New FDA Warnings Requirement for Cigar Ads – Effective Date Delayed

Posted in Advertising Issues

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 Hosts FCC Commissioner Brendan Carr for Luncheon Roundtable

Posted in Broadcast Regulation

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.

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Draft NPRM Proposes Momentous Changes to the Children’s Television Programming Rules

Posted in Broadcast Regulation

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

FCC Seeks Comment on Key TCPA Issues

Posted in Broadcast Regulation, Broadcast Technology, Telephone Consumer Protection Act

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.

Transitioning TV Stations Should Be Mindful of Notification Requirements

Posted in Broadcast Regulation

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.

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Wiley Rein to Sponsor Startup World Cup 2018 Grand Finale Supporting Next Wave of Leading Entrepreneurs

Posted in Broadcast Technology

Wiley Rein is pleased to sponsor the Startup World Cup 2018 Grand Finale on May 11, a major event that brings together the world’s leading startups and top entrepreneurs to compete for a $1 million grand prize of investment in their company. The day-long program, held at the San Francisco Marriott Marquis, features conversations with high-profile speakers and concludes with a pitch competition among regional champions from around the globe.

“We are excited to support the Startup World Cup Grand Finale and partner with these extraordinary entrepreneurs and future business leaders,” said Wiley Rein Managing Partner Peter D. Shields. “It’s a great opportunity for us to connect with the Silicon Valley community and share how startups can proactively engage with Washington, DC, to meet their strategic policy goals. We congratulate all of the finalists, whose innovations represent the next wave of successful business ventures and new technologies.”

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FCC Seeks Comment on Proposal to Streamline Assignment/Transfer of TV Satellite Stations

Posted in Broadcast Attribution, Broadcast Regulation

FCCUPDATE 4/12/2018:  Comments are due on May 11, 2018 and reply comments are due on May 29, 2018.

The FCC wants to know whether and how it should revise the process for applying to assign or transfer control of a television satellite station.

Television satellite stations are full power television stations that retransmit some or all of the programming of another television station and, as such, are exempt from the local and national television multiple ownership limits. Currently, the FCC evaluates proposals to qualify a station as a satellite station on an ad hoc basis, considering whether the satellite station serves an underserved area and whether there is an alternative operator who is ready and able to operate the satellite station as a full-service station. Upon application to assign or transfer the parent/satellite combination, the Commission requires the applicant to demonstrate that the conditions that initially warranted satellite status continue to exist. Continue Reading

LPTV, TV Translator, and FM Radio Stations to Benefit From New Repack Funding

Posted in Broadcast Regulation

On Friday, President Trump signed into law the Consolidated Appropriations Act, 2018 (H.R.1625), which includes an amended version of the Repack Airwaves Yielding Better Access for Users of Modern Services (RAY BAUM’S) Act of 2018 (H.R.4986), funding for the Federal Communications Commission (FCC), and funding for the National Telecommunications and Information Administration (NTIA).

While the $1.3 trillion spending bill covers a lot of ground, many broadcasters will be interested in the new funding designated to help not only full power television stations, but also LPTV, TV translator, and FM radio stations affected by the post-incentive auction repack.  The bill allocates $1 billion to the existing TV Broadcaster Relocation Fund ($600 million in fiscal year 2018 and $400 million in fiscal year 2019) to be used to reimburse relocation costs of eligible broadcaster and multichannel video programming distributors, television translator stations and low-power television stations, and FM broadcast radio stations.  The bill also authorizes the FCC to use up to $50 million from the TV Broadcaster Relocation Fund for consumer education. Continue Reading

Top 3 Takeaways for Media Companies from the D.C. Circuit’s TCPA Decision

Posted in Contests, Corporate/Business, Telephone Consumer Protection Act

The D.C. Circuit has now issued a long-awaited decision involving the Telephone Consumer Protection Act (TCPA), which has widespread implications for broadcasters and other media companies that rely on modern calling equipment (including text messaging) to reach their audiences. The decision resolves an appeal of the Federal Communications Commission’s (FCC’s) 2015 Omnibus TCPA Order with a unanimous panel but a split decision on the merits:  the Court affirmed the FCC on two issues and vacated on two others.  With respect to the three issues of interest to media companies, the Court vacated the FCC’s definition of “automatic telephone dialing system” (ATDS) and its approach to reassigned numbers, while affirming the agency’s approach to consumer revocation of consent to receive autodialed calls.

Three quick takeaways from the Court’s decision are as follows:

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Comment Dates Set on FCC Proposal to Eliminate Paper Contract Filing Requirement for Broadcasters

Posted in Broadcast Regulation

In another proceeding initiated as part of its effort to modernize the rules that apply to broadcasters, the Federal Communications Commission (FCC) is seeking comment on whether and how to update the requirement that licensees file paper copies of certain contracts and other documents with the agency within 30 days of their execution. As a result of the publication of the notice of proposed rulemaking (NPRM) in the Federal Register, comments are due on March 19, 2018, and reply comments are due on April 2, 2018.

Section 73.3613 of the FCC’s rules mandates that broadcasters file paper copies of documents related to ownership and control of a broadcast station with the FCC, and that licensees must also either place copies of, or a list of, such documents in their public inspection files. This requirement—originally adopted in the late 1930s—was intended to keep the FCC and the public informed about station ownership and control. The NPRM notes, however, that as of March 1, 2018 all broadcast stations will have transitioned to an online public file, which “enables greater public access to the contents of the files,” including documents filed under Section 73.3613.

As a result, the NPRM tentatively concludes that the FCC should eliminate the paper filing requirement for all broadcast stations, while leaving in place the obligation to include copies of, or a list of, contracts covered by Section 73.3613 in station public files. In addition, the FCC proposes to clarify that the public file must be kept updated regarding Section 73.3613 documents, and that broadcasters must provide copies to the FCC and the public within seven days of receiving a request. The NPRM seeks comment on these issues.

The FCC also asks how it might provide additional clarity under its rules concerning broadcaster documents related to ownership and control and broadcasters’ updating obligations with respect to such documents and whether, in the alternative, the agency should eliminate entirely Section 73.3613 and instead amend its public file rules to encompass broadcasters’ substantive obligations regarding ownership and control documents. Finally, the FCC asks how it should address the analogous obligations that apply to international broadcast stations—which are authorized on a seasonal basis and the transmissions of which are intended to be received outside of the United States—particularly given that these stations do not have public file obligations.