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


Preparing for the 2020 Elections – Our Updated Political Broadcasting Guide

Delivered... David Oxenford | Scene | Mon 17 Jun 2019 4:25 pm

2020 will no doubt be a very active year for political advertising. To help broadcasters sort out the confusing rules they need to follow in connection with such advertising, we have updated our Political Broadcasting Guide for Broadcasters (note that the URL for the updated version has not changed from prior versions, so your bookmarks should continue to work). The revised guide is much the same as the one that we published two years ago, formatted as Questions and Answers to cover many of the issues that come up for broadcasters in a political season. This guide is only that – a guide to the issues and not a definitive answer to any of the very fact-dependent legal issues that arise in election season. But we hope that this guide at least provides a starting point for the analysis of issues, so that station employees have a background to discuss these matters with ad buyers and their own attorneys.

In looking at the Guide that we prepared two years ago, really not much has changed. The online public inspection file has now become a reality for all broadcasters, so that adds a new layer of transparency (and scrutiny) to broadcasters’ political advertising decisions. There also has been some discussion of the disclosures necessary for issue advertising – though because this guidance is still somewhat up in the air (see our posts here and here), our Guide highlights the questions and our understanding of where the FCC appears to be heading on this topic. We have also made some clarifications and updates on other issues based on issues we have seen arise in the last year.

Again, this Guide is just a starting place for analyzing political broadcasting issues, but we hope that many broadcasters find it to be helpful in giving them some of the tools that are needed to analyze the complex questions that come up during this election year. But resolving these issues is very dependent on the facts of any particular situation, so stay in close touch with your attorneys and advisers experienced in these issues to make sure that you get the law right. In the upcoming months, I will be doing a number of seminars on these rules for various broadcast associations – watch for announcements on those in the coming months. Last week, I spoke at the Iowa Broadcasters Association annual convention, where broadcasters are already gearing up for their Presidential caucuses early in 2020. With the Democratic debates starting this week, it looks like we are about to enter this crazy season. We trust that our Guide will assist broadcasters in spotting issues in this very active political year.

Political Broadcasting Issues to Consider Now for the 2020 Election Campaign

Delivered... David Oxenford | Scene | Fri 31 May 2019 4:23 pm

The 2020 presidential elections already loom large, with one of the over 20 Democratic candidates for the Presidential nomination seemingly appearing on whatever TV talk show you tune into on your TV set. With the first debate among these candidates scheduled for late June, it seems like we have a real election already underway – and it is time for broadcasters to start thinking about their political broadcasting obligations under FCC rules and the Communications Act, and beginning to make plans for compliance with those rules.

Stations in Iowa and other early primary states have already been receiving buys from Presidential candidates, PACs, and other third-party groups. That spending is sure to increase in the latter part of the year as these early primaries and caucuses are scheduled early in 2020. What should stations in Iowa and in other states be thinking about now to get ready for the 2020 elections?

We have written about some of the issues that broadcasters should already be considering in our Political Broadcasting Guide (which we plan to update shortly). Obviously, one of the primary issues is lowest unit rates – as those rates become effective 45 days before the primaries (or before any caucus which is open to members of the general public). Thus, the lowest unit charge windows for Presidential campaigns will start for the political contests in Iowa and New Hampshire in December, and roll across the country early next year as the other primaries and caucuses draw near. In addition to our Political Broadcasting Guide, we wrote about other issues you should be considering in determining your lowest unit rates here.

In addition to the question of rates for political ads, stations should be thinking about access for political candidates. Especially in the early primary and caucus states, with so many candidates for the Democratic nomination, spot availability may become tight in the weeks leading up to actual voting. But, as long as a candidate does not sit on their rights, equal opportunities requires that candidates have a right to respond to their opponents in equal amounts of broadcast time, and reasonable access requires that you make available time to all Federal candidates in reasonable amounts. But reasonable access does not require that you provide a candidate with all the time that they request (see our article here). As well-funded candidates come in to stations now to request big ad buys later in the political season, stations should consider whether they really want to sell those candidates all the time that they ask for – knowing that some of the less financially secure candidates may be delaying their buys until the last days before the primary. Equal opportunities will require that you fit in spots from those late-arriving candidates, so make sure you have sufficient advertising inventory in reserve in the weeks leading up to the election to make room for commercials from these candidates whose funding may not cover ads until late in the primary period.

There are issues to consider about free time for candidates. As we’ve written before, the FCC has determined that most interview programs where the content is under station control – even those that have little news value on the normal day – are deemed “news interview programs” exempt from equal time rules if they routinely cover issues of public importance.  Bona fide news programming is also exempt from equal time. Thus, equal time is normally only an issue in making sure that all candidates have equal opportunities to buy spot time, and in those rare circumstances where a candidate appears on a purely entertainment program. In these days of media overload, candidates are looking for these nontraditional means of exposure in broadcast programming. So use care if a candidate appears as a character on a scripted TV show, or walks into the announcing booth at a local football game asking to do the play by play for a few minutes, or (especially when dealing with state and local candidates, see our posts here and here) where the candidate is a host of a broadcast program – as, depending on how these situations are handled, all could give rise to equal opportunity claims.

Another area where broadcasters need to pay attention is in connection with third party ads dealing with Federal issues.  Sometimes the ads are subtle digs at the positions that a potential candidate is taking (“call Congressman X and tell him that he should stop voting for bills that are bankrupting the country”), and sometimes they are more direct attacks on the potential candidate.  Sometimes they don’t directly address a particular politician at all, but are instead directed at an issue being debated in Congress.  In any case, if the ads are dealing with Federal candidates or other issues being considered by the US House of Representatives or Senate, then they are Federal issue ads on which the station must maintain full online public file information, similar to that which is kept for any candidate advertising – the full schedule of advertising that is to be run, the class of time sold, the sponsor of the ad, and even the price that was paid for the spots (see our post here on the public file requirements for Federal issue ads).

We have also written, here, about issues concerning the content of these third-party ads, as stations can potentially have liability for defamatory content in those ads if the station knows or has reason to believe that the ads are in fact false. Being put on notice of the falsity of the ad by a letter from a representative of the candidate being attacked can constitute that reason to believe that the ad is false that, if it contains defamatory content, could theoretically result in liability to a station. Candidates who are attacked may be calling stations asking that ads from PACs and other third-parties be pulled from the airwaves, and stations need to have plans in place to be ready to evaluate and deal with such claims. While third-party ads do not get lowest unit rates, these ads can be more problematic than candidate ads as they potentially force stations to be judges of the truth of the content of those ads. Candidate-sponsored ads, on the other hand, cannot be censored, so stations have no liability for the broadcast content of those ads.

