Programming Regulations

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April brings to an end the four-year license renewal cycle that began in 2019 with the filing of renewals by radio stations in the Washington DC area. Our monthly updates, like this one, will thus not be highlighting license renewal dates again until mid-2027.  But there are always other regulatory dates which broadcasters need to note.  There are EEO Public File reports due in April for certain states (as they are every other month), the requirement for all full-power broadcast stations to upload to their public file their Quarterly Issues Programs Lists, and there are a number of rulemaking comment deadlines of interest to broadcasters.  So, let’s look at some of the important regulatory dates for broadcasters in April.   

As April 1 is a Saturday, April 3 is the deadline by which television stations, LPTV stations, TV translators and Class A stations in Delaware and Pennsylvania must file their license renewal applications, bringing to a close the current TV license renewal cycle.  Renewal applications must be accompanied by FCC Form 2100, Schedule 396 Broadcast EEO Program Report (except for LPFMs and TV translators).  Stations filing for renewal of their license should make sure that all documents required to be uploaded to the station’s online public file are complete and were uploaded on time.  Be sure to read the instructions for the license renewal application and consult with your advisors if you have questions, especially if you have noticed any discrepancies in your online public file or political file.  Issues with the public file have repeatedly led to fines imposed on broadcasters during renewal cycles.…

Continue Reading April Regulatory Dates for Broadcasters – License Renewals, EEO Reports, Quarterly Issues/Programs Lists, Rulemaking Comments Including FTC Comments on Noncompete Agreements, and More

Every year at about this time, we worry that radio stations may be tempted to run some big April Fools’ Day stunt.  But, with the country seemingly on edge because of natural and human emergencies in the news almost every day, a prank that may seem funny to some could trigger concerns with others.  As we do every year about this time, we need to play our role as attorneys and ruin any fun that you may be planning by repeating our reminder that broadcasters need to be careful with any on-air pranks, jokes or other on-air bits prepared especially for April 1.  Particularly as the day falls on a Saturday this year, and less experienced personnel who may not be as familiar with legal concerns may be manning stations, a warning seems again to be appropriate.  While a little fun is OK, remember that the FCC has a rule against on-air hoaxes, and there can be liability issues with false alerts that are run on a station.  Issues like these can arise at any time, but a broadcaster’s temptation to go over the line is probably highest on April 1.

The FCC’s rule against broadcast hoaxes, Section 73.1217, prevents stations from running any information about a “crime or catastrophe” on the air, if the broadcaster (1) knows the information to be false, (2) it is reasonably foreseeable that the broadcast of the material will cause substantial public harm and (3) public harm is in fact caused.  Public harm is defined as “direct and actual damage to property or to the health or safety of the general public, or diversion of law enforcement or other public health and safety authorities from their duties.”  If you air a program that fits within this definition and causes a public harm, you should expect to be fined by the FCC.…

Continue Reading Broadcasters Beware – April Fools Day Can Trigger FCC Concerns

This week, the FCC released two Notices of Apparent Liability proposing to impose big fines on two pirate radio operators.  Using the enforcement tools – particularly the higher fines – authorized by the PIRATE Act passed by Congress in 2020, the FCC proposed a to impose a fine of $2,316,034 on one alleged operator of a pirate radio station in the New York City area, and a fine of $80,000 fine on another operator of a pirate station in Oregon.  We’ve written in the past about the FCC sending warning letters to landowners and pirate radio operators threatening big fines if they don’t cease operations (or, for landowners, if they don’t force their tenants to cease illegal operations).  But, as noted in the FCC’s Press Release, this is the first time since the adoption of the PIRATE Act that the FCC has gone beyond the warning phase to issue these notices of multimillion dollar “forfeitures” (fines) on pirate operators and, in the New York case, use the full force permitted by the law to levy the multimillion dollar fine.  Theoretically, the alleged pirates could respond to the Notices and contest the fines, but the FCC’s decisions seem adamant that these operators should be paying a substantial penalty.  It is probably no coincidence that these Notices were issued a little over a month after the FCC sent its annual report to Congress on its activities under the PIRATE Act, promising increased efforts to combat pirate radio in the new year. 

The New York pirate appears particularly brazen, prompting the largest fine yet levied against a pirate radio operator.  According to the Notice of Apparent Liability, two individuals have operated a pirate radio station in the New York borough of Queens for over a decade.  In 2013, the FCC’s Enforcement Bureau issued three Notices of Unauthorized Operation to the operators, warning them that their operations were illegal and needed to stop.  In 2014, agents personally confronted one of the operators who admitted ownership of the equipment, and again told him to stop operating.  When operations continued, a proposed fine of $20,000 was issued in 2015, but never paid or contested.   In 2016, as operations had continued, Federal Marshalls seized the station’s equipment.  Yet the pirate came back and continued operations – even using a website and social media to promote programs hosted by the two individuals named in this week’s Notice.  The FCC emphasized that the repeated, ongoing nature of the violation even after multiple warnings and prior government action prompted its substantial fine.  The PIRATE statute limits fines to $2,316,034 – otherwise, the FCC would have proposed a fine ten times larger, given the nature of the violation and the pirate’s apparent disregard of the FCC’s prior attempts to enforce the law.…

Continue Reading Two Million Dollar Fine for Pirate Radio – Don’t Cross the Commission Again After You’ve Been Caught Once, Especially as More Enforcement Appears to be on the Way

Yesterday, I wrote about the history of the NCAA’s assembling of the rights to an array of trademarks associated with this month’s basketball tournament.  Today, I will provide some examples of the activities that can bring unwanted NCAA attention to your advertisements or broadcasting of advertising, as well as one more issue that should be…

With Selection Sunday this weekend, the 2023 NCAA Collegiate Basketball Tournament is about to begin.  As faithful readers of this blog know, broadcasters, publishers and other businesses need to be wary about potential claims arising from their use of terms and logos associated with the tournament.

