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From Broadcast Law Blog Archive

Here are some of the regulatory 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.

  • The FCC set the comment dates for its proposal for changing the cost to file various broadcast applications. The new schedule of fees the FCC has proposed are meant to better reflect the actual legal and engineering labor resources spent processing the applications.  Because of this, some applications that take up more resources to process see a proposed fee increase, while other applications that are easier to process see a proposed fee decrease.  Interested parties should review the fee schedules and submit their comments and reply comments by November 16 and November 30, respectively.  (Notice of Proposed Rulemaking)
  • Chairman Pai announced his intention to open a rulemaking to clarify the meaning of Section 230 of the Communications Decency Act of 1996. This provision grants broad immunity to online platforms for civil liability (including defamation claims) that arises from content that users post on those platforms.  In the last few months, Section 230 has become a hot-button issue following President Trump’s Executive Order calling for the examination of Section 230’s liability shield.  Nathan Simington, the President’s nominee for FCC commissioner, is said to have played a role in the advancing that order.  We wrote here and here about Section 230.  (News Release)
  • The FCC this week proposed that three VHF stations be allowed to move to channels in the UHF band. Each waiver contains a waiver of the current filing freeze on changes to the television Table of Allotments.  More than nine years ago, the Commission put in place a channel change freeze while it worked through the mechanics of the incentive auction and repack.  These waivers indicate at least some thawing of the freeze as the auction and repack are substantially complete.  The waivers note that VHF transmissions can sometimes be difficult for viewers to receive due to VHF’s signal propagation characteristics and thus allowed these channel change proposals to move forward.  (Channel change proposals for Portland, Oregon; Mesa, Arizona; and Minneapolis, Minnesota)
  • With only a couple of days left until the November Election, we wrote on the Broadcast Law Blog about the importance of compliance with the online political file rules and the steady stream of consent decrees that have been issued by the FCC’s Media Bureau over the last few months. (Broadcast Law Blog)
  • It’s official: The FCC, though its workforce is still largely working remotely, has moved to its new headquarters. The new headquarters, at 45 L Street NE, is close to Union Station and steps from NPR headquarters.  (Public Notice)
  • It was announced this week that Nathan Simington, the President’s nominee to fill Commissioner Michael O’Rielly’s seat at the FCC, will have a confirmation hearing before the Senate Commerce Committee on November 10 in the next step in the Senate’s consideration of his nomination. (Nominations Hearing)
  • On the Broadcast Law Blog, we also wrote about the apparent heightened interest of the recording industry in music used in podcasts, where demand letters from an industry association have recently resulted in the shutdown of two podcasts. Anyone making available music on-demand (including in a podcast or in any video production) needs to clear the rights directly from copyright holders – ASCAP, BMI, SESAC, GMR and SoundExchange licenses are not enough.  (More details available in this article on the Broadcast Law Blog).

Courtesy Broadcast Law Blog

As the campaign enters its final weeks, the FCC has begun to send out the next round of proposed consent decrees to radio broadcasters unable to certify in their license renewal applications, because of perceived deficiencies in their political file, that that every document was placed into their FCC-hosted online public inspection file on a timely basis (see, for instance, this decree released yesterday).  The certification of public file compliance is required of every applicant for license renewal.  As with any other certification, a licensee must review its records and truthfully answer the application’s question, either certifying that it has complied with all of the public file obligations or disclosing any deficiencies.  As we wrote last year, in cases of substantial noncompliance, the FCC has fined stations that essentially ignored the public file rules.  But, until recently, in cases where a station had made a good faith effort to comply but had some minor deficiencies in the public file (as is natural over an eight-year renewal period), the FCC has generally been granting renewals, acknowledging that minor violations do not signal that a broadcaster is not operating in the public interest.  However, in August, the Commission initiated a new policy for stations that reported deficiencies in the political portion of the public inspection file, sending draft consent decrees to virtually all stations unable to certify full public file compliance because of any political file issue.

These consent decrees were modeled on the ones that were sent in July to six large radio broadcast groups as a result of an earlier FCC review of their political files (see our article here on those consent decrees, which also provides a review of a broadcaster’s political file obligations).  The difference is, of course, that the July decrees went to large radio groups for what the FCC described as hundreds of violations at many radio stations.  The new renewal-driven consent decrees were sent to all stations that did not certify political file compliance, even to stations that had only a handful of political advertising sales if those stations determined that they could not certify that all required documents went into the file in a timely fashion.  While the decrees carry no monetary fine, they do require that the signing station enter into a compliance program – appointing a compliance officer, having a written compliance plan, reporting any violations to the FCC as they occur, and providing a report to the FCC at the end of each calendar year for two years cataloging all political sales and when the required documents went into the political file.

