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


March Regulatory Dates for Broadcasters—Children’s Television Reports, Lowest Unit Rate Windows, EEO Audit Responses, AM Revitalization Comments, License Renewal Preparation and More

Delivered... David Oxenford | Scene | Mon 24 Feb 2020 6:06 pm

As the calendar flips to March, many of us have put our trust in Punxsutawney Phil’s weather forecasting expertise that an early spring is coming.  A surer place to put our trust, however, is in the guarantee that there are always some regulatory dates about which broadcasters should be aware.  While March is a month without with many of the regularly scheduled deadlines for renewals, EEO public file reports or Quarterly Issues Programs lists, there are still plenty of regulatory dates about which you should take notice.

The closest we come in March to a broadly applicable FCC filing deadline is the requirement that, by March 30, 2020 television broadcasters must complete and submit through LMS the FCC’s new Form 2100, Schedule H documenting their compliance with the requirements under the children’s television (KidVid) rules to broadcast educational and informational programming directed to children.  This report will document that programming from September 16, 2019 (when the new KidVid rules went into effect) to December 31, 2019.  The March 30 date is a transitional date as the FCC moves away from the old quarterly children’s television reports to ones that will be filed annually – in future years by the end of January.  This year, however, the FCC took time to develop the form for the new annual report and to explain how it should be used, thus the extra time to file.  Once filed, TV broadcasters won’t file another children’s television report until early 2021 reporting on compliance for all of 2020.  For more on the transition to the new KidVid obligations, read our articles here, here, and here.  To learn how to work with the new form, watch the FCC’s archived instructional webinar here.

Other dates affecting many broadcasters are the political windows during which broadcasters must offer lowest unit rate to candidates in upcoming primary elections.  In the 45 days before a primary and the 60 days before a general election, stations (and cable systems) must offer candidates running in those elections the lowest unit rate that they charge any commercial advertiser for a comparable advertisement.  Many of the windows are already open, including those for stations which are among primaries happening on Super Tuesday (March 3).  For later primaries, the window opens on March 14 for the primaries in Connecticut, Delaware, Maryland, New York, Pennsylvania, and Rhode Island.  Later windows open on March 18 for Guam (D) and Kansas (D), March 21 (Indiana), and March 28 (Nebraska).  See our article here for thoughts on some of the issues that broadcasters should be considering for primary season survival.  Learn more about navigating the range of political broadcasting issues by reading our Political Broadcasting Guide and for more guidance on how to compute lowest unit rates, see our articles here, here, and here (this last article dealing with the issues of package plans and how best to determine the rates applicable to spots in such plans).

In early February, about 320 broadcast stations received an unwelcome letter in their mailbox notifying them that they had been randomly selected by the FCC’s Enforcement Bureau to participate in an audit of their compliance with the FCC’s equal employment opportunity (EEO) rules.  Each year, approximately 5% of broadcast stations are selected for auditing and, if you are one of the unlucky 320 who recently received an audit notice, you will want to begin preparing immediately to respond by uploading to the station’s online public file the responsive documents by March 23, 2020.  To see the stations that made the audit list and to read the letter sent to them detailing the matters that the must be covered in the response, visit the FCC’s website here. For more on this first round of 2020 EEO audits, see our article here.

The FCC in March takes another step in its plan to revitalize AM radio.  As we noted in earlier posts here and here, the FCC adopted a Notice of Proposed Rulemaking (NPRM) that proposes allowing AM radio broadcasters to voluntarily transition to an all-digital signal.  Currently, most AM operations are analog, though some operate in a hybrid analog-digital mode.  Among the questions asked in the NPRM are whether all-digital operations would provide a better listening experience with less interference, whether AM broadcasters could use the digital signal to transmit artist and song data to listeners, and how AM broadcasters should be required to notify the FCC if they begin digital operations or revert to analog operations. The NPRM asks many technical questions, so you may want to put on your broadcast engineer hat when writing your comments.  The FCC is accepting comments on its proposal through March 9Reply comments are due by April 6.

The National Association of Broadcasters (NAB) together with Xperi Corporation and National Public Radio (NPR) petitioned the FCC in December 2019 to revive a currently-dormant issue dealing with HD radio technology.  The petition asks the FCC to begin a rulemaking that would amend the Commission’s rules to allow FM stations to use asymmetric sideband power levels without special authorization which could enable stations to maximize their digital coverage area and match their analog coverage to the greatest extent possible, within existing digital power limits while minimizing interference to adjacent channel stations.  If you are interested in supporting or opposing a potential rulemaking, you have until March 6 to submit comments.  You can read the petition for rulemaking here.

The repacking of the broadcast TV band, made necessary by the FCC’s broadcast incentive auction, continues across the country.  Stations assigned to Phase 8 must complete the transition to their new channels by March 13, 2020.  One day later, on March 14, 2020, stations assigned to Phase 9 of the repack may begin testing and operating on their new channels.

Looking ahead to early April, all AM, FM, LPFM, and FM translator stations licensed to Indiana, Kentucky, and Tennessee must file their license renewal application by April 1, 2020. Beginning on April 1, 2020, stations filing renewals by that date must begin airing a series of six post-filing announcements (one announcement each on April 1April 16May 1May 16June 1, and June 16).

Full-power AM, FM, LPFM, and FM translator stations in Michigan and Ohio and full-power TV, Class A TV, TV translator, and LPTV stations in DC, Maryland, Virginia, and West Virginia (the first TV window in the current license renewal cycle) are due to file license renewal applications by June 1, but, before that, those stations must air a series of announcements alerting listeners to their upcoming license renewal filing.  The first of four of these pre-filing announcements begin on April 1, with further required pre-filing announcements to air on April 16May 1, and May 16.  For more on pre-filing announcements, including the timing of the announcements and sample text to use, visit the FCC’s radio license renewal page here and the TV license renewal page here.

April 1 also brings the obligation for full-power radio and television stations in DelawareIndianaKentuckyPennsylvaniaTennessee, and Texas with five or more full-time employees in their station employment unit to place in their online public file and on their station website their Annual EEO Public Inspection File Report documenting their hiring from April 1, 2019 to March 31, 2020.

Be sure to bookmark our blog to read updates throughout the month or, better yet, sign-up in the box on the right side of your screen (or at the bottom of your screen if you’re visiting on a mobile device) to receive email alerts every time we publish a new article.  And check with your own counsel for details about these obligations and for other dates we have not highlighted here, including any dates that may be uniquely applicable to your own station.

Quick Thoughts on a Few Political Broadcasting Legal Issues to Survive the Primary Season

Delivered... David Oxenford | Scene | Wed 5 Feb 2020 6:25 pm

One presidential caucus down, 49 (primaries and caucuses, plus a few more in the territories) to go in the next four months – with primaries for Congressional, state and local offices stretching out through August.  This presidential primary race has already seen unprecedented amounts of advertising on local stations, including through network advertising buys.  Based on campaign announcements made in recent days, the advertising is likely to only increase as we move to the Super Tuesday states.  As the Democratic party nomination race heats up, broadcasters are likely to continue to see a flood of political buys, as candidates, PACs and other groups try to get the last word before the voters go to the polls. Here are four issues that broadcasters should be considering in this active, condensed broadcast season:

  1. Practice Inventory Management. In the last days before an election, there will be many demands on the commercial inventory of many stations, and stations will need to be careful in managing that inventory. Remember, all candidates have the right to buy equal time to the time aired by opposing candidates in the prior 7 days. While candidates cannot sit on their equal opportunity rights until the last minute, equal opportunity buys can place real demands on your commercial inventory, especially if one candidate tries to reserve lots of time in the days immediately preceding a vote. Plus, you will be getting demands from candidates for new time, and requests from PACs and other political advertisers. Thus, be sure that you have practiced wise inventory management so that there is room for all of the spots that you are obligated to run. Be particularly careful about selling a large schedule to one candidate now, reserving big blocks of time in the final days before the primary date, as opposing candidates will need to be able to get their equal opportunities before the primary – even if you have to bump commercial advertisers – and potentially eat into program time.
  2. Weekend Access. The FCC has said that if a station has, in the year prior to the election, made its employees available to a commercial advertiser for new orders or changes in copy on the weekend prior to an election, they need to make employees available for those activities to political candidates. Even if the station completely shuts down on the weekend, and no salesman ever signs a deal with an advertiser during a Saturday golf outing and no weekend employee ever agrees to change the copy on a big advertiser’s spots, the station may still need to make employees available during the last weekend before the election to allow candidates to exercise the equal opportunity rights discussed above. Start planning now as to the staffing you may need to handle last-minute political requests that weekend before the primary.
  3. Be Prepared for Take-Down Demands. In the last days before any election, the ads can get more pointed, and some may trigger take-down notices from candidates who are being attacked. Remember, if the attack ad is run by a candidate’s authorized campaign committee, you can’t censor the ad based on its content. That means you are legally forbidden to pull the ad even if it lies about the opponent. But ads bought by PACs and other non-candidate groups can be refused based on their content. So you need to carefully evaluate the claims made by the party demanding that the spot be pulled, because if the claims made in the spot are in fact false and defamatory, the station could have liability for continuing to run the non-candidate attack ads after receiving notice demanding that they be taken down. We wrote more about this subject here and here.
  4. Keep Your Public File Up to Date. While you may be incredibly busy just getting political ads on the air, don’t forget your public file obligations.  The required information about advertising buys by candidates and issue advertisers (including, for candidate and federal issue ads, all the information about the schedule bought, the price paid, the class of time for the spots purchased) need to get into the political file “immediately” – i.e., on a same-day or next business day basis – so that other candidates and the public can see what has been bought.  With the recent FCC rulings requiring stations to disclose all the federal candidates, all the federal offices, and all the national issues that are included in any federal issue ad (see our posts here and here).), you need to have staff ready to fulfill your obligations.

Only nine more months and political season will be over, when your station can go back to simply dealing with its normal commercial advertisers. Until then, you need to deal with all of these issues.  More on political advertising can be found in our Guide to Political Broadcasting, here, and in the slides that I recently used in a webinar on political broadcasting issues that I did last week for broadcasters in 4 states (available here).  Remember, none of this guidance is definitive, as facts are really important in assessing any legal issue – especially in the political broadcasting context.  But these guides can help to identify the issues that you should be considering.  For now, be prepared for the onslaught of political advertising issues, and have your communications lawyer’s phone number on speed dial!

Looking Ahead to the Rest of 2020 – Potential Legal and Regulatory Issues For the Remainder of the Year

Delivered... David Oxenford | Scene | Wed 29 Jan 2020 5:35 am

Most years, at some point in January, we look into our crystal ball and try to see some of the legal and regulatory issues likely to face broadcasters.  We already provided a calendar of the routine regulatory filings that are due this year (see our Broadcaster’s Regulatory Calendar).  But not on that calendar are the policy issues that will affect the regulatory landscape in the coming year, and into the future.  This year, the biggest issue will no doubt be the November election.  Obviously, broadcasters must deal with the many day-to-day issues that arise in an election year including the rates to be charged political candidates, the access to airtime afforded to those candidates, and the challenges associated with the content of issue advertising that non-candidate groups seek to transmit to the public.  The election in November will also result in a President being inaugurated in just less than a year – which could signal a continuation of the current policies at the FCC or potentially send the Commission in a far different direction.  With the time that the election campaigns will demand from Congress, and its current attention to the impeachment, Congress is unlikely to have time to tackle much broadcast legislation this year.

The broadcast performance royalty is one of those issues likely on hold this year.  While it was recently re-introduced in Congress (see our article here), it is a struggle for any copyright legislation to get through Congress and, in a year like the upcoming one, moving a bill like the controversial performance royalty likely will likely not be high on the priorities of Congressional leaders.  This issue will not go away – it will be back in future Congresses – so broadcasters still need to consider a long-term strategy to deal with the issue (see, for instance, our article here on one such strategy that also helps resolve some of the music royalty issues we mention later in this article).

At the FCC, one would think that political broadcasting issues, like the reconsideration request we wrote about here seeking changes in the FCC’s recent controversial decisions on the disclosure of all issues and candidates in every non-candidate ad, would be high on the list of issues to be considered.  But political issues are also complex – October’s decision on issue ad disclosures took almost 3 years to be released, after a prior Media Bureau decision on the same issues was rescinded in early 2017.  Thus, it would not be at all surprising if these issues don’t get resolved this year.

Many people expected that we would see ownership reform in 2020– especially for radio.  Last year, the FCC started its Quadrennial Review to look at these issues.  But the September decision of the Third Circuit (see our articles here, here and here), overturning changes made in 2017, may have clouded the potential for any changes in the ownership rules this year.  These issues can be controversial in an election year.  But we have in the past seen FCC ownership decisions in the lame-duck period after an election but before a Presidential inauguration, so stay alert to what happens in this area.

In the interim, license renewal applications will trudge on, with TV starting to file their renewals in June of this year (starting with stations in Maryland, DC, Virginia, and West Virginia).  So far, the FCC has been judicious in issuing fines for public file violations disclosed in a license renewal application, only fining those stations who totally ignored their obligations (see our stories here and here).  We are waiting for the FCC’s patience to end – and would not be surprised to see the FCC become stricter in policing these issues in the future.

What other issues have we seen the FCC take comments on but not yet resolve?  EEO was one area that generated lots of comments earlier in 2019 (see, for instance, our article here).  But, with the FCC’s rulemaking notice being so general in its questions, and many of the proposals made in the proceeding so specific, if anything happens out of the proceeding, the most likely action would seem to be a further notice of a proposed rulemaking to give parties notice of any specific proposals the FCC wants to pursue.

For television, ATSC 3.0 looks to become a reality this year as stations begin to roll out the new technology and ATSC 3.0-compatible television receivers become available at consumer electronics stores.  On the regulatory front, the FCC still has some issues to resolve, including dealing with stations that cannot find a partner station to provide a “lighthouse signal” in the current digital technology when they are ready to convert to the new standard.  The TV band will also shrink, as the repacking following the incentive auction concludes in July – with all TV stations moved into the channels below 37.

The oldest of the broadcasting services, AM, will also possibly be looking at its own digital conversion – though the FCC will have to move very fast to get it done this year.  The proposal to allow AM stations to convert to full digital operations has been formally advanced through a notice of proposed rulemaking, with comments due March 9 and replies on April 6 (see our articles here and here).  The issues seem relatively simple, and for a voluntary conversion, relatively noncontroversial.  A decision before the end of the year is possible, though such quick action would require everything to fall into place just right.

Some of the biggest issues for broadcasters may come not from the FCC, but from other agencies or courts.  As we wrote here and here, the Department of Justice is considering changes to the antitrust consent decrees that govern ASCAP and BMI.  Should the DOJ review reach a conclusion and suggest a radical restructuring or abolition of the current system, Congress would almost assuredly have to step in to take action.  We’ll be watching closely to see if any action comes from the DOJ this year.

BMI is currently in rate court litigation with the Radio Music License Committee over the rates that radio stations should pay for the use of BMI music.  That proceeding could result in higher fees for radio broadcasters.  SESAC’s three-year license with the radio industry (see our article here) has also expired, meaning that if no new rates can voluntarily be arrived at, their rates will be decided by an arbitration panel.  SESAC has added some new songwriters (including Adele), so you can be sure that they will want more money from the radio industry.  And, of course, the litigation with GMR goes on, though it may not be concluded this year.

