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

This Week in Regulation for Broadcasters: May 8, 2021 to May 14, 2021

Delivered... David Oxenford | Scene | Sun 16 May 2021 3:28 pm

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

  • In a speech to the Media Institute, FCC Commissioner Starks spoke of the importance of diversity in media ownership and how it should be considered in making any decisions on revisions to the media ownership rules. In addition, the Commissioner stated that a proposal is now circulating among the Commissioners to regularly gather details from broadcasters on the race and gender of their employees.  That information has not been collected for almost 20 years after questions were raised about the constitutionality of the use of such data in assessing broadcasters hiring practices.  The text of the Commissioner’s speech is here.
  • Commissioner Carr issued a statement arguing that the Commission should not interfere with a broadcast station’s newsroom decisions following a complaint filed by the Baltimore City State’s Attorney’s Office about a TV station’s coverage of its office. [Complaint and Carr Statement]. We looked at this complaint and similar cases and the role of the First Amendment in broadcast regulation, here.
  • The NAB released a study prepared by BIA Advisory Services finding that social media and other online platforms underpay broadcasters by billions of dollars each year for use of their content, undermining the economic support for local news that these stations provide. [NAB Statement and Study].  NAB President Gordon Smith at the NAB Leadership Conference this week mentioned this report and Congressional proposals to remedy this situation. [Smith Statement].  We wrote here about the details of the pending legislative proposal to give broadcasters more bargaining power with tech platforms.
  • The regulation of online platforms was much discussed at the Leadership Conference and has otherwise been in the news. In another article, we wrote about how this regulation (including reforms of Section 230 which insulates online platforms from liability for content posted by others) could affect advertising on such platforms.
  • As we noted in last week’s update, the FCC released a Notice of Proposed Rulemaking that sets out its tentative plan for assessing broadcast regulatory fees to be collected before October 1 of this year, with comments due on or before June 3 and reply comments due by June 18. (Federal Register). The FCC’s proposals include increases in some broadcast fees and questions as to whether the Commission needs to accommodate broadcasters and other regulated companies who experienced economic hardship because of the pandemic.  The Commission this week released several decisions by its Office of Managing Director on individual requests for waivers of the payment of annual regulatory fees – decisions that made clear the high burden that an applicant faces in receiving such a waiver. [Summary of denials, full decisions available at links in FCC’s Daily Digest]
  • The FCC’s Media Bureau this week released announcements of consent decrees with nine different radio broadcasters over late uploads to their online political file disclosed in their license renewal applications. The FCC in the previous week announced ten additional consent decrees with other broadcasters.  The consent decrees mandate training programs for station employees on political file obligations and two years of regular reporting requirements where these broadcasters must provide specifics on their compliance to the FCC.  These consent decrees show just how seriously the FCC takes violations of a broadcaster’s obligations to immediately upload information about political advertising orders to their online public inspection files.  We wrote about political consent decrees and what they require here.

The First Amendment’s Role in Broadcast and Online Regulation

Delivered... David Oxenford | Scene | Tue 11 May 2021 4:52 pm

Everyone knows that a fundamental principle of American democracy is the First Amendment – guaranteeing many freedoms to US citizens including freedom of the press and freedom of speech.  It is one of those concepts that underlies our society, but is often mentioned only in passing, and rarely considered in practice.  Few people – even broadcasters and other media companies – have cause to think about First Amendment principles in their day-to-day operations.  The concepts embodied by the First Amendment are almost a given – except when they are not.

In our politically polarized society, there are more and more arguments made about regulation of speech in various contexts – often made without significant consideration of those First Amendment principles.  On the broadcast side, we have seen Commissioner Carr react to two cases where the FCC has seemingly been called on to regulate the speech (or anticipated speech) of broadcasters.  One case involved a call to deny the sale of a broadcast station allegedly based on a perceived change in the political orientation of its programming from liberal to conservative (see the Carr statement here), and another calling for the FCC to investigate a TV station in Baltimore for allegedly being too focused on investigations into a local government official (see the Carr statement here and an NAB statement also weighing in on the controversy here).  While there may well be issues in each case that go beyond the question of the proposed speech of the broadcasters involved, the issue of whether the FCC can get involved in the regulation of political positions taken by broadcasters is one that is addressed both by statute and past FCC precedent.

We have written many times about how the FCC is restricted by the First Amendment and Section 326 of the Communications Act from regulating the speech of broadcasters.  Section 326 states:

Nothing in this chapter shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication.

The FCC has weighed the impact of the First Amendment and Section 326 in numerous cases and found that these principles keep it out of content regulation (with certain limited exceptions, such as indecency and obscenity).  This hands-off policy has been a consistent theme through the FCC’s decisions in a variety of areas.  See, for instance our article last year denying complaints about stations airing President Trump’s news conferences based on allegations that they contained false information that violated the broadcast hoax rule;  our article here on the FCC’s reluctance to get involved in assessing the truth of attacks made in political ads; our articles here and here on the FCC’s policy that it does not regulate the format of broadcast stations; the FCC’s decision to end enforcement of the Fairness Doctrine (see our article here); its denial of previous requests that it penalize a licensee for allegedly airing fake news reports (see our article here); and its decisions to not substitute its judgement for that of the licensee in cases where the FCC was asked to deny renewal applications based on a petitioner’s assessment that the programming selected by the licensee did not best serve the public interest (see our article here).

