online sponsorship identification

Here are some of the regulatory and legal actions and 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.

  • Political advertising will continue to blanket the airwaves for the next month and a half and

Almost every broadcaster and other media company uses digital and social media to reach their audiences with content and information that can be presented in ways different than those provided by their traditional platforms.  Whether it is simply maintaining a website or streaming audio or video or maintaining a social media presence to reach and

Last week, FCC Commissioner Michael O’Rielly was in the news for sending a letter to the major record labels asking for information about their practices in paying broadcast stations for airing the label’s music.  The letter follows correspondence last year between the Commissioner and the RIAA (the Recording Industry’s trade group) asking for similar information, which the RIAA claimed that it did not have.  This process began after a Rolling Stone magazine article suggested that “payola” was still a common practice in the broadcast industry.  These actions, and the press reports that followed, raise a couple of interesting questions including what the FCC rules are on payola, and how broadcast practices compare to those of online companies.

The Communications Act prohibits the practice of “payola” by requiring, in Section 317, that when any content is aired on a station in exchange for anything of value, the station must disclose that “consideration” has been paid by the person or entity that pays for the consideration.  Thus, “payola” arises when a broadcast station employee or contractor receives or is promised anything of value in return for putting any content on the air, and that payment is not disclosed to the public.  Payola usually occurs when someone makes a gift or payment to a person involved in station programming (i.e., station employees, program producers, program suppliers) in exchange for favorable on-air exposure of a product or service.  While the term “payola” is most often associated with the receipt by a station announcer or music director of money, trips or other value for playing songs on the station, the same prohibition applies whenever any station programming personnel receive anything of value in exchange for airing any content where a sponsorship identification is not broadcast.  For examples of fines for airing programming for which consideration was received without acknowledging the receipt of valuable consideration, outside the context of music, see our articles here, here and here
Continue Reading FCC Commissioner Asks Record Labels for Information About Payola Practices – What are the FCC Rules?  How Do These Practices Compare to Online Music Providers?

In recent weeks, we’ve written about a number of legal issues that need to be considered in connection with podcasting – getting releases from guests, making sure that ownership of the podcast is clear, and considering music royalties. Another issue that I discussed in my presentation on legal issues for broadcasters entering

Last week, it was announced that Google through its DoubleClick platform, would be offering programmatic buying opportunities for advertisers looking to place audio ads into online streams. While that system is initially being rolled out among the big digital audio services, if it or other similar platforms are expanded more broadly, it could bring more advertising into internet radio, podcasting and other digital audio program channels. But, being the spoilsports that we tend to be as lawyers, we wanted to pass on some issues to consider in accepting programmatic buys – whether in online streams or in over-the-air broadcasts. The immediacy of the audience’s perception of an audio insertion into a program stream can bring unintended results – some of which may have legal consequences.

We have already written about the issues for some of the programmatic buying platforms that are inserting ads into broadcast radio and television programming. As we wrote here and here, these ads can potentially impact a broadcaster’s legal compliance – particularly in the area of political broadcasting, where these ads could affect a station’s lowest unit rate, as well as reasonable access, equal opportunities and even political file disclosure obligations. While none of these FCC issues apply directly to online ads, as we wrote here, there are potential rules on political advertising that may soon be applied to online ads, either through actions by the Federal government or by the enactment of rules to implement a recently passed New York State law that compels disclosures for online political ads similar to those required by the FCC for broadcast ads. There are other considerations as well.
Continue Reading Google Announces Programmatic Buys of Audio Ads – Looking at Legal Issues with Programmatic Sales

With high profile primaries in numerous states and similar elections last week, and more coming over the next few months in preparation for the November election, broadcasters are dealing with the legal issues that arise with on-air advertising that either promotes or attacks candidates and which addresses other important matters that will be decided in the election – including ballot issues in a number of states. While we have addressed many of the legal questions that arise with on-air political advertising in other posts on this blog and elsewhere (see, for instance, our Political Broadcasting Guide here and these slides from my recent presentation on the FCC political advertising rules for the Washington State Association of Broadcasters), we thought that it was worth discussing some of the efforts that are underway to bring FCC-like regulation to the world of online political advertising.