What will be concluded before the end of the year is the new rates that webcasters (including broadcasters who stream their audio signal on the Internet) will pay SoundExchange for the right to publicly perform sound recordings on a digital platform for the period from 2021 through 2025.  The Copyright Royalty Board is currently considering proposals from music services and SoundExchange for new rates – SoundExchange looking for a significant increase while the services are looking for a decrease.  A trial is scheduled for March, with a decision required by law before the end of the year.

With the election coming in November, the prospects for other “big” issues being tackled this year seem to be less than in most years.  We have noted (see, for instance, or articles here and here), that the FCC has been very active in enforcing the rules that it does have – which may be a safe political course for it to pursue but one fraught with potential dangers for broadcasters and other regulated entities.  But each year issues come up that surprise us, so watch the FCC releases, the trade press, this blog and others like it, and be ready for whatever regulatory issues may come your way in 2020.

February Regulatory Dates for Broadcasters—License Renewals, EEO Reporting, Rulemaking Comments, FM Auction Filing Deadline, Lowest Unit Rate Windows, and More

Delivered... David Oxenford | Scene | Thu 23 Jan 2020 5:12 pm

With the holiday season getting smaller in the rear-view mirror and many parts of the country dealing with ice, snow, and single-digit temperatures, broadcasters could be forgiven for dreaming about the sunshine and warmth that come with spring.  Before spring arrives, however, broadcasters need to tend to important regulatory matters in February.  And, if you find yourself eager to plan past February, use our 2020 Broadcasters’ Calendar as a reference tool for tracking regulatory dates through the end of 2020.

But focusing on the month ahead, by February 3, all AM, FM, LPFM, and FM translator stations in Arkansas, Louisiana, and Mississippi must file their license renewal applications.  For the full-power stations in the state, there’s an additional EEO task to complete irrespective of how many employees a station employment unit (SEU) has.  Before filing for license renewal, stations in these three states must submit FCC Schedule 396. This schedule is the Broadcast Equal Employment Opportunity Program Report, which is a reporting to the FCC of the SEU’s equal employment opportunity activities for the last license period (SEUs with fewer than five full-time employees are not required to maintain an EEO recruitment program and are only required to check a box that they have fewer than 5 full-time employees and skip ahead to the certification).  The sequencing here is important: When filing for license renewal, the application (Schedule 303-S) asks for the file number of your already-filed Schedule 396.  So, without having already filed the schedule, you won’t be able to complete your renewal application.

Beginning February 1, stations filing renewals must begin airing a series of six post-filing announcements (one announcement each on February 1, February 16, March 1, March 16, April 1, and April 16).  Stations in Alabama and Georgia that filed earlier in the renewal cycle air their fifth post-filing announcement on February 1 and their sixth and final announcement on February 16.  These stations must then place in their online public file certifications of air times and dates for all the pre- and post-filing announcements they ran.

Full-power AM, FM, LPFM, and FM translator stations in Indiana, Kentucky, and Tennessee are due to file license renewal applications by April 1, but, before that, those stations must air a series of announcements alerting listeners to their upcoming license renewal filing.  The first of four of these pre-filing announcements must air on February 1, with announcements two, three, and four airing on February 16, March 1, and March 16 respectively.

Stations are required to air pre-filing announcements in the two months prior to the month in which their license renewal application is due.  For more on pre-filing announcements, including the timing of the announcements and sample text to use, visit the FCC’s radio license renewal page here.

February 1 also brings the obligation for full-power radio and television stations in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma with five or more full-time employees in their SEU to place in their online public file and on their station website an EEO report reporting on their hiring from February 1, 2019 to January 31, 2020.  An SEU is one or more stations under common control, serving the same area, and sharing one or more full-time staff person.  As a reminder, your Annual EEO Public Inspection File Report should include, among other things, a list of all full-time vacancies filled by the SEU during the year, identified by job title and the recruitment source(s) used to fill the vacancy, the recruitment source that referred the person(s) hired for each full-time vacancy during the year, data showing how many people were interviewed for full-time openings, and a showing of your efforts throughout the year to engage in non-vacancy specific EEO recruitment activities to inform your community about broadcast employment and to train people for broadcast positions.  Remember,  the FCC conducts random EEO audits and has not been shy over the last few years about fining stations for EEO violations.

In addition to these routine deadlines, there is plenty more going on for broadcaster to consider.  Turn on any news program, and there is bound to be some discussion of the early presidential primaries and caucuses happening in Iowa, New Hampshire, South Carolina, and Nevada.  Don’t forget that those four contests are merely a pre-cursor to the dozens of primaries and caucuses that follow across the country.  Several primaries and caucuses happen in March and April, so lowest unit rate (LUR) windows for several states open throughout February. These begin on February 1 with LUR windows opening in Arizona, Florida, Illinois, N. Mariana Islands (R), and Ohio.  LUR windows open later in the month in the following states (in some cases only dealing with contests for the Republican or Democratic nomination): February 5 (Kentucky (R)); February 8 (American Samoa (R) and Georgia); February 11 (North Dakota (R)); February 13 (Puerto Rico (D)); February 19 (Alaska (D), Hawaii (D), Louisiana, and Wyoming (D)); and February 22 (Wisconsin). For more on issues computing lowest unit rates, see our articles herehere and here (this last article dealing with the issues of package plans and how to determine the rates applicable to spots in such plans), and our Political Broadcasting Guide, here.

Also in February is the close of the filing window for the latest FM auction.  See our articles here and here on the upcoming auction and the new FM channels that are available.  If you want to participate in the April auction, you need to file an FCC Short-Form application by February 11 at 6 PM Eastern Time.  Note that there is a freeze on FM minor change applications during the filing window for that auction – from January 29 through February 11.

Reply comments are due in February in FCC proceedings to assess whether to allow the continuation of FM operation on channel 6 LPTV stations (so-called Franken FMs), which we wrote about here.  Reply comments are due by February 6.  Reply comments are also due that day on the FCC’s proposal to change the prohibition on the duplication of more than 25% of the programming on two AMs or two FMs that serve substantially the same area.  See our article here on this proposal.

February will also bring an FCC decision as to whether or not to appeal to the Supreme Court the Third Circuit’s decision throwing out the FCC’s 2017 changes to the ownership rules, including the abolition of the newspaper/broadcast cross-ownership prohibition and the rule that required that there remain 8 independent TV owners and operators in a market before two TV stations can be commonly owned. We wrote about the Third Circuit decision and its aftermath here, here and here.

Parties should also be preparing for the March 9 filing deadline for comments in the FCC’s rulemaking on whether or not to allow AM stations to voluntarily convert to all-digital operations.  See our articles here and here on that proposal.

As always, consult with legal counsel and the FCC rules to be sure your station is meeting all of its obligations, and stay tuned to broadcastlawblog.com for updates.

 

Lowest Unit Charge Windows Open in About 30 States and Territories – Reviewing A Broadcaster’s Political Advertising Obligations

Delivered... David Oxenford | Scene | Sat 18 Jan 2020 2:51 am

On January 18, the lowest unit charge window for Presidential primaries or caucuses begins in Super Tuesday states including Alabama, American Samoa (D), Arkansas, California, Colorado, Maine, Massachusetts, Minnesota, North Carolina, Oklahoma, Tennessee, Texas, Utah, Vermont, and Virginia.  The LUC window opened on January 15 for South Carolina’s Democratic primary and will open on January 23 for stations in Puerto Rico.  Soon behind, on January 25, lowest unit charge windows for presidential contests open in Hawaii, Idaho, Michigan, Mississippi, Missouri, North Dakota (D), and Washington State.  The window opens on January 27 in the US Virgin Islands and West Virginia. January 29th is the opening of the window for contests in Guam (R), N. Mariana Islands (D) and Wyoming (R).