This consistent position keeps the FCC out of regulating the political speech of broadcasters.  But these same issues are now being raised by both liberals and conservatives in the context of regulating online speech.  We have seen calls for the regulation of Internet platforms that do not limit the speech of some individuals (see, for instance, the controversy last week around the continued ban of former President Trump on Facebook), as well as calls from others to forbid these platforms from blocking individuals, particularly where these platforms provide access to some but not all candidates for political office.  Because online platforms are private companies with their own free speech rights, including the right not to be associated with certain speech of others or with hate speech, it is not necessarily the same analysis as content regulation by government actors.  The First Amendment generally will not apply to the decisions of private online platforms in the same way that it does to government actors, like the FCC, which generally are barred from injecting themselves into content decisions.  But there are still calls for online regulation of these platforms – and we will delve into some of those arguments and their implications for the First Amendment in an article to be published in the near future.

Congressional Letter to FCC on CALM Act Violations Puts Focus on FCC Enforcement Issues

Delivered... David Oxenford | Scene | Mon 19 Apr 2021 3:51 pm

As we highlighted yesterday in our weekly summary of regulatory issues for broadcasters, last week saw a letter from Congresswoman Anna Eshoo to the FCC asking for the FCC to review the enforcement of the rules established by the CALM Act, which prohibits loud commercials on TV stations.  The letter cites news reports of thousands of complaints annually to the FCC since the rule’s adoption in 2012 without there ever having been an enforcement action against a station for any violation.  When the CALM Act was passed by Congress, there were many industry questions about how that law could be enforced, as there are many subjective judgments in assessing whether a commercial is louder than the program into which it is inserted (see our article here).  But, ultimately, the FCC adopted rules that were based on industry standards and most parties seemed to believe that they were workable (see our article here about the adoption of those rules).  Like many FCC rules, the CALM Act rules are complaint-driven, and even the article cited by Congresswoman Eshoo recognized the difficulty in assessing the merits of any complaint.

Nevertheless, with this letter and the publicity that it has received in the broadcast trade press, TV stations should carefully review their compliance with the CALM Act rules, as this publicity could signal that the FCC will turn its attention to this issue in the coming months.  In fact, with a Commission that is currently evenly divided between Democrats and Republicans until the vacant seat on the Commission is filled, enforcement of existing FCC rules may well be one place where the current Commission will turn its attention while more controversial (and potentially partisan) rule changes await FCC action.

We have obviously seen some more attention being paid to enforcement issues in recent months.  In addition to the consent decrees signed by hundreds of radio broadcasters for political file violations (see our articles here and here), there have been a recent spate of consent decrees entered into by broadcasters both noncommercial (see our article here) and commercial (see our mention here in one of our weekly updates) based on more general failures to maintain a complete and current online public inspection file.  We have also noted an uptick in questions about EEO performance raised in connection with license renewal application filings.  There have been enforcement inquiry letters sent by the FCC on other issues too, including EAS compliance.  We also noted the recent enforcement updates issued by the FCC reminding broadcasters of their obligations under FCC rules, including the one on sponsorship identification about which we wrote here.  Maybe it is just a perception, but enforcement issues seem to be a priority for the FCC.

Obviously, compliance with FCC rules should always be the highest of priorities among any participants in a heavily regulated industry like broadcasting.  But every now and then, the FCC seems to take steps to remind broadcasters of their obligations.  This seems to be one of those times – so broadcasters, take note.

This Week in Regulation for Broadcasters: April 10, 2021 to April 16, 2021

Delivered... David Oxenford and Adam Sandler | Scene | Sun 18 Apr 2021 1:22 pm

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

  • According to press reports, broadcasters should pencil in August 11, 2021 on their calendars for the next national test of the Emergency Alert System (EAS). Following the test, broadcasters will need to report to the FCC how their EAS equipment functioned and what, if any, problems were encountered relaying the test message.  This information will be used by the FCC in a report on the readiness of EAS in the event of an activation.
  • The FCC posted an online tutorial for parties interested in participating in Auction 109, the upcoming auction of 136 FM construction permits and 4 AM construction permits which will allow winning bidders to construct new radio stations. The tutorial is available for on-demand viewing on the “Education” tab of the Auction 109 website at http://www.fcc.gov/auction/109.  The window to apply for a construction permit is from 12:00 p.m. Eastern on April 28 to 6:00 p.m. Eastern on May 11.  We wrote about the auction, here.
  • Congresswoman Anna Eshoo (D-CA) wrote to Acting FCC Chairwoman Jessica Rosenworcel requesting that the agency look at the reported increase in complaints tied to the loudness of TV commercials and, if necessary, take enforcement action under the CALM Act. The letter cites press reports of thousands of consumer complaints to the FCC which never resulted in any enforcement action.  Eshoo sits on the House Energy and Commerce Committee, which has jurisdiction over the FCC, so stations should review CALM Act compliance as this may be an area of FCC review in coming months.  (Eshoo Letter)
  • We reminded broadcasters that, even outside of political windows, they must upload appropriate information to the political files folder in their FCC-hosted online public inspection file reporting on ads that run on their stations addressing controversial issues of public importance. (Broadcast Law Blog article).

