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Indian E-music – The right mix of Indian Vibes… » David Oxenford

FCC to Hold Webinar on Reimbursement for Repacking Expenses of LPTV, TV Translators and FM Stations

Delivered... David Oxenford | Scene | Fri 23 Aug 2019 3:40 pm

Last week, we wrote about the FCC’s announcements of the opening of the filing period for LPTV, TV translator and FM stations that are seeking reimbursement for the costs they incurred because of the repacking of TV channels into a smaller part of the spectrum following the incentive auction. The FCC forms that need to be filed to request reimbursement must be submitted by October 15. As we wrote, the process is somewhat complicated, as those seeking reimbursement need to document their costs and to prove their eligibility to share in the reimbursement funds. This week, the FCC announced that next week, on Wednesday, August 28 at 11:00 AM Eastern Time, the FCC will hold a webinar to detail the process for seeking reimbursement (see the notice of that webinar here and log-in details here). For those seeking reimbursement, it may be worth your time to listen in live or catch the archived webinar when a link to the webcast is posted here at some point after the completion of the session.

Effective Date of Most of the Changes to the Children’s Television Rules – September 16

Delivered... David Oxenford | Scene | Fri 16 Aug 2019 2:23 pm

Notice was published in the Federal Register today of the FCC’s changes in the children’s television rules – setting the effective date for most of those new rules as September 16. The elimination of the obligation to air three hours of children’s educational and informational programming for each digital multicast channel will expire on that date.  The ability to count children’s educational programming broadcast as early as 6 AM toward the broadcaster’s obligations to run 3 hours per week of such programming on its primary channel will also take effect that day, as will the ability to meet that 3-hour requirement with up to one hour of programming broadcast on a multicast channel.  A number of other changes, particularly in the ability of a broadcaster to compute its compliance based on a quarterly obligation rather than a weekly one and liberalizing the preemption rules, are also to take effect on September 16.    See our summary here of the changes in the rules.

Rules not yet taking effect are those rules that impose new or different paperwork requirements.  So the change in reporting obligations to an annual FCC filing instead of a quarterly one remains pending until approved by the Office of Management and Budget pursuant to the Paperwork Reduction Act.  The rule amending the obligation to inform program guides about certain aspects of children’s programming (including the ages to which the programs are targeted) is also still being reviewed.  The FCC is expected to issue additional guidance about how (or whether) to complete the next quarterly FCC Form 398 children’s television programming report, which is currently due October 10.  The FCC is moving to an annual report, but because of these Paperwork Reduction Act requirements, the new form has not been approved yet.

FCC Issues Detailed Instructions on Seeking Reimbursement for LPTV, TV Translator and FM Changes Required by Post-Incentive Auction Repacking

Delivered... David Oxenford | Scene | Fri 16 Aug 2019 2:20 pm

As we noted in our post yesterday, the OMB recently approved the FCC’s forms to allow for reimbursement of the expenses of LPTV and TV translator stations and FM stations (full power and low power) and FM translators caused by the repacking of the TV spectrum following the incentive auction.  This approval sets the stage for the reimbursement process to begin.  The FCC yesterday released a public notice giving details for the filing of those reimbursement requests – and setting a deadline of October 15 for the initial filings.  Only stations operating as of April 13, 2017 are eligible for such reimbursement – and broadcasters seeking reimbursement will need to file sufficient information to detail the expenses for which they seek reimbursement.  Other eligibility restrictions apply, so review the instructions and filing guidelines carefully to make sure that you qualify, and that you submit the information necessary to justify your reimbursement request.

Also, the FCC issued a second related Public Notice providing instructions for use of the FCC’s CORES database which will be used to verify the payment information for each licensee entitled to reimbursement.  Stations need to provide the FCC with their financial account information in order to be reimbursed.  Again, it’s important that you follow the instructions carefully to ensure that the reimbursement is made on a timely basis.

Moving Closer to TV Translator, LPTV and FM Reimbursement for TV-Band Repacking Costs

Delivered... David Oxenford | Scene | Thu 15 Aug 2019 2:58 pm

Months ago, the FCC approved reimbursing TV translators, LPTV stations, FM stations, and FM translators that incurred costs as a result of the repacking of TV stations into less spectrum following the TV incentive auction (see our post here).  Congress last year allocated the FCC money so that LPTV stations and TV translators forced to change channels and FM facilities forced to relocate temporarily or permanently because of work on the towers on which they were located could be reimbursed for their costs caused by this repacking.  The FCC has even published a list of expenses that will be routinely reimbursed when incurred by these stations due to the repacking.  But the reimbursement process has not yet begun, as the FCC paperwork to allow for the reimbursement process had not been approved by the Office of Management and Budget as being compliant with the Paperwork Reduction Act – until yesterday.

