Programming Regulations

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Should broadcasters be able to originate programming on FM translators?  Playing off the proposal to allow limited amounts of programming on FM boosters – basically the insertion of local ads, news, or emergency alerts – in the zonecasting proposal on which the FCC took comments earlier this year (see our summary here), a group of broadcasters has taken the proposal one step further, and asked if translators (including those FM translators rebroadcasting AM stations) should not have the same rights proposed for boosters.  Comments on this proposal (available here) are due July 23.

These comments were originally filed in connection with the zonecasting proceeding (see our summary of the comments here).  But they go beyond the zonecasting proposal for limited amounts of origination programming on boosters, and seek to expand the amount of time that translators can originate programming different than their primary stations.  The advocates propose not just the substitution of short messages, but to allow translators to originate as much as 40 hours per week of programming different than that offered on their primary stations.  And the proposal also suggests that translators be allowed to be located within the primary station’s 45 dbu contour, rather than within the 60 dbu contour of an FM primary station as now required (playing off the 45 dbu contour now being used as the one in which primary FM stations can claim protection from interference from FM translators – see our article here).
Continue Reading FCC Seeking Comment on the Origination of Programming by FM Translators

The question about what to do with the protections offered by Section 230 of the Communications Decency Act took another turn this week, when Joe Biden suggested that online platforms needed to take responsibility for the content posted on them and correct misinformation in those ads.  That position is seemingly the opposite of the President’s Executive Order about which we wrote here and here, which seemingly suggests that no censorship should be applied against political speech on these platforms – or certainly no censorship against certain kinds of speech that is not applied against speech from all other parties on that platform.  Facebook almost immediately posted this response, defending its position not to censor candidate’s speech and analogizing it to the position that television and radio broadcasters are forced by Congress to take – where by law they are not allowed to refuse to run a political ad from a candidate because of its content and they are shielded from liability because of their inability to censor these candidate ads.  Facebook took the position that, if Congress wants to regulate political speech, it should pass laws to do so, but that Facebook would not itself be a censor.  That position reminded us of an article that we wrote back in January when there were calls to make Facebook stop running political ads comparing the regulatory schemes that apply to political ads on different platforms.  Given its new relevance in light of the sudden prominence of the debate over Section 230, we thought that we would rerun our earlier article.  Here it is – and we note how we seemingly anticipated the current debate in our last paragraph:

[In January], the New York Times ran an article seemingly critical of Facebook for not rejecting ads  from political candidates that contained false statements of fact.  We 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.
Continue Reading Facebook Defends Not Censoring Political Ads – Looking at the Differences In Regulation of Political Speech on Different Communications Platforms

We summarized the provisions of Section 230 of the Communications Decency Act on Monday, looking at the application of the law that the President has sought to change through the Executive Order released last week.  Today, it’s time to look at what the Executive Order purports to do and what practical effects it might have on media companies, including broadcasters.  As we noted in our first article, the reach of Section 230 is broad enough that any company with an online presence where content is created and posted by someone other than the site owner is protected by Section 230 – so that would include the online properties of almost every media company has.

The Executive Order has four distinct action items directed to different parts of the government.  The first, which has perhaps received the most publicity in the broadcast world, is the President’s direction that the Department of Commerce, acting through its National Telecommunications and Information Administration (NTIA – the Executive Branch office principally responsible for telecommunications policy), file a petition for rulemaking at the FCC.  This petition would ask that the FCC review Section 230 to determine if the protections afforded by the law are really as broad as they have been interpreted by the courts.  The Executive Order suggests that the FCC should review whether the ability granted by the law for an online platform to curate content posted by others – the “Good Samaritan” provisions that we wrote about on Monday – could trigger a loss of protections from civil liability for third-party content if sites exercise the curation rights in a manner that is not deemed to be in “good faith”.  The Executive Order directs this inquiry even though the protections for hosting online content are in a separate subsection of the law from the language granting the ability to curate content, and the protections from liability for third-party content contain no good faith language.  The Order suggests that the FCC should find that there would not be “good faith” if the reasons given for the curation actions were “pretextual,” if there was no notice and right to be heard by the party whose content is curated, and if the curation is contrary to the service’s terms of use.  The Order suggests that the FCC should adopt rules to clarify these issues.
Continue Reading Looking at the President’s Executive Order on Online Media – Part 2, What Real Risk Does It Pose for Media Companies?

