In a Federal Trade Commission notice published last week, the agency warned the advertising industry that penalties could be coming for the use of deceptive endorsements.  The FTC not only released the notice, but it also sent a letter (a version of which is available here) to hundreds of businesses (a list is here) – advertisers, advertising agencies, and a few media companies – reminding them of the FTC’s concerns about deceptive endorsements in advertising.  While the FTC makes clear that this list of recipients of the letter does indicate that any of them did anything wrong, it does make clear that the FTC takes this issue very seriously and wants to highlight the issue for the entire advertising ecosystem.  The letter reminds businesses that violations can lead to fines of up to $43,792 per violation and other penalties.

What are the FTC concerns?  The FTC said that prohibited practices “include, but are not limited to: falsely claiming an endorsement by a third party; misrepresenting whether an endorser is an actual, current, or recent user; using an endorsement to make deceptive performance claims; failing to disclose an unexpected material connection with an endorser; and misrepresenting that the experience of endorsers represents consumers’ typical or ordinary experience.”  In other words, when an endorser says something about a product, the FTC is expecting that the endorser used the product and the statements that it makes about the product are accurate and reflect what consumers can expect from that product.  This is not the first time that the FTC has raised these issues.

In fact, for well over a decade, the FTC has been warning companies not to use in the advertising celebrities or other endorsers saying good things about a product unless they used the product.  And, when endorsing the product, the advertiser needs to make sure that the statements made by the endorser about the product are true and reflect results that a typical user can expect.  Also, when someone receives anything of value for any testimonial about a product, even a tweet or social media post, the fact that consideration was received must be disclosed – very similar to the FCC’s sponsorship identification and payola policies (see our article here on these concerns for podcasters).  We wrote about these FTC guidelines on endorsements during one big push in 2009, when the FTC was warning online influencers about these rules.  We have also published other articles (e.g., here and here) that remind advertisers about these requirements.  The FTC itself has published many resources for businesses to help them comply with the requirements of their policies – see their resources here.

While FTC enforcement typically targets the advertisers, broadcasters should be aware of these guidelines and not mislead their clients into campaigns that could prove problematic.  The FTC has provided detailed guidance of what it expects from advertisers.  Review this guidance and engage with counsel to avoid issues that can arise in misleading endorsements and other advertising.

Courtesy Broadcast Law Blog

Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.

• The Federal Trade Commission issued a press release which warns advertisers to avoid misleading endorsements. The FTC also sent a warning letter to hundreds of advertisers, advertising agencies, and media companies setting out its concerns, and the potential penalties, for misleading endorsements in advertising, including those by endorsers who had not actually used a product or ads that create unrealistic expectations for the products being advertised.  (Press Release and Warning Letter).  Watch our Broadcast Law Blog on Monday for more on this warning and its impact on broadcasters.
• A recent court case is a good reminder that political attack ads can subject broadcast stations to defamation claims. While broadcast stations are generally immune from liability for the content of candidate advertising, they can have liability if they air an attack ad from a non-candidate group (e.g., a PAC or political party), knowing that the content is false or with notice that the ad might be false.  See our blog post on this issue, here.
• In last week’s update, we noted that the Copyright Office opened a study to examine the rights and protections of news publishers under copyright and related laws.  We took a longer look at the study this week on the Broadcast Law Blog, including the study’s potential impact on news content produced by broadcasters or news content produced by other outlets and reproduced by broadcasters.  Comments on the notice of inquiry are due November 26, 2021 (Notice of Inquiry).
• In a reminder that non-broadcast conduct of owners of a company can affect the company’s qualifications to hold a broadcast license, the FCC this week issued an order announcing that they will hold a hearing to determine whether a Pennsylvania FM station licensee who was convicted of a felony and multiple misdemeanors is qualified to continue holding an FM station license. FCC licensees are required to meet certain character qualifications set out in its Character Qualification Policy Statement.  The FCC could determine that the criminal conduct requires a revocation of the station’s license.  (Hearing Designation Order)  See our blog post, here, for a longer discussion of the FCC’s character policy and how it has been used in the past.
• The FCC entered into a number of consent decrees with broadcasters whose license renewal applications revealed untimely uploads to their online political files (see examples of the FCC orders here and here) or other untimely actions, including other late non-political uploads to online public files (see the orders here and here). For more details on the consent decrees for untimely uploads to the political file, see our articles here and here.  For more on FCC actions for other violations of the public file rules, see our articles here and here.

