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

FCC Settles With Broadcaster for Misuse of EAS Tones

Posted in Broadcast Regulation

The FCC’s Enforcement Bureau and broadcaster Univision have entered into a Consent Decree under which Univision will pay a $20,000 civil penalty for broadcasting five instances of a “simulated” EAS tone as part of a radio broadcast.

The Consent Decree indicates that on January 28, 2014, the hosts of a Spanish-language radio show in New York played what is described as “a sound effect containing a ‘simulated’ version of the EAS Header and End of Message Codes several times during a comedy sketch.”  The sound effect contained the recorded EAS tones from an EAS test that the station had broadcast.

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FCC Reaffirms Forfeitures Totaling $1.4 Million for Alleged Misuse of EAS Tones

Posted in Advertising Issues, Broadcast Regulation

The FCC is standing behind its proposed forfeitures against Viacom and ESPN for allegedly misusing the EAS tones in a movie trailer.  As we previously wrote, in March 2014, the FCC proposed almost $2 million in combined fines against Viacom, NBCUniversal, and ESPN based on allegations that these programmers repeatedly transmitted a trailer for the film “Olympus Has Fallen” that included real or simulated EAS tones or similar sounds.  Viacom and ESPN challenged their respective proposed liability, while NBCUniversal voluntarily paid its proposed forfeiture.

In the Forfeiture Order, the Commission reiterated the broad scope of the laws prohibiting the transmission of EAS tones outside of an actual emergency.  First, the agency determined that the plain language of both Section 325(a) of the Communications Act (prohibiting the transmission of false distress signals) and Section 11.45 of the FCC’s rules (prohibiting the transmission of the EAS tones or a simulation thereof outside of an actual emergency) provided adequate notice that they extend to any person, whether or not that person is directly responsible for the transmission.

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February 2, 2015 FCC EEO Deadlines

Posted in Broadcast Regulation, Employment

Certain radio and television stations face an upcoming FCC Equal Employment Opportunity (EEO) annual reporting deadline on Monday, February 2, 2015:

Annual EEO Public File Report

Radio and television station employment units (SEUs) located in Arkansas, Louisiana, Mississippi, Kansas, Nebraska, Oklahoma, New Jersey, and New York with five or more full-time employees must prepare by Monday, February 2, 2015 an annual EEO Public File Report (PFR).  The report must be placed in the public inspection file of each station in the SEU.  For full-power and Class A television stations, this means the PFR must be uploaded to the station’s online public inspection file hosted by the FCC.  The PFR must also be posted on the website belonging to each station in the SEU.

The PFR should summarize the SEU’s recruitment activity from February 1, 2014 through January 31, 2015, including full-time positions filled, the recruitment sources used to advertise those job openings, and the total number of interviewees and hires produced by each recruitment source.  The PFR must also include a summary of the SEU’s recruitment initiatives.

Certain broadcast license renewal applications are due on February 2, 2015.  The license renewal process includes the filing of an FCC Form 396 Broadcast EEO Program Report, as described below: Continue Reading

Reminder: Streaming Radio Fees Due February 2, 2015

Posted in Broadcast Regulation, Copyright, Music Licensing

Broadcasters streaming music on the Internet have until February 2, 2015, according to SoundExchange, to pay the $500 annual minimum fee per station or channel due to SoundExchange.  The statutory license fee is paid to SoundExchange for the right to publicly perform sound recordings on the Internet and is in addition to fees paid to ASCAP, BMI and SESAC that compensate the copyright holder of the musical composition and cover the right to publicly perform the musical work.

The $500 minimum payment does not relieve broadcasters of the duty to pay fees that accrue in excess of the minimum.  The fee for each “performance” (the streaming of one sound recording to one listener) payable by commercial broadcasters is $0.0025 in 2015 (up from $0.0023 in 2014).  The minimum is credited against the first $500 in per performance fees owed.    Noncommercial broadcasters are subject to separate payment obligations.

The $500 minimum payment does not relieve broadcasters of their reporting obligations to SoundExchange – which include Reports of Use (identifying the sound recordings performed) and Statements of Account (reporting broadcasters’ payment obligations).   “Small Broadcasters” are provided some relief and can pay an additional $100 per station or channel to waive the obligation to submit Reports of Use.  To qualify as a small broadcaster, the online listenership must be fewer than 27,777 aggregate tuning hours (“ATH”) annually, the equivalent of about 76 listeners, each listening one hour per day, or 38 listeners, each listening two hours per day.  Small broadcasters must elect small broadcaster status by February 2, 2015. Noncommercial broadcasters may also be able to avoid filing some or all Reports of Use, depending on their ATH, if they are noncommercial educational webcasters or if they are paying under the noncommercial webcaster agreement negotiated pursuant to the Webcaster Settlement Act of 2009.

The current rates and terms will expire at the end of the year.  A proceeding is ongoing to set rates and terms for 2016-2020.  Those rates and terms will be announced by mid-December of this year.

FCC Extends Deadlines for Comments About Proposed Procedures for Incentive Auction

Posted in Spectrum

Auction BlockUPDATE 1/30/2015: The FCC has once again extended the comment deadline.  Comments are now due on 2/20/2015; replies are still due on 3/13/2015.

The FCC’s Wireless Bureau today announced that it is providing parties with two additional weeks to submit their comments in response to the Auction Comment Public Notice.  You can read our summary of broadcast-related issues raised in the Public Notice here.

For those keeping track, there are several auction-related items with comment deadlines in the next 30 days: