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


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.

What Issues Should Broadcasters be Considering When Taking Advantage of New Rules Abolishing Main Studio and Staffing Requirements?

Delivered... David Oxenford | Scene | Wed 24 Jan 2018 6:25 pm

The FCC this week published a Small Business Compliance Guide for companies looking to take advantage of the FCC’s elimination of the main studio rules and the studio staffing requirements associated with those rules (see our articles here and here summarizing the rule changes). The Compliance Guide points out that stations looking to eliminate their main studios still must maintain a local toll-free telephone number where residents of the community served by the station can call to ask questions or provide information to the licensee. The Guide also references the requirement that access to the public file must be maintained. While, by March 1, all broadcast stations (unless they have obtained a waiver) will have their public files online (see our article here), it is possible that some stations may have a remnant of their file still in paper even after the conversion date. “Old political documents” (documents dealing with advertising sales to candidates, other candidate “uses,” and issue advertising) that were created before the date that a station activates its online file for public viewing need not be uploaded but can be kept in a paper file for the relevant holding period (generally two years). If the station decides not to upload those old political documents, or closes its main studio before they have gone live with their online public file, they will need to maintain a paper file in their community of license. The Guide also mentions how Class A TV stations, which are required to show that they originate programming from their local service area, will be treated since they will no longer have a legally mandated main studio. But are there questions that the Guide does not address?

We think that there are, and that broadcasters who are considering doing away with their main studio need to consider numerous other matters. First, and most importantly, the obligation for a station to serve its local community with public interest programming remains on the books. So stations need to be sure that they are staying in touch with the local issues facing their communities, and they need to address those issues in their local programming. Addressing these issues needs to be documented in Quarterly Issues Programs lists which are the only legally-mandated documents that demonstrate how a station has served its community. There are other issues to consider as well.

Stations need to notify the FCC if they are being controlled from a location other than their transmitter or main studio locations. So, if there is no main studio, and no one is physically at the transmitter site, the FCC needs to be notified of the remote control location for the station.

EAS still needs to be monitored for the local area served by the station so the station can originate and rebroadcast required EAS tests, and respond in the event of a real emergency. The station still is required to have a chief operator designated in writing, and that operator must routinely review station logs and certify certain operational requirements for the station, including the monitoring of tower lights. A station log needs to be maintained and produced when requested by the FCC – containing information about EAS tests, tower light monitoring, and any deviations in operation of the station from the authorized parameters specified by the station license.

Obviously, stations also need to monitor and respond, if appropriate, to complaints about their operations, particularly technical complaints about the station not operating in compliance with its licensed facilities. And they need to be ready to respond to requests for political advertising time from local candidates, especially Federal candidates, because all commercial stations have an obligation to give Federal candidates reasonable access to all classes and dayparts of time on a station – even if that station has no local studio or local employees.

There are certainly may be other issues that are not on this list. But this list makes clear that a licensee can’t just close its main studio and get rid of all of its local employees and ignore its community. There are still has many FCC obligations that require licensees keep in touch with what is going on at their stations and in their local service areas. So discuss these issues with counsel and engineering consultants to make sure that you won’t miss anything when taking advantage of these rule changes.

Washington Legal Issues for TV Broadcasters – Where Things Stand in the New Year

Delivered... David Oxenford | Scene | Mon 15 Jan 2018 5:44 pm

It’s a new year, and a good time to reflect on where all the Washington issues for TV broadcasters stand at the moment, especially given the rapid pace of change since the new administration took over just about a year ago. While we try on this Blog to write about many of the DC issues for broadcasters, we can’t always address everything that is happening. Every few months, my partner David O’Connor and I update a list of the legal and regulatory issues facing TV broadcasters. That list of issues is published by TVNewsCheck and the latest version, published this week, is available on their website, here. It provides a summary of the status of legal and regulatory issues ranging from the adoption of the ATSC 3.0 standard at one end of the alphabet to White Spaces and Wireless Microphones on the other – with summaries of other issues including the Incentive Auction, Ownership Rule Changes, Media Regulation Modernization, EEO compliance, Political Advertising and Sponsorship Identification, along with dozens of other topics, many with links to our more detailed discussions here on the Blog. Of course, the status of these issues changes almost daily, so watch this Blog and other trade publications for the latest Washington news of interest to broadcasters.