After the first round of these decrees were sent in August to over 100 broadcasters from the first year’s radio license renewal groups who could not certify compliance because of political file issues, discussions were held with the FCC about the scope of the decrees.  The FCC recognized that there were some cases where violations were so minor that they did not warrant imposing the compliance burden demanded by the decrees.  The Commission has informally said that where, in the two years prior to the filing of the license renewal application, a station had 5 or fewer instances where political orders were not timely uploaded to the public file, upon request after the receipt of the draft consent decree, a licensee could be excused from having to sign the decree as a condition of their license renewal.  A significant number of smaller stations and larger stations with isolated instances where the uploads were not made on a timely basis, have since been excused from having to enter into these consent decrees.

Even this exception for minor violations does not excuse a station from initially reporting in its renewal that its file was incomplete.  Nor does the Commission’s current policy signal that it will continue to provide in the future this exception for what they term “de minimis” violations.  Instead, these decrees, together with the decrees entered into with the larger radio operators earlier in the year, and the admonitions issued to TV stations for political file violations on disclosures on issue ads (see our articles hereherehere and here), signal the importance that the FCC places on the political file.  Broadcasters should consult their own counsel about any compliance issues that they have in these areas, as this area is particularly complicated with detailed reporting obligations.  Our article on the large radio group consent decrees provides some guidelines for political file compliance, as does this video that I hosted for the Indiana Broadcasters Association on the political file obligations. Do all you can to educate yourself as to the obligations under the FCC’s rules and policies.  The FCC is watching – so take these obligations very seriously.

Courtesy Broadcast Law Blog

The use of music has long been an issue for those looking to provide music-oriented podcasts to the public.  As we have written before (see, for example, our articles here and here), clearing rights to use music in podcasts is not as simple as signing up with ASCAP, BMI and SESAC (or even adding GMR or SoundExchange to the mix).  These organizations simply cover public performance rights for music when, as our prior articles make clear, podcasts require additional rights to use music in ways not fully covered by the licenses that are offered by these organizations.  The rights to the use both the underlying musical composition and the actual recording of that composition by a band or singer must be obtained on an individual basis from the copyright holders.  That can often mean a search for both the publisher and record company who usually own those copyright in the musical composition and the sound recording, respectively.  This can often be a difficult search, especially if there are multiple songwriters of a composition (and hence multiple publishing companies which likely own the copyrights) or where the rights to the songs have been assigned over time from their original owners.  Plus, as we have written before, there is no easily accessible universal database yet in existence that provides up-to-date and complete records of who owns those copyrights.  All this combines to make the clearance of music for use in podcasts an arduous process – and almost prohibitive for any small podcaster who wants to use more than one or two pieces of music in connection with their show.

In an article in the radio industry newsletter Inside Radio this week, it appears that at least two music-oriented podcasts have attracted the attention of the music industry, receiving demands from the RIAA which has led to their ceasing of operations.  It appears that these cases demonstrate both the difficulty of clearing music for podcasts, and perhaps that, as podcasting is growing in attention, the legal issues associated with the use of music in those podcasts is coming to the forefront of the attention of the music industry.

The two podcasts mentioned in the Inside Radio article have each posted explanations of their shutdowns on their websites (here and here), and both indicate that they were surprised by the take down notices as they had secured permission from the artists whose music they were playing in their podcasts.  The podcasters both indicate that the notices came from the RIAA, so it is likely that the issues dealt not with the clearance of the underlying musical works (the words and music in the songs being used), but instead were based on concerns over the use of the actual recordings themselves.  While we have not seen the takedown notices and have no direct knowledge of the permissions that these podcasters received, it may be that while they received some permission from the artists involved, they did not receive permission from the actual copyright holders in the recordings.  A band or singer may tell a podcaster that the podcaster has permission to use an old recording in their program.  But if the artist has assigned the copyright in that recording to the record label, the artist may not have the right to grant the podcaster the necessary authority to use their own music.  In the music industry, you see several instances where artists re-record classic albums or songs so that they “own the master” in the recording so that they can exploit that recording, when the original may well be owned by the record label or some other party who controls its use.

