The term "Super Bowl" is a trademark owned by the National Football League, and it is protected very aggressively. What does that mean?  The biggest no-no of all is to use the term "Super Bowl" in any advertising or promotional announcements that are not sanctioned by the NFL.  This prohibition includes sweepstakes and contests as well.  Advertisers pay high licensing fees to the NFL for the right to use the term "Super Bowl" in their advertising.  You will almost certainly hear from the NFL’s attorneys if you use the term in advertising without explicit authorization from the NFL.  So no "Super Bowl sales" in your ads – and don’t refer to your station as the "Super Bowl Authority" in your promotional statements.  These restrictions explain why you often hear it referred to as "The Big Game."  But this restriction does not mean you cannot utter the words on air under any circumstances. 

There is a court-created trademark concept known as "nominative fair use."  Under this concept, trademarks can be used when necessary under certain conditions.  First, the mark must not be readily identifiable in any other way.  For example, you do not have to refer to the Pittsburgh Steelers as "the professional football team from Pittsburgh."  Secondly, you can only use the mark to the extent necessary to identify it.  Repeated gratuitous use would cross the line – for instance if you repeatedly state that your station is "the place to hear everything about the Super Bowl."  And third, you cannot do anything to suggest a false connection or sponsorship arrangement.   What does this really mean?  It means that DJs can use the term "Super Bowl" editorially in discussing the game on air (but not in a way to imply that the station has a connection to the game, or not in a repeated way analogous to a station slogan or positioning statement).  It means that news stories about the game can refer to the "Super Bowl."  The NFL will not consider such uses to be trademark infringement so long as the use is reasonable.  In fact, from an editorial perspective, the NFL appreciates some hype about the game to attract viewers and general consumer interest in the game.


Continue Reading Don’t Use “Super Bowl” in an Ad Without Permission – But How About in Other Programming?

The press was abuzz yesterday with the news that Julius Genachowski is apparently the pick of the Obama Administration for the position of FCC Chairman.  Mr. Genachowski was at the FCC during the Reed Hundt Administration, and has since worked in the private sector in the telecommunications industry, including work with Barry Diller and running a DC-based venture capital fund.  From the positive reactions that the appointment has received from all quarters, the choice would seem to be a great one.  But, in looking at some of the reactions, you have to question whether everyone has to be reading what they want to see into the new Commission.  For instance, while the NAB has praised the choice of Genachowski (stating  that he "has a keen intellect, a passion for public service, and a deep understanding of the important role that free and local broadcasting plays in American life"), so too did media-reform organization Free Press ("This moment calls for bold and immediate steps to spur competition, foster innovation and breathe new life into our communications sector. With his unique blend of business and governmental experience, Genachowski promises to provide the strong leadership we need.")  What will this appointment really mean for broadcasters?

In short – who knows?  When Kevin Martin was appointed Chairman of the FCC, few would have imagined that a former communications attorney, a person deeply involved in the Bush campaign, and a former staffer of FCC Commissioner Harold Furtchgott-Roth (perhaps the most free market Commissioner ever) would have supported sustained, wide-reaching inquiries into the underbrush of FCC regulation – e.g. localism, embedded advertising, indecency.  So we can’t really know what a Chairman will do until he does it.  The Washington Post and the Wall Street Journal both suggest that the new chairman will be focused on Internet issues, and may be less interested in indecency – but who knows?


Continue Reading Julius Genachowski as New FCC Chair – What Will It Mean to Broadcasting’s Future?

The FCC’s Notice of Proposed Rulemaking on Digital Fill-In Translators, to provide television service in areas where a television station’s digital signal does not reach locations that were covered by its analog operations (a proposal we summarized here) was published in the Federal Register today, setting comment dates on this proposal.  Comments are due on January 12, and Replies on January 22.  As the Commission has already published instructions for filing for temporary authority to operate these stations, broadcasters who are interested in the final rules that may be adopted should look to file comments on these matters before the January 12 deadline.  This is another proceeding that is being rushed through the Commission in anticipation of the February 17 end of the digital television transition.