Courtesy Broadcast Law Blog

The Copyright Office, at the request of Congress, has initiated a study to examine the rights and protections of news publishers under copyright and related laws.  The Office issued a Notice of Inquiry seeking public comment on a variety of issues that could extend new protections to “press publishers” and perhaps other content creators that go beyond those accorded by traditional principles of copyright law.  The Office terms these protections “ancillary copyright protections.”  The Notice of Inquiry tees up several specific proposals for consideration, asks many specific questions, and solicits additional ideas that should be considered to protect publishers.  Comments are due November 26, 2021.  The Copyright Office will also hold a virtual public roundtable on December 9 to consider these issues.  This study could have an impact both on traditional media outlets who produce content, and on digital media that shares those comments.

The impact of digital media on traditional publishers of content – especially news content – was the trigger for this review.  The Notice begins with a recitation of the financial impact that the growth of the internet has had on newspapers and other publishers (“publication” under the Copyright Act is the distribution of a copy or recording of a work to the public by sale, rental, lease, or lending.  While a pure public performance does not constitute publication, digital subscription services and similar on-demand uses of content would likely fit within this definition).  In its opening paragraphs, the Notice focuses on digital “news aggregators” and their impact on publishers.  The Notice takes a broad view of the term aggregator – talking not just of headline clipping sites devoted to specific topics, but also to broader digital media sites like Facebook and Google that feature content from a variety of other sources.  While recognizing that aggregators can drive traffic to publisher’s digital content, the Copyright Office seeks comment on whether these aggregators also harm publishers by sending traffic only to specific articles and not to an index or home page for a publisher where a viewer might be inclined to view more content (and perhaps more of the publisher’s own ads).  From that opening discussion of news aggregators, the Notice looks at possible “ancillary” rights that may assist publishers in overcoming any negative impact of aggregators. These are discussed below.

Under current copyright law, the publisher of any news content has a right to control the distribution or reproduction of the articles or other media that it produces.  But that right covers only the actual written text of an article or the contents of a video or other expression of the publisher and its employees. Traditional copyright does not extend to the general facts or information conveyed in any publication – but instead just to the publisher’s expression of those facts.  The protections don’t traditionally apply to headlines, nor do they apply to a snippet of information that in a general way describes the content of an article.  And these rights are subject to exceptions provided under the Act, including fair use.

The Notice asks whether these traditional protections should be expanded.  Should headlines be covered by copyright laws?  From time to time courts have suggested that there might be a “hot news” right – where a competitor cannot “free ride” on the work of a publisher who spent time and money to develop a time-sensitive news report.  This right has been recognized in only some states and in a few cases.  The Notice asks whether that right should be recognized more generally and even expanded.  The Notice also asks if the application of the “fair use” doctrine, which has allowed descriptions of articles or even small, low-resolution pictures from an article to be used on an indexing site without permission of the copyright holder, should be further limited.

The Notice then asks for comments on broader rights recognized in Europe and Australia for publishers to have the right to block the use of their products by digital media sites, or to be compensated for that use. The Australian proposal would allow collective bargaining by publishers with digital media operators over compensation and, in situations where a voluntary agreement cannot be reached, a government panel would hear evidence and arrive at a fair compensation for the use of the content by the digital media sites.  We wrote about that law, and a Congressional proposal for US adoption of a limited version of that right to collectively negotiate, in an article here.