In yesterday’s Federal Register, the OMB’s approval of the FCC Forms was published, meaning that the FCC can now start the reimbursement process.  Look for an FCC announcement shortly announcing when affected stations can start submitting their reimbursement requests.  Get your bookkeepers and accountants busy collecting details of the expenses that can be reimbursed, as the time for filing for that reimbursement should be upon us in the very near future.

$233,000 Proposed Fine for Sponsorship Identification Rule Violations – Warning, if the FCC Fines You Once, Don’t Do the Same Thing Again

Delivered... David Oxenford | Scene | Fri 9 Aug 2019 2:38 pm

The FCC this week issued a Notice of Apparent Liability proposing a $233,000 fine to Cumulus Media for violations of the sponsorship identification rules.  The fine illustrates not only how seriously the FCC takes its sponsorship identification rules (particularly in the context of political and issue advertising) but also the how aggressively the FCC can act for even the slightest violation of a consent decree involving a prior violation of its rules.  If the FCC catches you once in a rule violation, don’t get caught again for the same violation – and if you agree to the terms of a consent decree in connection with that first violation, by all means abide by the letter of that decree or the FCC will not hesitate to exercise its full enforcement power.

This case involves alleged violations by Cumulus Media.  Three years ago, Cumulus entered into a consent decree with the FCC agreeing to pay a $540,000 penalty after admitting that it did not include a full sponsorship identification disclosure on issue ads supporting government approval of an electrical utility project in New Hampshire (see our article here on that consent decree).  As part of the consent decree, the company agreed to a 3-year compliance program to educate its personnel about the FCC’s sponsorship identification rules, to appoint a compliance officer to oversee compliance with the rules and answer questions, and to report to the FCC within 15 days any violations of these FCC rules.  In the Notice released this week, the FCC alleged that Cumulus reported that it had in two instances aired ads without the proper identification – each set of ads running 13 times before the lack of a proper identification was caught and corrected.  In one instance, the violation was reported to the FCC within two weeks, but in the other case, it was not reported to the FCC for approximately 8 months.  Based on this instance of late reporting, and the 26 sponsorship identification violations, the FCC proposed the $233,000 fine.  How did they come up with that number?

The FCC’s base fine for each violation of its sponsorship identification rules is $4000 per violation.  Because of the 2016 violation, the FCC determined that each of the new violations should be fined at twice that level, as the licensee should have learned from its prior mistakes.  The FCC considers each airing of the ad to be a separate violation (see this article about a prior case where this policy was applied).  Thus, the 26 ads without the proper identification times $8000 led to a fine of $208,000.  The FCC then decided, because of the one late reporting of the violations, the fine should be increased by $25,000 for not adhering to the terms of the consent decree.  Adding those two figures, the FCC arrived at the proposed fine of $233,000.

While this week’s release does not detail the specifics of the alleged violations, the first appears to have been a commercial message aired on multiple stations a total of 13 times.  The second was a spot aired in connection with the Georgia governor’s election last year.  Neither spot appears to have run for more than a few days, and in both cases, Cumulus stated that it had not only caught and corrected the violations, but it had also conducted training on the rules after being alerted to the problems.  These violations would seem like the kinds of issues that could arise at any station when a spot with an inadequate sponsorship tag slips on to the air unnoticed.  It would seem laudable that Cumulus apparently caught and corrected the problems quickly, yet the FCC came down hard on the company, with one Commissioner issuing a dissenting statement suggesting that the penalty was not enough.  The message to broadcasters?  The FCC is still watching very closely so don’t mess up – and if you do and are subject to FCC penalties, by all means do not do it again.

FCC Starts Rulemaking to Look at LPFM Issues and the Protection of Channel 6 TVs by Noncommercial Radio Stations and Whether “Franken FMs” Can Continue

Delivered... David Oxenford | Scene | Tue 6 Aug 2019 4:49 pm

Last week, the FCC started a new proceeding through the adoption of a Notice of Proposed Rulemaking to review several restrictions that currently apply to Low Power FM stations.  While doing so, it will also review the current rules, dating from the analog television days, restricting certain FM operations in the non-commercial reserved band of the FM dial where those operations are near Channel 6 TV stations.  Comments will be due on this proposal 30 days after it is published in the Federal Register, with Replies due 15 days later.

The LPFM proposals look at a number of issues.  The Commission asks if LPFM stations should be allowed to operate with directional antennas, which are currently routinely barred given that these antennas may be more difficult to operate and maintain.  When the rules were originally adopted, there was a fear that LPFM licensees, who may not have a technical background or substantial resources for engineering support, could not maintain those antennas so as to protect other FM stations operating on the same and adjacent channels.  Similar concerns currently limit LPFM stations from using on-channel boosters to fill in holes in their service area.  The FCC asks if these prohibitions can be lifted as the LPFM industry has become more mature, allowing LPFMs to use both directional antennas and on-channel boosters without risking increased interference to other stations.

The FCC also proposes to change the definition of a minor change for LPFM stations. Now, LPFM minor changes that can be made outside of an LPFM filing window are limited to site changes of a distance of 5.6 kilometers or less.  The change would allow a move to be treated as a minor change, as long as the 1 mv/m of the proposed site overlaps with the 1 mv/m of the current site.  A few other technical changes in the LPFM rules are also proposed.

The Channel 6 proposed change is the one proposal in this NPRM that is not limited to LPFM stations.  Currently, the FCC rules limit the power and location of any station, LPFM or full-power noncommercial stations, in the reserved FM band (below 92 FM) where those applications are near to Channel 6 TV stations.  The lower part of the FM band is adjacent to Channel 6. In the analog world, that meant that FM stations could interfere with the signals of Channel 6 TV stations.  It also allowed TV stations, particularly LPTV stations, to transmit audio signals that could be heard on FM radios on 87.9 or 87.7 FM.  In a number of markets, LPTV stations are offering audio services – which some have deemed “Franken FMs.”

In the digital world, the FCC suggests that the interference to Channel 6 should be much less or nonexistent, suggesting that LPFM or full-power noncommercial stations should no longer be required to protect Channel 6 operations.   The FCC also asks if, at the end of the digital transition for LPTV stations in July 2021, LPTVs should still be able to continue to generate an analog signal to permit these virtual FM stations (see our prior posts on these stations here and here).

So watch for the comment dates on these matters affecting LPFM stations and full-power alike – likely due sometime this Fall.

All FM Translator Interference Rules to Become Effective on August 13, and August 15 Deadline for Comments on Reconsideration Filings

Delivered... David Oxenford | Scene | Thu 1 Aug 2019 4:26 pm

The FCC’s new rules setting out a procedure to resolve complaints of interference from FM translators to full power stations will become effective on August 13. Initially, as we noted in our list of August regulatory dates for broadcasters, only the new policy allowing translators that cause interference to move to any available channel in their market was to become effective on that date. The remaining rule changes were to be assessed by the Office of Management and Budget for compliance with the Paperwork Reduction Act. It turns out that the OMB review has been completed and, according to a new Federal Register Notice, all of the new rules will become effective on August 13.

While these rules are set to become effective in less than two weeks, five Petitions for Reconsideration of those rules were filed last month, and comment dates have now been set on those petitions. Comments are due on August 15, with replies due by August 26. The reconsideration petitions raise many issues – from complaints that the FCC afforded too much protection to full power stations to complaints that the standards that were adopted make it too difficult for existing stations to raise a challenge. For instance, two petitions challenge the choice of the 45 dBu contour as the cut-off for interference complaints (suggesting that less protection should be given to full power stations, and one arguing that the Commission should have used the 54 dBu contour as the line at which complaints should be cut-off despite the showings of many parties that actual listening to FM stations goes far beyond that contour). On the other side, two petitions (see one here) argue that the FCC’s requirements for complaints to meet a desired-to-undesired signal ratio before they are considered to be legitimate is not an appropriate threshold consideration, and another contends that the Commission appears to have adopted a rule that only one complaint from a building would be counted in assessing interference complaints – effectively counting multiple complaints from different residents in big apartment buildings or dormitories as a single complaint. Another petition argues that allowing translator operators to shift to new channels to resolve interference complaints improperly infringes on future opportunities for new LPFM stations. In fact, LPFM advocates have requested a stay of the new rules, and the NAB filed an opposition to that request. Even though these petitions for reconsideration are pending, unless the FCC grants the stay request, the rules will go into effect on August 13.

Some important issues are raised in these petitions. Broadcasters interested in these issues should consider filing their comments with the FCC by the August 15 deadline, or respond to any comments filed by the reply deadline of August 26.

FCC Extends Comment Dates on Rulemaking to Evaluate the Effectiveness of its EEO Rules

Delivered... David Oxenford | Scene | Wed 31 Jul 2019 3:54 pm

The FCC yesterday issued an Order announcing that it was extending the comment dates for its rulemaking to examine the effectiveness of its EEO rules. We summarized that rulemaking here. The new comment deadline is September 20, with reply comments now due by November 4. As we wrote here, this proceeding has already attracted the attention of a coalition of small broadcasters who have filed comments seeking relief from many of the paperwork obligations that are imposed on broadcasting companies with less than 50 employees. We expect other ideas as to how to make the rules more effective to be advanced in this proceeding – and now parties have more time in which to craft their comments.

August Regulatory Dates for Broadcasters – License Renewals, EEO, Music Consent Decree Comments, EAS Test, LPFM NPRM and More

Delivered... David Oxenford | Scene | Mon 29 Jul 2019 4:43 pm

Once upon a time, August was a quiet month in Washington, when everyone went on vacation. Sure, there are plenty of vacations that will happen this coming month, but it seems that regulatory activity no longer takes a break. For example, August 1 is the due date for the filing with the FCC of license renewals for all radio stations (including translators and LPFM stations) in North and South Carolina, and the filing of associated EEO forms for all full power radio stations in those states. With the renewal filing comes the obligation that these stations start airing, on August 1 and August 16, their post-filing announcements informing the public about the submission of the license renewal applications. Radio stations in Maryland, Virginia, West Virginia and the District of Columbia, who filed their renewals on or before June 2, also need to keep running their post-filing announcements on these same dates. Radio stations in Florida, Puerto Rico and the Virgin Islands, who are in the next license renewal group with their renewal applications to be filed by October 1, need to start broadcasting their pre-filing announcements this month, also to run on the 1st and 16th of the month. See our post here on pre-filing announcements.

Commercial and noncommercial full power and Class A Television Stations and AM and FM radio stations in California, Illinois, North Carolina, South Carolina, and Wisconsin that are part of an employment unit with five or more full-time employees must place their annual EEO public inspection file reports in their online public file. Links to those reports should also be placed on the home pages of these station’s websites, if they have a website. The effectiveness of these EEO public file reports, and the EEO programs of which they are a part, are being reviewed by the FCC in a proceeding started by a Notice of Proposed Rulemaking about which we wrote here. Comments on this notice asking for suggestions about how to make the EEO rules more effective are due August 21, with reply comments due by September 5.

August 1 is also the date for the next FCC open meeting, where the FCC will consider a rulemaking on changes to certain LPFM rules. The draft Notice of Proposed Rulemaking also proposes to phase out protections to Channel 6 TV stations from all FM stations, including LPFMs, that operate on the noncommercial portion of the FM band. The FCC thinks that TV digital operations have lessened the need for the protections to be afforded the Channel 6 TV stations from FM stations operating in the adjacent noncommercial FM band. We will write more about this proceeding assuming the FCC adopts the NPRM later this week as expected.

August 7 brings the next Nationwide Test of the EAS system. This test will concentrate on the “daisy chain” system used by broadcasters to relay alerts from one station to another across the country (see our post here). Thus, broadcasters’ performance will be under close scrutiny. Be sure that your system is working, and that you file the post-test ETRS Form 2 on August 7, reporting on whether or not your station successfully received and relayed the test message.

August 9 is the date for filing comments on the Department of Justice’s inquiry into whether changes should be made in the antitrust consent decrees that govern the operations of ASCAP and BMI. We wrote about that proceeding here. It is important to broadcasters because the consent decrees require these performing rights organizations to treat all broadcasters in the same manner, and to impose rates that are reasonable (and provide for court review if ASCAP or BMI cannot come to an agreement with broadcast groups as to whether their rates are reasonable). This is an important proceeding that could have significant financial ramifications on the broadcast industry.

Parts of the FCC’s new FM translator interference resolution process, including allowing translators to change to any available channel to resolve an interference complaint, will take effect on August 13. Other portions of the new rules (including the requirement that complaints about interference come from inside a full-power station’s 45 dbu contour and setting out the minimum number of complaints needed to sustain an interference complaint, require prior approval from the Office of Management and Budget before they can take effect.

Later in the month, we would also expect that the FCC will release its final decision on annual regulatory fees to be paid by broadcasters and all other FCC-regulated entities. As we wrote last month, the fees that the FCC initially proposed are being challenged by broadcasters as the proposed radio fees would increase significantly this year without evident explanation. This year TV regulatory fees are moving to a population coverage-based fee, instead of one based on the DMA in which the station operates. That has resulted in some stations’ proposed fees – especially some VHF stations in major markets – to significantly increase. We will be looking for this fee decision soon, as the fees need to be paid in September, before the October 1 start of the next government fiscal year.

