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Indian E-music – The right mix of Indian Vibes… » Political Broadcasting


This Week in Regulation for Broadcasters: July 25, 2020 to July 31, 2020

Delivered... David Oxenford and Adam Sandler | Scene | Sun 2 Aug 2020 4:34 pm

Here are some of the regulatory and legal developments of the last week of significance to broadcasters – and a look ahead to the FCC’s consideration of two media modernization items in the coming week.  Links are also provided for you to find more information on how these actions may affect your operations.

  • This week, many large and small radio operators that submitted license renewal applications without certifying full compliance with the FCC’s political file obligations received an email from the FCC. That email proposes that these stations enter into consent decrees to get their renewals granted.  A party entering into one of these consent decrees needs to appoint a company compliance officer to monitor political advertising compliance, adopt a compliance plan, hold training sessions, and file yearly reports with the FCC on all political sales.  These consent decrees appear to have gone to virtually every station that could not certify complete compliance with the public file rules, without consideration of the nature of their public file issues.  The decrees are similar to the consent decrees recently entered into by six of the largest radio groups (about which we wrote here).  This week’s action is a vivid reminder of how seriously the FCC takes compliance with the political file rules (for a refresher on the political broadcasting rules, see here for our political broadcasting blog articles and here for WBK’s Political Broadcasting Guide).  If you received one of these emails, talk to an attorney experienced in FCC matters before you sign it to see what options may be available to you and to discuss the details of the obligations imposed by the decrees.  (Consent Decree Example)
  • New carriage election notice rules that apply to LPTV and Class A stations became effective July 31. The new rules require certain LPTV stations and non-commercial educational translator stations that are retransmitted by a multichannel video programming distributor (MVPD) to respond as soon as is reasonably possible to communications about carriage election issues that are received via the contact information the station should have provided in the FCC’s LMS database.  Qualified LPTVs (i.e. LPTV stations in rural areas entitled to elect must-carry status) must also follow detailed procedures to notify an MVPD of changes to the station’s carriage election.  For details as to the information that must be provided, see the FCC’s Public Notice released this week.
  • The FCC released the final cost catalog for reimbursement of expenses associated with C-Band earth station transitions that result from portions of the C-Band being repurposed for 5-G wireless uses. Many radio and TV stations receiving satellite-delivered programming are affected.  The FCC also announced an August 31 deadline for electing a lump sum reimbursement payment (and the format for that election).  (Public Notice)
  • The Department of Justice’s Antitrust Division held a two-day music licensing workshop, bringing together interested parties, including representatives from the broadcast industry and from the performing rights organizations, as well as songwriters, music publishers, and economists. These parties discussed the ASCAP and BMI consent decrees, public performance licensing, and general music licensing issues.  (Assistant Attorney General Makan Delrahim’s Opening Remarks)(Video and transcripts of the sessions will be made available on the DOJ’s website for this workshop when they are available).
  • We posted to the Broadcast Law Blog our monthly feature looking at important regulatory dates in the month ahead. Visit the blog to read about the August dates to watch, including license renewals, EEO reporting, the FCC Open Meeting, and Broadcast Internet rulemaking comments – and an alert to watch for the details that should be coming soon on the annual regulatory fees due in September.  (Broadcast Law Blog)
  • FCC Commissioner Michael O’Rielly appeared virtually at The Media Institute’s Communications Forum luncheon series where he discussed his views on media regulation and modernization, Next Generation TV, diversity in media, and free speech issues. (Prepared Remarks)  (Video)

Next week, here is an event that we will be watching:

  • The FCC will hold an Open Meeting on August 6. The Commissioners are expected to consider two media modernization items relevant to broadcasters: (1) Elimination of the rule prohibiting the duplication of programming by two AM stations serving the same area, and (2) repeal of the rules for FM and TV broadcasters that currently require a licensee to make available to competitors antenna space on any “unique” tower site that they own.  We wrote in more detail about these two proposals here and here.  The Open Meeting will be livestreamed at 10:30 a.m. on August 6.

This Week in Regulation for Broadcasters:  July 18, 2020 to July 24, 2020

Delivered... David Oxenford | Scene | Sun 26 Jul 2020 12:34 am

Here are some of the FCC regulatory, legal, and congressional actions of the last week—and music licensing action in the coming week—of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • The Media Bureau settled investigations into six major radio groups (collectively 1,184 stations) over political file violations. Though negotiated individually, the consent decrees with each company are principally the same: admitting lapses in uploading to their political files records of requests for the purchase of political broadcast time, appointing a compliance offer, and agreeing to develop and follow a compliance plan that includes submitting periodic proof-of-compliance reports to the Commission.  Be sure the people in your operation who handle political advertising are aware of and follow all FCC rules (good places to start are the WBK Political Advertising Guide and Broadcast Law Blog political advertising articles, including this article from Friday summarizing the political file rules).  (News Release)  (Consent Decrees)
  • The FCC is upgrading its online payment interface and infrastructure, to comply with the Department of Treasury’s pay.gov requirements. The upgrades will give users more control over payments and financial standing with the Commission and better visibility into their payment history.  Expect to see these changes rolling out throughout the summer and fall.  (Public Notice)
  • Commissioner Michael O’Rielly’s nomination for another five-year term advanced out of the Senate Commerce Committee and moves to the full Senate for consideration. (O’Rielly Statement)
  • Communications Daily newsletter reported that the FCC staff who are currently teleworking will be permitted to do so into 2021 to provide more flexibility given the uncertain nature of the pandemic, and the move to the new FCC headquarters will be delayed at least through September. Early in the pandemic, we wrote about how the move to remote work was not expected to cause much disruption to the routine regulatory activities of the Commission and, now a few months later, that still seems to be the case.  Where disruptions may continue to occur are to activities that require a physical presence at headquarters—like auctions.  We wrote in March about the indefinite delay of an FM auction.

Next week, we will be keeping our eye on the following action at the Department of Justice:

  • The Department of Justice’s Antitrust Division is holding a virtual public workshop on competition in the music industry, music licensing, and public performance rights. Through a series of panels over two days, the workshop is expected to cover the ASCAP-BMI consent decrees, marketplace competition issues, and competition between ASCAP, BMI, SESAC, and GMR.  Registration is free.  (DOJ Workshop Details)

FCC Enters Consent Decrees with Six Big Radio Groups – Looking at What the FCC’s Political File Rules Require

Delivered... David Oxenford | Scene | Fri 24 Jul 2020 5:09 pm

The FCC this week announced consent decrees with six large radio groups over problems with the political files maintained by these groups.  The consent decrees included very specific compliance plans for each company to ensure that it met all FCC political file obligations in the future.  And it suggested that the penalties were mitigated by the current economic conditions caused by the pandemic – but emphasized the importance to the FCC of the political file obligations and suggested that industry associations take steps to educate all broadcasters about their public file obligations when they run political advertising.  Based on these decisions, we thought that we would republish an updated version of an article that we ran two years ago about those political file obligations so that broadcasters can review their own files to ensure that they have in their files the documents that the FCC wants to see.

Our article from two years ago looked at the political file obligations not too long after the FCC required that all of these documents be made available online, as part of the FCC-hosted online public inspection file. The fact that this file can now be viewed by anyone anywhere across the globe has made the required documents much more visible than when they could be reviewed only by physically visiting the main studio of a broadcast station. Not only can these documents be reviewed by the FCC in Washington, DC, but they can be reviewed by candidates, their agencies, and political ad buyers across the country.  In fact, we understand that some political ad buyers have online “bots” that scan these files routinely to keep track of political ad buying across the country.  Plus, with the license renewal cycle ongoing, the FCC reviews the political file as part of their review of a commercial station’s license renewal application (where licensees need to certify as to whether they have kept their public files complete in a timely fashion).

As an initial matter, it is worth mentioning that the political file has two main purposes. First, it is designed to provide information to the public about who is trying to convince them to vote in a certain way or to act on other political issues that may be facing their country or community. Second, the file is to inform one candidate of what uses of broadcast stations his or her opponents are making. The documents placed in the file must be kept in the file for only two years from the date that they were created – perhaps on the assumption that at that point, we will be on to the next election cycle and old documents really won’t matter to the public or to competing candidates in the last election. But what needs to go into the file?