The Notice ends with a series of questions about these issues – including asking for comments on the impact that digital media has had on press publishers, the ability of those publishers to protect their works with current copyright protections, and what other protections would be helpful.  If new rights are established, what kinds of content should they cover?  Should they be limited just to news – or extend to other content as well?  How long should any such protection last, and how could such protections be implemented?  These and a host of other issues are raised by these questions – and the Copyright Office asks for economic analysis to support comments that are filed.

This broad inquiry could impact not just traditional print publications, but also any producer of content – including broadcasters.  It could also impact any company that operates a digital media site that features content that in any way originates with some other company.  In fact, any expansion of the “hot news” protections could impact the practices in many newsrooms in various electronic media – not just newer digital media sites – as there could be limitations on reporting on breaking news stories developed by other publishers, potentially restricting the flow of information to the public.  Any restrictions on fair use are usually controversial as well.  This is an extremely broad inquiry with many possible ramifications – and interested parties have a month to put together comments.

Watch as this far-reaching proposal is considered by the Copyright Office. The office itself does not have the legal authority to enact any rules that could implement changes proposed in response to the Notice – but it can suggest changes to Congress.  Many changes in copyright law have originated in proceedings such as this one (though there have also been many similar proceedings that have not led to any legislation being adopted).  But certainly this proceeding provides a forum to raise and vet ideas that will be considered in other branches of government, so this is an important proceeding to watch.   For more information about filing comments, see the Copyright Office’s webpage on the Notice, here.

Courtesy Broadcast Law Blog

A recent controversial court of appeals decision on a defamation claim brought by Congressman Devin Nunes sends a signal to broadcasters about the care they need to give to reviewing commercial messages – particularly political attack ads – when questions are raised as to the truth of the assertions made in those ads.  As we have written before, broadcasters are immune from civil liability for defamation claims when they broadcast an ad from the campaign of a legally qualified candidate, as a station cannot censor a candidate ad.  Because broadcasters must transmit the ad as produced, they are immune from liability for its content.  But ads from non-candidate groups, including political parties and PACs, can be censored by stations – so stations that decide to run such ads are subject to liability for their content.  Under Supreme Court precedent, defamation of a public figure (like a political candidate) is found when material is transmitted to the public that is false and results in injuries to the candidate plus, unique to public figures, the ad was transmitted with “actual malice.” Malice means that it was transmitted either knowing that the ad was false or having reason to believe that it was false.  See our article here about the analysis of this issue in other cases.  When a broadcaster receives objections alleging that content in the ad is false, it can be argued that the station has been put on notice that it has an obligation to assess the truth of the ad, and thus would need to take it down if the ad includes defamatory claims being made.

We recently wrote about the opinions from two Supreme Court justices suggesting that it should be easier for public figures to prove defamation claims. The case that led to the recent court of appeals decision began when Congressman Nunes brought a defamation lawsuit in response to a magazine’s publication of allegations that his family’s farm used illegal migrant labor and suggested that his political positions against immigration were thus hypocritical.  That lawsuit urged the same change in defamation law suggested in the Supreme Court opinions, and also alleged that the implications in the article were false, as Nunes know nothing about the migrant laborers.  A few months later, a reporter tweeted a link to the article, suggesting that his twitter followers look at the allegations in the article.  While the court found that the article itself was not defamatory (since the publisher had no reason to believe the information in the article was false at the time of publication, and thus acted without malice), it also found that the reporter’s tweet was potentially defamatory since, after the article was published, Nunes had filed his lawsuit against the magazine claiming that the article’s suggestion that he knew about the illegal workers was false.  The court held that a summary decision in favor of the reporter was not proper, finding that a jury could determine that the reporter’s tweet was defamatory even though the underlying article was not, as the tweet came after the claim by Nunes that he knew nothing about the illegal workers.