In these windows, when broadcasters sell time to candidates for ads in connection with the races to be decided on these dates, they must sell them at the lowest rate that they charge commercial advertisers for the same class of advertising time running during the same time period. For more on issues in computing lowest unit rates, see our articles herehere and here (this last article dealing with the issues of package plans and how to determine the rates applicable to spots in such plans), and our Political Broadcasting Guide, here.

The beginning of the LUC (or LUR for “lowest unit rate”) window in these states is just the beginning of the political windows that will be opening across the country for Presidential primaries and caucuses, as well as for Congressional races and state and local offices. These political windows open 45 days before the primary election (or caucus, in states where there is a caucus system that is open to the public for the selection of candidates) and 60 days before general elections.

In most states, the Presidential contests will have separate primary windows from other political contests that will be decided in the general election in November.  In many states, there will be primaries in the Spring or Summer in which nominees will be selected for seats in the US House of Representatives, for contested Senate seats, and for state and local offices.   In some states there may be entirely different timing for municipal primaries and elections. For each of these primaries held at different times, there will be a window during which lowest unit charges will apply, but only to those candidates running in the race to be decided in that particular election.  Be sure to stay on top of all of these election dates in your station’s service area.

As we have noted before (see our articles here and here), advertising time does not need to be sold to state and local candidates by broadcast stations – the “reasonable access” rules don’t apply. But once a station decides to sell time to these candidates, all of the other political rules apply – including lowest unit rates. The right to these rates cannot be waived by state and local candidates.

Even before the windows open in your state, your station needs to engage in significant planning to make sure that you are charging candidates the correct rates and observing all of the other political advertising rules. We’ve written about some of those issues here.

Reasonable access and equal opportunities apply even outside the window. That means that federal candidates have a right to buy time on your stations, even outside the window. Equal opportunities mean that if you sell ads to one candidate, you must sell them to another. And if you have a candidate on the air outside of an exempt program (see our articles here and here on exempt programs), you must give the other candidate equal time if they request it within 7 days. That goes for on-air appearances of station employees who decide to run for office (see our articles herehere and here) and for commercial advertisers who appear in their own spots and become political candidates (see our article here).

Once legally qualified candidates buy time, inside or outside the political window, the “no censorship” rules apply (see our articles here and here), meaning that you cannot censor a candidate’s message.  Because a station cannot censor a candidate’s ad, in almost all cases, they must run the spot unaltered with the message that the candidate has decided to convey, even if the station questions its truthfulness.  But that means that the station has no liability for the candidate ad.

Third party ads, from PACs, political parties and other advocacy groups will no doubt accompany the increase in candidate spending. These ads, while not entitled to lowest unit charges, nevertheless present their own unique challenges. As these ads can be edited or rejected based on their content, stations can theoretically have liability for their content if that content is defamatory or raises other legal issues (see our article here on dealing with challenges to the truth of these third-party political ads). Plus, the FCC’s recent decision about the public file obligations that go with third-party political ads (and other federal issue ads) provide yet another layer of complexity for broadcasters (see our articles here and here).

These are just some of the issues that stations will need to deal with as the election season kicks into high gear. Study up, get prepared, and do your best to cope with the upcoming onslaught of political advertising that may be coming your way.

Facebook Not Fact-Checking Candidate Ads – Looking at the Contrast Between Online Political Ads and Those Running on Broadcast and Cable

Delivered... David Oxenford | Scene | Mon 13 Jan 2020 6:02 pm

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

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

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

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

A Broadcaster’s 2020 Regulatory Calendar – Looking at Some of the Important Dates for the Year Ahead

Delivered... David Oxenford | Scene | Thu 9 Jan 2020 3:23 pm

Here we are, more than a week into the New Year, and already we’ve written about a host of regulatory issues that will be facing broadcasters in the first month of the year (see for instance our articles here and here).  But what about the rest of the year?  As we do most years, we’ve put together a Broadcaster’s Regulatory Calendar for 2020, here.  While this calendar can’t be seen as an exhaustive list of every regulatory date that your station will face, it highlights many of the most important dates for broadcasters in the coming year – including dates for license renewal actions, EEO Public Inspection File Report preparation, Quarterly Issues Programs lists, children’s television obligations and much more.  It also provides the dates that the lowest unit charge windows open for most of the Presidential primaries and caucuses, as well as for the November general election.  Certainly, there will be plenty more dates to be aware of.  Follow our blog, read other newsletters and trade publications and consult your own attorney to stay on top of your regulatory obligations.  But, hopefully, our 2020 Broadcasters Regulatory Calendar will give you a good start on spotting some of the important dates that may affect your operations.

While You Were on Vacation….Looking at FCC Regulatory Actions over the Holidays and Deadlines for January

Delivered... David Oxenford | Scene | Mon 6 Jan 2020 5:45 pm

While many of us were trying to enjoy the holidays, the world of regulation kept right on moving, seemingly never taking time off.  So we thought that we ought to highlight some of the actions taken by the FCC in the last couple weeks and to also remind you of some of the upcoming January regulatory deadlines.

Before Christmas, we highlighted some of the regulatory dates for January – including the Quarterly Issues Programs Lists due to be placed in the online public file of all full-power stations by January 10.  Also on the list of dates in our post on January deadlines are the minimum SoundExchange fees due in January for most radio stations and other webcasters streaming programming on the Internet.  January also brings the deadline for Biennial Ownership Reports (postponed from their normal November 1 filing deadline).

In that summary of January regulatory dates, we had mentioned that the initial filing of the new Annual Children’s Television Programming Report would be due this month.  But, over the holiday week, the FCC extended that filing deadline for that report until March 30 to give broadcasters time to familiarize themselves with the new forms.  The FCC will be doing a webinar on the new form on January 23.  In addition, the FCC announced that many of the other changes in the children’s television rules that were awaiting review under the Paperwork Reduction Act had been approved and are now effective.  See our article here for more details.

Our summary of the January regulatory dates also mentioned the filing window that opens on January 29 for the April auction of new FM channels.  The deadline for applications to participate in the auction is February 11 at 6 PM EST (see our article here).  We did not mention another filing window falling in January, including one for amendments to pending applications for new LPTV stations or TV translators that had their proposals blocked by changes made during the repacking of the television band following the incentive auction.  These applicants can amend their applications to remove these conflicts with repacked channels by January 31.  See the FCC Public Notice of this filing window here.

New comment dates in rulemaking proceedings were also recently announced for January.  Comments are due on January 22 on the FCC’s proposal to change the rules that preclude radio stations in one service (AM or FM) from duplicating programming on another station in that same service if the two stations serve substantially the same area.  See our article here on the FCC’s questions about possible changes in this rule.  Comments are also due on the FCC’s inquiry as to whether to allow “Franken FMs” – LPTV stations on Channel 6 providing analog audio programming that can be received on FM 87.7 – to continue to generate an analog audio signal to continue the FM services after the otherwise mandatory end of analog television broadcasting on July 13, 2021.  See our article here on some of the issues raised by the FCC, and the Federal Register publication of this notice here setting the comment dates.

Also announced over the holidays was the FCC’s procedural reaction to the Third Circuit decision overturning its 2017 changes in the ownership rules – including the repeal of the broadcast-newspaper cross-ownership rules and the rules that allowed TV duopolies even in markets with fewer than 8 independent voices from those owning or programming stations in that market.  With these and other rules back in effect after the Court’s decision, the FCC now requires applicants for a renewal of license or for the acquisition of a station through an assignment or transfer to demonstrate that they meet the ownership restrictions that were in effect prior to the 2017 changes.  For more details on what is now required, see our post here.

It is also worth reminding stations that they should have updated their EAS certifications that expired back in November to authenticate EAS alerts transmitted through the IPAWs online alert system.  The updated certification to authenticate these alerts was late in coming out, so the FCC gave stations until January 7 to have their systems updated.  If you can’t meet that deadline, an STA is required.  See our article here on this issue.

Finally, stations need to remember that we are in political season.  Lowest unit rate windows are already open for ads targeting voters in Iowa and New Hampshire.  These rates kick in on January 8 for the Democratic caucuses in Nevada, and on January 15 for the South Carolina primary.  Only 3 days later, lowest unit rates for Presidential primaries or caucuses begin in Super Tuesday states including Alabama, American Samoa (D), Arkansas, California, Colorado, Maine, Massachusetts, Minnesota, North Carolina, Oklahoma, Tennessee, Texas, Utah, Vermont, and Virginia.  Later this month, lowest unit charge windows for these presidential contests open in Puerto Rico, Hawaii, Idaho, Michigan, Mississippi, Missouri, North Dakota (D), Washington, US Virgin Islands, West Virginia, Guam (R), N. Mariana Islands (D) and Wyoming.  Watch for the exact dates in your state – as well as the lowest unit rate windows for Congressional, state and local races in your communities.  See our article here on the opening of the lowest unit rate windows.

Obviously, there are plenty of deadlines and other regulatory obligations coming up early this year.  This is but a summary of some of the obligations we see as generally significant to broadcasters – but check with your own counsel to see if there are other deadlines that apply to your own station.  Happy New Year – and good luck navigating the regulatory landscape of 2020.

January Regulatory Dates for Broadcasters – Quarterly Issues/Programs Lists, Children’s Television Annual Report, EEO, License Renewal, Political Rate Windows, FM Auction Dates and More

Delivered... David Oxenford | Scene | Thu 19 Dec 2019 5:24 pm

With many Americans using the holiday season to rest and recharge, broadcasters should do the same but not forget that January is a busy month for complying with several important regulatory deadlines for broadcast stations.  These include dates that regularly occur for broadcasters, as well as some unique to this month.  In fact, with the start of the lowest unit rate windows for primaries and caucuses in many states, January is a very busy regulatory month.  So don’t head off to Grandma’s house without making sure that you have all of your regulatory obligations under control.

One date applicable to all full-power stations is the requirement that, by Friday, January 10, 2020, all commercial and noncommercial radio and television stations must upload to their online public file their quarterly issues/programs list for the period covering October 1 – December 31, 2019.  The issues/programs list demonstrates the station’s “most significant treatment of community issues” during the three-month period covered by each quarterly report.  We wrote about the importance of these reports many times (see, for instance, our posts here and here).  With all public files now online, FCC staff, viewers or listeners, or anyone with an internet connection can easily look at your public file, see when you uploaded your Quarterly Report, and review the contents of it.  In the current renewal cycle, the FCC has issued two fines of $15,000 each to stations that did not bother with the preparation of these lists (see our posts here and here on those fines).  In past years, the FCC has shown a willingness to fine stations or hold up their license renewals or both (see here and here) over public file issues where there was some but not complete compliance with the obligations to retain these issues/programs lists for the entire renewal term.  For a short video on the basics of the quarterly issues/programs list and the online public inspection file, see here.

On January 1, 2020 and January 16, 2020, radio stations in Arkansas, Louisiana and Mississippi must air pre-filing announcements tied to their license renewal filing date of February 3, 2020.  Radio stations in Alabama and Georgia must air post-filing announcements about their license renewals that were due by December 2, 2019.  Stations are required to air pre-filing announcements in the two months prior to the month in which their license renewal application is due, and to air post-filing announcements in the three months after their renewal application is due.

One of the biggest changes of the last year to the broadcast regulatory landscape is the modification of the programming and reporting requirements for children’s television programming.  Stations are no longer required to submit quarterly reports documenting their compliance with the children’s TV rules.  Instead, reporting will now be done annually, and stations must file their first annual report—FCC Form 2100, Schedule H—electronically through LMS by Thursday, January 30, 2020.  For a deeper look at how to comply with the new programming and reporting changes, see our posts here, here, here, and here.  We are still waiting for further guidance from the FCC about the quarterly certifications regarding compliance with commercial limits and websites during children’s programming.  Unless the FCC staff issues guidance to the contrary, stations should probably plan on uploading those certifications by January 10, 2020.

By Friday, January 31, 2020, commercial and noncommercial stations must complete and submit through LMS their Biennial Ownership Report (Form 323 for commercial stations; Form 323-E for noncommercial stations).  The reports were originally due by December 1, 2019, but the FCC extended the deadline to the end of January to update LMS.  The information in the report needs to reflect the licensee’s ownership as of October 1, 2019.  Don’t wait until the last minute to file these reports, as there can be technical slowdowns in the LMS system when there are major filing dates.  The January 31 deadline is already an extended one and unlikely to be further extended, so make sure that you meet the FCC’s deadline.

The repacking of the broadcast TV band, made necessary by the FCC’s broadcast incentive auction, continues across the country.  Stations assigned to Phase 7 must complete the transition to their new channels by January 17, 2020.  One day later, on January 18, 2020, stations assigned to Phase 8 of the repack may begin testing and operating on their new channels.

As we wrote earlier this week, Presidential primaries and caucuses are right around the corner, including the election-heavy day in March often dubbed Super Tuesday.  This means stations in more than two dozen states will soon find themselves within the 45-day primary/caucus political window, which brings with it special obligations like lowest unit rates for candidates.  With lowest unit charge windows opening on December 20, 2019 (Iowa), December 28, 2019 (New Hampshire), January 8, 2020 (Nevada), January 15, 2020 (South Carolina), January 18, 2020 (Alabama, American Samoa, Arkansas, California, Colorado, Maine, Massachusetts, Minnesota, North Carolina, Oklahoma, Tennessee, Texas, Utah, Vermont, and Virginia), January 23, 2020 (Puerto Rico), January 25, 2020 (Hawaii, Idaho, Michigan, Mississippi, Missouri, North Dakota, and Washington State), January 27, 2020 (U.S. Virgin Islands and West Virginia), and January 29, 2020 (Guam, N. Mariana Islands and Wyoming), stations should plan ahead to be sure station employees understand the requirements that go along with political advertising, including lowest unit charge and the expanded public file disclosure obligations issued by the FCC in mid-October.  For more guidance on navigating election season, see our Political Broadcasting Guide for Broadcasters.

Speaking of the expanded public file disclosures, earlier this month, we wrote about the FCC seeking comment on a petition for reconsideration of those new requirements filed by the National Association of Broadcasters and a group of TV station owners.  The petition asks the FCC to reconsider imposing the political issue ad disclosure rules that it clarified following complaints against 11 TV stations by two public interest groups.  The clarified rules require broadcasters who accept ads on federal issues of national importance to disclose in their public file each and every federal issue and federal candidate mentioned in the ad, many times requiring the identification of multiple candidates and issues for each ad.  Additionally, broadcasters must now specifically reach out to the organization sponsoring an issue ad or the agency who placed the ad for the names of any additional officers or directors, if the organization only submitted one name as constituting the entire board in its initial disclosure.  Comments in this proceeding are due by Monday, December 30, 2019, with the FCC just yesterday issuing an order extending the reply comments deadline to January 28, 2020.

Those looking to file for one of the 130 new FM channels due to be auctioned off by the FCC in April 2020 can begin to file the “short-form” applications needed to participate in the auction in the window opening on January 29 and closing at 6 PM Eastern Time on February 11.  We wrote about the upcoming auction here and here.  The FCC will impose a filing freeze on all FM minor changes during this short-form window, so plan accordingly if you need to file a minor change application in the near future.