In other cases, take-down notices can be generated by mistake, as various “bots” may be scouring the Internet for music uses without permission, and services like podcasters may be identified as infringing on the copyright holders rights even where they have permission, simply because that permission was granted outside the normal channels that may have been inputted into some Internet search program.  Finding the right person to clear up such a mix-up may not be easy, but hopefully it is something that can be done with some persistence by even individual podcasters.

These issues are only growing in today’s virtual world.  I recently participated on a panel hosted by the Copyright Society talking about pandemic-related copyright issues.  We discussed how, as more and more of our normal activities have gone virtual, and as music that accompanies those activities follows along, rights issues can be implicated.  Instead of a public performance license from the performing rights organizations that may be needed for a live event, online videos available on demand, in the same way as podcasts, need to clear their music use from the copyright holders.  The same issues described above come up with music in videos, so be careful about clearing the necessary rights (see our post here for more on this issue).

As time goes on, hopefully there will be more online exchanges where rights to such uses can be cleared by a few clicks of a mouse, and there will be databases where the identity of the appropriate parties from whom to obtain those rights is universally available.  Until then, be careful using music in these productions, and expect to encounter some bumps along the way.

Courtesy Broadcast Law Blog

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.

  • The FCC released the agenda and items to be considered at its October 27 Open Meeting.
    • After issuing a Notice of Proposed Rulemaking in the spring, the FCC will vote on finalizing changes to its rules for video description (the insertion in TV programming of spoken narration of what is happening on the screen to aid blind or visually impaired persons). If the item is adopted, it will, among other things, rename video description as “audio description” and extend the audio description requirements to television markets 61-100 at a rate of ten markets per year.  Stations affiliated with ABC, CBS, Fox, or NBC in markets 61-70 will have to start complying on January 1, 2021 or on the effective date of the Order, whichever comes later.  We covered this proceeding on the Broadcast Law Blog, here.  (Report and Order)
    • As part of the Commission’s AM revitalization efforts, it will consider allowing AM stations to convert to all-digital broadcasting on a voluntary basis. Currently, AM stations are authorized for either analog or hybrid (combined analog and digital) transmission.  This rule change would allow AM stations to transition fully to digital, which would help those stations overcome some of the problems that affect analog AM signals, like interference and lower-quality audio. We took a deeper look at the Report and Order, here.  (Report and Order)
    • In the latest step in the multi-year effort to increase unlicensed wireless operations in TV “white space,” the Commission will consider an item that allows fixed unlicensed devices operating on channels 2-35 to operate at higher power in “less congested” rural and unserved areas and allow greater antenna heights for these devices. Unlicensed device operators must still cease operations if their operations interfere with an authorized service like, for example, television stations.  See our blog post, here, from March where we looked at the Notice of Proposed Rulemaking.  (Report and Order)
  • The window is closing for TV stations repacked after the incentive auction to submit their invoices for reimbursements. Stations in Phases 1 to 5 have until October 8, 2021 to submit invoices for reimbursement.  Stations in Phases 6 to 10 have until March 22, 2022.  All other entities eligible for reimbursement, including FM and LPTV/translator stations, have until September 5, 2022 to submit their documentation.  (Public Notice)
  • If you want to start filling in your 2021 calendar, the FCC has released the dates for its 2021 Open Meetings. While the Open Meetings since March have been held remotely, the 2021 meetings are scheduled to be held at the Commission’s new Washington headquarters.  (Open Meetings Calendar)
  • A low power FM station was hit with a consent decree and $15,000 fine for airing announcements for for-profit entities that violate the non-commercial underwriting rules, violating the cross-ownership rules that prohibit a party from holding an interest in a radio station while also holding an attributable interest in an LPFM, violating the rule that requires LPFMs to file with the FCC when more than 50% of the station’s governing board changes suddenly, and violating the rule against transferring or assigning an LPFM license within three years of issuance. (Order)
  • The FCC has named a new point person to oversee its field offices. Axel Rodriguez, the Commission’s new Field Director, will supervise the 13 field offices and its agents and lead efforts to combat pirate radio and other unauthorized spectrum uses and support efforts to restore communications services after disasters.  Rodriguez has a background in electrical engineering and served as a cyber warfare officer in the military.  (News Release)

Courtesy Broadcast Law Blog

The FCC this week released its agenda for its October 27 open meeting.  At that meeting the FCC will consider a number of issues of relevance to broadcasters, including enhanced white space use in the TV band and an expansion of the requirement for audio description of video programming.  It also plans to adopt an order authorizing licensees of AM stations to voluntarily transition to all-digital AM operations.  A draft order setting out the FCC’s decision and the rules that it intends to adopt for all digital AM operations was released yesterday.   We wrote previously about this proceeding on all-digital AM as it has progressed through the FCC (see our articles here and here).

The draft order on all-digital AM contains a discussion as to whether the Commission should put limits on the ability of AM licensees to transition so as to not take away service from existing listeners who do not have digital AM radios.  The conclusion set out in the draft order is that there should not be restrictions on the ability of licensees to convert to all-digital operations.  The FCC noted that as long as there are a substantial number of listeners without digital AM receivers, some AM licensees will have an economic incentive to continue to broadcast an analog signal.  Thus, these analog listeners will not be left without service.  The FCC also noted that its recent order abolishing the prohibition on radio stations duplicating the programming of commonly-owned stations serving the same area (see our articles here and here) would allow one owner to put the same programming on two AMs in the same area – one providing a digital program stream while the other continued analog operations.  Thus, the FCC’s tentative decision is that there is no need to restrain stations from making the conversion.

There was some fear of interference to other AM stations addressed in the draft order.  The FCC’s tentative conclusion is that there appears to be little concern that all-digital AM will have substantially greater interference characteristics than does analog AM radio.  In fact, as the primary energy from the all-digital broadcast is concentrated on the center of the AM carrier (as opposed to being on side-bands that encroach on adjacent channels in the currently-authorized hybrid mode), interference to adjacent channel stations may well be reduced by all-digital operations.  If interference does occur, the FCC will look to stations to resolve such interference between themselves, with FCC filings only required where there is a reduction in the power of the primary sidebands where the audio programming is transmitted.  Only where the parties cannot voluntarily work out interference issues will the FCC get involved in mediating these disputes.

Before converting to all-digital operations, or making changes in such operations, the FCC will require that a licensee notify the FCC on Form 335, providing the following information:

  • the type of notification (all-digital notification, increase in nominal power, reduction in nominal power, transition from core-only to enhanced, transition from enhanced to core-only, reversion from all-digital to hybrid or analog operation);
  • the date that new or modified all-digital operation will commence or has ceased;
  • a certification that the all-digital operations will conform to the relevant nominal power and spectral emissions limits;
  • the nominal power of the all-digital station;
  • a certification that the all-digital station complies with all EAS requirements; and
  • if a notification of commencement of new all-digital service or a nominal power change, whether the station is operating in core-only or enhanced mode.

The FCC will provide a public notice of proposed all-digital operations.  No changes can be made for 30 days following that public notice to allow other AM stations to take measurements of the current interference that they receive from the station planning to convert to all-digital operations so that these other stations can judge if the all-digital operations create more interference.  The licensee of the station planning to convert to all-digital operations must give the public over-the-air notice of its plans to convert during this 30-day notice period.

The draft order also sets out technical rules for all-digital operations.  It allows AM digital operations both day and night, dismissing concerns that nighttime skywave interference could be more severe with digital operations.  It also requires that all-digital stations participate in EAS alerts and work with stations that monitor the all-digital facilities to ensure that the receiving stations can receive the all-digital alerts or that they change the stations that they monitor.

The draft order may be subject to revisions between now and the October 27 meeting.  Assuming that no substantial changes are made, this meeting may well launch the most substantial attempt by the FCC to revitalize the AM band by actually encouraging AM broadcasting. Watch for further developments in the coming weeks.

Courtesy Broadcast Law Blog

The 2017 deregulatory changes to the FCC’s ownership rules have been on hold since December 2019, when the decision of the US Court of Appeals for the Third Circuit, overturning those rule changes, became effective (see our post here).  The court’s decision has put any broadcast ownership changes on hold (including potential changes in the radio ownership rules which were not part of the 2017 FCC decision) while the FCC contemplated how to deal with the fallout from the Third Circuit’s decision.  The potential for another way forward arose last week when the Supreme Court decided to hear the appeal of the Third Circuit decision – granting a petition for “cert” (a petition asking the Court to hear the appeal) – the announcement of that grant coming out on Friday.

As we wrote here, the Third Circuit rejected the FCC’s 2017 ownership rule changes, finding that the FCC had done an inadequate job of assessing how prior ownership relaxations had affected the ability of minorities and other potential new entrants to break into the ranks of broadcast ownership.  Despite arguments from the FCC that it had already analyzed the impact of changes on new entrants and taken steps to mitigate any adverse impact, the Court seemed to be directing the FCC to do a more searching analysis of the historical impact of the relaxation of ownership restrictions on new entrants.  Because this analysis would affect any ownership rule change, including those proposed for radio (see our article here), the decision effectively froze further FCC consideration of all broadcast ownership rule changes.

The 2017 changes that were undone in December included the abolition of the newspaper-broadcast and the radio-television cross-ownership rules, as well as the rule that prohibited the acquisition of a second television station in a market unless there would remain after the acquisition at least 8 independently owned and programmed stations in the market.  We detailed other changes made in the 2017 FCC ruling in our article here.

The acceptance of the case does not in and of itself have any substantive meaning, other than that the Court is at least interested in the arguments that the Third Circuit rejection of the FCC’s changes was wrongly decided.  The appealing parties (the FCC and industry groups) will file briefs in support of their arguments later this year, with the opposing parties filing a response.  Oral arguments will follow early next year.  A decision would likely come before the Court adjourns this year’s term in June or early July.

There are still a number of twists and turns that may come up.  Most notably, the November election could have an impact on the Commissioners at the FCC.  That could affect the willingness of the FCC to aggressively advocate for the 2017 decision (although the industry groups could still pursue the appeal before the Supreme Court).  But even a Court decision overturning the Third Circuit opinion could have its impact mitigated by a new FCC as there is a new Quadrennial Review of the ownership rules that is already open.  One would doubt that even a new FCC would reinstate the newspaper-broadcast cross-ownership rule, as there seems little argument that it retains any real basis in today’s world, but one never knows (as we have speculated before – for instance, here, here, and here – that policy seems to have a life of its own and may well outlive the daily newspaper itself).

So, FCC ownership reform is still on hold, but there appears to be some prospect that over the next nine months, things could change.  Watch this case as it proceeds before the Supreme Court.

Courtesy Broadcast Law Blog

Here are some of the regulatory developments and legal actions 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.

  • The U.S. Supreme Court decided to consider the appeals by the FCC and industry groups of the Third Circuit’s decision overturning the FCC’s 2017 ownership order. The FCC’s 2017 decision, among other things, abolished the newspaper-broadcast and radio-TV cross-ownership bans and allowed common ownership of two TV stations in the same market even when there were not 8 independent operators and, in some cases, even allowed combinations of two of the top 4 rated TV stations in a market.  For years, the Third Circuit has blocked the FCC’s attempts to reform its ownership rules.  In the cases which the Supreme Court will now review, the Prometheus Radio Project cases, the Third Circuit said that the Commission’s analysis of the media marketplace lacked evidence of the impact that changes in the rules have had and will have on the diversity of new entrants into media ownership.  Briefs are likely to be submitted to the Supreme Court this fall with oral arguments to follow early in the new year.  A decision is expected before the end of this term of the Supreme Court at the end of June or beginning of July of 2021.  Get caught up with the issue in these cases, here.  (Supreme Court Order List)
  • The FCC relaxed its rules regarding the notifications cable companies must provide to their subscribers about retransmission consent blackouts. The change from 30-day advance notice of a blackout to “as soon as possible” notification is an acknowledgement that retransmission negotiations sometimes continue until the hours before the deadline and that 30-day notice is, in many cases, not a reliable indicator that a blackout will occur.  (Report and Order)
  • The FCC released an order that will bring more structure to the Team Telecom process which reviews proposals for foreign ownership in the telecommunications industry. Any broadcast deal that would lead to more than 25% foreign ownership is subject to Team Telecom review. Team Telecom brings together telecommunications and national security officials from throughout the government to examine these transactions.  The changes are designed to give applicants more transparency into the process and make reviews more predictable.  The FCC also hopes to reduce the amount of time it takes for an application to make it through the review process.  (News Release)  (Report and Order)
  • FCC Commissioner Michael O’Rielly published a blog post detailing what he thinks should be included in the next slate of media modernization items the Commission considers. O’Rielly suggests lifting the freeze on technical upgrades and modifications that was put in place to conserve staff resources devoted to the incentive auction and repack, updating the criteria by which stations are considered to be failing for ownership waiver purposes, allowing waivers for LPFM stations to make in-market moves, updating the rules for VHF channels to move to the UHF band, and updating the rules to make easier certain changes to communities of license of TV stations.  As Commissioner O’Rielly is expected to leave the Commission at year’s end (or sooner if his replacement is confirmed), his time to work on these issues from within the Commission is limited, so his blog post can be seen as a roadmap of media modernization items for the next group of Commissioners to consider.  (Blog Post)
  • We published in our Blog our monthly look at the regulatory dates and deadlines for October. Next up is October 10, which is important for all licensees of full-power stations as it is the deadline for stations to post to their online public files their Quarterly Issues/Programs Lists detailing the issues facing their communities and the programming that they broadcast to address those issues during July, August, and September.  (Broadcast Law Blog)

Courtesy Broadcast Law Blog

Back in August, we highlighted some of the many issues in computing lowest unit charges (or “lowest unit rates”) for political candidates which are in effect during the window for the November elections that went into effect on September 4.  In this last month before the election, as political advertising ramps up and each party fights over those few undecided viewers, we wanted to bring to your attention a video that I did for the Indiana Broadcasters Association discussing the various issues that arise in determining lowest unit rates.  That video summarizes many of the issues that we wrote about back in August and is available here:

At the end of this article, we provide links to other videos produced by the Indiana Broadcasters discussing other political broadcasting issues, and to other articles that we have written on other political broadcasting issues.

As we wrote back in August, lowest unit charges (or “Lowest Unit Rates”) guarantee that, in the 45 days before a primary and the 60 days before a general election, legally qualified candidates get the lowest rate for a spot that is then running on the station within any class of advertising time running in any particular daypart. Candidates also get the benefit of all volume discounts without having to buy in volume – i.e., the candidate gets the same rate for buying one spot as your most favored advertiser gets for buying hundreds of spots of the same class. But there are many other aspects to the lowest unit rates, and stations need to be sure that they get these rules right.

It is a common misperception that a station has one lowest unit rate, when in fact almost every station will have several – if not dozens – of lowest unit rates,with one lowest unit rate for each class of time in each daypart. Even at the smallest radio station, there are probably several different classes of advertising spots. For instance, there will be different rates for spots running in morning drive than for those spots that run in the middle of the night. Each time period for which the station charges a differing rate is a class of time that has its own lowest unit rate. On television stations, there are often classes based not only on daypart, but on the individual program. Similarly, if a station sells different rotations, each rotation that offers substantially different benefits to an advertiser will be its own class of time with its own lowest unit rates (e.g., a 6 AM to Noon rotation is a different class than a 6 AM to 6 PM rotation, and both are a different class from a 24-hour rotator – and each can have its own lowest unit rate). So, in the same time period (e.g., morning drive on a radio station), there may be spots running in that period that have multiple lowest unit rates (such as spots sold specifically for morning drive, as well as cheaper spots that were sold as part of a 6 AM to 6 PM rotation that just happened to fall within the morning drive period).  Federal candidates can buy into any of those classes of time, and they take the same chances as does a commercial advertiser as to where their spots will land (e.g., if a candidate buys a 6 AM to 6 PM rotator, and that rotator ends up in morning drive, another candidate may buy that same rotator the next week and end up at 4 PM. That second candidate can only guarantee that they will end up in morning drive by buying a spot guaranteed in that time period).

Even in the same time period, there can be preemptible and non-preemptible time, each with different costs, thus making them different classes of time, each with its own lowest unit rate. Any class of spots that run in a unique time period, with a unique rotation or unique rights attached to it (e.g., different levels of preemptibility, different make-good rights, etc.) will have a different lowest unit rate. Stations need to review each class of time sold on their station, find the lowest rate charged to a commercial advertiser for a spot of the same class that is running at the same time that the candidate wants to buy a spot, and make sure that lowest rate will be what the candidate is charged.

One question that still comes up with surprising regularity is whether these rates apply to state and local candidates, as well as federal candidates. Indeed they do – so if your station is running advertising for candidates for mayor or city council, or for governor or the state senate, or even for the board of education, municipal court judge, or state attorney general – they and any other candidate in any public election for which your station chooses to accept advertising gets lowest unit rates. See our past articles on this topic here and here.  Stations are not required to sell advertising time to state and local candidates, but if they do, lowest unit rates apply.

