Programming Regulations

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Another month is upon us, with the typical list of FCC dates of importance – and some new issues (including incentive auction developments that will probably be a regular part of our news through a good part of next year). One date of importance to some TV broadcasters was yesterday – July 1 – when TV stations affiliated with one of the Big Four TV networks and located in the Top 60 TV markets need to be carrying at least 50 hours of prime time or children’s programming each quarter containing video description. While most of this programming will come from the networks themselves, affiliates in these markets should be now be passing through enough of this video-described programming to meet the quarterly minimums.

July 10 brings other routine filing deadlines. For all broadcasters, by July 10 you should have in your public file (the online public file for TV stations) your Quarterly Issues Programs lists describing the most important issues that faced your community in the prior quarter and the programming that you broadcast to address those issues. Also due to be filed at the FCC by July 10 is your station’s Children’s Television Programming Report on Form 398 describing the programming broadcast on your station to serve the educational and informational needs of children. In addition, TV stations need to place in their online public file information showing compliance with the commercial limits in children’s programming and, for Class A stations, documentation showing continued eligibility for Class A status. For other dates of importance to broadcasters, see our Broadcaster Regulatory Calendar, here.
Continue Reading July Regulatory Dates for Broadcasters – Quarterly Issues Programs Lists and Children’s Television Reports, Incentive Auction Actions, CRB Webcasting Closing Argument and More

June brings some standard obligations for broadcasters in a number of states with anniversaries of their license renewal filing, plus the return of an obligation that we have not seen in 4 years- the obligations of radio stations in certain states to file an FCC Form 397 Mid-Term EEO Report. In addition to these routine regulatory deadlines, comment dates on certain FCC proceedings, a new CALM Act deadline, and some decisions for which broadcasters should be watching are among the regulatory actions that we can expect this coming month.

First, let’s look at the standard recurring obligations. By June 1, Annual EEO Public Inspection File Reports need to be placed in the public inspection files (including the online files of TV stations) of stations that are part of a station employment unit with five or more full-time (30 hours per week) employees that are licensed to communities in these states: Arizona, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, Wyoming, and the District of Columbia.  As we wrote in more detail yesterday, June 1 also brings the obligation of radio stations that are part of employment units with 11 or more full-time employees, and are located in Maryland, DC, Virginia or West Virginia to file their Form 397, EEO Mid-Term Report. Every other month for the next four years we will see a similar obligation arise for a group of radio or TV stations in states that have celebrated the 4th anniversary of the filing of their license renewal applications.
Continue Reading June Regulatory Dates for Broadcasters – EEO Public File Reports and Form 397, CALM Act Compliance Obligations, Incentive Auction Actions, Comments on Reg Fees and LPFM Rules, and More

The FCC yesterday granted extensions requested by the National Association of Broadcasters and by the American Cable Association of the deadlines for implementation of obligations to convert emergency information conveyed in text (usually in on-screen crawls) on television broadcasts into audio to be broadcast on a TV station’s SAP channel (the second audio programming channel usually used for second-language program audio, e.g. a Spanish audio version of English-language programming). This “Audible Crawl Rule” was set to become effective yesterday. The extension of the basic requirement for TV broadcasters to convert the text of crawls containing emergency announcements to speech has been postponed six months, until November 30. Certain related obligations (to provide audio descriptions of non-textual information like weather radar maps, and to include school closing information among the emergency information provided under the Audio Crawl Rule) have been extended further into the future.

The NAB’s request for extension (about which we wrote here) was based on three different issues. The first was the NAB’s finding that the equipment to generate speech from textual crawls was not yet widely available in the marketplace, so most TV stations simply did not have the time to install the equipment to meet the FCC’s requirement. Groups representing the visually-impaired community expressed concern with the delays, but nevertheless agreed to the six month extension granted by the FCC yesterday.
Continue Reading FCC Extends Deadline for TV Stations to Convert Emergency Information in Textual Crawls to Audio on SAP Channels

In a decision just released by the FCC, a TV station was admonished for including, in the credits of a TV program, the URL for a website that contained commercial material. As this was deemed by the FCC to be an isolated occurrence, the station was only admonished, not fined for the violation. But the decision is a good reminder for TV stations of the advertising and marketing restrictions that apply to children’s television programs and to links to websites contained in such programs.

