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Last week, the full FCC issued a decision upholding the license renewal grant of a Pacifica-owned radio station in New York. A listener was complaining that the station broadcast favorable statements about an individual who had shot a police officer. The FCC first noted that the listener had not provided details of the statement, but further stated that the FCC is not allowed to censor the content selected by broadcasters to air on their stations. Specifically, the FCC said: “A licensee has broad discretion — based on its right to free speech7 — to choose, in good faith, the programming it believes serves the needs and interests of its community of license.” The FCC is bound by the First Amendment to not judge the subject-matter content of what broadcasters broadcast. Instead, it regulates structurally, in a content-neutral manner through rules like the multiple ownership requirements, to avoid second-guessing the decisions of broadcasters as to what is said on the air.

The interplay between the First Amendment and FCC rules has been the seen in the handling of many issues by the FCC. We’ve written about it in the context of the abolition of the Fairness Doctrine, and when the FCC in 2014 officially abolished the last vestige of that doctrine – the Zapple Doctrine. We’ve also written (here and here) about that in connection with calls for the FCC to ban attack ads which can sometimes make over-the-top claims about political candidates – the truth or falsity of which broadcasters are sometimes required to determine when the attacked candidate challenges those ads and threatens to sue the station that is running them. Why doesn’t the FCC make those determinations? Because we don’t want the government deciding what can and cannot be run on the air. There are of course libel laws that can be used to crack down on false statements – even those in political ads – but standards for finding liability against public officials and other public figures are set high to block those laws from being used to suppress valuable debate on the issues (see our article here ).
Continue Reading License Renewal Shows FCC Does Not Regulate Content – Implications for Calls to Regulate Fake News?

At the end of last week, the press reported on the jury verdict finding Rolling Stone magazine to be liable for defamation for its story, later retracted, about a gang rape at the University of Virginia. The case was brought by a University administrator who was portrayed negatively, including making her sound as if she had been indifferent or dismissive of the alleged rape, which evidence later showed to be untrue. Even though the court deemed the administrator to be a “public figure,” the jury nevertheless found that there was sufficient “malice” on the part of Rolling Stone to merit the finding of liability. While this decision may well be appealed, it nevertheless is a finding of which broadcasters and other media companies need to take note, as it demonstrates that a sloppy review of the facts of a news report can lead to liability – even when reporting on public figures and important issues of wide public concern.

Under the NY Times v Sullivan Supreme Court precedent, the decision in defamation cases quite often depends on the determination of whether the person who was allegedly defamed is a public figure. The thinking of the Supreme Court in adopting the distinction between public figures and private individuals is that the public has more interest in vetting public figures, and by becoming a public figure, individuals expect that their conduct will be under scrutiny. To adopt a strict liability standard for public figures would mean that, if any mistake is made in reporting on their actions, a press outlet could find itself facing defamation liability, even if that mistake was made in good faith after reasonable reporting had been done. To avoid this strict liability, the Supreme Court decided that, if the victim is a public figure, to find liability, the jury must find not only that the statement made by the defendant was false, but also that it was made with “malice.” What does that mean?
Continue Reading What Broadcasters Can Learn from the Rolling Stone Defamation Case

November is one of those few months where there is a very light load of routine regulatory filings for broadcasters.  This is a month with no routine FCC ownership or children’s television reports.  There are no routine EEO reports for the public file, and no other FCC regularly-scheduled deadlines.

Of course, there are several other dates that broadcasters need to be aware of.  October 31 is the end of the FM translator window to move translators up to 250 miles to serve AM stations – so November 1 will likely bring lessened demand for any translator that did not find a new AM home during the window that has been open to various groups of AM stations since January. Those looking for translators to operate with FM stations may find opportunities now less expensive, but harder to move, so opportunities will be limited to stations near to areas where the translators already are located.

Once the FCC’s Broadcast Incentive Auction for television has concluded, the FCC will announce two windows for new FM translators.  These windows (the first for Class C and D AM stations only, and the second for Class A and B AM stations) will only be open to AM licensees that did not participate in the 2016 windows.  See our article here for more information. 
Continue Reading November Regulatory Dates For Broadcasters – Incentive Auction, EAS, Political and More

As we approach Election Day, the political ads seem to be getting more and more frequent, and often more and more nasty.  With the rise in the number of attack ads, stations are facing more and more demands from candidates who are being attacked in these ads, asking that the ads be pulled from the airwaves because the content is not truthful or otherwise presents a distorted picture of reality.  What do stations do when confronted with these claims?

