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FTC Issues Enforcement Policy Statement Clarifying Verifiable Parental Consent Requirement for Audio Files

Posted in FTC

On October 20, 2017, the Federal Trade Commission issued an Enforcement Policy Statement regarding the applicability of the Children’s Online Privacy Protection Act (COPPA) to the collection and use of children’s voice recordings, such as those collected when a child uses an internet-enabled device to perform a search via voice commands.  The Enforcement Statement clarifies that verifiable parental consent is not required for certain such recordings.

The FTC’s COPPA rule requires, among other things, operators of commercial websites or online services directed to children to provide notice of their information practices to parents and to obtain verifiable parental consent before collecting a child’s personal information. As originally promulgated, the rule defined “personal information” to include data such as name, address, and social security number.  In 2013, the FTC amended its COPPA rule to add audio files containing a child’s voice to the definition of personal information.  Thus, covered operators must provide notice and obtain verifiable parental consent before “collecting” a child’s voice recording.  (A covered operator is deemed to have “collected” personal information when it requests, prompts, or encourages a child to submit such information online.) Continue Reading

FCC Draft Order Would Authorize Voluntary Transition to ATSC 3.0

Posted in Broadcast Regulation, Broadcast Technology

On October 26, 2017, the Federal Communications Commission released a draft Report & Order (“Draft Order”) that would allow television broadcasters to use the Next Gen TV standard (a/k/a ATSC 3.0) on a voluntary, market-driven basis.  The Draft Order will be voted on at the Commission’s November 16th Open Meeting.  Below, we summarize the key points in the Draft Order.

Voluntary Use

The Draft Order would authorize broadcasters to transmit using the ATSC 3.0 transmission standard on a voluntary, market-driven basis.  Accordingly, broadcasters would be permitted, but not required, to transmit Next Gen TV signals.  Broadcasters could, therefore, opt to continue transmitting their signals solely in the currently authorized ATSC 1.0 transmission standard.

Local Simulcasting

In the Draft Order, the Commission states that it will require broadcasters choosing to implement Next Gen TV operations to air a local simulcast of the primary video programming stream of their ATSC 3.0 channel in the current ATSC 1.0 transmission standard.  Next Gen TV broadcasters must partner with another station (i.e., a “host” station) in their local market to either (1) air an ATSC 3.0 channel at the host’s facilities, while using their original facility to continue to provide an ATSC 1.0 simulcast channel, or (2) air an ATSC 1.0 simulcast channel at the host’s facility, while converting their original facility to the ATSC 3.0 standard in order to provide a 3.0 channel.  The local simulcasting requirement only applies to the primary video programming stream aired by Next Gen TV broadcasters on their ATSC 3.0 channels.  The Draft Order states that broadcasters will have discretion to select the primary stream for purposes of local simulcasting, but notes that the primary stream “generally contains network programming for network affiliates or the station’s most popular programming for non-network stations.”  Continue Reading

FCC to Consider Sweeping Changes to Media Ownership Rules

Posted in Broadcast Attribution, Broadcast Regulation

FCCFederal Communications Commission (FCC or Commission) Chairman Ajit Pai is proposing some of the most dramatic changes to the Commission’s media ownership rules in decades. At its November 16 Open Meeting, the agency will consider an Order on Reconsideration that would: (i) eliminate the 42-year-old newspaper/broadcast cross-ownership rule; (ii) eliminate the radio/television cross-ownership rule; (iii) loosen the existing rules governing the ownership of local television stations (including attribution of joint sales agreements); and (iv) initiate a proceeding to establish an incubator program to facilitate the entry of new and diverse voices in the broadcast industry. If adopted, the Order on Reconsideration will represent a substantial departure from the Commission’s Second Report and Order in the 2010/2014 Quadrennial Ownership Review, which largely left the FCC’s existing rules intact.  The draft Order on Reconsideration can be found here.

FCC Votes to Eliminate Main Studio Rule

Posted in Broadcast Regulation

At its October 24, 2017 Open Meeting, the FCC voted to eliminate its 78-year-old main studio rule, requiring each radio and television station to maintain a main studio located in or near its community of license.  Commissioners voted along party lines, with Chairman Pai and Commissioners O’Rielly and Carr voting in favor of eliminating the rule and Commissioners Clyburn and Rosenworcel voting against.  The rule change will go into effect 30 days after its publication in the Federal Register.

The Report & Order (“R&O”) issued by the Commission did not deviate substantively from the draft Report and Order released on October 3, 2017. As expected, therefore, the R&O eliminates the main studio rule, under which a broadcast station is required to maintain a main studio either in its community of license, within its principal community contour, or within 25 miles from the reference coordinates of the center of the station’s community of license.  As justification for eliminating the rule, the R&O notes that “it is exceedingly rare for a member of the public to visit a station’s main studio, with community members overwhelmingly choosing instead to communicate with stations through more efficient means such as email, station websites, social media, mail, or telephone.”  The R&O also concludes that elimination of the main studio rule will not result in a decline in broadcasters’ local news coverage or community involvement because other rules, such as the requirement that broadcasters air programming responsive to local community issues, will “ensure that a station continues to serve its local community.”  The R&O also emphasizes the cost savings afforded by elimination of the main studio rule, which “will enable [broadcasters] to allocate greater resources to local programming and other matters such as community outreach, newsgathering, equipment upgrades, and attracting new talent and personnel.” Continue Reading

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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