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 summer begins to wind down, just like the rest of the world, the FCC and other government agencies seem to pick up speed on long delayed actions. Broadcasters can anticipate increased regulatory activity in the coming months. For September, there are a few dates to which all broadcasters should pay attention, and a few that will be of relevance to a more limited group. As always, pay attention to these dates, and be prepared to address any other important deadlines that we may have overlooked, or which are unique to your station.
All commercial broadcasters will need to pay attention to actions which will likely come in rapid fire in the next two weeks, setting the deadlines for payment of the Annual Regulatory Fees that must be paid before the October 1 start of the next fiscal year for the FCC. Look for an Order very soon deciding on the final amounts for those fees. That Order will be quickly followed by a Public Notice setting the payment dates and procedures. Then watch for fact sheets from each of the Bureaus at the FCC. The Media Bureau fact sheet will cover the fees to be paid by broadcasters. Be ready to pay those fees by the announced September deadline, as the failure to pay on time brings steep penalties.
Continue Reading September Regulatory Dates for Broadcasters: Reg Fees, Foreign Government Program Certifications, Final Chance to Claim Reimbursement for Repacking Expenses, Comments on ATSC 3.0 and FTC Advertising Inquiry, and More
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.
Facebook will disable “new” political ads the week before this year’s November mid-term election (see its post on this policy here), just as many broadcast stations will be struggling with commercial inventory issues, trying to get last minute political ads on the air without having to dump all of their regular commercial advertisers who will be just starting to ramp up their commercial campaigns for the holiday season. We’ve written previously about how the legal policies that govern Facebook and other online platforms are different than those that govern broadcast, local cable, and direct broadcast satellite (DBS) political ad sales. Many of the policies adopted by these online platforms could not be adopted by broadcasters, local cable and DBS companies. In light of Facebook’s recent announcement and the upcoming election, we thought that we would recap some of our previous reviews of this issue.
In June 2021, we wrote about Facebook’s plans to end its policy of not subjecting posts by elected officials to the same level of scrutiny by its Oversight Board that it applies to other platform users. Facebook’s announced policy has been that the newsworthiness of posts by politicians and elected officials was such that it outweighed Facebook’s uniform application of its Community Standards – although it did make exceptions for calls to violence and questions of election integrity, and where posts linked to other offending content. Just a year before, there were calls for Facebook to take more aggressive steps to police misinformation on its platforms. These calls grew out of the debate over the need to revise Section 230 of the Communications Decency Act, which insulates online platforms from liability for posts by unrelated parties on those platforms (see our article here on Section 230).
Continue Reading Facebook to Reject New Political Ads the Week Before the November Election – Why Broadcasters Can’t Do That
We have been receiving numerous calls from broadcasters about “franking” ads from Congressional representatives running for reelection. Congress each year allows its members to spend certain amounts of money to communicate with their constituents. This was traditionally done through mailings, which Congressional representatives could send through the US mail without any postage charges (hence the name “franking” deriving from a French word for “free”). This privilege was later extended to allow the representatives to use broadcast media, but stations are paid for such spots. These franking messages cannot be used for political messages, and the messages cannot be run during the 60 days before any election. They tend to talk about how Congressional staff can help constituents with problems accessing government benefits or about how government programs can help residents in their districts. But just because the messages are not in and of themselves political does not mean that the messages do not have implications under the FCC’s political broadcasting rules.
These franking ads are almost always voiced by the representative (for radio) or have a visual appearance of the representative (for TV). If the representative is running for reelection, and has qualified for a place on the ballot (for a primary or general election) or will run as a bona fide write-in candidate (see our post here about write-in candidates), then the ads can have FCC political broadcasting implications. As with any other appearance of a legally qualified candidate on the air outside an exempt program (exempt programs being news or news interview programs or documentaries not about the candidate – see our article here), the recognizable voice or image of a candidate is a “use” by that candidate that triggers equal opportunities for opposing candidates. As we wrote here about advertisers who appear in their company’s commercials and then decide to run for political office, those uses need to be noted in a station’s political file (providing all the information about the sponsor, schedule and price of the ad, as you would for any pure political buy). The use would also trigger equal opportunities, meaning that any opposing candidate can request an equivalent amount of airtime. But that does not necessarily mean that a station needs to reject these franking ads.
