Recently, FCC staff dismissed a request by the organization Free Press asking the FCC to investigate the broadcast of the President’s press conferences on the coronavirus and programs where commentators supported the President’s pronouncements.  In addition to an investigation, the request asked that the FCC require that broadcasters “prominently disclose when information they air is false or scientifically suspect” in relation to these press conferences and other broadcasts.   Free Press suggested that the FCC had the authority to take this action under its broad mandate to regulate in the public interest.  It also cited the FCC’s hoax rule as providing support for such an action.  As we have written before, the hoax rule is designed to prevent broadcasts that pose the risk of imminent harm to the public by potentially tying up first responders and emergency response teams for purported disasters and crimes that are not real.  FCC staff dismissed the Free Press complaint, finding that the FCC is forbidden by Section 326 of the Communications Act from censoring the speech of broadcasters or otherwise abridging their freedom of speech.  These First Amendment principles largely keep the FCC out of content regulation (with the limited exceptions of regulation in areas like indecency, obscenity and sponsorship identification where the message is not being censored, just certain means of expression).

In the Free Press decision, the FCC concluded that, in covering a breaking news story like the pandemic, it would be impossible for a broadcaster to fact check every statement made in a press conference and correct any misstatements in anything approaching real time, as there is so much room for interpretation of any statement made on these ongoing matters.  It would also be impossible for the FCC to police any such mandate without trampling on First Amendment principles, as it would require the FCC to become the arbiter of the truth for many claims made on television.  The FCC declined to take on that role, and noted that the hoax rule is narrowly drawn to avoid these First Amendment issues.  That rule only punishes clearly false broadcasts that could foreseeably tie up first responders or cause substantial public harm.  It does not get the FCC involved in evaluations of the truth of political statements and policy pronouncements.  This is a position that has consistently been taken by the FCC, and one that we often see misstated in connection with demands for the take-down of issue advertising and non-candidate political attack ads.
Continue Reading FCC Denies Application of Hoax Rule to Trump Press Conferences on COVID-19 – Looking at the First Amendment and the Commission’s Regulation of Political Speech

With April Fools’ Day falling on a Sunday this year, perhaps the potential for on-air pranks is lessened. But, then again, who knows what weekend talent may be planning? So, as we do every year about is time, we need to play our role as attorneys and ruin the fun by repeating our reminder that broadcasters need to be careful with any on-air pranks, jokes or other bits prepared especially for the day.  While a little fun is OK, remember that the FCC does have a rule against on-air hoaxes. While issues under this rule can arise at any time, broadcaster’s temptation to go over the line is probably highest on April 1.  The FCC’s rule against broadcast hoaxes, Section 73.1217, 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 that fits within this definition and causes a public harm, 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 falsely claimed that they had been taken hostage, and another case where a station broadcast bulletins reporting that a local trash dump had exploded like a volcano and was spewing burning trash.  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 responding to real emergencies.  In light of this sort of incident, the FCC adopted its prohibition against broadcast hoaxes.  But, as we’ve reminded broadcasters before, the FCC hoax rule is not the only reason to be wary on April 1. 
Continue Reading With April Fools’ Day Coming Up, Plan Your On-Air Pranks with Care – Remember the FCC Hoax Rule

With April Fools’ Day only a few days away, we need to play our role as attorneys and ruin the fun by repeating our annual reminder that broadcasters need to be careful with any on-air pranks, jokes or other bits prepared especially for the day.  While a little fun is OK, remember that the FCC does have a rule against on-air hoaxes. While issues under this rule can arise at any time, broadcaster’s temptation to go over the line is probably highest on April 1.  The FCC’s rule against broadcast hoaxes, Section 73.1217, 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 that fits within this definition and causes a public harm, 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 falsely claimed that they had been taken hostage, and another case where a station broadcast bulletins reporting that a local trash dump had exploded like a volcano and was spewing burning trash.  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 responding to real emergencies.  In light of this sort of incident, the FCC adopted its prohibition against broadcast hoaxes.  But, as we’ve reminded broadcasters before, the FCC hoax rule is not the only reason to be wary on April 1. 
Continue Reading Plan Your April Fools’ Day On-Air Pranks with the FCC in Mind

