Programming Regulations

In anticipation of its July 10 open meeting, the FCC last week released its draft Order making changes to its rules requiring television stations to broadcast specific amounts of educational and informational programming directed to children.  The current rules require that stations air an average of three hours of such programming every week for every channel of programming they broadcast.  The current rules also impose all sorts of restrictions on programming for it to be considered “Core Programming” that can be counted toward meeting the three-hour per channel obligation.  The draft Order, if adopted at the July meeting, would ease some of the restrictions and, perhaps most importantly, eliminate the requirement that, for each multicast channel, three hours of unique educational programming directed to children be broadcast.

The Commission surveyed the current TV marketplace and found that, in the 15 years since it adopted the requirement that there be 3 hours of programming per multicast channel, much more educational and informational programming for children has become available – through public broadcasting and through new programming sources, including those delivered online.  Providing those three extra hours of educational and informational programming imposed significant cost burdens on broadcasters (even a weather radar channel carried with it a three-hour children’s programming obligation) for seemingly little benefit given the availability of so much other kids’ programming elsewhere.  The FCC draft Order also would change some of the specific requirements for station’s primary video channel.
Continue Reading

The FCC yesterday issued a News Release about an unusual action taken by the US Attorney’s Office in Massachusetts entering into a consent decree with a pirate radio operator, where the operator agreed to surrender all of its operating equipment to the FCC, and to stop broadcasting illegally.  If the operator is again caught operating

The license renewal cycle, about which we have been warning broadcasters for at least the last year (see, for instance, our posts here, here and here), is now upon us. June 3 is the filing deadline for license renewals for radio stations in Maryland, DC, Virginia and West Virginia. Radio stations (including FM translators and LPFMs) licensed to any community in any of those states should be filing their renewal applications in the FCC’s Licensing and Management System (LMS) by Monday’s deadline. The new FCC forms, as we wrote here, have been available since early May, so the renewal and the accompanying EEO program report should either be on file or ready to be filed in LMS by the June 3 filing deadline. These stations should also be running their postfiling license renewal announcements on the 1st and 16th of June, July and August. Radio stations in the next renewal group, in North and South Carolina, should begin their license renewal pre-filing announcements on June 1st and 16th as well, informing the public about the upcoming filing of their renewals due on August 1. See this article on pre-filing announcements for more information.

In addition, broadcasters in Arizona, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, Wyoming, and the District of Columbia that are part of an Employment Unit with 5 or more full-time employees should also be preparing to add to their online public inspection file their Annual EEO Public File Report. This report is due to be added to their online public files by June 1. A link to this report should also be placed on the station’s website, if it has a website.
Continue Reading

Perhaps some of the most controversial areas in broadcast advertising are those surrounding the advertising of cannabis products. While many states claim to have legalized marijuana, either for medical or recreational purposes, the Federal government still considers its possession and distribution a felony, and has specific laws that criminalize the use of radio frequencies, the Internet, and publications to promote its use. At the same time, the Federal government has recently decriminalized the possession of various hemp-based products with less than .3% THC (the psychoactive ingredient in marijuana) in the 2018 Farm Act. This has led to an explosion in the sale of CBD products – even though the production of such products is, for the most part, to only be conducted after either the adoption of state laws approved by the US Department of Agriculture or under Federal rules that the USDA is supposed to approve – none of which has happened yet. With all these issues outstanding, I was recently asked to talk about the advertising issues surrounding these products before a continuing legal education seminar sponsored by the New York State Bar Association. The slides from my presentation are available here.

As we have advised broadcasters before, because they are Federal licensees, and marijuana is still a federally prohibited substance, there is substantial risk in running any advertising for products supposedly “legal” in the state in which they are being used. These ads are particularly of concern during the license renewal cycle that begins next month, as objections from anti-marijuana activists could put this issue directly before the FCC. Even though states may have adopted rules governing advertising for these products, the federal law still poses great risks for broadcast licensees – just as it does for other federally-regulated entities. That is one of the reasons that federally-chartered and insured banks have stayed away from taking deposits from marijuana-related businesses (a bill is presently pending in Congress to allow banks to take deposits, but its prospects are uncertain).
Continue Reading

Looking for a brief explanation of the online public inspection file and Quarterly Issues Programs List, and how they will be viewed in connection with the upcoming license renewal cycle – including the potential fines for violations of the rules? The Indiana Broadcasters has just released this video of me discussing those issues available

The FCC tomorrow will hold a public forum on Electronic Newsroom Technique (ENT) of captioning live TV programming tomorrow from 1 PM to 4:45 PM Eastern Time (see the agenda here). The forum will be available for viewing online (go to the FCC webpage here for information about connecting). This forum may provide a

Questions about regulations from Washington don’t disappear just because you are spending time in Las Vegas, and this week’s NAB Convention brought discussion of many such issues. We’ll write about the discussion of antitrust issues that occurred during several sessions at the Convention in another post. But, today, we will report on news about more imminent actions on other issues pending before the FCC.

