With much of the media world celebrating the life of Walter Cronkite this weekend, we have to wonder what he would have thought about press reports that the FCC is considering the commencement of a proceeding to investigate the status of broadcast journalism – assessing its quality, determining whether the Internet and other new sources are making up for any quality that is lost, and potentially deciding to mandate specific amounts of news coverage by broadcast stations. That surprising story about a planned FCC Notice of Inquiry on the state of broadcast journalism was reported in an an online report picked up by the broadcast trade press last week.  And even if that story is not true, concerns about the government’s intrusion into a broadcaster’s coverage of controversial issues arise from the recent Congressional committee action voting down a bill that would ban the FCC from reinstating the Fairness Doctrine.  In what should have been a symbolic embrace of the First Amendment (symbolic as, in the last 6 weeks, four of the FCC Commissioners or Commissioners-to-be disavowed any interest in bringing back the Fairness Doctrine in their confirmation hearings ), the defeat of the bill raises questions as to whether someone has an agenda to resurrect the government’s role in assessing broadcast media coverage of controversial issues.  In reading one of the many stories of the life of Cronkite (here, at page 3), we were stuck with the contrast between these actions, and the actions of Mr. Cronkite to address controversial issues – regardless of the FCC implications.  One anecdote related his questioning of John Kennedy about his religion when Kennedy thought that topic off limits, even in light of the potential president’s veiled threat that, when he took office, he would be appointing the FCC who would be regulating CBS.  Do we really want the FCC to have that power to assess what journalism is good, or what opinions each station must air to ensure "fairness"?

In reviewing the many FCC Fairness Doctrine claims that CBS faced in the Cronkite era, we are struck with the amount of time and money that must have been spent in defending its coverage against critics from both the right and the left.  We also found one particularly relevant quote from Mr. Cronkite himself: 

That brings me to what I consider the greatest threat to freedom of information: the Government licensing of broadcasting. Broadcast news today is not free. Because it is operated by an industry that is beholden to the Government for its right to exist, its freedom has been curtailed by fiat, by assumption, and by intimidation and harassment. 

 In the last 20 years, since Mr. Cronkite’s retirement as the CBS anchor, the FCC has steadily moved away from the role that he feared.  Yet with these recent actions, one wonders if there are some in government now trying to prove Mr. Cronkite’s concerns correct.


Continue Reading The Potential for the Return of the Fariness Doctrine and the FCC’s Assessment of the Quality of Broadcast News – What Would Walter Cronkite Think?

A recent stir was created when a Midwestern television company was reported to have signed a contract with a state government agency, promising to market the agency and its programs throughout the state.  This promotion was to include a segment in the company’s televised news promoting the effects of the work of the agency.  Questions were immediately raised about whether this was prohibited by FCC rules.  But, when the news pieces ran, the company was very careful to state after these segments that they were sponsored by the station and the state agency.  As the FCC has no rules about what can be included in the "news" (and probably could not consistent with the First Amendment), the only real issue was one of sponsorship identification.  As the licensee did here, if the sponsor of the story is identified, making clear to the public who was attempting to persuade them on the issue addressed, there should be no FCC issues.

This is different from the issues that have arisen previously at the FCC, where there have been fines levied against television stations and cable systems for airing programming that was sponsored, but for which no sponsorship identification was provided (see our posts here and here).  This includes the video news release or VNR issues, where the FCC has fined stations for using news actualities provided by groups with a financial interest in the issue that was being addressed, but without identifying the fact that the material was provided by the interested parties.  Where a program addresses a controversial issue of public importance, the disclosure rules are more strict, requiring that the station not only disclose that it received money to air a story – but to also disclose anything that it got from the interested party – including tapes or scripts.


Continue Reading Selling Stories In a Broadcast Station’s News Programs – Remember the Sponsorship Identification

Today’s announcement from John McCain that he is suspending his Presidential campaign to work on issues dealing with the economic bailout, and that he will not participate in Friday’s scheduled Presidential debate if the bailout package has not been enacted, raises an interesting question about the application of the FCC’s equal opportunities rules.  If Barack Obama were to appear at the debate and answer questions, and that appearance was televised, would the stations that carried the debates later be subject to a claim for equal opportunities by the McCain campaign?  Under FCC precedent, the answer would be "yes."  Debates are exempt from equal opportunities because they constitute on-the-spot coverage of a bona fide news event – one of the exemptions from equal opportunities specified in the Communications Act.  However, as we’ve written before, debates were not always considered exempt and, at one time, if all candidates (including all minor party candidates) were not included in the debate, any excluded candidate could demand equal time.  Thus, debates rarely occurred.  In the 1970s, the FCC loosened the rules to permit debates to be covered as news events, even if minor party candidates were excluded, without triggering equal opportunities obligations – if there were reasonable, objective criteria used to determine which candidates could participate.  However, in doing so, the FCC concluded that, if only one candidate showed up for a debate, it was not a true debate, and thus not exempt from the equal opportunities doctrine.