With April Fools’ Day only a few days away, we need to play our role as attorneys and ruin the fun by repeating our annual reminder that broadcasters need to be careful with any on-air pranks, jokes or other bits prepared especially for the day.  While a little fun is OK, remember that the FCC does have a rule against on-air hoaxes – and, while issues can arise at any time, broadcaster’s temptation to go over the line is probably highest on April 1.  The FCC’s rule against broadcast hoaxes, Section 73.1217, 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 falsely claimed that they had been taken hostage, and another case where a station broadcast bulletins reporting that a local trash dump had exploded like a volcano and was spewing burning trash.  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 responding to real emergencies.  In light of this sort of incident, the FCC adopted its prohibition against broadcast hoaxes.  But, as we’ve reminded broadcasters before, the FCC hoax rule is not the only reason to be wary on April 1. 
Continue Reading In Thinking About April Fools’ Day Pranks, Remember the FCC’s Hoax Rule and other Potential Liability

The FCC is cracking down hard on television stations and cable companies who use EAS alerts – or even simulations of such alerts – in advertising, promotions, and programming.  In two orders released this week, the FCC imposed big penalties on video companies who used fake EAS alerts in commercial messages.  In one case, it fined a cable programmer (Turner Broadcasting) $25,000 for the use of a simulated EAS tone (not using the actual tone, but just a set of tones that sounded like the EAS alert) in a promotion for the Conan O’Brien program.  In a consent decree with a TV broadcaster, in exchange for a $39,000 voluntary payment to the FCC and the adoption by the station of a series of policies to avoid similar problems in the future, the Commission agreed to dismiss a complaint against a station that had used simulated EAS tones in a commercial for a local store.  These decisions were coupled with two other announcements to make the point that the FCC wanted to demonstrate the importance that it places on EAS and its lack of tolerance for any non-emergency use of anything sounding like the EAS tones that could possibly confuse the public.

At the same time as the two decisions were released, the FCC issued a press release emphasizing the importance of EAS and how such actions trivialized the alert system.  A Fact Sheet was also released, making four documents all emphasizing the importance of EAS, and the threat posed to real warnings by any sort of use of sounds that could be confused for the EAS alerts.  Where does the FCC get its authority to impose such fines?
Continue Reading Penalties of $39,000 and $25,000 Assessed For Video Programming Containing Fake EAS Messages

There have been many Washington developments for broadcasters in the last week – and while it was all occurring, our Blog was undergoing a makeover, so some of the articles that we published in the last week may have been missed.  Perhaps the biggest news was the confirmation and swearing in of the new FCC Chairman, Tom Wheeler.  Last week, we wrote this article setting out the many legal issues of relevance to broadcasters that will be facing the new Chair.  Among the first issues that will be dealt with is the modification of the FCC’s limits on the foreign ownership of broadcast stations, which is scheduled for consideration by the FCC at their open meeting next Thursday.  We wrote about the issues in that proceeding here.

One of the last issues considered by Acting Chairwoman Mignon Clyburn was the FCC’s Notice of Proposed Rulemaking on the revitalization of the AM radio band.  We summarized the issues set out in that proceeding, and wrote in more detail about the proposal likely to have the biggest impact on AM broadcasters – a window for AM stations to seek FM translators.  That article also discussed how the FCC has seemingly decided to pull back from Mattoon waivers as part of that proceeding, and in a separate decision where the FCC decided that Mattoon waivers could not be used if the primary station is an FM.  We’ll write more about the rest of the AM revitalization proposals soon.  And, related to translators, we wrote about the extension of the last day for filing applications in the LPFM filing window to next week. 

As last week was Halloween, and also the 75th Anniversary of the broadcast of Orson Welles War of the Worlds, we wrote about the changing views on broadcast hoaxes, and what the FCC would do if the program was broadcast today.  Speaking of emergency broadcasts, the FCC yesterday issued a number of notices on fake emergency broadcasts.  We’ll write more about that issue shortly.
Continue Reading While Our Blog Was Getting A Makeover, Did You See Our Stories on the New FCC Chairman, Foreign Ownership of Broadcast Stations, AM Revitalization, Orson Welles and the Hoax Rule and More?