New York, once a battleground in the fight over whether fantasy sports are legal, has returned to the spotlight once again. Those who have watched this issue may recall that the New York legislature passed a law legalizing and regulating fantasy sports in 2016. This ended a legal fight between fantasy operators and the New York Attorney General’s Office and cleared the way for legal fantasy sports operations by DraftKings, FanDuel, and others in the state. The law declared fantasy sports to be games of “skill” rather than “chance” and therefore not illegal “gambling” prohibited under the state penal code, providing what many viewed as a final resolution to the matter. Under the new law, fantasy sports operations flourished in New York, and spending on broadcast and other forms of advertising promoting them increased. But now a New York state court has called into question whether the legislature had the power to legalize fantasy sports given a provision in the state constitution, renewing the debate over the legal status of fantasy sports contests – and whether such contests can be legally advertised – in the state.
On October 5, 2018, the Federal Communications Commission, as part of its ongoing efforts to revitalize AM radio, released a Second Further Notice of Proposed Rulemaking(SFNPRM) seeking comment on revised proposals regarding interference protection to Class A AM stations (so-called “clear channel” stations). The SFNPRM is a follow-up to the Commission’s Further Notice of Proposed Rulemaking released in 2015, in which the agency sought comment on technical proposals to reduce the nighttime protection afforded to Class A stations so as to enable more local AM stations to increase their nighttime service. Comments are due 60 days after the item is published in the Federal Register; reply comments are due 90 days after publication.
Clear channel stations, of which there are 57 in the continental U.S. and 16 in Alaska, are currently authorized to broadcast at up to 50 kW daytime and nighttime and are designed by rule as providing primary and secondary service over extended areas. Accordingly, these stations are afforded extensive daytime and nighttime protection from interference by co- and adjacent-channel AM stations. Specifically, clear channel stations in the continental U.S. are protected during the day to their 0.1 mV/m groundwave contour from co-channel stations, and to their 0.5 mV/m groundwave contour from adjacent-channel stations. At night, clear channel stations are protected to their 0.5 mV/m-50 percent skywave contour from co-channel stations and to their 0.5 mV/m groundwave contour from adjacent-channel stations.
The issue of clear channel station protection has been a contentious one since the FCC raised it in 2015, largely pitting Class A station owners against the operators of less powerful, more local AM stations. Class A licensees have resisted proposals to reduce their extensive interference protection, citing the vital role of clear channel stations in national emergencies and other benefits of wide-area AM stations listenable at night across large portions of the country. Owners of smaller AM stations, on the other hand, have pointed to their need to curtail or entirely eliminate their locally-based service at night to protect Class A stations hundreds of miles away. Continue Reading
The Federal Communications Commission (FCC) has released a public notice setting October 12, 2018 as the initial deadline for “United States-based foreign media outlets” to file reports with the FCC. The reports are required pursuant to the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (NDAA) and must contain certain specified information. The question whether an entity is subject to the NDAA’s reporting obligation requires a multi-faceted inquiry, and we believe that the universe of entities that must file reports with the FCC is likely to be relatively limited. However, the FCC’s announcement provides a timely reminder for all entities with foreign ties to assess not only whether they must file reports under the NDAA, but also whether they may be subject to separate registration requirements under the Foreign Agents Registration Act (FARA), which the Department of Justice (DOJ) has recently taken a greater interest in enforcing against foreign-owned, controlled, or funded media outlets, most recently including Chinese state-run Xinhua News Agency and China Global Television Network. Continue Reading
The FCC and FEMA announced today that they are postponing the nationwide test of the Emergency Alert System and the Wireless Emergency Alert System originally scheduled for this Thursday, September 20, 2018, due to the ongoing response to Hurricane Florence. The test will now be held on the back-up test date of October 3, 2018.
Broadcasters will be required to file their “day of test” information on ETRS Form Two at or before 11:59 PM EDT on October 3, 2018.
Broadcasters will be required to file the detailed post-test data sought on ETRS Form Three on or before November 19, 2018
On July 13, 2018, the FCC released the text of a Notice of Proposed Rulemaking (“NPRM”) that, consistent with the draft item released in June, proposes sweeping changes to the current children’s television programming rules. Comments on the FCC’s proposals are due September 24, 2018 and replies are due October 23, 2018.
In the NPRM, the Commission points to several catalysts for modifying its “outdated” children’s programming rules, including broadcasters’ ability to carry more than one digital programming stream and the decline in “appointment viewing” as viewers increasingly access programming on demand. Recognizing that the Children’s Television Act (“CTA”) requires television stations to provide some amount of programming specifically designed to meet the educational and informational needs of children – which the FCC has labeled “Core Programming” – the agency does not propose a wholesale repeal of its children’s programming requirements. However, the NPRM seeks comment on nearly every aspect of the Commission’s current rules and aims to give broadcasters increased flexibility to choose how to serve the educational and informational needs of children. Specifically, comments are sought on proposals to (i) revise the FCC’s definition of Core Programming, (ii) relax the agency’s renewal processing guidelines, (iii) revisit the Commission’s rules that require Core Programming on multicast channels, and (iv) reconsider the agency’s preemption policies. Continue Reading
The start date for the FDA’s new warnings requirement for cigar ads and labels, set to go into effect on August 10, 2018, has been delayed. Earlier this month, a federal judge issued an injunction that temporarily prohibits the FDA from enforcing its new warnings requirement on cigar and pipe tobacco products.