NCAA Trademarks

The NCAA owns the well-known marks March Madness®, The Big Dance®, Final Four®, Women’s Final Four®, Elite Eight,® and The Road to the Final Four® (with and without the word “The”), each of which is a federally registered trademark. The NCAA does not own “Sweet Sixteen” – someone else does – but it does have federal registrations for NCAA Sweet Sixteen® and NCAA Sweet 16®.

The NCAA also has federal registrations for some lesser-known marks, including March Mayhem®, March Is On®,Midnight Madness®, Selection Sunday®, 68 Teams, One Dream®, And Then There Were Four® and NCAA Fast Break®. (It also has a registration for SPRING MADNESS®in connectionwith its soccer tournaments.)

Some of these marks are used to promote the basketball tournament or the coverage of the tournament, while others are used on merchandise, such as t-shirts.  The NCAA also uses (or licenses) variations on these marks without seeking registration, but it can claim common law rights in those marks, such as March Madness Live, March Madness Music Festival and Final Four Fan Fest.…

Continue Reading March Madness and Advertising: Use of NCAA Trademarks (2023 Update – Part 1)

Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC’s Media Bureau designated for evidentiary hearing a series of applications that, if granted, would transfer control of TEGNA
…

With a number of upcoming regulatory deadlines approaching, we thought that this would be a good time to remind broadcasters of regulatory obligations that they may have, with the passage of time, forgotten.  One of those obligations is the requirement to file EAS Test Reporting System (ETRS) Form One by February 28, 2023 – next Tuesday.  Filing instructions are provided in the Public Notice issued by the FCC earlier this year (see also our articles here and here).  All EAS Participants – including Low Power FM stations (LPFM), Class D non-commercial educational FM stations, and EAS Participants that are silent pursuant to a grant of Special Temporary Authority – are required to register and file in ETRS, with the following exceptions:  Analog and digital low power television (LPTV) stations that operate as television broadcast translator stations, FM broadcast booster stations and FM translator stations that entirely rebroadcast the programming of other local FM broadcast stations, and analog and digital broadcast stations that operate as satellites or repeaters of a hub station (or common studio or control point if there is no hub station) and rebroadcast 100 percent of the programming of the hub station (or common studio or control point).  This form provides basic information about EAS participants to the FCC. The form requests basic information about contact persons at a station, the model of EAS equipment used, and monitoring assignments under the legacy EAS system. In effect, it registers all EAS users in the ETRS system so that they can file reports on (using ETRS Forms Two and Three) about the performance of Nationwide EAS tests that are periodically conducted.  We are expecting a Nationwide Test in 2023.  While the FCC has not in the past fined stations who failed to file these reports, there are indications that the filing requirement may be taken much more seriously this year.  So, remember to file – and carefully read the Public Notice and the form to make sure that all necessary information is properly uploaded.

On the subject of EAS, the FCC recently released a new 2023 version of the EAS Operating Handbook. A copy of the Handbook must be located at normal duty positions of station operators or at the location of EAS equipment where it can be immediately available to staff responsible for authenticating messages and initiating actions. The handbook provides duty operators information about what to do when EAS alerts (tests or real activations of the system) are received by the station.  The new handbook updates the old handbook in a limited fashion, but it also provides stations an opportunity to update their own practices as the Handbook requires that the broadcaster provide information in spaces provided in the Handbook as to the broadcaster’s specific equipment and procedures at their stations.  Stations should download this Handbook and make sure that it is available as required. …

Continue Reading Regulatory Bits and Pieces – ETRS Form One and Delayed Public File Uploads Due by February 28, Updated EAS Handbook Required for All Stations

Early this year, we provided our look into the crystal ball to see what was on the FCC’s agenda for broadcasters in  the coming year.  Yesterday, the FCC published in the Federal Register its own list – its Semiannual Regulatory Agenda – listing an inventory of the matters at the FCC awaiting Commission action.  The…

The recent $504,000 fine proposed to be levied on Fox for the use of simulated EAS tones in an NFL football promotion (see FCC’s Notice of Apparent Liability here) is obviously a message to broadcasters to remember that EAS tones can only be used for real alerts or authorized tests of the system – and not in any advertising, programming or promotions.  This is consistent with past big fines for improper use of these simulated EAS tones (see, for instance, the cases we wrote about here, here, and here).  This aspect of the Fox case – don’t use EAS tones except for real EAS purposes – has been well noted.  What has received less attention are the small details that went into this big proposed fine.

The most obvious of these details was the short duration of the EAS tones that led to the violation itself – the use was only 3 seconds long.  The Commission found that even a 3 second use of EAS tones was sufficient to confuse the public about a possible emergency or to contribute to possible desensitization of the public to the importance of these tones. But this is not the first situation where the FCC has imposed a very large fine for a violation that occurred only very briefly – one of the most obvious situations being a $325,000 indecency fine for a 3 second image of sexual organs in a corner of a TV screen when a station broadcast a screenshot of the homepage of an adult website to illustrate a news story about a former adult film star who became a local first responder (see our summary of that case, here).  Both in the recent EAS case and in the case of the indecency violation, the issues were not caught in the production of the on-air segments or in any pre-broadcast review of the programming before it was broadcast.  Both cases serve as a reminder that stations need to not take anything for granted in their pre-broadcast review of programming segments, reinforcing the need to carefully inspect everything that goes out over the air, as even 3 second violations can lead to fines that exceed $100,000 per second.…

Continue Reading $504,000 Proposed Fine for Improper Use of EAS Tones – How Little Things Can Add Up to Big FCC Penalties