For any request for advertising made by any legally qualified candidate for any public office (Federal, state or local), the following information needs to be maintained in the file:

  • Whether the request to purchase time was accepted or rejected;
  • If accepted, the rate charged for the ads in the advertising schedule;
  • The date and time that the ads are to be aired, with the exact times that they were aired to be added to the file after they run;
  • The class of advertising time purchased (which will be determined by the rights associated with the spots, e.g. whether they are fixed or preemptible, the daypart or rotation in which the spots will run, etc.)
  • The name of the candidate and his or her authorized committee, and the treasurer of the committee.

The FCC rules also require that information about free time provided to candidates outside of exempt programs be listed in the public file.  So if a candidate appears in a PSA, that needs to be noted in the political file.  See our article here for more information about such uses by candidates that can trigger this obligation.

All information should go into the file as soon as an order is received – certainly within one business day of the receipt of the relevant document – and perhaps quicker in the final days of an election.  The only exception to the one-day rule is for the details of the exact times that the spots ran, which can be inserted into the file when your traffic system generates those reports – provided that they must be provided sooner on request.

That same information as provided for a candidate ad needs to be put into the file for any advertising relating to a “political matter of national importance.” That would include any ad by a non-candidate group (e.g., a PAC, labor union, corporation or other interested individual) dealing with any issue likely to be dealt with here in Washington. Such issues would include:

  • Any ad dealing with a legally qualified candidate for Federal office (either attacking or supporting a candidate); or
  • Any national legislative issue of public importance (e.g., an ad saying “write your Congressman and tell him to vote” for or against some issue being dealt with by the Federal government).

So, for these issue ads dealing with federal matters, the public file needs to state whether or not the request to purchase time was accepted or rejected, the rate charged, the schedule on which the ads will run, the class of advertising purchased, and the identity of the sponsor.  As set forth below, for any issue ad (federal, state or local), the information about the identity of the sponsor needs to disclose contact information for that sponsor and a list of the members of its governing board.

In the political file for these federal issue ads, in addition to all of the information for candidate ads, the file also needs to include a description of the issue that the ad addresses. In the last year, the FCC has clarified its requirements and made clear that this identification of the issues addressed by a non-candidate ad needs to include the name of every federal candidate that the ad mentions and the office for which they are running, and a description of any federal issue mentioned in the ad. We have provided a much more detail on these ruling in our articles here, here, here and here.  Suffice it to say, this puts a burden on every station to carefully review any noncandidate ad to see exactly what issues it discusses.  These decisions also take an expansive view of what are federal issues, requiring the disclosure of the mention of any legislative issue pending before Congress, any issue pending before any federal administrative agency and any of the big policy issues that are debated on a national level (e.g. health care, immigration, abortion, racial injustice, etc.).

All issue ads, whether dealing with federal, state or local issues (state and local issues could include state ballot initiatives, local zoning or school bond issues, or attacks on state or local candidates), also require information about the sponsor of the ads. The information includes the following:

  • The name of the person or entity purchasing the time
  • A contact person at the sponsor, with their name, address and phone number, and
  • A list of the chief executive officers, members of the executive committee or of the board of directors of such entity.

In the FCC’s recent clarification of the rules for issue advertising, the Commission required that stations, if they are given only a single name of an officer or director of an entity buying issue ads, ask the ad buyer for the names of additional officers or directors – on the assumption that it is unlikely that any organization has but a single officer or director. Stations must make such inquiries and keep records (though not necessarily records that need to go into the public file) of the inquiries that they make when they have received only one name for an issue-ad buyer.

We note that many stations use forms to gather the information necessary to respond to these questions – often forms generated by a group owner or one of the “PB” forms created by the NAB.  The NAB in fact recently released updated PB-19 forms for candidate and non-candidate/issue advertising. These are good models to use to gather the information for the file, but the station still needs to make sure that the information provided by the political buyer fully responds to the questions on the form. We have heard of many cases where non-candidate groups do not want to say on the form that they are buying ads on a Federal issue, even when they are clearly attacking a candidate for Federal office, perhaps because they do not want all the information about the advertising buy (including the price and schedule) to be revealed in the public file. Stations need to inquire if the information provided is not complete, as the burden is on the station, not the ad buyer, for this information to be complete and accurate, and timely placed in the online public file.

Also, do not put information into the file about the method of payment for the ads. We have seen cases where checks from advertisers, or worse yet, information about their electronic payment methods, have been included in the public file, potentially revealing sensitive information that could compromise bank accounts. Do not place this information into the file.

Finally, be alert to state record-keeping requirements. States including Washington State have enacted state laws that may impose different or additional paperwork obligations on political advertising (see our article here). Numerous other states have other recordkeeping obligations.  While most of those requirements (although not that imposed by Washington State, which is broader than the federal mandate) can be met by the FCC’s public file, some of these state’s rules appear to impose these obligations on any advertising – not just broadcast advertising – so any digital political ad sales that you do may impose these public file obligations on your station.  So be aware of state law obligations, and if your station is in one of those states, be sure to not only observe the FCC’s rules, but also those of the state in which you are located.

Good luck in keeping all these rules straight in the last weeks before the election. For more information about political advertising obligations, see our Guide to Political Broadcasting, here. And, of course, ask your own lawyer as these issues arise, as they raise many tricky issues that may depend on the specific facts of your case to get the right answer.

Facebook Defends Not Censoring Political Ads – Looking at the Differences In Regulation of Political Speech on Different Communications Platforms

Delivered... David Oxenford | Scene | Fri 12 Jun 2020 5:25 pm

The question about what to do with the protections offered by Section 230 of the Communications Decency Act took another turn this week, when Joe Biden suggested that online platforms needed to take responsibility for the content posted on them and correct misinformation in those ads.  That position is seemingly the opposite of the President’s Executive Order about which we wrote here and here, which seemingly suggests that no censorship should be applied against political speech on these platforms – or certainly no censorship against certain kinds of speech that is not applied against speech from all other parties on that platform.  Facebook almost immediately posted this response, defending its position not to censor candidate’s speech and analogizing it to the position that television and radio broadcasters are forced by Congress to take – where by law they are not allowed to refuse to run a political ad from a candidate because of its content and they are shielded from liability because of their inability to censor these candidate ads.  Facebook took the position that, if Congress wants to regulate political speech, it should pass laws to do so, but that Facebook would not itself be a censor.  That position reminded us of an article that we wrote back in January when there were calls to make Facebook stop running political ads comparing the regulatory schemes that apply to political ads on different platforms.  Given its new relevance in light of the sudden prominence of the debate over Section 230, we thought that we would rerun our earlier article.  Here it is – and we note how we seemingly anticipated the current debate in our last paragraph:

[In January], the New York Times ran an article seemingly critical of Facebook for not rejecting ads  from political candidates that contained false statements of fact.  We have already written that this policy of Facebook matches the policy that Congress has imposed on broadcast stations and local cable franchisees who sell time to political candidates – they cannot refuse an ad from a candidate’s authorized campaign committee based on its content – even if it is false or even defamatory (see our posts here and here for more on the FCC’s “no censorship” rule that applies to broadcasting and local cable systems).  As this Times article again raises this issue, we thought that we should again provide a brief recap of the rules that apply to broadcast and local cable political ad sales, and contrast these rules to those that currently apply to online advertising.

As stated above, broadcast stations and local cable systems cannot censor candidate ads – meaning that they cannot reject these ads based on their content.  Commercial broadcast stations cannot even adopt a policy that says that they will not accept ads from federal candidates, as there is a right of “reasonable access” (see our article here, and as applied here to fringe candidates) that compels broadcast stations to sell reasonable amounts of time to federal candidates who request it.  Contrast this to, for instance, Twitter, which decided to ban all candidate advertising on its platform (see our article here).  There is no right of reasonable access to broadcast stations for state and local candidates, though once a station decides to sell advertising time in a particular race, all other rules, including the “no censorship” rule, apply to these ads (see our article here).  Local cable systems are not required to sell ads to any political candidates but, like broadcasters with respect to state and local candidates, once a local cable system sells advertising time to candidates in a particular race, all other FCC political rules apply.  National cable networks (in contrast to the local systems themselves) have never been brought under the FCC’s political advertising rules for access, censorship or any other requirements – although from time to time there have been questions as to whether those rules should apply.  So cable networks, at the present time, are more like online advertising, where the FCC rules do not apply.

Disclosure is another place where the government-imposed rules are different depending on the platform.  Broadcast and local cable systems have extensive disclosure obligations, in online public files, that detail advertising purchases by candidates and other issue advertisers.  We recently wrote (here and here) about the new enhanced disclosure rules for federal issue advertising (including ads supporting or attacking federal political candidates purchased by groups other than the candidate’s own campaign committee).  Cable networks and online platforms do not have federal disclosure obligations.  Some have voluntarily adopted their own disclosure policies.  In addition, some states have imposed obligations on these platforms (see, for instance, our article here), but as we wrote last month, at least one appellate court has determined, in connection with Maryland’s online political advertising disclosure obligations, that such rules are unconstitutional when imposed on platforms rather than on advertisers.

Certainly, it can be argued that there are technical differences in the platforms that justify different regulation and different actions by the platforms themselves.  Online platforms clearly have the potential to target advertising messages to a much more granular audience.  The purpose of this article is not to argue one way or the other – just to point out that these differences exist.  As we are already well into the political season with advertising running for the 2020 election, we are unlikely to see significant changes in these rules for this election – but watch for more discussions on these differences in the future in terms of how various platforms treat political advertising, and whether this differing treatment should continue.

 

Looking at the President’s Executive Order on Online Media – Part 2, What Real Risk Does It Pose for Media Companies?

Delivered... David Oxenford | Scene | Fri 5 Jun 2020 5:24 pm

We summarized the provisions of Section 230 of the Communications Decency Act on Monday, looking at the application of the law that the President has sought to change through the Executive Order released last week.  Today, it’s time to look at what the Executive Order purports to do and what practical effects it might have on media companies, including broadcasters.  As we noted in our first article, the reach of Section 230 is broad enough that any company with an online presence where content is created and posted by someone other than the site owner is protected by Section 230 – so that would include the online properties of almost every media company has.

The Executive Order has four distinct action items directed to different parts of the government.  The first, which has perhaps received the most publicity in the broadcast world, is the President’s direction that the Department of Commerce, acting through its National Telecommunications and Information Administration (NTIA – the Executive Branch office principally responsible for telecommunications policy), file a petition for rulemaking at the FCC.  This petition would ask that the FCC review Section 230 to determine if the protections afforded by the law are really as broad as they have been interpreted by the courts.  The Executive Order suggests that the FCC should review whether the ability granted by the law for an online platform to curate content posted by others – the “Good Samaritan” provisions that we wrote about on Monday – could trigger a loss of protections from civil liability for third-party content if sites exercise the curation rights in a manner that is not deemed to be in “good faith”.  The Executive Order directs this inquiry even though the protections for hosting online content are in a separate subsection of the law from the language granting the ability to curate content, and the protections from liability for third-party content contain no good faith language.  The Order suggests that the FCC should find that there would not be “good faith” if the reasons given for the curation actions were “pretextual,” if there was no notice and right to be heard by the party whose content is curated, and if the curation is contrary to the service’s terms of use.  The Order suggests that the FCC should adopt rules to clarify these issues.

There are plenty of debates over whether the FCC has the power to interpret Section 230.  We won’t go into detail on those debates here, except to note that Section 230 does not suggest that the FCC is in any way to be involved in its interpretation (and the courts that have widely dealt with this section have never suggested that the FCC should get involved).  This would also seem to get the FCC into judgments as to the content choices made by entities protected by the First Amendment, which the FCC itself stated last month that it does not do (see our article here).  It is also worth noting that the FCC has also taken a very hands-off approach to regulation of online content, suggesting that it does not have the authority to regulate that content unless explicitly provided by Congress.

Even excluding these issues, this provision of the Executive Order is unlikely to have any real impact on media companies in the short-term, as it lays out a long process before any action would be taken.  NTIA has to prepare and file the Petition for Rulemaking with the FCC. Then the FCC has to consider that petition – which it will normally put out for public comment even before initiating a formal proceeding.  You can imagine that the FCC will likely receive a few comments when that petition is put out for public comment.  Once the comments are received, the FCC will review them and, if they decide to move forward, it would either issue a Notice of Inquiry or a Notice of Proposed Rulemaking.  If it is the former, the FCC will simply ask for more comments to determine whether it should take further action.  If the FCC takes that route, the Notice of Inquiry would have to be followed by a Notice of Proposed Rulemaking seeking more comments before any rules could be adopted.  If the FCC were to issue a Notice of Proposed Rulemaking, it would have to come up with proposed rules and provide a public comment period on those rules.  That would likely be followed by some intense lobbying at the FCC before any final action could be taken.  All told, even at an expedited pace, we are likely looking at a one- to two-year period before any FCC action may be taken – and even then, the action would likely be subject to court review.  So FCC action is the least likely of the Executive Order’s activities to result in any substantive action in the short term.

The Order also asks the Federal Trade Commission to look at whether actions taken to curate content violate the terms of service of the online providers.  While the FTC can act on individual cases of deceptive practices without a rulemaking process, the FTC itself enforces its findings through court actions, usually through consent decrees to avoid litigation.  In most cases, it does not itself fine violators.  Thus, any action on Section 230 would seemingly end up right back in the courts whose interpretations seem to have triggered the issues that led to the Executive Order.  Moreover, the FTC’s authority to enforce prohibitions on unfair trade practices are focused on business practices that harm consumers – not questions of whether political speech is being edited in an improper way.  On the FTC website, it recites its mission as:

Protecting consumers and competition by preventing anticompetitive, deceptive, and unfair business practices through law enforcement, advocacy, and education without unduly burdening legitimate business activity.

While the Executive Order may see the allegedly unfair or deceptive practices being an issue, whether these practices deal with the protection of consumers or competition is certainly an open question.  Even so, most platforms have language in their terms of use that give them broad rights to determine what content can be posted on their site – and if they don’t now, you can bet that they will.  If they reserve the right to edit anything at any time for any reason, there does not seem to be much in the way of deception to regulate.  Nevertheless, all services with online platforms probably should review their terms of service to make sure that, when exercising any curation of the content on their site, they are acting in accordance with those terms.

The final two aspect of the Executive Order are perhaps where more immediate actions are possible.  The Order asks that the Department of Justice review the application of the antitrust laws to these platforms, and work with State Attorneys General on such review.  There has already been talk of antitrust review of the big online platforms from both sides of the political aisle, and this Order could hasten that review.

The most practical and direct way that the Order could affect online platforms is in its direction to all branches of the federal government to review their spending on advertising and marketing on these platforms and, within 30 days, to report to the Office of Management and Budget how much they are spending.  That information is supposed to be reviewed by the Department of Justice to determine if spending should be curtailed if the platforms are determined to be “problematic vehicles for government speech due to viewpoint discrimination, deception to consumers, or other bad practices.”  How that spending power is exercised without running into First Amendment issues is certainly a question.  But, if there is likely to be any short-term impact from the Executive Order, this seems to be the area where the online platforms may initially see consequences from the President’s actions.

We have already seen at least one lawsuit filed claiming that the Executive Order is an unconstitutional action in violation of, among other things, the First Amendment.  We are bound to see more litigation over any of the actions outlined above that are covered by the Order.  Nevertheless, the Order sends a message to online platforms that their performance is being scrutinized by this administration – but that may be all that we see in the short term other than perhaps some redirection of the advertising spending of government agencies.  Whether in the long term anything more than that warning results from the Executive Order remains to be seen, but any action certainly will need to overcome numerous legal hurdles.

The President’s Executive Order on Online Media – What Does Section 230 of the Communications Decency Act Provide?