Commercial and noncommercial (note that special rules apply to public radio) stations that stream music programming must pay the minimum fee to SoundExchange by Friday, January 31, 2020.  For commercial stations, the minimum fee is $500 per station/channel, not to exceed $50,000.  For noncommercial stations, the minimum fee is $500 per station/channel, which covers the first 159,140 aggregate tuning hours per month.  For more information on the minimum fee, including how to pay it, and other 2020 rate information, visit the SoundExchange website here.

Looking ahead on the calendar to early February, we mentioned above the February 3 license renewal filing deadline for radio stations (including LPFMs) in Arkansas, Louisiana and Mississippi.  Station employment units (a station employment unit is a station or group of commonly owned stations in the same market that share at least one employee) with five or more full-time employees in several states have EEO reports due Saturday, February 1, 2020.  Stations must place their EEO report in their public file on the anniversary of their license renewal filing deadline.  So stations in Kansas, Nebraska, New Jersey, New York, Arkansas, Louisiana, Mississippi and Oklahoma must have the reports in their files by Saturday, February 1, 2020.

As always, we have just highlighted some of the upcoming regulatory deadlines for January.  Check with your own station’s counsel for more information about deadlines that may apply to your operation.

Election Season in High Gear for Broadcasters – Lowest Unit Rate Windows to Begin in Iowa This Week, New Hampshire Next and Other States Soon to Follow

Delivered... David Oxenford | Scene | Wed 18 Dec 2019 4:45 pm

While political broadcasting never seems to be totally off the airwaves, the 2020 election season is about to click into high gear, with the window for lowest unit rates to begin on December 20 for advertising sales in connection with the January Iowa caucuses. That means that when broadcasters sell time to candidates for ads to run in Iowa, they must sell them at the lowest rate that they charge commercial advertisers for the same class of advertising time running during the same time period. For more on issues in computing lowest unit rates, see our articles here, here and here (this last article dealing with the issues of package plans and how to determine the rates applicable to spots in such plans), and our Political Broadcasting Guide, here.

The beginning of the LUR (or LUC for “lowest unit charge”) window in Iowa is but the first of a rapid many political windows that will be opening across the country as the presidential primaries move across the country. These windows open 45 days before the primary election (or caucus, in states where there is a caucus system that is open to the public for the selection of candidates) and 60 days before general elections. For the Presidential election, New Hampshire of course comes next, with their LUR window opening on December 28.   January will bring the opening of a slew of LUR windows for states with primaries and caucuses in late February and early March, including all of the Super Tuesday states. But it is important to remember that these are not the only LUR windows that broadcasters will have to observe in 2020.

In most states, there will be a separate primary window in which contenders for seats in the US House of Representatives will be selected. A third of the Senate is also up for election – meaning primaries in most of those states. Plus there will be primaries for state and local elections – and in some states municipal primaries and elections may be held at times different than those for the US Congress and even different from other state offices. For each of these primaries held at different times, there will be a window during which lowest until charges will apply, but only to those candidates running in the race to be decided in that particular election.

As we have noted before (see our articles here and here), state and local candidates do not need to be sold time by broadcast stations – the “reasonable access” rules don’t apply. But once a station decides to sell them advertising time, all of the other political rules apply – including lowest unit rates. The right to these rates cannot be waived by state and local candidates.

Even before the windows open in your state, your station needs to engage in significant planning to make sure that you are charging candidates the correct rates and observing all of the other political advertising rules. We’ve written about some of those issues here. Reasonable access and equal opportunities apply even outside the window. That means that federal candidates have a right to buy time on your stations, even outside the window. Once they buy time, the “no censorship” rules apply (see our articles here and here), meaning that you cannot censor a candidate’s message. Equal opportunities means that if you sell ads to one candidate, you must sell them to another. And if you have a candidate on the air outside of an exempt program (see our articles here and here on exempt programs), you must give the other candidate equal time if they request it within 7 days. That goes for on-air appearances of station employees who decide to run for office (see our articles herehere and here) and for commercial advertisers who appear in their own spots and become political candidates (see our article here).

Third party ads, from PACs, political parties and other advocacy groups will no doubt accompany the increase in candidate spending. These ads, while not entitled to lowest unit charges, nevertheless present their own unique challenges. As these ads can be edited or rejected based on their content, stations can theoretically have liability for their content if that content is defamatory or raises other legal issues (see our article here on dealing with challenges to the truth of these third-party political ads). Plus, the FCC’s recent decision about the public file obligations that go with third-party political ads (and other federal issue ads) provide yet another layer of complexity for broadcasters (see our articles here and here).

These are just some of the issues that stations will need to deal with as the election season kicks into high gear. So study up, get prepared, and do your best to cope with the upcoming onslaught of political advertising that may be coming your way.

Court of Appeals Finds Maryland Law Imposing Political Disclosure Obligations on Online Platforms to be Unconstitutional – Finding Different Treatment of Broadcasters is Justified

Delivered... David Oxenford | Scene | Wed 11 Dec 2019 5:51 pm

Late last week, the US Court of Appeals for the Fourth Circuit issued a decision in a case called Washington Post v. David J. McManus, upholding the ruling of the US District Court finding that the State of Maryland’s attempts to impose political advertising reporting obligations on online platforms to be an unconstitutional abridgment of these companies’ First Amendment rights.  The suit was brought by the Washington Post and several other companies owning newspapers with an online presence in the State.  Their arguments were supported by numerous other media organizations, including the NAB and NCTA.  The Maryland rules required that online advertising platforms post on their websites information about political ads within 48 hours of the purchase of those ads.  That information had to be maintained on the website for a year and kept for inspection by the Maryland Board of Elections for a year after the election was over.  The appeals court concluded that the obligation to reveal this information was forcing these platforms to speak, which the court found to be just as much against the First Amendment as telling them to not speak (e.g., preventing them from publishing).  As the court could find no compelling state interest in this obligation that could not be better met by less restrictive means, the law was declared unconstitutional.

The Maryland law required the following disclosures on the website of a platform that accepted political advertising:

  • the ad purchaser’s name and contact information;
  • the identity of the treasurer of the political committee or the individuals exercising control over the ad purchaser; and
  • the total amount paid for the ad.

In addition, the platform had to maintain the following information for a year after the election and make it available to the State authorities upon request:

  • the candidate or ballot issue to which the qualifying paid digital communication relates and whether the qualifying paid digital communication supports or opposes that candidate or ballot issue;
  • the dates and times that the qualifying paid digital communication was first disseminated and last disseminated;
  • a digital copy of the content of the qualifying paid digital communication;
  • an approximate description of the geographic locations where the qualifying paid digital communication was disseminated;
  • an approximate description of the audience that received or was targeted to receive the qualifying paid digital communication; and
  • the total number of impressions generated by the qualifying paid digital communication

The appeals court found that this “compelled speech” forced these platforms to “speak” when they otherwise might not want to – the “speaking” being the mandatory publication of information on their website.  The court also pointed to the potential of these rules to chill political speech, by compelling companies to reveal information about those who might otherwise not want to disclose that they are taking a position on a controversial issue or election.  The court found that anonymity in political speech was part of a long tradition in the US, and it could subject those buying the political ads to harassment.  Also, the added burden of collecting this information could cause platforms to reject political ads in favor of advertising where no such burden was imposed. 

In the court’s view, the State’s goals of combating foreign interference in US elections and providing more transparency about political advertising could be met by requiring the disclosure of information to the State by the purchasers of the ads themselves, rather than by imposing the obligations on the platforms that accepted that advertising.  Moreover, the court could not see how the disclosure obligations would stop foreign meddling in elections, especially as there had been no showing of any attempts by foreign entities to buy ads on the vast majority of the platforms that would be subject to the laws, such as small newspapers that publish in the State and post their news on their websites.  Given the burden, and the more direct path to achieve the required disclosures directly from the political advertisers themselves, the court found that the state interests did not justify this intrusion into First Amendment rights.

