The FCC yesterday issued an Order announcing that it was extending the comment dates for its rulemaking to examine the effectiveness of its EEO rules. We summarized that rulemaking here. The new comment deadline is September 20, with reply comments now due by November 4. As we wrote here, this proceeding has already attracted the attention of a coalition of small broadcasters who have filed comments seeking relief from many of the paperwork obligations that are imposed on broadcasting companies with less than 50 employees. We expect other ideas as to how to make the rules more effective to be advanced in this proceeding – and now parties have more time in which to craft their comments.

Once upon a time, August was a quiet month in Washington, when everyone went on vacation. Sure, there are plenty of vacations that will happen this coming month, but it seems that regulatory activity no longer takes a break. For example, August 1 is the due date for the filing with the FCC of license renewals for all radio stations (including translators and LPFM stations) in North and South Carolina, and the filing of associated EEO forms for all full power radio stations in those states. With the renewal filing comes the obligation that these stations start airing, on August 1 and August 16, their post-filing announcements informing the public about the submission of the license renewal applications. Radio stations in Maryland, Virginia, West Virginia and the District of Columbia, who filed their renewals on or before June 2, also need to keep running their post-filing announcements on these same dates. Radio stations in Florida, Puerto Rico and the Virgin Islands, who are in the next license renewal group with their renewal applications to be filed by October 1, need to start broadcasting their pre-filing announcements this month, also to run on the 1st and 16th of the month. See our post here on pre-filing announcements.

Commercial and noncommercial full power and Class A Television Stations and AM and FM radio stations in California, Illinois, North Carolina, South Carolina, and Wisconsin that are part of an employment unit with five or more full-time employees must place their annual EEO public inspection file reports in their online public file. Links to those reports should also be placed on the home pages of these station’s websites, if they have a website. The effectiveness of these EEO public file reports, and the EEO programs of which they are a part, are being reviewed by the FCC in a proceeding started by a Notice of Proposed Rulemaking about which we wrote here. Comments on this notice asking for suggestions about how to make the EEO rules more effective are due August 21, with reply comments due by September 5. Continue Reading August Regulatory Dates for Broadcasters – License Renewals, EEO, Music Consent Decree Comments, EAS Test, LPFM NPRM and More

CBD has been a hot topic for media companies – trying to decipher what products are legal and which can be advertised. We have written a number of articles on CBD, hemp and other cannabis advertising issues (see, for instance, our articles here, here, and here). Each of these articles highlights the confusion about the current state of the law on CBD, not just in the media, but across all industries. Some recent government correspondence indicates that clarity on the legality of CBD production may be coming soon, but that any resolution about the health claims that can be made about CBD products and their use in food and drugs may still be years away. These letters also show that the advertising community risks government concern if advertising does not recognize the continuing regulatory concerns about CBD health claims and its use in food and drugs.

The correspondence that most directly addresses marketing issues is this Warning Letter from the FDA to a CBD distributor in which the FDA warned the distributor about health claims made about its products in the promotional materials that it was distributing online. Many seemingly generic claims about the benefits of CBD were singled out as a source of concern, along with many claims that were more specific citations to studies suggesting that CBD was helpful in treating defined ailments. From the tone of the FDA letter, claims about third-party findings on specific health benefits should not be included in promotional materials. Nor should the more generic claims like these cited in the letter as being problematic:

  • “CBD oil is becoming a popular, all-natural source of relief used to address the symptoms of many common conditions, such as chronic pain, anxiety . . . [and] ADHD.”
  • “The Benefits of CBD Oil for ADHD . . . It’s not unusual for people with ADHD to feel anxious and on the edge. CBD is known for its anti-anxiety properties that can promote relaxation and stress relief. It can also help to restore focus and ability to concentrate on specific tasks, as well as reduce impulsivity.”
  • “CBD can successfully reduce anxiety symptoms, both alone and in conjunction with other treatments.”
  • “CBD oil can be used in a variety of ways to help with chronic anxiety.”
  • “Some of the most common reasons to use CBD oil include . . . Chronic pain . . . Mental conditions like anxiety, depression, and PTSD . . ..”
  • “CBD . . . can be used to help manage a wide range of health conditions, such as . . . Anxiety and depression . . . Chronic or arthritic pain . . ..”
  • “Some of the most common reasons to use CBD oil include . . . Chronic pain . . . Mental conditions like anxiety, depression, and PTSD . . ..”