In his address to broadcasters at the conference, FCC Chairman Pai announced that the order on resolving translator interference complaints has been written and is now circulating among the Commissioners for review. The order is likely to be adopted at the FCC’s May meeting. We wrote here about the many suggestions on how to resolve complaints from full-power stations about interference from FM translators. While the Chairman did not go into detail on how the matter will be resolved, he did indicate that one proposal was likely to be adopted – that which would allow a translator that is allegedly causing interference to the regularly used signal of a full-power broadcast station to move to any open FM channel to resolve the interference. While that ability to change channels may not resolve all issues, particularly in urban areas where there is little available spectrum, it should be helpful in many other locations.
Continue Reading

The developments surrounding the regulation of cannabis products, and the impact of that regulation on the ability of broadcasters and other media companies to run ads for these products, continue on an almost daily basis.  Of course, the developments don’t all point in a single direction.  As described below, at the same time as the FDA schedules a hearing to look at cannabis products and the rules that should apply to them, the FTC and FDA together have written warning letters to CBD marketers advising them to stay away from making specific health claims about their products and to avoid promoting edible products.  What does this mean for media companies that have been approached to advertise these products?

We very recently wrote about the murky state of the law on CBD advertising (mentioning our continuing concerns about marijuana advertising even in states where it has been “legalized”).  In that article, we warned that broadcasters should be particularly concerned about selling advertising that markets CBD products to be ingested, or advertising which makes unsupported health claims.  In a joint action announced last week, the FTC and the FDA wrote letters to three sellers of CBD products, warning those companies that their marketing raised legal issues.  In these letters, the FTC expressed concern that the marketing contained health claims that could not be substantiated, and the FDA was concerned about the marketing of supplements and other CDB products to be taken orally that had not been approved by the FDA as either foods or medicines.  At least one of the letters cited a “salve” that presumably was not to be ingested, so the concern there seemed to be solely the specific health claims made for the product.  These letters reinforce the concerns that we expressed about advertising that contains specific health claims or which deals with products to be taken by mouth (either as dietary supplements, medicines or in other foods) – so stations should be especially wary of such ads. 
Continue Reading

The FCC has once again started sending out email notices to broadcast stations that are not in compliance with their online public file obligations. This follows a set of notices sent in early December, where the FCC first warned specific stations that there were issues with their online public inspection files (see our article here). The new email notices seem to be sent to two classes of stations – those that have done nothing to their online public files, and those that have activated the files, but not uploaded their Quarterly Issues/Programs Lists to those files. Some of the new notices follow up on notices sent in December. Both sets of notices ask for reports to the FCC from the stations that received the notice of corrective actions that they have taken.

We have been warning of the FCC’s concern about incomplete or inactive online public files for some time, and the potential impact that noncompliance could have on license renewals, which start for radio stations in Maryland, Virginia, West Virginia, and the District of Columbia in June 2019, with pre-filing public announcements of those filings due to begin on April 1 (see our article here). The renewal obligation for radio moves across the country with stations in a few specific states filing every other month in this three-year renewal cycle (for more information see, for instance, our articles here and here). Clearly, this set of emails is a warning to stations that the FCC is watching their public files, and that compliance problems will bring issues, and probably fines, if the files are not complete by license renewal time. The emails that have been sent out do not target every station in noncompliance with the public file obligations – but instead seem to just be a sampling of those stations – so do not relax and assume compliance simply because you did not receive any contact from the FCC.
Continue Reading

The FCC this week launched an inquiry into whether the TV Parental Guidelines and the organization that oversees these ratings provide accurate information to viewers as to which TV programs are appropriate for children. The FCC released a Public Notice to initiate the inquiry at the direction of Congress in the recently passed Consolidated Appropriations Bill – the Bill which ended the threat of a second government shutdown. That Bill contained a number of provisions directing various government agencies to take specific actions, including a direction to the FCC to provide a report to Congress in 90 days on the “extent to which the rating system matches the video content that is being shown” and whether the TV Parental Guidelines Oversight Monitoring Board (which oversees the ratings system) has the ability to address public concerns about the ratings. With the report due to be submitted to Congress by May 15, the FCC has asked for public comment on an expedited basis, with comments due March 12, and replies due just a week later on March 19.

The Board was established by a voluntary industry initiative approved by the FCC following a Congressional mandate for V-Chip technology in the Telecommunications Act of 1996. For the V-Chip to work, programs have to be rated. The ratings that resulted are familiar to most TV viewers and range from TV-Y programming appropriate for all children to TV-MA, appropriate only for mature audiences. Programs are also rated for Violence (“V”), Fantasy Violence in programming for older children (“FV”), Sexual Content (“S”), Suggestive Dialogue (“D”) and Strong Language (“L”). These ratings are applied to most TV and cable programming except news, sports, and ads. Based on the claims by interest groups that the ratings do not accurately describe the programming, Congress issued this directive to the FCC. What questions does the FCC ask in its request for comments from the public?
Continue Reading