The FCC this week issued a Notice of Apparent Liability proposing a $233,000 fine to Cumulus Media for violations of the sponsorship identification rules.  The fine illustrates not only how seriously the FCC takes its sponsorship identification rules (particularly in the context of political and issue advertising) but also the how aggressively the FCC can act for even the slightest violation of a consent decree involving a prior violation of its rules.  If the FCC catches you once in a rule violation, don’t get caught again for the same violation – and if you agree to the terms of a consent decree in connection with that first violation, by all means abide by the letter of that decree or the FCC will not hesitate to exercise its full enforcement power.

This case involves alleged violations by Cumulus Media.  Three years ago, Cumulus entered into a consent decree with the FCC agreeing to pay a $540,000 penalty after admitting that it did not include a full sponsorship identification disclosure on issue ads supporting government approval of an electrical utility project in New Hampshire (see our article here on that consent decree).  As part of the consent decree, the company agreed to a 3-year compliance program to educate its personnel about the FCC’s sponsorship identification rules, to appoint a compliance officer to oversee compliance with the rules and answer questions, and to report to the FCC within 15 days any violations of these FCC rules.  In the Notice released this week, the FCC alleged that Cumulus reported that it had in two instances aired ads without the proper identification – each set of ads running 13 times before the lack of a proper identification was caught and corrected.  In one instance, the violation was reported to the FCC within two weeks, but in the other case, it was not reported to the FCC for approximately 8 months.  Based on this instance of late reporting, and the 26 sponsorship identification violations, the FCC proposed the $233,000 fine.  How did they come up with that number? Continue Reading $233,000 Proposed Fine for Sponsorship Identification Rule Violations – Warning, if the FCC Fines You Once, Don’t Do the Same Thing Again

Last week, the FCC started a new proceeding through the adoption of a Notice of Proposed Rulemaking to review several restrictions that currently apply to Low Power FM stations.  While doing so, it will also review the current rules, dating from the analog television days, restricting certain FM operations in the non-commercial reserved band of the FM dial where those operations are near Channel 6 TV stations.  Comments will be due on this proposal 30 days after it is published in the Federal Register, with Replies due 15 days later.

The LPFM proposals look at a number of issues.  The Commission asks if LPFM stations should be allowed to operate with directional antennas, which are currently routinely barred given that these antennas may be more difficult to operate and maintain.  When the rules were originally adopted, there was a fear that LPFM licensees, who may not have a technical background or substantial resources for engineering support, could not maintain those antennas so as to protect other FM stations operating on the same and adjacent channels.  Similar concerns currently limit LPFM stations from using on-channel boosters to fill in holes in their service area.  The FCC asks if these prohibitions can be lifted as the LPFM industry has become more mature, allowing LPFMs to use both directional antennas and on-channel boosters without risking increased interference to other stations. Continue Reading FCC Starts Rulemaking to Look at LPFM Issues and the Protection of Channel 6 TVs by Noncommercial Radio Stations and Whether “Franken FMs” Can Continue

The FCC’s new rules setting out a procedure to resolve complaints of interference from FM translators to full power stations will become effective on August 13. Initially, as we noted in our list of August regulatory dates for broadcasters, only the new policy allowing translators that cause interference to move to any available channel in their market was to become effective on that date. The remaining rule changes were to be assessed by the Office of Management and Budget for compliance with the Paperwork Reduction Act. It turns out that the OMB review has been completed and, according to a new Federal Register Notice, all of the new rules will become effective on August 13.

While these rules are set to become effective in less than two weeks, five Petitions for Reconsideration of those rules were filed last month, and comment dates have now been set on those petitions. Comments are due on August 15, with replies due by August 26. The reconsideration petitions raise many issues – from complaints that the FCC afforded too much protection to full power stations to complaints that the standards that were adopted make it too difficult for existing stations to raise a challenge. For instance, two petitions challenge the choice of the 45 dBu contour as the cut-off for interference complaints (suggesting that less protection should be given to full power stations, and one arguing that the Commission should have used the 54 dBu contour as the line at which complaints should be cut-off despite the showings of many parties that actual listening to FM stations goes far beyond that contour). On the other side, two petitions (see one here) argue that the FCC’s requirements for complaints to meet a desired-to-undesired signal ratio before they are considered to be legitimate is not an appropriate threshold consideration, and another contends that the Commission appears to have adopted a rule that only one complaint from a building would be counted in assessing interference complaints – effectively counting multiple complaints from different residents in big apartment buildings or dormitories as a single complaint. Another petition argues that allowing translator operators to shift to new channels to resolve interference complaints improperly infringes on future opportunities for new LPFM stations. In fact, LPFM advocates have requested a stay of the new rules, and the NAB filed an opposition to that request. Even though these petitions for reconsideration are pending, unless the FCC grants the stay request, the rules will go into effect on August 13.

Some important issues are raised in these petitions. Broadcasters interested in these issues should consider filing their comments with the FCC by the August 15 deadline, or respond to any comments filed by the reply deadline of August 26.

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.