Another issue that arises in advertising CBD and other hemp products is whether any of these products are being legally produced. An interpretative opinion from the USDA sets out under what circumstances the production of CBD products is currently legal in the US. This opinion sets out that the only legal hemp products being produced at this point are the limited products being produced for research purposes under the 2014 Farm Bill. As we wrote here, the government has previously stated that it did not seem to think that commercial production was authorized under the 2014 Bill, yet some growers operating under these pilot plans seem to be relatively big businesses. Otherwise, hemp products including CBD can only be grown pursuant to provisions of the 2018 Farm Act with a USDA license or one issued by a state or tribal nation under a plan approved by the USDA – and the USDA has not yet approved any such plans nor even adopted the framework under which they will evaluate such plans. According to the USDA website, the USDA intends to have regulations in effect by Fall 2019 to accommodate the 2020 planting season. If a state or tribal nation submits a plan before that time, USDA will not review or approve the plan until the regulations are implemented. Thus, there appears to be a very limited universe of hemp products that are currently legally produced and thus can be used for making hemp-derived CBD. Continue Reading Another Warning Letter on CBD Promotional Copy – and Some Ideas on Timing of Government Clarity on Rules on Legal Hemp Products

Last year, as we wrote here, the FCC adopted a number of new rules regarding its emergency communications practices using the EAS system. At that time, soon after all the attention that had been given to the EAS alerts about the false Hawaii missile attack, the FCC adopted rules requiring stations to report to the FCC if they participated in an EAS alert about a fake emergency. Also, the FCC authorized EAS officials to conduct EAS tests using the real event codes for particular emergencies, but only after taking precautions to warn EAS-participating stations and the public that these tests were only tests, and not real emergencies. The effective dates of those new rules were put on hold pending review of the Office of Management and Budget under the Paperwork Reduction Act. According to a Federal Register publication this week, they have now been approved, and thus these rules are now in effect.

The FCC also approved a requirement for state emergency coordinators to file with the FCC in a new electronic database all Statewide EAS plans and any updates to those plans. The OMB also approved the data collection requirements of that rule but the rule will not become effective until one year after the FCC announces that it has created the electronic database to receive these updated plans. We recently noted that the FCC last month published links to statewide plans, and we urged state coordinating committees and participating broadcasters to review these plans to make sure that they have not become out of date with the passage of time. Given the upcoming new filing obligations, it would appear that this review is even more important. Continue Reading Rules Requiring FCC Reporting of False EAS Alerts and Allowing Live Event Code Tests Become Effective

In the last few days, much has been written about the decision of a national radio broadcaster to prohibit the host of a country music radio program from airing an interview of a Democratic Presidential candidate Pete Buttigieg on a nationally syndicated program. This decision has prompted many questions as to when the FCC’s equal opportunities (sometimes referred to as “equal time”) rules apply to appearances of a candidate on a broadcast station.

Two years ago, we wrote about a Declaratory Ruling issued by the FCC’s Media Bureau which addressed many of these issues. In that decision, the FCC determined that a syndicated television program, “Matter of Fact with Fernando Espuelas,” was an “exempt program” which would not give rise to equal opportunities. The FCC rules state that bona fide news interview programs are exempt programs, meaning that appearances on the program by legally qualified candidates for public office would not give rise to equal opportunities for other candidates to get free time on the stations which aired the program. In reviewing that request for declaratory ruling, or in considering whether any program would be exempt, what does the FCC consider? Continue Reading Looking at Equal Opportunities – When Does the Appearance of a Political Candidate on a Broadcast Program Trigger Equal Time Obligations?

Yesterday’s Federal Register featured the official notice of the FCC’s Notice of Proposed Rulemaking on its EEO rules. The NPRM, which we summarized here, is intended to look at how the FCC can make its EEO enforcement more effective – asking for comments on what parts of the current rules are good, and which should be changed. The Federal Register publication sets the dates for comments. Initial comments are due August 21, with reply comments due September 5.

Already, a coalition of smaller broadcasters has filed comments suggesting, among other things, that EEO enforcement should no longer be conducted based on local employment units, but instead the FCC’s EEO review should be conducted on a company-wide basis. The premise is that, as companies no longer are required to maintain local main studios or to locally originate programming, the employees dealing with any particular station may no longer be locally based, so that the hiring process for those stations may be conducted anywhere. The proposal also suggests that companies with fewer than 50 employees be exempt from FCC EEO enforcement as opposed to the current exemption for fewer than 5 full-time employees. Picking 50 employees as the cut-off would harmonize the FCC’s approach with the one used by the EEOC for many of its employment guidelines, and it is also the number of employees at which a company will usually have a human resources person to deal with EEO issues. In some ways this proposal would end up being more inclusive than the current rules (as it would include corporate employees not attached to specific stations, whose hiring is now not subject to FCC review), but for many small broadcasters, it would offer relief from the FCC’s EEO paperwork obligations. The coalition’s comments are the first set of comments to be filed in response to the NPRM. Broadcasters interested in offering their own ideas on EEO enforcement should file their suggestions with the FCC by the August 21 deadline for initial comments.

Last week, a federal District Court ruled that the US Department of Health and Human Services did not have the authority to require that drug manufacturers include pricing information on their television commercials.  We wrote about that requirement, here – a requirement that was supposed to go into effect this summer.  However, the District Court judge found that there was no statutory authority on which HHS could rely for the adoption of this rule.  HHS argued that its authority to adopt rules to administer the Social Security program was sufficient to adopt the advertising requirement as that requirement would lead to lower prices for drugs purchased by those using Social Security.  But, the Court found, Congress did not include any specific language giving HHS authority to regulate advertising on prescription drugs, nor did the Court believe that the required disclosure of pricing information was necessary to “administer” the Social Security program, even if it did have the effect of lowering prices as HHS hoped.  Given this decision, the rules will not go into effect.  Barring an appeal by HHS, it would appear that Congress will have to take action before these rules could be adopted.  So, for now, TV broadcasters will not be seeing mandatory disclosures of drug prices on the ads that they run.

