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 adopted a decision resolving the FCC’s long-pending proceeding on whether to authorize FM “zonecasting” or “geo-targeting,” permitting FM

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.

Every year at about this time, with April Fools’ Day right around the corner, 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 the day.  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 How an April Fools’ Day On-Air Prank Gone Wrong Could Result in FCC Issues

For the first time since October, we can say that the federal government is funded for the rest of the fiscal year (through the end of September) so we do not expect to have to report on any threats of a government shutdown for many months. With that worry off our plate, we can look at the dates that broadcasters do need to pay attention to in the month of April.

First, we’ll look at the most significant routine filing deadlines coming up in April.  April 1 is the deadline for radio and television station employment units in Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, and Texas with five or more full-time employees to upload their Annual EEO Public File Report to their stations’ online public inspection files.  A station employment unit is a station or cluster of commonly controlled stations serving the same general geographic area having at least one common employee.  For employment units with five or more full-time employees, the annual report covers hiring and employment outreach activities for the prior year.  A link to the uploaded report must also be included on the home page of each station’s website, if the station has a website.  Be timely getting these reports into your public file, as even a single late report can lead to FCC fines (see our article here about a recent $26,000 fine for a single late EEO report).

The filing of the Annual EEO Public File Reports for radio station employment units in Indiana, Kentucky, and Tennessee with eleven or more full-time employees triggers a Mid-Term EEO Review, where the FCC will analyze the last two Annual Reports for compliance with FCC requirements.  There is no form to file to initiate this review but, when radio stations located in those states with five or more full-time employees are required to upload to their public file their annual EEO Public File Report, they must also indicate in the online public file whether their employment unit has eleven or more full-time employees, using a checkbox now included in the public file’s EEO folder.  This allows the FCC to determine which station groups need a Mid-Term Review.  See our articles here and here on Mid-Term EEO Review reporting requirements for radio stations.Continue Reading April Regulatory Dates for Broadcasters – EEO Reports, Quarterly Issues/Programs Lists, LUC Windows, Rulemaking Comments, and More

In October 2022, I noted in an article that many broadcasters were totally confused by the FCC’s rules requiring that they seek certifications as to whether or not a foreign government is behind anyone buying programming time on a broadcast station.  In our 2022 article, we noted that, even though broadcasters did not fully understand the existing rule, the FCC was considering expanding that requirement to require use of a specific form to obtain these certifications from program buyers.  From notices filed with the FCC recently, it appears that there have been several meetings with the Commission and representatives of the broadcasting community about these proposed enhanced certifications, making it appear that the FCC is nearing a decision.  It appears that the new certifications, if adopted, will be very cumbersome, particularly for the unsophisticated program buyers who are likely to be many of the buyers of program time on small market stations.  These buyers are likely to find the certification process somewhat intimidating, and may even be scared off from buying any broadcast programming time as a result.  We thought we should take another look at what is already required and what is now being proposed.

Currently, the certifications that broadcasters must obtain from a program buyer must indicate that the programmer is not a “foreign government entity,” a term that includes any foreign government or foreign-government owned entity, an agent of a foreign government, or someone who has been paid by a foreign government to produce the program.  As we noted (see our articles here and here), the rules requiring these certifications went into effect on March 15, 2022 for any new agreements effective after that date, and September 15, 2022 for obtaining certifications from programmers who were already on the air as of March 15.  They cover not only those who buy program time on a broadcast station, but also those that provide program time free to broadcasters with the understanding that the programming will be aired.  The certifications do not cover programming that the broadcaster buys (either for money or through barter – including by giving the programming supplier advertising time that the programmer can resell in exchange for the programming).  And they are not required for spot advertising buys. Continue Reading FCC Still Reviewing Plan to Expand Broadcasters’ Obligations to Obtain Certifications from All Program Buyers on their Connection to Foreign Governments – What is Being Proposed? 

The FCC last week released its first EEO audit notice for 2024.  The FCC’s Public Notice, audit letter, and the list of stations selected for audit is available here.  Those stations, and the station employment units (commonly owned or controlled stations serving the same area sharing at least one employee) with which they are associated, must provide to the FCC (by uploading the information to their online public inspection file) their last two years of EEO Annual Public File reports, as well as backing data to show that the station in fact did everything that was required under the FCC rules.  The response to this audit is due to be uploaded to the public file of affected stations by May 6, 2024. The audit notice says that stations audited in 2022 or 2023, or whose license renewals were filed after February 1, 2022, can ask the FCC for further instructions, possibly exempting them from the audit because of the recent FCC review of their performance. 