Political Broadcasting and Programmatic Buying – Issues to Consider

Delivered... David Oxenford | Scene | Mon 11 Dec 2017 5:22 pm

The week before last, Bobby Baker, the head of the FCC’s Office of Political Programming and the acknowledged guru on political broadcasting issues, and I conducted a webinar for 20 state broadcast associations discussing the FCC rules regarding political advertising and related issues. We have done this seminar every other year for quite some time to help broadcasters prepare for an upcoming election year. Every time we conduct the session, we are faced with some new questions, usually not because the FCC rules have changed, but instead because new advertising practices have arisen in the industry. This year, one of the issues that prompted a question from the audience dealt with “programmatic advertising” – the question being how advertising bought through various programmatic platforms would play into the political broadcasting analysis that each station must conduct to prepare for the political season (including questions of political rates and access rights that might be affected by programmatic sales).

While most of the principles governing the FCC rules on political broadcasting are relatively established (and many are summarized in our Political Broadcasting Guide available here), new advertising practices and opportunities always raise questions as to how those established rules are to be applied. Programmatic buying of advertising time is one of those areas where these questions have arisen in recent years. In the last few years, programmatic buying has become the buzzword in broadcast advertising circles for both radio and TV. It is intended to make ad buying easier and more akin to the experience that ad buyers have when they place online advertising, allowing most of the buying process to take place from the buyer’s computer, anywhere and at any time, often without directly engaging with a station account rep.

While programmatic buying is becoming more and more common in broadcast circles, it is difficult to easily categorize it and describe how it affects a station’s political broadcasting obligations, as what is called “programmatic buying” comes in so many different flavors. Not only does the concept mean different things on different platforms, it is also being provided by all sorts of different companies, from rep firms, to broadcast technology companies, to companies that specialize in specific types of advertising – like remnant ad sales (i.e. sales of unsold advertising inventory on broadcast stations). And some station owners are signing up with multiple providers – sometimes using these multiple platforms for the sale of advertising at the same station. Depending on how the particular platform works, the effect on the station’s political advertising practices, including the lowest unit rates to be charged by the station for political time in the political windows (45 days before the primary and 60 days before the general election), can vary.

The computerized sale of remnant advertising – where the providers of the programmatic buying give advertisers the opportunity to buy left-over advertising on multiple stations so as to reach a total audience in the market in which the stations operate – is akin to systems developed years ago. We wrote about the FCC’s considerations of such remnant advertising platforms many years ago, here.   The sales of remnant ads packaged with remnant advertising on other stations tend to raise one set of issues. This kind of advertising – sold in packages, where advertisers are offered delivery of a certain number of advertising impressions in a given market, where that delivery comes from placement of ads on multiple stations – may be the least problematic for individual stations in their political broadcasting compliance.

Because the spots are usually packaged with multiple stations to give the advertiser the number of advertising impressions that they seek in a given market or markets, these ads have no impact on the lowest unit rate on any one station (as ads that are sold in a package on multiple stations do not affect the lowest unit rates on any individual station in the package, although such combination packages on multiple stations must be disclosed and made available to candidates by the company making such combination sales). Moreover, as remnant ads can usually run at almost any time in a broadcaster’s schedule (they are usually not run in fixed programs or at specific times), and are usually very preemptible, the ads are usually in advertising classes not very attractive to candidates who want certainty as to when their ads will run, further minimizing their impact on most station’s political broadcasting sales. But sellers of these packages of remnant advertising may themselves be subject to political rules (as the Commission has traditionally applied such rules to “unwired networks”), so the sellers need to be cognizant of their own political broadcasting obligations.

