With the President declaring his candidacy for reelection in 2012, broadcasters thoughts may be turning to that election and the expected flood of money that may come into the political process.  But visions of next year’s elections should not be distracting broadcasters from their current political broadcasting obligations.  I’ve received many calls this year about whether broadcasters need to provide lowest unit rates to candidates in the races that are going on in 2011 – including many municipal elections and some special elections to fill various political posts.  As we have written before, if a station decides to sell time to a political candidate in a local race, that sale must be at the lowest unit charge for the class of time sold during the 45 days before a primary and the 60 days before the general election.  While state and local candidates need not be afforded the "reasonable access" that applies to Federal candidates, that merely means that stations do not need to sell these candidates any advertising time at all, or that stations may limit the purchase by state and local candidates to only the dayparts during which the station has more inventory.  But once the time is sold to one candidate in a race, most other political rules – including lowest unit charges, equal opportunities and the no censorship rule, all apply to the local candidate’s spots.

With the President now filing to become a candidate, and many Republican candidates likely to be filing soon, what obligations are imposed on stations?  For the most part, there is no effect on the rates to be charged to candidates or their campaign committees – those rates only become effective 45 days before the primaries – so the lowest unit charges for Presidential campaigns likely will not kick in until very late this year, or early next, for the early Presidential primaries and caucuses in states like Iowa and New Hampshire. But, as candidates become legally qualified, there will be reasonable access and equal opportunities obligations that will arise.  Candidates for President can request reasonable access to all classes and dayparts – even outside the 45 and 60 day windows before a primary and general election, respectively.  In the case of a Presidential campaign, a candidate becomes legally qualified in all states once he has become legally qualified in 10 states. There may be few Democrats who are to likely to challenge the President, so equal opportunities will most likely be a major issue only on the Republican side.  And, as we’ve written before, the FCC has determined that most interview programs where the content is under station control – even those that have little news value on the normal day – are deemed "news interview programs" exempt from equal time rules.  Thus, equal time is normally only an issue in making sure that all candidates have equal opportunities to buy spot time, and in those rare circumstances where a candidate appears on a purely entertainment program (e.g. as a character on a scripted TV show) or where the candidate is themselves a host of a broadcast program – and usually stations ensure that the candidates are long gone from hosting programs once they formally declare that they are running for a political office

Continue Reading President Obama Declares Candidacy – What Political Broadcasting Rules Should Broadcasters Be Considering Now?

The FCC has released the comment dates for its draft rules setting out when Environmental Assessments are needed to formally evaluate the environmental impact of the construction and major alteration of communications towers.  We wrote about these draft rules here, and described their history –  growing out of concerns by conservation groups about the effects of communications towers on migratory birds.  Comments on the Commission’s Draft rules are due on May 5. 

The FCC has granted an extension of time to submit comments in its proceeding to re-institute video description rules for television programming.  Comments are now due April 28th, and Reply Comments are due by May 27th.  A copy of the FCC’s recent Order extending the deadline is available here.  As we wrote about earlier (here), this rule making proceeding seeks to reinstate the Commission’s prior video description rules with certain modifications, as required by the Twenty-First Century Communications and Video Accessibility Act of 2010 (the CVAA). The proposed rules would require large market broadcast affiliates of the top four national networks and most cable operators and DBS providers to provide programming with audio narrated descriptions of a television program’s key visual elements beginning as soon as first quarter 2012.  Davis Wright Tremaine previously summarized the Act in our earlier advisory available here.

In addition, the FCC also just granted an extension of time to file comments in a related proceeding that seeks to implement other aspects of the CVAA.  That proceeding, addressing accessibility of equipment and Advanced Communications Services, was also initiated in early March and shares a similar timetable for promulgating rules as the video description proceeding.  Accordingly, the FCC did not grant the full 30-day extension sought by the parties, but rather has granted a two week extension of time for comments.  Comments are now due on April 25, and replies on May 23 in that proceeding.  Groups including the National Federation for the Blind and the Consumer Electronic Association requested a month-long extension in the comment date but, as Congress has required that these rules go into effect at the beginning of 2012, the Commission felt that it could only justify a two week extension and still be able to meet the statutory deadline.  So have those comments ready by April 25. 

