Discussion of FCC, copyright, advertising and other legal issues of importance to radio and television broadcasters and other media companies
Principal Editor: David O’Connor
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.
As we noted on our Blog earlier this week, there were reported problems with the system for filing annual regulatory fees. Fee amounts in the FCC’s CORES system, where the fee payments are made, were not corresponding in some cases to the FCC’s look-up system for checking what a station’s regulatory fees were supposed to…
Update – 9/13/2024 – We are hearing that fee increases being reported by many radio stations may not have resulted, as we speculate below, on the use of new census data, but instead from incorrect FCC calculations. If your fees went up unexpectedly, you may want to investigate further to see if the population covered by your station was properly computed.
Further Update – 9/13/2024, 5:30 PM EDT – The FCC has acknowledged issues with its computation of fees for radio stations. As we note in a new article that we just posted, the FCC has asked that broadcasters wait to submit their fees until the issue has been resolved. The FCC has not yet extended the due date for the fees, and we expect that the FCC will work quickly to update their CORES fee filing system to correct the fee amounts.
As we noted this past weekend in our weekly update of regulatory actions, the FCC last Friday released its Order setting the regulatory fees due from broadcasters and other FCC regulated entities – fees that the FCC is required to collect each year the start of the federal government’s new fiscal year which begins in October. This week, the FCC released a series of public notices detailing filing procedures. First was a Public Notice setting the deadline for payment of the fees as 11:59 PM Eastern Time on September 26. That Notice also stated that fees must be paid through the FCC’s CORES database, which is now open for such payments. That initial Notice promised a series of other public notices which followed, each addressing particular aspects of the fee filing process. However, even with all the notices about procedures, there already have been issues reported and questions about some of the payments and processes.
The follow-up public notices included a Fact Sheet – “What You Owe” – from the Media Bureau setting out specific fee filing procedures for broadcasters. That Fact Sheet, in addition to reiterating the requirement that fees be paid through the CORES system, notes that there is also a Media Services webpage from which broadcasters can view their fee obligations and get other information about the fee filing process. It has been reported that this webpage has, in some cases, been providing information different than that contained in the CORES system – including different information about the amounts of the fees that are owed for specific stations. We understand that the FCC is looking at these discrepancies and have been told that the CORES data should be the correct information. But if this issue comes up for one of your stations, we suggest an inquiry to confirm which payment amount is correct.Continue Reading FCC Regulatory Fees Due September 26 – FCC CORES Database Available for Payment, Some Filing Glitches Reported
Here are some of the regulatory developments of significance to broadcasters from the past two weeks, with links to where you can go to find more information as to how these actions may affect your operations.
The lowest unit rate window for the November 5 general election opens today, September 6. With that date in mind, we thought that it was a good idea to review the basic FCC rules and policies affecting those charges. In this election, with the Presidency and control in both houses of Congress at stake as well as many state offices, advertising on broadcast stations, particularly those in some battleground states, is already in great demand by both candidates and issue advertisers. Your station needs to be ready to comply with the FCC’s political advertising rules and the rates that apply to each of these groups. Lowest unit charges (or “Lowest Unit Rates”) guarantee that, in the 45 days before a primary and the 60 days before a general election, legally qualified candidates get the lowest rate for a spot that is then running on the station within any class of advertising time running in any particular daypart. Candidates also get the benefit of all volume discounts without having to buy in volume – i.e., the candidate gets the same rate for buying one spot as your most favored advertiser gets for buying hundreds of spots of the same class. But there are many other aspects to the lowest unit rates, and stations need to be sure that they get these rules right.
It is a common misperception that a station has one lowest unit rate, when in fact almost every station will have several, if not dozens, of lowest unit rates – one lowest unit rate for each class of time in each daypart. Even at the smallest radio station, there are probably several different classes and dayparts for advertising spots. For instance, there may be different rates for spots running in morning drive than for spots that run in the middle of the night. Each time period for which the station charges a differing rate is a class of time that has its own lowest unit rate. On television stations, there are often classes based not only on daypart, but on the individual program. Similarly, if a station sells different rotations, each rotation that offers substantially different benefits to an advertiser will be its own class of time with its own lowest unit rates (e.g. a 6 AM to Noon rotation is a different class than a 6 AM to 6 PM rotation, and both are a different class from a 24-hour rotator – and each can have its own lowest unit rate). So, in the same time period (e.g. morning drive on a radio station), there may be spots running in that period that have multiple lowest unit rates (e.g. spots may end up running in that period that were sold just for morning drive, as well as cheaper spots that were sold as part of a 6 AM to 6 PM rotation that just happened to fall within the morning drive period). Candidates can buy into any of those classes of time, and they take the same chances as does a commercial advertiser as to where their spots will land (e.g. if a candidate buys a 6 AM to 6 PM rotator, and that rotator ends up in morning drive, another candidate may buy that same rotator the next week and end up at 4 PM. That second candidate can only guarantee that they will end up in morning drive by buying a spot guaranteed to run in that time period).Continue Reading Window for Lowest Unit Rates for Candidate Advertising for the November Election Opens Today, September 6 – Are You Ready?