Other forms of programmatic buying can be more significant for political advertising and need to be carefully tracked by broadcasters. Some of the programmatic systems let advertisers use computerized systems to essentially buy any advertising time that is available in a station’s inventory. Advertisers can in effect have access to a station’s traffic system and schedule their own advertising schedules, and can pick and choose among the rates available to advertisers in a station’s traffic systems. It’s this ability to pick and choose what the advertiser wants that could raise political broadcasting issues. If the programmatic deals allow discounts off of a station’s rates for specific classes of time, either simply because they are booked through the programmatic system or because of the volume of spots bought by the advertiser, these discounts could affect the lowest unit rates of the stations in the classes of time bought by the advertiser using the programmatic system.

The ability of any advertiser to get access to the station’s ad schedule to schedule their own ads toward the end of an election season could also affect a station’s ability to squeeze in political ads as necessary to meet reasonable access and equal opportunities obligations. A commercial advertiser using a programmatic platform to place a big advertising buy scheduled to run in the last days before an election could disrupt the ability of a station to make time available to candidates that the station is obligated to provide because of equal opportunity and reasonable access requirements. And, if political advertisers themselves use the programmatic systems to buy and schedule advertising, all sorts of issues could arise, especially to the extent that such ads are bought with higher protection levels where they preempt political ads, or simply because they have other impacts on political schedules that stations need to be tracking.

The contracts and practices of providers of programmatic advertising need to be carefully reviewed to assess the potential for issues to arise in a political broadcasting context. If the programmatic network is used by political and issue advertisers, stations need to be sure that they are getting timely notice of the ad buys, and all the necessary paperwork about the buyer, so that the station can meet its political file obligations. As disclosures of political ad buys often require more information than that is received from the typical ad buyer (especially for third-party political ad buyers from whom information about their principal officer and directors is required, as is the identification of the political issue being addressed), the systems must be able to provide that information.

Generally, programmatic platforms should also be reviewed so that buys made through the system otherwise comply with all other station legal obligations that, once upon a time in the distant past when broadcasters used printed contracts, would have been expressed in the terms and conditions for sales which were often printed on the back of the sales contracts. We have written about the issues that can arise from the demise of the printed advertising contract. See for instance our article, here, where these issues were discussed in the context of the required FCC advertising non-discrimination certification, which also needs to be worked into the programmatic buying process.

We’ve worked with some providers of programmatic systems to help design their systems so that stations that use them can assure that their inventory can be controlled during the election season, and we have looked at agreements from providers for broadcast station clients. These are not simple deals that can be entered into without thought. Any broadcaster using any programmatic buying system needs to carefully review the system that they are using, and determine if there are any potential political broadcasting issues – and to assure that the contracts with the providers give stations the rights that they need to assure compliance with political broadcasting rules (and other FCC obligations).

As these programs and platforms can each pose their own issues, stations should consult with their communications counsel on how any program may impact their political obligations. The FCC’s Office of Political Programming, who gave me their thoughts on these issues as I was writing this article, are also very willing to discuss the issues, and are quite helpful in walking through the implications of any sales platform. Make sure that you understand the implications as you use these programs. This is certainly true for the upcoming busy 2018 election year and, with issue advertising becoming more and more a part of the broadcast landscape even outside of election years, these considerations can arise at any time. So look carefully at the legal issues that can arise from any programmatic ad platform.

FCC Political Broadcasting Rules for Write-In Candidates

Delivered... David Oxenford | Scene | Thu 19 Oct 2017 3:22 pm

In these last few weeks before the many municipal elections that will be occurring in November in states across the country, I have recently received several questions about a broadcaster’s legal obligations toward write-in candidates who want to run advertising on a radio or television station. Under FCC precedent, all legally qualified candidates (including those running for state and local offices, see our article here) must be provided lowest unit rates, equal opportunities to purchase advertising time matching purchases by their opponents and, when they do buy time, the no censorship rules apply to their ads. For Federal candidates, they also have a right of reasonable access. But is a write-in candidate a “legally qualified candidate?” 

