The FCC’s Video Division yesterday issued a Notice of Apparent Liability to a Baltimore TV station for airing a commercial for a Hot Wheels product in eight showings of the program “Team Hot Wheels.”  The Commission has, for almost 30 years, had a policy against what they term “program-length commercials” – programs that feature characters who are also featured in a commercial that runs during the program.  The FCC has been concerned that children may not perceive the difference between a program and a commercial that runs in that program if both feature the same characters.  If the whole program is perceived as promoting the product, then the program would exceed the commercial limits in children’s programming set by Congress and incorporated in Section 73.670 of the rules – 10.5 minutes per hour on weekends and 12 minutes per hour on weekdays.

A decade ago, this was a significant issue.  On one day in 2010, the FCC issued seven Notices of Apparent Liability, seeking fines of as much as $70,000 for these violations (see our article here).  Even before that, we noted how stations can inadvertently find themselves in these situations when featured characters unexpectedly pop up in commercials for products other than those that are directly for products featuring those characters.  So, where a cartoon character appears on an ad for a video game, that can make the entire program a commercial – even though the broadcaster may not have realized until after the fact that the character would be featured in the video game commercial.  In this week’s case, the facts are a little different, but still emphasize the care that TV broadcasters need to exert to ensure that nothing is aired that could make a program into a program-length commercial.
Continue Reading FCC Proposes $20,000 Fine for TV Station Program-Length Commercial in Children’s Programming

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

  • On November 12, the notice was published in the Federal Register of the lifting of the filing freeze for certain

While last Tuesday’s elections may well affect broadcast regulation in the future, there were several regulatory developments in the last week of immediate significance to broadcasters.  Here is a summary of some of those developments, with links to where you can go to find more information as to how these actions may affect your operations.

Last week we wrote about the October 30 effective date of new FCC rule changes on the public notice requirements for certain broadcast applications, including applications for the assignment of license or transfer of control of a station and applications for renewal of license.  On Friday, the FCC’s Media Bureau released a Public Notice

It has been a busy week for regulatory actions affecting broadcasters.  Here are some of the significant developments of the last week, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC held a virtual Open Meeting on Tuesday, voting to approve an

In May, the FCC voted to change its requirements for public notices of broadcast applications (see our post here) – standardizing the messages that must be conveyed to the public and eliminating the need for newspaper publication in those instances where it was still required.  The new rules also require that each commercial station include a link on its website to another webpage where public notice of pending applications is provided, and that link needs to be maintained whether or not a commercial station has any applications requiring public notice pending.  That decision will become effective tomorrow (October 30) based on its publication in the Federal Register today.  So we thought that we would revisit the summary we provided of the changes in the notice rules.

When a broadcaster files certain types of applications with the FCC, the public must be informed.  In May, the FCC issued its Order changing the rules regarding the public notice that must be given – consolidating what was a confusing process with different language and timing for notice about different types of applications into one providing standardized disclosures and scheduling for all public notices.  The decision (which is effective tomorrow) eliminates obligations for the newspaper publication that was required for some public notices.  It also requires the inclusion of a permanent “FCC Applications” link on the homepage of each commercial station’s website, whether or not they have any applications pending (noncommercial stations only need to include a link when they have applications pending and their stations are not operational and cannot broadcast the required notice).  Let’s look at some of the other changes that are now effective.
Continue Reading Changes to FCC Public Notice Requirements Effective October 30 – New Link Required on Commercial Station Websites

November is one of those few months with no routine FCC filing obligations (no renewals, reports, fees or other regularly scheduled deadlines.  While that might seem to suggest that you can take time that you normally devote to regulatory actions to begin your holiday preparations even in this most unusual year, there are still many issues to consider, and you can also use this month to plan for complying with deadlines that fall in December.

