Discussion of FCC, copyright, advertising and other legal issues of importance to radio and television broadcasters and other media companies
Principal Editor: David O’Connor
Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.
Noncommercial radio stations ignoring their FCC public file obligations should be expecting to enter into consent decrees at license renewal time obligating them to take formal steps to monitor compliance and submit information to the FCC on any issues that arise. In the last few weeks, we have seen at least four such decrees announced by the FCC (e.g. here, here, and here) imposing such obligations in exchange for the grant of pending renewal applications. In each consent decree, the FCC notes the hardships imposed by the pandemic, presumably suggesting that, had these been more ordinary times, the licensees would have faced steeper penalties.
The consent decrees themselves resemble the consent decrees entered into between the FCC and commercial broadcasters who have not adequately maintained the documents required to be in the political file that is part of each commercial station’s public inspection file (see our articles here and here). The four recent consent decrees with the noncommercial broadcasters require that they take the following actions:
As we noted here in the case of a commercial broadcaster who did not comply with the terms of a consent decree, noncompliance can bring big penalties.
Continue Reading Noncommercial Stations – Don’t Forget Your Public File Obligations – The FCC is Watching!
Last week, the FCC reached a consent decree with a noncommercial broadcaster, where the broadcaster paid an $8000 penalty for, among other things, running underwriting spots that were too promotional. While the consent decree and its implementing order provide no details on the underwriting violations by the broadcaster, we can assume that the broadcaster ran spots that somehow crossed the line – giving price information about a sponsor’s products, or including a call to action suggesting that listeners somehow patronize the sponsor, or making qualitative claims about the sponsor or its products or services. We have written about similar violations many times (see, for instance, our articles here, here, here, here and here) and I have conducted seminars for numerous noncommercial broadcasting organizations talking about specifics as to what is permitted in underwriting acknowledgements and what will get a noncommercial station into trouble (see for instance, the presentations mentioned here and here). Obviously, it is important that noncommercial stations pay attention to these restrictions. But, last week, I received a question that indicated that not all noncommercial stations realize that, while their ability to promote a commercial enterprise is limited, these same restrictions do not apply to on-air spots for other nonprofit organizations.
About 35 years ago, Congress changed the provisions of the Communications Act to redefine what a noncommercial station can and cannot do. Noncommercial stations obviously cannot run commercials. But the language of the statute makes clear that commercials are promotional announcements for profit businesses. In looking at that statutory change, after much discussion, the FCC concluded that the restrictions on underwriting announcements that apply to these noncommercial businesses do not apply to promotional announcements for nonprofit entities.
Continue Reading Remember FCC Rules on Underwriting Limitations – And that They Don’t Apply to Spots Bought By Nonprofit Entities
At its April meeting, the FCC voted to allow noncommercial stations not affiliated with NPR or CPB to raise funds for third-party nonprofit organizations, even where such fundraising appeals interrupted normal programming, as long as the licensee did not devote more than 1% of its yearly airtime to such appeals. We wrote here…
The FCC yesterday issued an order declining to allow experimentation with the noncommercial underwriting rules that was requested by the licensee of noncommercial radio stations in the Phoenix area. The licensee had asked the FCC for permission to conduct a three year experiment by relaxing the underwriting rules in certain ways to determine the effect such a relaxation would have on its ability to raise revenue, and the impact on the listening and support that the station currently enjoys. In denying the station experimental authority to conduct the test, the FCC determined that it lacked the authority to authorize it, as the relaxation that the license was seeking would be prohibited not only by FCC rules, but also by statute, and the FCC cannot waive or grant an exception to a statutory provision (unless specifically permitted by the statute).
The underwriting rules prohibit noncommercial stations from running advertising for commercial entities. These rules have been relaxed somewhat over the last 30 years to allow for “enhanced underwriting” announcements, which allow noncommercial stations to identify their sponsors, and provide limited information about the products and services of those sponsors. But the information cannot be promotional in nature. Specifically, there are a number of limitations put on these announcements. Some of these limitations include: (1) the announcements cannot contain “calls to action” – statements that suggest that listeners buy from the sponsor or patronize their place of business; (2) the announcements cannot have qualitative claims – so noncommercial stations cannot say that their sponsor was voted the “best car repair shop in the city by City Magazine,” even if that statement of fact is true; and (3) the announcement cannot provide price or other information relevant to a buying decision, e.g. where tickets are sold, interest rates, etc. For more information about these rules, see some of our previous articles on this topic here, here, here and here, as well as a presentation on that issue that is discussed here. What did this licensee seek to change in its experiment?