Thus far, the FCC has tended to stay out of the online political broadcasting world. As we wrote a decade ago, other than having to give some consideration to the value of online advertising thrown into a package with over-the-air ads, the FCC avoids regulation of ad sales on websites and advertising delivered solely through other digital media platforms. So a broadcaster who sells stand-alone online ads to political candidates or issue advertisers need not worry about questions of lowest unit rates, reasonable access, or the political file.
Continue Reading Moving Broadcast Political Advertising Rules to the Online World – NY State Adopts a New Law While Congress Considers Online Political Advertising Disclosures, and the FEC Considers Enhanced Online Sponsorship Identification

Broadcasters and advertisers should take note of the more than 90 warning letters that the FTC sent out this week as a reminder of the need to disclose material sponsorship connections in social media promotions and endorsements.  The FTC has since 2009 announced a policy that any online content for which anything of value has been received must disclose that consideration – even social media posts (see our article here about that policy).  This is in the nature of the FCC’s sponsorship identification rules for broadcast content.   That same policy statement addressed the need for those making personal endorsements to make these sponsorship disclosures.  The recent warning letters are notable not only for their sheer number, but also because the warning letters were addressed to marketers and social media “influencers” – the individuals whose social media followings make their endorsements valuable.  To date, the FTC has only named marketers (Warner Brothers Home Entertainment and Lord & Taylor) in its social media endorsement cases.  Although the FTC did not say who received warning letters, its press release noted that the letters were “informed by petitions filed by Public Citizen and affiliated organizations” in September 2016.

By directing warning letters to marketers and influencers, the FTC is sending a firm reminder that both sides of a sponsorship arrangement need to disclose their connection, “unless the connection is already clear from the context of the communication containing the endorsement.”  Specifically, the FTC advises influencers that they must “clearly and conspicuously” disclose any material connection with a marketer; and marketers, in turn, should ensure that the influencers they sponsor disclose their material connections.
Continue Reading FTC Puts “Influencers” on Notice:  Disclose Marketing Relationships in Social Media Posts

It’s the holiday season, and many of us are turning our thoughts to celebrating with friends and family. It is also high season for shopping, which means the airwaves, social media, websites and print pages are full of opportunities to buy, sell, and advertise. Whether you consider that to be a feature or a bug,

Almost every week, we write about some legal issue that arises in digital and social media – many times talking about the traditional media company that did something that they shouldn’t have done in the online world, and ended up with some legal issues as a result. Two weeks ago, I conducted a webinar, hosted by the Michigan Association of Broadcasters and co-sponsored by over 20 other state broadcast associations, where I tried to highlight some of the many legal issues that can be traps for the unwary. Issues we discussed included copyright and trademark issues, a reminder about the FTC sponsorship identification rules for online media, FCC captioning obligations, privacy implications, as well as discussions about the patent issues that have arisen with the use of software and hardware that makes the digital transmission of content possible. Slides from that presentation are available here and, for the full webinar, a YouTube video of the entire presentation is available below which can be reviewed when you have some spare time over this upcoming holiday or at any other time that you want to catch up on your legal obligations.

Some of the specific issues that we talked about are familiar to readers of this blog. We discussed the many issues with taking photographs and other content found on the Internet and repurposing them to your own website without getting permission from the content’s creator (see our articles here and here). Similar issues have arisen when TV stations have taken YouTube videos and played them on their TV stations without getting permission from the creator. Music issues arise all the time, especially in producing online videos and creating digital content like podcasts, as your usual music licenses from ASCAP, BMI, SESAC, GMR and SoundExchange don’t cover the reproduction and distribution rights involved when content is copied or downloaded rather than live-streamed (see our article here). The presentation also cautioned companies to be careful about trying to rely on “fair use” as there are no hard and fast rules on when a use of copyrighted materials without permission is in fact fair (see our articles here and here on that subject).

Similarly, there are many other potential pitfalls for digital media companies. We’ve written about some of the FTC rules on requiring sponsorship identification on sponsored digital content – even tweets and Facebook posts (see our articles here and here). Plus, there are always issues about privacy and security of personal information that sites collect – and particularly strict rules for content directed to children. And, as many stations found out when a company asserted patent infringement claims about digital music storage systems used by most radio stations (see our articles here and here), patent issues can also arise in connection with any companies use of digital media.
Continue Reading Legal Issues in Digital and Social Media – Identifying the Landmines for Broadcasters and Other Media Companies – A Video Webinar

Tomorrow afternoon eastern time, I will be conducting a webinar for at least 20 state broadcast associations on legal issues for broadcasters in their social and digital media efforts.  We’ll talk about many of the potential legal landmines that can be hidden in these new media efforts, many of which we have written about