Interestingly for broadcast readers, Maryland attempted to justify its rules by analogizing them to the rules imposed on radio and television stations (and on other certain other FCC-regulated entities) which require disclosures about political advertising in each station’s online public file (see, for instance, our articles here and here on the latest FCC-required disclosures on political issue ads, and our article here on the general political file obligations).  The court, relying on old precedent including the Red Lion case that justified increased broadcast regulation because of the scarcity of the spectrum, found that FCC regulation did not justify the State’s intrusion into this area.  Given the virtually unlimited capacity of the Internet, the scarcity doctrine justifying broadcast regulation was seen by the court as being inapplicable to online platforms.  The court also suggested that broadcasters did not have the same interest in speech as did a newspaper, suggesting that broadcast stations were not as much “expressive products” as were the newspaper plaintiffs in this case, because in the court’s view broadcasters tend to retransmit programming developed by others.  I know many broadcasters would certainly dispute that characterization (and, even if true for newspapers, it hardly seems true for other online platforms like Facebook and Google who would also be subject to Maryland’s regulations), but it was nevertheless advanced by the court in justifying this disparity in regulation.  (See our articles here and here about other disparate treatment of broadcast and online platforms in their treatment of political ads).

The impact of this decision could be wide-ranging.  As we wrote here, several states, including New York and Washington State, have laws adopting similar requirements for the disclosure of information about political advertising on online platforms (and, at least in the case of Washington, even on traditional media platforms).  The Fourth Circuit’s analysis might be employed to question that regulation.  Federal efforts, through various proposals, have advanced similar regulation on a nationwide basis.  The First Amendment analysis by this appeals court would suggest that these efforts may also be subject to challenge.  Watch carefully as this decision could lead to far more policy debate in coming months – especially as we are likely to see a massive growth in online political advertising in 2020.  We are sure that this debate about the disclosure of online political spending has not ended with this decision.

Court of Appeals Finds Maryland Law Imposing Political Disclosure Obligations on Online Platforms to be Unconstitutional – Finding Different Treatment of Broadcasters is Justified

Delivered... David Oxenford | Scene | Wed 11 Dec 2019 5:51 pm

Late last week, the US Court of Appeals for the Fourth Circuit issued a decision in a case called Washington Post v. David J. McManus, upholding the ruling of the US District Court finding that the State of Maryland’s attempts to impose political advertising reporting obligations on online platforms to be an unconstitutional abridgment of these companies’ First Amendment rights.  The suit was brought by the Washington Post and several other companies owning newspapers with an online presence in the State.  Their arguments were supported by numerous other media organizations, including the NAB and NCTA.  The Maryland rules required that online advertising platforms post on their websites information about political ads within 48 hours of the purchase of those ads.  That information had to be maintained on the website for a year and kept for inspection by the Maryland Board of Elections for a year after the election was over.  The appeals court concluded that the obligation to reveal this information was forcing these platforms to speak, which the court found to be just as much against the First Amendment as telling them to not speak (e.g., preventing them from publishing).  As the court could find no compelling state interest in this obligation that could not be better met by less restrictive means, the law was declared unconstitutional.

The Maryland law required the following disclosures on the website of a platform that accepted political advertising:

  • the ad purchaser’s name and contact information;
  • the identity of the treasurer of the political committee or the individuals exercising control over the ad purchaser; and
  • the total amount paid for the ad.

In addition, the platform had to maintain the following information for a year after the election and make it available to the State authorities upon request:

  • the candidate or ballot issue to which the qualifying paid digital communication relates and whether the qualifying paid digital communication supports or opposes that candidate or ballot issue;
  • the dates and times that the qualifying paid digital communication was first disseminated and last disseminated;
  • a digital copy of the content of the qualifying paid digital communication;
  • an approximate description of the geographic locations where the qualifying paid digital communication was disseminated;
  • an approximate description of the audience that received or was targeted to receive the qualifying paid digital communication; and
  • the total number of impressions generated by the qualifying paid digital communication

The appeals court found that this “compelled speech” forced these platforms to “speak” when they otherwise might not want to – the “speaking” being the mandatory publication of information on their website.  The court also pointed to the potential of these rules to chill political speech, by compelling companies to reveal information about those who might otherwise not want to disclose that they are taking a position on a controversial issue or election.  The court found that anonymity in political speech was part of a long tradition in the US, and it could subject those buying the political ads to harassment.  Also, the added burden of collecting this information could cause platforms to reject political ads in favor of advertising where no such burden was imposed. 

In the court’s view, the State’s goals of combating foreign interference in US elections and providing more transparency about political advertising could be met by requiring the disclosure of information to the State by the purchasers of the ads themselves, rather than by imposing the obligations on the platforms that accepted that advertising.  Moreover, the court could not see how the disclosure obligations would stop foreign meddling in elections, especially as there had been no showing of any attempts by foreign entities to buy ads on the vast majority of the platforms that would be subject to the laws, such as small newspapers that publish in the State and post their news on their websites.  Given the burden, and the more direct path to achieve the required disclosures directly from the political advertisers themselves, the court found that the state interests did not justify this intrusion into First Amendment rights.

Interestingly for broadcast readers, Maryland attempted to justify its rules by analogizing them to the rules imposed on radio and television stations (and on other certain other FCC-regulated entities) which require disclosures about political advertising in each station’s online public file (see, for instance, our articles here and here on the latest FCC-required disclosures on political issue ads, and our article here on the general political file obligations).  The court, relying on old precedent including the Red Lion case that justified increased broadcast regulation because of the scarcity of the spectrum, found that FCC regulation did not justify the State’s intrusion into this area.  Given the virtually unlimited capacity of the Internet, the scarcity doctrine justifying broadcast regulation was seen by the court as being inapplicable to online platforms.  The court also suggested that broadcasters did not have the same interest in speech as did a newspaper, suggesting that broadcast stations were not as much “expressive products” as were the newspaper plaintiffs in this case, because in the court’s view broadcasters tend to retransmit programming developed by others.  I know many broadcasters would certainly dispute that characterization (and, even if true for newspapers, it hardly seems true for other online platforms like Facebook and Google who would also be subject to Maryland’s regulations), but it was nevertheless advanced by the court in justifying this disparity in regulation.  (See our articles here and here about other disparate treatment of broadcast and online platforms in their treatment of political ads).

The impact of this decision could be wide-ranging.  As we wrote here, several states, including New York and Washington State, have laws adopting similar requirements for the disclosure of information about political advertising on online platforms (and, at least in the case of Washington, even on traditional media platforms).  The Fourth Circuit’s analysis might be employed to question that regulation.  Federal efforts, through various proposals, have advanced similar regulation on a nationwide basis.  The First Amendment analysis by this appeals court would suggest that these efforts may also be subject to challenge.  Watch carefully as this decision could lead to far more policy debate in coming months – especially as we are likely to see a massive growth in online political advertising in 2020.  We are sure that this debate about the disclosure of online political spending has not ended with this decision.

More on Required Public File Disclosures of Issue Ads – Comment Dates on NAB Petition for Reconsideration and Another Admonition for Inadequate Disclosures

Delivered... David Oxenford | Scene | Thu 5 Dec 2019 5:23 pm

The FCC on Friday issued a Public Notice seeking comment on a petition for reconsideration by the NAB and several broadcast groups seeking review of the FCC’s October decision, deemed a “clarification” of the public file disclosure rules for federal political issue ads requiring that all candidates and issues mentioned in any political issue ad be disclosed in the political section of the online public file (see our articles here on the reconsideration filing and here on the FCC’s October decision). The Public Notice sets the deadline for comments on the NAB petition as December 30.