Looking ahead to next week, earth stations operating in the C-Band that have been reported as no longer operational or that have not responded to communications from the C-Band Relocation Coordinator must act by April 19 and file with the FCC confirming their continuing operational status or their authorizations will be deleted from the FCC’s database and no longer protected.  While this deadline has been the subject of many trade press reports and some widely distributed memos from law firms, it actually affects only a handful of broadcasters.  Earth station operators that have filed for lump sum reimbursement or have otherwise been in contact with the Relocation Coordinator should not appear on the lists and have no April 19 filing obligation.  We posted the lists and wrote more, here, about the deadline.

Also next week, the FCC will hold its required monthly Open Meeting.  Broadcasters will be watching two agenda items in particular: the vote to adopt new rules for identification of programming that is sponsored by a foreign governmental entity and the vote to adopt a ten-application limit in the upcoming noncommercial, reserved band FM construction permit filing window.  We wrote briefly about these items, here.

Reminder: Issue Ads Require Public File Disclosures Even Outside Political Windows

Delivered... David Oxenford | Scene | Fri 16 Apr 2021 12:21 am

Back in January, we reminded broadcasters that state and local elections, even those held in “off-years” like 2021, still fall within the FCC’s political broadcasting rules.  Virtually all FCC rules, with the exception of reasonable access, apply to candidates for the local school board or town council just as they do for candidates for President – i.e., once you decide to accept an ad for a local candidate, then equal opportunities, lowest unit rates and online public file obligations all apply (see our article here for more information).  But in that article, we did not focus on political issue ads, which also raise their own FCC obligations, particularly with respect to the public file and sponsorship identification.

Unlike candidate ads, or ads dealing with federal issues, ads from non-candidate groups dealing with state and local elections and issues generally do not require price and schedule information to be uploaded to the online political file (unless those ads also mention a federal issue).  However, those ads do require that the public file contain an identification of the sponsor of the ad (address, phone number and contact person should be provided), plus a list of the ad sponsor’s executive officers or the members of its Board of Directors or similar governing board.  Under the FCC’s guidance from 2019 (see our article here), the FCC thinks that most of these organizations will have more than one governing board member, so if you are provided with the name of only one officer or board member, you are required to reach out to the sponsor or their representative and ask if there are others who should be listed.

State issue ads can come in all sorts of forms.  They can be taking positions on local issues (e.g., a zoning controversy or a school bond issue).  They can be dealing with a state-wide issue, like a ballot issue on gambling or cannabis matters, or a state legislative issue (e.g., write your representative in insert state capital here and tell them to vote against the bill to impose a tax on bottles or to vote for a funding proposal for the new sports stadium).  Or they can be supporting or opposing a state or local candidate who is not running for federal office (i.e., a candidate for any office other than President, the US Senate or the House of Representatives).  In any of these instances, the public file disclosure of the identity of the sponsor and the individuals who run it are required, even outside any political window.  They are required whenever these ads are run.

This difference in the way that candidate and issue ads are treated may make for some interesting results in state and local elections.  Third-party groups buying ads to support or oppose a state or local candidate do not have the detailed public file obligations that similar groups would have if supporting or opposing a candidate for the US House of Representatives or the US Senate.  For groups buying in state elections, as long as they do not bring up any federal issues, price information and details of the ad schedule do not appear to be required to be in the public file.  In contrast, a purchase by the candidates themselves (or by an authorized committee or organization) do require that the details as to price, class of time and schedule be posted to the online public file.

But note (as we mentioned in our article linked to above), non-candidate ads on state issues or elections can end up requiring all the price and schedule information, as well as a list of all the issues and candidates mentioned in the ad, where those ads mention any federal issues.  So if a non-candidate group attacks a candidate running for governor, and bases that attack on the candidate’s failure to support the Mexican border wall, or his or her votes for or against some policy while they were in Congress, this may well turn the state issue ad into a federal one – requiring all the detailed information required for a federal issue ad.

This obviously is a complicated issue, so be sure to talk to your own counsel and advisors, especially when ads contain claims that could be related to federal issues.  With the FCC’s review of online public files being such a priority this year, caution is always advised.