What would this mean if a station was to cover a debate where Obama showed and McCain did not?  If the McCain campaign were to timely request equal opportunities, stations would have to provide to McCain time equal to the amount of time that Obama appeared on screen, and McCain could do anything with that time that he wanted – he would not have to answer questions from the debate moderator.  Thus, traditionally, if only one candidate shows up for a scheduled debate that is supposed to be broadcast, the debate (or at least the broadcast) is canceled.


Continue Reading If John McCain Doesn’t Show Up, Would Equal Opportunites Issues Prevent the Debate from Going On?

Last week, the FCC commenced its long anticipated proceeding to reexamine its sponsorship identification rules. This proceeding has been rumored for over six months, having appeared on an agenda for a Commission open meeting in December, only to be pulled from the agenda days before it was to have been voted on. The Commission has initiated this proceeding, to a great degree, at the urging of Commissioner Adelstein who has been vocal in his concerns that the broadcast and advertising industries, in adopting advertising techniques to respond to technological and marketplace changes, has been exposing the public to commercial messages without their knowledge.  One of the principal practices of concern to the Commission, though not the only one, is embedded advertising (as the Commission refers to product placement and product integration into the dialog and/or plot of a program). While many of the trade press reports have focused on embedded advertising, this proceeding is wide-ranging and important to the broadcast, cable and advertising industries. Comments on the proceeding will be due 60 days after its publication in the Federal Register, with replies 30 days later.   We have prepared an Advisory, summarizing the issues raised by the Commission in this proceeding, which can be found here.

According to trade press reports, this proceeding was initially planned as a Notice of Proposed Rulemaking (NPRM), which would have proposed rules which, after public comment, could have been immediately adopted. After significant lobbying from the advertising community, the Notice was released in two parts. First, there is a Notice of Inquiry (NOI), asking a series of questions about the current state of advertising on broadcast and cable outlets, and asking how the Commission should amend its rules to deal with new advertising techniques. Second, the Commission’s announcement contains an NPRM with respect to certain specific items, including proposing to clarify the type of sponsorship identification necessary in television advertising, the extension of the sponsorship identification rules beyond local origination cablecasting to cable network programming, and clarification of the rules with respect to live-read radio commercials. The specifics of the NOI and the NPRM are set forth in our Advisory


Continue Reading FCC Begins Investigation of Embedded Advertising and Sponsorship Identification

The FCC today provided two more examples of its policy that virtually any sort of interview program is going to be deemed a "bona fide news interview program" exempt from any claim of equal opportunities (or "equal time" as it is commonly referred to) if the program features an appearance by a political candidate. In the decisions released today, the FCC declared that the 700 Club produced by the Christian Broadcasting Network (decision here) and TMZ produced by Telepictures Productions (decision here), both syndicated across the country, were analogous to programs like Entertainment Tonight, which the FCC had previously found to be an exempt program.  While these programs may focus on some unique aspect of the news or current affairs, the fact that they cover the candidates with their own particular slant (entertainment news, music news or whatever) does not prevent them from being considered bona fide news interview programs.  Where the coverage of the candidate is done based on good faith determinations of what is newsworthy rather than to politically favor the candidate, and where the programming remains under the control of the program producers and not the candidate, the programming is considered exempt from equal opportunities.  This is fully consistent with past Commission policy which we have written about many times before (see, for instance, our post on the evolution of this exemption in the context of political debates, here, and our posts on the candidacies of Fred Thompson and Stephen Colbert).  Thus, while these decisions are not controversial, they do raise some questions that broadcasters and candidates should ponder.

The first interesting question is raised by a paragraph included in both of the decisions released today.  The paragraph warns licensees that, if they are carrying syndicated programming that contains an appearance by a political candidate, and that program is relying on  the news interview exception, the licensee must itself make a determination that the program is newsworthy.  I think that this ties in with another line in the decisions stating that there is no evidence that the decisions by the program producers that the appearances by the candidates are newsworthy were not bona fide journalistic decisions.  In other words, if the program producer was to include candidate appearances in a blatantly political way (e.g. by totally excluding the candidates of one party and promoting the candidates of the other), then the Commission could conclude that the decisions were not "bona fide,"  and that equal opportunities did apply.


