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2009 – a new year, and a whole new cycle of regulatory requirements.  We wrote last week about the potential for changes in regulations that may be forthcoming but, like death and taxes, there are certain regulatory dates each year that broadcasters need to note and certain deadlines that must be met.  Those dates…

Come the New Year, we all engage in speculation about what’s ahead in our chosen fields, so it’s time for us to look into our crystal ball to try to discern what Washington may have in store for broadcasters in 2009. With each new year, a new set of regulatory issues face the broadcaster from the powers-that-be in Washington. But this year, with a new Presidential administration, new chairs of the Congressional committees that regulate broadcasters, and with a new FCC on the way, the potential regulatory challenges may cause the broadcaster to look at the new year with more trepidation than usual. In a year when the digital television transition finally becomes a reality, and with a troubled economy and no election or Olympic dollars to ease the downturn, who wants to deal with new regulatory obstacles? Yet, there are potential changes that could affect virtually all phases of the broadcast operations for both radio and television stations – technical, programming, sales, and even the use of music – all of which may have a direct impact on a station’s bottom line that can’t be ignored. 

With the digital conversion, one would think that television broadcasters have all the technical issues that they need for 2009. But the FCC’s recent adoption of its “White Spaces” order, authorizing the operation of unlicensed wireless devices on the TV channels, insures that there will be other issues to watch. The White Spaces decision will likely be appealed. While the appeal is going on, the FCC will have to work on the details of the order’s implementation, including approving operators of the database that is supposed to list all the stations that the new wireless devices will have to protect, as well as “type accepting” the devices themselves, essentially certifying that the devices can do what their backers claim – knowing where they are through the use of geolocation technology, “sniffing” out signals to protect, and communicating with the database to avoid interference with local television, land mobile radio, and wireless microphone signals.Continue Reading Gazing Into the Crystal Ball – The Outlook for Broadcast Regulation in 2009

In a Sunday column, George Will revisited conservative commentators’ biggest fear – the return of the Fairness Doctrine.  Will went into depth on the history of the doctrine, the growth in the number of broadcast outlets in recent years, and growth in talk programming since the doctrine was abolished, all to argue against its…

Last week, President-elect Barack Obama delivered his first weekly radio address since he was elected President.  The broadcast made news, not only for its content, but also because it was streamed on the Internet, particularly on You Tube, but also retransmitted on many other websites.  The fact that the Internet makes such transmissions not only possible, but so easy and so widely available demonstrates one of many reasons why all the worry about the return of the Fairness Doctrine is unwarranted.  With access to so many diverse opinions not only on the radio but also through all of the new technologies, why should the government care that one radio station may not cover all sides of a controversial issue?  If one station does not put on a strongly held viewpoint on an important issue, you can bet that someone who holds that viewpoint will find some way to transmit it to others. 

The return of the Fairness Doctrine has been the great invisible monster in the room since the election – with many commentators, particularly conservative ones, worrying that the Democratic Congress will attempt to reinstate the Fairness Doctrine.  Off-hand comments such as those made by Senator Schumer on Fox News, have fueled this speculation, even though the Obama campaign has specifically rejected such a return.  The Fairness Doctrine is one grounded in scarcity of the electronic spectrum – from the fear that if one side of an issue was allowed to dominate one of the few means of communicating with the population of a community, it would effectively be able to stifle the ability of those with contrasting viewpoints to get their message out.   But, to use a phrase that is becoming increasingly popular – that thinking is so 20th Century.Continue Reading Obama’s Radio Address is Streamed on the Internet – Demonstrating Why There Need Not Be Any Return of the Fairness Doctrine

The FCC Equal Time rule (or more properly the "equal opportunities" doctrine) requires that, when a broadcast stations gives one candidate airtime outside of an "exempt program" (essentially news or news interview programs, see our explanation here), it must give the opposing candidate equal time if that opposing candidate requests the time within 7 days of the first candidate’s use.  Cable systems are also subject the requirement for local origination programming, and many have surmised that, faced with the proper case, the FCC would determine that cable networks are also likely to be covered by the doctrine.  While the FCC has extended the concept of an exempt program to cover all sorts of interview format programs, allowing Oprah, The View, Leno and Letterman and the Daily Show to have candidates on the air without the fear of equal time obligations, the rule still theoretically applies to scripted programming.  Yet in this election, we have seen candidates appear on scripted programs repeatedly, seemingly without fear of the equal time obligations.  Early in the election season, cable networks ran Law and Order with Fred Thompson without any equal time claims being made.  All through the election, candidates seem to have made themselves at home on Saturday Night Live, culminating with Senator McCain’s appearances on the SNL programs on Saturday Night and the SNL special run on election eve.  Yet through it all, stations have not seemed reluctant to run these programs, and candidates have not seemed to show any interest in requesting any equal time that may be due to them.  This seems to raise the question as to whether there remains any vitality to the equal opportunities doctrine.