The analog nightlight proceeding is on an even faster track, with comments due on Monday (see our summary of that proceeding here). The Commission has just released a tentative agenda for its January 15 meeting, where the only item it will consider (other than reports from the Commission’s various Bureau Chiefs) will be the analog nightlight proposal.  This is likely to be Chairman Martin’s last meeting as chair of the FCC.  In light of the Congressional mandate to complete this proceeding by January 15, the Commission will have received comments and replies and digested them into a decision – all in the space of  20 days from the release of its Notice of Proposed Rulemaking – with the Christmas and New Years holidays intervening!  If anything, this shows two things – that the FCC can move rapidly if it has to, and that the DTV transition is the one and only real priority on the full Commission’s agenda right now. 


Continue Reading TV Digital Transition Rushes On – Comment Date on Proposals for Digital Fill-In Translators Set for January 12 and Analog Nightlight to Be Approved at January 15 Commission Meeting

Last week, the FCC introduced a new service to fill in gaps in the service of a digital television station – permitting television stations to immediately apply for Special Temporary Authority to construct digital translators.  Translators rebroadcast the signal of a full-power station, but operate on a channel different than the main station they retransmit.  The Commission has already authorized stations to operate on-channel low-power facilities in the Distributed Transmission Service (DTS) proceeding, about which we wrote here.  The digital translators, however, will only be authorized to serve areas that had received analog service from the television station but which will lose that service when the station goes fully digital, thus raising questions as to how much use these stations will really be.  In a Public Notice released today, providing filing information for these translators, the Commission states that the translators can only serve this loss area.  While the authorization of this Digital Low Power Television Translator service will begin immediately on an STA basis, the Commission’s order came out only in a Notice of Proposed Rulemaking, which could ultimately be rejected by the Commission after public comments are submitted.

The Commission seeks comments on a number of proposals made in this proceeding, including the following:

  • The new translators would operate on Channels 2-59, with those operations on channels 53-59 being authorized only where the applicant can show that there is no other channel on which a translator can operate
  • These translators will be given application priority over all other translator applications except those for the displacement of an existing translator or LPTV station, which would have co-equal priority
  • The translators would be authorized as part of the main station license, would be renewed as part of the main station license, and could not be sold except with the main station.
  • The translators will be authorized to fill in the area served by an analog full-power station but lost when the station converts to digital.  The Commission seeks comments as to whether even a nominal extension of the coverage area will be permitted (it apparently will not for authorizations initially granted through an STA) 
  • Applicants receiving an authorization for this service will be given a construction permit – and the Commission asks if that permit should be limited to a period of six months so that service to the public will be initiated quickly.
  • The Commission also asks how this service should interact with white spaces devices recently authorized by the Commission (see our summary).


Continue Reading FCC Proposes New Digital Low Power Fill-In Translators, and Starts Accepting Applications Immediately

As we enter the waning days of this election season, where some candidates get more desperate and the attack ads get sharper, broadcasters are often faced with requests that they pull an ad created by a candidate.  Claims are made that the ad contains untrue claims about an opponent or that the ad contains copyrighted material used without permission.  What is a station to do?  When the ad is an ad purchased by a candidate or their authorized committee, and contains a "use" by the purchasing candidate (a use being a spot where the purchasing candidate’s voice or likeliness appears on the spot) the broadcaster is forbidden from censoring that ad.  Essentially, that means that the candidate can say just about anything in their ad (as long as it does not violate a Federal felony statute), and the FCC’s rules prohibit the broadcaster from refusing to air the ad based on its content.  But, because the station cannot censor the ad, it has no liability for the contents of that ad.  This is in contrast to ads by third parties (e.g. advocacy groups, unions, political parties and others not specifically authorized by the candidate), where the broadcaster theoretically has liability for the content of a political ad (see our post on that subject, here).