For many reasons, this decision has raised ire among lawyers who follow defamation law, including the court’s conclusion that the reporter’s tweet was potentially defamatory even though the underlying article was not.  But the court’s decision seems to be focused on the issue that broadcasters deal with all the time – that their dissemination of potentially defamatory content can be actionable because they knew or should have known that the content was untrue.  The court’s decision does not find that the reporter will be held liable – only that a case could be made that when he published his tweet calling attention to the article and its allegations, the reporter acted with “malice” given the denial from the Congressman.  Broadcasters face the same issue when attack ads are challenged, and thus must review those challenges and determine whether there is a likelihood of a defamation action if they continue to run the ad.  Have your lawyers on speed dial during contested election seasons, as these issues are always coming up and need careful review and analysis.

Courtesy Broadcast Law Blog

Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.

• The Copyright Office initiated a study of the rights of publishers, to explore ways to assist local journalism. The notice of inquiry seeks comments on the protections afforded to publishers under Copyright law and whether these protections should expand to shield publishers from the dilution of their product by digital services.  The study asks for comments on the rights of news aggregators and whether there should be additional limits on their distribution of information about stories that publishers originate.  In addition, the study asks whether there should be more protections for “hot news,” protecting the facts contained in such stories instead of just protecting the way those facts are expressed.  Ideas for reimbursing publishers for the use of their content by digital platforms, similar to laws recently adopted in Australia and in parts of Europe, are also part of the inquiry (see our article here for more on this idea).  Comments on notice of inquiry are due November 26, 2021 (Notice of Inquiry).  This study could lead to more protections for the news content of broadcasters, but also limit their ability to distribute content that originates with others.  Watch for more on this proceeding in our Broadcast Law Blog this week.
• The FCC updated the list of applicants eligible to participate in Auction 111, an upcoming closed auction of LPTV and TV translator construction permits. The applicants who can participate in the auction submitted mutually exclusive applications either during a 2009 filing window for new LPTV stations or in a 2018 window for stations displaced by the Incentive Auction.  Short-form applications by auction participants are due between November 1 and November 9, 2021 and bidding begins February 23, 2022.  See the updated list of the construction permits available and eligible participants, here.  (Public Notice)
• The FCC entered into a consent decree with a North Dakota noncommercial FM station over its failure to comply with the public file rules and its failure to file biennial ownership reports since 2014. As the biennial ownership report filing window is currently open through December 1, stations should make sure their reports are completed and filed on time, especially as the FCC is scrutinizing stations’ compliance with its rules during the license renewal process. (Consent Decree)

Courtesy Broadcast Law Blog

Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.

• The FCC issued a Public Notice to remind potential applicants of the upcoming filing window for applications for construction permits for new noncommercial educational FM stations. The application window will open at 12:01 am Eastern Time on November 2 and close at 6:00 pm Eastern on November 9.  Applications will only be accepted for construction permits in the FM reserved band (channels 201-220, 88.1 through and including 91.9).  The Public Notice also reminds broadcasters that there is a filing freeze in place on any application for a minor change that could impact potential filings in the window – freezing minor change applications by existing stations in the FM reserved band and by stations on unreserved channels adjacent to the reserved band (channels 221–223) and those on intermediate frequency (IF) channels (channels 254-274).  The freeze will be in place through November 9.  (Public Notice)
• The FCC held an information session this past week to explain the requirements for the filing of Biennial Ownership Reports which must be submitted by commercial and noncommercial AM, FM, TV and LPTV operators by December 1, 2021. These reports inform the FCC of the ownership of each station as of October 1, 2021.  The FCC has already warned broadcasters that there will be enforcement penalties for stations that do not file these reports.  A replay of the information session is available on the FCC’s website, here, and on the FCC’s YouTube channel, here.
• The FCC released a draft Order that cleans up FCC rules that apply to TV and LPTV stations by reflecting changes caused by the broadcast incentive auction and repacking process. If adopted, the Order will revise the DTV Table of Allotments to reflect the current, post-auction channels of TV stations.  The Order would also delete or revise FCC rules that, following the DTV transition, incentive auction, and repack, no longer have any practical effect.  Most of these rules involve references to channels that are no longer part of the TV band or procedures that only applied during the incentive auction and its immediate aftermath.  This Order should be adopted at the FCC’s regular monthly Open Meeting on October 26.  (Draft Order)
• The FCC published its broadcast station totals as of September 30. The accounting shows 157 fewer stations are licensed now than were licensed at the end of June.  The most significant decrease came in the FM and TV translator category.  (Station Totals)

Courtesy Broadcast Law Blog

Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.