This Week in Regulation for Broadcasters – February 27, 2021 to March 5, 2021

Delivered... David Oxenford and Adam Sandler | Scene | Sun 7 Mar 2021 5:50 pm

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

  • Global Music Rights (GMR) has offered commercial radio stations an extension of their interim license for the public performance of musical compositions by the songwriters that it represents. The extension through January comes at a price – a 20% increase in the royalty fees.  GMR offers these interim licenses while its antitrust litigation with the Radio Music License Committee is pending, where RMLC seeks to put checks on GMR’s right to unilaterally set prices.  We covered the issues broadcasters should consider in weighing this extension on our blog, here.
  • With the July 13 deadline for analog low-power TV and TV translator stations to transition to digital or cease operations and for the expiration of many construction permits for new digital LPTV stations granted prior to the TV Incentive Auction, the FCC reminded broadcasters subject to the deadline that their opportunity to file for a one-time extension of not more than 180 days ends on March 15. We covered the FCC’s Public Notice on this issue in more detail, including a discussion of the as yet unresolved issue of “Franken FMs” (radio services on 87.7 FM provided by analog LPTVs on Channel 6), here.  (Public Notice)
  • By March 15, comments are due on the minimum bid amounts and procedures proposed for Auction 109, which will auction construction permits for 136 new FM stations and 4 AMs. Reply comments are due by March 22 and bidding is scheduled to begin July 27.  (Federal Register)
  • Two Florida LPFM stations received Notices of Violation for transmissions on frequencies other than as permitted by their license. Stations must exercise care to ensure that their transmission facilities do not produce spurious emissions outside their licensed frequencies.  These emissions can cause interference to other broadcasters and to non-broadcast radio communications (one of the stations investigated here was reviewed because of a complaint from the FAA).  Read more about this on our blog, here.  (Orlando Notice of Violation)  (Miami Notice of Violation)
  • A handful of Republican congressmen have introduced a bill to prevent the FCC from reinstating the Fairness Doctrine, which the FCC found unconstitutional in 1987. We wrote, here, about what the Fairness Doctrine was and why, even absent congressional action barring its reintroduction, it is unlikely to make a comeback.  (R.1409)
  • Following last fall’s order designed to bring more structure and transparency to the Executive Branch (Team Telecom) review of proposals for foreign ownership of communications facilities including broadcast stations, the FCC has set the dates by which interested parties can comment on the standardized questions applicants will be asked, including national security and law enforcement questions. Comments are due by April 2 and reply comments are due by April 19.  (Federal Register)

Everyone Seems to Want to Regulate Online Media – But Can They?  Setting the Stage- Looking at the Range of Regulatory Proposals

Delivered... David Oxenford | Scene | Tue 2 Mar 2021 6:26 pm

In recent months, we have seen concerted attempts to reign in digital and social media from all along the political spectrum – from Washington, in the states and even internationally.  We thought that we would look at some of those efforts and their motivations today.  We will look at many of these issues in more detail in future articles.

Towards the end of last year, the Trump Administration sought to strip social media platforms of Section 230 protections because of their alleged bias against conservative speakers (see our articles here and here).  A similar perception seems to underlie the recently proposed Florida legislation that seems to create for social media a policy similar to the equal opportunities (or “equal time”) policy that applies to broadcasters – a social media service cannot “de-platform” a political candidate if it allows the opposing candidate access to that platform.  That proposed legislation also has announced goals of requiring clear rules for access and editing of political views on such sites.  A press release about that legislation is here, though the actual text does not yet seem to be available for review.

On the other end of the political spectrum, there seems to be a concern that platforms are not doing enough to police such platforms.  Ways to ensure that the platforms combat disinformation are sought.  Hearings before the House Energy and Commerce Committee were held last week talking about combatting disinformation principally on traditional media platforms, with additional hearings next week looking at the same issues for social media.  We expect more review of these issues in the near future.

Section 230 is also under review in other contexts as well.  The SAFE TECH Act introduced in the Senate earlier this year would, among other things, remove Section 230 protections from content that a platform is paid to transmit, make the protections less automatic, and exempt many types of speech from the protections it affords – plus it would create a regime where an online service would have to take down offending content once it receives notice or face loss of any protections.

Internationally, Australian attempts to create what in effect be a statutory license for online platforms carriage of news from traditional media sources (or at least those sources registered with the government).  Online platforms, allowing online platforms to carry news from traditional media sources (or at least those sources registered with the government).  To carry such content (or even to just provide links to that content), online platforms would have to pay royalties to the media platforms that created that content.  If an online platform and content creator could not agree on the amount of the royalty, a government panel would intervene and set a royalty (seemingly akin to the rate-setting function of our Copyright Royalty Board for music licenses).  The idea is to compensate creators for the use of their content and thereby provide a more stable economic base for local news platforms to replace the revenue they have to the online services in recent years.  Of course, the online platforms argue that in many ways they are promoting traffic to the online services offered by these very same publishers who now want compensation.  It is a debate certain to be repeated around the world in the coming years.

But these high-profile attempts to regulate online platforms are not the only ways that where regulations are sought to make regulation of online platforms more like that which applies to the traditional media with which they compete.  We wrote yesterday about attempts to bring emergency information to streaming services through the expansion of EAS which now applies to broadcast, cable and wireless companies.  In the past, the FCC has extended captioning requirements to online platforms that repurpose broadcast video programming so that the hearing impaired can enjoy that content online.

Recent articles suggest that some in Congress are looking to the FCC to intervene in the offerings of virtual MVPDs – cable-like services being offered by some online platforms to stream local television stations to local communities without the need for the cable service at all.  But, unlike the cable and satellite television services, there is now no regulation over which television services these virtual MVPDs must carry (see our article here about a past review of this to see if these online services should have regulatory treatment more like that applicable to cable and satellite services).

Like the debates over how large the reach of a broadcast company can be (see our article here about the recent Supreme Court argument on one attempt to allow broadcasters to get bigger so that they can compete with online platforms), there is a similar concern about the size of the online platforms.  Senator Klobuchar has already introduced legislation that would increase scrutiny of new mergers and review ones that have already occurred – with a particular emphasis on tech mergers.  Similar concerns have been expressed by many others across the political spectrum.

