Mandate Issues in Third Circuit Media Ownership Case, Causing Reinstatement of Outdated Rules

Posted in Broadcast Attribution, Broadcast Regulation, Ownership Rules, Transactions

On November 29, 2019, the U.S. Court of Appeals for the Third Circuit issued its mandate in the latest chapter of the seemingly never-ending litigation saga concerning the Federal Communications Commission’s (FCC’s) media ownership rules. As a result, the rules left in place by the 2016 broadcast quadrennial review are now again in effect.

The issuance of the mandate means that broadcasters and investors are now subject to restrictions on newspaper/broadcast cross-ownership and radio/television cross-ownership. In addition, the local television ownership rule no longer includes an express provision permitting parties to show that application of the top-four aspect of that rule will not serve the public interest. Further, parties will once again need to demonstrate not only that a proposed combination of two television stations does not involve two stations ranked among the top-four, but also that at least eight independently owned, full power television stations (or “voices”) will remain after consummation of a proposed television station transaction. And television Joint Sales Agreements (JSAs) entered into after March 31, 2014, are now attributable under the local television ownership rule, while those television JSAs that existed prior to that date may remain in effect (and can be transferred or assigned) through September 30, 2025.

Although the FCC and interested parties may seek Supreme Court review, the outdated rules left in place in 2016 will now govern for some time. We summarized those rules in detail here, and are available to answer any questions that you may have.

Proposed Department of Commerce Rules Would Apply to a Broad Range of Radio and Television Broadcasting Equipment Transactions with Foreign Manufacturers

Posted in Broadcast Regulation, Foreign Ownership, Transactions

The Department of Commerce (Department) has proposed regulations that would apply broadly to an expansive range of “transactions” involving information and communications technology and services (ICTS) – including radio and television broadcasting equipment – with foreign entities designated as “foreign adversaries.” These proposed rules would apply not only to traditional “transactions” such as mergers and acquisitions but also to the “acquisition, . . . installation, dealing in, or use” of covered ICTS equipment. If interpreted expansively, the proposed rules could apply to any such actions that originate from a foreign source after May 15, 2019. The rules would grant the Department the authority to identify, assess, and address situations that the Department determines pose an undue risk to U.S. critical infrastructure or the digital economy in the United States, or an unacceptable risk to U.S. national security or the safety of U.S. persons.

Chinese equipment manufacturers such as Huawei and ZTE are the most obvious targets of adverse Department attention. However, the proposed rules are exceedingly broad on their face and create substantial risk of uncertainty for broadcast and other media companies that have or have plans to have dealings with any foreign equipment manufacturer. This is of particular concern given the ongoing process of repacking television broadcasters and related impacts on radio and low power television broadcasters, which could involve substantial actions related to foreign-manufactured equipment.

The deadline for comments is short – December 27, 2019 absent an extension – and we recommend that interested parties consider how this new regime could impact their business operations and investments. We look forward to the opportunity to leverage our deep expertise in dealing with the Commerce Department and national security agencies to help you assess the possible effects of the proposed rules on your business and to influence the regulatory process.

You can read more on our website here.

Third Circuit Refusal to Reconsider Media Ownership Decision Means Déjà vu All Over Again

Posted in Broadcast Attribution, Broadcast Regulation

The seemingly never-ending cycle in which the FCC adopts an order in its quadrennial media ownership review only to have that order overturned by a panel of the United States Court of Appeals for the Third Circuit is likely to continue unless the Supreme Court intervenes.

On Wednesday, November 20, the Third Circuit denied petitions for rehearing filed by the FCC and a group of intervenors from the broadcast and newspaper industries.  The petitions asked the Court to reconsider an earlier decision by the panel that vacated the Commission’s 2017 Media Ownership Order on Reconsideration and 2018 Incubator Order in their entirety and vacated the revenue-based definition of an “eligible entity” in the FCC’s 2016 Media Ownership Order.  The order denying the petition, which was signed by Judge Thomas Ambro (the author of the panel opinion), did not provide the details of the Third Circuit’s consideration.  It did, however, note that no judge who concurred in the panel decision asked for rehearing and a majority of the judges of the circuit in regular service did not vote for rehearing. Continue Reading

FTC Targets Drug Personal Injury Ads in Warning Letters

Posted in Advertising Issues, FTC

Last week the Federal Trade Commission announced that it sent multiple warning letters about television advertisements soliciting clients for personal injury lawsuits against drug manufacturers.  While not identifying specific ads, the FTC provided some guidance around the kinds of advertisements that it thought may have crossed the line, and suggested language that similar ads should include.

