Programming Regulations

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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On the anniversary of the events of September 11, 2001, we should all be thankful for the work of the nation’s first responders. Broadcasters and other members of the electronic communications industries play a part in the response to any emergency – including through their participation in the Emergency Alert System (EAS). In recent weeks, the FCC has been aggressively prosecuting parties who it has found to have transmitted false or misleading EAS alerts. This was exhibited this week through the Notice of Apparent Liability issued to CBS for an altered and shortened version of the EAS tones used in the background of a “Young Sheldon” episode, leading to a $272,000 proposed fine. Consent decrees were announced two weeks ago with broadcasters and cable programmers for similar violations (see FCC notices here, here, here and here), with payments to the US Treasury reaching $395,000. These follow past cases that we have written about here, here, here, here, and here, where fines have exceeded $1 million. The CBS case raised many interesting issues that have received comment elsewhere in recent days, including the First Amendment implications of restrictions on the use of EAS tones in programming, and whether an altered tone in the background of an entertainment program, where audiences would seemingly realize there was no actual emergency, should really be the subject of an enforcement action. But the question that has not received much attention is one raised by the FCC’s Enforcement Advisory released last month addressing the improper use of EAS alert tones and the Wireless Emergency Alert tones used by wireless carriers (known as WEA alerts), and simulations of those tones. That advisory raises questions of just how far the FCC’s jurisdiction in this area goes – could it reach beyond the broadcasters and cable programmers to which it has already been applied and extend to online programming services?

This question arises because the FCC’s Enforcement Advisory addresses not only EAS tones used by broadcasters and cable systems, but also the WEA alert tones voluntarily deployed by most wireless providers. The advisory makes clear that the use of either EAS or WEA tones without a real emergency is a violation of the FCC rules. The Advisory states:

The use of simulated or actual EAS codes or the EAS or WEA Attention Signals (which are composed of two tones transmitted simultaneously), for nonauthorized purposes—such as commercial or entertainment purposes—can confuse people or lead to “alert fatigue,” whereby the public becomes desensitized to the alerts, leading people to ignore potentially life-saving warnings and information.

The FCC goes on to state:

the use of the WEA common audio attention signal, or a recording or simulation thereof, in any circumstance other than in an actual National, State or Local Area emergency, authorized test, or except as designed and used for PSAs by federal, state, local, tribal and territorial entities, is strictly prohibited.
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The FCC’s recent action reforming many of the rules governing the broadcast of TV programming serving the educational and informational needs of children will go into effect on September 16 (see our articles here and here). Yet, at the same time as it was announcing the process by which these rules will be implemented (see our post from yesterday), it released two consent decrees resolving apparent violations of the old KidVid rules revealed in license renewal applications filed many years ago. In one case, the FCC agreed to a financial penalty of $109,000 to be paid by Nexstar in connection with violations at two stations – one in Arkansas and one in Texas. These violations apparently first arose in connection with license renewals filed almost 15 years ago. In another case involving a religious commercial station in Pullman, Washington, the financial penalty was $30,700 for violations that were identified in connection with its 2014 license renewal application. In both cases, the licensees agreed, in addition to the financial penalties, to institute compliance plans to ensure that future violations of the children’s television rules do not occur at any commonly owned stations.

The Consent Decree entered into by the Washington station penalized the station for preempting children’s programming for station fundraisers so that it did not meet the obligation to air an average of 3 hours of weekly “core programming” addressing children’s educational and informational needs. Certain supplemental programming claimed by the station to substitute for the underperformance was aired outside of the hours in which “core programming” must air to receive credit toward a station’s obligations (currently those hours are 7 AM to 10 PM, but they will expand to 6 AM to 10 PM on September 16). The FCC also identified errors in the Quarterly Children’s Television Reports submitted by the station (as we reported yesterday, these reports will be replaced by an annual filing after the final quarterly report that is due by October 10).
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With the summer winding down, you can expect that come September, like everywhere else, Washington will leap back to life and the government will try to accomplish what they can before the end of the year. That will no doubt mean some regulatory actions (and potentially court actions and legislative actions) affecting broadcasters this Fall, though what they are remains to be seen. In the meantime, there is plenty to keep broadcasters busy. While September is one of those months in which there are few of the normally recurring filing deadlines (no EEO reports, renewal filings or quarterly reports need to be submitted during the month), there is one big deadline that no commercial broadcaster should forget – the filing of annual regulatory fees.

We understand that there is an order circulating at the FCC right now to set the final amount of the regulatory fees for the year. As these fees must be paid before October 1 when the government’s new fiscal year begins, we can expect that order shortly, with fees due at some point in September. As the Commission’s Notice of Proposed Rulemaking proposed significant unexplained increases in the fees paid by radio, and a change to the methodology used to compete TV fees, moving from a DMA-based fee to one calculated based on an individual station’s predicted coverage (which had the effect of raising some fees, especially for high-powered VHF stations, while lowering others), a number of broadcasters and the NAB complained about those proposals. Watch for the FCC’s decision in the coming days to see how it addresses these complaints about the proposed fees, and to see when the fees will be due.
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Notice was published in the Federal Register today of the FCC’s changes in the children’s television rules – setting the effective date for most of those new rules as September 16. The elimination of the obligation to air three hours of children’s educational and informational programming for each digital multicast channel will expire on that

July is an important month for regulatory filings – even though it is one of those months with no FCC submissions tied to any license renewal dates. Instead, quarterly obligations arise this month, the most important of which will have an impact in the ongoing license renewal cycle that began in June (see last month’s update on regulatory dates, here).  Even though there are no renewal filing deadlines this month, radio stations in Maryland, Virginia, West Virginia and DC must continue their on-air post-filing announcements on the 1st and 16th of the month.  On these same days, pre-filing announcements must be run by radio stations in North and South Carolina, who file their renewals by August 1.  Stations in Florida and Puerto Rico, who file on October 1, should be prepared to start their pre-filing announcements on August 1.  See our article here on pre-filing announcements.

Perhaps the most important date this month is July 10, when all full power AM, FM, Class A TV and full power TV stations must place their quarterly issues/programs lists in their online public inspection files.  The issues/programs list should include details of important issues affecting a station’s community, and the station’s programming aired during April, May, and June that addressed those issues.  The list should include the time, date, duration and title of each program, along with a brief description of each program and how that program relates to a relevant community issue.  We have written many times about the importance of these lists and the fact that the FCC will likely be reviewing online public files for their existence and completeness during the license renewal cycle – and imposing fines on stations that do not have a complete set of these lists for the entire license renewal period (see, for instance, our articles here, here and here).  So be sure to get these important documents – the only official documents that the FCC requires to show how a station has met its overall obligation to serve the public interest – into your online public file by July 10. 
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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.
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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