• ViacomCBS and its subsidiary Pluto TV agreed to pay $3.5 million and enter into a consent decree with the FCC because Pluto failed to include captions in streamed programming that had previously been broadcast with captions on TV. The FCC’s investigation revealed that Pluto did not enable the delivery of captions provided by the programmer on numerous online platforms that carry Pluto TV, did not implement certain closed captioning functionalities, and did not make contact information for closed captioning complaints available to viewers.  Under FCC rules, all nonexempt full-length video programming delivered over the internet must be closed captioned, if the programming had previously been shown on television in the U.S. with captions.  (Order and Consent Decree)
• The FCC issued a Public Notice reminding broadcasters that a two-month biennial ownership report window opened Friday, October 1 and will stay open through Wednesday, December 1. All licensees of commercial and non-commercial full power television, Class A television, low power television, AM radio, and FM radio stations must file a report with ownership information current as of October 1.  Filers can watch an online informational session hosted by FCC staff on October 5 at 2:00 p.m. Eastern that will explain the filing requirements.
• At its monthly open meeting this past week, the FCC started a proceeding looking at ways to make communications networks more reliable and resilient during emergencies. As part of this effort, the FCC asked for comments on whether it should require broadcast stations to report their operational status during an emergency to the FCC using its Disaster Information Reporting System (DIRS).  The use of DIRS by broadcasters is currently optional.  The comment period will open after the Notice of Proposed Rulemaking is published in the Federal Register.
• The FCC reviews the contents of stations’ online public files, especially as part of the license renewal process, and continues to fine TV stations for their failure to timely upload quarterly issues/program lists. In a decision released this week, an Alabama television station was fined $9,000 for uploading 5 lists more than one year late, 4 lists between one month and one year late, and 5 lists between one day and one month late, without providing an explanation for the late uploads.  (Notice of Apparent Liability for Forfeiture).  Broadcasters should remember that their next quarterly issues/programs list should be uploaded to their online public files by October 10.
• The FCC adopted rules that formalize and standardize the national security and law enforcement questions to be answered by broadcast applicants seeking permission for foreign ownership in excess of 25%. The questions will be posted on the FCC website to give applicants advance notice of the information that they must submit.  (Report and Order)

Courtesy Broadcast Law Blog

As we enter the last quarter of the year, the broadcasters’ October calendar is full of important regulatory dates and deadlines.  We share some of those dates below and urge you to stay in close touch with your lawyers, engineers, and consultants for the dates and deadlines applicable to your station’s operations.

On or before October 1, radio stations in Alaska, American Samoa, Guam, Hawaii, Marianas Islands, Oregon, and Washington and TV stations in Iowa and Missouri must submit their license renewal applications.  Pay close attention to the contents of your online public file and be sure that all required documents are complete and were uploaded on time.  Stations filing their renewals (other than LPFMs) are also required to file a Broadcast EEO Program Report (FCC Form 2100, Schedule 396), submitting two years of EEO Public File reports for FCC review unless your employment unit employs fewer than 5 full-time employees.  As you are putting the final touches on your applications, be sure to read the instructions for the license renewal application (radio, TV) and consult with counsel if you have questions.

Also on or before October 1, for all radio and TV station employment units with five or more full-time employees licensed to communities in Iowa, Missouri, Florida, Puerto Rico, the Virgin Islands, Alaska, American Samoa, Guam, Hawaii, Marianas Islands, Oregon, and Washington must upload to their online public inspection file an Annual EEO Public Inspection File report covering their hiring and employment outreach activities for October 1, 2020 through September 30, 2021.  Such broadcasters must not only upload the report to their online public file, but they must also post on the homepage of their station website (if they have one) a link to the most recent report.

