In our reminder on August regulatory dates for broadcasters, we noted that broadcasters must register their stations in a new FCC filing system that will allow them to electronically report on the success of the next EAS National Test, to be conducted on September 28. The new registration system, called EAS Test Reporting System (“ETRS”), requires all stations (including LPFM stations) to register by August 26, by filling out what is referred to as Form One in that system. The FCC Public Notice announcing the new filing requirement is available here. More information about the form and a link to the Registration Page for the form are available on the FCC’s website, here. I have been told that this form can be tricky to complete, and will require reference to your state EAS plan, so don’t wait for the last day to try to get this done. The FCC has given stations until September 26 to edit their initial filings – but you need to get something on file by next Friday. Time is short, and completing the form (especially if you have multiple stations) may take some effort, so don’t delay in completing this form.

A few months ago, we wrote about pirate radio and the FCC’s efforts to stop these stations from popping up all around the country. In the last few weeks, the FCC has issued several fines to pirate radio operators – including one who shut down his operations and gave his transmitter to the FCC when they first inspected his facility, only to start up again someplace else a few weeks later (see the order proposing a $15,000 fine here). In some of the decisions (e.g. the one here proposing a $15,000 fine), the FCC references the websites and sales operations of these pirate radio operators. In light of this kind of brazen activity, we wonder how effective the threat of an FCC fine may be in curbing these operators. But the FCC does seem to be ramping up its activity in this area – as is evident from the webpage that they have created to document their efforts. In one interesting development, the FCC sent a warning letter to a property owner for a home from which a pirate radio station operated, warning that the operation was illegal – perhaps setting the stage for more aggressive actions against those who enable pirate radio operators. Watch as the FCC efforts develop in the coming months.

In the last few weeks, we’ve seen almost daily press reports of new lawsuits against media companies being sued for the use of photos on their websites without permission of the photographers. We’ve written many times about copyright issues that can arise if media companies put content on their website without getting permission of the copyright holder. Most recently, we wrote about the legal issues that can arise by taking photos or videos from Internet sites and reposting them to your own site, or using them in on-air productions. We’ve also written articles about how your ASCAP, BMI and SESAC license don’t give you rights to use music in video productions or to post online music that can be accessed in any on-demand fashion – so that such rights have to be cleared directly with copyright holders for such uses – including the use of music in podcasts. Even though these concerns exist, some copyright holders have been reluctant to sue, as litigation over these matters sometimes costs more than the likely recovery (though broadcasters, too, are concerned about litigation as the costs of defending against such a lawsuit can be very high). One idea has been kicking around for a long time – some sort of small claims court for resolving smaller copyright claims at less cost to the parties. Last month, a bill was introduced in Congress to create such a court – a new Copyright Claims Board.

The bill was sponsored by a single Congressman, and has thus far received the support of only a single co-sponsor. Given the time left in the current Congressional session, it would be unlikely to go any further this year. But with a promised examination of the Copyright Act generally on tap for the next Congress, some part, or all, of this proposal might again see the light of day next year. For a bill sponsored by a single Congressman, introduced late in the Congressional session with little time for approval, the bill is actually quite detailed, setting out a complete structure for the new court, as well as specific procedures that would be followed by any copyright owner seeking to adjudicate their claims through this new process. Continue Reading Congressional Proposal for Copyright Small Claims Court – What Does It Suggest?

Last week’s letter from the FDA detailing its position that there should be no change in marijuana being classified as a Schedule I drug under Federal law reinforces the fact that, under Federal law, the drug is still illegal – no matter what certain states may do to legalize or decriminalize its use. As the FDA’s decision emphasizes that the sale and distribution of the drug is still not permitted under Federal law, we thought that we would rerun the advice that we gave to broadcasters – Federal licensees – about running advertising for marijuana. As we said in February when we first ran this article, advertising for marijuana is still a concern.  Here is what we said in February:

Broadcasters, like other federally regulated industries, continue to be leery about advertising for marijuana, even in states where cannabis dispensaries have been legalized for medical or even recreational use.  This week, the NY Times ran an article about companies trying to provide ways for dispensaries to use electronic payment systems, as federally regulated banks and credit card companies often refuse to deal with these businesses.  This is despite guidance given by the Department of Justice to banks about how to handle funds coming from such organizations.  Where the federal regulator (the FCC) has provided no advice whatsoever, broadcasters as regulated entities need to be very restrained in their desires to run ads for these dispensaries that appear to be legal under state laws. Continue Reading FDA Continues to Schedule Marijuana as a Schedule I Drug – Doing Nothing to Clarify the Still Murky State of Broadcast Advertising

As the leaders of the FCC’s Incentive Auction Task Force said in opening a post on the FCC’s blog last week, “Who says nothing happens in Washington in August?”  Bidding in the initial stage of the FCC Incentive Auction’s forward auction phase begins on Tuesday, August 16th, and with it, the longest pre-auction run-up period in FCC history is finally over!