Finally, with the election season fast approaching, even stations not in early primary states should start planning.  Some stations are no doubt already selling long-term contracts that will still be in effect during the primary season.  Stations should be considering how to allocate the purchase price of these long-term contracts to reflect their actual seasonal value – rather than simply booking them as having a flat rate throughout the entire year – including the pre-election lowest unit rate periods. As we wrote in our Political Broadcasting Guide, the FCC allows you, in internal station documents, to allocate for lowest unit rate purposes, the purchase price of a long-term contract in a manner different than shown on invoices given to commercial clients, as long as that allocation more accurately reflects the seasonal value of the spots sold, adds up to the total purchase price of the package, and is not done simply to avoid the lowest unit rate periods.  Consult with your attorney to make sure that you properly apply this process, but it could save you money in the long term.

These are but a few of the political issues that broadcasters should be considering. So start thinking about the political issues that will arise as we enter this political season, and check out our Political Broadcasting Guide and the guides prepared by the NAB and many other organizations representing broadcasters – as you can never have enough perspective on these issues. These rules are complex, and many candidates are getting smarter about the how to use the rules to their advantage, so be prepared for the upcoming onslaught of political advertising.

FEC Seeks Comment on Proposal for Change in TV Political Disclosures

Delivered... David Oxenford | Scene | Tue 12 Feb 2019 3:05 pm

We usually think of the FCC as the agency that sets the details of the broadcast disclosure obligations for political candidate’s TV ads. But the Federal Election Commission has its own rules for political advertising that are binding on the candidates, rather than on the stations. But because these ads run on broadcast stations, stations need to pay attention to them to avoid getting caught up in arguments about whether candidate ads are legal, and because the FEC rules often get adopted by the FCC. For these reasons, broadcasters need to pay attention to an entry in today’s Federal Register, where the FEC gives notice of its receipt of a Petition for Rulemaking proposing changes to the textual disclosures made in TV political ads.

Right now, the written disclosures of the sponsor of political ads need to run at 4% of vertical picture height for not less than 4 seconds – the same requirement reflected in both the FEC and FCC rules. The proposal on which the FEC seeks comment suggests that the screen height requirements in the current rules are outdated in the digital television world. According to the Petition, current industry guidelines for a normal disclaimer size is 22 pixels (approximately 2% of the vertical picture height) using HD resolution. Thus, the Petition suggests that 2% be adopted as the standard for political disclosures when shown on high definition digital television transmissions, with the 4% obligation being retained for standard definition broadcasts. After receiving comments, the FEC will decide whether to commence a formal rulemaking proceeding. Comments on this proposal are due on or before Monday, April 15, 2019.

Important Dates for Broadcasters in 2019 – A Broadcaster’s Calendar

Delivered... David Oxenford | Scene | Wed 6 Feb 2019 5:33 pm

While the shutdown of the Federal government delayed FCC activities in January, with the government back in business (hopefully for the long term), we have put together a Calendar of Important Dates for Broadcasters for 2019, available here. The calendar highlights normal regulatory dates like those for Annual EEO Public Inspection File Reports, Quarterly Issues Programs Lists, Quarterly Children’s Television Reports, and Biennial Ownership Reports, it also includes dates relevant to the repacking of the TV spectrum and, something that we have not seen in the last 5 years, dates relevant to the radio license renewal cycle that begins this year. We also have the December start dates for the lowest unit rate windows for the Iowa Caucuses and New Hampshire primary. While this is not a comprehensive list of all regulatory dates that a broadcaster can expect, and while there can be some changes in these dates as the year goes on, it does provide a start keeping you on top of your regulatory burdens. Obviously, consult your own counsel for dates that affect your own station.

FCC Shuts Down Because of Government Funding Impasse – What Does It Mean for Broadcasters?

Delivered... David Oxenford | Scene | Fri 4 Jan 2019 5:27 pm

Do you have a deal to buy a new station or a planned technical modification that needs FCC approval? Well, it looks like those plans may have to wait as the budget controversy in Washington has shut down the FCC. But what does the shut-down really mean for broadcasters? The FCC clarified some of the questions broadcasters have in a Public Notice released Wednesday.

Most applications will not be processed, though the FCC has made clear that it will have FCC staff members available to deal with issues related to the TV spectrum repacking that was caused by the incentive auction. So for those stations needing FCC approvals for actions relating to the repacking of the TV band, the FCC will be functioning. Unlike in past shutdowns (see, for instance, our article here), the FCC website will remain up and generally will be operating, and the CDBS and LMS databases used for most broadcast applications will continue to function (though without any sort of tech support if an applicant has problems). Certain other databases relevant to some aspects of broadcast operations (like the public complaint filing system, the International Bureau’s database used for filing earth station applications, and the tower registration database) will not be available. Perhaps most surprisingly, as the FCC does not specifically mention it in the Public Notice, the FCC has shuttered its Online Public Inspection File database for broadcasters. With that database not working, public file updates (including the Quarterly Issues Programs lists that are due to be added to the files by January 10, cannot be uploaded unless the government reopens. Note that, in the FCC’s orders adopting the online public inspection file obligations, stations are supposed to be able to provide access to their political files when the FCC system is offline (see our article here). While no access to the rest of the file is required, stations are supposed to be able to provide access to back-ups of the political file. Luckily, with few elections taking place at the moment, this should not generally be a widespread issue, but it could obviously become an issue should the shutdown persist.

For the applications that can be prepared in the databases that will remain available, they will all be considered to have been received the day after the day the FCC reopens. Other FCC filing deadlines that fall within the shutdown period (which will include yesterday as the FCC was not open for regular business all day) will be postponed until the day after the day that the FCC reopens. Exception to the suspension of these deadlines deals with auction deadlines – including those due to the repacking of broadcast stations following the incentive auction and an auction of mutually exclusive FM translators. Those deadlines remain in place as auction related activities are separately funded so the auction process continues. Depending on the length of the shutdown, the FCC may reexamine other deadlines that fall within the period that routine operations of the government are closed.