While there are no significant comment dates on broadcast matters yet set in November, look for dates to be set in the FCC’s proceeding to determine whether there should be a limit on the number of applications that one party can file in the upcoming window for the filing of applications for new noncommercial, reserved band FM stations.  See our article here on the FCC’s request for comments in this proceeding.
Continue Reading November Regulatory Dates for Broadcasters: Rulemaking Comments, Hearings on Diversity and a New Commissioner, an FCC Open Meeting and More

In the last few weeks, we have received several inquiries from broadcasters about the FCC’s enforcement of its requirements that broadcasters conduct non-vacancy specific outreach efforts to educate their communities about broadcast employment opportunities and to train their staff to assume greater responsibility at stations and otherwise assist them in their career development (not to train them for their current positions, but to prepare them to assume a position with more responsibilities as their careers advance).  Stations are required to undertake a variety of activities to educate the public about broadcast employment opportunities (and the experience and skills that will be helpful to obtain these broadcast positions) and to train their employees to advance in their careers beyond their current positions.  These outreach efforts must be undertaken even when stations don’t have job openings.  The FCC has a whole list of “menu options” to meet these obligations (see them listed in the EEO training presentation that I did last year for a state broadcast association, available here).  While these menu options were designed for a “normal” work environment, many can be adapted to today’s world where so much business and education is being done virtually.

When asked if these rules are still in effect, I have been telling broadcasters that the FCC has not said that these obligations are suspended during the pandemic.  In fact, the FCC has been conducting EEO audits throughout the course of the pandemic (see our article here, for instance), so it appears that enforcement of the EEO rules continues unabated.  While I expect that the FCC will be somewhat flexible in assessing compliance in these present circumstances, stations can accomplish many of the activities listed in the menu options even in the pandemic.  In a webinar that I conducted recently for many of the states with upcoming radio license renewal deadlines, and in another webinar for a public broadcasters group in a midwestern state, I discussed some of those opportunities.
Continue Reading Looking at FCC Non-Vacancy Specific EEO Outreach Efforts – the “Menu Options” – in a Pandemic World

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

  • The FCC set the comment dates for its proposal for changing the cost to file various broadcast applications. The new

As the campaign enters its final weeks, the FCC has begun to send out the next round of proposed consent decrees to radio broadcasters unable to certify in their license renewal applications, because of perceived deficiencies in their political file, that that every document was placed into their FCC-hosted online public inspection file on a timely basis (see, for instance, this decree released yesterday).  The certification of public file compliance is required of every applicant for license renewal.  As with any other certification, a licensee must review its records and truthfully answer the application’s question, either certifying that it has complied with all of the public file obligations or disclosing any deficiencies.  As we wrote last year, in cases of substantial noncompliance, the FCC has fined stations that essentially ignored the public file rules.  But, until recently, in cases where a station had made a good faith effort to comply but had some minor deficiencies in the public file (as is natural over an eight-year renewal period), the FCC has generally been granting renewals, acknowledging that minor violations do not signal that a broadcaster is not operating in the public interest.  However, in August, the Commission initiated a new policy for stations that reported deficiencies in the political portion of the public inspection file, sending draft consent decrees to virtually all stations unable to certify full public file compliance because of any political file issue.

These consent decrees were modeled on the ones that were sent in July to six large radio broadcast groups as a result of an earlier FCC review of their political files (see our article here on those consent decrees, which also provides a review of a broadcaster’s political file obligations).  The difference is, of course, that the July decrees went to large radio groups for what the FCC described as hundreds of violations at many radio stations.  The new renewal-driven consent decrees were sent to all stations that did not certify political file compliance, even to stations that had only a handful of political advertising sales if those stations determined that they could not certify that all required documents went into the file in a timely fashion.  While the decrees carry no monetary fine, they do require that the signing station enter into a compliance program – appointing a compliance officer, having a written compliance plan, reporting any violations to the FCC as they occur, and providing a report to the FCC at the end of each calendar year for two years cataloging all political sales and when the required documents went into the political file.
Continue Reading More FCC Consent Decrees for Political File Violations – Issues to Watch in the Last Weeks of the Election