GAO Finds Elimination of the Broadcast Exclusivity Rules Would Have “Varying Effects”

Posted in Broadcast Regulation, GAO Reports, Program Content

ReportIn a report to Congress released on April 14, 2015, the United States Government Accountability Office (“GAO”) found that the effects of eliminating the FCC’s network non-duplication and syndicated exclusivity rules would “depend on other federal actions and industry response.”  To arrive at this “conclusion,” the GAO reviewed comments filed by industry stakeholders (including numerous broadcasters and MVPDs) in response to the FCC’s 2014 further notice of proposed rulemaking considering elimination or modification of the exclusivity rules; conducted “semi-structured” interviews with the industry stakeholders; and reviewed relevant rules, statutes, and affiliation agreements.

As the GAO recognized, local television stations negotiate with content providers, including national networks and syndicators, for the right to be the exclusive provider of that content in their markets.  The exclusivity rules help protect these contractual rights be requiring the blackout of duplicative programming from other sources.  Thus, the GAO found that if the exclusivity rules were eliminated, local stations “may no longer be the exclusive providers of network and syndicated content in their markets” due to cable providers’ ability to import distant signals.  As a result, stations’ bargaining position in retransmission consent negotiations could be reduced, which could in turn cause stations to agree to lower retransmission consent fees. This potential reduction in revenues could reduce stations’ investments in content, including local news and community-oriented content, and could affect the fees households pay for cable television service. However, “because multiple factors may influence investment in content and fees,” the GAO stated that it could not quantify these effects. Continue Reading

FAA Grounding Commercial UAS on Websites, YouTube

Posted in Broadcast Technology, Online Video

CAMCOP11_med.jpgThe Federal Aviation Administration (FAA) has recently stepped up enforcement efforts against Unmanned Aircraft Systems (UAS) operators engaged in unauthorized “commercial” operations. The FAA’s current regulatory scheme permits hobby and recreational use of UAS but requires commercial UAS users to receive FAA authorization before beginning operations. Two recent regional office enforcement actions against UAS hobbyists (prompted by the content on their respective websites) reaffirms the FAA’s commitment to preventing unapproved UAS operations and signals that the agency may be adopting a broad view of what constitutes “commercial” operation.

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Commission Affirms that its Authority to Enforce Broadcast Indecency Rules Is Alive and Well; Issues First-Ever Maximum Fine for Indecency

Posted in Broadcast Regulation, First Amendment, Indecency, Program Content

On March 23, 2015, the Federal Communications Commission proposed a fine of $325,000 – the maximum amount possible – against the licensee of television station WDBJ in Roanoke, Virginia for airing sexually explicit content during a newscast. According to the Notice of Apparent Liability for Forfeiture, WDBJ aired a video clip that included less than three seconds of footage of “an erect penis being stroked” during a news story about a former adult film star who joined a local volunteer rescue squad. The NAL states that the footage aired during the 6:00 p.m. newscast on July 12, 2012, within a small box. The station did not dispute that the footage aired, but instead explained that its inclusion in the newscast had been wholly inadvertent. The station also argued that the image was not actionably indecent under the Commission’s rules because of its fleeting nature, that the station lacked notice that the Commission would find such material indecent, and that the Commission’s indecency rules are unconstitutional. The Commission rejected each of these arguments.

The Commission’s indecency rules ban the broadcast of obscene material at any time and prohibit radio and television broadcasters from airing indecent material between the hours of 6:00 a.m. and 10:00 p.m. The Commission defines indecent speech as “material that, in context, depicts or describes sexual or excretory organs or activities in terms patently offensive as measured by contemporary community standards for the broadcast medium.” The Commission found that the image broadcast by WDBJ depicted a sexual organ and sexual activity under the first prong of this test. The Commission then turned to the second prong – patent offensiveness – which itself is analyzed using a three-part analysis which considers (1) the explicitness or graphic nature of the material; (2) whether the material is repeated or dwelled upon; and (3) whether it panders, titillates, or shocks. Continue Reading

10 Important Things to Keep in Mind When Running Broadcast Contests

Posted in Broadcast Regulation, Contests

(1) The FCC’s contest rule applies to all “licensee-conducted” contests.  Sometimes you can easily conclude that a contest falls within this category; for example, if a station itself gives away concert tickets, the rule applies.  But what if a carTop10 dealer approaches a station with a proposal that station DJs promote the car dealer’s contest on-air and on the station Facebook page and broadcast live from the dealership when it awards the prize?  Although the car dealer is running the contest, the safest thing would be to consider such a contest “licensee-conducted” due to the station’s involvement and comply with the FCC’s rule.

(2) If you advertise your contest on-air (or even if your DJ or weather person so much as mentions the contest on-air), you must periodically broadcast material terms for the contest.  Material terms include: how to enter or participate; eligibility restrictions; entry deadline dates; whether prizes can be won; when prizes can be won; the extent, nature, and value of the prizes;  the basis for valuation of prizes; time and means of selection of winners; and tie-breaking procedures.

(3) Material term announcements must begin airing the same day as you first advertise or mention the contest on-air.  The FCC’s rules require material terms to be broadcast “periodically,” but do not define the term.  A good practice is to air material terms at least once per day in rotating day parts.  If you promote a contest only during certain day parts, your material terms announcements should air during that day part. Continue Reading

Closed Captioning, Emergency Information Requirements Among Numerous Upcoming FCC Deadlines

Posted in Broadcast Regulation, MVPD Regulation, Online Video

Broadcasters and MVPDs face numerous FCC deadlines in the upcoming weeks and months related to accessibility and the CALM Act.  Below, we briefly discuss each deadline and then provide a summary table.