The FCC at its open meeting last week took two actions important to TV broadcasters – modifying its children’s television rules and changing the process by which TV stations give notice to MVPDs of their must carry or retransmission consent elections.  On the children’s television rules, the FCC largely adopted the proposals in their draft order, which we summarized here.  The major additions to the final version of the Order (here) were the individual statements of the Commissioners, where the Republicans supported the decision as a common-sense reaction to changing market conditions (including an increase in the number of over-the-air stations since the rules were initially adopted, as well as all sorts of new media competition), while the Democrats worried that moving some long-form educational and informational programming addressed to children off the broadcaster’s primary program streams, and the replacement of some of that programming with short-form programming, would have an adverse impact on children – particularly children in lower-income households with less access to digital alternatives.  The new rules will become effective after their publication in the Federal Register.  Comment dates on the Further Notice of Proposed Rulemaking to consider whether TV broadcasters can be relieved of some children’s television obligations by supporting the development of educational and informational programming on other TV stations will also be determined after Federal Register publication.

Also adopted at the meeting was a Report and Order setting out new rules allowing TV broadcasters to give notice of their next set of must-carry or retransmission consent notifications electronically rather than by certified mail, as is currently required.  The Order sets out a process where, before the next election deadline in October 2020, broadcasters need to include in their online public files a statement as to whether they have elected must-carry or retransmission consent on MVPDs in their market (and, if the station has elected one carriage option for all systems, the notice can be as simple as “Station WXYZ has elected must-carry on all cable systems in the Anytown DMA”).  If the station decides to change that election for any MVPD, they notify the MVPD of the change by email.  MVPDs must register a contact person for the receipt of such notices in their public files and in the FCC’s COALS database, so that broadcasters know who to contact if they are planning to change their election.  The broadcaster emails its notice of a changed election to the cable system (with a copy to a new FCC email address) and puts a copy of the election in its online public file.  The cable system is supposed to electronically acknowledge the receipt of the notice (if it does not, the broadcaster is supposed to call the COALS-registered person at the registered phone number to make sure that the notice has been received – but if there is no response, the FCC and public file notices will suffice.  Of course, not having this information in a TV station’s public file would be a violation of the public file rules. Continue Reading Actions Taken at July Meeting – FCC Adopts Changes to Children’s Television Rules and to TV MVPD Carriage Election Notices Procedures

In a very important proceeding we summarized here, the Department of Justice’s Antitrust Division is reviewing the antitrust consent decrees that govern ASCAP and BMI – the decrees that require that these performing rights organizations treat similarly situated licensees (and artists) in the same way and which allow a Court to review the reasonableness of the rates that ASCAP and BMI propose. Those comments were initially due tomorrow, but the DOJ announced on its website that the comment deadline has been extended until August 9, giving interested parties more time to prepare and document their submissions.  As broadcasters and internet audio companies rely on the consent decrees to regulate the fees that they pay for the public performance of musical compositions, this extension should give more parties the opportunity to consider how important these decrees are to the efficient operation of the entertainment marketplace and file their comments by the new deadline.

The FCC earlier last week posted on its Blog an article from the Chief of its Public Safety and Homeland Security Bureau about state EAS plans, stressing how important these plans are to making sure that any emergency message conveyed through an EAS alert is properly transmitted to all who are supposed to receive it, so that it ultimately reaches the members of the public who should be aware of the emergency situation which triggered the alert.  The article contains a link to all of the state EAS plans that have been submitted to and approved by the FCC.  The FCC urges that state EAS managers regularly review and send updates to these plans to the FCC at least yearly and urges stations to review the plans to make sure that they comply with their state requirements by monitoring the stations or other sources that they are supposed to monitor to get the emergency information which they relay to the public.  As broadcast employees and stations change ownership and call letters change over time, it is important that stations review their state plan and alert their state EAS committee of any needed changes. Only with an updated and accurate plan can the FCC be assured that word gets out to the right people in the event of an emergency.  A link to the state plans available is available here on the FCC website.

The need to review these plans is particularly important given the upcoming EAS test. As we wrote here, a Nationwide EAS test is scheduled for August 7. All broadcast stations have an obligation to report to the FCC on their ability to receive and retransmit the nationwide test. Last week was the due date for the updating of ETRS Form One which makes sure that information about EAS participating stations is accurate. Once the test is conducted, stations need to report on the day of the test, using ETRS Form Two, whether they received and broadcast the alert message. Flaws in EAS operations and incorrect monitoring of assigned stations could become evident at that time. So this is a good time to check your monitoring assignments and the state of your EAS equipment to make sure that, when the test is conducted, your station will be able to report that it received the alert as expected and, more importantly, in the event that there is a real emergency, your station will be in a position to relay important emergency information.