It is again time for full-power and Class A broadcasters to upload quarterly issues/programs lists to their station’s public file.  These lists, due to be uploaded by October 10, are meant to identify the issues of importance to the station’s community and the programs that the station broadcast in July, August, and September that addressed those issues.  Prepare the lists carefully and accurately, as they are the only official records of how a station is serving the public and addressing the needs and interests of its community.  Timely uploading of these lists to the station’s online public file is especially important during the ongoing license TV and radio renewal cycle when FCC staff are looking closely at public file contents (admonishments and even fines for late-filed and missing lists have become more commonplace during the license renewal cycle).  See our article here for more on this obligation.

The window during which broadcasters must submit their biennial ownership reports opens on October 1.  This every-other-year mandatory filing is meant to capture a snapshot of the ownership of broadcast stations as of October 1, 2021.  Broadcasters have until December 1 to complete and file these reports.  As the LMS filing system is up and operating, broadcasters should not expect the FCC to extend the deadline as it has in the past because of technical problems.  A free informational session will be held by the FCC on October 5 for anyone interested in learning more about filling out the form and the procedures for filing the report.

In October, there will be numerous opportunities to file comments on FCC proposals for changes to various rules.  As we wrote about here, the FCC has asked parties interested in media ownership issues to refresh the record that was established during the 2018 Quadrennial Review.  That review was never finalized, so the FCC wants to know how the media landscape has changed since comments were solicited when the review was launched.  Issues include possible changes to the local radio ownership rules and to the rules restricting the common ownership of more than one of the Top 4 TV stations in a television market.  Read the comments that have been submitted, here, and get your reply comments in by October 1.

After a busy 2020 election season and in advance of the 2022 elections, the FCC has proposed two minor changes to its political advertising rules.  The FCC proposes adding the use of social media and the creation of a campaign website to the list of activities that may be considered in determining whether an individual running as a write-in candidate has made a “substantial showing” of a candidacy and is a “legally qualified” candidate.  This “legally qualified” candidate designation is important as it permits the candidate to avail himself or herself of the benefits and protections of the political broadcasting rules, including equal opportunities, lowest unit rates and, for candidates for federal office, reasonable access to buy advertising time on commercial broadcast stations.  The second change would harmonize the FCC’s rules with the Communications Act and spell out the requirement that stations upload to their political files any request for advertising time that “communicates a message relating to any political matter of national importance” (i.e., federal issue ads).  We wrote more about these proposed rule changes, here.  Comments are due by October 1 and reply comments are due by October 18.

The FCC is accepting comments through October 7 on the accessibility of children’s educational programming to children with disabilities.  The FCC is looking for, among other things, information on the extent to which short-form programming and regularly scheduled weekly programming aired on multicast streams is closed captioned and/or audio described, with data on the amount of such programming.  More broadly, the FCC wants to hear about any changes in the broadcast industry since it adopted revised children’s programming rules that have affected the accessibility of “kidvid” programming.  Reply comments are due by November 8.

There are also October dates important to broadcasters who are looking for reimbursement for FCC-mandated technical changes.  Full power and Class A TV stations that transitioned during phases 0 through 5 of the post-incentive auction repacking of the TV band have until October 8 to submit all remaining invoices and supporting documentation on Form 399 for reimbursement from the TV Broadcaster Relocation Fund.  Any station repacked in these phases that fails to meet this deadline will be shut out of the reimbursement program, and its available reimbursement funds will be returned to the fund for use by other entities.  More information is available in the Public Notice, here.

The FCC in July released a list of C-band earth station antennas that are reportedly inactive.  The owners of these antennas, if they are actually active, have until October 21 to notify the FCC of their operational status or those authorizations will be terminated and removed from the incumbent earth station list.  The FCC also directed the antenna owners, if the list is accurate and the antenna is inactive, to file to remove those antennas from the International Bureau Filing System.  More details are available in the Public Notice, here.  Inactive earth stations will not be eligible for reimbursement for costs incurred in the repurposing of the C Band.

