Programming Regulations

This weekend, the New York Times ran an article seemingly critical of Facebook for not rejecting ads  from political candidates that contained false statements of factWe have already written that this policy of Facebook matches the policy that Congress has imposed on broadcast stations and local cable franchisees who sell time to political candidates – they cannot refuse an ad from a candidate’s authorized campaign committee based on its content – even if it is false or even defamatory (see our posts here and here for more on the FCC’s “no censorship” rule that applies to broadcasting and local cable systems).  As this Times article again raises this issue, we thought that we should again provide a brief recap of the rules that apply to broadcast and local cable political ad sales, and contrast these rules to those that currently apply to online advertising.

As stated above, broadcast stations and local cable systems cannot censor candidate ads – meaning that they cannot reject these ads based on their content.  Commercial broadcast stations cannot even adopt a policy that says that they will not accept ads from federal candidates, as there is a right of “reasonable access” (see our article here, and as applied here to fringe candidates) that compels broadcast stations to sell reasonable amounts of time to federal candidates who request it.  Contrast this to, for instance, Twitter, which decided to ban all candidate advertising on its platform (see our article here).  There is no right of reasonable access to broadcast stations for state and local candidates, though once a station decides to sell advertising time in a particular race, all other rules, including the “no censorship” rule, apply to these ads (see our article here).  Local cable systems are not required to sell ads to any political candidates but, like broadcasters with respect to state and local candidates, once a local cable system sells advertising time to candidates in a particular race, all other FCC political rules apply.  National cable networks (in contrast to the local systems themselves) have never been brought under the FCC’s political advertising rules for access, censorship or any other requirements – although from time to time there have been questions as to whether those rules should apply.  So cable networks, at the present time, are more like online advertising, where the FCC rules do not apply.
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The PIRATE Act, to crack down on pirate radio, passed the Senate this week after having passed in the House of Representatives last year.  It now goes to the President for signature.  We’ve written about this legislation several times before (see for instance, our articles here and here).  In this final version, it provides more tools for the FCC to crack down on pirate radio operators more quickly, plus it imposes obligations on the FCC to make more regularized enforcement efforts against pirate radio operators, although without necessarily providing any more resources with which to do so.

The bill increases the fine for pirate radio to a maximum of $100,000 per day of operation, to a maximum of $2,000,000.  Fines can be imposed on anyone who “knowingly does or causes or suffers to be done any pirate radio broadcasting.”  This would seemingly allow the FCC to go after not just the operators themselves, but also those who “suffer to be done” any pirate radio operation, which could possibly implicate landlords who knowingly allow pirate radio operations on their premises, consistent with some recent FCC cases (see, for instance, the one we wrote about here).  In addition, the bill allows the FCC to immediately issue a Notice of Apparent Liability (a notice of a proposed fine) without having to first issue a Notice of Violation (a notice suggesting that there is a violation of the rules, but allowing the person accused of violating the rule to first respond before the FCC can issue the proposed fine).  The accused party will still be able to argue that no fine should be imposed when it receives the Notice of Apparent Liability (e.g., the party could argue that it had a license or that it did not really broadcast at all, or at a power level that requires FCC approval), but the two-step process currently needed before issuing a proposed fine would no longer be required, thus speeding up enforcement efforts. 
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Here we are, more than a week into the New Year, and already we’ve written about a host of regulatory issues that will be facing broadcasters in the first month of the year (see for instance our articles here and here).  But what about the rest of the year?  As we do most years,

The FCC recently proposed modifying its rules prohibiting a radio station in one service (either AM or FM) from duplicating more than 25% of the weekly programming of another station in the same service if there is more than 50% overlap of the principal community contour of either of the stations.  The FCC this

With many Americans using the holiday season to rest and recharge, broadcasters should do the same but not forget that January is a busy month for complying with several important regulatory deadlines for broadcast stations.  These include dates that regularly occur for broadcasters, as well as some unique to this month.  In fact, with the start of the lowest unit rate windows for primaries and caucuses in many states, January is a very busy regulatory month.  So don’t head off to Grandma’s house without making sure that you have all of your regulatory obligations under control.

One date applicable to all full-power stations is the requirement that, by Friday, January 10, 2020, all commercial and noncommercial radio and television stations must upload to their online public file their quarterly issues/programs list for the period covering October 1 – December 31, 2019.  The issues/programs list demonstrates the station’s “most significant treatment of community issues” during the three-month period covered by each quarterly report.  We wrote about the importance of these reports many times (see, for instance, our posts here and here).  With all public files now online, FCC staff, viewers or listeners, or anyone with an internet connection can easily look at your public file, see when you uploaded your Quarterly Report, and review the contents of it.  In the current renewal cycle, the FCC has issued two fines of $15,000 each to stations that did not bother with the preparation of these lists (see our posts here and here on those fines).  In past years, the FCC has shown a willingness to fine stations or hold up their license renewals or both (see here and here) over public file issues where there was some but not complete compliance with the obligations to retain these issues/programs lists for the entire renewal term.  For a short video on the basics of the quarterly issues/programs list and the online public inspection file, see here.
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We have written many times about the concerns regarding the marketing of CBD products on broadcast stations. As we wrote here, here, and here, the FDA and FTC have repeatedly warned makers of these products that they cannot make specific health claims about the products and cannot market products that are intended to be ingested. In a recent action, the FDA issued 15 warning letters to companies marketing CBD products – warning them about marketing both for edible products and for health claims (see the FDA press release here with links to all 15 warning letters). The FDA also released a Consumer Update warning consumers about many of the potential risks of CBD use and noting that, except for a single epilepsy drug, it has not approved any medical uses of these products.

