Payola and Sponsorship Identification

The FCC this week issued a Notice of Apparent Liability proposing a $233,000 fine to Cumulus Media for violations of the sponsorship identification rules.  The fine illustrates not only how seriously the FCC takes its sponsorship identification rules (particularly in the context of political and issue advertising) but also the how aggressively the FCC can act for even the slightest violation of a consent decree involving a prior violation of its rules.  If the FCC catches you once in a rule violation, don’t get caught again for the same violation – and if you agree to the terms of a consent decree in connection with that first violation, by all means abide by the letter of that decree or the FCC will not hesitate to exercise its full enforcement power.

This case involves alleged violations by Cumulus Media.  Three years ago, Cumulus entered into a consent decree with the FCC agreeing to pay a $540,000 penalty after admitting that it did not include a full sponsorship identification disclosure on issue ads supporting government approval of an electrical utility project in New Hampshire (see our article here on that consent decree).  As part of the consent decree, the company agreed to a 3-year compliance program to educate its personnel about the FCC’s sponsorship identification rules, to appoint a compliance officer to oversee compliance with the rules and answer questions, and to report to the FCC within 15 days any violations of these FCC rules.  In the Notice released this week, the FCC alleged that Cumulus reported that it had in two instances aired ads without the proper identification – each set of ads running 13 times before the lack of a proper identification was caught and corrected.  In one instance, the violation was reported to the FCC within two weeks, but in the other case, it was not reported to the FCC for approximately 8 months.  Based on this instance of late reporting, and the 26 sponsorship identification violations, the FCC proposed the $233,000 fine.  How did they come up with that number?
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We usually think of the FCC as the agency that sets the details of the broadcast disclosure obligations for political candidate’s TV ads. But the Federal Election Commission has its own rules for political advertising that are binding on the candidates, rather than on the stations. But because these ads run on broadcast stations,

In recent weeks, we’ve written about a number of legal issues that need to be considered in connection with podcasting – getting releases from guests, making sure that ownership of the podcast is clear, and considering music royalties. Another issue that I discussed in my presentation on legal issues for broadcasters entering

Last week, it was announced that Google through its DoubleClick platform, would be offering programmatic buying opportunities for advertisers looking to place audio ads into online streams. While that system is initially being rolled out among the big digital audio services, if it or other similar platforms are expanded more broadly, it could bring more advertising into internet radio, podcasting and other digital audio program channels. But, being the spoilsports that we tend to be as lawyers, we wanted to pass on some issues to consider in accepting programmatic buys – whether in online streams or in over-the-air broadcasts. The immediacy of the audience’s perception of an audio insertion into a program stream can bring unintended results – some of which may have legal consequences.

We have already written about the issues for some of the programmatic buying platforms that are inserting ads into broadcast radio and television programming. As we wrote here and here, these ads can potentially impact a broadcaster’s legal compliance – particularly in the area of political broadcasting, where these ads could affect a station’s lowest unit rate, as well as reasonable access, equal opportunities and even political file disclosure obligations. While none of these FCC issues apply directly to online ads, as we wrote here, there are potential rules on political advertising that may soon be applied to online ads, either through actions by the Federal government or by the enactment of rules to implement a recently passed New York State law that compels disclosures for online political ads similar to those required by the FCC for broadcast ads. There are other considerations as well.
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With high profile primaries in numerous states and similar elections last week, and more coming over the next few months in preparation for the November election, broadcasters are dealing with the legal issues that arise with on-air advertising that either promotes or attacks candidates and which addresses other important matters that will be decided in the election – including ballot issues in a number of states. While we have addressed many of the legal questions that arise with on-air political advertising in other posts on this blog and elsewhere (see, for instance, our Political Broadcasting Guide here and these slides from my recent presentation on the FCC political advertising rules for the Washington State Association of Broadcasters), we thought that it was worth discussing some of the efforts that are underway to bring FCC-like regulation to the world of online political advertising.

