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 FCC regulatory and legal actions 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.
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Political “issue advertising” – advertising run by groups like PACs and political parties rather than a candidate’s authorized campaign committees – is a rough and tumble world in which broadcasters can often find themselves in the middle. We’ve written extensively (here, here and here) about how issue advertising can impose additional public file obligations on broadcasters under FCC policy that has recently been clarified. Plus, there is beginning to be a body of state law seeking to regulate these ads (see, for instance, our articles here and here). But where the middle perhaps becomes the most uncomfortable for broadcasters is when they find themselves in a dispute over whether an issue ad that they are asked to broadcast is true. As we wrote here and here, there are certain common procedures that broadcasters need to follow if they have reason to believe that an ad is false, as running an ad that is in fact false, if the station has reason to believe that it is false (e.g. when they are put on notice that the ad is false by a party being attacked in the ad) could lead to liability for defamation. While claims brought against broadcasters for running these third-party ads are infrequent, it does happen, as is evident from the recent lawsuit by the Trump campaign against a Wisconsin TV station owned by Northlands Television arguing that a portion of a Priorities USA ad attacking the President for his handling of the coronavirus pandemic was false. Recently, the TV station filed its response to the Trump suit, and the Motion to Dismiss that was filed is instructive on the issues to consider in any defamation lawsuit.
The Trump claim attacks a Priorities USA ad containing a montage of audio clips of President Trump’s words, including the phrase “coronavirus, this is their new hoax.” The Trump Campaign claimed that the ad and the way that the clips were edited together misrepresents President Trump’s “hoax” comment by falsely claiming that he stated that the coronavirus is a hoax, when the hoax to which he was referring was “the Democrats’ exploitation of a pandemic and related characterization of the candidate’s response to the pandemic.” The complaint cited several “fact checkers” who supported the claim that the reference to the hoax was to the Democratic reaction, not the virus itself.
Continue Reading The Law of Defamation and Political Advertising Argued in Trump Suit Against Wisconsin TV Station
Each week, we summarize some of the regulatory and legal actions of the last week significant to broadcasters – both those from the FCC and those taken elsewhere –with links to where you can go to find more information as to how these actions may affect your operations. Here is this week’s list of significant…
Trying to stay on top of regulatory developments for broadcasters is difficult even in normal times. There are always day-to-day obligations that distract from a focus on legal and regulatory questions – and there are so many developments almost every week that we can’t always write about everything that may have occurred. So we thought that we would introduce a new feature – each weekend providing a list of some of the regulatory actions of importance to broadcasters that occurred in the prior week, with links to where you can go to find more information as to how these actions may affect your operations.
In addition, to provide information on dealing with the FCC during the pandemic, and on the many actions that the FCC has taken during the last 6 weeks – both those dealing with the current crisis and decisions made in processing its normal workload relating to broadcasting – we conducted a webinar last Tuesday on these issues. You check out that webinar presented to broadcasters across the country, available by clicking on this link. And here are some of the regulatory actions announced last week of importance to broadcasters that have been announced since then :Continue Reading This Week at the FCC: April 18, 2020 to April 24, 2020
The FCC issued public notices this week on the license renewal process for both radio and television operators. The Public Notice on television renewals was perhaps more significant, as it addressed several issues and procedures for the television renewal process which begins with the filing of renewals for stations located in Maryland, DC, Virginia…
The FCC this week issued an Order reconsidering some of the issues addressed in its October 2019 orders (which we summarized here) interpreting its political advertising rules. Those October interpretations required that broadcasters who run ads addressing federal issues must include in the political file, maintained as part of their online public file, information about all of the candidates and issues discussed in such ads, not just the most prominent issue or candidate it discusses. The October ruling also required that stations inquire of issue advertisers (or their agencies) about the names of the chief executive officers or members of their boards of directors if the station is provided with only one name, as the rules require the disclosure of all of the officers or directors of such organizations and the FCC assumes that most of these groups have more than one officer or director. The October rulings also warned stations against the use of acronyms in their public file where such abbreviations could be misleading to the general public when they view the political file.
The reconsideration addressed two aspects of the October ruling. First, it made clear that the ruling applied only to federal issue ads, not to ads bought by candidates or their authorized campaign committees. That seemed to be clear from other statements made by the FCC and its staff (see our article here) but the reconsideration makes it explicit.
Continue Reading FCC Clarifies Its Ruling on Political File Obligations for Federal Issue Ads
Recently, FCC staff dismissed a request by the organization Free Press asking the FCC to investigate the broadcast of the President’s press conferences on the coronavirus and programs where commentators supported the President’s pronouncements. In addition to an investigation, the request asked that the FCC require that broadcasters “prominently disclose when information they air is false or scientifically suspect” in relation to these press conferences and other broadcasts. Free Press suggested that the FCC had the authority to take this action under its broad mandate to regulate in the public interest. It also cited the FCC’s hoax rule as providing support for such an action. As we have written before, the hoax rule is designed to prevent broadcasts that pose the risk of imminent harm to the public by potentially tying up first responders and emergency response teams for purported disasters and crimes that are not real. FCC staff dismissed the Free Press complaint, finding that the FCC is forbidden by Section 326 of the Communications Act from censoring the speech of broadcasters or otherwise abridging their freedom of speech. These First Amendment principles largely keep the FCC out of content regulation (with the limited exceptions of regulation in areas like indecency, obscenity and sponsorship identification where the message is not being censored, just certain means of expression).
In the Free Press decision, the FCC concluded that, in covering a breaking news story like the pandemic, it would be impossible for a broadcaster to fact check every statement made in a press conference and correct any misstatements in anything approaching real time, as there is so much room for interpretation of any statement made on these ongoing matters. It would also be impossible for the FCC to police any such mandate without trampling on First Amendment principles, as it would require the FCC to become the arbiter of the truth for many claims made on television. The FCC declined to take on that role, and noted that the hoax rule is narrowly drawn to avoid these First Amendment issues. That rule only punishes clearly false broadcasts that could foreseeably tie up first responders or cause substantial public harm. It does not get the FCC involved in evaluations of the truth of political statements and policy pronouncements. This is a position that has consistently been taken by the FCC, and one that we often see misstated in connection with demands for the take-down of issue advertising and non-candidate political attack ads.
Continue Reading FCC Denies Application of Hoax Rule to Trump Press Conferences on COVID-19 – Looking at the First Amendment and the Commission’s Regulation of Political Speech
In the last three weeks, we have written about actions that the FCC has taken to help broadcasters through the current crisis caused by the COVID-19 virus. The FCC appears to realize that the business of broadcasting in the current crisis is vastly different than it was just a month ago. The FCC has provided…
Many stations seem unsure of how to apply the recent FCC guidance that no charge spots given to advertisers to help them through the pandemic do not need to be counted in computing a station’s Lowest Unit Charge, as long as the no-charge spots are not part of paid advertising contracts and are not…
Yesterday, the FCC released two public notices reflecting its attempts to assist broadcasters coping with the COVID-19 crisis. The first public notice deals with the attempts of several broadcasters to support their advertisers while at the same time filling advertising inventory holes that have been created by the cancellation of other advertising schedules. Broadcasters who…