These warning letters include a litany of advertising issues that the FDA found problematic, beyond the simple issues of advertising products to be ingested and making specific health claims. In several letters (including those here, here and here), the FDA suggested that even claims about CBD being good to relieve “aches and pains” or that it “reduces inflammation” exceeded the legal limits on marketing. Even claims that oils used for “skin conditions, spot pain management and sore joints,” qualified with the fact that the uses were “still being studied,” were noted as being concerns. Advertising about products aimed at children was noted as being particularly problematic as use by “vulnerable populations” is a real concern where no FDA-recognized research has established the safety of those products. Animal products were also recognized as a concern, as they also have not been approved as being safe and effective.
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Earlier this week, the FCC released a Public Notice announcing its plans for the initiation of new annual reporting requirements for TV stations under the revised Children’s Television Rules. As we wrote here, the FCC this summer adopted changes in the rules governing the broadcast of educational and informational programming directed to children. These changes included the abolition of the Quarterly Children’s Television Reports and their replacement with an annual Children’s Report to detail a station’s performance in meeting the new educational and informational programming requirements. Earlier this fall, the FCC released guidance on the reporting of information from the third quarter of this year, as the new rules became effective on September 16 (see our article here). The Public Notice released this week covers the full transition to the annual reports.

The FCC anticipates the revised annual report will be ready for use in the FCC’s LMS database by January 1, 2020.  Children’s television programming aired on or after the September 16, 2019 effective date of the new rules will be reported by commercial full power and Class A television stations on a broadcaster’s first annual Children’s Report, which will be due no later than January 30, 2020. The FCC’s Media Bureau will issue another public notice announcing the actual effective date of the revised form.    
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On October 31, the US Department of Agriculture published in the Federal Register interim rules governing the production of industrial hemp under the provisions of the 2018 Farm Act (see the USDA press release here).  These rules will allow the USDA to approve state and tribal plans for the regulation of hemp production.  It also allows for the USDA to authorize growers in states that have not adopted their own plans (or that have restricted the production of hemp).  The USDA notes the interest in hemp production driven by interest in CBD products derived from hemp.  While these rules do not address advertising issues specifically, they do ease some of the concerns that many broadcasters and other media companies have had about advertising CBD products when it was unclear that the production of those products was legal.  We wrote about some of those concerns many times, including in our posts here and here.

These interim rules recognize that CBD products can already be legally produced under provisions of the 2014 Farm Act.  As we noted here, that Act authorized experimental production of hemp products.  The 2014 Act also permitted research into commercial exploitation of hemp products – probably permitting greater production than Congress or the USDA expected when the Act was adopted.  The October 31 public notice states that production under the 2014 Act will be allowed to continue for the next three years until permanent rules implementing the 2018 Act are adopted.  In fact, the USDA notes that it expects that over 50% of hemp production will be by those operating under these grandfathered 2014 licenses for the next year.  This seems to recognize that a significant amount of production already underway is in fact legal under federal law, ameliorating some of the concerns as to whether CBD products now being sold could have been legally produced. 
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We recently wrote about some of the challenges for e-cig advertising based on Federal and state actions to restrict the sale of flavored vaping products. Even though advertising for e-cigarettes is not currently illegal at the Federal level (see our articles here and here that discuss the disclaimer that must accompany those ads and the requirement that ads should not make health claims or target children), there are moves to change that position (including the announcement we wrote about last month of an anticipated ban on flavored vaping products). While changes to those rules have not yet been implemented , a recent set of letters from a Congressional committee to the manufacturers of e-cigs suggests that they stop marketing vaping products (or at least report to the committee whether or not they have stopped such advertising) while various government reviews of health issues associated with vaping and the marketing of vaping products are taking place. Among these reviews is a just-announced proceeding by the Federal Trade Commission to look at the marketing practices of e-cig companies. The detailed questions sent to the e-cig companies indicate that the FTC intends a very thorough review of all aspects of these marketing programs.

These Federal actions have been combined with announcements in many states looking toward significant regulation of the vaping industry. As we wrote last month, Michigan’s governor has announced a ban on the sale of flavored e-cig products. The text of the order implementing that announcement has now been released. Other states are following suit, with a ban in Massachusetts reportedly in place, and actions in Washington State and Ohio being considered. Many municipalities are also looking at similar restrictions.
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October is one of the busiest months on the broadcaster’s regulatory calendar. On October 1, EEO Public Inspection file reports are due in the online public file of stations that are part of an Employment Unit with 5 or more full-time employees in Alaska, Florida, Hawaii, Iowa, Missouri, Oregon, Washington, American Samoa, Guam, the Mariana Islands, Puerto Rico, Saipan, and the Virgin Islands. An employment unit is one or more commonly controlled stations in the same geographic area that share at least one employee.

October 1 is also the deadline for license renewal filings by radio stations (including FM translators and LPFM stations) in Florida, Puerto Rico and the Virgin Islands. On the 1st and 16th of the month, stations in those states, and in North and South Carolina, need to run post-filing announcements on the air informing listeners about the filing of their license renewal applications. Pre-filing announcements about the upcoming filing of license renewal applications by radio stations in Alabama and Georgia also are to run on the 1st and 16th. See our post here on the FCC’s reminder about the pre- and post-filing announcements.
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