There are certain other emergency functions of the FCC that remain open even during a shutdown, including the filing of STAs where there are issues of life or property. Routine STAs already in place authorizing temporary operations are extended through the end of the shutdown (except where they involve repacking issues). The FCC has a meeting scheduled for January 30 (assuming the FCC is open by then). Routinely, the FCC would have released its agenda for that meeting next week. In anticipation of the shutdown, the agenda was released yesterday (here), and contains several matters of interest to broadcasters which we will cover in subsequent posts. The tentative draft orders for that meeting that were released yesterday (here) pose an interesting question of how, with most of the FCC staff furloughed, interested parties are supposed to bring issues about the draft orders to the FCC’s attention.

Obviously, the shutdown will be disruptive, and station sales and most facilities modifications will be on hold until the FCC reopens. As these rules about what is available and what is not are complex and open to interpretation, consult your own attorney about how the shutdown impacts your operations. And watch the news to see when we can expect the FCC (and the other agencies affected by the partial government shutdown) to restart their operations.

 

Demands to Pull Attack Ads in the Closing Days of the Election – What is a Station to Do?

Delivered... David Oxenford | Scene | Wed 31 Oct 2018 3:57 pm

As we approach Election Day, the political ads seem to be getting more and more frequent, and often more and more nasty.  We provided this overview of what a station should do when it gets an attack ad two years ago, and the ads have not become kinder in the intervening period, so we will publish it again (with a few revisions). With the rise in the number of attack ads in this last week before the election, stations are facing more and more demands from candidates who are being attacked, asking that the ads be pulled from the airwaves because the content is not truthful or otherwise presents a distorted picture of reality.  What do stations do when confronted with these claims?

We have written about this issue several times before (see, for instance, our articles here and here).  In some cases, the stations can do nothing – if the attack is contained in an ad by a candidate or the candidate’s authorized campaign committee.  If a candidate in his or her own ads attacks another candidate, the station cannot pull the ad based on its content.  Ads by candidates and their authorized campaign committees are covered by the Communication Act’s “no censorship” provision, meaning that the station cannot (except in very limited circumstances) pull the ad based on its content (see more on the “no censorship” provision here).  Because the station cannot pull the ad based on its content, the station has no liability if the candidate’s attack ad defames their opponent.  In fact, we have heard of cases where a non-candidate group runs an attack ad containing claims that the target of the ad claims are untrue, where stations pull the ad, and where the claims soon reappear in the ads of the candidate who the third-party supported. When they objectionable claims are in a candidate’s own ads, the only remedy of the candidate that is being attacked is to sue the candidate who ran the ad.  But what about allegedly false claims made in ads by third parties – like PACs, unions, political parties or other non-candidate groups? 

Stations must take seriously any claim that a political ad that they are running is false, particularly where there is legal action threatened if the ad is not pulled from the airwaves.  The Communications Act’s “no censorship rule” does not apply to third-party ads, only to candidate ads.  Thus stations can pull a third-party ad because of its content.  While stations need not fact- check every ad they receive, if an ad is defamatory – spreading falsehoods about a recognizable individual – it could result in civil liability to the station.  Under Supreme Court precedent, statements made about public figures (such as political candidates) can be found defamatory only if the person or entity that is distributing them either knew that they were false or distributes them with “negligence,” e.g., where they had notice that the ads were false, yet they continued to distribute the false material anyway.  Thus, if a station does not know that a claim in a third-party ad is false, but it is put on notice about the falsity (e.g., by a letter from an attorney representing the party being attacked), the station needs to take steps to investigate the truth of the ad.

If the station ignores a demand letter claiming that an ad is false, and keeps running the allegedly false ad anyway, and the ad is in fact false and defamatory, there is potential liability to the station.  Stations should ask the sponsor of any attack ad for documentation backing up their claims, review the supporting material to see if it in fact backs up the claims made, and consult with their attorneys to determine if it is likely actionable.   There are often no clear answers, so broadcast companies need to talk to their attorneys and make their own assessment of the risk of liability for continuing to run a third-party ad claimed to be untrue. Typical political claims (e.g. “candidate X is a big-spending liberal” or “candidate Y doesn’t care about our kids as he has voted against school funding increases 12 times”) are less likely to be actionable than are claims about the character, integrity and similar personal qualities of a candidate (e.g., a claim that a candidate did something illegal).

The FCC itself is not a fact checker of claims made in political ads.  Many times letters demanding that attack ads be removed from the air suggest that running these ads somehow violates the FCC rules about stations operating in the public interest.  Sometimes the demand letters even claim that the ads violate FCC rules against false and deceptive advertising – even though it is the FTC, not the FCC, which deals with deceptive ads.  But even the FTC is not routinely involved with the political advertising process, given that the involvement of any government agency is assessing the truth or falsity of any political ad is so fraught with First Amendment issues.  Generally, we don’t want a government agency deciding what is true in political ads and what is not.  Thus, these questions are left to private actions for defamation.

While defamation actions against broadcasters for not pulling an attack ad are not common, there have been a few broadcast stations sued. These are stations that kept running an allegedly false political ad which they had been told was false.  You don’t necessarily want to go to the time and expense involved in any such litigation, so assess these claims with your attorney once they come in.  Many of these demand letters seem to be sent more to intimidate stations into pulling ads in the last few days before an election than to advance real legal claims, but you need to carefully review all the demands to make sure that the ones that you receive don’t have merit. Consult your attorney, as these are sometimes not easy calls to make.

For more on various political broadcasting issues, see our Political Broadcasting Guide, here.

Beware of the Political File Obligations in this Hot Political Advertising Year

Delivered... David Oxenford | Scene | Mon 1 Oct 2018 4:47 pm

In this “political” year with Congressional mid-term elections in November, including many hotly contested races for seats in the US House of Representatives and the Senate, as well as many state and local elections, I receive many questions from broadcasters across the country. Perhaps the area in which most questions are received deals with the “political file,” particularly because these files are now available online. The fact that this file can now be viewed by anyone anywhere across the country has raised many questions that were perhaps less top of mind when the file was available only by physically visiting the main studio of a broadcast station. So, with the election just over a month away, meaning that the busiest advertising period will be coming up between now and the election, I thought that it would be worth taking a look at some of the online public file issues.

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 take action 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. Thus, 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.

All information should go into the file as soon as an order is received – certainly within 24 hours. The only exception 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).

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. That can be the name of the candidate that the ad supports or attacks, or the name of a Federal issue that the ad addresses. In some cases the ad can address both a candidate and an issue. In that case, it is probably safest for the political file to list both the candidate and the issues addressed. The FCC’s Media Bureau issued a decision in January 2017 requiring that dual identification (see our article here), but that decision was withdrawn when the current FCC Chairman came into office with a promise that the FCC would reexamine the issue and release a new decision (see our article here). While that new order has apparently been drafted and has been on circulation among the Commissioners for a vote since May 2018, the decision has not yet been released. Watch for a clarification that could come at any time.