In most cases, the question as to whether a candidate is legally qualified is relatively easy.  The station looks at whether the person has the requisite qualifications for the office that they are seeking (age, residency, citizenship, not a felon, etc.), and then looks to see whether they have qualified for a place on the ballot for the upcoming election or primary.  In most cases, qualifying for a place on the ballot is a function of filing certain papers with a state or local election authority, in some places after having received a certain number of signatures on a petition supporting the candidacy.  Once the local election authority receives the papers (and does whatever evaluation may be required to determine if the filer is qualified for a place on the ballot), a person is legally qualified and entitled to all the FCC political broadcasting rights of a candidate: equal opportunities, no censorship, reasonable access if they are Federal candidates, and lowest unit rates during the limited LUC windows (45 days before a primary and 60 days before a general election).  But, for write-in candidates, there are different rules that are applied, as there is no election authority to certify that the requisite papers have been filed for a place on the ballot.  Instead, in these situations, a person claiming to be a candidate must make a “substantial showing” that he or she is a bona fide candidate – that he has been doing all the things that a candidate for election would do. What does that mean?

Section 73.1940(f) of the Commission’s rules sets out what a substantial showing needs to include.  The rule states:

The term substantial showing of a bona fide candidacy as used in paragraphs (b) of this section means evidence that the person claiming to be a candidate has engaged to a substantial degree in activities commonly associated with political campaigning. Such activities normally would include making campaign speeches, distributing campaign literature, issuing press releases, maintaining a campaign committee, and establishing campaign headquarters (even though the headquarters in some instances might be the residence of the candidate or his or her campaign manager). Not all of the listed activities are necessarily required in each case to demonstrate a substantial showing, and there may be activities not listed herein which would contribute to such a showing.

Stations are entitled to ask a purported candidate to make that substantial showing before they accord the candidate all the rights that he or she might be entitled to under the rules.  Stations will looks at factors including whether the candidate has had campaign rallies. Is the candidate making speeches and campaign appearances throughout the area where the election is being held? Is there campaign literature that is being distributed on his or her behalf? Does the candidate have any campaign offices or campaign workers?  Is the campaign more than a website?  A station is entitled to ask for this evidence, and then needs to review the evidence, probably with the aid of counsel and possibly with the informal advice of the FCC (whose Political Broadcasting Office is usually quite helpful in working through issues like this), to determine whether the write-in candidate meets the substantial showing test.

The determination is very fact based. A few years ago, an individual from a fringe group launched a write-in campaign for Congress in a Missouri district where he resided. As he made speeches in the district, had an office there, and put up signs and passed out literature there (and his campaign was covered by the local print publications), many stations deemed him to be a legally qualified candidate and ran his advertising. A few years later, that same individual purportedly launched a campaign for an open US Senate seat in the same state. But that candidate did nothing to show that he was a bona fide state-wide candidate – showing no evidence of a statewide election campaign. Given the different factual circumstance, the Commission informally determined in that case that he was not a bona fide candidate for the Senate as he had not made a substantial showing of his candidacy for the statewide office.

If the candidate does pass the substantial showing test, then all of the political broadcasting rules apply – just as if the candidate had qualified for a place on the ballot. But if the purported candidate has done nothing more than say “I’m a candidate” and then decided to buy advertising time on a broadcast station, it is likely that the station need not sell him or her advertising time. Again, it depends on the facts of the situation, so analyze those facts carefully and discuss these issues with counsel familiar with the precedent in this area. For more information about political broadcasting rules, see our Guide to Political Broadcasting, here.

FCC Releases Draft Order to Abolish Main Studio Rule – To Be Considered at its October 24 Meeting

Delivered... David Oxenford | Scene | Wed 4 Oct 2017 4:40 pm

The FCC yesterday released the agenda for its October 24th Open Meeting, as well as draft orders of the matters to be considered at that meeting. For broadcasters, the single most significant proposal was a draft order (available here) to abolish the requirement that a broadcast station maintain a main studio in close proximity to its city of license that is open to the public and staffed during normal business hours. The FCC’s draft order determines that, in today’s modern world, where much communication with broadcasters is done by phone or electronically, and as stations either have or soon will have their public files available online, there was no longer any need to maintain the rule mandating the main studio. So, if the Commission adopts the draft order at its October 24th meeting, the requirement which has been on the books since 1939 will be eliminated.

