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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Narrow Supreme Court Decision Could Have Far-Reaching Implications for Public Access Channels

Posted in First Amendment

On its face, the Supreme Court’s 5-4 decision in Manhattan Community Access v. Halleck resolved a narrow question about whether a nonprofit public access channel operator was a state actor subject to First Amendment constraints.  But the Court’s opinion may have invited a more critical inquiry into the role that the government plays in regulating access to cable systems.

The history of this case starts in 1984, when Congress granted state and local governments the authority to require cable operators to set aside cable channels for public access.  The New York Public Service Commission utilized this authority and required Time Warner—now Charter—to set aside channels on its cable system in New York City for public access.  In turn, New York City delegated operation of the public access channels to a nonprofit called Manhattan Neighborhood Network (MNN).  Under New York state law, these public access channels must be made available to the public “on a first-come, first-served, nondiscriminatory basis.”

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FCC Reverse Auction Data Provides An Interesting Glimpse Into the Past

Posted in Spectrum

Auction BlockForty years ago, Boston’s “Don’t Look Back” had just left the top of the Billboard charts.  The chart topping hit featured lead singer Brad Delp singing that the past was “holding me back” and “far away and left behind.”

The FCC, however, is not taking Boston’s advice.  In the Incentive Auction Report and Order, the Commission committed to keeping information about unsuccessful bids in the reverse auction confidential for a period of two years following the close of the incentive auction.  Now, just over two years after the official end of the Incentive Auction, the Incentive Auction Task Force released detailed  bidding data for the broadcast side of the auction.  The information is available on the FCC’s Public Reporting System, which can be found at https://auctiondata.fcc.gov/public/projects/1000.

As you may recall, the Commission conducted the auction in stages.  Stage 1 featured a reverse auction clearing target of 126 MHz and lasted 52 rounds.  When the revenues generated in the forward auction did not exceed the total clearing cost, however, the auction proceeded to three additional stages, with Stage 4 featuring a clearing target of 84 MHz.  Under the clock auction format, the FCC “froze” stations bids when it did not have an available channel to accommodate those stations in the repack.  A station whose bid froze in an earlier stage could unfreeze in a subsequent stage as the demand decreased.  Furthermore, VHF stations could freeze and unfreeze during a stage as demand from UHF stations to move to VHF shifted.

While we will not attempt to recreate every detail of the auction (although we have no doubt some will try), our initial review of the new reverse auction data led to some interesting observations:

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A Broadcaster’s Guide to Spectrum Valuation (Auction 101 Edition)

Posted in Spectrum

Auction BlockWith another FCC spectrum auction in the books, many broadcasters may be interested in taking stock of the value of their spectrum usage rights and the likelihood that they may have an opportunity to monetize their spectrum sometime in the future.

Let’s start with the most recent news and then try to figure out what it means for broadcasters.  Last Thursday, the FCC announced the close of Auction 101, in which the Commission auctioned two 425 megahertz wide blocks of 28 GHz spectrum (27.5-27.925 GHz and 27.925-28.35 GHz) in just 1,536 counties spread across the United States (out of more than 3,000 counties total).  28 GHz spectrum is known as “millimeter wave” or “high-band” spectrum, and is characterized by short wavelengths that require dense networks with closely located transmitters.  By comparison, broadcast spectrum falls below 700 MHz and is characterized by long wavelengths that allow broadcast signals to travel long distances and penetrate buildings.

The value assigned to the 28 GHz spectrum, at $0.011/MHz-POP, was by far the lowest of the three most recent FCC spectrum auctions:

Auction Average Price (MHz-POP)
AWS-3 (Auction 97) $2.71/MHz-POP
TV Broadcast Incentive Auction (Auction 1002) $1.26/MHz-POP
28 GHz (Auction 101) $0.011/MHz-POP

However,  there are several explanations for the lower prices in Auction 101, including the location of the spectrum in a frequency band that requires more physical infrastructure, the lack of terrestrial operations in nearby spectrum bands, the smaller geographic areas for each license, and the sheer volume of spectrum associated with each license (425 MHz, compared with 5 MHz pairs in Auction 1002 and Auction 97).  Furthermore, the licenses available in Auction 101 only covered about 24% of the population and did not include counties located in most large metropolitan areas.

So what does this mean for broadcasters?

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