Second Post-Auction Filing Window to Open October 2

Posted in Broadcast Regulation

Repacked television stations that have been waiting patiently for their turn to request an alternate post-auction channel or an expanded facility–your time is coming.  The second filing window for the post-Incentive Auction repack will open on Tuesday, October 3, 2017 and continue through Thursday, November 2, 2017.

The second window is open to all television stations that were reassigned to new channels in the Closing and Channel Reassignment Public Notice (including stations that submitted successful bids to move to a VHF channel). Continue Reading

FTC Sends (Another) Warning That Endorsers Must Disclose Connections to Products, Brands, or Services in Any Form of Media

Posted in Advertising Issues, Broadcast Regulation, Contests

When thinking about the regulations they must comply with, most broadcasters focus primarily, if not exclusively, upon the Federal Communications Commission (FCC). But there is at least one other federal agency that deserves attention, and that is the Federal Trade Commission (FTC). This is particularly true when endorsements, contests, and other marketing activities are in play, as well as when such activities occur not only on-air, but also on digital platforms including social media. Activities involving social media “influencers” and other endorsement-related issues have for some time been subject to increasing FTC scrutiny, as we have explained before (here and here). While one might have predicted that the FTC would pay less attention to these issues in the new administration, three recent developments suggest otherwise. 

Of most potential interest to broadcasters and other media companies – particularly those with an online presence – is an update to the FTC’s FAQs (Endorsement FAQs) concerning compliance with the agency’s Guidelines Concerning the Use of Endorsements and Testimonials in Advertising (Endorsement Guides). The Endorsement FAQs were last revised in April 2015, and the new version serves as a helpful reminder regarding basic obligations and provides some useful clarifications.  Here are five key takeaways: Continue Reading

FCC Delays 2017 Biennial Broadcast Ownership Reports

Posted in Broadcast Regulation

Broadcasters will have a few more months than normal this year to prepare and file their biennial ownership reports.  On September 1, 2017, the FCC’s Media Bureau announced that the window to file ownership reports will not open until December 1, 2017, which was the previously scheduled deadline.  Broadcasters will have until March 2, 2018 to complete their reports.

The delay is a result of the FCC’s migration of biennial ownership reporting from its Consolidated Public Database System (“CDBS”) to its Licensing and Management System (“LMS”).  Continue Reading

Reminder: 2017 Must-Carry and Retransmission Consent Elections

Posted in Broadcast Regulation

On or before October 1, 2017, each full-power commercial television station must make an election between must carry and  retransmission consent. In addition, although noncommercial television stations do not have retransmission consent rights, they must send carriage notices to DBS (and other satellite operators) on or before October 1, 2017 in order to obtain (or maintain) carriage on the satellite operator’s system.  The up-coming election covers the period from January 1, 2018 to December 31, 2020.  Commercial stations that fail to send an election notice to cable operators will default to must-carry status.  Stations that fail to send an election notice to DBS operators will default to retransmission consent status (DBS operators are not required to carry a station if it fails to make an election, though they must engage in good-faith negotiations for carriage).   There is no required language for election notices sent to cable operators.  Notices to DBS operators must include: (a) the station’s call sign; (b) the name of an appropriate contact person at the station; (c) the station’s address for purposes of receiving official correspondence; (d) the station’s community of license; (e) the station’s DMA assignment; and (f) a statement indicating whether the station is electing must-carry or retransmission consent. Copies of notices must be uploaded to stations’ online public files by October 1, 2017 and must remain in the public file until the end of the next election cycle.


FTC Updates COPPA Compliance Guide; Emphasizes Broad Reach of Rule

Posted in Privacy


This month, the Federal Trade Commission (“FTC”) updated its Children’s Online Privacy Protection Act (“COPPA”) Rule Compliance Guide in its ongoing effort to ensure that COPPA reflects changes in technology, including the Internet of Things (“IoT”).  Although the FTC’s update confirms that COPPA applies to IoT devices, it does not provide meaningful guidance to operators regarding how to effectively implement the COPPA requirements in the unique IoT context.

The updates make clear the expansive scope of COPPA. COPPA applies to operators of websites and online services that collect personal information about children under 13. Each of the operative terms in that general statement about COPPA have expansive definitions, according to the FTC. Continue Reading

FCC Public Notice Asks What Media Regulations to Eliminate

Posted in Broadcast Regulation, MVPD Regulation

On May 18, 2017, the Federal Communications Commission adopted a Public Notice initiating a review of its rules applicable to television and radio broadcasters, cable operators, and satellite television providers. The stated purpose of the review is “to eliminate or modify regulations that are outdated, unnecessary or unduly burdensome.” In addition to seeking comment on what rules should be modified or repealed generally, the FCC also asked if there are specific rules from which small businesses should receive regulatory relief.

This proceeding almost certainly will cover familiar territory for media entities, including operational rules, notification requirements, the retransmission consent regime, and the program carriage and program access rules. At the same time, given the FCC’s obligation to review its media ownership rules quadrennially, those rules are excluded from the instant review, as are the FCC’s recently adopted video accessibility requirements.

Comments are due by July 5, 2017 and replies are due by August 4, 2017.