As we wrote about here, the warnings requirement mandates that cigar advertisements contain one of six warning statements. Once effective, all cigar advertisements, regardless of the medium in which they appear, must carry a warning. Television, social media, and other advertisements with a “visual component” must ensure that the warning appears on “at least 20 percent of the area of the advertisement” and that it is printed in 12-point (or larger) font in either Helvetica and Arial typeface. In addition, the warning must be in English, unless the advertisement appears in a non-English language publication, in which case the warning should appear in the primary language used in the publication. The new warnings requirement will not affect the federal ban on broadcast advertisements for cigarettes, little cigars, and smokeless (chewing) tobacco.
The injunction stems from a case brought before the United States District Court for the District of Columbia in which Plaintiffs, including the Cigar Association of America, challenged aspects of a new FDA rule – known as the “Deeming Rule” – that subjects cigars and pipe tobacco to statutory and regulatory requirements similar to those already imposed on cigarettes and other tobacco products. Plaintiffs argued that the Deeming Rule violates the Tobacco Control Act, the Administrative Procedure Act, and the U.S. Constitution. The District Court disagreed, finding in favor of the FDA. Plaintiffs appealed and the District Court issued an injunction pending appeal effective until 60 days after final disposition of Plaintiff’s appeal by the appellate court.
Although the warnings requirement will not apply to broadcasters directly, broadcasters should be aware of it in order to assist their clients’ compliance efforts.
Wiley Rein hosted a luncheon roundtable discussion on Wednesday featuring Brendan Carr, Commissioner of the Federal Communications Commission (FCC) and an alumnus of the firm. The event was attended by over 120 guests including many clients and leaders in the communications industry, as well as press.
The Federal Communications Commission has released a draft Notice of Proposed Rulemaking proposing sweeping changes to the current children’s television programming rules (NPRM). The Commission is expected to officially adopt the NPRM at its next open meeting on July 12, 2018.
In the draft NPRM, the Commission proposes to modify its “outdated” children’s programming rules to provide greater flexibility to broadcasters to choose how they serve the educational and informational needs of children. Recognizing that the Children’s Television Act (CTA) requires television stations to provide some amount of programming specifically designed to meet the educational and informational needs of children – which the FCC has labeled “Core Programming” – the agency does not propose a wholesale repeal of its children’s programming requirements. However, the draft NPRM appears to put every aspect of the Commission’s current rules up for discussion. Specifically, comments are sought on proposals to (i) revise the FCC’s definition of Core Programming, (ii) relax the agency’s renewal processing guidelines, (iii) revisit the Commission’s rules that require Core Programming on multicast channels, and (iv) reconsider the agency’s preemption policies.
The Commission seeks comment on revisions to each element of its Core Programming definition. The changes, if adopted, would allow for broadcasters to meet their programming requirement with shorter length specials (e.g., School House Rock segments or after school specials).
The Commission tentatively concludes that it should eliminate its current requirements that Core Programming:
- be at least 30 minutes in length;
- be regularly scheduled; and
- be identified on-screen by noncommercial stations with an E/I symbol. (The draft NPRM also asks whether commercial stations should be exempt from this obligation.)
The draft NPRM seeks comment on:
- whether the time period during which Core Programming must air should be expanded outside of 7:00 am – 10:00 pm; and
- whether the FCC should retain the requirement that broadcasters provide their Core Programming schedules to publishers of program guides. Continue Reading
The Federal Communications Commission (“FCC” or “Commission”) has taken its first step in addressing several key issues under the Telephone Consumer Protection Act (“TCPA”) that were raised by the recent D.C. Circuit decision that resolved an appeal of the Commission’s 2015 Omnibus TCPA Order. Specifically, the D.C. Circuit’s March decision in ACA International v. FCC vacated the Commission’s overly broad definition of an autodialer and the Commission’s approach to reassigned numbers, and affirmed the Commission’s approach to revocation of consent. On May 14, the Commission’s Consumer and Governmental Affairs Bureau issued a Public Notice in light of the decision.
The Public Notice seeks comment on several key TCPA issues, including:
- Definition of an Autodialer: Whether equipment is an autodialer or not determines whether TCPA consent requirements apply to calls to wireless numbers. Accordingly, how the FCC interprets the term autodialer directly effects the reach of the TCPA. The D.C. Circuit determined that the interpretation from the 2015 Omnibus TCPA Order—which swept into the definition smart phones and tablets—was overly broad. Accordingly, the Public Notice explicitly asks how the Commission might “more narrowly interpret the word ‘capacity’ [a key word in the relevant statutory definition] to better comport with the congressional findings and the intended reach of the statute.”
- Reassigned Numbers: The 2015 Omnibus TCPA Order created a one call safe harbor for calls to reassigned numbers. The D.C. Circuit struck down that approach, so now, the Public Notice asks generally how the Commission should treat calls to reassigned numbers. This inquiry includes questions about how to define the term “called party,” whether a safe harbor is necessary, and how the reassigned number database that the Commission has proposed in a separate proceeding should affect its interpretation.
- Revocation of Consent: The Public Notice asks for input on how consumers may revoke consent that they previously gave to receive calls. The Public Notice seeks comment on specific opt-out methods.
The issues raised by the Public Notice are of importance to all entities – including media companies – that use modern calling equipment as part of their businesses. Comments on the Public Notice are due June 13 and reply comments are due June 28.
With the first phase of the post-incentive auction repack rapidly approaching, licensees of full power and Class A television stations should be mindful of upcoming deadlines for notifications to multichannel video programming distributors (MVPDs), medical facilities, and viewers. The requirements apply both to stations that submitted a successful bid to change bands and to stations that are changing channels due to the repack.
For your reference, we have included a brief summary of these requirements below.