It seems like virtually every panel at every broadcast and media convention, at some point, ends up involving a discussion of Artificial Intelligence. Sessions on AI are filled to capacity, and sessions unrelated to the topic seem to have to mention AI to appear relevant. Whenever there is a topic that so thoroughly takes over the conversation in the industry, we lawyers tend to consider the legal implications. We’ve written several times about AI in political ads (see, for instance, our articles here, here and here). We will, no doubt, write more about that subject (including addressing further action in the FCC’s proceeding on this subject about which we wrote here, on the Federal Election Commission’s pending action on its separate AI proceeding, consideration of which was again postponed at its meeting last week, and on bills pending in Congress to address AI in political advertising).
We’ve also written about concerns when AI is used to impersonate celebrities and to create music that too closely resembles copyrighted recordings (see, for instance, our articles here and here). When looking for new creative ways to entertain your audience, a broadcaster may be tempted to use AI’s ability to have a celebrity “say” something on your station by generating their voice with some form of AI. As we noted in our previous articles, celebrities have protected interests in their identity in many states, and there has been much recent activity, caused by the advent of easily accessible generative AI that can impersonate anyone, to broaden the protections for the voice, image, and other recognizable traits of celebrities. A federal NO FAKES Act has also been introduced to give individuals more rights in their voice and likeness. So being too creative with the use of AI can clearly cause concerns.Continue Reading Using Artificial Intelligence in Developing Broadcast Programming – Watch for Legal Issues
On Friday, the FCC released a Public Notice confirming that the Form 395-B, reimposed by the FCC earlier this year (and the subject of several appeals), will not be due September 30, 2024, as we speculated earlier last week in our look ahead at September regulatory dates. The Form 395-B is designed to collect information about the race, ethnicity, and gender of all broadcast employees in numerous categories of job responsibilities at broadcast stations (e.g., managers, sales employees, technical employees, “professionals,” clerical, etc.). Last week’s Public Notice does not specifically say why the use of the form has been delayed, but it appears that the FCC has not determined that the reinstatement of the form must be approved under the Paperwork Reduction Act, or because the public nature of the filings or the addition of the “non-binary” gender category needs approval under the PRA. In any event, the Public Notice explains that the FCC will provide notice to broadcasters at some future date as to when the filing will be required.
As we wrote in February when the FCC adopted its Fourth Report and Order reimposing the requirement for the filing of the form, it was to be submitted by September 30 each year, reporting on the make-up of station workforces for a consistently-used two week pay period from July, August, or September. The use of the form has been on hold for more than 20 years because of constitutional concerns, as the FCC had used the form to impose penalties when a broadcaster’s workforce did not match the demographic profile of its community. A court decision suggested that the FCC’s approach encouraged reverse discrimination – hiring based on racial or gender profiles rather than job qualifications. Thus, the FCC put the use of the form on hold while it considered ways to collect demographic information about broadcast employees on an industry-wide basis, without tying that information to any specific stations. Continue Reading FCC Announces Form 395-B EEO Report Will Not Be Due September 30, 2024
It is time for our update on the coming month’s regulatory dates and deadlines to which broadcasters should be paying attention – and the deadline that probably is most important to all commercial broadcasters is not yet known. That, of course, is the deadline for the payment of annual regulatory fees – which must be made before the federal government’s October 1 start of the new fiscal year. We expect an announcement of the final decision on the amount of those fees for various broadcasters, and the deadlines for payment, in the next few days. Keep on the alert for that announcement.
A second big date for all commercial broadcasters is September 6, when the lowest unit rate period for political candidate advertising – the “political window” – opens for the November 5 general election. During this 60-day period prior to the general election, legally qualified candidates buying advertising on a broadcast station get the lowest rate for a spot that is then running on the station within the same class of advertising time and in the same daypart (see our article here on the basics of computing LUR). Candidates also get the benefit of all volume discounts without having to buy in volume – i.e., the candidate gets the same rate for buying one spot as the station’s most favored advertiser gets for buying hundreds of spots of the same class. For a deeper dive on how to prepare for the November general election, see our post, here, which also includes a link to our comprehensive Political Broadcasting Guide. Continue Reading September 2024 Regulatory Dates for Broadcasters – FCC Regulatory Fees, LUC Window for the General Election, Comment Deadlines on AI in Political Advertising and More
Here are some of the regulatory developments of significance to broadcasters from this past week, with links to where you can go to find more information as to how these actions may affect your operations.
Here are some of the regulatory developments of significance to broadcasters from this past week, with links to where you can go to find more information as to how these actions may affect your operations.