Delivered... David Oxenford | Scene | Mon 1 Jun 2020 5:00 pm

When the President issues an Executive Order asking for examination of Section 230 of the Communications Decency Act, which permitted the growth of so many Internet companies, broadcasters and other media companies ask what effect the action may have on their operations.  On an initial reading, the impact of the order is very uncertain, as much of it simply calls on other government agencies to review the actions of online platforms.  But, given its focus on “online platforms” subject to the immunity from liability afforded by Section 230, and given the broad reach of Section 230 protections as interpreted by the Courts to cover any website or web platform that hosts content produced by others, the ultimate implications of any change in policy affecting these protections could be profound.  A change in policy could affect not only the huge online platforms that it appears to target, but even media companies that allow public comments on their stories, contests that call for the posting of content developed by third parties to be judged for purposes of awarding prizes, or the sites of content aggregators who post content developed by others (e.g. podcast hosting platforms).

Today, we will look at what Section 230 is, and the practical implications of the loss of its protections would have for online services.  The implications include the potential for even greater censorship by these platforms of what is being posted online – seemingly the opposite of the intent of the Executive Order triggered by the perceived limitations imposed on tweets of the President and on the social media posts of other conservative commentators.   In a later post, we’ll look at some of the other provisions of the Executive Order, and the actions that it is asks other government agencies (including the FCC and the FTC) to take. 

Section 230 provides broad protections to providers or users of an “interactive computer service” who, according to the Act, shall not be treated as the “publisher or speaker of any information provided by another information content provider.”  An interactive computer service is defined broadly as well:

any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

The Courts have interpreted that language to cover virtually all websites and any other electronic platform that makes available content accessible by the public.  An information content provider is essentially anyone who develops content that is posted on one of these interactive computer services:

any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.

These provisions, read together, allow the development and operation of online sites where users can post content without subjecting the host to liability for what is contained in the user generated content on their site.  That is the import of the section that says that they are not treated as the “publisher or speaker” of the content created by others.

There are exceptions to the Section 230 insulation from liability.  Intellectual property issues are not covered by these protections.  Instead, the content hosts are protected by a “safe harbor” created under Section 512 of the Digital Millennium Copyright Act that operates similarly to Section 230, though it imposes some additional obligations on the platform operator.  See our articles here and here on the DMCA safe harbor, and the recent report on those protections issued by the Copyright Office, which we hope to discuss in a future post.  Criminal conduct is also excluded.  Content related to sex trafficking has also been excluded from its protections.

But Section 230 does protect the website hosts from civil liability for the third-party content under both federal and state laws.  Where this often comes up is in the application of defamation law – where the website owner is not liable for libel or slander of those who post content on its site.  But it comes up in the application of many other state and federal laws, giving sites broad immunity for the content of material posted on the site with minimal limitations imposed by some courts, e.g. the potential loss of protections if the site effectively solicited the illegal content (as in the case of a website developed to facilitate finding a roommate being found potentially liable for violation of housing discrimination laws when it specifically solicited information about the race of those looking for rooms).

Even though sites can’t solicit illegal content, they are given permission to themselves edit or curate the content.  The idea was that sites should not be penalized for being “Good Samaritans” by trying to eliminate content that could be potentially damaging to their viewers.  One concern of Congress was the protection of children, though the statutory language is broader:

No provider or user of an interactive computer service shall be held liable on account of…any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected

Stated simply, the heart of Section 230 was to facilitate the development of websites and online platforms where third parties can post information.  As stated in the Act setting out the policy on which it is premised:

Policy.  It is the policy of the United States—

    1. to promote the continued development of the Internet and other interactive computer services and other interactive media;
    2. to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;

The application of Section 230 allows websites and other Internet platforms to host content created by others without having to review and determine whether everything posted on the site raises the potential for civil liability.  For the big online platforms, one can imagine the massive resources that would be required for making that assessment for all content posted on their platforms.  But even on the site of a small regional newspaper or a local television station, having to review all letters to the editor or shared news posts that may come from third parties can put a burden on the site that might well make the site owner decide that the value of the content was not worth the trouble that it poses to police.

This is particularly evident when we get into political speech.  Broadcast stations and cable systems, as we wrote here, currently have protections akin to those afforded by Section 230 for political advertisements sponsored by candidates and their authorized campaign committees.  Stations are not allowed to censor that content, and therefore have no liability for the contents of what is said in a candidate ad.  By contrast, when they air ads that are not sponsored by candidates, stations do have the right to censor the content.  As such, when they are put on notice that the content of a third-party attack ad is potentially defamatory, the station must review the ad and make a decision whether or not to run the ad, as once on notice of its falsity, they have potential liability for its contents.  See our articles  here and here on the elaborate steps that stations need to go through in making these decisions.  And if they guess wrong, or even arguably wrong, they can be subject to lawsuits as is currently the case for a Wisconsin TV station that aired an ad that the President’s campaign committee alleges is defamatory (see our article here).

The requirement for notice or knowledge of the potential falsity arises from the “malice” standard that applies to defamation of public figures.  But for defamation of individuals who are not in the public eye, or for the application of many other causes of action that could impose civil liability for something said or portrayed in some online third-party post, notice of the violation may not be a necessary precondition to liability for someone who publishes the material.  Thus, everything would need to be reviewed. And because everything that is posted could pose a risk, sites without Section 230 protections are much more likely to be aggressive in taking down anything that is close to the line where potential liability could be raised.

Thus, if the Executive Order did result in fewer sites having Section 230 protections, it could well result in even less speech being posted online than currently available, and more content being “censored” – seemingly the opposite effect that the order allegedly seeks.  Of course, before that happens, there are many other actions necessary before this result would occur – including the request that the FCC commence a rulemaking to review the application of Section 230.  Those issues will be discussed in a future post.

The President’s Executive Order on Online Media – What Does Section 230 of the Communications Decency Act Provide?

Delivered... David Oxenford | Scene | Mon 1 Jun 2020 5:00 pm

When the President issues an Executive Order asking for examination of Section 230 of the Communications Decency Act, which permitted the growth of so many Internet companies, broadcasters and other media companies ask what effect the action may have on their operations.  On an initial reading, the impact of the order is very uncertain, as much of it simply calls on other government agencies to review the actions of online platforms.  But, given its focus on “online platforms” subject to the immunity from liability afforded by Section 230, and given the broad reach of Section 230 protections as interpreted by the Courts to cover any website or web platform that hosts content produced by others, the ultimate implications of any change in policy affecting these protections could be profound.  A change in policy could affect not only the huge online platforms that it appears to target, but even media companies that allow public comments on their stories, contests that call for the posting of content developed by third parties to be judged for purposes of awarding prizes, or the sites of content aggregators who post content developed by others (e.g. podcast hosting platforms).

Today, we will look at what Section 230 is, and the practical implications of the loss of its protections would have for online services.  The implications include the potential for even greater censorship by these platforms of what is being posted online – seemingly the opposite of the intent of the Executive Order triggered by the perceived limitations imposed on tweets of the President and on the social media posts of other conservative commentators.   In a later post, we’ll look at some of the other provisions of the Executive Order, and the actions that it is asks other government agencies (including the FCC and the FTC) to take. 

Section 230 provides broad protections to providers or users of an “interactive computer service” who, according to the Act, shall not be treated as the “publisher or speaker of any information provided by another information content provider.”  An interactive computer service is defined broadly as well:

any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

The Courts have interpreted that language to cover virtually all websites and any other electronic platform that makes available content accessible by the public.  An information content provider is essentially anyone who develops content that is posted on one of these interactive computer services:

any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.

These provisions, read together, allow the development and operation of online sites where users can post content without subjecting the host to liability for what is contained in the user generated content on their site.  That is the import of the section that says that they are not treated as the “publisher or speaker” of the content created by others.

There are exceptions to the Section 230 insulation from liability.  Intellectual property issues are not covered by these protections.  Instead, the content hosts are protected by a “safe harbor” created under Section 512 of the Digital Millennium Copyright Act that operates similarly to Section 230, though it imposes some additional obligations on the platform operator.  See our articles here and here on the DMCA safe harbor, and the recent report on those protections issued by the Copyright Office, which we hope to discuss in a future post.  Criminal conduct is also excluded.  Content related to sex trafficking has also been excluded from its protections.

But Section 230 does protect the website hosts from civil liability for the third-party content under both federal and state laws.  Where this often comes up is in the application of defamation law – where the website owner is not liable for libel or slander of those who post content on its site.  But it comes up in the application of many other state and federal laws, giving sites broad immunity for the content of material posted on the site with minimal limitations imposed by some courts, e.g. the potential loss of protections if the site effectively solicited the illegal content (as in the case of a website developed to facilitate finding a roommate being found potentially liable for violation of housing discrimination laws when it specifically solicited information about the race of those looking for rooms).

