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Bill Would Expand Reporting and Disclosure Requirements for Online Political Ads

Posted in Advertising Issues, Broadcast Regulation, Political Broadcasting

On October 19, 2017, Democratic Senator Amy Klobuchar of Minnesota introduced a bill, co-sponsored by Sens. Mark Warner (D-VA) and John McCain (R-AZ), aimed at regulating online Hill Happeningspolitical advertising.  The bill, dubbed the “Honest Ads Act,” would require online platforms to identify the purchasers of certain political ads, maintain a “public file” containing specific information about ads referencing candidates and issues of national importance, and make “reasonable efforts” to ensure that political ads are not “directly or indirectly” purchased by a foreign national or foreign entity.  Under the bill, broadcasters would also be required to make such reasonable efforts.

Accordingly, if enacted, the bill would not only impose new reporting and disclosure obligations on platforms like Facebook, Google and Twitter, but would also impact broadcasters that sell political ads on their websites.  Now, therefore, may be a good time for a reminder about the political broadcasting rules that currently apply to political advertising on station websites.

Today, internet advertising is not subject to FCC regulations or the political broadcasting provisions of the Communications Act. Therefore, concepts such as lowest unit charge, equal opportunities, and reasonable access are not applicable for online advertising.

FEC rules, however, do apply to political advertising on the internet.  FEC regulations require internet advertising for federal candidates or elections to be sold at standard rates. Discounts should not be given to candidates unless those discounts are made available to regular commercial advertisers on the same terms. Any favorable treatment for a political candidate could be construed as an in‐kind campaign contribution.  The FEC also requires clear and conspicuous sponsorship identification disclosures on internet advertisements that relate to a federal candidate or elections.  Those disclosures must state whether or not the advertising was authorized and/or paid for by a candidate. In addition, many states have similar requirements for ads relating to state and local candidates or ballot propositions.

We will continue to monitor the Honest Ads Act as it moves (or doesn’t move) through Congress.  Check this blog for updates.

D.C. Circuit Upholds FCC Decision Not to Require Multilingual Emergency Alerts, Highlighting November 6, 2017 Deadline to Report on Efforts to Serve Non-English Speakers

Posted in Broadcast Regulation

This week, the United States Court of Appeals for the D.C. Circuit affirmed an FCC order issued in March 2016 that declined to require emergency alerts in languages other than English. In a 2-1 decision, the Court found the agency’s determination to be consistent with the Communications Act and reasonable, and thus denied the petition for review filed by groups that had previously requested that the FCC require multi-lingual emergency alerts. In its decision, the D.C. Circuit relied, among other things, on the requirement that Emergency Alert System (EAS) participants report certain information by November 6, 2017.

In the order under review, the FCC had concluded that it lacked sufficient information to justify the imposition of the requested remedy, and instead found that it needed to study (albeit on what the Court described as “bureaucracy standard time”) whether to require the transmission of alerts other than in English. The Court relied, in part, on this information-gathering process in upholding the FCC’s decision. As part of that process, the FCC required EAS participants to provide additional information concerning whether and how they can translate emergency alerts and convey them in language in addition to English. Specifically, all EAS participants—which include radio stations, television stations, cable systems, wireline video systems, wireless, direct broadcast satellite service providers, and digital audio radio service providers—must provide the following information to their State Emergency Communications Committees (SECCs): Continue Reading

Effective Date Announced for Recordkeeping Requirements for Non-CPB NCEs Conducting Third Party Fundraising

Posted in Broadcast Regulation

Effective November 13, 2017, NCE stations must comply with the recordkeeping requirements established by the new rule that allows them to conduct limited on-air fundraising activities that interrupt regular programming to benefit third-party non-profit organizations. Specifically, non-CPB NCE stations that conduct third-party fundraising must place in their public files, on a quarterly basis, the following information for each third-party fundraising program: the date, time, and duration of the fundraiser; the type of fundraising activity; the name of the non-profit organization benefitted by the fundraiser; a brief description of the specific cause or project, if any, supported by the fundraiser; and, to the extent that the NCE station participated in tallying or receiving any funds for the non-profit group, an approximation of the total funds raised.

These requirements were announced in April when the FCC adopted a Report and Order (which we wrote about here) relaxing its rule prohibiting NCE stations from conducting fundraising activities that substantially alter or suspend regular programming and that are designed to benefit an entity other than the station itself. Before going into effect, however, the new recordkeeping requirements needed approval by the Office of Management and Budget pursuant to the Paperwork Reduction Act. The Federal Register recently announced that this approval has been received and that the new recordkeeping requirements will go into effect on November 13.