The FCC’s rules prohibit a station from including a website’s address in programming directed to children 12 and under unless it meets a 4 part test. The four parts of that test are as follows:

  1. the website offers a substantial amount of bona fide program related or other noncommercial content;
  2. the website is not primarily intended for commercial purposes, including either e-commerce or advertising;
  3. the website’s home page and other menu pages are clearly labeled to distinguish the noncommercial from the commercial sections; and
  4. the page of the website to which viewers are directed by the website address is not used for e-commerce, advertising, or other commercial purposes (e.g., contains no links labeled “store” and no links to another page with commercial material)

In this case, the website had commercial content, leading to the admonition to the station. The URL was apparently visible for less than a second, in the credits, and ran only once. As this was an isolated instance, the station was not monetarily penalized, but the FCC did make clear that this was a rule violation.
Continue Reading FCC Admonishes TV Station for Including Commercial Website Address in Children’s Program – A Good Reminder on Children’s Television Program Restrictions

April is one of those months with many routine FCC obligations. Quarterly Issues Programs lists need to be in your public file by the 10th of the month. This is an obligation for all full-power broadcast stations – commercial or noncommercial. Similarly, all TV stations have an obligation to submit their Children’s Television Reports on FCC Form 398 demonstrating compliance with the obligations to provide educational and informational programming directed to children, and at the same time put into their public files documents showing their compliance with the limitations on commercials within programming directed to children.

EEO public file reports are due for stations that are part of an employment unit with 5 or more full-time (30 or more hours per week) employees which is located in any of the following states: Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, and Texas. Noncommercial TV stations in Delaware, Indiana, Kentucky, Pennsylvania, and Tennessee; and noncommercial radio stations in Texas, need to file their Biennial Ownership Reports with the FCC on April 1. Finally, license renewal applications in the last license renewal window for this license renewal cycle are due to be filed on April 1 by TV stations (and TV translators and LPTV stations) in Delaware and Pennsylvania. The next regularly scheduled license renewal will be filed by radio stations in certain states – but not until June 2019!
Continue Reading April Regulatory Dates for Broadcasters – Including Quarterly Issues Programs and Children’s Television Reports; Comments In Proceedings Including One on Digital Auxiliaries; and More Incentive Auction Seminars

The FCC set a new record for a fine for a single violation of its indecency rules – $325,000 for a 3 second visual image of a penis run in a corner of a TV screen a single time on a TV station during its 6 PM news (a full description of the image is in the FCC’s Notice of Apparent Liability but, so as to not trigger too many spam filters, I will omit any more details in this article). The image in the newscast was a visual of a website, the website having several different frames, each with video images, and one of those frames had the image that led to the fine. This is the first time that the FCC has imposed a fine of $325,000, an amount authorized by Congress during the FCC’s last crackdown on indecency but never before used by the FCC. And not only did the FCC issue the Notice of Apparent Liability describing its legal reasoning for imposing the fine, but they also put out a press release publicizing the Notice, highlighting other recent indecency actions taken by the FCC, and warning broadcasters to pay attention to the decision. What happened here?

According to the FCC’s order, a TV station did a story on a former adult movie star who had retired from her former profession and begun to work with the local rescue squad. In providing background to what might otherwise be an off-beat human interest story about a person with a colorful past adapting to a new life as part of a local community, to provide context, the station showed the website of the adult movie company for which she had formerly worked. In editing the brief clip of the website into the story, neither the independent producer who put the story together nor anyone at the station noted the visual in one corner of the webpage with the image that got the station into trouble. According to the station, the image was not viewable on the editing machines used by those producing the story. But, apparently viewers at home, perhaps watching on bigger screens, were able to see the image, prompting the FCC complaint and other complaints to the station. While the image appeared on screen for only about 3 seconds, and only once, the FCC nevertheless selected this case to be its first in which to levy this new level of indecency fine – ten times higher than previous fines for a single broadcast of indecent material on a single station. Why?
Continue Reading FCC Proposes Fine of $325,000 in TV Indecency Case – What Prompted this Largest Fine Ever for a Single Incident?