Even though sites can’t solicit illegal content, they are given permission to themselves edit or curate the content.  The idea was that sites should not be penalized for being “Good Samaritans” by trying to eliminate content that could be potentially damaging to their viewers.  One concern of Congress was the protection of children, though the statutory language is broader:

No provider or user of an interactive computer service shall be held liable on account of…any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected

Stated simply, the heart of Section 230 was to facilitate the development of websites and online platforms where third parties can post information.  As stated in the Act setting out the policy on which it is premised:

Policy.  It is the policy of the United States—

    1. to promote the continued development of the Internet and other interactive computer services and other interactive media;
    2. to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;

The application of Section 230 allows websites and other Internet platforms to host content created by others without having to review and determine whether everything posted on the site raises the potential for civil liability.  For the big online platforms, one can imagine the massive resources that would be required for making that assessment for all content posted on their platforms.  But even on the site of a small regional newspaper or a local television station, having to review all letters to the editor or shared news posts that may come from third parties can put a burden on the site that might well make the site owner decide that the value of the content was not worth the trouble that it poses to police.

This is particularly evident when we get into political speech.  Broadcast stations and cable systems, as we wrote here, currently have protections akin to those afforded by Section 230 for political advertisements sponsored by candidates and their authorized campaign committees.  Stations are not allowed to censor that content, and therefore have no liability for the contents of what is said in a candidate ad.  By contrast, when they air ads that are not sponsored by candidates, stations do have the right to censor the content.  As such, when they are put on notice that the content of a third-party attack ad is potentially defamatory, the station must review the ad and make a decision whether or not to run the ad, as once on notice of its falsity, they have potential liability for its contents.  See our articles  here and here on the elaborate steps that stations need to go through in making these decisions.  And if they guess wrong, or even arguably wrong, they can be subject to lawsuits as is currently the case for a Wisconsin TV station that aired an ad that the President’s campaign committee alleges is defamatory (see our article here).

The requirement for notice or knowledge of the potential falsity arises from the “malice” standard that applies to defamation of public figures.  But for defamation of individuals who are not in the public eye, or for the application of many other causes of action that could impose civil liability for something said or portrayed in some online third-party post, notice of the violation may not be a necessary precondition to liability for someone who publishes the material.  Thus, everything would need to be reviewed. And because everything that is posted could pose a risk, sites without Section 230 protections are much more likely to be aggressive in taking down anything that is close to the line where potential liability could be raised.

Thus, if the Executive Order did result in fewer sites having Section 230 protections, it could well result in even less speech being posted online than currently available, and more content being “censored” – seemingly the opposite effect that the order allegedly seeks.  Of course, before that happens, there are many other actions necessary before this result would occur – including the request that the FCC commence a rulemaking to review the application of Section 230.  Those issues will be discussed in a future post.

Reminder:  PSAs Featuring Candidates Can Give Rise to Equal Time and Public File Obligations

Delivered... David Oxenford | Scene | Tue 26 May 2020 4:46 pm

In recent weeks, with so many government officials looking to get messages out about the coronavirus pandemic, we have received many questions about issues that arise when political candidates appear on public service-type announcements – either free PSAs provided by the station or paid spots purchased by some governmental entity.  While such announcements can be run by stations, if a legally qualified candidate personally appears in the spot (their recognizable voice in a radio ad or their voice or picture in a TV ad), stations need to note the advertising purchase in their FCC Online Public Inspection File, as these spots constitute a “use” by a candidate, and they can also give rise to equal opportunities by opposing candidates.

If the use is in a spot on which the candidate appears is a paid-for spot, then any equal time to which opposing candidates are entitled would be on a similar paid-for basis.  This is the same situation as if a commercial advertiser who voices or appears in their own ads decides to run for office (see our article here).  But if the spot is a free PSA, then the appearance of a legally qualified candidate, even if the PSA says nothing about their campaign, can trigger the requirement to give free equal time to any opposing candidates who make any equal opportunities request within seven days.

To avoid these issues, if the candidate does not personally appear in a spot, and the spot is not about their campaign, no equal opportunities and likely no public file obligations will arise.  So, for instance, an ad from a Congressman’s office that refers constituents to the Congressman’s website for more information about relief efforts, that is voiced by a staff person to the Congressman, likely will not trigger these obligations.  Similarly, a professionally voiced ad on behalf of the state Attorney General or Secretary of State would likely not trigger public file or equal time issues, even if the office-holder is running for office, as long as the candidate does not appear, and as long as the ad does not raise political or controversial issues.

Appearances by political candidates in exempt programs – news or public affairs or on-the-spot-coverage of a news event – don’t trigger equal opportunities or public file obligations.  A discussion with a Congressman or other local elected official on your news or talk program to discuss current issues, where the program and its content is controlled by the station and where decisions about guests are made on the basis of their newsworthiness and not for partisan purposes, should not trigger equal opportunities or public file obligations.  The same would be true for coverage of press conferences or similar events that have current news value.  See our article here for more on these exempt programs.

Of course, all these legal determinations depend very much on the facts, and thus on any specific legal issue, you should talk to your station’s own attorney who can provide a more detailed answer based on the circumstances in specific cases.   Just be alert to these circumstances where the appearance of a candidate in a PSA can trigger both public file and equal opportunities issues.

 

This Week at the FCC: May 16, 2020 to May 22, 2020

Delivered... David Oxenford | Scene | Sun 24 May 2020 5:00 pm

Here are some of the FCC regulatory and legal actions of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC released the agenda for its June 9 Open Meeting announcing that it will consider an item of interest to TV broadcasters planning to transition to ATSC 3.0, the next generation television transmission standard. The item deals with what the FCC is calling “Broadcast Internet services,” new IP based services compatible with other Internet devices that will allow TV broadcasters to monetize their ATSC 3.0 spectrum in new ways.  If adopted at the June meeting, the item, which we summarized in this article on the Broadcast Law Blog, would do two things:
    • It would allow a broadcaster to enter into spectrum lease agreements with other companies who offer Broadcast Internet services on the spectrum of several television stations in the same market without triggering the Commission’s attribution or multiple ownership rules.
    • It would seek comment on ideas for changing the FCC’s rules to further promote the deployment of Broadcast Internet services as part of ATSC 3.0. (draft of the Declaratory Ruling and Notice of Proposed Rulemaking)
  • The FCC last week announced that comments are due by June 22 in the review of its video description rules. Video description refers to an audio channel provided to accompany TV programming giving a narration of what is happening on the screen to aid blind or visually impaired persons.  Currently, ABC, CBS, Fox, and NBC stations in the top 60 markets must supply video described programming, but under the FCC’s proposed new rules, those requirements would extend to markets 61 through 100 by January 1, 2021, with ten markets being added in the following four years.  For more on the proposed rule changes, see our post at the Broadcast Law Blog.  (Public Notice)
  • After announcing the settlement terms earlier this month, the FCC released the details of its consent decree with Sinclair Broadcast Group. The consent decree dealt with (i) disclosure issues around Sinclair’s failed takeover of Tribune Media Company; (ii) the accuracy and completeness of certain Sinclair applications; (iii) complaints of Sinclair’s noncompliance with the good-faith rules for retransmission consent negotiations; and (iv) on-air sponsor identification lapses.  Though the Commission ultimately found that Sinclair structured the Tribune deal and made disclosures about its plans according to a good faith interpretation of the Commission’s rules, Sinclair nevertheless agreed to a $48 million penalty and four-year compliance plan to resolve all issues about these matters.  (Order)  See Broadcast Law Blog articles on the sponsorship identification issue when it was first raised  in a 2017 Notice of Apparent Liability (here) and a prior Sinclair issue with retransmission consent negotiations (here).
  • FCC staff last week clarified, albeit informally as part of a webcast (as part of the NAB Show Express, available on demand here), that stations in states where the primary election date has been pushed back due to public health concerns may be subject to longer lowest unit charge (LUC) periods. In states where the 45-day window opened and then the primary election date was pushed back, a new window begins 45 days before the new date of the primary election.  This could potentially result in a nearly 90-day LUC window tied to one election.  See our article here from the Broadcast Law Blog where we explained how the postponed primaries would extend LUC windows.
    • As part of that same webcast, FCC staff reminded stations running special COVID-related public service announcements that featuring a candidate standing for election this year can trigger equal opportunities and public file obligations. If the candidate appearance is on a paid spot, the equal opportunities rights of opposing candidates would be to buy an equal number of paid spots.  If the PSAs were run for free, then the candidate’s opponents are entitled, upon request, to the equivalent amount of free airtime.  Look for more on this issue in the Broadcast Law Blog this week.
  • The FCC acted last week in two TV market modification proceedings that are good illustrations of the necessary elements of a petition for a change in the television market to which a county or other geographical subdivision is assigned for determining which stations are local for cable of satellite television carriage purposes. In the first, it rejected a petition submitted by Montezuma County, Colorado to modify the county’s DMA, so the county’s DISH Network customers could receive Denver’s KUSA.  The Commission found that the county did not submit enough evidence to prove the need for market modification.  In the second, the Commission upheld its Media Bureau’s decision to modify the markets of three Georgia counties, so that DISH and DIRECTV customers in those counties could receive four Atlanta TV stations.  The Commission denied the appeal of the Greenville-Spartanburg-Asheville-Anderson DMA TV stations carefully analyzing the factors necessary to support the modification of the market and finding no reason to change the Bureau’s ruling.  (Montezuma Market Modification) (Atlanta Market Modification)
  • The FCC declined to review its decision to cancel the license of KCPM(TV), Fargo, ND. The Media Bureau found that the station failed to transmit a signal for twelve consecutive months, which resulted in an automatic expiration of the license.  This is a good reminder for station operators, and especially important for stations that may have gone silent during the current pandemic, to notify the FCC when a station goes silent and to re-commence operations within a year to avoid automatic cancellation  of the station’s license. (FCC Letter) See this article from the Broadcast Law Blog about the FCC requirements for notice when a station goes silent, the article here about actions that the FCC can take against stations that fail to operate regularly during a license renewal term, and the article here about the strict interpretation that the FCC gives to Section 312(g) of the Communications Act which provides for the automatic cancellation of a license if a station has been silent for a year unless the FCC finds that preserving the license is necessary for reasons of equity and fairness, a finding rarely made.