As noted previously on this page, most analysts do not expect the forward auction to generate enough revenue in this stage to close the Incentive Auction at the current 126 MHz spectrum clearing target.  (It would take over $88 billion, including funding reimbursements to TV stations that have to change channels after the auction.)  No one knows for sure, however, and the bidders themselves are subject to the gag order imposed by the FCC’s anti-collusion rules, so they can’t talk.  But unlike in the reverse auction, where the FCC provided virtually no bidding information to the public, the agency has set up an online Public Reporting System (the “PRS,” accessible at https://auctiondata.fcc.gov/public/projects/1000), which will provide information on the progress of the forward auction after the end of each bidding round.

In particular, the PRS “Dashboard” page will provide information regarding the progress of the forward auction toward meeting the so-called “final stage rule,” and the “Product Status Stage 1” page will show, for each category of license in each market in the just-completed round, the aggregate demand and the supply, the price at the end of the last completed round, and the price for the next round, among other things.  This will give us the ability, at least in general terms, to tell how the auction is going.  Nothing like an FCC auction to inject some excitement into the dog days of August!

While the trade press has been full of reports that the FCC has voted on an order addressing the issues raised in its Quadrennial Review of its multiple ownership rules, and that the decision largely left those rules unchanged (including the broad ban on the cross-ownership of daily newspapers and broadcast stations), no final decision on the review has yet been released. However, we did see on Friday that, in the FCC’s list of matters pending before the Commission for approval “on circulation” (i.e. to be voted on without being considered at an FCC open meeting) the ownership item was removed from the list of pending items, seemingly confirming that the decision has in fact been voted on and is thus no longer circulating for approval. If the press reports are to be believed, there has been no major change in the rules despite much last minute hope for some relaxation of the newspaper cross-interest rule. The rules are thus likely to be those indicated by the Chairman in his blog post in late June, which we summarized here. Even if the most significant rules (e.g. local ownership rules for radio and TV – the “duopoly” rules, and the newspaper-broadcast cross-ownership rules) remain unchanged, that does not mean that the broadcast community should ignore the upcoming decision, as there are bound to be other issues addressed in the order that may be of significance.

In connection with the newspaper cross-ownership rules, while the press reports indicate that the rules will remain in place, there are reports that there will be some sort of waiver allowed, seemingly where economics justify the combination. If this is akin to the “failing station” waiver used to justify the ownership of 2 TV stations in markets where such ownership would normally not be allowed, some have wondered, given the economic state of the newspaper industry, if such a waiver would ever be used as it will be a rare case where a last-minute broadcast combination will rescue a failing newspaper. But we will need to see what the details are of the waiver standard to be applied. Continue Reading Preparing for the FCC’s Soon to be Released Decision on Changes to its Multiple Ownership Rules

In recent days, there have been a number of broadcast trade press articles about new regulations that have gone into effect for e-cig advertising. We wrote about the FDA proceeding which dealt with these rules here. There appears to be much confusion over what the new rules require, and what is effective now and what will become effective after an FDA rulemaking to determine the specifics of the requirements for e-cig advertising. Right now, as set out in an FDA blog post, there are new restrictions on the sale of e-cigs to those under 18. Also, requirements were already in place that prohibit the promotion of e-cigs by making health claims, and they have not changed. As we said in our prior article, saying that e-cigs are better for your health than regular cigarettes, or that they can help you kick the smoking habit, are prohibited.

In addition, new rules will take effect in two years that will require that e-cig ads have new warnings – specifically “WARNING: This product contains nicotine. Nicotine is an addictive chemical.” The FDA will, during that two year period, adopt rules that specify how that message will be conveyed in various advertising media. There have been trade press articles that have suggested that the e-cig ads will require tags containing 6 different specific health warnings. In fact, as we made clear in our earlier article, those warnings apply not to e-cigs, but to cigars, and are consistent with a prior settlement agreed to by the cigar manufacturers.