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, and
    • A list of the chief executive officers, members of the executive committee or of the board of directors of such entity.

In the decision referenced above on which we are awaiting a final FCC ruling, the Media Bureau had 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. While that responsibility has not yet been clarified, it is probably advisable that stations make such inquiries.

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. 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 and New York have recently enacted state laws that may impose different or additional paperwork obligations on political advertising (see our article here). 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.

 

 

Broadcasting and Cable Political Window Begins September 7 For November Elections – A Refresher on the FCC’s Lowest Unit Charge Rules

Delivered... David Oxenford | Scene | Thu 6 Sep 2018 5:03 pm

With the lowest unit charge window for the November elections going into effect tomorrow (September 7), we thought that it was a good idea to review the basics FCC rules and policies affecting those charges. With this election, where control of Congress may well be hotly contested and may result in competitive elections across the country, your station needs to be ready to comply with all of the FCC’s political advertising rules. Lowest unit charges (or “Lowest Unit Rates”) guarantee that, in the 45 days before a primary and the 60 days before a general election, legally qualified candidates get the lowest rate for a spot that is then running on the station within any class of advertising time and particular daypart. Candidates get the benefit of all volume discounts without having to buy in volume – i.e., the candidate gets the same rate for buying one spot as your most favored advertiser gets for buying hundreds of spots of the same class. But there are many other aspects to the lowest unit rates, and stations need to be sure that they get these rules right.

It is a common misperception that a station has one lowest unit rate, when in fact almost every station will have several – if not dozens of lowest unit rates – one lowest unit rate for each class of time in each daypart. Even at the smallest radio station, there are probably several different classes of advertising spots. For instance, there will be different rates for spots running in morning drive than for those spots that run in the middle of the night. Each time period for which the station charges a differing rate is a class of time that has its own lowest unit rate. On television stations, there are often classes based not only on daypart, but on the individual program. Similarly, if a station sells different rotations, each rotation on the station is its own class, with its own lowest unit rates (e.g. a 6 AM to Noon rotation is a different class than a 6 AM to 6 PM rotation, and both are a different class from a 24 hour rotator – and each can have its own lowest unit rate). Even in the same time period, there can be preemptible and non-preemptible time, each with its own set of charges resulting in different classes of time, each with its own lowest unit rate. Any class of spots that run in a unique time period, with a unique rotation or unique rights attached to it (e.g., different levels of preemptibility, different make-good rights, etc.), will have a different lowest unit rate. Stations need to review each class of time sold on their station, find the lowest rate charged to a commercial advertiser for a spot of the same class that is running at the same time that the candidate wants to buy a spot, and that lowest rate will be what the candidate is charged.

One question that still comes up with surprising regularity is whether these rates apply to state and local candidates, as well as Federal candidates. Indeed they do – so if your station is running advertising for candidates for mayor or city council; or for governor or the state senate; or even for the board of education, municipal court judge, or state attorney general – they and any other candidate in any public election for which your station chooses to accept advertising gets lowest unit rates. See our past articles on this topic here and here.

In modern political elections, where PACs, Super PACs and other non-candidate interest groups are buying much political advertising time, broadcasters need to remember that these spots don’t require lowest unit rates. Even if the picture or recognizable voice of the candidate that the PAC is supporting appears in the ad, spots that are sponsored by an independent organization not authorized by the candidate do not get lowest unit rates (note, however, that spots purchased by independent groups featuring the voice or picture of the candidate may trigger public file and equal opportunities obligations for the station if the station decides to run those spots).  Stations can charge these advertisers anything that the station wants for non-candidate ads – no need to stick to lowest unit rates.

From time to time stations may face the one exception to the above paragraph, where political parties are requesting lowest unit charges. In some cases, parties may in fact be entitled to these rates – but only where the spot features the recognizable voice or picture of the candidate and the party is using specific types of donations to pay for the ad.  These donations are ones that are subject to political campaign donation limitations (known as “hard money”).  To get lowest unit rates, the advertising purchases must be authorized and “coordinated” with a candidate (and, in Federal races (and in several states that have adopted laws on the subject), the spots should make that coordination clear with the “I approved this message tag” or, under some state laws, some variant of the tag that discloses the coordination. Not all party spots are entitled to this treatment – only this special class of coordinated expenditures – and stations are entitled to get written confirmation from the party or the candidate that the expenditures are coordinated under the election laws. If not coordinated, the parties get charged the same as any other third-party organization.

Various advertising sales packages, and how they are factored into lowest unit rate calculations, also seem to lead to many questions by broadcasters. Candidates cannot be forced to buy single-station packages to get low unit rates. Instead, the package must be broken down by the station into a price per spot for each class of spot that is contained in the package. That is done by allocating the package price to the various spots of each class that are contained in the package. Then the allocated rates, on a unit basis, are compared to other spots of the same class that have been sold on the station either on their own or in other packages to determine if the spots from this package have any impact on the station’s lowest unit rates. This allocation is done in an internal station record, which does not need to go into the public file, and does not need to be revealed to the candidate. Other than the station, only the FCC will see this allocation if they decide to conduct some sort of audit. We wrote more about this process of allocating spots in a package here.

And these are just some of the myriad issues that arise in computing lowest unit rates. Stations need to be familiar with these rules, and apply them accurately through the lowest unit rate window. Check with your own legal advisor to discuss the specifics of these issues as they arise as they are often very difficult to apply in the real world.  Some of the other situations that arise with lowest unit rates, and with other political issues that come up in any election season, are covered in our Political Broadcasting Guide, available here.  This article in an update of an article from a series that we did several years ago on Political Broadcasting Basics, which we may update from time to time over the next few weeks.  But until we post the updates, you can find the original articles on our blog by clicking on these links:  equal opportunities, reasonable access, the no-censorship provision that governs candidate ads, and the potential for station liability for untruthful statements made in third party ads.

More September Regulatory Dates – Effective Date of New Application Fees, Filing Deadline for TV Shared Services Agreements, Lowest Unit Rate For September Election and Reminder on Repacking Requirements

Delivered... David Oxenford | Scene | Tue 28 Aug 2018 1:48 pm

Yesterday, we wrote about the regulatory dates coming up for broadcasters in September.  Even though that was an extensive list, we realized later that we left a few off.  So here are a few more issues to consider in September.  Plus, the FCC yesterday reminded repacked TV stations of all of the requirements for TV stations involved in the repacking of the TV band following the Incentive Auction which, as we noted in our post yesterday, formally begins this month.