We have written about this issue several times before (see, for instance, our articles here and here).  In some cases, the stations can do nothing – if the attack is contained in an ad by a candidate or the candidate’s authorized campaign committee.  If a candidate in his or her own ads attacks another candidate, the station cannot pull the ad based on its content.  Ads by candidates and their authorized campaign committees are covered by the Communication Act’s “no censorship” provision, meaning that the station cannot (except in very limited circumstances) pull the ad based on its content (see more on the “no censorship” provision here).  Because the station cannot pull the ad based on its content, the station has no liability if the candidate ad defames their opponent.  The opponent’s only remedy is to sue the candidate who ran the ad.  But what about allegedly false claims made in ads by third parties – like PACs, unions, political parties or other non-candidate groups? 
Continue Reading Demands to Pull Political Attack Ads – What is a Station to Do? 

This has been an unusual political year, as the number of political broadcasting legal issues that have arisen seems far smaller than in past election cycles. Perhaps broadcasters are all on top of the issues this year, or maybe the questions that often arise in connection with attack ads simply pale in comparison to some of the non-advertising attacks that take place every day in the news and on other political-themed broadcast and cable programming. But one question that has come up repeatedly in these last few weeks before the election has been one about local candidates – usually running for state or municipal offices – who appear in advertisements for local businesses that they own or manage. Often times, these individuals will routinely appear in a business’ ads outside of election season, and the candidate simply wants to continue to appear on their business’ ads during the election as well. What is a station to do?

While we have many times written about what happens when a broadcast station’s on-air employee runs for office (see, for instance, our articles here, here and here), we have addressed the question less often about the advertiser who is also a candidate. If a candidate’s recognizable voice or, for TV, image appears on a broadcast station in a way that is not negative (e.g. it is not in an ad attacking that candidate), outside of an exempt program (in other words outside of a news or news interview program which, as we wrote here, is a very broad category of programming) that appearance is a “use” by the political candidate. That includes “uses” even well outside the political sphere, so Arnold Schwarzenegger movies were pulled from TV when he was running for office, as were any re-runs of The Apprentice and The Celebrity Apprentice featuring Donald Trump. So, an appearance by a candidate in a commercial for his or her local business is a “use” which needs to be included in a station’s political file (providing all the information about the sponsor, schedule and price of the ad that you would for any pure political buy). But that does not necessarily mean that a station needs to pull the ad from the air.
Continue Reading What to do When a Local Political Candidate Appears in a Spot Advertisement for a Commercial Business

Each quarter, my partner David O’Connor and I update a list of the legal and regulatory issues facing TV broadcasters. That list of issues is published by TVNewsCheck and is available on their website, here. This update was published today, and provides a summary of the status of legal and regulatory issues ranging…

September is one of those unusual months, where there are no regular filing dates for EEO public inspection file reports, quarterly issues programs lists or children’s television reports.  With the unusual start to the month with Labor Day being so late, and the lack of routine deadlines, we didn’t get our usual monthly highlights of upcoming regulatory dates posted as the month began.  While we didn’t do it early, we actually have not missed the many regulatory deadlines and important dates about which broadcasters need to take note this month.

Several are of particular importance for virtually all broadcasters.  As we wrote here and here, Annual Regulatory Fees for all commercial broadcasters are due by September 27.  Any commercial broadcaster that cumulatively owes more than $500 must file its fees by that date – and the fee filing system is already open.  Note that most noncommercial entities are excused from fee filings.
Continue Reading September Regulatory Dates for Broadcasters: EAS Test, Reg Fees, Lowest Unit Rates, Incentive Auction Stage 2

It’s election season, and for the 60 days before any general election, broadcast stations are required to charge political candidates the “lowest unit rate” for comparable advertising time that runs on their stations. That means that, for each class of advertising time on any particular station, the candidate can only be charged the lowest…

With the national presidential conventions complete, and most of the state primaries for Congressional, state and local offices either behind us or to occur in the next few weeks, the most concentrated period for the purchase of political advertising on broadcast stations is now upon us, to peak in the late October/early November frenzy. While most of the principles governing the FCC rules on political broadcasting are relatively established (and many are summarized in our Political Broadcasting Guide available here), there are always new advertising practices and opportunities that throw some new wrinkle into how those rules are applied. At a number of political advertising seminars that I have conducted this past year, and in discussions with broadcasters, one of the new wrinkles this year that has not captured the attention that it deserves is the political broadcasting issues raised by programmatic buying of advertising time.

In the last year or two, programmatic buying has become the buzzword in broadcast advertising circles for both radio and TV. It is intended to make ad buying easier and more akin to the experience that ad buyers have when they place online advertising, where most of it can be done from a computer with a few clicks of a mouse, anywhere at anytime. While programmatic buying is becoming more and more common in broadcast circles, is difficult to easily say exactly what it is, as what is called “programmatic buying” comes in so many different flavors. Not only does the concept mean different things in different systems, it is also being provided by all sorts of different companies, from rep firms, to broadcast technology companies, to companies that have specialized in specific types of advertising – like remnant ad sales (i.e. sales of unsold advertising inventory that broadcasters may have). And some station owners are signing up with multiple providers – sometimes at the same station.
Continue Reading Programmatic Advertising Buying and the FCC’s Political Broadcasting Rules