Continue Reading FCC Declares 700 Club and TMZ are Exempt From Equal Time – With Some Issues Left Unaddressed

The FCC Form 355 requiring "enhanced disclosure" by television stations was a frequent topic of discussion at this week’s NAB Convention in Las Vegas.  That form will require that television broadcasters report significant, detailed information about their programming, providing very detailed reports of the percentage of programming that they devote to news, public affairs, election programming, local programming, PSAs, independently produced programs and various other program categories, as well as specifics of each program that fits into these categories (see our detailed description of the requirements here).  Obviously, all broadcasters were concerned about how they would deal with the expense and time necessary to complete the forms, and the potential for complaints about the programming that such reports will generate.  At legal sessions by the American Bar Association Forum on Communications Law and the Federal Communications Bar Association, held in connection with the NAB Convention, it became very clear to me that the obligations imposed by these new rules are obligations adopted for absolutely no reason, as the Commission has not adopted any rules mandating specific amounts of the types of programming reported on the form.  In fact, one of the Commissioner’s legal assistants confirmed that, unless and until the FCC adopts such specific programming requirements, the Commission’s staff will not need to spend any time processing these forms.  Thus, if the form goes into effect, broadcasters will be forced to keep these records, and expend significant amounts of staff time and station resources necessary to complete the forms, for essentially no purpose.

Of course, public interest advocates will argue that the forms will allow the Commission to assess the station’s operation in the public interest, and will allow the public to complain about failures of stations to serve local needs.  But, as in a recent license renewal case we wrote about here, the Commission rejected a Petition to Deny against a station based on its alleged failure to do much local public affairs programming as, without specific quantitative program requirements, the Commission cannot punish a station for not doing specific amounts of particular programming. If the Commission adheres to this precedent, it will not be able to fine stations for the information that they put on the Form 355, but only for not filing it or not completing it accurately.  Thus, unless the Commission adopts specific programming requirements, the form will be nothing more than a paperwork trap for the unwary or overburdened broadcaster.  And, as is usually the case with such obligations, the burden will fall hardest on the small broadcaster who does not the staff and resources to devote to otherwise unnecessary paperwork.


Continue Reading FCC Form 355 – A Form Without a Reason?

The FCC has released the full text of its Order adopting enhanced disclosure requirements for broadcast television stations – requiring that they post their public files on their websites and that they quarterly file a new form, FCC Form 355, detailing their programming in minute detail, breaking it down by specific program categories, and certifying that the station has complied with a number of FCC programming rules.  The Commission also released the new form itself and, as detailed below, the form will require a significant effort for broadcasters to document their programming efforts – probably requiring dedicated employees just to gather the necessary information.  The degree of detail required is more substantial than that ever required of broadcasters – far more detailed than the information broadcasters were required to gather prior to the deregulation of the 1980s – though, for the time being, much (though not all) of the information is not tied to any specific programming obligations set by the FCC.

 Before getting to the specifics of the new requirements, the thoughts of the Commission in adopting this order should be considered.  The Commission’s decision focuses on its desire to increase the amount of citizen participation in the operation of television stations and the decisions that they make on programming matters.  While many broadcasters protested that the public rarely cared about the details of their operations, as evidenced by the fact that their public files were rarely if ever inspected, the Commission suggested that this was perhaps due to the difficulty the public had in seeing those files (the public actually had to go to the station to look at the file) and the lack of knowledge of the existence of the files (though broadcasters routinely broadcast notice of the public file’s existence during the processing of their license renewal applications, rarely producing any viewers visiting the station to view the file).  With respect to the new Form 355 detailing the station’s programming, the Commission rejected arguments that reporting of specific types of programming in excruciating detail imposes any First Amendment burden on stations, as the Commission claims that it has imposed no new substantive requirements.  Yet the Commission cites its desires that the public become more involved in the scrutinizing of the programming of television stations, which it states will be aided by the new form, and also emphasizes the importance that the Commission places on local service (an item detailed in Form 355).  At the same time, in its proposals detailed in its Localism proceeding (summarized here), the Commission is proposing rules requiring specific amounts of the very programming that is reported on Form 355, the very numbers that, in this proceeding, it claims have no significance.  Moreover, citizens will be encouraged by the Commission’s actions to scrutinize the new reports, and file complaints based on the perceived shortcomings of the broadcaster’s programming.  Broadcasters in turn will feel pressured to air programming that will head off these complaints.  So, implicitly, the Commission has created the First Amendment chilling effect that it claims to have avoided.