As always, these are just some highlights of the regulatory issues that broadcasters will be looking at this month. Check with your own counsel or legal adviser to make sure that we have not omitted any dates that could be important to your operations this month.

Another Warning Letter on CBD Promotional Copy – and Some Ideas on Timing of Government Clarity on Rules on Legal Hemp Products

Delivered... David Oxenford | Scene | Fri 26 Jul 2019 5:16 pm

CBD has been a hot topic for media companies – trying to decipher what products are legal and which can be advertised. We have written a number of articles on CBD, hemp and other cannabis advertising issues (see, for instance, our articles here, here, and here). Each of these articles highlights the confusion about the current state of the law on CBD, not just in the media, but across all industries. Some recent government correspondence indicates that clarity on the legality of CBD production may be coming soon, but that any resolution about the health claims that can be made about CBD products and their use in food and drugs may still be years away. These letters also show that the advertising community risks government concern if advertising does not recognize the continuing regulatory concerns about CBD health claims and its use in food and drugs.

The correspondence that most directly addresses marketing issues is this Warning Letter from the FDA to a CBD distributor in which the FDA warned the distributor about health claims made about its products in the promotional materials that it was distributing online. Many seemingly generic claims about the benefits of CBD were singled out as a source of concern, along with many claims that were more specific citations to studies suggesting that CBD was helpful in treating defined ailments. From the tone of the FDA letter, claims about third-party findings on specific health benefits should not be included in promotional materials. Nor should the more generic claims like these cited in the letter as being problematic:

  • “CBD oil is becoming a popular, all-natural source of relief used to address the symptoms of many common conditions, such as chronic pain, anxiety . . . [and] ADHD.”
  • “The Benefits of CBD Oil for ADHD . . . It’s not unusual for people with ADHD to feel anxious and on the edge. CBD is known for its anti-anxiety properties that can promote relaxation and stress relief. It can also help to restore focus and ability to concentrate on specific tasks, as well as reduce impulsivity.”
  • “CBD can successfully reduce anxiety symptoms, both alone and in conjunction with other treatments.”
  • “CBD oil can be used in a variety of ways to help with chronic anxiety.”
  • “Some of the most common reasons to use CBD oil include . . . Chronic pain . . . Mental conditions like anxiety, depression, and PTSD . . ..”
  • “CBD . . . can be used to help manage a wide range of health conditions, such as . . . Anxiety and depression . . . Chronic or arthritic pain . . ..”
  • “Some of the most common reasons to use CBD oil include . . . Chronic pain . . . Mental conditions like anxiety, depression, and PTSD . . ..”

Another issue that arises in advertising CBD and other hemp products is whether any of these products are being legally produced. An interpretative opinion from the USDA sets out under what circumstances the production of CBD products is currently legal in the US. This opinion sets out that the only legal hemp products being produced at this point are the limited products being produced for research purposes under the 2014 Farm Bill. As we wrote here, the government has previously stated that it did not seem to think that commercial production was authorized under the 2014 Bill, yet some growers operating under these pilot plans seem to be relatively big businesses. Otherwise, hemp products including CBD can only be grown pursuant to provisions of the 2018 Farm Act with a USDA license or one issued by a state or tribal nation under a plan approved by the USDA – and the USDA has not yet approved any such plans nor even adopted the framework under which they will evaluate such plans. According to the USDA website, the USDA intends to have regulations in effect by Fall 2019 to accommodate the 2020 planting season. If a state or tribal nation submits a plan before that time, USDA will not review or approve the plan until the regulations are implemented. Thus, there appears to be a very limited universe of hemp products that are currently legally produced and thus can be used for making hemp-derived CBD.

A letter from Senator Wyden of Oregon to the FDA and the USDA suggests an even shorter timeline for those USDA regulations – he indicates that USDA plans to act in August 2019. But, as indicated in the Wyden letter, action by the FDA to set out regulations for the use of CBD in food and drugs, and about the health claims that can be made for such products, appears to be much further away – perhaps 3 or 4 years away according to FDA statements cited in the Wyden letter. Wyden urges the FDA to act more quickly – a sentiment that many others involved in any way in the hemp industry no doubt echo.

So where does this leave media companies looking to accept advertising for CBD and other hemp products? Basically, as we have said before, proceed with caution. The USDA letter makes clear that “hemp has been removed from schedule I of the Controlled Substances Act and is no longer a controlled substance,” but then details that its legal production is currently very limited. So media companies want to look at whether they are advertising a legally-produced product, and need to be wary of the content of any ads to avoid the issues set out in the FDA warning letter (and the warnings we have previously written about). Clearly, it is a muddle, and until further clarification is released, broadcasters and other media companies need to proceed with caution and get counsel from their own attorneys as to what they can and cannot do.

Rules Requiring FCC Reporting of False EAS Alerts and Allowing Live Event Code Tests Become Effective

Delivered... David Oxenford | Scene | Thu 25 Jul 2019 4:09 pm

Last year, as we wrote here, the FCC adopted a number of new rules regarding its emergency communications practices using the EAS system. At that time, soon after all the attention that had been given to the EAS alerts about the false Hawaii missile attack, the FCC adopted rules requiring stations to report to the FCC if they participated in an EAS alert about a fake emergency. Also, the FCC authorized EAS officials to conduct EAS tests using the real event codes for particular emergencies, but only after taking precautions to warn EAS-participating stations and the public that these tests were only tests, and not real emergencies. The effective dates of those new rules were put on hold pending review of the Office of Management and Budget under the Paperwork Reduction Act. According to a Federal Register publication this week, they have now been approved, and thus these rules are now in effect.

The FCC also approved a requirement for state emergency coordinators to file with the FCC in a new electronic database all Statewide EAS plans and any updates to those plans. The OMB also approved the data collection requirements of that rule but the rule will not become effective until one year after the FCC announces that it has created the electronic database to receive these updated plans. We recently noted that the FCC last month published links to statewide plans, and we urged state coordinating committees and participating broadcasters to review these plans to make sure that they have not become out of date with the passage of time. Given the upcoming new filing obligations, it would appear that this review is even more important.

These changes come in the shadow of the upcoming Nationwide EAS Test, scheduled for August 7 (see our article here). Stations should check their EAS systems to make sure that they are working and monitoring the correct stations, and be prepared to file their ETRS Form 2 the day of the test to report whether or not the test was received and retransmitted by their stations. The FCC is serious about EAS issues, so broadcasters should be sure to be in full compliance with all of their EAS obligations.

Looking at Equal Opportunities – When Does the Appearance of a Political Candidate on a Broadcast Program Trigger Equal Time Obligations?

Delivered... David Oxenford | Scene | Wed 24 Jul 2019 4:44 pm

In the last few days, much has been written about the decision of a national radio broadcaster to prohibit the host of a country music radio program from airing an interview of a Democratic Presidential candidate Pete Buttigieg on a nationally syndicated program. This decision has prompted many questions as to when the FCC’s equal opportunities (sometimes referred to as “equal time”) rules apply to appearances of a candidate on a broadcast station.

Two years ago, we wrote about a Declaratory Ruling issued by the FCC’s Media Bureau which addressed many of these issues. In that decision, the FCC determined that a syndicated television program, “Matter of Fact with Fernando Espuelas,” was an “exempt program” which would not give rise to equal opportunities. The FCC rules state that bona fide news interview programs are exempt programs, meaning that appearances on the program by legally qualified candidates for public office would not give rise to equal opportunities for other candidates to get free time on the stations which aired the program. In reviewing that request for declaratory ruling, or in considering whether any program would be exempt, what does the FCC consider?

In the case two years ago, the FCC looked at various factors to determine if the program was an “exempt program” where an appearance by the candidate did not trigger equal opportunities. Those factors include the following: (1) was the program regularly scheduled, (2) was the program content controlled by the station or program supplier, and (3) were the decisions as to the inclusion of candidates based on judgments as to the newsworthiness of the appearance and not for political purposes. Other decisions, in the past, have also required that the program be one where issues of importance to the community are regularly discussed, or candidates and other political figures are regularly featured. These factors have allowed the FCC to take an expansive view, and determine that programs that hardly seem like the typical Sunday morning talking heads news interview program can be considered bona fide news interview programs that are exempt from equal opportunities. For example, FCC staff have found programs as diverse as the Howard Stern radio show and Entertainment Tonight to be news interview programs that regularly – though not necessarily every day or even a majority of the time, but regularly – featured newsmakers. If these factors are met, the program is considered a bona fide news interview program, and candidates can appear without competitors having the right to claim equal opportunities, and without a candidate’s appearance being considered a “use” that needs to be noted in the public files of stations that carry the program.

In addition to news interview programs, newscasts and on-the-spot coverage of a news event are also “exempt programs” where candidate appearances do not constitute “uses” giving rise to equal opportunities or public file obligations. Over the years, as we wrote here and here, the FCC has been more and more liberal in its interpretations of what constitutes a news or news interview program. It is no longer just the evening newscast on a station and the boring Sunday morning talking heads news interview program that qualify. Instead, the FCC has recognized that people get their “news” from all sorts of different kinds of broadcast programs, and the FCC has determined that any program that regularly features newsmakers, where the program content is in the hands of the producers and where the program’s guests are selected for newsworthiness, and not to promote a particular political agenda, can be an exempt news or news interview program. So the FCC has ruled that a host of programs that may not look like hard news, from the Today Show to the Phil Donahue program to the late-night talk shows, could be exempt news interview programs where a candidate’s appearance did not trigger equal time. If the program covers some aspect of the news, and regularly features newsmakers, it is likely to be determined to be an exempt program.

A station need not get a declaratory ruling from the FCC to rely on this exemption. However, many stations and syndicators do seek a ruling. Syndicated programmers in particular like to have the certainty of a ruling to reassure potential affiliated stations that, by picking up the program, they are not likely to subject themselves to equal time requests.

In the recent case, without knowing the full facts of the situation, we cannot evaluate whether or not the decision was justified. If the program in the past had confined itself to music and entertainment programming, without regularly tackling political or other topical issues, the concerns of the station owner may well have been justified.

In the case discussed so much this week, another issue is worth mentioning – the issue of who would get equal time if the program was not exempt. Only legally qualified candidates opposing the candidate who appeared on the air have the right to demand equal time. In these early days of the Presidential election season, there is a real question as to which candidates are in fact legally qualified candidate for the Democratic nomination and are thus entitled to equal opportunities at this point. In most elections, a candidate needs to either have qualified for a place on the ballot or, in the case of a write-in candidate, they need to make a substantial showing that they are a real candidate by demonstrating that they are doing everything that candidates do (e.g., making public appearances, passing out literature, advertising, taking policy positions, etc.).

However, there are special rules for Presidential candidates, in that once they become legally qualified in 10 states, they are considered legally qualified in all states. In addition, as Presidential campaigns often begin well before the deadlines for filing for a place on the ballot (or, for states with caucuses instead of primaries, there may be no ballot for which to qualify), a candidate for President can demonstrate legally qualified status by making a substantial showing that they are actively campaigning in at least 10 states (or nine states and DC). At this point, some of the major candidates may well have been sufficiently active in some of the early primary and caucus states (e.g., Iowa, New Hampshire, South Carolina, etc.), but can they show that they really have been active in 10 states? That is an open question that broadcasters face with equal opportunities issues about candidate appearances on national programs, or appearances on local stations in states where the candidates have not been particularly active. Stations need to discuss these issues with their counsel and perhaps the FCC as they arise.

There are obviously many other issues at play in evaluating any political issue like this, so be prepared to talk to counsel about the particular facts of your case. My colleagues and I will be doing a number of political broadcasting webinars for state broadcasting associations in the coming months – including three in the next week and one for multiple states in November. I am sure that many other FCC attorneys will be doing the same. So listen in to these webinars, and study up to help to identify the issues about which you need to be concerned. And to help identify some of the issues that you need to consider, see our Guide to Political Broadcasting, here.


Dates Set for Comment on Effectiveness of FCC EEO Rules

Delivered... David Oxenford | Scene | Tue 23 Jul 2019 4:32 pm

Yesterday’s Federal Register featured the official notice of the FCC’s Notice of Proposed Rulemaking on its EEO rules. The NPRM, which we summarized here, is intended to look at how the FCC can make its EEO enforcement more effective – asking for comments on what parts of the current rules are good, and which should be changed. The Federal Register publication sets the dates for comments. Initial comments are due August 21, with reply comments due September 5.

Already, a coalition of smaller broadcasters has filed comments suggesting, among other things, that EEO enforcement should no longer be conducted based on local employment units, but instead the FCC’s EEO review should be conducted on a company-wide basis. The premise is that, as companies no longer are required to maintain local main studios or to locally originate programming, the employees dealing with any particular station may no longer be locally based, so that the hiring process for those stations may be conducted anywhere. The proposal also suggests that companies with fewer than 50 employees be exempt from FCC EEO enforcement as opposed to the current exemption for fewer than 5 full-time employees. Picking 50 employees as the cut-off would harmonize the FCC’s approach with the one used by the EEOC for many of its employment guidelines, and it is also the number of employees at which a company will usually have a human resources person to deal with EEO issues. In some ways this proposal would end up being more inclusive than the current rules (as it would include corporate employees not attached to specific stations, whose hiring is now not subject to FCC review), but for many small broadcasters, it would offer relief from the FCC’s EEO paperwork obligations. The coalition’s comments are the first set of comments to be filed in response to the NPRM. Broadcasters interested in offering their own ideas on EEO enforcement should file their suggestions with the FCC by the August 21 deadline for initial comments.