One date that we overlooked was the effective date for a general increase in FCC application fees – those fees that commercial broadcasters pay every time they file an application for a construction permit, approval of a purchase or sale of a station, a license renewal, an STA or many other requests for FCC action.  As we wrote here, the FCC recently announced that the fees were going up to reflect inflation.  Last week, the FCC issued a Public Notice announcing that those new fees are effective on September 4.  So commercial stations filing applications on September 4 or afterward need to remember to pay the new fees, or risk having their applications returned.

Another obvious date that we omitted from the long list of September regulatory dates is the first day of the Lowest Unit Rate window for the November election.  45 days before a primary or 60 days before a general election, political candidates (whether Federal, state or local – see our post here) can only be charged the lowest unit rate that any commercial advertiser is paying for advertising spots of the same class that are running during the same time period.  See our articles here and here for more information about the lowest unit charge window which, for the November election, starts on September 7.  For more information about political broadcasting rules generally, see our Political Broadcasting Guide.

A somewhat less obvious date is the deadline for filing TV shared services agreements.  In its 2017 order reconsidering the FCC’s decision in its last Quadrennial Review of the ownership rules, the FCC decided to retain the previously announced requirement that TV stations file shared services agreements with the FCC.  We wrote about that obligation here, addressing the broad definition that the FCC gave to a shared services agreement.  The FCC gave stations 180 days to comply for any agreements that were already in effect at the time the new rule became effective (new agreements being required to be filed “in a timely fashion” once entered into).  Time flies, and that 180-day deadline is now upon us, on September 19.

Finally, the FCC on Monday released a Public Notice setting out all the deadlines that must be met by TV stations that are being repacked following the Incentive Auction.  With September 14 starting the testing period for TV stations assigned to move to their new channels in Phase 1 of the repacking, this notice is very timely.  The notice talks about the deadlines in the transition and the various notices and public education requirements that stations early in the repacking schedule should be contemplating right now.  The Public Notice also notes that any Phase 1 station that is unlikely to meet the required November 30 deadline for completion of their transition to their new channel must file an extension by September 4.

So add these to the list of September dates that we gave you yesterday, as well as any other specific deadline that may apply to your own station, and you can see that the academic year will begin with a bang.  Get ready for a busy month ahead!

Google Announces Programmatic Buys of Audio Ads – Looking at Legal Issues with Programmatic Sales

Delivered... David Oxenford | Scene | Tue 5 Jun 2018 4:25 pm

Last week, it was announced that Google through its DoubleClick platform, would be offering programmatic buying opportunities for advertisers looking to place audio ads into online streams. While that system is initially being rolled out among the big digital audio services, if it or other similar platforms are expanded more broadly, it could bring more advertising into internet radio, podcasting and other digital audio program channels. But, being the spoilsports that we tend to be as lawyers, we wanted to pass on some issues to consider in accepting programmatic buys – whether in online streams or in over-the-air broadcasts. The immediacy of the audience’s perception of an audio insertion into a program stream can bring unintended results – some of which may have legal consequences.

We have already written about the issues for some of the programmatic buying platforms that are inserting ads into broadcast radio and television programming. As we wrote here and here, these ads can potentially impact a broadcaster’s legal compliance – particularly in the area of political broadcasting, where these ads could affect a station’s lowest unit rate, as well as reasonable access, equal opportunities and even political file disclosure obligations. While none of these FCC issues apply directly to online ads, as we wrote here, there are potential rules on political advertising that may soon be applied to online ads, either through actions by the Federal government or by the enactment of rules to implement a recently passed New York State law that compels disclosures for online political ads similar to those required by the FCC for broadcast ads. There are other considerations as well.

When we wrote about the impact of programmatic buying on broadcast ads, we mentioned the concern about complying with the FCC’s sponsorship identification rules. While the FCC’s rules apply only to over-the-air broadcasting, the Federal Trade Commission (FTC) has similar disclosure obligations for online ads. See our articles here and here for more details. While one might expect that these sponsorship identification issues would be the responsibility of the advertiser, the insertion of the ads into online streams may make the ad seem more like part of the programming offered by an Internet radio company or digital audio provider. Even were the FTC to look only to the ad provider for liability purposes (which is not a certainty), there may be inquiries first to the platform on which the ad is hosted, which may cost, if nothing else, time and money to respond.

Similar issues may arise with other types of advertising. While the typical direct advertiser coming through an advertising agency is likely to be familiar with the ins and outs of other advertising rules (e.g., disclosure of credit terms on leases; making health claims about certain types of unproven drugs, vitamin products or even vaping products; comparative advertising disclosures; ads containing celebrity endorsement and testimonials, etc.), an ad placed directly though some programmatic platform by a local business may not be as sophisticated in complying with all these advertising limitations.

Even outside the legal issues that may arise, there may be business concerns when advertisers have direct access to automatically place their ads into your online advertising. If, for instance, you are running a Christian music webcasting operation, you can imagine various categories of advertising that you would not want to find inserted into your stream – and certainly there could be an audience reaction. That has been an issue from time to time with various website operators who find an ad service has placed an unwanted banner ad on its site conveying a message antithetical to the message that the site owner is looking to convey. A negative reaction is even more likely should an audio ad conveying an unwanted message pop up in your stream.

Does that mean that programmatic ads should not be taken? Likely not, as they are an important method for attracting more new advertising to your online audio products. But, as with any other new product, make sure proper protections are in place to avoid having material placed into your stream that has not been vetted in some way to insure compliance with the law and with any message that you are trying to convey through your online audio programming.

Dealing with a Local Political Candidate Who Appears in a Spot Advertisement for a Commercial Business

Delivered... David Oxenford | Scene | Thu 31 May 2018 5:28 pm

With election season upon us again, I’ve had one question that has come up repeatedly in the last few weeks about local candidates – usually running for state or municipal offices – who appear in advertisements for local businesses that they own or manage. Often times, these individuals will routinely appear in a business’ ads outside of election season, and the candidate simply wants to continue to appear on their business’ ads during the election as well. We wrote about this question in an article published two years ago, and since the question has been coming up again, it is worth revisiting the subject. What is a station to do when a local advertiser decides to run for office?

