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Update, 7/26/2024 – We understand that the FCC has decided that the requirement for verification of the buyers of issues ads and paid PSAs will not go into effect on August 15, as this article stated. Instead, as we report in this article, the new requirement will require approval of the Office of Management and Budget, thus delaying its implementation for some time. As the FCC has not released any document specifically confirming the delay in the implementation of this verification requirement, we suggest that you confirm this understanding with your own counsel.

The FCC this week issued a Public Notice announcing the effective date of certain portions of the FCC Order released in June adopting changes to its requirements that broadcasters obtain certifications from buyers of program time on their stations that the sponsors are not foreign governments or agents of those governments.  As we wrote when the Order was released, the order had some good parts and some that could add additional burdens on broadcasters.  It is the latter that become effective on August 15, with most of the rest awaiting approval for the information collection requirements from the Office of Management and Budget under the Paperwork Reduction Act.

What is the “bad part” that will become effective on August 15?  It is the portion of the Order that requires broadcasters to get certifications not only from the buyers of program time (certifications that have been required since March 2022 – see our article here), but that they also get these certifications from buyers of spot advertising time unless the ad is for a commercial product or service.  That means that broadcasters, when they are selling political issue ads and paid PSAs, will need to go through the same process as they do when they sell blocks of program time.  They will need to get the sponsor of these ads to provide a certification consistent with the  the certification requirements for all leased programming time, to demonstrate that the buyer is not a foreign government or the agent of a foreign government.  As we will be entering the peak of political advertising time just about the time that this Order becomes effective, and as so much money is not spent by candidates but instead by PACs and other non-candidate political organizations, this will immediately impose new information gathering requirements from these political buyers – right in the heat of a campaign. Continue Reading August 15 Is the Effective Date of Requirements for Foreign Government Certifications for Political Issue Advertising and Paid PSAs

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Last week, the U.S. Supreme Court overturned the longstanding Chevron doctrine, which required courts to defer to expert regulatory agencies, like the FCC, when interpreting ambiguous statutes, unless the agency acted unreasonably.  Since the decision, we have seen all sorts of TV pundits predicting the end of “the administrative state” (presumably meaning the end of the many rules passed by administrative agencies like the FCC).  In the broadcast space, we’ve heard many suggest that this might mean that the broadcast ownership rules (most recently upheld by the FCC in their December decision on the 2018 Quadrennial Review) would soon be a thing of the past.  As we wrote several months ago, when this case was argued before the Supreme Court, we think that many of these predictions are overblown.  While certainly last week’s decision gives challengers to agency decisions more ammunition to use in bringing such challenges, and likely will cause the federal courts to be flooded with more challenges generally, the decision will not end the authority of administrative agencies to adopt rules affecting businesses, nor will it bring about any immediate change in rules adopted by the FCC on complex issues affecting broadcasters, like the local radio and television ownership rules. 

First, we need to look at what the Chevron doctrine was all about.  Chevron did not deal with the power of agencies themselves to make rules, but instead it dealt with the relatively narrow question of the standards that courts should use in evaluating challenges to those rules.  Under Chevron, if an agency’s rules relied on an interpretation of arguably ambiguous Congressional legislation, the courts would defer to the agency’s interpretation of the law if that interpretation was a plausible one.  In other words, under Chevron, the agency’s interpretation of the law would stand if there was a reasonable argument that the law meant what the agency said that it did, even if a reviewing court thought that there was a better reading of the law.  So, the doctrine dealt only with issues that arose when there were arguably ambiguous statutes being interpreted by an agency like the FCC.Continue Reading Supreme Court Rejects the Chevron Doctrine – What Does it Mean for Broadcasters Regulated By the FCC? 

  • The U.S. Supreme Court overturned the longstanding Chevron doctrine, which required Courts to defer to expert regulatory agencies, like the
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The lazy days of summer continue to provide little respite from the regulatory actions of importance to broadcasters.  This month brings quarterly requirements, including most importantly, the obligation to upload Quarterly Issues Programs Lists to a station’s online public file, and a number of comment deadlines in important FCC proceedings, as well as the opening of political windows in this major election year.  So, even if the beach chair is calling, remember to keep an eye on dates that can affect your stations. 