The Law of Defamation and Political Advertising Argued in Trump Suit Against Wisconsin TV Station

Delivered... David Oxenford | Scene | Mon 18 May 2020 4:37 pm

Political “issue advertising” – advertising run by groups like PACs and political parties rather than a candidate’s authorized campaign committees – is a rough and tumble world in which broadcasters can often find themselves in the middle.  We’ve written extensively (here, here and here) about how issue advertising can impose additional public file obligations on broadcasters under FCC policy that has recently been clarified.  Plus, there is beginning to be a body of state law seeking to regulate these ads (see, for instance, our articles here and here).  But where the middle perhaps becomes the most uncomfortable for broadcasters is when they find themselves in a dispute over whether an issue ad that they are asked to broadcast is true.  As we wrote here and here, there are certain common procedures that broadcasters need to follow if they have reason to believe that an ad is false, as running an ad that is in fact false, if the station has reason to believe that it is false (e.g. when they are put on notice that the ad is false by a party being attacked in the ad) could lead to liability for defamation.  While claims brought against broadcasters for running these third-party ads are infrequent, it does happen, as is evident from the recent lawsuit by the Trump campaign against a Wisconsin TV station owned by Northlands Television arguing that a portion of a Priorities USA ad attacking the President for his handling of the coronavirus pandemic was false.  Recently, the TV station filed its response to the Trump suit, and the Motion to Dismiss that was filed is instructive on the issues to consider in any defamation lawsuit.

The Trump claim attacks a Priorities USA ad containing a montage of audio clips of President Trump’s words, including the phrase “coronavirus, this is their new hoax.”  The Trump Campaign claimed that the ad and the way that the clips were edited together misrepresents President Trump’s “hoax” comment by falsely claiming that he stated that the coronavirus is a hoax, when the hoax to which he was referring was “the Democrats’ exploitation of a pandemic and related characterization of the candidate’s response to the pandemic.”  The complaint cited several “fact checkers” who supported the claim that the reference to the hoax was to the Democratic reaction, not the virus itself.

In response, the licensee filed a Motion to Dismiss arguing that the campaign was not the proper legal entity to bring a defamation claim, as the campaign was not disparaged by the ad, but instead, if anyone was legally defamed, it was the President individually.  As the President himself was not a plaintiff, the licensee argues that the case should be dismissed.  In addition, the station analyzes Wisconsin law on defamation and the federal standard adopted by the Supreme Court.  Under the Supreme Court standard, the station argues, to sustain a claim of defamation against public figures, in addition to any other standards set by state law, the plaintiff must prove “actual malice” — that the publication of a falsehood was made knowingly or while the publisher was in fact entertaining serious doubts about its truth.  The Motion argues that these standards have not been met in this case.

The Motion to Dismiss argues that the claim made in the ad was not objectively false, as there was so much ambiguity in the statements about the “hoax” that reasonable people could, and did, believe that the President was talking about the virus and not the Democratic response.  The Motion also argues that the law of defamation requires that the truth be judged based on the content of the message as a whole, and that the message conveyed (that the President did not take the virus seriously early enough) was not untruthful.

In addition, the Motion argues that the plaintiff cannot show the required malice.  While the Trump campaign claimed that the ad was false, Priorities USA responded to the campaign’s claims and argued that it was not.  To require that a broadcast station sort out these conflicting claims about the truth of political claims (and the nuances of defamation law) would potentially chill political speech – a responsibility that the courts, in adopting the malice standard, did not want to impose on the media.

The station also argues that there are no damages in this case.  First, the campaign cannot show how it is legally damaged as, under Wisconsin law, “a statement’s impact on the electoral prospects of a candidate cannot form the basis of a defamation claim.”  Additionally, the station argues that only the President, who is not party to the suit, would be entitled to damages and, obviously, it additionally argues that there is simply no basis for liability.

Priorities USA has also moved to intervene in the suit, arguing that it should be able to participate in the suit as, if the station is found liable, it may have an obligation to indemnify the station for any losses that the station suffers.  The PAC filed a motion in support of the Motion to Dismiss, echoing many of the same points raised by the station itself.

Right now, the lawsuit is mired in back and forth arguments on procedural issues including whether the case should be heard in Wisconsin state courts or in federal courts.  Eventually, the Trump campaign will have the opportunity to respond to the Motion to Dismiss.  Obviously, the legal fight goes on, and both parties (or their insurance companies) will accrue legal bills to hash out these thorny legal issues.  But these are legal issues that all stations should be familiar with as they become part of any calculation to accept non-candidate advertising in this important election year.

This Week at the FCC: May 2, 2020 to May 8, 2020

Delivered... David Oxenford | Scene | Sun 10 May 2020 4:49 am

Each week, we summarize some of the regulatory and legal actions of the last week significant to broadcasters – both those from the FCC and those taken elsewhere –with links to where you can go to find more information as to how these actions may affect your operations.  Here is this week’s list of significant actions:

  • The FCC’s Media Bureau last week made it easier for broadcast stations to rehire employees laid off due to COVID-19-related circumstances by granting relief from the broad outreach EEO requirement otherwise required when filling job vacancies.  Licensees may re-hire full-time employees who were laid off without first conducting broadcast recruitment outreach if the employees are re-hired within nine months of the date they were laid off.  As the economy hopefully turns around, this partial waiver should help stations ramp up their operations to full strength quicker than they would have been able to absent the waiver.  (Order)(Broadcast Law Blog article)
  • Sinclair Broadcast Group (“SBG”) agreed to pay a $48 million penalty—the largest penalty ever paid to the FCC by a broadcaster—and adopt a compliance plan to settle investigations into (1) SBG’s lack of disclosure during its failed merger with Tribune Media; (2) its obligation to negotiate retransmission consent agreements in good faith; and (3) sponsorship identification failures on content produced and supplied by SBG to SBG and non-SBG stations.  (News Release)
  • The FCC released the final agenda for its May 13 Open Meeting, with two items of interest to broadcasters.  It is expected that both these items will be adopted before the virtual meeting scheduled for next Wednesday. (Agenda)
    • The first would modernize and simplify the public notices broadcasters must provide upon the filing of certain applications.  This order, if adopted as drafted, would update many of the public notice requirements, end requirements for newspaper public notice, and abolish required license renewal pre-filing announcements (draft of the Report and Order).
    • The second action deals with regulatory fees. The draft order, despite opposition from VHF station licensees, declines to provide any blanket regulatory fee reductions to these stations as the FCC moves fully to television regulatory fees based on the population served by the TV station rather than the size of the market in which the station operates.  The same document sets out for comment the proposed annual regulatory fees to be paid in September 2020 by all FCC regulated entities, including radio and TV stations (draft of the Report and Order and Notice of Proposed Rulemaking).
  • The Supreme Court granted Prometheus Radio Project more time, until July 21, to file a response to the petitions by the FCC and NAB asking for review of the Third Circuit decision that rolled back the Commission’s 2017 media ownership reforms, including the abolition of the newspaper/broadcast cross-ownership rule.  If the request for review is granted, the Supreme Court will take up the case, at the earliest, during its 2021 term.  (Time Extension Request)(see this Broadcast Law Blog article for more on the appeal that Prometheus seeks to oppose).
  • The comment period closed this week in the FCC’s FM “zonecasting” proceeding.  The comments were submitted on a petition for rulemaking filed by GeoBroadcast Solutions, asking the FCC to change its rules to permit FM boosters to allow commercials, news reports or other short content to be dropped into their programming that would be different than the programming on the main station.  Under the current rules, FM boosters must retransmit 100% of the programming from their originating station.  (FM broadcast booster proceeding filings) (see this Broadcast Law Blog article for more information about the zonecasting proposal, and look for another article early this week summarizing the positions taken in the comments).
  • A Wisconsin television station filed a motion to dismiss the lawsuit brought by the President’s reelection committee claiming that an attack ad from the Priorities USA PAC which was broadcast on the station was defamatory.  The motion argued that the campaign could not sustain a claim of defamation over an advertisement the station claimed was political speech protected by law including the First Amendment. (Motion to Dismiss – and watch for a summary in the Broadcast Law Blog this week).

 

This Week at the FCC: April 18, 2020 to April 24, 2020

Delivered... David Oxenford and Adam Sandler | Scene | Sun 26 Apr 2020 3:34 pm

Trying to stay on top of regulatory developments for broadcasters is difficult even in normal times.  There are always day-to-day obligations that distract from a focus on legal and regulatory questions – and there are so many developments almost every week that we can’t always write about everything that may have occurred.  So we thought that we would introduce a new feature – each weekend providing a list of some of the regulatory actions of importance to broadcasters that occurred in the prior week, with links to where you can go to find more information as to how these actions may affect your operations.

In addition, to provide information on dealing with the FCC during the pandemic, and on the many actions that the FCC has taken during the last 6 weeks – both those dealing with the current crisis and decisions made in processing its normal workload relating to broadcasting – we conducted a webinar last Tuesday on these issues.  You check out that webinar presented to broadcasters across the country, available by clicking on this link.  And here are some of the regulatory actions announced last week of importance to broadcasters that have been announced since then :

  • The Commission held an Open Meeting on April 23 and before and during the meeting acted on three items of interest to broadcasters.  The first item was a Report and Order on LPFM stations that expanded the permissible use of directional antennas, expanded the definition of minor change applications, and allowed LPFM stations to operate boosters.  The Order deferred to a later proceeding a decision on changing the rules for interference between Channel 6 TV stations and noncommercial FM stations operating on the reserved band (Report and Order – and for highlights of the issues in that Order see our Broadcast Law Blog).  The second item was a Notice of Proposed Rulemaking that seeks comment on the possible expansion of television station Video Description obligations (Notice of Proposed Rulemaking).  Finally, the FCC adopted a Report and Order and Further Notice of Proposed Rulemaking that opened use of the 6 GHz band to unlicensed wireless devices.  This move could impact certain broadcast auxiliaries.  (Note: The Report and Order and Further Notice of Proposed Rulemaking has not yet been released – News Release)
  • The FCC adopted a much-anticipated clarification of its Political File Order.  In the Order, the Commission clarified that its Political File Order is limited to requests for the purchase of broadcast time by issue advertisers whose commercials communicate a message relating to any political matter of national importance, not to requests for the purchase of broadcast time by or on behalf of a legally qualified candidate for public office.  Also clarified is the FCC’s intention to apply a standard of reasonableness and good faith decision-making to decisions made by broadcasters in: (1) determining whether, in context, a particular issue ad triggers any disclosure obligations; (2) identifying and disclosing in their online political files the candidates and political matters of national importance that are referenced in each issue ad; and (3) determining when the use of acronyms or other abbreviations in their online political files would be understandable to the general public reviewing the information about issue ads.  (Order on Reconsideration) (Broadcast Law Blog)
  • The FCC released a Public Notice announcing the procedures for the 2020-23 television license renewal cycle.  The Notice covers familiar territory like reminding licensees of their online public file, local public notice, and EEO report filing obligations.  The Commission notes that Schedule 303-S largely remains the same as it has in the past but includes changes to the Children’s TV Programming and ownership questions.  (Public Notice) (Broadcast Law Blog)
  • The Commission released the agenda for the May 13 Open Meeting, with two items for consideration that will interest broadcasters.  The first is a media modernization item that proposes to modernize and simplify the written and on-air public notices broadcasters must provide on the filing of certain applications.  (Second Report and Order)  The second deals with 2020 regulatory fees.  In the draft FCC action, the Commission would not adopt proposals by VHF licensees to reduce their regulatory fees to account for signal limitations and degradation.  The Commission also seeks comment on its proposal to assess 2020 fees for full-power TV stations based on the population covered by the station’s contour and on the other regulatory fees it would collect later this year.  Stations can find their proposed fee in Appendix G.  (Report and Order and Notice of Proposed Rulemaking)
  • The Media Bureau announced an update to the commercial radio station license renewal form adding a question that asks stations to certify compliance with the Commission’s ownership rules in section 73.3555.  This update discards an interim procedure put in place last year after the Third Circuit Court of Appeals rejected the FCC’s ownership rule changes.  (Public Notice) (Broadcast Law Blog)
  • The chief of the FCC’s Public Safety and Homeland Security Bureau emailed EAS participants a reminder to secure their EAS devices, warning that these devices are vulnerable to hacking if not properly secured.  The Notice refers all EAS Participants to review best practices for securing their EAS systems contained in the 2015 Communications Security, Reliability and Interoperability Council IV, Working Group 3, Emergency Alert System (EAS) Subcommittee, Final Report, and in the 2014 Communications Security, Reliability and Interoperability Council IV, Working Group 3, Emergency Alert System (EAS) Subcommittee, Initial Report.

FCC Issues Guidance on TV License Renewals and Announces New Ownership Question on Radio Renewals

Delivered... David Oxenford | Scene | Fri 24 Apr 2020 3:15 pm

The FCC issued public notices this week on the license renewal process for both radio and television operators.  The Public Notice on television renewals was perhaps more significant, as it addressed several issues and procedures for the television renewal process which begins with the filing of renewals for stations located in Maryland, DC, Virginia and West Virginia, to be submitted to the FCC no later than June 1 of this year.  The announcement reminds licensees that the application must be filed in the LMS database (where the new form should now be available) and must be accompanied by an EEO Form 2100 Schedule 396, reporting on the station’s hiring practices for the two years prior to the filing of the renewal. The notice also emphasizes the importance of the public inspection file – particularly the documents related to political broadcasting – urging TV stations to review their online public files now prior to filing their renewal application.  See our articles here and here on fines issued last year to radio stations for deficiencies in their public files at the beginning of their renewal cycle, and our article here posted just yesterday about the FCC latest ruling about the political file obligations for all broadcast stations.