The FCC has announced another round of EEO audits – looking at the compliance with the FCC’s EEO rules and policies of several hundred radio and TV stations across the country.  Those stations selected for the audit (see the list here) must provide the FCC with the last two year’s public inspection file reports, plus all records maintained by the selected stations that back up the data reported in the annual reports.  The full list of the documents that must be produced is contained in the FCC’s letter that went out to stations who were selected (a copy of that letter is available here).  In the FCC’s Public Notice  announcing the audit, the FCC emphasized that stations need to post the most recent EEO public file report on their websites, and this requirement was also included in the audit letter.  The FCC emphasized that station’s who do not meet this obligation (which the FCC can check from their desks in Washington) are subject to fines.  Responses to the audits are due by May 9, 2011.

EEO is again important to the FCC.  We wrote about the recent reminders about the advertising nondiscrimination clauses that broadcasters must include in their advertising contracts.  Broadcasters will also need to report on their EEO compliance at license renewal time – and license renewals are coming up for all stations across the country in the next 4 years – beginning with radio stations in Maryland, DC, Virginia and West Virginia in June (see our advisory on Preparing for the License Renewal, here).  And, as we reported in December, the FCC has been fining stations for less than complete EEO efforts.  So be prepared.  For further information about a licensee’s EEO obligations, see our advisory setting out the basics of the FCC’s EEO rules and our most recent advisory on the requirements for the annual EEO public inspection file report. 

The Commission’s recent Notice of Proposed Rule Making exploring possible changes to the television retransmission consent rules has now been published in the Federal Register setting the date for Comments as May 27th, with Reply Comments due by June 27.  As we wrote about recently (here), the FCC has commenced a rule making to consider revising its rules governing the interaction and negotiations between cable operators and broadcasters regarding carriage of local broadcast television stations.  Among other things, the NPRM seeks input on strengthening the good faith negotiation rules, changes to the notice requirements to require advance notice to consumers of carriage changes, and input on the potential benefits and harms of eliminating the Commission’s network non-duplication and syndicated exclusivity rules.  Again, interested parties have until May 27th to file comments with the Commission either in paper or through the FCC’s Electronic Comment Filing System.  Reply Comments will be due by June 27th. 

The question of the environmental impact of the construction or significant alteration of a communications tower has been a matter of controversy for quite some time.  Three years ago, when conservation groups challenged the FCC’s procedures on the approval of towers and the consideration of the impact that such towers have on migratory birds, the US Court of Appeals ordered the FCC to include more public participation in the determination of whether those towers required detailed environmental studies ( an "environmental assessment" or an "EA") before they could be built.  This week, the FCC sought comments on their Draft Environmental Notice Requirements and Interim Procedures for its Antenna Registration Program.  These rules propose:

  • That, before an Antenna Structure Registration ("ASR") is issued by the FCC, any applicant must first give public notice of the construction in a local newspaper or other local media source.  The proposal will also be listed on the FCC’s website.  These notices are to allow the public to comment on the proposal.   
  •  If an EA is required, the FCC will process that assessment before the filing of the ASR
  • An EA will preliminarily be required for all requests for an ASR for towers of more than 450 feet to determine its impact on migratory birds, though the FCC may modify this requirement after further study.

This proposal is somewhat tracks the proposed requirements for an EA that were set out in a settlement agreement between many affected parties, including conservation groups, the NAB and CTIA – an agreement about which we wrote here.  That agreement, while conclusively requiring an EA for towers of over 450 feet, stated that towers between 351 and 450 feet would be dealt with on a case-by-case basis, and left open the question of whether an EA would be required for towers of 350 feet or less. 

Continue Reading FCC Requests Comments on Draft Requirements for Environmental Assessments of the Impact of Tower Construction – Including The Effect on Migratory Birds

With April Fool’s Day only a few short days away, and with many articles running in the trade press about what stations should and shouldn’t do on that day, we thought that we would weigh in with our own legal reminder – no matter what you do, be careful not to violate the FCC’s rule against broadcast hoaxes.  That rule, Section 73.1217 of the Commission’s Rules, 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."  Air a program deemed a hoax, and expect to be fined by the FCC.

This rule was adopted in the early 1990s after several incidents that were well-publicized in the broadcast industry, including one case where the on-air personalities at a station claimed that there was someone at the station who had taken them hostage, and another case where a station broadcast bulletins that announced that a local trash dump had exploded like a volcano, and was spewing burning trash around the local neighborhood.  In both cases, first responders were notified about the non-existent emergencies, actually responded to the notices that listeners called in, and were prevented from doing their duties responding to real emergencies.  In light of these sorts of incidents, the FCC adopted its prohibition against broadcast hoaxes.  But the FCC rule is not the only reason to be wary on April 1. 