Two recent cases illustrate the issue.  In one, according to press reports, in a race for the sole seat in the House of Representatives representing the state of North Dakota, one candidate has claimed that the ads of the other misrepresent the positions of that candidate.  The candidate being attacked has asked that the spots be pulled from the air, while the candidate running the spots has refused to pull them.  Even if requested by the candidate being attacked, and even if the ad is in fact false, broadcasters cannot pull one candidate’s ad if that candidate wants to continue to run it.


Continue Reading Broadcasters Prohibited From Censoring a Candidate’s Ad

In the early 1980s, the FCC deregulated many of the very detailed programing rules that governed broadcasters,  based on the theory that the marketplace would assure that broadcasters provided programming of interest to their local community.  The FCC looked at the marketplace, and decided that broadcasters either had to program to the needs of their community, or risk the loss of their audience to competitors.  Now, the FCC is proposing to bring back many of these rules with a vengeance (see our post on the FCC’s current efforts) – imposing rules even more detailed than those that were abolished over a quarter century ago.  A look at this week’s news raises the question of why now – when there are more media choices than ever (and when, particularly in the radio industry, revenues with which to meet such requirements are shrinking) – the FCC cannot rely on the marketplace to assure service to the public.  When marketplace forces require that broadcasters use their most important asset – their localism – to compete against all the new competition, the FCC is now looking to require that broadcasters meet their public interest obligations in a very specific, cookie cutter, government-mandated fashion.  Some of the announcements made this week highlight the extent of the competition that broadcasters now face.

On the most basic level, there are simply far more stations than there ever were.  According to an FCC Report published in 1980, there were 4559 commercial AM stations, 3155 commercial FM stations, and 1038 noncommercial FM stations.  While the number of AM stations had not increased substantially by the end of 2007 (4776), the number of commercial FM stations has doubled to 6309, and the number of noncommercial FMs has increased even more substantially, to 2892.  TV shows a similar increase in service – from 746 commercial and 267 noncommercial stations in 1980 to 1379 commercial stations and 380 noncommercial stations.  In addition, thousand of LPTV stations have been created, and over 800 LPFM stations – services that didn’t even exist in 1980.  Clearly, the over-the-air competition is far greater than when the FCC initiated its deregulation efforts.


Continue Reading I-Pod Radio, Internet in Cars and More Broadcast Stations Than Ever – Why Can’t the Marketplace Decide?

As the Commission held its last localism hearing in Washington on Halloween night, FCC Chairman Kevin Martin’s views on how the FCC should insure that stations are responsive to their communities became somewhat clearer.  In his opening statement, the Chairman outlined a set of actions that could be taken by the FCC to insure more service to the public.  While emphasizing the importance of efforts to encourage new entrants into broadcast ownership, the Chairman’s proposals to add new regulatory requirements, including requiring that a station be manned during all hours of operation, may well have the result of making it more difficult for any new entrant (or for existing smaller operators) to profitably operate their stations.  In addition, he has offered proposals that would seemingly require cable and satellite carriage of in-state television stations not in a system’s DMA – a proposal sure to cause concern to stations in DMAs that straddle state lines.

The Chairman’s statement includes the following proposals:

  • Requirements for uniform filings by broadcasters quantifying their public service – presumably their news and information programming and the public service announcements that they provide
  • Requiring that stations have manned main studios during all hours of operations (not just during business hours)
  • Allowing flexibility for LPFM stations to be sold, but adopting new rules to insure that such stations are used for local programming, not something provided from a network or other programming source
  • Providing television viewers the ability to get an in-state television stations on cable and satellite even if the county in which they reside is "home" to a DMA with stations in another state
  • Capping the number of applications accepted from the 2003 FM translator filing window – which might result in the dismissal of hundreds of applications that have effectively been frozen for 4 years


Continue Reading Shape of Things To Come: New Public Interest Obligations, Changes in TV DMAs and More Flexibility For LPFM