While we have many times written about what happens when a broadcast station’s on-air employee runs for office (see, for instance, our articles here, here and here), we have addressed the question less often about the advertiser who is also a candidate. If a candidate’s recognizable voice or, for TV, image appears on a broadcast station in a way that is not negative (e.g. it is not in an ad attacking that candidate), outside of an exempt program (in other words outside of a news or news interview program which, as we wrote here, is a very broad category of programming exempt from the equal time rules) that appearance is a “use” by the political candidate. “Uses” can arise well outside the political sphere, so Arnold Schwarzenegger movies were pulled from TV when he was running for office, as were any re-runs of The Apprentice and The Celebrity Apprentice featuring Donald Trump. An appearance by a candidate in a commercial for his or her local business is a “use” which needs to be included in a station’s political file (providing all the information about the sponsor, schedule and price of the ad that you would for any pure political buy). But that does not necessarily mean that a station needs to pull the ad from the air.

As a commercial for a business is usually a paid spot, where the station is receiving money to air the ad (and not an unpaid one like the appearance in an entertainment program where the station does not get paid to air its comedy program or movie in which a candidate appears), a “use” arising in a paid commercial gives rise to equal opportunities for other opposing candidates to buy time on the station. The station will not usually be required to provide free time to opposing candidates (but watch for candidate appearances in PSAs, as that might give rise to free time for opposing candidates). If the station has plenty of commercial inventory and does not mind selling spots to the opposing candidate for the lowest unit rates that apply during the political windows (45 days before a primary and 60 days before a general election) to spots purchased by a candidate’s authorized campaign committee (the opposing candidate gets lowest unit rate for a spot run in connection with his or her campaign, even if the commercial business bought the spot featuring their employee-candidate at regular commercial rates), a station may decide to continue to air the business spots with the candidate’s appearance. But if inventory is tight, or the station is not selling political ads to candidates in a particular state or local race, the station may want to tell the business that the candidate can’t appear in the business’ spots once the candidate becomes legally qualified, as the running of those spots with the candidates would require the station to provide equal time to the opposing candidates.

Note that the “no censorship” provision of the Communications Act and the lowest unit rate provisions likely do not apply to the business spots even though they contain the voice or image of a candidate. That is because these spots are not uses by the candidate or the candidate’s authorized campaign committee which are covered by the rules providing for lowest unit rates and the “no censorship” provisions of the law. As the commercial spots are not by the candidate or his or her political committee, but instead they are commercials by a business that happen to be “uses,” normal commercial rates can be applied.

Note, also, that business spots that advertise a business in which the candidate’s name appears, but where the candidate him or herself do not appear by voice or picture, do not trigger any equal opportunity issues. It is the recognizable voice or picture of the candidate that triggers the equal opportunity and public file issues. For those of us here in the DC area, we are accustomed to seeing ads for the local Volvo dealer even during election season, even though that dealership is named after a politician currently serving in Congress.

As in all areas of political broadcasting, any analysis of the implications of any on-air appearance of a candidate can be a very nuanced matter, and small changes in the facts can result in big changes in the legal conclusions that apply. So if these situations arise, consult with the station’s legal counsel before making any decision as to how to treat these kinds of ads. This article is just meant to note that there may be options for dealing with the candidate-advertiser if he or she wants to stay on their business’ spots during an election period, depending on the station’s circumstances. For more general information about the rules that apply to political broadcasting, see our Guide to Political Broadcasting, here.

Dealing with a Local Political Candidate Who Appears in a Spot Advertisement for a Commercial Business

Delivered... David Oxenford | Scene | Thu 31 May 2018 5:28 pm

With election season upon us again, I’ve had one question that has come up repeatedly in the last few weeks about local candidates – usually running for state or municipal offices – who appear in advertisements for local businesses that they own or manage. Often times, these individuals will routinely appear in a business’ ads outside of election season, and the candidate simply wants to continue to appear on their business’ ads during the election as well. We wrote about this question in an article published two years ago, and since the question has been coming up again, it is worth revisiting the subject. What is a station to do when a local advertiser decides to run for office?

While we have many times written about what happens when a broadcast station’s on-air employee runs for office (see, for instance, our articles here, here and here), we have addressed the question less often about the advertiser who is also a candidate. If a candidate’s recognizable voice or, for TV, image appears on a broadcast station in a way that is not negative (e.g. it is not in an ad attacking that candidate), outside of an exempt program (in other words outside of a news or news interview program which, as we wrote here, is a very broad category of programming exempt from the equal time rules) that appearance is a “use” by the political candidate. “Uses” can arise well outside the political sphere, so Arnold Schwarzenegger movies were pulled from TV when he was running for office, as were any re-runs of The Apprentice and The Celebrity Apprentice featuring Donald Trump. An appearance by a candidate in a commercial for his or her local business is a “use” which needs to be included in a station’s political file (providing all the information about the sponsor, schedule and price of the ad that you would for any pure political buy). But that does not necessarily mean that a station needs to pull the ad from the air.

As a commercial for a business is usually a paid spot, where the station is receiving money to air the ad (and not an unpaid one like the appearance in an entertainment program where the station does not get paid to air its comedy program or movie in which a candidate appears), a “use” arising in a paid commercial gives rise to equal opportunities for other opposing candidates to buy time on the station. The station will not usually be required to provide free time to opposing candidates (but watch for candidate appearances in PSAs, as that might give rise to free time for opposing candidates). If the station has plenty of commercial inventory and does not mind selling spots to the opposing candidate for the lowest unit rates that apply during the political windows (45 days before a primary and 60 days before a general election) to spots purchased by a candidate’s authorized campaign committee (the opposing candidate gets lowest unit rate for a spot run in connection with his or her campaign, even if the commercial business bought the spot featuring their employee-candidate at regular commercial rates), a station may decide to continue to air the business spots with the candidate’s appearance. But if inventory is tight, or the station is not selling political ads to candidates in a particular state or local race, the station may want to tell the business that the candidate can’t appear in the business’ spots once the candidate becomes legally qualified, as the running of those spots with the candidates would require the station to provide equal time to the opposing candidates.

Note that the “no censorship” provision of the Communications Act and the lowest unit rate provisions likely do not apply to the business spots even though they contain the voice or image of a candidate. That is because these spots are not uses by the candidate or the candidate’s authorized campaign committee which are covered by the rules providing for lowest unit rates and the “no censorship” provisions of the law. As the commercial spots are not by the candidate or his or her political committee, but instead they are commercials by a business that happen to be “uses,” normal commercial rates can be applied.