FCC to Vote on Two Media Regulation Modernization Items at October Open Meeting; Draft Items Available

Posted in Broadcast Regulation

FCCOn October 3, the Federal Communications Commission (“FCC” or “Commission”) announced its tentative agenda for the October Open Meeting, which includes two items of interest to broadcasters: (1) elimination of the Main Studio Rule, and (2) proposed updates to the rules governing ancillary/supplementary services provided by television broadcast stations and broadcast public notices.

As it has in recent months under Chairman Pai’s pilot program, the Commission has released the draft text for each item slated for the October meeting.

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FCC Chairman Pai Calls on Apple to Activate FM Chips in iPhones

Posted in Broadcast Regulation, Broadcast Technology

FCC Chairman Ajit Pai, citing public safety concerns, has taken the unusual step of releasing a statement urging Apple to activate the FM radio chips already present in iPhone devices.

In today’s statement, Chairman Pai explained that “[w]hen wireless networks go down during a natural disaster, smartphones with activated FM chips can allow Americans to get vital access to life-saving information.”  He went on to note that “Apple is the one major phone manufacturer that has resisted” activating FM chips.  He expressed hope that “the company will reconsider its position, given the devastation wrought by Hurricanes Harvey, Irma, and Maria” and quoted a newspaper editorial: “Do the right thing, Mr. Cook. Flip the switch. Lives depend on it.”

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Second Post-Auction Filing Window to Open October 2

Posted in Broadcast Regulation

Repacked television stations that have been waiting patiently for their turn to request an alternate post-auction channel or an expanded facility–your time is coming.  The second filing window for the post-Incentive Auction repack will open on Tuesday, October 3, 2017 and continue through Thursday, November 2, 2017.

The second window is open to all television stations that were reassigned to new channels in the Closing and Channel Reassignment Public Notice (including stations that submitted successful bids to move to a VHF channel). Continue Reading

FTC Sends (Another) Warning That Endorsers Must Disclose Connections to Products, Brands, or Services in Any Form of Media

Posted in Advertising Issues, Broadcast Regulation, Contests

When thinking about the regulations they must comply with, most broadcasters focus primarily, if not exclusively, upon the Federal Communications Commission (FCC). But there is at least one other federal agency that deserves attention, and that is the Federal Trade Commission (FTC). This is particularly true when endorsements, contests, and other marketing activities are in play, as well as when such activities occur not only on-air, but also on digital platforms including social media. Activities involving social media “influencers” and other endorsement-related issues have for some time been subject to increasing FTC scrutiny, as we have explained before (here and here). While one might have predicted that the FTC would pay less attention to these issues in the new administration, three recent developments suggest otherwise. 

Of most potential interest to broadcasters and other media companies – particularly those with an online presence – is an update to the FTC’s FAQs (Endorsement FAQs) concerning compliance with the agency’s Guidelines Concerning the Use of Endorsements and Testimonials in Advertising (Endorsement Guides). The Endorsement FAQs were last revised in April 2015, and the new version serves as a helpful reminder regarding basic obligations and provides some useful clarifications.  Here are five key takeaways: Continue Reading

FCC Delays 2017 Biennial Broadcast Ownership Reports

Posted in Broadcast Regulation

Broadcasters will have a few more months than normal this year to prepare and file their biennial ownership reports.  On September 1, 2017, the FCC’s Media Bureau announced that the window to file ownership reports will not open until December 1, 2017, which was the previously scheduled deadline.  Broadcasters will have until March 2, 2018 to complete their reports.

The delay is a result of the FCC’s migration of biennial ownership reporting from its Consolidated Public Database System (“CDBS”) to its Licensing and Management System (“LMS”).  Continue Reading

Reminder: 2017 Must-Carry and Retransmission Consent Elections

Posted in Broadcast Regulation

On or before October 1, 2017, each full-power commercial television station must make an election between must carry and  retransmission consent. In addition, although noncommercial television stations do not have retransmission consent rights, they must send carriage notices to DBS (and other satellite operators) on or before October 1, 2017 in order to obtain (or maintain) carriage on the satellite operator’s system.  The up-coming election covers the period from January 1, 2018 to December 31, 2020.  Commercial stations that fail to send an election notice to cable operators will default to must-carry status.  Stations that fail to send an election notice to DBS operators will default to retransmission consent status (DBS operators are not required to carry a station if it fails to make an election, though they must engage in good-faith negotiations for carriage).   There is no required language for election notices sent to cable operators.  Notices to DBS operators must include: (a) the station’s call sign; (b) the name of an appropriate contact person at the station; (c) the station’s address for purposes of receiving official correspondence; (d) the station’s community of license; (e) the station’s DMA assignment; and (f) a statement indicating whether the station is electing must-carry or retransmission consent. Copies of notices must be uploaded to stations’ online public files by October 1, 2017 and must remain in the public file until the end of the next election cycle.