With the release of this audit, and last year’s $25,000 fine proposed for some Kansas radio stations that had not fully met their EEO obligations (see our article here), it is important to review your EEO compliance even if your stations are not subject to this audit.  The FCC has promised to randomly audit approximately 5% of all broadcast stations each year. As the response (and the audit letter itself) must be uploaded to the public file, it can be reviewed not only by the FCC, but also by anyone else with an internet connection anywhere, at any time.  The Kansas fine, plus a recent $26,000 fine imposed on Cumulus Media for a late upload of a single EEO Annual Public File Report (see our article here), and the FCC’s recent decision to bring back EEO Form 395 reporting on the race and gender of all station employees (see our article here), shows how seriously the FCC takes EEO obligations.Continue Reading FCC Issues First EEO Audit Notice for 2024 – 250 Radio and TV Stations To Have Employment Activities for the Last Two Years Reviewed

  • The FCC issued a Notice of Apparent Liability proposing to fine Nexstar Media Group,
  • Yesterday, I wrote about the history of the NCAA’s assembling of the rights to an array of trademarks associated with this month’s college basketball tournaments.  Today, I will provide some examples of the activities that can bring unwanted NCAA attention to your promotions or advertising, as well as an increasingly important development that should be considered when considering whether to accept advertising.

    Activities that May Result in a Demand Letter from the NCAA

    The NCAA acknowledges that media entities can sell advertising that accompanies the entity’s coverage of the NCAA championships.  However, similar to my discussion in February on the use of Super Bowl trademarks (see here) and my 2018 discussion on the use of Olympics trademarks (see here), unless authorized by the NCAA, any of the following activities may result in a cease and desist demand:

    • accepting advertising that refers to the NCAA, the NCAA Basketball Tournament, March Madness, The Big Dance, Final Four, Elite Eight or any other NCAA trademark or logo (The NCAA has posted a list of its trademarks here.)
      • Example: An ad from a retailer with the headline, “Buy A New Big Screen TV in Time to Watch March Madness.”
      • Presumably, to avoid this issue, some advertisers have used “It’s Tournament Time!”
    • local programming that uses any NCAA trademark as part of its name
      • Example: A locally produced program previewing the tournament called “The Big Dance: Pick a Winning Bracket.”
    • selling the right to sponsor the overall coverage by a broadcaster, website or print publication of the tournament.
      • Example: During the sports segment of the local news, introducing the section of the report on tournament developments as “March Madness, brought to you by [name of advertiser].”
    • sweepstakes or giveaways that include any NCAA trademark in its name (see here)
      • Example: “The Final Four Giveaway.”
    • sweepstakes or giveaways that offer tickets to a tournament game as a prize
      • Example: even if the sweepstakes name is not a problem, offering game tickets as a prize will raise an objection by the NCAA due to language on the tickets prohibiting their use for such purposes.
    • events or parties that use any NCAA trademark to attract guests
      • Example: a radio station sponsors a happy hour where fans can watch a tournament game, with any NCAA marks that are prominently placed on signage.
    • advertising that wishes or congratulates a team, or its coach or players, on success in the tournament
      • Example: “[Advertiser name] wishes [Name of Coach] and the 2022 [Name of Team] success in the NCAA tournament!”

    There is a common pitfall that is unique to the NCAA, namely, basketball: tournament brackets used by advertisers, in newspapers or other media, or office pools where participants predict the winners of each game in advance of the tournament.  The NCAA’s position (see here) is that the unauthorized placement of advertising within an NCAA bracket and corporate sponsorship of a tournament bracket is misleading and constitutes an infringement of its intellectual property rights.   Accordingly, it says that any advertising should be outside of the bracket space and should clearly indicate that the advertiser or its goods or services are not sponsored by, approved by, or otherwise associated with the NCAA or its championship tournament.Continue Reading Guard Yourself Before Moving Forward When Accepting or Engaging in Advertising or Promotions that Use FINAL FOUR or Other NCAA Trademarks:  2024 Update – Part II

    Each year, as the NCAA basketball tournaments get underway, my colleague Mitch Stabbe highlights the trademark issues that can arise from uses of the well-known words and phrases associated with the games in advertising, promotions, and other media coverage. Here is Part I of his review. Look for Part II tomorrow.

    The last few years have filled with changes in college sports.  Teams that have been part of a conference for decades have decided to jump to another conference, with movement of different schools from or to the Big 12 Conference, the Big Ten Conference, the Pac 12, the Atlantic Coast Conference, the Southeastern Conference and others.  In addition, we are starting to see the consequences of the NCAA finally allowing athletes to monetize the commercial use of their name, images and likenesses, now called “Name, Image and Likeness” (NIL) and previously described as the Right of Publicity.

    One thing that has not changed is the NCAA’s hard line against unauthorized uses of FINAL FOUR or its other marks.  Thus, 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,® Women’s 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®.Continue Reading Guard Yourself Before Moving Forward When Accepting or Engaging in Advertising or Promotions that Use FINAL FOUR or Other NCAA Trademarks:  2024 Update – Part I

    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.