Continue Reading FCC Releases Rules for Enhanced TV Disclosure Requirements

In a wild series of legal decisions preceding the Democratic Presidential debate in Nevada, a Nevada judge ruled that MSNBC had to include Congressman Dennis Kucinich in its debate, only to be overruled by a decision of the Nevada Supreme Court released less than a hour before the debate was to begin.  Notably, the initial decision was not based on FCC rules, but instead on a breach of contract theory, as FCC precedent seems relatively clear that a Presidential debate sponsor need not include all candidates in a debate for the coverage of that debate by a broadcaster or cable operator to be exempt from the equal opportunities rules enforced by the FCC. 

 The FCC has long recognized that, to promote the coverage of debates on broadcast media, the sponsors need to be able to limit participation in those debates for them to have any meaning.  In some races where there are minimal requirements for being placed on a ballot, there can be dozens of candidates for a particular office.  If all needed to be included in a broadcast debate, the debate would never be broadcast, and the public would not receive the benefit that on-air coverage would provide.  The issue first arose when the equal opportunities rule was adopted, as broadcasters feared that, unless every candidate for a particular office was included in the debate, any broadcaster or cable company carrying the debate would have to give free "equal time" to any candidate that did not participate in the debate. 


Continue Reading Nevada Court Denies Kucinich Right to Participate in Broadcast Debate – Recognizing FCC’s Exclusive Role to Regulate Equal Opportunities in Political Debates

Joining Fred Thompson and Stephen Colbert (see our stories here and here), Presidential candidate Barack Obama appeared briefly on Saturday Night Live last night and delivered that iconic line – "Live From New York, It’s Saturday Night!"  But does his appearance trigger equal opportunities for television stations that aired the program and, if so, would

2007 – the year of the television actor who decides to become a Presidential candidate.  We’ve already written about the issues under the FCC’s political broadcasting rules, particularly the equal opportunity doctrine, with the candidacy of Law and Order’s Fred Thompson, resulting in NBC replacing him on as the on-air District Attorney of New York City.  Now, Comedy Central television host Stephen Colbert has announced his candidacy for the nomination for President – albeit only as a native son in his home state of South Carolina.  While some cynical observers might conclude that the Colbert action is only a bid to get publicity and press for his new book (just think of all the publicity that he’s getting from this blog entry – Stephen, we want our commission on all the books you sell because of the promotion you get here), his candidacy does present a useful illustration of a number of issues that arise for broadcasters and other FCC regulatees subject to the political broadcasting rules – particularly issues that arise when a station on-air employee runs for political office.  Questions that are raised include when a employee becomes a legally qualified candidate, does the candidate’s appearance on a bona fide news interview program exempt the station from equal opportunities obligations, and the amount and kind of time that is due to opposing candidates should they request equal time.

First, the question of a "legally qualified candidate."  This is important as the on-air appearance of a planned candidate does not give rise to equal time until that individual becomes a "legally qualified candidate."  For most elections, the candidate becomes legally qualified when they file the necessary papers to qualify for a place on the ballot for the election in which they plan to run, or if they actively pursue an write-in candidacy for an office for which they are eligible.  Until they are legally qualified, no matter how much they say they are running, their appearances do not give rise to equal opportunities.  One example of this occurred years ago, when Howard Stern was campaigning for Governor of New York on his morning radio program in New York City.  No equal opportunity issues arose as Stern never filed the required papers to qualify for a place on the ballot with the New York Secretary of State.

However, in Presidential elections, in addition to the usual manner of qualification, a candidate who is qualified in 10 states is deemed qualified in all states.  In addition, a Presidential candidate can become "legally qualified" for purposes of the FCC rules merely by making a substantial showing of a bona fide candidacy (e.g. having a campaign headquarters, making speeches, distributing campaign literature,  and issuing press releases).  So, if Mr. Colbert is out in South Carolina holding campaign rallies and distributing literature in support of his candidacy, he could be deemed a legally qualified candidate before filing the necessary papers (though his recent statement on NPR’s Wait Wait Don’t Tell Me that his road to the Presidency ends in South Carolina may undercut the bona fides of his campaign.  Perhaps that admission will be retracted when he appears on Meet the Press tomorrow).  But, for the other Presidential candidates who are running in all states, participating in debates and engaging in other campaign activities, they are probably legally qualified throughout the entire country now, even though the filing of the papers for a place on the New Hampshire ballot, the first primary, are not due until early November.


Continue Reading Stephen Colbert, Equal Opportunities and the Case of the Candidate Host