For radio, the recent Public Notice merely announces that the renewal form has been slightly revised to include a question certifying that the renewal applicant complies with the 2016 FCC multiple ownership rules.  As we wrote in December, the Third Circuit decision overturned the FCC’s 2017 revision to its ownership rules (which, among other things, had abolished the broadcast-newspaper cross-ownership rules).  As a result of the court’s decision, the FCC began to require that broadcasters include such a certification with their renewal applications.  Until now, that certification was to be added in an exhibit, as the form did not specifically request that information.  This public notice eliminates the need for the exhibit, as a question has now been added to the form regarding compliance with the ownership rules.  It is interesting that this question has been added within a week of the FCC’s filing of a request with the Supreme Court seeking to overturn the Third Circuit decision (see our article here).  But, while that petition is under consideration by the Supreme Court, the old ownership rules remain in effect.

For more on the license renewal process, see the webinar that I conducted for the Indiana Broadcasters earlier this year, available here.  While specifically addressing stations in Indiana and discussing primarily radio issues as their renewal deadline was approaching, this webinar highlights issues that all broadcasters face when preparing for their license renewals.  Of course, consult with your own attorney for advice on the renewal and specific issues that may affect your license renewal submission.

FCC Clarifies Its Ruling on Political File Obligations for Federal Issue Ads

Delivered... David Oxenford | Scene | Fri 24 Apr 2020 2:36 am

The FCC this week issued an Order reconsidering some of the issues addressed in its October 2019 orders (which we summarized here) interpreting its political advertising rules.  Those October interpretations required that broadcasters who run ads addressing federal issues must include in the political file, maintained as part of their online public file, information about all of the candidates and issues discussed in such ads, not just the most prominent issue or candidate it discusses.  The October ruling also required that stations inquire of issue advertisers (or their agencies) about the names of the chief executive officers or members of their boards of directors if the station is provided with only one name, as the rules require the disclosure of all of the officers or directors of such organizations and the FCC assumes that most of these groups have more than one officer or director.  The October rulings also warned stations against the use of acronyms in their public file where such abbreviations could be misleading to the general public when they view the political file.

The reconsideration addressed two aspects of the October ruling.  First, it made clear that the ruling applied only to federal issue ads, not to ads bought by candidates or their authorized campaign committees.  That seemed to be clear from other statements made by the FCC and its staff (see our article here) but the reconsideration makes it explicit.

The second aspect of the reconsideration was a statement that the FCC is looking for good-faith efforts of stations to comply.  The October decision had some troubling language that suggested that the FCC was expecting stations to provide uniformity of public file disclosures as to the issues discussed in this advertising, which suggested some sort of strict compliance requirement.  In fact, even lawyers have been disagreeing about how to characterize some of the issues discussed in some of these federal issue ads.  For example, if an ad discusses both the Border wall and immigration, is that a discussion of two aspects of the immigration issue or are they two separate issues that must be listed separately on the disclosure form?  What about issues that are addressed only by implication without being specifically mentioned – or candidates who are being attacked subtly, without use of their name?  Recognizing that there is room for judgement on many of these issues, the reconsideration order indicates that the FCC is looking for good-faith efforts at compliance by licensees.

The FCC also indicates that good faith is the standard for the use of acronyms in public file disclosures.  In some cases, the public will clearly know to whom an abbreviation refers – like the NRA.  In such circumstances, where the licensee in its good faith judgment determines that the abbreviation will be known to most reasonable people, the abbreviation can be used instead of the full name, e.g., National Rifle Association would not need to be spelled out.  But it seems prudent for stations to be cautious and use full legal names wherever possible, even though the FCC decision now allows good faith judgements as to when abbreviations may be appropriate.

The FCC refused to go farther in its ruling.  It is not at this time reconsidering the requirement for identifying all candidates and issues mentioned in any issue ad, nor the requirement to try to find out if there is more than one member of the board or executive officers of a sponsor.  So, for now, stations need to continue to comply with these requirements.  But stations should be at least somewhat reassured that, if they are legitimately trying to comply, the FCC will credit their good faith attempts.

FCC Denies Application of Hoax Rule to Trump Press Conferences on COVID-19 – Looking at the First Amendment and the Commission’s Regulation of Political Speech

Delivered... David Oxenford | Scene | Wed 22 Apr 2020 5:29 pm

Recently, FCC staff dismissed a request by the organization Free Press asking the FCC to investigate the broadcast of the President’s press conferences on the coronavirus and programs where commentators supported the President’s pronouncements.  In addition to an investigation, the request asked that the FCC require that broadcasters “prominently disclose when information they air is false or scientifically suspect” in relation to these press conferences and other broadcasts.   Free Press suggested that the FCC had the authority to take this action under its broad mandate to regulate in the public interest.  It also cited the FCC’s hoax rule as providing support for such an action.  As we have written before, the hoax rule is designed to prevent broadcasts that pose the risk of imminent harm to the public by potentially tying up first responders and emergency response teams for purported disasters and crimes that are not real.  FCC staff dismissed the Free Press complaint, finding that the FCC is forbidden by Section 326 of the Communications Act from censoring the speech of broadcasters or otherwise abridging their freedom of speech.  These First Amendment principles largely keep the FCC out of content regulation (with the limited exceptions of regulation in areas like indecency, obscenity and sponsorship identification where the message is not being censored, just certain means of expression).

In the Free Press decision, the FCC concluded that, in covering a breaking news story like the pandemic, it would be impossible for a broadcaster to fact check every statement made in a press conference and correct any misstatements in anything approaching real time, as there is so much room for interpretation of any statement made on these ongoing matters.  It would also be impossible for the FCC to police any such mandate without trampling on First Amendment principles, as it would require the FCC to become the arbiter of the truth for many claims made on television.  The FCC declined to take on that role, and noted that the hoax rule is narrowly drawn to avoid these First Amendment issues.  That rule only punishes clearly false broadcasts that could foreseeably tie up first responders or cause substantial public harm.  It does not get the FCC involved in evaluations of the truth of political statements and policy pronouncements.  This is a position that has consistently been taken by the FCC, and one that we often see misstated in connection with demands for the take-down of issue advertising and non-candidate political attack ads.

In fact, two Democratic members of Congress recently wrote to Chairman Pai asking that he make explicit the FCC’s policy of not interfering in political speech.  They wrote in connection with take-down notices recently sent to broadcast stations from a PAC affiliated with the President, with the PAC arguing that broadcasters have potential FCC liability for allegedly false statements made in an issue ad attacking the President on his handling of the coronavirus.  The members of Congress, in their letter to Chairman Pai, asked that he release a statement that the FCC would not get involved in assessing the truth or falsity of political speech.  In a response issued at the end of last week, here, the Chairman seemingly agreed that the FCC will stay out of any assessments of political speech.  The Chairman further challenged the Congressmen, to be consistent, to issue a statement condemning Free Press’ attempts to get the FCC into content regulation.

While the exchange in these communications may seem political, it actually reflects a consistent theme of the FCC over the years to avoid the appearance of censoring broadcast programming decisions.  We have written many times about how the FCC sees the First Amendment and Section 326 as generally restricting its ability to get into any sort of content regulation.  This consistent theme has run through decisions in a variety of areas.  See, for instance our article here on the FCC’s reluctance to get involved in assessing the truth of attacks made in political ads; our articles here and here on the FCC’s policy that it does not regulate the format of broadcast stations; the FCC’s decision to end enforcement of the Fairness Doctrine (see our article here); its denial of previous requests that it penalize a licensee for allegedly airing fake news reports (see our article here); and its decisions to not substitute its judgement for that of the licensee in cases where the FCC was asked to deny renewal applications based on a petitioner’s assessment that the programming selected by the licensee did not best serve the public interest (see our article here).

The First Amendment limitations on content regulation is different than that reflected in broadcast policies in many other countries, where there are often strict limits on format changes, tight limits on political debate, and enforced fairness on the airwaves.  See for instance my article here where I wrote about international broadcast regulatory schemes after spending time meeting with broadcasters and regulators in an eastern European country in the process of revising its media laws.  The US system has created a diverse, competitive media landscape with minimal regulatory intervention by the government.  These recent communications by the FCC, indicating that it intends to keep limited its intervention in questions of a licensee’s choice of broadcast content, provide welcome consistency in these confusing times.

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