The regulatory date that all full-power broadcasters should have circled on their calendars is July 10, the deadline by which all full-power radio and TV stations (as well as Class A television stations), both commercial and noncommercial, must upload to their online public inspection files their Quarterly Issues/Program lists for the second quarter of 2024.  The lists should identify the issues of importance to the station’s community and the programs that the station aired between April 1 and June 30, 2024 that addressed those issues.  It is important that these be timely uploaded to your public file, as the untimely uploads of these documents probably have resulted in more fines in the last decade than for any other violation of the FCC’s rules.  As you finalize your lists, do so carefully and accurately, as they are the only official records of how your station is serving the public and addressing the needs and interests of its community.  See our article here for more on the importance of the Quarterly Issues/Programs list obligation.Continue Reading July Regulatory Dates for Broadcasters – Quarterly Issues/Programs Lists, Comment Deadlines in Multiple Proceedings, Political Windows, and More

Last week, the FCC released its long-expected decision on foreign government sponsored programming.  As you will recall, in 2022, the FCC adopted rules that required enhanced sponsorship identifications when program time bought (or, in the FCC’s words, “leased”) on broadcast stations was sponsored by a foreign government or an agent of a foreign government.  In addition, it required broadcasters to verify whether program buyers were agents of foreign governments, both by getting certifications from program buyers as to whether they represented foreign governments and by checking a Department of Justice database (compiled under the Foreign Agents Registration Act) to see if the buyer was registered as a foreign agent (see our articles here and here).  When a court threw out the requirement that broadcasters check those databases (see our article here), the FCC responded with a Second Notice of Proposed Rulemaking proposing that, instead of the FARA research, broadcasters needed to obtain a 13-paragraph certification as to whether any program buyer was a foreign government entity, and to include in the public file all such certifications, regardless of the response (as opposed to the existing requirement only obligating the broadcaster to put certifications in the public file when they indicated that the buyer was in fact an agent of a foreign government) (see our articles here and here on that proposal).  In the order released last week, the FCC decided not to require that enhanced certification (or the requirement to put negative responses into the public file), but instead came up with an unexpected addition to the requirement – that certifications must be obtained not just from buyers of program time, but also from buyers of advertising spot time, if the advertisers are not promoting commercial products and services. 

The order simplifies the certification requirement from the detailed multi-page certification in complex legalese that had been proposed in the Second Notice.  Instead, the FCC offers a relatively short certification (contained in Appendix D of the order) for program buyers to sign, with two basic questions – whether any foreign government entity ( a foreign government, a foreign political party, or an agent of one of those groups) is the purchaser of the programming; and whether the purchaser or any producer of the programming is being paid by a foreign government entity.  In the vast majority of cases, we expect that the answer to both questions will be “no.”  In the event that a programmer or program producer is an agent of a foreign government, then an additional question applies, requiring that the programmer provide the licensee appropriate sponsorship identification information for the enhanced on-air sponsorship identifications and for the required public file disclosure obligations.  Even using this FCC form questionnaire is not necessary, if the licensee can obtain that information using different words.  So, in at least some instances, broadcasters may be able to continue to use their existing certification language. Consult your attorney to see if the language you are using will comply with what the FCC will require when this order becomes effective. Continue Reading FCC Releases Decision on Broadcaster’s Obligations to Identify Foreign Government Sponsored Programming – There is Some Good News, and Some Bad News Affecting Issue Ads

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  • The FCC’s Media Bureau announced the opening of two filing windows for Class A TV, LPTV, and TV translator stations:
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With the verdict in the first criminal case against former President (and now candidate) Trump having been released, we can envision a whole raft of attack ads likely to be airing before the November elections.  The verdict is likely to also increase political divisions within the country, and potentially fuel many other nasty attack ads to be aired in political races from the top of the ballot to the local races that appear toward its end.  The use of artificial intelligence in such ads raises the prospect of even nastier attack ads, and its use raises a whole host of legal issues beyond defamation worries, though it raises those too (see our article here on defamation concerns about AI generated content, and our recent articles here and here about other potential FCC and state law liability arising from such ads).  Given the potential for a nasty election season getting even nastier, we thought that we would revisit our warning about broadcasters needing to assess the content of attack ads – particularly those from non-candidate groups. 

As we have written before, broadcasters (and local cable companies) are forbidden from editing the message of a candidate or rejecting that ad based on what is says except in extreme circumstances where the ad itself would violate a federal criminal law and possibly if it contains a false EAS alert (see, for instance, our articles here, here and here).  Section 315 of the Communications Act forbids a broadcaster or a local cable operator from censoring a candidate ad.  Because broadcasters cannot censor candidate ads, the Supreme Court has ruled that broadcasters are immune from any liability for the content of those ads.  (Note that this protection applies only to over-the-air broadcasters and local cable companies – the no censorship rule does not apply to cable networks or online distribution – see our articles here and here)  Other protections, such as Section 230, may apply to candidate ads placed on online platforms, but the circumstances in which the ad became part of the program offering need to be considered. Continue Reading Trump Verdict Raises Concerns About A Nasty Election Campaign Getting Nastier – Looking at a Broadcaster’s Potential Liability for Attack Ads