Discussion of FCC, copyright, advertising and other legal issues of importance to radio and television broadcasters and other media companies
Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations. Also, we include a look at actions to watch in the week ahead.
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The FCC’s Video Division yesterday issued a Notice of Apparent Liability to a Baltimore TV station for airing a commercial for a Hot Wheels product in eight showings of the program “Team Hot Wheels.” The Commission has, for almost 30 years, had a policy against what they term “program-length commercials” – programs that feature characters who are also featured in a commercial that runs during the program. The FCC has been concerned that children may not perceive the difference between a program and a commercial that runs in that program if both feature the same characters. If the whole program is perceived as promoting the product, then the program would exceed the commercial limits in children’s programming set by Congress and incorporated in Section 73.670 of the rules – 10.5 minutes per hour on weekends and 12 minutes per hour on weekdays.
A decade ago, this was a significant issue. On one day in 2010, the FCC issued seven Notices of Apparent Liability, seeking fines of as much as $70,000 for these violations (see our article here). Even before that, we noted how stations can inadvertently find themselves in these situations when featured characters unexpectedly pop up in commercials for products other than those that are directly for products featuring those characters. So, where a cartoon character appears on an ad for a video game, that can make the entire program a commercial – even though the broadcaster may not have realized until after the fact that the character would be featured in the video game commercial. In this week’s case, the facts are a little different, but still emphasize the care that TV broadcasters need to exert to ensure that nothing is aired that could make a program into a program-length commercial.
Continue Reading FCC Proposes $20,000 Fine for TV Station Program-Length Commercial in Children’s Programming
April brings with it a milestone – as it is the end of the first quarter since all radio stations have had to have their online public inspection file “live” so that anyone, anywhere, can view a station’s compliance with rules that previously could only be judged by going to the station and reviewing the paper public file. April 10, in particular, is important, as it is when Quarterly Issues Programs Lists, summarizing the most important issues facing the community which the broadcaster serves and the programs that the broadcaster aired to address those issues, must be in the online public file for all full-power radio and TV stations. We wrote about the importance of these sometimes overlooked documents here, as these are the only FCC-mandated documents that reflect how a station has served the needs and interests of its community. We have also noted that, in the past license renewal cycle, missing Quarterly Issues Programs lists were the source of the most fines issued to broadcasters. Now that compliance can be judged at any time by the FCC, their importance is only magnified. So be sure that you get these documents into your online public file by April 10.
EEO Public Inspection File Reports, summarizing a station’s employment record for the prior year, are also to be uploaded to a station’s online public file. For radio and TV stations in Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, and Texas, these reports need to be completed and included in the public file by April 1 by all stations that are part of employment units with 5 or more full-time (30 hours per week) employees. In addition, radio stations in employment units with 11 or more full-time employees in Delaware and Pennsylvania, and TV stations in Texas with 5 or more full-time employees, also need to file EEO Mid-Term Reports, commonly referred to as FCC Form 397 applications. While the FCC is considering the abolition of the Mid-Term Report (see our article here), the obligation is still in place so, for now, stations must comply.
Continue Reading April Regulatory Dates for Broadcasters – First Quarterly Issues Programs Lists in Online Public File for All Radio Stations and Other Important Dates
July is a big month on the Washington regulatory scene for broadcasters. There are, of course, the routine quarterly regulatory obligations. For all stations, commercial and noncommercial, Quarterly Issues Programs Lists, summarizing the most important issues facing a broadcaster’s community, and the programs that were broadcast in the prior quarter to address those issues, must be in a station’s public file (the online public file for all TV stations and for radio stations that have already converted to the online file) by July 10. These are the only required records documenting a station’s service to its community, so do not forget to complete these reports and to timely place them in your public file.
Children’s Television Reports documenting the educational and informational programing broadcast by TV stations to meet their obligation to program at least three hours a week of such programming for each program stream are due to be filed at the FCC by July 10. Also, TV stations must place into their public file documentation showing that they have met the advertising limits imposed on commercials during children’s programming.