Closed Captioning Quality:  On March 16, 2015, new rules regulating the quality of closed captions under four non-technical standards — (1) accuracy, (2) synchronicity, (3) program completeness, and (4) placement — take effect.

The obligation to comply with one or more of these standards depends on the type of televised programming.  Pre-recorded programming, which is programming that is not performed and recorded within 24 hours of airing, must comply with all four standards, notwithstanding de minimis errors.  Live and near-live programming, which is performed and recorded within 24 hours of airing, must be sufficiently accurate, synchronous, complete and appropriately placed to allow a viewer to understand the program.

In addition, by March 16, 2015, broadcasters and MVPDs are required to exercise “best efforts” to obtain certifications of compliance with the new captioning quality rules from their programming providers (network affiliates, syndicated providers, etc.).  If you have not received certifications, please contact us to ensure compliance. Continue Reading

Low Power FM Fined for Underwriting Announcements

Posted in Advertising Issues, Broadcast Regulation

Creative AdvertisingOn Friday, February 27, 2015, the FCC’s Enforcement Bureau released an Order imposing a $16,000 fine on WQAZ-LP, a low power FM station, for broadcasting underwriting announcements that were impermissible because they too closely resembled commercials.  (Low-power FM radio stations are licensed to provide noncommercial, locally oriented programming to their communities.)  Under the Commission’s “enhanced underwriting” policies, an NCE station may air announcements acknowledging a commercial entity that makes a financial contribution to the station.  However, what the NCE station can say in those announcements is closely circumscribed.  The Commission has held that underwriting announcements must be for identification purposes only, and must not promote the commercial entity’s products, services, or business.  Specifically, such announcements must not contain comparative or qualitative descriptions, price information, calls to action, or inducements to buy, sell, rent or lease.

The Order does not indicate just how WQAZ-LP crossed these lines.  Nevertheless, the Order provides us a good opportunity to remind NCE broadcasters to tread carefully when airing underwriting announcements.  Such announcements should be kept as straightforward as possible.  Stating the business’s name, its location, a plain factual description of what it sells, and its slogan should not pose any problems.  Although the Commission may give a licensee the benefit of the doubt on a close call, the more an underwriting announcement sounds like a commercial advertisement, the more likely it is to violate the Commission’s policies.

Commissioner O’Rielly Calls Upon the Commission to Modernize its EEO Rules

Posted in Broadcast Regulation, Employment

Hiring for jobs in the media industry has evolved as rapidly as the industry itself.  No longer is the local newspaper the only, or perhaps even the best, way to reach job seekers.  Whether it is a company website, an employment search engine (such as CareerBuilder.com or Monster.cHandshakeom) or a niche site (such as allaccess.com or TVJobs.com), employees and employers increasingly are turning to the Internet.  Under the FCC’s EEO rules, however, newspapers remain the “gold standard” for distributing job vacancy information.  Commissioner O’Rielly would like to see that change.  In a recent blog post, he called upon the Commission to embrace the Internet and update its EEO rules.

Among other requirements, the Commission’s EEO rules require broadcasters with five or more full-time employees to widely disseminate information about full-time job openings to their communities.  Such dissemination can be accomplished via newspaper ads, or by distributing job vacancy information to colleges and universities, community organizations, or local broadcast associations (among others).   However, the FCC has fined stations for relying solely on the Internet and “word of mouth” sources like walk-ins to recruit job candidates.  As Commissioner O’Rielly pointed-out in his blog post, the Commission’s application of the wide-dissemination component of its EEO rules “is based on a remarkably outdated assessment of Internet deployment and access in the United States.”  When the EEO rule was adopted in 2002, the Commission relied on a 2001 NTIA report that suggested 50 percent of U.S. households had Internet service.  Today, however, NTIA data indicates that 99 percent of Americans have access to the Internet.  Not only that, but since 2011 100 percent of public libraries have provided free internet access.  Continue Reading

FCC Seeks Comment on Use of “Last-In-First-Out” Method for Selling Political Ads

Posted in Broadcast Regulation, Political Broadcasting

The FCC’s Media Bureau issued a Public Notice today seeking comment on a petition for declaratory ruling urging the Commission to prohibit stations’ use of the Last-In-First-Out (or “LIFO”) method of selling preemptible advertising time to political candidates or, if not prohibited, to require that stations using the LIFO method always give political candidates preemption priority over commercial advertisers.  Comments are due March 2, 2015, and replies are due March 17, 2015.

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Third Month of the Year Craziness Contest! Be Careful to Avoid Trademark Issues when Conducting Contests

Posted in Advertising Issues, Contests, First Amendment, Trademark

As college basketball play-off season and the Super Bowl approach, we thought it a good time to remind broadcasters about the trademark issues that often crop up in contests this time of year.  Contests related to March Madness and the Super Bowl are popular, but the use of the proper names of these sporting events related to contests and promotions can pose problems for unwary broadcasters.

“March Madness” and the “Super Bowl” are both trademarked terms, registered to the National Collegiate Athletic Association (NCAA) and National Football League (NFL), respectively.  The NCAA and NFL guard their trademarks fiercely, and have shown little hesitation in prosecuting individuals and businesses that use the trademarks without permission.  The reason for such an aggressive stance is that the NCAA and NFL ask corporate sponsors to cough up large sums of money for the right to use the trademarked terms in advertising, and therefore don’t want non-sponsors using the terms to promote their businesses for free.  As a result, anytime a broadcaster (or other business) uses the terms March Madness or Super Bowl for a promotional or commercial purpose, or suggests an affiliation with either event for which it hasn’t paid, the possibility of a lawsuit exists. Continue Reading