Continue Reading Planning an On-Air April Fools Day Prank? – Remember the FCC’s Rule Against Broadcast Hoaxes

Broadcasters are inevitably moving toward a digital future – exploiting new Internet and mobile platforms to supplement their traditional over-the-air operations.  Last week, I conducted two sessions in Salt Lake City for the Utah Broadcasters Association, one on the legal issues to be considered in connection with broadcasters’ use of the digital media, and a second updating broadcasters on all the legal and regulatory issues that they face from Washington with their over-the-air operations.  Slides from the digital media presentation, Broadcasters Online: Legal Issues in the Cyber Jungle, are available here, and those from the broadcast update, the Top Ten Washington Issues that Should Keep Broadcasters Awake at Night, are available here.

To show how quickly things move in Washington, since the seminar, there have been two new developments that relate to topics discussed at the seminar.  On the day of the seminar, the Commission’s Enforcement Bureau came out with a policy statement about a certification that broadcasters need to include in all of their advertising contracts certifying that the advertising was not sold with a discriminatory purpose – as there will be a specific question about the certification in all license renewal applications.  We have summarized the requirements for the clause to be included in the advertising contract here. 

Continue Reading Digital Media Issues and a Washington Update for Broadcasters – Presentations to the Utah Broadcasters

The FCC has issued two Notices of Apparent Liability, each proposing fines of $4000 to TV station licensees, both for airing video news releases ("VNR") in news or information programs without sponsorship identifications.  In both cases, the station received the VNRs for free, but was paid nothing for including them in their programming.  The station had no indication that any other party supplying the VNRs were paid for providing them to the station.  Nevertheless, relying on some very old statements of policy contained in an FCC Public Notice from 1975, the FCC concluded that the provision of the VNRs in and of themselves, constituted valuable consideration to the station, and the fact that they highlighted the commercial products of the companies that produced them "to an extent disproportionate to the subject matter of the film", mandated a sponsorship identification.

Both cases rely on an FCC Public Notice, first issued in 1963 and updated in 1975 (which I have been unable to locate on the FCC’s website), which sets out examples of how to comply with the sponsorship identification rules. These two old Public Notices were cited, but not reproduced, in a 2005 Public Notice, warning broadcasters to be careful with their use of VNRs.  The specific example cited by the FCC was one set out in these notices dealing with a film on scenic roadtrips provided by a bus company.  In the examples provided, the FCC stated that if the video did not show the bus company’s name, or the bus company’s name was shown only "fleetingly" in pictured of the highway in a manner reasonably related to the program, there would be no sponsorship identification requirement.  In cases where the bus company’s name was clearly shown, "disproportionate to the subject matter of the film", then sponsorship identification would be required "as the broadcaster has impliedly agreed to broadcast an identification beyond that reasonably related to the subject matter of the film."  Based on these examples, the FCC levied the fines in the cases just released.  An examination of the facts of these cases is important to understand these fines and how far the FCC ruling in these cases extends.

Continue Reading FCC Fines Two TV Stations $4000 For Airing Video News Releases Without Sponsorship Identification, Even Though the Stations Were Not Paid for the Broadcast

The start of the FCC’s license renewal cycle for radio stations is close at hand, and we have issued an advisory to help radio stations prepare for the process.  A copy of the advisory is available here, and contains information about the pre- and post-filing announcements that stations are required to air, as well as information about recent changes to the FCC Form 303-S License Renewal application, and guidance on what radio stations should be doing as they head toward the filing date. 

Radio stations in Maryland, Virginia, Washington, DC, and West Virginia are the first batch to file on June 1st, just over two months away.  Even more pressing for stations in these states, however, is the requirement that they begin broadcasting their pre-filing announcements on April 1st.  The announcements continue on April 16, May 1, and May 16, for a total of four pre-filing announcements.  These announcements give notice to the local community that the station will be filing a license renewal application with the Commission and invite participation in the renewal process.  The precise language of the pre-filing announcements—which is dictated by the FCC’s Rules—can be found here.

The announcements should be aired in the primary language used on the station, so if the station broadcasts primarily in a foreign language, the announcements should be broadcast in that language. For commercial radio stations, at least two of the required pre-filing announcements must air on the station between 7 a.m. and 9 a.m., or 4 p.m. and 6 p.m. local time. If the station does not operate between 7 a.m. and 9 a.m. or between 4 p.m. and 6 p.m., then at least two of the required announcements must be made during the first two hours of broadcast operations. For noncommercial educational stations, the timing of the announcements is the same as for commercial stations, except that such stations need not broadcast the announcements during any month during which the station does not operate.

Next up in the queue will be radio stations in North Carolina and South Carolina, who will start their pre-filing announcements on June 1st in advance of filing their renewal applications on August 1st.