Programming Regulations

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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On Friday, the FCC’s Audio Division released its first decision in the current renewal cycle addressing the issue of incomplete public inspection files and missing Quarterly Issues Programs List, proposing to fine an AM station in Virginia $15,000 for apparently not having any Issues Programs Lists in its online public inspection file for the entire renewal term.  The decision, found here, should serve as a warning to broadcasters to make sure that their online files are complete and up to date.

The facts of this case, summarized below, seem particularly egregious as the station had the same issue of missing issues programs lists when its last renewal was filed 8 years ago.  Nevertheless, we can expect that this won’t be the last fine we will see for stations that have incomplete public files.  The FCC has been sending out warnings about incomplete online files for the last year, and we’ve been warning (see, for instance, here and here) that, with all public inspection files now being available online, the FCC will likely be issuing fines during this renewal cycle if documents are missing from the file.  The Quarterly Issues Programs lists are seen by the FCC as being particularly important as they are the only official documents demonstrating the public interest programming that was actually broadcast by a station (see our article here). 
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We’ve written many times about the legal concerns about advertising for various vices – including e-cigs (see, for instance, our article here) and CBD (see for instance our articles here and here). The issues with these products never seem to go away, and in recent days, they have become even more pronounced. On e-cigs and vaping products, we have advised that ads need to avoid health claims, must contain an FDA-required warning that they contain nicotine and can be addictive (see our articles here and here), and that they should not be aired during programming targeting children (see our article here). We recently also added a warning that action might be coming against flavored vaping products. This week, the headlines are full of news announcing a new Federal ban on flavored vaping products that may go into effect in the next few months, following a state ban that was recently instituted in Michigan. On CBD, in addition to concerns about laws that still make the product illegal in many states, we’ve discussed concerns about whether the product is legally produced from hemp (see our article here), and highlighted prohibitions on health claims (see our article here) and ads directed to an underage audience. This week, we saw another set of warnings from the FTC targeting advertisers making specific health claims about their products. These actions should serve as a warning to broadcasters and other media companies to proceed very carefully, only after receiving legal advice, before jumping into advertising for these products.

On the vaping front, Michigan recently became the first state to totally ban flavored e-cigarettes – including mint and menthol flavored vaping products. See the Michigan Department of Health and Human Services “Finding of Emergency” here, and the Governor’s announcement here. While there was some indication that the vaping industry might fight that ban, with the news yesterday that the Trump administration plans to ban these products on a Federal level (see this statement from the FDA indicating that it will soon announce specific rules for the Federal ban on these products), broadcasters need to be concerned about running advertising for products that may be considered illegal. With the recent rash of other serious health consequences of vaping, it is quite possible that further regulation of these products will follow, and so may lawsuits from the vaping industry. In the interim, the FDA notes that it will be running advertising to combat underage vaping and to warn about the potential health issues, so look for those advertising opportunities.
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