Note, also, that business spots that advertise a business in which the candidate’s name appears, but where the candidate him or herself do not appear by voice or picture, do not trigger any equal opportunity issues. It is the recognizable voice or picture of the candidate that triggers the equal opportunity and public file issues. For those of us here in the DC area, we are accustomed to seeing ads for the local Volvo dealer even during election season, even though that dealership is named after a politician currently serving in Congress.

As in all areas of political broadcasting, any analysis of the implications of any on-air appearance of a candidate can be a very nuanced matter, and small changes in the facts can result in big changes in the legal conclusions that apply. So if these situations arise, consult with the station’s legal counsel before making any decision as to how to treat these kinds of ads. This article is just meant to note that there may be options for dealing with the candidate-advertiser if he or she wants to stay on their business’ spots during an election period, depending on the station’s circumstances. For more general information about the rules that apply to political broadcasting, see our Guide to Political Broadcasting, here.

June Regulatory Dates for Broadcasters – EEO, Translators, Political Rules and Earth Stations

Delivered... David Oxenford | Scene | Wed 30 May 2018 3:25 pm

For radio and television stations with 5 or more full-time employees located in Arizona, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, Wyoming, and the District of Columbia, June 1 brings the requirement that you upload to your online inspection file your Annual EEO Public Inspection File Report detailing your employment outreach efforts for job openings filled in the last year, as well as the supplemental efforts you have made to educate the community about broadcast employment or the training efforts undertaken to advance your employees skills. For TV stations that are part of Employment Units with five or more full-time employees and located in Arizona, Idaho, Nevada, New Mexico, Utah, and Wyoming, you also need to submit your EEO Form 397 Mid-Term Report. See our article here on the Mid-Term Report, and another here on an FCC proposal that could lead to the elimination of the filing of the form.

June 1 should also serve as a reminder to radio stations in Maryland, Virginia, West Virginia and the District of Columbia that your license renewal will be filed a year from now, on or before June 1, 2019. So, if you have not done so already, you should be reviewing your online public inspection file to make sure that it is complete, and otherwise review your station operations in anticipation of that filing. We wrote about some of the issues of concern for the upcoming license renewal cycle in our article here. TV stations in those same states will start the TV renewal cycle two years from now.This month also brings to the end a number of filing windows. LPTV and TV translator stations displaced by the incentive auction have until June 1 to complete and file displacement applications, specifying a new channel for their post-repacking operations. See our articles here and here. AM stations that filed for a FM translator in the most recent window who ended up mutually exclusive with other applicants have until June 14 to file amendments to their applications to resolve the mutual exclusivity or otherwise reach a settlement, or they will end up in an auction at some point in the future. For more information, see this article. Such an auction will be held for translator applicants from the 2003 translator window that were not able to resolve their mutual exclusivity in a long-ago translator window – that auction to be held starting June 21. See this article.

June will also bring a hearing at the Federal Election Commission on the required sponsorship identification for online political ads. See our article here for more information on this FEC hearing and other activity to regulate online political advertising.

And broadcast stations using C Band earth stations to receive programming or for other uses should consider registering these dishes with the FCC, as the FCC is considering repurposing the band for other uses or allowing other wireless uses in the band used by these dishes. The FCC needs to know what users need protection or other accommodation in that band. While there is no requirement that receive-only dishes be registered, no protection will be afforded to those that do not register by July 18. See the FCC public notice on that issue here.

As always, there are plenty of other legal and regulatory issues that may affect broadcast stations – including political lowest unit rate windows in many states in anticipation of primary elections. So stay alert for those dates, watch alerts from broadcast associations, and consult your attorney to make sure that you stay on top of all of your regulatory obligations.

Moving Broadcast Political Advertising Rules to the Online World – NY State Adopts a New Law While Congress Considers Online Political Advertising Disclosures, and the FEC Considers Enhanced Online Sponsorship Identification

Delivered... David Oxenford | Scene | Mon 14 May 2018 5:15 pm

With high profile primaries in numerous states and similar elections last week, and more coming over the next few months in preparation for the November election, broadcasters are dealing with the legal issues that arise with on-air advertising that either promotes or attacks candidates and which addresses other important matters that will be decided in the election – including ballot issues in a number of states. While we have addressed many of the legal questions that arise with on-air political advertising in other posts on this blog and elsewhere (see, for instance, our Political Broadcasting Guide here and these slides from my recent presentation on the FCC political advertising rules for the Washington State Association of Broadcasters), we thought that it was worth discussing some of the efforts that are underway to bring FCC-like regulation to the world of online political advertising.

Thus far, the FCC has tended to stay out of the online political broadcasting world. As we wrote a decade ago, other than having to give some consideration to the value of online advertising thrown into a package with over-the-air ads, the FCC avoids regulation of ad sales on websites and advertising delivered solely through other digital media platforms. So a broadcaster who sells stand-alone online ads to political candidates or issue advertisers need not worry about questions of lowest unit rates, reasonable access, or the political file.

In some cases, there may be concerns in this regard. For over-the-air broadcasters, the content of a political ad cannot be censored, and therefore the broadcaster cannot be held liable for that that candidate says in its advertising (see our article here). But what happens if that broadcast programming is streamed on the Internet? The “no censorship” provisions of the Communications Act do not apply, by their terms, to the advertising streamed on the Internet. While one would think that courts would allow the immunity to carry over to simulcast ads, there have been no cases testing that issue. But, certainly, broadcasters should be concerned with on-line ads containing potentially libelous claims, just as they are when airing attack ads by non-candidate groups such as PACs, unions, and corporations to whom the “no censorship” rules do not apply, and where the station has theoretical liability if it has notice that an ad it is airing contains defamatory content or other legally actionable material.

While the FCC has not been regulating advertising that is run solely online, there are numerous attempts to impose FCC-like restrictions on such ads. For instance, the Federal Election Commission currently is accepting public comment on whether it should impose the same sponsorship disclosure obligations on online audio and video political advertising that are imposed on those ads when run on a broadcast television or radio platform (see its Notice of Proposed Rulemaking, here). This would include all the “stand-by-your-ad” disclosures (“I’m John Smith and I approved this message”) that the listening public has become accustomed to on broadcast stations for over a decade.