Political speech and advertising are implicated as well.  We wrote years ago about an FEC review of the sponsorship identification requirements for political ads that are delivered through online platforms, a proceeding that has yet to be resolved.  Many states have stepped into the breach issuing their own laws on political broadcasting.  While some, like the Maryland law we wrote about here, have been found to be unconstitutional, other similar laws are being enforced in other states against political advertising carried on all media platforms, including online ones.

Privacy on the Internet is another issue that is likely to factor into debates over the future of tech companies.  As ads for the same products follow all of us from website to website, we wonder just how much do these companies know about us (and how much should they be allowed to know)?  Even online copyright issues are being reviewed (see our article here on the review of many aspects of online copyright issues, including the Digital Millennium Copyright Act’s Section 230 protections for platforms who host user-generated content and the perceived “whack-a-mole” problem with the current take-down notice requirements).

In the coming months, we will be looking at many of these debates and the issues that they raise.  The First Amendment of course, is a common issue in many of these situations.  Our constitutional protections for free speech present a unique hurdle in the US that any regulation must overcome, a burden that does not exist to the same degree in other countries that are facing many of these same issues.  The First Amendment led to the demise of the Maryland bill that attempted to regulate online political advertising and will likely forestall many other attempts at regulation.  Economic and policy issues also come into play.  For instance, with respect to Section 230 protections, there are the questions as to whether online platforms, like the social media accounts that most of us check routinely throughout the day, will continue to provide the services that they do without protections from liability for the content posted by their millions of users.  Practical issues also must be weighed.  Can online platforms have the technical capacity do everything that critics and regulators ask of them (an inquiry that is at the heart of the EEO issues we wrote about yesterday).  Watch as we tackle many of these issues in coming articles.

This Week in Regulation for Broadcasters: February 6, 2021 to February 12, 2021

Delivered... David Oxenford | Scene | Sat 13 Feb 2021 10:34 pm

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

  • The FCC has started planning for its next AM/FM radio auction (Auction 109) scheduled to begin on July 27.  Four AM construction permits in the St. Louis area and 136 FM construction permits across the country will be available, with minimum opening bids ranging from $750 to $75,000.  Comments and reply comments on the proposed bidding procedures are due by March 15 and March 22, respectively.  More details about the auction and proposed bidding procedures can be found, here, and the list of permits to be auctioned is available, here.  For more on the filing process and issues to consider, see our article here.
    • In preparation for Auction 109, the FCC froze any FM filing that proposes to change one of the available allocations’ channel, class, community of license or reference coordinates.  (Public Notice)
  • The renewal applications for seven FCC authorizations in Alabama were designated for hearing to determine if their licensee possesses the basic character qualifications to hold an FCC license.  The licensee’s principal was convicted of six felonies and imprisoned for these crimes he committed while in the Alabama House of Representatives.  This decision serves as a good reminder that, under the FCC’s Character Qualifications Policy Statement, non-FCC misconduct can be grounds to deny FCC licenses and can even prevent a licensee from selling a station as FCC precedent is that someone without the requisite character should not be able to profit from the sale of a government-granted broadcast license (Order).  We took a closer look on our blog at some of the FCC’s considerations in enforcing this policy.
  • Many television stations took advantage of the FCC’s lifting of its freeze on television applications, including channel changes.  This week, numerous proposals for changes in the operating channel of television stations, most proposing changes from VHF to UHF channels better able to operate in a digital environment, were put out for public comment.  Notices of nine channel-change proposals filed immediately after the freeze was lifted were included on the FCC’s Daily Digest of its actions on Friday.
  • The FCC’s Audio Division denied the application of an FM station seeking a waiver of Commission rules to upgrade its facilities to those that would be allowed under the pending proposal to create a new class of FM stations – Class C4.  The letter denying the application said that a waiver for this station would pre-judge the current FCC proceeding which is trying to determine whether to authorize this new class of FM stations (Letter Decision).  For more about the proposed Class C4 for FM stations, see our blog article here.
  • As the FCC reviews radio license renewals filed in recent months in various midwestern states, this week we have again seen a flurry of consent decrees with broadcasters who could not certify compliance with the political broadcasting rules.  These consent decrees require the broadcaster to engage in training for its staff on political broadcasting issues and to report to the FCC for two years on its compliance with the political file rules.  See our article here for more information about these consent decrees.
  • With Democrats in control of the White House, Congress, and the FCC, we have noted increased interest in the Fairness Doctrine.  In light of the many recent articles on the topic, we wrote about the history of the Doctrine and what its reinstatement, however unlikely, would mean for broadcasters.  (Blog)


The Return of the Fairness Doctrine – What it Was and Why it Won’t Return

Delivered... David Oxenford | Scene | Thu 11 Feb 2021 6:10 pm

It seems like whenever Democrats are elected to serve as President and take control of Congress, there is talk about the revival of the Fairness Doctrine as some panacea for restoring balance and civility to political debate.  In recent weeks, we have seen many articles blaming conservative talk radio for the current divisions in the country and for the widespread belief in discredited claims about political and social topics.  This same debate arose almost exactly 12 years ago following the election of President Obama (see our articles here and here about that debate).   In coming days, we will write about a new round of legislative proposals looking to impose content moderation rules on digital media (including a Florida proposal to essentially block social media platforms from de-platforming one candidate, while allowing another candidate access, and a recent Congressional proposal removing Section 230 immunity from digital platforms for certain kinds of speech).  But, given the discussion of reviving the old Fairness Doctrine, we thought it worth taking a look back at just what that Doctrine required, the reasons for its demise, and some of the issues that would surround any attempt to bring it back.

