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. 

Last week, we wrote about the new requirement for a nondiscrimination clause in all broadcast advertising contracts.  In the new license renewal applications, broadcasters must certify that they do not discriminate in the sale of advertising time and that their contracts contain the required certification.  Today, the Enforcement Bureau of the FCC issued an Enforcement Advisory, answering questions about the new requirement.  Unfortunately, that advisory really does little but reiterate what the FCC has already said – that the Commission is concerned about "No Urban, no Spanish dictates", and that broadcasters must make sure that there is no discrimination in the purchase of advertising time on their stations.  But, the Commission does make clear in an accompanying News Release, through a statement from Chairman Genachowski, that the Commission "will vigorously enforce its rules against discrimination in advertising sales contracts."  The advisory does highlight one new matter – that stations that use advertising rep firms or other sales agents must make sure that these agents have nondiscrimination clauses in their own contracts used to sell advertising time on the station. 

This policy has raised several questions from broadcasters.  Many have asked what they should do if they have no advertising contracts.  Apparently, many broadcasters, especially in smaller markets or when dealing with regular customers, book advertising through emails or phone calls – not formal contracts.  The FCC does not address how this should be handled.  We’ve suggested that broadcasters include the nondiscrimination clause in the exchanges that essentially form the contract – e.g. the email confirming the schedule, the rate cards offering the spots for sale, or other communications between the station and the advertiser.  We also suggest that stations adopt written contracts, as these contracts can cover issues that are important to broadcasters, e.g. indemnifications from advertisers that they have the rights to all the music and other material used in their ads, statements that the broadcaster reserves the right to preempt ads if they don’t like the content or if the broadcaster needs to run something more important, that advertising sold to one party should not be re-sold to anyone else, that the broadcaster is not liable for any consequential damages if an ad does not run for technical or other reasons, and similar issues.

Continue Reading FCC Issues Advisory on Nondiscrimination Clause Required to Be Included in All Broadcast Advertising Contracts – What Should the Clause Say? – Why An Advertising Contract is Important

UPDATE:  On March 23rd, the FCC granted a ten-day extension of the filing deadline.  Comments are now due April 28th, and Reply Comments are due by May 27th.

The FCC’s recent item proposing the adoption of video description rules was published in the Federal Register today setting the deadline for Comments in the proceeding. The FCC subsequently extended the deadline, and Comments are now due by April 28th, with Reply Comments due by May 27th.  As we wrote about recently (here), the FCC has initiated a rule making proceeding to reinstate its prior video description rules with certain modifications, as required by the Twenty-First Century Communications and Video Accessibility Act of 2010 (Act). 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.

Now, with today’s publication of the Notice of Proposed Rule Making in the Federal Register, the date for comments has been set, and the FCC is moving quickly to implement the rules.  In addition to proposing to reinstate the rules previously adopted by the FCC, the item asks many practical implementation questions about refreshing market rankings, applicability of the rules to low power television, and what constitutes the “technical capability” to pass through video descriptions. In particular, the FCC seeks to refresh the list of the top 25 DMAs, as well as update the top five national nonbroadcast networks subject to the rule.  Interested parties may file comments with the FCC either in paper or electronically through the FCC’s Electronic Comment Filing System on or before April 28, 2011.  

As medical marijuana has become legalized or decriminalized in many states, broadcasters have looked at advertising for the services of clinics and dispensaries as a potential new revenue source. As some community newspapers and other local media have begun to advertise dispensaries in states where medical marijuana is legal, we’ve been asked many times whether broadcasters can start to run such ads as well. Many radio and TV stations have even been approached by the operators of these clinics, seeking to run advertising schedules. Should broadcasters accept such ads? We urge caution.

Even though many states have decriminalized medical marijuana, possession and distribution of marijuana is still a Federal crime.  And broadcasters, unlike most other local media outlets, operate with Federal licenses. While the current US Attorney General has said that he will not criminally prosecute medical marijuana cases, the prohibition against marijuana remains on the books.  A careful reading of the Attorney General’s directive on medical marijuana shows that the Department of Justice has not said that medical marijuana is a legal substance, but only that, as a matter of prosecutorial priorities, the DOJ will not use its resources to target dispensaries and clinics operating under the color of state laws.  So, while this Attorney General may not direct his Department to prosecute medical marijuana users or distributors, the possession of marijuana remains a Federal crime, and the Attorney General’s memo makes clear that state laws cannot change this conclusion.  Thus, there may be some zealous local Federal prosecutor who decides to enforce the law on his or her own. Or, perhaps of more concern to the broadcaster, is the fact that there may be some local citizen in an area served by a radio or television station that runs such an ad who complains about the content of the ad to the FCC. In fact, we understand that there are already such complaints pending at the FCC. 

Continue Reading Advertising Medical Marijuana on Broadcast Stations – Is It Legal, What Will the FCC Think?