Together with the main studio rule, the FCC order would also eliminate the requirement that the station have staff members available at that studio. Instead, the licensee, to maintain contact with their community, must maintain a toll-free number accessible to residents of the station’s city of license. That number must be answered during normal business hours of the station – but the person answering the phone line need not be in the city of license. The FCC urged, but did not require, that the phone line be monitored during other hours as well. The phone line can be shared with multiple stations – so an “800” number available nationwide would seem to meet the requirement.

The FCC also would eliminate local program origination obligations. So station owners need no longer have some physical presence in their community where they can originate programming. The FCC said that technology allows stations to put callers on the air from anywhere, and even to do video through Skype and other similar technology providers. Stations do, however, still need to serve their communities. They still need to maintain Quarterly Issues Programs lists (which, as we wrote here, are due to be placed in a station’s file this quarter by next week). These lists require that the station list the most significant issues facing its community in the past quarter and the programs broadcast by the station addressing each of those issues. Thus, a station will need to continue to monitor, in some way, the issues in their community and broadcast programming addressing those issues – but how they accomplish those requirements, and the location from which they do so, is up to them.

Stations that have fully transitioned to the online public file need no longer keep any physical documents in their communities of license. But stations that have not yet made that transition (with the transition deadline for radio stations in smaller markets, and smaller groups in large markets, being March 1, 2018) must maintain a paper public file in their city of license until all of the documents required to be in the file are transitioned to the online public file. The file must be maintained at a location in their community of license that is open during normal business hours (e.g. a public library or an office for some local business). Small market stations can transition to the online public file now (they need not wait until March 1), so they can eliminate the need to maintain a paper public file in their community if they decide to eliminate their main studio once this rule is adopted and becomes effective.

Note, however, that even for stations that transition to the online public file, there may be some residual paper file obligations. While the FCC eliminated the need to maintain letters from the public, which had to be kept in a paper file, earlier this year (see our article here), for most stations, after March 1 of next year, the only documents not in the online public file will be documents from the political file – as stations need only include in the online public file political documents created after the transition date (see our article here about the new online public file obligations for radio). Older political documents need not be placed in the public file. Those documents need to be kept for 2 years from the date of their creation. For all stations, by March 1, 2020, there should be no need for a physical file at all. For stations that do have “old” political documents, to avoid having to maintain a paper public file in their community, they can upload all old political documents to their online file, even though they are not required to do so.

The rule changes will become effective, if adopted, when they are published in the Federal Register, except for the rules dealing with the public file. Those rules will be effective upon their approval by the Office of Management and Budget under the Paperwork Reduction Act.

If the FCC acts as expected to approve this rule on October 24, many changes in broadcast operations will become permissible. While the changes may allow broadcasters to recognize significant cost savings, we reiterate the FCC’s warning that stations, no matter the physical source from which their programming originates, need to remember that they still have an obligation to serve the interests of their communities. Public interest groups will, no doubt, be watching – so broadcasters beware.

What to Do With the On-Air Employee Who Becomes a Candidate for Elective Office?

Delivered... David Oxenford | Scene | Wed 20 Sep 2017 4:20 pm

It seems like about this time as we begin to near the end of the year that broadcasters contemplate their future. And it seems like that brings many to contemplate moving from behind the microphone to being in front of it – by running for public office. Perhaps because next year will likely be a very active one with Congressional elections and elections in many states, I have had a number of calls from broadcasters in the last few weeks asking what they should do with the on-air employee who is contemplating making that move by jumping into politics. We have written about this issue many times before, including coverage of when well-known local or national personalities have contemplated runs for office – see our stories here, here and here. In 2010, we wrote an article that provided a discussion of this issue, which remains valid today, and which I edited and reposted in 2016 here. An updated version of that article is below.