First, it is important to understand what the Doctrine covered and what it did not.  It was a broadcast doctrine adopted in 1949, in an era that pre-dated the political talk that we now see dominating so many cable networks.  It also was different from the Equal Time Rule which is still in effect for candidate appearances on broadcast stations.  The Fairness Doctrine required that stations provide balanced coverage of all controversial issues of public importance.  The Fairness Doctrine never required “equal time” in the sense of strict equality for each side of an issue on a minute-for-minute basis.  In talk programs and news coverage, a station just had to make sure that both points of view were presented in such a way that the listener would get exposure to them.  How that was done was left to theon’s discretion, and the FCC intervened in only the most egregious cases.

By contrast, “equal time” or “equal opportunities” stems from a different source in the Communications Act – the Section 315 provisions on the treatment by broadcast stations (and local cable systems) of candidates for public office. Essentially, equal time requires that, if a broadcast station gives one candidate free time, all other candidates can get the same amount of free time (see our article here). But bona fide news and news interview programs are exempt from equal time, and the FCC has taken an expansive view of that exception (see our articles here and here).  The rule primarily applies to the sale of time to candidates.  If a candidate buys time on a station, the station must be willing to sell each opposing candidate equal amounts of time on the same terms (see our article here). In connection with candidate time, it is strict minute-for-minute equality – unlike what was once required by the Fairness Doctrine.  See our Political Broadcasting Guide for more information about the application of the equal time rule.

The Fairness Doctrine was broader in its application, theoretically covering all aspects of a station’s programming, but its application was perhaps felt most in the context of issue advertising..  In the case of advertising about controversial issues, where parties in favor of an issue bought time to push their views, and the opponents could not afford to buy time to respond, the station might actually have to give the opponents time – but it was usually only a third or a quarter as much time as the proponents had bought, not strict equality.   And the station could choose which opponents to give the time to – the viewpoint, not the spokesperson, was what counted.

The application of the Doctrine in the context of advertising could have profound effects.  For instance, the use of the Fairness Doctrine as a weapon against cigarette advertising – requiring that stations give anti-smoking advocates time to talk about the ill health effects of smoking in a ratio of 1/3 or 1/4 of the advertisements that ran for cigarettes – was one of the reasons that broadcasters were willing to accept a ban on cigarette ads, and that the constitutionality of the 1970 legislative ban on smoking ads was never challenged by the tobacco companies.

But while the Fairness Doctrine in theory would seem easy to apply, there were many battles at the FCC about its application, costing broadcasters many thousands of dollars in legal fees over whether what they aired really did give all sides of an issue an adequate opportunity to have their say. More importantly, by its very nature, the Doctrine is a burden on the free speech rights of broadcasters by putting the government in a position where it should never be – deciding what speech should or should not be made.

This constitutional question led in part to the FCC’s 4-0 decision in 1987 to abolish the Fairness Doctrine, a decision that was upheld by the DC Circuit even though the court did not reach the constitutional issue.  The demise of various extensions of the Doctrine followed, including the political attack rule and the Zapple Doctrine, which required quasi-equal time (if supporters of one candidate were sold ad time by a station, the station had to sell ad time to supporters of opposing candidates).  The Zapple Doctrine was declared unconstitutional in 2014 (see our article here).  Even the FCC under Democratic administrations have confirmed the view that the Doctrine was unconstitutional (see our article here from 2011 when the rule was formally purged from the rules of the FCC, during the Obama administration).

Arguments for the return of the Doctrine ignore the constitutional concerns that led the FCC to abolish the Doctrine.  The reasoning behind the Doctrine, like that behind so much other broadcast content regulation, was upheld by the Supreme Court in 1969 based on the “scarcity doctrine” – the idea that broadcast spectrum is a scarce resource and that broadcasters who useit are required to act as public trustees and provide programming that serve all elements of their communities.  While that may have been the case 50 years ago, the concept of spectrum scarcity seems harder to justify in today’s media landscape when there are all sorts of audio and video competitors to radio and TV – many delivered wirelessly to consumers using different parts of the spectrum that were never subject to content regulation (e.g., when a listener streams a webcast or podcast, they may well be using wireless spectrum that is not subject to content regulation but nevertheless delivers content to consumers that is virtually indistinguishable from content delivered by broadcast stations).  Even among broadcasters, there has been an explosion in the number of stations and, through digital multicasting available on TV and FM, the number of program choices available to the consumer has vastly increased.  Media scarcity seems to be the least of our problems today.

Even from a practical perspective, the Doctrine is difficult to justify.  The Fairness Doctrine requires fairness on all controversial issues of public importance.  But sometimes, especially on the complicated issues facing the world today, there are far more than two sides to any issue.  Who decides which sides get heard and which don’t?  On issues of climate change, racial justice, economic fairness, foreign policy and so many other matters, there is a wide spectrum of positions on almost every issue.  Do all get to be heard on broadcast stations – even the most radical and far-fetched?