When the President issues an Executive Order asking for examination of Section 230 of the Communications Decency Act, which permitted the growth of so many Internet companies, broadcasters and other media companies ask what effect the action may have on their operations.  On an initial reading, the impact of the order is very uncertain, as much of it simply calls on other government agencies to review the actions of online platforms.  But, given its focus on “online platforms” subject to the immunity from liability afforded by Section 230, and given the broad reach of Section 230 protections as interpreted by the Courts to cover any website or web platform that hosts content produced by others, the ultimate implications of any change in policy affecting these protections could be profound.  A change in policy could affect not only the huge online platforms that it appears to target, but even media companies that allow public comments on their stories, contests that call for the posting of content developed by third parties to be judged for purposes of awarding prizes, or the sites of content aggregators who post content developed by others (e.g. podcast hosting platforms).

Today, we will look at what Section 230 is, and the practical implications of the loss of its protections would have for online services.  The implications include the potential for even greater censorship by these platforms of what is being posted online – seemingly the opposite of the intent of the Executive Order triggered by the perceived limitations imposed on tweets of the President and on the social media posts of other conservative commentators.   In a later post, we’ll look at some of the other provisions of the Executive Order, and the actions that it is asks other government agencies (including the FCC and the FTC) to take. 
Continue Reading The President’s Executive Order on Online Media – What Does Section 230 of the Communications Decency Act Provide?

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

  • The FCC released the agenda for its June 9 Open Meeting announcing that it will consider an

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The FCC currently requires what they now call “video description” by commercial television broadcast stations that are affiliated with one of the top four commercial television broadcast networks (ABC, CBS, Fox, and NBC) and located in the top 60 television markets.  Video description is also required of MVPDs with 50,000 or more subscribers passing through content of the Top 5 cable networks.  TV stations subject to the rules are required to provide on a subchannel audio descriptions of at least 50 hours of video programming per calendar quarter during prime time or on children’s programming, as well as an additional 37.5 hours of video-described programming per calendar quarter at any time between 6 a.m. and midnight.  These descriptions are provided by the networks and passed through by the local station affiliates to allow the blind and visually impaired people to follow the action in video programming on their TVs.

In a Notice of Proposed Rulemaking adopted in April, the FCC proposes to expand the video description requirements to network-affiliated stations in television markets 61 through 100 starting January 1, 2021, followed by an additional 10 TV markets each year for the next four years.  This proposal was just published in the Federal Register, setting a deadline for the filing of comments of June 22, 2020, with reply comments due by July 6, 2020.
Continue Reading Comments Dates Set on Proposals to Expand Video Description Requirements of TV Stations and MVPDs

Rights of publicity and privacy can present issues for podcasters and other media companies who feature people in their productions.  Almost two years ago, we wrote about the lawsuit brought by the surviving family members of the character who was central to the S-Town podcast. The podcast focused much of its attention on the life of this individual who was not an elected official or any other sort of public figure. As the individual died before the podcast’s release, the family sued on his behalf, arguing that the podcast violated his rights of publicity.  The lawsuit now has reportedly been settled.  That settlement suggests that we should repeat the advice that we gave when the suit was first filed, as that advice remains relevant today.

