Payola and Sponsorship Identification

With so much focus on the upcoming regulatory fee deadline, broadcasters may well overlook another more imminent deadline – Thursday, September 15 is the deadline for broadcasters to have assured themselves that no buyer of program time on their stations is a foreign government or an agent of a foreign government.  As we wrote here, the NAB successfully obtained a court decision eliminating the obligation for broadcasters to verify that no buyer of program time is listed in the Department of Justice’s Foreign Agents Registration Act database or on the FCC’s database of foreign government video programmers.  However, the underlying obligation of licensees to obtain certifications from buyers of program time on their stations confirming that they are not a foreign government, or an agent of a foreign government, remains in place.

New agreements for the sale of program time should have, since March 15, contained representations from the program buyer that they are not a foreign government or a representative of a foreign government, and that no foreign government has paid the programmer to produce the programs or to place it on broadcast stations.  Programming provided to the station for free with the expectation that it will be broadcast should also be confirmed as not coming from a foreign government or an agent of a foreign government.  By this Thursday (September 15), stations need to verify that the providers of programming under agreements that were in existence before March 15 are not foreign governments or their agents.
Continue Reading Don’t Forget September 15 Deadline For Broadcasters to Assure That Buyers of Program Time Are Not Foreign Governments or Their Agents

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 that regulatory fees must be submitted by 11:59 PM Eastern Time on September 28. In addition, the

As summer begins to wind down, just like the rest of the world, the FCC and other government agencies seem to pick up speed on long delayed actions.  Broadcasters can anticipate increased regulatory activity in the coming months.  For September, there are a few dates to which all broadcasters should pay attention, and a few that will be of relevance to a more limited group.  As always, pay attention to these dates, and be prepared to address any other important deadlines that we may have overlooked, or which are unique to your station.

All commercial broadcasters will need to pay attention to actions which will likely come in rapid fire in the next two weeks, setting the deadlines for payment of the Annual Regulatory Fees that must be paid before the October 1 start of the next fiscal year for the FCC.  Look for an Order very soon deciding on the final amounts for those fees.  That Order will be quickly followed by a Public Notice setting the payment dates and procedures.  Then watch for fact sheets from each of the Bureaus at the FCC.  The Media Bureau fact sheet will cover the fees to be paid by broadcasters.  Be ready to pay those fees by the announced September deadline, as the failure to pay on time brings steep penalties.
Continue Reading September Regulatory Dates for Broadcasters:  Reg Fees, Foreign Government Program Certifications, Final Chance to Claim Reimbursement for Repacking Expenses, Comments on ATSC 3.0 and FTC Advertising Inquiry, and More

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.

  • On August 19, 2022, the FCC’s Enforcement Bureau issued the second set of Equal Employment Opportunity (EEO) audit letters for

Last week, the FCC entered into a consent decree with the operator of a low power TV station, where the broadcaster admitted to violating FCC rules by selling advertising packages that included guaranteed appearances of the advertiser on a local news and information program, without any notice to viewers that the programming was sponsored.  The decree imposed a 5-year compliance plan on the licensee, requiring the training of employees on sponsorship identification requirements of the FCC rules, the adoption of plans to ensure that the issue does not arise again, and the reporting to the FCC of any similar issues that arise in the future.  In addition, the licensee had to pay a $60,000 penalty – and the language of the decree suggests that this fine would have been significantly larger had the licensee been able to pay more (as it was, the licensee is allowed to pay off the penalty in $1000 per month increments). This penalty should not be a surprise, as the conduct raises significant sponsorship identification issues, as well as a host of issues under the FCC’s political broadcasting rules.

Having paid appearances in local programming without a sponsorship identification has in the past been a source of FCC concern – and has resulted in big penalties where a sponsor is not disclosed to the public.  For instance, we wrote here about a fine of more than $13 million imposed on Sinclair Broadcasting for running feature stories about a local cancer institute that had been promised to the institute as part of a paid advertising package, without disclosing the payment on-air.  Any time a broadcaster receives anything of value in exchange for saying something on the air, the broadcaster needs to disclose that consideration and who provided it.  Even program suppliers need to disclose that they have been paid when they have been paid to say something on the air.  For more information, see, for example our article here where a TV political commentator was required to disclose that he was being paid to support certain political positions, and our article here on requiring program syndicators to make clear when programming they provide has been sponsored.  The FCC’s recent rules about the disclosure of foreign government-sponsored programming (see our articles here and here) also require that broadcasters assure that any buyer of program time on the station has not itself been paid by a foreign government or their agent to say something in their programming.
Continue Reading $60,000 Fine on LPTV Station For Political Broadcasting and Sponsorship Identification Issues with Ad Packages Containing News Program Appearances

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’s Media Bureau released a consent decree, including the payment of a $60,000 penalty, with an LPTV station

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 US Court of Appeals this week determined that the FCC’s requirement that broadcasters confirm by searching DOJ and FCC

When providing briefings on FCC issues at a number of broadcast conventions in the past few months, I find that broadcasters are most often surprised by the relatively new FCC rule that requires that they verify that any buyer of programming time on their station is not an agent of a foreign government.  This week, the burden that this rule (about which we wrote here) imposed on broadcasters was eased, when a Court overturned one aspect of the obligations imposed by the FCC.

The FCC rule, Section73.1212(j), is designed to ensure that all broadcast programming that is paid for or sponsored by a foreign government or one of its agents is specifically identified on the air as having foreign government backing.  The FCC required specific wording for on-air identifications for this programming paid for or produced by foreign governments or those that they finance.  In addition, broadcast stations are required to get assurances in writing from all parties who pay for programming on their stations that the programmer is not a foreign government or an agent of any such government.  The FCC rule went further, requiring that each station verify by checking FCC and DOJ databases that any programmer who certified that they were not a foreign government agent was in fact not a government agent.  It was that last requirement – the requirement to check DOJ and FCC databases – that the Court rejected this week.
Continue Reading Court Overturns Part of FCC Requirement that Broadcasters Confirm that Programmers are Not Foreign Government Agents

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.

  • The FCC this week announced that in-person meetings at its new headquarters building will now be allowed – though only

In our summary of last week’s regulatory actions, I was struck by a common thread in comments made by several FCC Commissioners in different contexts – the thread being the FCC’s role in regulating Internet content companies.  As we noted in our summary, both Republican commissioners issued statements last week in response to a request by a public interest group that the FCC block Elon Musk’s acquisition of Twitter.  The Commissioners stated that the FCC had no role to play in reviewing that acquisition.  Twitter does not appear to own regulated communications assets and thus the FCC would not be called upon to review any application for the acquisition of that company.  The Commissioners also noted concerns with the First Amendment implications of trying to block the acquisition because of Musk’s hands-off position on the regulation of content on the platform, but the Commissioners’ principal concern was with FCC jurisdiction (Carr StatementSimington Comments).  In the same week, FCC Chairwoman Jessica Rosenworcel, in remarks to a disability rights organization, talked about plans for more FCC forums on the accessibility of Internet content to follow up on the sessions that we wrote about here.

The ability of the FCC to regulate internet content and platforms depends on statutory authority.  In holding the forums on captioning of online video content, the FCC could look to the language of the 21st Century Communications and Video Accessibility Act, which included language that asked the FCC to look at the accessibility of video content used on internet platforms.  In other areas, the FCC’s jurisdiction is not as clear, but calls arise regularly for the FCC to act to regulate content that, as we have written in other contexts, looks more and more like broadcast content and competes directly with that content.
Continue Reading Does the FCC Regulate Internet Content and Companies?