Under FCC policies, stations licensed as noncommercial educational (NCE) stations cannot conduct fundraising for parties other than the station licensee if such fundraising will disrupt the normal program schedule of the station.  So the Jerry Lewis Telethon and similar charitable programming efforts cannot be conducted by noncommercial stations without a waiver from the FCC.  In recent years, when there have been major disasters, like Hurricane Katrina and the Haitian earthquake, the FCC has adopted a liberal waiver policy to allow noncommercial stations to join the rest of the world in aiding the victims of such tragedies.  This week, the FCC adopted a similar policy for noncommercial stations wanting to conduct fundraisers for Japanese relief efforts, issuing a Public Notice setting out that policy.  Waiver requests can be filed by an email to the head of the Audio or Video Division of the FCC (depending on whether the request is coming from a radio or TV station), setting out the following information:

a. the nature of the fundraising effort;

b. the proposed duration of the fundraising effort;

c. the organization(s) to which funds will be donated; and

d. whether the fundraiser will be part of the licensee’s regularly scheduled pledge drive or fundraising effort. 

As we wrote when the Haitian Notice was issued, there does not seem to be a need, under FCC precedent, for stations to have to request permission from the FCC if these fundraising appeals will not interrupt regular station programming.  Yet it might be safest to ask for that permission if the requests will be regularly run during the course of programming on the station – to avoid any question about such activities.  Of course, the question could be raised as to whether the FCC really needs to have this rule any longer – or if it might not be more appropriate for noncommercial stations to use their own discretion to make programming decisions about the fundraising that they want to do in the public interest.  But that is a question for another day – as stations have a good cause to which they can contribute now, and the FCC has given them the ability to do so on an expedited basis. 

Broadcast engineers are often tasked with much of a station’s regulatory compliance, as well as its planning for the future.  At last week’s Michigan Association of Broadcasters Great Lakes Broadcasting Conference, I did a presentation to the a session of broadcast engineers and others, sponsored by the local chapter of the Society of Broadcast Engineers. We covered the industry’s macro issues of spectrum reallocation for television, and HD Radio for radio, and the possible use of TV Channels 5 and 6 for radio.  We also talked about restrictions on the movement of AM and FM stations based on the FCC’s rural radio proceeding, and the issues between translators and LPFM stations.  Then we talked about many of the day to day issues that can get a station in trouble – particularly with license renewals coming up.  A copy of the slides that I used in the presentation is available here.  Additional information on many of the topics that I discussed last week are also available on our blog, as listed below.

Some of the articles that we have written that would be important to members of the engineering community include the following:

  • The latest on White Spaces, and the development of the database that will be used to protect TV stations, translators, cable headends and other current users of the TV spectrum, an issue that I neglected to address at the conference 
  • A summary of the FCC’s proceeding to determine how incentive auctions would work to clear space in the TV spectrum for wireless broadband, and on making VHF channels more useful for digital television
  • The latest on video description of TV programming can be found here.
  • Information about closed captioning requirements and the new complaint process for issues about such captioning can be found here
  • Our checklist for the commercial broadcaster’s public file can be found here
  • Information on the FCC’s rural radio proceeding can be found here

There are plenty of other articles on the Blog about FCC Fines, LPFM/FM translator issues, Tower issues, EAS and other matters that are important to engineers – and to the stations they work for.

Continue Reading FCC Legal Issues for Broadcast Engineers – A Presentation to the Michigan Broadcasters

The FCC today released a Public Notice announcing new provisions in its license renewal Form 303S – the form that radio and television stations will be using to file license renewal applications, starting with license renewals for radio stations in DC, Virginia and West Virginia in June.  The Notice addressed several changes in the license renewal form – including the addition of certifications concerning whether a station was off the air at any point during the license term for a period of more than 30 days, whether principals of the licensee have interests in daily newspapers in the same area, and whether the station is in compliance with the RF radiation rules.  Two other issues of note were raised in the Public Notice – one dealing with stations that have not received a license renewal from the last license cycle, and one dealing with the newly required certification that stations must make – that their advertising contracts contain a nondiscrimination provision to assure that advertisers are not purchasing advertising on the station for a discriminatory purpose. 

We’ve written about the advertising anti-discrimination certification before, suggesting language that stations include in their contracts.  What is new in today’s notice is that the FCC has clarified that the certification only covers the period from today’s notice until the filing of the license renewal application.  So stations that do not have such certifications can still get them into their contracts now to avoid certification issues later.  In our previous articles on this subject, we’ve noted that this is a confusing requirement, and that even its supporters have urged the FCC to clarify it. Today’s Notice only says that stations must avoid advertising purchases made on the basis of "no urban, no Spanish" dictates, but does not go any further in interpreting the requirements of this policy. 

Continue Reading FCC Clarifies Requirement for Antidiscrimination Clause in Advertising Contracts – And Sets Out Other License Renewal Changes