And who would make such decisions as to which sides deserve access to the airwaves?  Even a seemingly obvious determination that certain extreme views should not be given broadcast access contains a value judgment that the government should not be in the business of regulating – whether in these extreme circumstances or in the much closer cases that would arise every day.  No one would ever suggest that the government should be able to regulate what content goes on the editorial pages of the New York Times or the Washington Times. No one should be able to dictate that the Atlantic and the National Review present both sides of every issue that they cover.  In this modern era with so many alternatives to the broadcast medium, why should broadcasters have a different version of the First Amendment applicable to their speech?

The Fairness Doctrine is often advanced as an easy cure-all for political divisions. But any review of the issue shows that its return would raise far more questions than it would solve.  It would put government in a position where it should not be – judging a broadcaster’s editorial decisions as to what should and should not be aired.  This has never been the role of the government in our country, and it should not be now.  The problems of the country are better solved by wider and more effective communications about the issues of the day, not through government control.

A TV Broadcaster’s Guide to Where Washington Regulatory Issues Stand

Delivered... David Oxenford | Scene | Tue 2 Feb 2021 4:25 pm

Where do all the Washington DC legal issues facing TV broadcasters stand in these early days of a new Administration? While we try on this Blog to write about many of those issues, 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.  The latest version, published today, 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 the status of the FCC’s consideration of other issues including issues such as Ownership Rule Changes, Children’s Television, C-Band Earth Station repacking, DTS, EEOPolitical Advertising, Sponsorship Identification and dozens of other topics, many with links to more detailed discussions here on the Blog.

This is an easy place to go to see where, as of last week when we finished writing the article, legal matters related to TV broadcasting stand.  Of course, the status of these issues changes almost daily, so watch this Blog and other trade publications, and consult your own legal counsel, for the latest Washington news of interest to broadcasters and to you and your operations.

Reminder – 2021 Will Include Some Off-Year Elections for State and Local Office – and FCC Political Broadcasting Rules Do Apply

Delivered... David Oxenford | Scene | Tue 12 Jan 2021 5:51 pm

After this year’s contentious elections, it is with reluctance that we even broach the subject – but broadcasters and cable companies need to be aware that in many jurisdictions there are elections this November. While most broadcast stations don’t think about the FCC’s political broadcasting rules in odd numbered years, they should – particularly in connection with state and local political offices.  There are elections for governor in November in Virginia and New Jersey, and all sorts of state and local elections in different parts of the country.  These include some mayoral races in major US cities.  Some of these local elections don’t even occur in November – and there are even a few that are taking place as early as next month. As we have written before, most of the political rules apply to these state and local electoral races so broadcasters need to be paying attention.

Whether the race is for governor or much more locally focused, like elections for state legislatures, school boards or town councils, stations need to be prepared. Candidates for state and local elections are entitled to virtually all of the political broadcasting rights of Federal candidates – with one exception, the right of reasonable access which is reserved solely for Federal candidates. That means that only Federal candidates have the right to demand access to all classes and dayparts of advertising time that a broadcast station has to sell. As we wrote in our summary of reasonable access, here, that does not mean that Federal candidates can demand as much time as they want, only that stations must sell them a reasonable amount of advertising during the various classes of advertising time sold on the station. For state and local candidates, on the other hand, stations don’t need to sell the candidates any advertising time at all. But, if they do, the other political rules apply.

That means that if a broadcast station decides to sell advertising time to one candidate in a state or local political race, they must sell it to all candidates for the same race – and be prepared to make available equal amounts of time in equivalent time periods. Stations can decide to make available advertising only in certain dayparts (or on certain stations in a cluster) for state and local races. They can even make different dayparts (or stations) available for different political races, as long as all candidates for the same race are treated the same. So, for instance, a station could decide to offer only spots during weekend and overnight time periods to candidates for the city council, while offering candidates for governor time during all dayparts. A station just needs to treat all legally qualified candidates (including independent and fringe party candidates) for the same state or local race in the same way.

Lowest unit rates apply to state and local candidates, if you choose to sell to those candidates.  That means if the time is sold to state and local candidates during the 60 days before the general election (no matter when that election will be held), the time must be sold to the candidate at lowest unit rates. See our summaries of the rules relating to equal time here, and to lowest unit charges here. Similarly, if a station on-air personality decides to run for state or local office (anything from the school board or local planning commission to governor or state legislature), the station needs to consider whether to take that personality off the air, or risk having to provide equal time to all competing applicants – for free – in amounts equivalent to the amount of time that the employee-candidate appeared on the air, even if the employee never mentions his or her candidacy at all. See our articles about this topic here and here.

Political file rules also apply to all advertising by candidates and their authorized campaign committees.  So the FCC’s recent insistence (see our articles here and here) on information about orders for candidate ads – including all price and schedule information – being uploaded to the public file within one business day, applies to these elections just as it does to federal elections.  See my video here, prepared for the Indiana Broadcasters Association, that discusses many of the FCC’s new interpretations of the public file rules.