This is not just a case of candidates deciding not to appear on a program that they don’t like because they don’t want to appear in a program with that particular format, as the equal time rules free the candidates from format restrictions.  Thus, had Senator Obama sought equal time for McCain’s appearances on SNL, he would have been entitled to an amount of time equal to the amount of time that McCain appeared on camera, and Obama could have used that time for any purpose that he wanted, including a straight campaign pitch.  He would not have had to appear in an SNL skit just to get that time.Continue Reading Does McCain on Saturday Night Live Signal the End of Equal Time?

A Canadian radio station has apparently pulled off an amazing stunt that would have prompted an FCC fine if it had been done by a US radio station – calling Vice Presidential nominee Sarah Palin and engaging her in an on-air conversation under the premise that she was talking to French President Nicholas Sarkozy.  A recording of…

In two races for the US Senate, candidates have filed defamation lawsuits against their opponents charging that attack ads go over the line from political argument to actionable falsehoods.  However these suits ultimately play out, they demonstrate the premise that we’ve written about before, that broadcast stations are prohibited by FCC rules and the Communications Act from censoring the content of a candidate’s ad, and because they cannot censor the content of a candidate’s ad (or refuse to run a candidate’s ad because of the content of that ad), stations are immune from liability that might otherwise arise from that content.  But the candidates being attacked can sue their opponents for the contents of those ads, and that is just what has happened in the North Carolina and Minnesota Senate races.

In North Carolina, according to press reports, Democratic candidate Kay Hagan has filed suit against the campaign of Elizabeth Dole for a commercial that accused Hagan of being associated with a group called Godless Americans – an ad ending with a woman’s voice that some interpreted as being that of Hagan (when it was in fact not) saying "there is no God."  In Minnesota, Senator Norm Coleman has reportedly filed a lawsuit against Al Franken’s campaign claiming that Franken campaign ads improperly claimed that Coleman was rated one of the four most corrupt Senators and that he was getting an improperly financed apartment in Washington DC. Continue Reading Senate Candidates File Lawsuits For Defamation in TV Commercials – But Not Against the TV Stations

As we enter the waning days of this election season, where some candidates get more desperate and the attack ads get sharper, broadcasters are often faced with requests that they pull an ad created by a candidate.  Claims are made that the ad contains untrue claims about an opponent or that the ad contains copyrighted material used without permission.  What is a station to do?  When the ad is an ad purchased by a candidate or their authorized committee, and contains a "use" by the purchasing candidate (a use being a spot where the purchasing candidate’s voice or likeliness appears on the spot) the broadcaster is forbidden from censoring that ad.  Essentially, that means that the candidate can say just about anything in their ad (as long as it does not violate a Federal felony statute), and the FCC’s rules prohibit the broadcaster from refusing to air the ad based on its content.  But, because the station cannot censor the ad, it has no liability for the contents of that ad.  This is in contrast to ads by third parties (e.g. advocacy groups, unions, political parties and others not specifically authorized by the candidate), where the broadcaster theoretically has liability for the content of a political ad (see our post on that subject, here).

Two recent cases illustrate the issue.  In one, according to press reports, in a race for the sole seat in the House of Representatives representing the state of North Dakota, one candidate has claimed that the ads of the other misrepresent the positions of that candidate.  The candidate being attacked has asked that the spots be pulled from the air, while the candidate running the spots has refused to pull them.  Even if requested by the candidate being attacked, and even if the ad is in fact false, broadcasters cannot pull one candidate’s ad if that candidate wants to continue to run it.Continue Reading Broadcasters Prohibited From Censoring a Candidate’s Ad

Press Reports (such as this one) have stated that the Obama campaign has purchased half-hour blocks of time on at least NBC and CBS to broadcast a political infomercial to be aired at 8 PM Eastern time on October 29.  Some reports indicate that other broadcast and cable networks will also be broadcasting the same program.  Did the networks have to sell him the time?  In fact, they probably did.  Under FCC rules, Federal political candidates have a right of reasonable access to "all classes" of time sold by the station in all dayparts.  This includes a right to program length time, a right that was affirmed by the US Court of Appeals when the networks did not want to sell Jimmy Carter a program length commercial to announce the launch of his reelection bid.  Because of this right, the networks often had to sell Lyndon LaRouche half hour blocks of time to promote his perennial candidacy for President. 

How often do networks (or stations) have to make such time available?  They only have the right to be "reasonable." While what is reasonable has not been defined, the amount of time that will be requested will probably be limited by the cost of such time.  Even were it not limited by cost, the FCC would probably not require that a broadcaster sell such a prime time block more than once or twice during the course of an election – and given the late stage that we are in the current election, it seems unlikely that more than one such request would have to be honored during these last few weeks of the campaign.  Stations do not need to give candidates the exact time that they requested – so the rumored reluctance of Fox to sell this precise time to the Obama campaign because it might conflict with the World Series would probably be reasonable – if they offered him the opportunity to buy a half hour block at some other comparable time.   Continue Reading Obama Buys A Half Hour of Time on Broadcast Networks – What FCC Legal Issues are Involved?

According to numerous press articles, including this one in Multichannel News, the FCC has begun an investigation into several commentators on TV news programs to see if they were receiving payments or other consideration for presenting a particular viewpoint on military issues on which they were interviewed.  According to press reports, the FCC has…