Various states grant individuals rights of publicity to exploit their names, likeness, or stories – essentially barring others from exploiting that person without his or her permission. Other state laws grant individuals a right of privacy to keep private facts private. While the details and exceptions to these rights differ from state to state, they generally do not restrict bona fide news stories about public figures or reporting on other matters that are in the public interest – and the First Amendment provides broad protections for truthful stories about public figures.  Most broadcasters and other media companies don’t routinely run up against the restrictions set out in these laws in their day-to-day coverage of news events. But the analysis may be significantly different when a podcast or other media production gets into the stories of individuals who are not public figures.
Continue Reading S-Town Podcast Lawsuit Settled – Reminder on Getting Releases from Podcast Subjects

When a broadcaster files certain types of applications with the FCC, the public must be informed.  Last week, the FCC issued an Order which will change the rules regarding the public notice that must be given – consolidating what was a confusing process with different language and timing for notice about different types of applications into one providing standardized disclosures and scheduling for all public notices.  The decision (once it becomes effective) will eliminate obligations for the newspaper publication that was required for some public notices and also ended the obligation of broadcasters to give a “pre-filing public notice” before the submission of a license renewal application.  It will also require the inclusion of an “FCC Applications” link on the homepage of each commercial station’s website, whether or not they have any applications pending.  Let’s look at some of the changes adopted in last week’s Order.

First, the FCC did not change the requirements as to what applications require notice to the public.  Public notice is required for applications for new stations and major technical changes, for assignments (sales) or transfers of station licenses (except for pro forma changes where there is no real change in control over the station), for license renewal applications, minor change technical applications that involve a city-of-license change, and certain applications involving international broadcast stations or the export of programming to foreign stations to be rebroadcast back into the US.  Notice of designation for hearing of any application is also required.  We will concentrate here on the more common applications for changes to US stations, sale and license renewals.
Continue Reading Looking at Changes to the FCC’s Public Notice Requirements for Broadcast Applications

The responses by the major record labels to Commissioner O’Rielly’s inquiry into allegations of payola practices (see our article here) were published last week while we were all distracted with pandemic issues.  While the responses (available here on the Commissioner’s twitter feed) were perhaps not surprising – saying that the record labels do not engage in any on-air pay-for-play practices where the payment is not disclosed – they nevertheless highlight some practices that should be observed at every radio station.  As I have said in many seminars to broadcasters around the country when talking about FCC sponsorship identification requirements, if you get free stuff in exchange for promoting any product or service on the air, disclose that you got that free stuff. As made clear in these responses, when the record companies give free concert tickets or similar merchandise to a radio station for an on-air giveaway to promote a concert or the release of new music by one of their artists, they agree with the station to reveal on the air that the record company provided the ticket or merchandise that is being given away.

The responses also indicate that these record companies do not provide musical artists to play at station events with any agreement – explicit or implicit – that the station will play those artists more frequently because of their appearance.  While that might happen naturally, it also might not (if, for instance, the band is one of many acts participating at some station-sponsored festival).  The record companies state that their contracts with stations for such events make clear that there is no agreement that any artist appearance is tied to additional airplay for that artist.
Continue Reading Record Companies Respond to FCC Commissioner on Payola – What Should Broadcasters Learn from the Responses?

Taking a station off the air is often the last resort of a broadcast company in desperate financial times.  While Payroll Protection Act loans have helped many small broadcasters avoid that action even in light of the dramatic decrease in broadcast advertising revenue in the last two months, and some relief may come in areas of the country looking at some reopening of business in the coming weeks, we have still heard of some stations that just can’t manage continued operations in this period of turmoil – either for financial or operational reasons caused by the current health crisis.  If this action is in the cards for your station because of the pandemic or for any other reason including technical failures, do not forget about the FCC requirements for taking a station silent.

When a broadcast station goes silent, it must notify the FCC of that status within 10 days of going off the air.  If the situation will continue for a longer period, a request for Special Temporary Authority providing the reasons for going off the air must be filed within 30 days of going silent.  These STAs are granted for no more than 6 months at a time, so that date should be noted for the filing of any extension that may be needed.  But be careful, as if a station is silent for a full year, Section 312(g) of the Communications Act provides that the license will be cancelled unless the FCC makes an affirmative finding that there are special public interest reasons for not taking that action (a finding made in very rare cases).  When stations resume operations, they must notify the FCC that they are back on the air.  But to be considered back on the air, there must be programming – running a test pattern is insufficient (see the case we wrote about here).  Even with authority to remain silent, there are risks.
Continue Reading Broadcast Stations Going Silent – What You Need to Do