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.
This week, I spent some time at the Podcast Movement Annual Convention, this year held in the DC area. While the convention is always a good time to catch up with industry friends and to spot new trends (AI was, of course, a topic that was discussed on several panels as it is at virtually every media conference these days), it was also a reminder that with all that has been going on at the FCC and with other regulations, we have not written much about podcasting in the recent past. Previously, we have covered many issues related to the use of music in podcasts (see, for instance, our articles here, here, and here). We’ve written about other legal issues that need to be considered in connection with podcasting including getting releases from guests, making sure that ownership of the podcast is clear (an issue potentially of more importance if the Federal Trade Commission’s ban on noncompete agreements in employment contracts goes into effect, as it could result in more changes in employment of employees working on podcasts, though the effective date of any noncompete ban is questionable based on a court action this week that throws out that ban – a decision likely to be appealed), and other issues that I covered in the slides from a presentation presented at the Podcast Movement conference several years ago that remain relevant. Today, I thought that I would revisit another topic from my prior coverage of podcast legal issues, one that was given new urgency by another recent FTC ruling – sponsorship identification.
Broadcasters are familiar with the FCC requirements for the identification of those who provide something of value to a station in exchange for any on-air content. Fines can be issued (and big payments under consent decrees have resulted see, for instance, the cases we noted here and here) from broadcasters who do not follow the FCC’s sponsorship identification rules. But broadcasters are not as familiar with the fact that the FTC also has rules about sponsorship identification requirements that go beyond the FCC’s obligations, looking at questions including the truthfulness of endorsements and testimonials for products and services. FTC enforcement can be as severe, if not more severe, than that of the FCC (see, for instance, the FTC’s fines we wrote about two years ago on Google and a broadcaster for having DJs talk about their use of Pixel phones that they had not in fact used). The FTC last week expanded on its policies by adopting a final rule prohibiting the purchase and sale of fake reviews and testimonials concerning products and services, and allowing the agency to seek civil penalties against knowing violators. Among other things, the new rule prohibits activities including the buying or selling of fake consumer reviews or testimonials, buying positive or negative consumer reviews, using certain insiders to create consumer reviews or testimonials without clearly disclosing their relationships, creating a company-controlled review website that falsely purports to provide independent reviews, using certain review suppression practices, and selling or purchasing fake indicators of social media influence. We plan to write more about this FTC decision in the near future, but it is important to note that these FTC policies apply with equal force to podcasters and any other online communications medium.Continue Reading Podcasters and Broadcasters – Disclose Those Sponsors!
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.
With a number of upcoming regulatory deadlines approaching, including regulatory fees that will likely be announced in the next two weeks with a payment deadline before October 1, we thought that this would be a good time to remind broadcasters of EAS filing obligation that they may have missed as there has not been the
The agenda for the Federal Election Commission’s August 15 Open Meeting was released last week, and it contains a proposed Notification of Disposition of the FEC’s review of a July 2023 petition for rulemaking filed by the advocacy group Public Citizen seeking to initiate a proceeding to address the use of Artificial Intelligence in campaign communications. The FEC asked for public comment on that petition last August (see our article here). The draft Notification and accompanying memorandum circulated by the three Republican members of the FEC proposes to deny the request to initiate such a proceeding. As the FEC has equal representation of Democrats and Republicans, even if all of the Democrats disagree with the position advocated in the Notification, it would appear that the proposal would still be on hold for the foreseeable future as there would not be a majority of Commissioners necessary to move it forward.
The Public Citizen petition asked that the FEC “clarify that the [Federal Election Campaign Act’s prohibitions] against ‘fraudulent misrepresentation’ (52 U.S.C. § 30124) applies to deliberately deceptive AI-produced content in campaign communications.” The draft Notification finds that the FEC lacks the statutory authority to initiate the proceeding – that the fraudulent misrepresentation language applies to a misrepresentation of a sponsor of a campaign ad, not to misleading messages in the ads themselves. The Notice also contends that the FEC is “ill-positioned to take on the issue of AI regulation and does not have the technical expertise required to design appropriately tailored rules for AI-generated advertising.” The draft notice suggests that, before any action is taken by the FEC, Congress must first authorize it. Continue Reading FEC Appears Ready to Take a Pass on Regulating AI in Political Ads