In modern political elections, where PACs, Super PACs and other non-candidate interest groups are buying a significant amount of political advertising time, broadcasters need to remember that these spots don’t require lowest unit rates. Even if the picture or recognizable voice of the candidate that the PAC is supporting appears in the ad, spots that are sponsored by an independent organization not authorized by the candidate do not get lowest unit rates (note, however, that spots purchased by independent groups featuring the voice or picture of the candidate may trigger public file and equal opportunities obligations for the station if the station decides to run those spots).  Under federal law, stations can charge these advertisers anything that the station wants for non-candidate ads – no need to stick to lowest unit rates.

From time to time stations may face the one exception to the above paragraph, where political buyers are requesting lowest unit charges and are authorized by a candidate. In these cases, these parties may in fact be entitled to these rates – but only where the spot includes the recognizable voice or picture of the candidate and the message is specifically authorized by the candidate.  Under federal law for federal candidates, these purchases will be by political parties and subject to political campaign donation limitations (known as “hard money”).  To get lowest unit rates, the advertising purchases must be authorized and “coordinated” with a candidate and, in federal races, the spots should make that coordination clear with the “I approved this message” tag.  While the FCC has not formally ruled on it, it appears that some states have similar state laws that allow third parties to buy spots that are authorized by a candidate and may be entitled to lowest unit rates. Talk to your own attorney if you are faced with that issue. Not all third-party spots are entitled to this treatment – only this special class of coordinated expenditures – and stations are entitled to get written confirmation from the candidate that the expenditures are coordinated under applicable election laws. If not coordinated, the parties get charged the same as any other third-party organization.

Various advertising sales packages, and how they are factored into lowest unit rate calculations, also seem to lead to many questions by broadcasters. Candidates cannot be forced to buy single-station packages to get lowest unit rates. Instead, the package must be broken down by the station into a price per spot for each class of spot that is contained in the package. That is done by allocating the package price to the various spots of each class that are contained in the package. Then the allocated rates, on a unit basis, are compared to other spots of the same class that have been sold on the station either on their own or in other packages to determine if the spots from this package have any impact on the station’s lowest unit rates. This allocation is done in an internal station record, which does not need to go into the public file and does not need to be revealed to the candidate. Other than the station, only the FCC will see this allocation if they decide to conduct some sort of audit. We wrote more about this process of allocating spots in a package here.

These are just some of the myriad issues that arise in computing lowest unit rates. Stations need to be familiar with these rules and apply them accurately through the lowest unit rate windows. Check with your own legal advisor to discuss the specifics of these issues as they arise as they are often very difficult to apply in the real world.  Some of the other situations that arise with lowest unit rates, and with other political issues that come up in any election season, are covered in our Political Broadcasting Guide, available here.

There are obviously many other issues that come up in the political broadcasting process.  The Indiana Broadcasters have produced several other videos in which I explain some of the basics of the political broadcasting rules.  These include:

Other articles that deal with other political broadcasting subjects can be found on our blog by clicking on these links:  equal opportunitiesreasonable access, the no-censorship provision that governs candidate ads, and the potential for station liability for untruthful statements made in third party ads.  Also, see our article here about the obligations for the political file required as part of the online public file, and the importance that the FCC puts on that file.  And our articles hereherehere and here on the new requirements for the identification in the public file of all the issues mentioned in any advertising on federal political issues or candidates.  All of these materials are just a summary of the basics in each of these areas.  The laws regarding political broadcasting are extremely complicated and legal conclusions are very fact-dependent so you need to talk to your own attorney for specific advice on situations that arise at your station.

Courtesy Broadcast Law Blog

In many parts of the country, the air is turning crisp, the leaves are changing color, and kids are back in school (in some form), making it the perfect time to get caught up with regulatory dates and deadlines coming in October.  This is an unusual month where there are several routine regulatory deadlines – renewals, EEO filings, Quarterly Issues Programs Lists, and the must-carry/retransmission consent deadline, but no significant broadcast rulemaking comment deadlines, perhaps as we are nearing the end of the current administration which might not be around to finish any proceeding started now.