Looking at early November dates, reply comments on the FCC proposal to bring back the FCC Form 395-B are due on November 1 (initial comments are due by September 30).  After 20 years, enhanced equal employment opportunity data collection could again be a reality for broadcasters.  Form 395-B was an annual report intended to gather information about the race and gender of broadcast employees, thrown out by the courts because of fears of the unconstitutional use of the data to force broadcasters to make hiring decisions based on these factors.  We wrote more about the possible resurrection of Form 395-B, here..

Between 12:01 a.m. Eastern on November 2 and 6 p.m. Eastern on November 9, the FCC will accept applications for construction permits for new FM noncommercial educational stations to operate  in the reserved band (88.1 through 91.9 on the FM dial).  We wrote more about the application process and ten-application limit, here.  Entities considering applying for a construction permit should be working now with their engineers and consultants to get all the pieces in place, including technical proposals and a showing under the “points system” that allows the FCC to choose between applications that are mutually exclusive.  More filing details will be released closer to the opening of the window on November 2.

October and early November are a busy time for broadcast station owners and operators.  Put these dates and deadlines on your calendar and check with your station’s advisors for other dates applicable to your operations.

Courtesy Broadcast Law Blog

We are nearing the end of September and, in many jurisdictions we are in the heart of political season – though mostly for state and local elections. While most broadcast stations don’t think much about the FCC’s political broadcasting rules in odd-numbered years, they are required to do so, as races for state and local political offices trigger most of the same FCC obligations as do races for federal office.  There are particularly hard-fought elections for Governor in November in Virginia and New Jersey, and all sorts of state and local elections around the country.  These include some mayoral races in major US cities.  Thus, it is worth repeating the reminders that we have published before: most of the political rules apply to these state and local electoral races so broadcasters need to be paying attention.

Whether the race is for Governor or much more locally focused, like elections for state legislatures, school boards or town councils, stations need to be prepared. Candidates for state and local elections are entitled to virtually all of the political broadcasting rights of Federal candidates – with one exception, the right of reasonable access which is reserved solely for Federal candidates. That means that only Federal candidates have the right to demand access to all classes and dayparts of advertising time that a broadcast station sells. As we wrote in our summary of reasonable access, here, that does not mean that Federal candidates can demand as much time as they want, only that stations must sell them a reasonable amount of advertising during the various classes of advertising time sold on the station. For state and local candidates, on the other hand, stations don’t need to sell the candidates any advertising time at all. But, if they do, the other political rules apply.

That means that if a broadcast station decides to sell advertising time to one candidate in a state or local political race, they must sell it to all candidates for the same race – and be prepared to make available equal amounts of time in equivalent time periods. Stations can decide to make available advertising only in certain dayparts (or on certain stations in a cluster) for state and local races. They can even make different dayparts (or stations) available for different political races, as long as all candidates for the same race are treated the same. So, for instance, a station could decide to offer only spots during weekend and overnight time periods to candidates for the city council, while offering candidates for Governor time during all dayparts. A station just needs to treat all legally qualified candidates (including legally qualified independent, fringe party, and write-in candidates) for the same state or local race in the same way.

Lowest unit rates apply to state and local candidates, if you choose to sell to those candidates.  That means if the time is sold to state and local candidates during the 60 days before the general election (no matter when that election will be held), the time must be sold to the candidates at lowest unit rates. See our summaries of the rules relating to equal time here, and to lowest unit charges here. Similarly, if a station on-air personality decides to run for state or local office (anything from the school board or local planning commission to Governor or state legislature), the station needs to consider whether to take that personality off the air, or risk having to provide equal time to all competing candidates – for free – in amounts equivalent to the amount of time that the employee-candidate appeared on the air, even if the employee never mentions his or her candidacy at all. See our articles about this topic here and here.