In the letters – which were sent to both legal practitioners and lead generators – the FTC expressed concern that certain ads may contain misrepresentations about the risks of specific pharmaceutical drugs and may have misled consumers into thinking that their prescription medication had been recalled.  The agency’s press release pointed to potentially misleading claims about “the risks of taking blood thinners and drugs for diabetes, acid reflux, and high blood pressure, among other conditions.”

Separately, the agency expressed concern that the lawsuit advertising discouraged consumers from taking needed medication by suggesting it was unsafe. The FTC explained that it considered this an “unfair” practice, meaning that an ad that is shown to discourage consumer from taking medication is potentially unlawful – regardless of whether it makes specific deceptive claims about the drug. According to the FTC, the lawsuit advertisements “may need to include clear and prominent audio and visual disclosures stating that consumers should not stop taking their medications without first consulting their doctors.”

Finally, the warning letters emphasize that advertisements should not mislead viewers into thinking that they are public service announcements or government-sanctioned alerts, including by using sensational warnings. The FTC has long required that advertisements be clearly identifiable as such rather than disguised as editorial or other non-commercial content.

The warning letters reflect the FTC’s continued focus on truthful advertising concerning health claims. For example, the FTC recently sent a number of warning letters to marketers of CBD products making health-related claims. And the agency has undertaken a renewed push for monetary penalties in advertising cases, including a recent $1.76 million settlement with a company that allegedly deceptively advertised and marketed its products as “organic.”

Wiley Rein attorneys regularly counsel clients, including advertisers and media outlets that accept ads, on advertising compliance. Please reach out to us with any questions.

Why the LPTV/Translator/FM Post-Auction Reimbursement Process is Different

Posted in Broadcast Regulation

With the FCC’s announcement that FCC Form 2100, Schedule 399 (better known as Form 399) is now available for LPTV, TV Translator, and FM Stations seeking reimbursement for expenses incurred in relation to the broadcast television repack, the reimbursement process for these stations is now underway.  For many licensees that also own full power and Class A television stations, the process will have a familiar look.  However, broadcasters should not be complacent with what they know, as there are several important differences between the processes for full power and Class A stations and that for LPTV/translator/FM stations.  While this is not meant to be an exhaustive discussion of the requirements for reimbursement, we highlight a number of those differences below:

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Political Advertising 101: A Refresher Course for Very Busy People (2019 Update)

Posted in Advertising Issues, Broadcast Regulation, Political Broadcasting

If the initial excitement you feel at the prospect of what will hopefully be another bountiful political advertising market quickly gives way to a sick, uneasy feeling as you try to recall the FCC’s rather complex, and often confusing, political broadcasting rules, then this “update” is for you.  Although there haven’t been any significant changes to the FCC’s political advertising requirements, this high-level refresher guide will quickly bring you up to speed on the basics of what you used to know and what you need to know to handle the new political season.

To be clear, this guide just covers the basics and is by no means comprehensive; but it should serve as a useful resource to help you spot the key issues and ask the right questions.  In that regard, we strongly recommend that all station staff handling political buys and/or maintaining the political file take some time to brush up on the key rules governing political broadcasting, as summarized below.

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Is Your Station Ready for the CCPA?

Posted in Legislation

The California Consumer Privacy Act (CCPA) takes effect January 1, 2020.[1]  Broadcasters who have a presence in California should consider whether the law applies to them, and if the answer is yes, should start compliance efforts now.

Does the CCPA Apply To Your Station?

The CCPA applies to any for-profit business that collects a California resident’s personal information, does business in California, and meets at least one of the following criteria: (1) has annual gross revenues in excess of $25 million; (2) receives or discloses the personal information of 50,000 or more consumers, households, or devices per year; or (3) derives 50% or more of its annual revenues from selling the personal information of California residents.  There is no exception for broadcasters.

Accordingly, if your station or station group operates in California, there is a good chance the CCPA applies to you.  The key question—after determining whether your company is for-profit and meets one of the thresholds, for example, the annual gross revenue threshold (,—is whether your station or station group collects the personal information of California residents.  Under the CCPA, the definitions of “collect” and “personal information” are sweepingly broad—making the answer to the question of whether stations collect personal information likely to be a “yes.”