So the rules that are now effective do not appear as onerous as some recent articles may have suggested. Nevertheless, these rules are being appealed by some e-cig manufacturers, and at least one senator has put out a statement condemning their effect on the business of the e-cig industry. But, for now, stations should work with their advertisers to make sure that they comply with the current rules – avoiding pitches to those under 18, and avoiding health benefit claims, to keep those advertisers out of hot water with the FDA.

In a decision released last week, the FCC made clear that stations that have long periods in which they are not operated (perhaps being put back into operation for a day or two every year to avoid the automatic cancellation of their licenses) are not operating in the public interest, and are putting their license in jeopardy. In last week’s decision, the station had been essentially silent for most of the last 4 years of its license renewal period (sometimes forgetting to ask for FCC permission to stay silent – which is required whenever a station is silent for 30 days). The FCC decided to fine the licensee $5000, and give it a short-term renewal, renewing the license for only two years (instead of the normal 8), while allowing it to be sold to another operator.

That decision is consistent with another decision about which we wrote here, where a similar fine and short-term renewal was issued to a broadcaster whose station had been silent for extended periods. These cases serve as a warning to broadcasters who may be facing economic difficulties who think that they can simply stop operating until someone comes along to make them an acceptable offer to buy their station. The FCC seems to be saying that you can’t just sit around with a silent station and wait – you need to move quickly to do something with your station to get it back on the air to avoid penalties and, in an extreme case, perhaps the loss of your license.

With the national presidential conventions complete, and most of the state primaries for Congressional, state and local offices either behind us or to occur in the next few weeks, the most concentrated period for the purchase of political advertising on broadcast stations is now upon us, to peak in the late October/early November frenzy. While most of the principles governing the FCC rules on political broadcasting are relatively established (and many are summarized in our Political Broadcasting Guide available here), there are always new advertising practices and opportunities that throw some new wrinkle into how those rules are applied. At a number of political advertising seminars that I have conducted this past year, and in discussions with broadcasters, one of the new wrinkles this year that has not captured the attention that it deserves is the political broadcasting issues raised by programmatic buying of advertising time.

In the last year or two, programmatic buying has become the buzzword in broadcast advertising circles for both radio and TV. It is intended to make ad buying easier and more akin to the experience that ad buyers have when they place online advertising, where most of it can be done from a computer with a few clicks of a mouse, anywhere at anytime. While programmatic buying is becoming more and more common in broadcast circles, is difficult to easily say exactly what it is, as what is called “programmatic buying” comes in so many different flavors. Not only does the concept mean different things in different systems, it is also being provided by all sorts of different companies, from rep firms, to broadcast technology companies, to companies that have specialized in specific types of advertising – like remnant ad sales (i.e. sales of unsold advertising inventory that broadcasters may have). And some station owners are signing up with multiple providers – sometimes at the same station. Continue Reading Programmatic Advertising Buying and the FCC’s Political Broadcasting Rules

A few weeks ago, we wrote here about the risks of using in advertising and promotions the Olympic trademarks, symbols or marks that may suggest an association with the Olympic Games.  The Olympic Committee recently demonstrated just how serious it is about its marks, sending a letter to non-Olympic sponsor companies, warning them  that they “may not post about the Trials or Games on their corporate social media accounts,” and may not  use the “USOC’s trademarks in hashtags such as #Rio2016 or #TeamUSA” (presumably to protect the investments of Olympic sponsors).  According to ESPN, which obtained a copy of the letter, it goes on to say that a “company whose primary mission is not media-related cannot reference any Olympic results, cannot share or repost anything from the official Olympic account and cannot use any pictures taken at the Olympics.”  Apparel company Oiselle tested the waters earlier this month by posting a photo of athlete Kate Grace after winning the 800 meters at the trials, and was promptly contacted by USOC with a request to remove the pictures (the company opted to leave the pictures up but blurred any Olympic imagery).  So while media companies have some wiggle room to cover the news from Rio, non-media companies are essentially on an Olympic-sized lockdown.

This restrictive stance did not go unnoticed by comedian Stephen Colbert, who earlier this week took the Olympic Committee to the mat with a biting parody that pokes fun at the Committee’s militant protection of its trademarks.  Colbert’s routine, available here, cleverly turns the Olympic rings into five interlocking CBS symbols and introduces the show’s new summer sponsor, MUSA TEA.  After explaining that the tea is brewed “from the freshest mint in Morocco’s Musa mountains,” he encourages fans to share with family and friends by using the hashtag #TEAMUSA. Continue Reading Stephen Colbert Brews Up a Parody on Aggressive Protection of Olympic Trademarks