Thus far, the FCC has tended to stay out of the online political broadcasting world. As we wrote a decade ago, other than having to give some consideration to the value of online advertising thrown into a package with over-the-air ads, the FCC avoids regulation of ad sales on websites and advertising delivered solely through other digital media platforms. So a broadcaster who sells stand-alone online ads to political candidates or issue advertisers need not worry about questions of lowest unit rates, reasonable access, or the political file.
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Last week, Aaron Burstein of our law firm and I conducted a webinar for several state broadcast associations on legal issues in digital and social media advertising. As broadcasters become more active in the digital world, whether it be through social media platforms like Facebook and Twitter, or by posting their content online through

It’s a new year, and a good time to reflect on where all the Washington issues for TV broadcasters stand at the moment, especially given the rapid pace of change since the new administration took over just about a year ago. While we try on this Blog to write about many of the DC issues

The FCC, apparently not in a holiday mood, yesterday released a Notice of Apparent Liability proposing a $13,376,200 fine against Sinclair Broadcast group for alleged violations of the sponsorship identification requirements of Section 317 of the Communications Act and Section 73.1212 of the FCC rules. The FCC alleges that program segments contained in news broadcasts of certain Sinclair stations and certain program-length reports featured stories about the Huntsman Cancer Institute which were not tagged as being sponsored – even though they were broadcast as part of a contract that required that Sinclair air advertising for the Institute and develop programming about the Institute’s activities.

While the amount of the fine is large given the thousands of alleged broadcasts missing the sponsorship tags, the Commission’s basis for the fines are not new. The FCC has previously fined stations for news segments that were sold as part of a commercial package and aired without sponsorship identification tags (see our article here.)  Accepting any consideration, even video footage, from a commercial entity, can be seen by the FCC as consideration requiring sponsorship identification. See, for instance, our article here about one such case. The stand-alone programs that Sinclair argued were identified as having been sponsored were found wanting by the FCC as, while the fact that the programs were sponsored was made clear, the actual sponsor’s name was not explicitly stated in the announcement. The Commission rejected claims that the visual depiction of the Institute’s logo that was shown visually just before the sponsorship announcement, and a welcome from the announcer thanking the audience for joining in the broadcast “from the Huntsman Cancer Institute,” were sufficient to notify the audience as to the sponsor of the broadcast. As in cases we wrote about here and here, the FCC takes a hard line on these cases, requiring that the name of the sponsor, and the fact that they sponsored the programming be presented clearly so that any viewer will know who is sponsoring a broadcast program.
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Broadcasters and advertisers should take note of the more than 90 warning letters that the FTC sent out this week as a reminder of the need to disclose material sponsorship connections in social media promotions and endorsements.  The FTC has since 2009 announced a policy that any online content for which anything of value has been received must disclose that consideration – even social media posts (see our article here about that policy).  This is in the nature of the FCC’s sponsorship identification rules for broadcast content.   That same policy statement addressed the need for those making personal endorsements to make these sponsorship disclosures.  The recent warning letters are notable not only for their sheer number, but also because the warning letters were addressed to marketers and social media “influencers” – the individuals whose social media followings make their endorsements valuable.  To date, the FTC has only named marketers (Warner Brothers Home Entertainment and Lord & Taylor) in its social media endorsement cases.  Although the FTC did not say who received warning letters, its press release noted that the letters were “informed by petitions filed by Public Citizen and affiliated organizations” in September 2016.

By directing warning letters to marketers and influencers, the FTC is sending a firm reminder that both sides of a sponsorship arrangement need to disclose their connection, “unless the connection is already clear from the context of the communication containing the endorsement.”  Specifically, the FTC advises influencers that they must “clearly and conspicuously” disclose any material connection with a marketer; and marketers, in turn, should ensure that the influencers they sponsor disclose their material connections.
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With the change in administration at the FCC, there are opportunities for certain actions to be taken very quickly, without going through the full process of a rulemaking requiring public notice of the proposed rule change and time for public comment.  At the end of this last week, we saw the FCC’s Media Bureau take actions in three different proceedings directly applicable to broadcasters to undo what had been done during the prior administration – rescinding actions with respect to noncommercial ownership reports, the disclosure of information about the sponsor of political advertisements, and on the treatment of TV assignment and transfer applications for television stations where shared service agreements are involved.  Below, we’ll give a few details about each of those actions.

Two of the rescinded actions were January rulings by the Media Bureau which, at the time they were issued, drew statements of concern from then-Commissioners Pai and O’Rielly.  The Republican Commissioners argued that the actions should have been taken by the full Commission, not the Media Bureau.  As these decisions were not final (appeals can be taken or reconsideration requests can be filed within 30 days of an action, and the full Commission, on its own, can set aside a staff action within 40 days), the Media Bureau, presumably at the urging of the new Chairman, set these actions aside for further consideration by the full Commission.


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