Continue Reading FCC Declines to Allow Experimentation with Noncommercial Underwriting Rules
Hurricane Sandy (or "Superstorm Sandy as it now seems to be called) has resulted in an outpouring of support from broadcasters across the nation, looking for ways to raise funds for those that have been affected by the storm and its aftermath. Noncommercial broadcasters who are interested in joining in the fundraising efforts were aided by…
As Federal funding to public broadcasters faces serious challenge in a Washington looking to cut the budget for all but the most essential government services, and where voluntary contributions to all noncommercial broadcasters have been constrained by the economic issues faced by the entire nation, more and more noncommercial broadcasters are facing tough questions about the future. We’ve seen colleges and municipalities sell stations that have been community fixtures for decades, and noncommercial groups (including some religious broadcasters) deciding to call it a day and liquidate their holdings. At the same time, the ratings success of many noncommercial broadcasters (both public broadcasters and those owned by religious or other community organizations), especially in the radio world, are showing much success in developing a large listening audience. With noncommercial stations, by law restricted to raising funds without commercial advertising, many are looking for new ways of operating. How are FCC regulations and interpretations reacting to these new realities?
The FCC’s Future of Media Study (and the resulting Report on the Information Needs of Communities that we summarized here) recognized the importance of the diversity provided to communities by noncommercial broadcasters and, without detailing any proposals, indicated support for the development of new funding sources for those stations. Similar general statements were echoed in the hearing on the report recently held by the FCC in Arizona. But the options of the FCC in pursuing solutions are limited. In a recent decision, a noncommercial entity that operated a number of stations in small rural markets asked for a waiver of the FCC’s underwriting rules to allow it to air a limited amount of advertising for commercial entities, restricted to the top of the hour, and presented so as to not break up normal programming. The applicant justified the request on the current financial climate that made donations and grants hard to come by, especially in the rural areas where this group operates its stations. While the Commission’s staff expressed sympathy for the applicant’s financial plight, it stated that it was powerless to waive the Communications Act, which prohibits noncommercial stations from broadcasting "any advertising." Faced with this prohibition, and a fear of opening the floodgates to similar requests, the FCC denied the waiver.Continue Reading Financial Challenges to Noncommercial Broadcast Funding – What Is the FCC Doing?
The FCC today heard from its Future of Media task force, when its head, Steven Waldman presented a summary of its contents at its monthly meeting. At the same time, the task force issued its 475 page report – which spends most of its time talking about the history of media and the current media landscape, and only a handful of pages presenting specific recommendations for FCC action. The task force initially had a very broad mandate, to examine the media and how it was serving local informational needs of citizens, and to recommend actions not only for the FCC, but also for other agencies who might have jurisdiction over various media entities that the FCC does not regulate. Those suggestions, too, were few in the report as finally issued. What were the big headlines for broadcasters? The report suggests that the last remnants of the Fairness Doctrine be repealed, and that the FCC’s localism proceeding be terminated – though some form of enhanced disclosure form be adopted for broadcasters to report about their treatment of local issues of public importance, and that this information, and the rest of a broadcaster’s public file, be kept online so that it would be more easily accessible to the public and to researchers. Online disclosures were also suggested for sponsorship information, particularly with respect to paid content included in news and informational programming. And proposals for expansion of LPFMs and for allowing noncommercial stations to raise funds for other nonprofit entities were also included in the report.
While we have not yet closely read the entire 475 page report, which was tiled The Information Needs of Communities: The Changing Media Landscape in a Broadband Age, we can provide some information about some of the FCC’s recommendations, and some observations about the recommendations, the process, and the reactions that it received. One of the most important things to remember is that this was simply a study. As Commissioner McDowell observed at the FCC meeting, it is not an FCC action, and it is not even a formal proposal for FCC action. Instead, the report is simply a set of recommendations that this particular group of FCC employees and consultants came up with. Before any real regulatory requirements can come out of this, in most cases, the FCC must first adopt a Notice of Proposed Rulemaking, or a series of such notices, and ask for public comment on these proposals. That may take some time, if there is action on these suggestions at all. There are some proposals, however, such as the suggestion that certain LPFM rules be adopted in the FCC’s review of the Local Community Radio Act so as to find availability for LPFM stations in urban areas, that could be handled as part of some proceedings that are already underway.Continue Reading Recommendations from the Future of Media Report: End Localism Proceeding, Require More Online Public File Disclosures of Programming Information, Abolish Fairness Doctrine
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…
Fines for noncommercial broadcasters who air acknowledgments of their donors and contributors that sound too much like commercials have been a problem area for many noncommercial educational radio and television stations, and have resulted in significant fines from the FCC. The FCC allows "enhanced underwriting announcements" that identify a sponsor, what their business is…
