FEC, and because of the inherent difficulty of adopting one-size-fits-all disclosure obligations for online media, where ads can range from TV-style videos to short tweets and textual messages to images displayed in virtual reality worlds. Carrying over broadcast-style regulation to these diverse platforms is a tricky fit.
Continue Reading As More Political Advertising Moves Online, State Laws Provide the Regulatory Framework for Disclosures and Recordkeeping
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.
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Kentucky Senator Rand Paul has introduced a bill to repeal all broadcast ownership limitations including the radio and television local ownership rules (see the draft bill, the Local News and Broadcast Media Preservation Act, here, and the Senator’s press release, here). As we have noted before (see, for instance, our article here), the FCC is currently considering changes to the radio ownership rules but the proposals, first advanced in late 2018, remain stalled in the current FCC seemingly because of its current political deadlock with two Republicans and two Democrats. The current pending proposal at the FCC (see our summary here) is also considering allowing combinations of two of the top 4 TV stations in a market based on certain defined parameters (such combinations being allowed now only when justified based on an ill-defined case by case public interest analysis). The Paul legislation would essentially pre-empt this review by abolishing the FCC’s ownership rules. Of course, being introduced so late in the Congressional session with no other declared political support, the bill has little chance of becoming law in this session of Congress.
The Paul legislation is designed to allow broadcasters to compete with big tech companies that have seriously eroded the advertising and audience shares of broadcast stations over the last decade (see our article here). According to Paul’s press release, his bill “would give local broadcasters and newspapers much-needed relief from outdated government restrictions that are currently threatening their ability to succeed in an evolving media environment.” As the broadcast media is the only media subject to such ownership restrictions, many have argued that, for a truly level playing field in today’s media landscape, a significant relaxation of the rules is warranted.
Continue Reading Senator Rand Paul Introduces Bill to Repeal Broadcast Ownership Limits and Allow Joint Negotiations with Big Tech Companies
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.
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Facebook will disable “new” political ads the week before this year’s November mid-term election (see its post on this policy here), just as many broadcast stations will be struggling with commercial inventory issues, trying to get last minute political ads on the air without having to dump all of their regular commercial advertisers who will be just starting to ramp up their commercial campaigns for the holiday season. We’ve written previously about how the legal policies that govern Facebook and other online platforms are different than those that govern broadcast, local cable, and direct broadcast satellite (DBS) political ad sales. Many of the policies adopted by these online platforms could not be adopted by broadcasters, local cable and DBS companies. In light of Facebook’s recent announcement and the upcoming election, we thought that we would recap some of our previous reviews of this issue.
In June 2021, we wrote about Facebook’s plans to end its policy of not subjecting posts by elected officials to the same level of scrutiny by its Oversight Board that it applies to other platform users. Facebook’s announced policy has been that the newsworthiness of posts by politicians and elected officials was such that it outweighed Facebook’s uniform application of its Community Standards – although it did make exceptions for calls to violence and questions of election integrity, and where posts linked to other offending content. Just a year before, there were calls for Facebook to take more aggressive steps to police misinformation on its platforms. These calls grew out of the debate over the need to revise Section 230 of the Communications Decency Act, which insulates online platforms from liability for posts by unrelated parties on those platforms (see our article here on Section 230).
Continue Reading Facebook to Reject New Political Ads the Week Before the November Election – Why Broadcasters Can’t Do That
Recent press reports have talked much about a Texas church that decided to put on a production of the musical Hamilton – both live and streamed via YouTube. The church not only put on the performance of the musical, but also adapted the script to include material with religious themes not included in the original version. Lin-Manual Miranda, the creator of the musical, was reported to say that, following the discovery of the unauthorized performances, “now the lawyers do their work.” But just what did the church do wrong? This case serves as an illustration of how copyright issues pervade society – and these issues are often ignored until an improper use is discovered by a rightsholder or their representative. At that point, the user often gets a quick education in the significant potential penalties they face from ignoring the law.
Like all other copyrighted works, among the rights given to creators of a musical like Hamilton is the right to consent to the public performance of that work. We have written how that right to consent to public performances is in some cases restricted by statutory or blanket licenses, where the government (either directly, through the Copyright Royalty Board for public performances of sound recordings and the use of musical compositions by noncommercial broadcasters, or indirectly through antitrust consent decrees or settlement agreements that apply to ASCAP, BMI and, in some instances, SESAC – see our article here on some of the issues with these rights). There are other statutory licenses giving, for instance, cable and satellite television providers the rights to retransmit broadcast stations in exchange for the payment of statutorily set fees (see our articles here and here for some examples of the issues with these statutory licenses). For most other copyrighted works, like plays and musicals, that right to restrict the public performance of a work is not restricted by statutory licenses. And the writers of theatrical works are diligent in enforcing their copyrights. So every junior high school performance of The Music Man, or community theater performance of Rent, should be licensed by the representatives of the copyright holders in these works.
Continue Reading A Church Gets Called Out for Adaptation of “Hamilton” – Looking at the Copyright Issues
Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.
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Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.
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