Continue Reading July Regulatory Dates for Broadcasters – Quarterly Issues Programs and Children’s Television Reports, Comment Dates on Main Studio Rule Elimination and Modernization of Media Regulation, Incentive Auction CP Filing Deadline, Effective Date for Captioning Clips of Live and Near-Live Programming, and Window for FM Translators for AM Stations
In a decision just released by the FCC, a TV station was admonished for including, in the credits of a TV program, the URL for a website that contained commercial material. As this was deemed by the FCC to be an isolated occurrence, the station was only admonished, not fined for the violation. But the decision is a good reminder for TV stations of the advertising and marketing restrictions that apply to children’s television programs and to links to websites contained in such programs.
The FCC’s rules prohibit a station from including a website’s address in programming directed to children 12 and under unless it meets a 4 part test. The four parts of that test are as follows:
In this case, the website had commercial content, leading to the admonition to the station. The URL was apparently visible for less than a second, in the credits, and ran only once. As this was an isolated instance, the station was not monetarily penalized, but the FCC did make clear that this was a rule violation.
Continue Reading FCC Admonishes TV Station for Including Commercial Website Address in Children’s Program – A Good Reminder on Children’s Television Program Restrictions
On Friday, the FCC released seven Notices of Apparent Liability for violations of children’s programming rules, proposing forfeitures (i.e. fines) of $25,000 to $70,000 per station. Most of the violations cited were overages of the commercial limits, which restrict stations to broadcasting 10.5 minutes per hour of commercial material during childrens programming on weekends and 12 minutes per hour on weekdays. Many of these overages were for durations of 15 seconds each. In one case, the FCC found a Pokemon program to be a program length commercial (discussed below) where a Pokemon game card with the letters "MON" was displayed for one second in a Nintendo GameBoy commercial during the show. In addition to overages of the commercial limits, other cited violations included failing to provide program guide publishers with information regarding the target child audience of core programs; failing to update the public file regarding compliance; and failing to publicize the existence and location of the station’s children’s television programming reports, in addition to the program length commercial issue described above.
The largest fine, for $70,000, was issued in a case where most of the violations were for "program length commercials", in which a commercial for a memorabilia website shown during a "Yu-Gi-Oh" television program contained a "very brief" reference to Yu-Gi-Oh trading cards. A program length commercial occurs when an advertisement contains a mention of a character or product that is associated with the program in which the ad appears. In these situations, the Commission fears that children will not be able to perceive the difference between the programming and the commercial, and thus treats the entire program as a commercial. In so doing, the station is considered to have exceeded the commercial limits by the entire length of the program less the number of commercial minutes allowed. This is done even if the commercial image of the character or other program-related material is fleeting. We’ve written about the difference in treatment between a commercial overage and program length commercial before, and this case makes clear just how seriously the Commission considers the latter and how costly this can be to the offending station.Continue Reading FCC Increasing Fines for Violations of Children’s Programming Rules – Fines As High as $70,000 Per Station Issued
On Friday, the FCC showed released two decisions – both dealing with a handful of inadvertent violations of the Commission’s rules on advertising directed to children. In one case, a licensee admitted in its license renewal application 4 violations of the rules and was fined $8,000. In another, the licensee admitted 8 violations, received no fine at all, instead being only admonished for its errors. Why the difference?
The FCC justified the difference in treatment based on the nature of the violations. In reality, the station that did not receive any fine actually broadcast more commercial material in excess of the limits on the amount of advertising permitted in children’s program than did the station that was fined. The reason – “program length commercials.” These are instances where, in a commercial message, a character from the surrounding program appears. In that situation, the FCC considers the entire program as a commercial, and thus the violation is considered much more serious than a mere overage in the time limits on commercial material in children’s programs. The station that received the fine had 3 program length commercials, while the station that was not fined simply ran more commercial matter than permitted by the rules – and did not have any program length commercials. But are these distinctions really justified?Continue Reading Plan Your Inadvertent Errors Carefully – A Fine for Children’s Television Violations May be at Stake