Continue Reading Watch for Congressional “Franking” Ads in the Last Weeks Before the Pre-Election Period – The FCC Political Broadcasting Implications
Recent press reports have talked much about a Texas church that decided to put on a production of the musical Hamilton – both live and streamed via YouTube. The church not only put on the performance of the musical, but also adapted the script to include material with religious themes not included in the original version. Lin-Manual Miranda, the creator of the musical, was reported to say that, following the discovery of the unauthorized performances, “now the lawyers do their work.” But just what did the church do wrong? This case serves as an illustration of how copyright issues pervade society – and these issues are often ignored until an improper use is discovered by a rightsholder or their representative. At that point, the user often gets a quick education in the significant potential penalties they face from ignoring the law.
Like all other copyrighted works, among the rights given to creators of a musical like Hamilton is the right to consent to the public performance of that work. We have written how that right to consent to public performances is in some cases restricted by statutory or blanket licenses, where the government (either directly, through the Copyright Royalty Board for public performances of sound recordings and the use of musical compositions by noncommercial broadcasters, or indirectly through antitrust consent decrees or settlement agreements that apply to ASCAP, BMI and, in some instances, SESAC – see our article here on some of the issues with these rights). There are other statutory licenses giving, for instance, cable and satellite television providers the rights to retransmit broadcast stations in exchange for the payment of statutorily set fees (see our articles here and here for some examples of the issues with these statutory licenses). For most other copyrighted works, like plays and musicals, that right to restrict the public performance of a work is not restricted by statutory licenses. And the writers of theatrical works are diligent in enforcing their copyrights. So every junior high school performance of The Music Man, or community theater performance of Rent, should be licensed by the representatives of the copyright holders in these works.
Continue Reading A Church Gets Called Out for Adaptation of “Hamilton” – Looking at the Copyright Issues
The FCC last Friday released its second EEO audit notice for 2022 (available here), this time targeting approximately 130 radio and TV stations. Those stations, and the station employment units (commonly owned stations serving the same area) 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.
Audited stations must provide sample copies of notices sent to employment outreach sources about each full-time vacancy at the stations, as well as documentation of the supplemental efforts that all station employment units with 5 or more full-time employees are required to perform (whether or not they had job openings in any year). These non-vacancy specific outreach efforts are designed, for example, to educate the community about broadcast employment positions and to train employees for more senior roles in broadcasting. Stations must also provide, in response to the audit, information about how they self-assessed the performance of their EEO program. Information about any pending or resolved proceedings involving discrimination claims must also be reported. Stations that are listed in the audit notice have until October 7, 2022, to upload this information and other specified information about their EEO program to their online public file. One new note on this audit – the FCC will not inform audited stations that their EEO performance was found satisfactory, but the Commission’s staff will inquire if they have questions or concerns about the performance of any employment unit.
Continue Reading FCC Releases Second EEO Audit Notice for 2022 – Reviewing a Broadcaster’s EEO Obligations
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.
Last week, the FCC entered into a consent decree with the operator of a low power TV station, where the broadcaster admitted to violating FCC rules by selling advertising packages that included guaranteed appearances of the advertiser on a local news and information program, without any notice to viewers that the programming was sponsored. The decree imposed a 5-year compliance plan on the licensee, requiring the training of employees on sponsorship identification requirements of the FCC rules, the adoption of plans to ensure that the issue does not arise again, and the reporting to the FCC of any similar issues that arise in the future. In addition, the licensee had to pay a $60,000 penalty – and the language of the decree suggests that this fine would have been significantly larger had the licensee been able to pay more (as it was, the licensee is allowed to pay off the penalty in $1000 per month increments). This penalty should not be a surprise, as the conduct raises significant sponsorship identification issues, as well as a host of issues under the FCC’s political broadcasting rules.
Having paid appearances in local programming without a sponsorship identification has in the past been a source of FCC concern – and has resulted in big penalties where a sponsor is not disclosed to the public. For instance, we wrote here about a fine of more than $13 million imposed on Sinclair Broadcasting for running feature stories about a local cancer institute that had been promised to the institute as part of a paid advertising package, without disclosing the payment on-air. Any time a broadcaster receives anything of value in exchange for saying something on the air, the broadcaster needs to disclose that consideration and who provided it. Even program suppliers need to disclose that they have been paid when they have been paid to say something on the air. For more information, see, for example our article here where a TV political commentator was required to disclose that he was being paid to support certain political positions, and our article here on requiring program syndicators to make clear when programming they provide has been sponsored. The FCC’s recent rules about the disclosure of foreign government-sponsored programming (see our articles here and here) also require that broadcasters assure that any buyer of program time on the station has not itself been paid by a foreign government or their agent to say something in their programming.
Continue Reading $60,000 Fine on LPTV Station For Political Broadcasting and Sponsorship Identification Issues with Ad Packages Containing News Program Appearances
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.