A group of radio broadcasters have asked the FCC to agree to waive some provisions of the current sponsorship identification rules of the FCC to permit stations that have sponsored music or sports programming to move some of the required sponsorship identification online (the request is available here). This is to provide listeners with a more detailed and accessible means of determining the sponsor of certain broadcast programming. The FCC’s Mass Media Bureau has asked for public comments on this proposal, with comments due by April 13, and reply comments by May 12.

The examples of situations where the waiver would be used as provided in the Petition are for sponsored music programming (e.g. if a particular music label was to purchase an hour to feature their recordings) or sports programs (e.g. if a team were to purchase time on a station to do a coaches program or even a full game). The current rules require that the identification must be broadcast at the time of the broadcast – which has often been interpreted to mean at the time of the program, which is why you see the sponsorship acknowledgements at the end of TV quiz shows, acknowledging all the companies who provided free stuff to the program producers to get their products mentioned on air. The proponents of the new approach set out in this petition suggest that the online disclosure might actually provide more information to listeners of a radio program as, if the listeners don’t happen to be listening at the top of the sponsored hour (or three hours for a sponsored baseball game broadcast), they don’t hear the fleeting announcement. So the broadcasters have suggested what they see as a better way of providing that announcement.
Continue Reading FCC Asks for Comment on Radio Broadcasters Proposal for Moving Online Some Sponsorship Identifications

Drones are coming up more and more often as I travel the country to speak to broadcaster groups. It has become a hot issue, both at the Federal level and in many states. I asked two attorneys in my firm who are watching this issue to do an update on where things stand. Bob Kirk (bio here) and Rachel Wolkowitz (here) have provided the following update on where things stand on the Federal level:

Broadcasters increasingly are looking at drones, or “unmanned aircraft systems” (“UAS”) in FAA parlance, as a more cost-effective option for gathering aerial video and photos. After all, small drones can be used to gather aerial news footage for a fraction of the cost associated with using a helicopter. However, before going out and flying one, be warned, the FAA deems newsgathering a “commercial” use currently prohibited under its rules.

In February, the FAA proposed new rules that would open the skies up to small drones for some limited uses. Congress has ordered the FAA to integrate drones in the national airspace by September 2015, but most experts believe that the deadline will not be met. Indeed, the consensus is that it will take approximately two years to compile a record, review the comments, and adopt final rules for small drones, which the FAA says is the first step in letting many types of UAS take flight.
Continue Reading Will Drones Soon Become an Effective Tool for Broadcasters?

The FCC has extended the Reply Comment deadline in its proceeding looking at whether to apply some or all of the regulations applicable to multichannel video programming distributors (MVPDs – cable and satellite TV) to over-the-top video providers who provide multiple channels of video programming in a linear fashion (i.e. like a cable system, with…

We are in March, which means that the minds of many turn to basketball, specifically March Madness as the NCAA hosts its annual championship tournament to crown college basketball’s national champion. And many broadcasters want to take advantage of the tournament to promote their stations or the products of their sponsors. Because of this inclination, we post this warning each year (see, for instance, here and here) – just like we do around the Super Bowl or the Olympics – these championship names are trademarked, and the owners are active in policing and protecting their marks, as sponsors pay the NCAA big bucks for association with the championship – so be careful about using “March Madness” in promotions and advertisements, as these uses could bring trouble.

Each year, we get the question “is March Madness a trademarked term” or, as it is sometimes formulated, “is March Madness copyrighted” (in fact, in this context, when talking about the name which brands an event, we are talking about trademark law, not copyright). And each year we say “yes.” But what does that mean? That does not mean that your newscasters, sports reporters or morning DJs can’t talk about the tournament using the name of the event. Instead, what it means is that commercial uses of the term, that could imply some association with the event for which sponsors pay money, can be problematic – and could cause the NCAA and their lawyers to pay attention, and could cost you or your sponsor money or time defending the use. So the safest way to avoid issues is to avoid the trademarked phrase in promotions and advertisements.
Continue Reading March Madness is a Trademarked Term – Use Caution in Using it in Advertising and Promotion