Having an on-air employee who runs for political office – whether it is a federal, state or local office – does give rise for equal opportunities for competing candidates whenever that employee’s recognizable voice or picture appears on the air, even if the personality never mentions his or her candidacy on the air, and even if they appear in what is otherwise an exempt program (e.g. a newscaster who runs for office triggers equal time when he delivers the news even though a candidate’s appearance as a subject of that news program would be exempt). Stations need to take precautions to avoid the potential for owing significant amounts of free time to competing candidates, where those candidates can present any political message – if they request it within 7 days of the personality’s appearance on the air.

Once a candidate becomes “legally qualified” (i.e. he or she has established their right to a place on the ballot by filing the necessary papers), equal opportunities rights are available to the opposing candidates.  What this means is that, if the on-air broadcaster who is running for political office stays on the air, any opposing candidate can come to the station and demand equal opportunities within seven days of the date on which the on-air announcer/candidate was on the air, and the opponent would be entitled to the same amount of time in which they can broadcast a political message, to be run in the same general time period as the station employee/candidate was on the air.  So if your meteorologist decides to run for the city council, and he appears on the 6 o’clock news for 3 minutes each night doing the weather, an opposing city council candidate can get up to 21 minutes of time (3 minutes for each of the last 7 days), and that opposing candidate does not need to read the weather, but can do a full political message.  So what is a station to do when an on-air employee decides to run for office?

In some cases, stations do nothing, and no one seems to mind.  I’ve known broadcasters who appeared on-air every day, particularly in small towns, while they were serving as mayor or on the city council, and no opposing candidate ever bothered to ask for equal opportunities – either because they did not know the rules, or because they would have received bad publicity forcing the on-air employee/candidate out of his job during the election season.

But sometimes competing candidates do insist on their rights, especially less well-known candidates who may not have any other way to get their message out and want the free time that they can get because of the on-air employee’s appearances.  Thus, many stations play it safe and don’t allow a candidate to continue to stay on the air once they become legally qualified (and sometimes even before they are legally qualified to even avoid the appearance of unfairness).  But there are other alternatives that can be pursued that lie between taking the risk of having to meet equal opportunities claims and taking the employee off the air.  These include:

  • Obtaining waivers from the opponents of the station employee, allowing the employee to continue to do his job, perhaps with conditions such as forbidding any discussions of the political race
  • Allowing the candidate to continue to broadcast in exchange for a negotiated amount of air time for the opponents.

Obviously, consult counsel to get the wording right on any waiver, but waivers are an option.

Another alternative is to give the on-air employee/candidate other duties that don’t trigger equal opportunities.  If the candidate’s voice or likeness does not appear on-air, then there is no equal opportunities right.  Right now, the political rules do not apply to Internet appearances, so website work is a possibility. Also, a move to a sister station with a service area that does not reach the district in which the candidate is running is another alternative.

Finally, remember that equal opportunities are only available to the opponents of the employee-candidate.  In a primary, the opponents are only those candidates who are running for the nomination of the same party.  Thus, if your on-air employee is running in the Republican primary, you only need to worry about his or her Republican opponents for equal time purposes.  The Democrats don’t get equal time until the nominees of each party have been selected.

For more on the political broadcasting rules, check out our Guide to Political Broadcasting, available here.

Washington Issues for TV Broadcasters – Where Things Stand at the FCC

Delivered... David Oxenford | Scene | Mon 11 Sep 2017 5:13 pm

There is never a shortage of Washington issues for broadcasters to consider, and the rapid pace of change since the new administration took over in January has made it even more difficult to track where all the issues stand. While we try on this Blog to write about many of the DC issues for broadcasters, we can’t always address everything that is happening. Every few months, my partner David O’Connor and I update a list of the legal and regulatory issues facing TV broadcasters. That list of issues is published by TVNewsCheck and the latest version, published last week, is available on their website, here. It provides a summary of the status of legal and regulatory issues ranging from the adoption of the ATSC 3.0 standard at one end of the alphabet to White Spaces and Wireless Microphones on the other – with summaries of other issues including the Incentive Auction, EEO compliance, Political Advertising and Sponsorship Identification, along with dozens of other topics, many with links to our more detailed discussions here on the Blog. Of course, these issues change almost daily, so watch this blog and other trade publications for the latest Washington news of interest to broadcasters.

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