FCC Chairman Ajit Pai said the review is designed to overcome “regulatory inertia.” Democrat Commissioner Mignon Clyburn dissented from the Public Notice, however, claiming that “the FCC’s majority starts with a premise that advancing the public interest can only be achieved by clearing the books of rules for the benefit of industry.”

If you are interested in submitting comments, please contact the Wiley Rein attorney who regularly handles your FCC matters or one of the authors of this post.

FCC Proposes Elimination of Broadcast Main Studio Rule

Posted in Broadcast Regulation

Update 6/2/2017: Based on today’s publication in the Federal Register, comments are due on July 3, with reply comments due July 17.

On May 18, 2017, the Federal Communications Commission adopted a Notice of Proposed Rulemaking (NPRM) in which it proposed to eliminate the main studio rule for all services (including the associated minimum staffing requirements). Comments will be due 30 days after publication in the Federal Register, with reply comments due 15 days later.

Under the main studio rule, AM, FM, and television broadcast stations must maintain a main studio in their community of license, within the station’s principal community contour, or within 25 miles from the reference coordinates of the center of its community of license. Traditionally, the main studio served as the hub for the station’s records and its contact with the community.

The NPRM concludes that “technological innovations have rendered a local studio unnecessary as a means for viewers and listeners to communicate with or access their local stations and to carry out the other traditional functions that they have served.” Accordingly, the NPRM proposes to eliminate the requirement to maintain a main studio with production and transmission facilities and the associated staffing requirements.

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FCC Releases Orders Eliminating FRN/RUFRN Requirement for NCEs and Allowing NCEs More Flexibility to Conduct Third Party Fundraising

Posted in Broadcast Regulation

On April 20, 2017, the Federal Communications Commission released the final text of two items adopted at the Commission’s April OpenMC910217216 Meeting that reduce regulatory burdens on noncommercial educational (NCE) broadcasters. The first item is an Order on Reconsideration (Recon Order) that allows NCE filers to utilize so-called “Special Use” FRNs (SUFRNs) when filling out ownership reports. Unlike FRNs or Restricted Use FRNs, SUFRNs do not require disclosure of personal information. The second item is a Report and Order that revises the FCC’s rules to allow NCE stations that do not receive CPB funding to conduct limited on-air fundraising activities that interrupt regular programming to benefit third-party non-profit organizations.

The text of each item is largely the same as the proposed text released by the Commission on March 30, 2017, which we summarized here. However, in the final Recon Order, the Commission added a sentence affirming that its “prior decision to collect data on the race, ethnicity, and gender of individuals holding attributable interests in NCE licensees remains undisturbed, and this data will be available to the Commission and researchers for purposes of evaluating ownership diversity issues.” Meanwhile, in the final Report and Order, the Commission appears to have narrowed the scope of the waiver available to CPB-funded stations seeking to conduct third-party fundraising. Because all but one CPB-funded station submitted comments in opposition to more permissive third-party fundraising, the Commission exempted CPB-funded stations from the new rule. However, in the draft Report and Order, the Commission specified that individual CPB-funded stations could request a waiver of the exemption generally (so as to be able to conduct fundraising for any third-party non-profit) via the long-standing waiver process used under the old rules. In the final Report and Order, that language is deleted and replaced by language suggesting that waivers under the long-standing process will be available to CPB-funded stations only in the context of disaster relief efforts or catastrophic events.

FCC Chairman Proposes to Eliminate the Main Studio Rule . . . And Possibly More

Posted in Broadcast Regulation

filingcabinetFCC Chairman Ajit Pai formally unveiled two proposals on Thursday to remove outdated broadcast regulations.  First, the Commission released a draft Notice of Proposed Rulemaking that would eliminate the main studio rule for all services (including the associated minimum staffing requirements).  Second, the Commission released a draft Public Notice seeking comment on media-related rules to modify or repeal.  Both items are on the agenda for the FCC’s May 18 open meeting (where they will share the dais with Chairman Pai’s proposal to remove Title II regulation of broadband Internet access service).

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Now Effective – The FCC’s Streamlined Broadcast Foreign Ownership Rules and New Rules Governing Foreign Ownership Compliance

Posted in Broadcast Regulation, Foreign Ownership, Transactions

With the publication of an announcement in the Federal Register on April 20, 2017, the FCC’s new foreign ownership rules, originally adopted on September 30, 2016, are now finally effective. The FCC’s September 2016 order made two significant changes to the agency’s foreign ownership rules. First, the new rules contain “streamlined” procedures that broadcasters must follow when filing a petition for declaratory ruling seeking FCC approval to exceed the foreign ownership limits set forth in Section 310(b)(4) of the Communications Act. Second, the FCC reformed the methodology for publicly traded broadcasters and common carriers to assess compliance with the statutory foreign ownership limits set forth in Sections 310(b)(3) and 310(b)(4) of the Act, and made clear that private companies are expected to have full knowledge of the extent of their foreign ownership.

The effectiveness of these new rules clears the way for additional foreign investment in broadcast companies, by extending to broadcasters procedures for declaratory rulings that are similar to those which have long applied to common carriers. The new rules also set forth a uniform methodology for publicly traded companies subject to the foreign ownership restrictions to assess their compliance with those restrictions. Although this new methodology provides increased transparency regarding the steps that the FCC expects public companies to take, it also heightens the need for such companies to exercise due diligence by monitoring foreign investments consistent with the new requirements.