Court Overturns Requirement that Prescription Drug Advertisers Include Price Information in TV Ads

Delivered... David Oxenford | Scene | Tue 16 Jul 2019 10:08 pm

Last week, a federal District Court ruled that the US Department of Health and Human Services did not have the authority to require that drug manufacturers include pricing information on their television commercialsWe wrote about that requirement, here – a requirement that was supposed to go into effect this summer.  However, the District Court judge found that there was no statutory authority on which HHS could rely for the adoption of this rule.  HHS argued that its authority to adopt rules to administer the Social Security program was sufficient to adopt the advertising requirement as that requirement would lead to lower prices for drugs purchased by those using Social Security.  But, the Court found, Congress did not include any specific language giving HHS authority to regulate advertising on prescription drugs, nor did the Court believe that the required disclosure of pricing information was necessary to “administer” the Social Security program, even if it did have the effect of lowering prices as HHS hoped.  Given this decision, the rules will not go into effect.  Barring an appeal by HHS, it would appear that Congress will have to take action before these rules could be adopted.  So, for now, TV broadcasters will not be seeing mandatory disclosures of drug prices on the ads that they run.

Actions Taken at July Meeting – FCC Adopts Changes to Children’s Television Rules and to TV MVPD Carriage Election Notices Procedures

Delivered... David Oxenford | Scene | Mon 15 Jul 2019 8:44 am

The FCC at its open meeting last week took two actions important to TV broadcasters – modifying its children’s television rules and changing the process by which TV stations give notice to MVPDs of their must carry or retransmission consent elections.  On the children’s television rules, the FCC largely adopted the proposals in their draft order, which we summarized here.  The major additions to the final version of the Order (here) were the individual statements of the Commissioners, where the Republicans supported the decision as a common-sense reaction to changing market conditions (including an increase in the number of over-the-air stations since the rules were initially adopted, as well as all sorts of new media competition), while the Democrats worried that moving some long-form educational and informational programming addressed to children off the broadcaster’s primary program streams, and the replacement of some of that programming with short-form programming, would have an adverse impact on children – particularly children in lower-income households with less access to digital alternatives.  The new rules will become effective after their publication in the Federal Register.  Comment dates on the Further Notice of Proposed Rulemaking to consider whether TV broadcasters can be relieved of some children’s television obligations by supporting the development of educational and informational programming on other TV stations will also be determined after Federal Register publication.

Also adopted at the meeting was a Report and Order setting out new rules allowing TV broadcasters to give notice of their next set of must-carry or retransmission consent notifications electronically rather than by certified mail, as is currently required.  The Order sets out a process where, before the next election deadline in October 2020, broadcasters need to include in their online public files a statement as to whether they have elected must-carry or retransmission consent on MVPDs in their market (and, if the station has elected one carriage option for all systems, the notice can be as simple as “Station WXYZ has elected must-carry on all cable systems in the Anytown DMA”).  If the station decides to change that election for any MVPD, they notify the MVPD of the change by email.  MVPDs must register a contact person for the receipt of such notices in their public files and in the FCC’s COALS database, so that broadcasters know who to contact if they are planning to change their election.  The broadcaster emails its notice of a changed election to the cable system (with a copy to a new FCC email address) and puts a copy of the election in its online public file.  The cable system is supposed to electronically acknowledge the receipt of the notice (if it does not, the broadcaster is supposed to call the COALS-registered person at the registered phone number to make sure that the notice has been received – but if there is no response, the FCC and public file notices will suffice.  Of course, not having this information in a TV station’s public file would be a violation of the public file rules.

The rules also will apply to noncommercial stations and satellite carriers. Read the full order to capture other intricacies of the new system – but it should make these notices much less costly for all involved.  The Commission also adopted a Notice of Proposed Rulemaking looking to adopt similar rules to allow cable operators to give required notices to broadcasters about issues such as a channel repositioning or a change in a system’s headend electronically.  Look for comment dates in that proceeding soon.  All in all, an eventful FCC meeting for TV broadcasters.

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