  • Collecting personal information includes: “buying, renting, gathering, obtaining, receiving, or accessing any personal information pertaining to a consumer by any means.”
  • Personal Information includes traditional information such as name and address, as well as other information including audio, electronic, visual, thermal, and olfactory information; commercial records (personal property, products, services purchased); biometric information; unique personal identifiers (IP addresses, cookies, beacons, etc.); internet information, such as browsing history and search history; geolocation information; professional or employment information; and inferences drawn from any of that information to create a profile of the consumer. Basically, if you can directly or indirectly connect the information to a natural person who is a California resident, it is likely personal information.

Does your station have a loyal listener club?  Does it run contests and promotions?  Do you have a website that uses cookies to deliver targeted advertising?  Does your station accept user-generated content?  These are just a few examples of how a station could be collecting personal information.

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Bonus Entries—With Extra Chances to Win Comes Extra Risk

Posted in Contests

Recently, we’ve seen an uptick in questions about bonus entries, or additional chances to win a contest given to entrants who do something additional, like share the contest on social media or watch a short video.  One popular scheme is to give entrants who donate money to a charity additional chances to win.  Sounds like a win-win, right?  Not so fast.  Let’s start at the beginning.

Federal and state laws generally prohibit private lotteries, the definition of which involves three elements: prize, chance, and consideration.  Eliminate one of those elements, and your illegal private lottery becomes a legal contest.  Probably the element most commonly eliminated is “consideration,” or the money or time required to enter a contest.  (Technically, a contest without consideration is a “sweepstakes,” but for simplicity’s sake we’ll just call it a contest.)  That’s why you’ll see “NO PURCHASE REQUIRED TO ENTER OR WIN” specified in contest rules.  That’s also why you’ll see free alternative methods of entry (like mailing in a 3×5 index card with your contact information) for contests that do have a payment requirement.  For contests with both a paid and unpaid method of entry, federal and state laws generally prohibit giving entrants who pay to enter a better chance of winning than entrants who enter for free.

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It Is Becoming Harder to Put the Kibosh on an FM Translator

Posted in Broadcast Regulation

FM translators have become a more pervasive and important component of terrestrial radio broadcasting than ever before.  Aided by the FCC’s AM revitalization initiative and increases in programming services via FM digital multicast streams, the number of authorized translator stations has increased sharply in recent years, as have the opportunities for translator licenses to carry considerable value through sale and rebroadcasting deals.  At the same time, interference disputes between translators and the owners of full-power FM stations (which have primary status over translators) have become more frequent, as more and more translators go online and nip at the edges of listenership to co- and adjacent channel full-powers.

It’s become apparent to me that the FCC is grappling with translators’ enhanced role in the radio world and is somewhat recalibrating the balance between translator value and full-power station protection.  This is most evident through the agency’s overhauled rules for the handling of interference complaints against FM translators, which among other things require a minimum number of complaints by listeners of the “victim” full-power station (it used to take only one), and for the first time establish an outer service contour of the full-power station beyond which listener complaints will not be considered.  But a decision last month by the FCC’s Audio Division could be read as a further, more subtle indication that the agency is looking at FM translators in a more permissive light.  The case involved an objection to a series of technical modification applications that, taken together, relocated a translator roughly 40 miles from its originally licensed community to downtown Chicago.

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An Early Look at the FCC’s New Administrative Law Judge

Posted in Broadcast Regulation

FCCOn Tuesday, July 9, Jane Hinckley Halprin will preside over the initial stages of her first hearing as the FCC’s administrative law judge to determine a series of questions regarding the role of a convicted felon in the ownership of four AM radio stations.  Given the absence of any record on which to evaluate Judge Halperin’s style on the bench, we thought it would be a good time to take stock of what we can learn about Judge Halperin from her initial actions as an ALJ.

Although Judge Halperin had a distinguished career at the FCC before taking over for former ALJ Richard Sippel, much of that time was spent behind the scenes.  Haplerin first joined the FCC in 1987 as a staff attorney in the former Common Carrier Bureau and has occupied positions in the former Mass Media Bureau, the Wireless Telecommunications Bureau, and the Office of General Counsel.  In the 14 years before becoming an ALJ, Halperin worked as an Ethics Counsel in the Office of General Counsel, most recently leading the agency’s ethics team as Assistant General Counsel for Ethics.

Judge Halperin has only issued two substantive decisions since becoming an ALJ , but those decisions suggest that Halperin takes her role as an ALJ seriously and that her approach is both thorough and uncompromising.

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