The routine deadlines include those for radio stations in Iowa and Missouri and TV stations in Florida, Puerto Rico, and the U.S. Virgin Islands who should be putting the finishing touches on their license renewal applications, to be filed on or before October 1, along with the accompanying EEO program report.  Stations should also have their post-filing announcements ready and scheduled to begin airing on October 1.  Those announcements continue through December 16.  Stations are no longer required to air pre-filing announcements.  The schedule for post-filing announcements and sample announcement language is here for radio stations and here for TV stations.

Also due by October 1 are EEO public inspection file reports for stations in AlaskaFloridaHawaiiIowaMissouriOregonWashingtonAmerican SamoaGuamthe Mariana IslandsPuerto Rico, and the U.S. Virgin Islands that are part of a station employment unit with 5 of more full-time employees.  An employment unit is one or more commonly controlled stations in the same geographic area that share at least one employee.  By October 1, these reports are to be uploaded to the station’s FCC-hosted online public file and a link to that report needs to be placed on the homepage of the station’s website (if the station has a website).  If your station employment unit has fewer than five full-time employees, no report needs to be placed in your public file or on your website.

By October 1, television stations must elect must-carry or retransmission consent for multichannel video programming distributors (MVPD) that carry their signals.  Full-power and Class A TV stations must place in their online public inspection file by October 1 notice of whether they elect retransmission consent or must-carry carriage from their area’s MVPDs for the three-year cycle beginning on January 1, 2021 and ending December 31, 2023.  If the station has decided to change its election, it must notify the MVPD by email, to an address set out in the MVPD’s public file.  We summarized this new rule, here.

On or before October 10all TV and radio stations must upload to their public file their Quarterly Issues/Programs Lists for the 3rd quarter (July, August, and September).  The Quarterly Issues/Programs Lists are a station’s evidence of how it operated in the public interest, demonstrating its treatment of its community’s most significant issues.  As we have written previously, the FCC takes this requirement seriously and will fine stations, hold up granting license renewals, or both if it finds problems with a station’s compliance.  For a short video on complying with the Quarterly Issues/Programs List requirement, see here.

In advance of the FCC’s October 27 Open Meeting, we will be tracking any broadcast items that make it on the agenda.  Stay tuned to the blog throughout October for updates.

Looking ahead to early November, we note the closing of the general election lowest unit charge (LUC) window on November 3.  There has been a lot of media reporting suggesting that certain races—the presidential race being the highest profile—may not be decided by the 3rd or even the early hours of the 4th.  This situation could lead to campaigns continuing to advertise past November 3 to, for example, try to persuade state election officials to certify results, but there is no mechanism in federal law or the FCC’s rules to extend the LUC window past election day.  The only exception would be in those races that may have runoff elections occurring after November 3, which are considered new elections so that they would have their own 60-day LUC window.

These are just a few of the regulatory dates we are tracking for October and early November.  As always, read the blog and keep in close touch with your station’s counsel to be sure you are staying on top of the dates and deadlines that apply to your operation.

Courtesy Broadcast Law Blog

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.

  • The day before 2020 annual regulatory fees were due, the FCC extended the deadline from 11:59 p.m. on Friday, September 25 to 11:59 p.m. on Monday, September, 28. (Public Notice)
  • Broadcast trade publication TVNewsCheck published “A Broadcaster’s Guide to Washington Issues, our periodic survey of the legal and regulatory issues facing television   It is a good resource for both new and veteran broadcasters looking to understand the status of pending legal and regulatory issues for the television industry.
  • For stations looking to stay on top of their KidVid reporting, the updated form to be used for the 2020 Children’s Television Programming Report is now available and can be accessed through the FCC’s Licensing and Management System (LMS). Stations can begin to prepare the form, update it during the remainder of the year, saving the information to be ready to file in January.  The FCC reminds television broadcasters that the form cannot be finalized and submitted until January 1, 2021.  As a reminder, KidVid reports are now filed annually, not quarterly as they were until the rules were changed in 2019.  (Public Notice)
  • The FCC’s Media Bureau has waived the requirement for noncommercial educational (NCE) translator stations to send their carriage election notifications by email to multichannel video programming distributors (MVPD), as required under the FCC’s new carriage election requirements.  The waiver came out of a petition from PBS and the trade association America’s Public Television Stations who said that, in many cases, NCE translators do not even know which MVPDs are carrying them and have no easy way to determine this information, making notification time-consuming and costly with no practical benefit as NCE translators can only “elect” must-carry. (Memorandum Opinion and Order)

Courtesy Broadcast Law Blog