The Public Notice again states that the FCC’s October decision dealt only with issue ads – and not ads from the authorized campaign committees for legally qualified candidates. As we wrote in our article on the reconsideration filing, that was the way I interpreted the FCC decision, based on statements of FCC staff when specifically asked whether the decision applied to candidate ads during the course of a recent webinar that I was moderating, where the staff members cited (and read) footnote 24 in the October decision. That footnote is the one cited in the Public Notice, and states that the October decision applied only to issue ads.

This week, the FCC also released another decision admonishing two broadcasters for the same kinds of public file problems as addressed in its clarification decision in October. In this week’s decision, in connection with issue ads addressing a special election for a vacant seat in Georgia’s 6th Congressional District, the FCC found the stations’ public file disclosures wanting. In one case, while the ad buyers did not identify the issue or election addressed by the ads, the station did go so far as to handwrite on the public file disclosure forms (in this case the NAB PB-18 form) “GA CD6” – referring to the 6th Congressional District of Georgia – the race to which the ad was targeted. The FCC found that disclosure to be inadequate, as members of the public would not necessarily know that “GA CD6” would refer to an election for the 6TH Congressional District. The Commission also found the public file disclosure inadequate as it did not specifically name the candidates attacked or supported, nor did the disclosures mention some of the federal issues mentioned in the ad (specifically, in one ad, taxes). The other station had similar issues in not identifying all the candidates and issues identified in the ads.

This case once again emphasizes the FCC’s concern about the complete disclosure of all of the candidates, political races, and issues mentioned in any federal issue ad. While we wait for the FCC to act on the NAB petition, the rules set out in the October clarification remain in effect – so take steps to comply now, and discuss with your own legal counsel how to interpret the meaning of these FCC decisions.

NAB Seeks Reconsideration of FCC’s Clarification of Issue Advertising Public Disclosure Requirements – Rules Remain in Effect Though Some Clarification Provided

Delivered... David Oxenford | Scene | Mon 25 Nov 2019 5:55 pm

Last month, the FCC issued what it termed a “clarification” of the obligations of broadcasters to disclose in their public inspection files each and every candidate and issue discussed in any Federal issue ad.  We wrote about the Clarification here.  That decision prompted many questions among broadcasters as to how they would comply with the requirement to uniformly identify every issue in political ads, when that judgement might well be quite subjective.  The National Association of Broadcasters apparently agreed, and filed a Petition for Reconsideration of the Clarification, available here.  Hearst Television, Graham Media, Nexstar, Fox, Tegna, and Scripps joined the NAB in filing the Petition.

The NAB’s Petition raises numerous issues about the FCC decision.  It suggests that the Commission did not have the power to make what most in broadcasting thought was a change in the rules without first soliciting public comment on the proposed changes.  The Petition also argues that the Clarification sets up requirements that will be almost impossible to meet.  The FCC stated that “a political issue of national importance” (which is what an issue ad must discuss in order to trigger the disclosure obligations) includes anything pending before Congress.  The NAB asks how a broadcaster is supposed to know about every issue that may be pending before Congress?  The NAB also expresses concern about the catch-all determination in the Clarification stating that political issues of national importance can go beyond just pending legislation or federal political candidates to include any political issue that is subject to discussion and debate at a national level.  The NAB argues that this could encompass almost anything except the most hyperlocal issue (e.g., a school bond issue).  All sorts of advertising could end up being swept up into this definition. 

The FCC suggests that the definition be significantly narrowed and focus only on ads addressing national political actors in a position to take actions on a national stage.  That would also avoid the obligation imposed by the Clarification to treat state issue ads as Federal issue ads if they mention federal issues (e.g., a PAC ad attacking a candidate for governor based on his or her past record in Congress, or his or her lack of support for the President).

The NAB’s Petition also asks for a clarification as to whether the decision applies to candidate ads, as well as those from third-party buyers (e.g., PACs, unions, political parties, corporations, and other advocacy groups).  To some extent, this issue was clarified in a webinar on political broadcasting that I conducted for 16 state broadcast associations on November 21.  There, two representatives of the FCC’s Media Bureau Political Programming Staff, when asked if the Clarification applied to candidate as well as issue ads, pointed to footnote 24 in the Clarification which states,

[s]ection 315(e)(1) of the Act requires licensees to maintain records for two types of requests for the purchase of political advertising time.  The first type concerns requests for advertising time that are “made by or on behalf of a legally qualified candidate for public office.”  47 U.S.C. § 315(e)(1)(A).  The second type concerns requests for advertising time by all other persons and which communicate a message relating to “any political matter of national importance.”  47 U.S.C. § 315(e)(1)(B).  The complaints that are the subject of this Order relate to the second type of request.

To me, that reference to footnote 24 shows that the decision was intended only to address issue ads, not those bought by candidates or their authorized campaign committees.  Obviously, ask your own counsel for guidance on this and other issues about the FCC’s Clarification.

While the NAB’s Petition raises many important issues, the Clarification remains in effect.  The Commission took over two years to issue the Clarification, after rescinding previous advice given on these issues by the FCC’s Media Bureau (see our article here).  While we would hope that consideration of the NAB’s Petition will not take that long, these are complicated issues that may well take time to review.  In the interim, stations must do their best to understand the requirements of the Clarification and implement those requirements now in their day-to-day operations.

Twitter Bans Political Ads – Doing What Broadcasters are Forbidden to Do

Delivered... David Oxenford | Scene | Mon 4 Nov 2019 5:26 pm

It seems like every other week, there is a story about an online media giant making changes in their rules that govern political advertising on their platform – and being either praised or condemned for doing so. We recently wrote about the controversy over Facebook deciding to not fact-check candidate ads, and how Congress itself requires by statute that broadcast stations take that same position. Broadcast stations are not allowed to censor ads from legally qualified candidates so, except in very limited circumstances where the ads may be criminal in nature (and not where they might just give rise to civil claims, like in the case of defamation or copyright infringement), broadcasters cannot reject ads based on their content. The right of a person being defamed in an ad for redress of any civil claim they may have is against the candidate who sponsored the ad, not against the broadcaster. Last week brought the news that Twitter has decided to ban political ads from its platform. Broadcasters, on the other hand, have no ability to ban ads for Federal candidates, as Congress has legislated a right of access to the airwaves where broadcasters cannot refuse to run political advertising from any Federal candidate.

That right of reasonable access, written into Section 312 of the Communications Act, requires that broadcasters give Federal candidates access to all classes of advertising time sold on a broadcast station, and that access be provided in all parts of the broadcast day. See our post here for more information about that reasonable access requirement, and our post here on the limited exception accorded for special events with limited advertising inventory (like the Super Bowl), where the provision of ads to one side might be problematic as there would be no opportunity for an opposing candidate to find an equivalent opportunity to advertise, and because of the potential disruption to commercial advertising on these stations given the limited availability of advertising breaks in such programs.

The reasonable access requirement is imposed on all commercial broadcast stations. Its applicability to noncommercial stations was repealed when candidates started to demand free time on NPR affiliates (including one here in the DC region). It has never applied to cable systems – and certainly does not apply to online media platforms. It has also raised interesting issues about requiring access for some Federal candidates who, because of the no censorship provision of the rules that we wrote about in connection with the Facebook ads, decide to demand time to air ads containing content that reasonable broadcasters would prefer to reject, but have to run because of the interplay of these two rules imposed on broadcasters (see, for instance, our articles here, here and here).

The mandated access to broadcast stations is one more way in which broadcasters, in dealing with political advertising, are treated differently than are their online competitors. While there have been many calls to regulate the political communications obligations of online platforms in the same way as broadcasters are regulated, those making these calls need to be aware of just how broadcasters are regulated as many of those regulations would likely never be tolerated in an online world.

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