This would, at first blush, seem to be a common-sense approach to labeling online political audio and video advertising. Yet, in asking for comment on its proposed rules, the FEC advanced two alternative approaches to such regulation – one looking to adopt the broadcast-like disclosures and the other providing only more generalized disclosure obligations about the sponsorship of a political message. Why would that alternative approach be suggested when there are concerns that the very general FEC disclosure obligations that already are imposed on paid political ads are seen as being insufficient? Partially, the alternative has been advanced as there is a fear that the broadcast-like disclosures, while perhaps appropriate for broadcast-like content transmitted through digital channels, may not be appropriate for all audio and video delivered through digital platforms. One example given in the rulemaking is virtual reality games, where commercial content is sometimes embedded in the game itself. If a candidate was to pop up in some virtual world to give some sort of political sales pitch, would having that candidate’s avatar follow up the pitch with a statement as to who he or she is and that they have approved the message be appropriate, or even workable? Would an avatar of a candidate meet the requirement that a full–screen image of the candidate be shown while delivering the stand-by-your-ad disclaimers? Comments in this proceeding are due with the FEC by May 25. The FEC also plans a public hearing on the issues that these proposals raise on June 27.

Congress has also indicated interest in FCC-like regulation on online political and issue advertising. Senators Mark Warner, Amy Klobuchar and John McCain introduced legislation called the Honest Ads Act late last year, following some of the revelations about foreign influence on US elections and the political process through Facebook and other social media platforms. Their legislation would require clear and conspicuous sponsorship disclosures on all electioneering communications (setting out standards for such disclosures), and would impose regulations similar to the FCC’s political file obligations for the disclosure of purchases of more than $500 on political advertisements (including federal issue ads) on large digital media platforms. While introduced last year, that bill has not progressed in the Senate or the House.

Some state legislatures have taken an interest in the issue, and New York adopted its own political disclosure legislation mirroring many of the provisions of the Honest Ads Act. The New York Democracy Protection Act (see summary here and text of the bill as passed by the NY State Assembly here – the final text as signed by the governor apparently not available online) imposes sponsorship disclosure obligations on online advertising, including NY state ballot propositions, plus a requirement for an online repository of sponsorship information for online ads, similar to the FCC’s required online political file. It appears that this political file for online political ads in New York will be hosted by the New York State Board of Elections, similar to the hosting of broadcaster’s online public files by the FCC. The Board of Elections is supposed to come up with implementing regulations within 120 days from the recent passage of the Act, including a determination of which online platforms are subject to these rules. So, if you are selling online political ads in New York, or even if you have online users in New York State, look for those regulations before the November election to see how your activities may be implicated.

In light of all of this legislative activity, some of the big online platforms have voluntarily promised more disclosures. Facebook has reportedly even indicated support for regulation, and press reports indicate that Twitter has as well. Google, while not necessarily supporting regulations, has reportedly announced its own efforts to disclose the identity of political advertisers. So, even in the absence of legislation, it appears that there will be more transparency in online political advertising in time for the November election.

There are bound to be more efforts to regulate online political advertising – either before this election or afterward as a result of practices that could arise during the upcoming campaigns. All companies selling online advertising should be watching these developments carefully, as they may well affect their sales to candidates and issue advertisers – particularly under the already-adopted New York State law.

May Regulatory Dates for Broadcasters – FCC Meeting, FM Translator and LPTV Filing Windows, Political Windows and More Consideration of Music Reforms

Delivered... David Oxenford | Scene | Mon 30 Apr 2018 4:13 pm

May is one of those months where there are neither deadlines for EEO Public File Reports nor for any of the quarterly filings of issues/programs lists and children’s television reports. But the lack of these routine filing deadlines does not mean that there are no dates of interest in the coming month to broadcasters and other media companies. As seemingly is the case every month, there are never times when Washington is ignoring legal issues potentially affecting the industry.

May 10 brings an FCC meeting where two items of interest to broadcasters will be considered. One is a proposal to abolish the requirement for posting licenses and other operating authorizations at a broadcaster’s control point and to eliminate the requirement that FM translators post information about the station’s licensee and a contact phone number at their transmitter sites (see our post here for more details). The second is a proposal to modify the processing of complaints about new or modified FM translators causing interference to existing stations. See our summary of that proposal here. If adopted at the May 10 meeting, these proposals will be available for public comment after they are published in the Federal Register.

The process that will lead to the issuance of construction permits to some of those new FM translators is still underway, as the window runs from May 24 through June 14 for filing settlements or engineering resolutions for mutually exclusive applications filed in the second window for AM stations to obtain authorizations for new FM translators (see our article here). Translator applications that cannot resolve their mutual exclusivity during this window will end up in an auction.   Applications that were not mutually exclusive with any other application filed in this second window have until May 9 to file their “long-form” applications detailing the technical facilities that they plan to build out once their construction permit is granted (see our article here).

TV translators and Low Power TV stations also are in the middle of their own window for submitting displacement applications by those stations that either operate on TV channels above Channel 37 (which will no longer be part of the TV band after the repacking following last year’s incentive auction) or on channels subject to new interference from full-power and Class A TV stations that were repacked onto new channels. That window is now open, and TV translators and LPTV stations have until June 1 to find new channels and submit applications for those channels to the FCC. See our articles here, here, and here for more information.

Comments in another FCC rulemaking, the one looking to do away with the requirement for the filing with the FCC of the Form 397 EEO Mid-Term Report are due today, April 30, with replies due on May 15. The FCC suggested that this is no longer necessary, as all the information required by the Commission is already in station’s online public file. See our article here summarizing that proposal.

In May, there will also be activity at other government agencies that broadcasters and other media companies should be watching. On Friday, we summarized the Music Modernization Act passed by the House of Representatives last week. That bill is supposed to get a hearing in the Senate on or about May 16 looking toward the possible passage of that legislation by the Senate.

The Federal Election Commission, in a rulemaking that it is conducting, is looking at requiring sponsorship identification on online audio and video political ads in the same format as those found on radio and TV ads (including the “I’m John Smith and I approved this message”). Comments on proposals made in that rulemaking are due May 26. We’ll have more on that proceeding later this week. Speaking of political broadcasting, stations in many states will soon be in lowest unit rate windows, if they are not already, for primary elections occurring this summer (see our article here on your LUC obligations). Watch for those windows as they come up in your state, and remember all of the political obligations that arise not only during the window, but as soon as you have legally qualified candidates (see our article here). For more information on the FCC’s rules on political broadcasting, you can check out our Political Broadcasting Guide here.

For a month without any of the “standard” FCC obligations, there are still lots of issues for broadcasters to consider. Make sure you pay attention to any of these issues that may affect you, and to any that are unique to your own station.

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