Political file rules also apply to all advertising by candidates and their authorized campaign committees.  So the FCC’s clarifications in 2020 (see our articles here and here) on information about orders for candidate ads – including all price and schedule information – being uploaded to the public file within one business day, applies to these elections just as it does to federal elections.  See my video here, prepared for the Indiana Broadcasters Association, that discusses many of the FCC’s new interpretations of the public file rules.

Ads from non-candidate groups dealing with state and local elections generally do not require price and schedule information to be uploaded (unless those ads also mention a federal issue), but they do require that the station’s online public file contain an identification of the sponsor of the ad (address, phone number and contact person should be provided), plus a list of the ad sponsor’s executive officers, members of the Board of Directors or similar governing board.  Under the FCC’s guidance from 2019 (see our article here), the FCC thinks that most of these organizations will have more than one governing board member, so if you are provided with a single name, you are required to reach out to the sponsor or their representative and ask if there are others who should be listed.

For more about the political rules, see our Broadcaster’s Guide to Political Broadcasting here (though note that the political file information has not been updated, so refer to the video and articles linked in the prior paragraph for more information).  Don’t forget about these political advertising rules – even though this is an odd-numbered year!

Courtesy Broadcast Law Blog

Here are some of the regulatory developments from 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.

• At the last minute, the deadline for broadcasters to pay their annual regulatory fees was extended to Monday, September 27, 2021 at 11:59 PM Eastern Time. The deadline had been Friday, September 24.  Procrastinators need to file by the new date to avoid the 25% penalty for late-filed fees.  (Public Notice) (Fee Filer Website)
• The FCC opened a rulemaking to consider whether unlicensed spectrum users, like large technology companies, should be required to pay annual regulatory fees. It has been argued that these companies receive benefits from FCC regulation and thus should pay fees that offset the FCC’s costs of operation, reducing the fees paid by regulated entities, including broadcasters. Commenters are invited to comment on whether the FCC has the authority to impose such fees and, if so, how such fees should be assessed.  Comments are due by October 21 and reply comments are due by November 5.  (Federal Register)
• Both the Audio and Video Divisions of the FCC continued to penalize broadcasters for late uploads to their online public inspection files discovered during the license renewal process. One Class A TV station was issued an admonition for failing to timely upload 11 Quarterly Issues Programs Lists to its public file (all uploads were less than a month late).  Several other TV stations also received admonitions (admonitions can be considered in assessing penalties for future violations) for violations discovered by the FCC’s staff in their review of stations’ public files.  Among the actions taken against radio stations was a consent decree with a Kentucky AM station requiring a $4500 monetary penalty plus the requirement for a compliance plan imposing significant paperwork requirements.  The station had not submitted an EEO Program Report with its renewal application and had not uploaded to its public file quarterly issues programs lists during the renewal term.
• The FCC issued rules for Auction 111, which is open to a limited group of applicants for low power TV and TV translator stations. The applicants who can participate in the auction submitted mutually exclusive applications either during a 2009 filing window for new LPTV stations or in a 2018 window for stations displaced by the Incentive Auction.  Short-form applications are due between November 1 and November 9, 2021 and bidding begins February 23, 2022.  (Public Notice) (Eligible Applicant List)
• We wrote on our Broadcast Law Blog about the effort to bring back the old FCC Form 395-B which required broadcasters to report on the racial and gender make-up of their workforce in various job categories. Comments on the FCC’s Further Notice of Proposed Rulemaking proposing to revive this form are due by September 30 and reply comments are due by November 1.  (Broadcast Law Blog)
• Fans of copyright law will enjoy reading our look at the federal court decisions that led to the termination of operations by streaming company Locast which, before the court orders, had been transmitting broadcast TV stations’ programming on the internet without the permission of the stations. (Broadcast Law Blog)

For next week, keep an eye on the Broadcast Law Blog for our monthly update on important broadcast regulatory dates and deadlines coming in October. Also, don’t forget that Monday, September 27, is the deadline for broadcasters to file ETRS Form Three.  This form details each station’s participation in the August 11 national EAS test, including whether the station received the test and relayed it successfully.  We wrote about the form, here.

Courtesy Broadcast Law Blog