Ads from non-candidate groups dealing with state and local elections generally do not require price and schedule information to be uploaded (unless those ads also mention a federal issue), but they do require that the public file contain an identification of the sponsor of the ad (address, phone number and contact person should be provided), plus a list of the ad sponsor’s executive officers, members of the Board of Directors or similar governing board.  Under the FCC’s guidance from 2019 (see our article here), the FCC thinks that most of these organizations will have more than one governing board member, so if you are provided with a single name, you are required to reach out to the sponsor or their representative and ask if there are others who should be listed.

For more about the political rules, see our Broadcaster’s Guide to Political Broadcasting here (though note that the political file information has not been updated, so refer to the video and articles linked in the prior paragraph for more information).  Don’t forget about these political advertising rules – even though this is an odd numbered year!


A Broadcaster’s 2021 Regulatory Calendar – Looking at Some of the Important Dates for the Year Ahead

Delivered... David Oxenford | Scene | Tue 5 Jan 2021 6:21 pm

Here we are, in a new and hopefully more “normal” year – wondering what will be ahead.  Each year, at about this time, we put together a look at the regulatory dates ahead for broadcasters – or at least the primary ones that we already know.  This year is no different – and we offer for your review our Broadcaster’s Regulatory Calendar for 2021.  While this calendar should not be viewed 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 renewalsEEO Public Inspection File ReportsQuarterly Issues Programs listschildren’s television obligations, annual fee obligations and much more.  This year, for LPTV and TV translator operators, there are also dates associated with this summer’s deadline for all such stations to be operating digitally (see our article here).

While this likely will not be a big political advertising year like 2020, there will be some state and local races – so we note the start of the Lowest Unit Charge window for this year’s November election – relevant in states like New Jersey and Virginia where there are races for governor and state legislature, and to the many locations across the country that will have mayor’s races and other state and local political contests.  Look for local information about the dates for any primary elections for these elections – as those primaries have their own LUC windows for the 45 days preceding the primary.  See our article here on how the other political broadcasting rules apply to state and local elections.

Certainly, as the year progresses, there will be plenty more dates to note.  Follow our blog where we weekly post a summary of the prior week’s regulatory actions relevant to broadcasters and a look ahead prior to the start of each month at the regulatory dates in the coming month, read other newsletters and trade publications and consult your own attorney to stay on top of the regulatory obligations that apply to your stations.  We hope that this 2021 Broadcasters Regulatory Calendar will give you a good start on spotting some of the important dates that may be ahead and affect your operations.

December Regulatory Dates for Broadcasters: License Renewals, EEO Filings, DTV Ancillary/Supplementary Fees, Comment Deadlines and More

Delivered... David Oxenford | Scene | Mon 30 Nov 2020 5:23 pm

December is a busy month for broadcasters with routine filings to complete and action on FCC proceedings that will carry over to the next administration.  Keep on top of these dates and deadlines even as your calendar fills up with holiday celebrations.

We start at the beginning of the month, with December 1 being the deadline for the filing of applications for the renewal of license of radio stations in Colorado, Minnesota, Montana, North Dakota, and South Dakota, and TV stations in Alabama and Georgia.  These stations should have already reviewed their public file (as we noted here, stations should pay particularly close attention to their political files) and be putting the finishing touches on their renewal application (see our article about license renewal preparation here).

These December 1 stations are the first group to file license renewal applications subject to the FCC’s new rules for post-filing announcements.  The FCC has eliminated the previous announcement schedule that required announcements on the 1st and 16th of each month during specific time periods for three months and now requires six announcements over a four-week period, beginning on the date the FCC announces that the renewal application has been accepted for filing.  The new rule also requires commercial and noncommercial stations that are not operating when their renewals are filed to post a notice on their websites or, if the station does not have a website, on the website of a parent or affiliated company, or if the station does not have such a site, on some publicly accessible site (like a community bulletin board, local newspaper site, or that of a state broadcasters association).  Stations with translators also need to post online notice about the translator’s renewal its primary station’s website.  Check out all the new local public notice rules, here, and read our posts providing more details about these requirements here and here.

Stations filing for license renewal must also submit FCC Form 2100, Schedule 396, also known as the Broadcast Equal Employment Opportunity Program Report, even if they are not part of a station employment unit with five or more full-time employees.  A station employment unit is one or more commonly controlled stations in the same geographic area that share at least one employee.

On or before December 1, full power radio and TV stations licensed to communities in Alabama, Connecticut, Colorado, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, and Vermont with five or more full-time employees in their station employment unit must upload to their online public file an annual Equal Employment Opportunity report detailing the employment unit’s hiring and outreach efforts from December 1, 2019 to November 30, 2020.

By December 1, digital television stations that provided ancillary or supplementary services between October 1, 2019 and September 30, 2020 must submit FCC Form 2100, Schedule G, and pay in fees 5% of the gross revenue derived from any ancillary or supplementary services provided.  Ancillary and supplemental services do not include non-subscription video channels delivered directly to the public but do include any other services provided over the station’s spectrum from which the station receives compensation, including “computer software distribution, data transmissions, teletext, interactive materials, aural messages, paging services, or audio signals, [and] subscription video.”  Stations that provided no such services are no longer required to file a report.

At the Commission’s December 10 Open Meeting, the Commissioners will vote on new rules for Broadcast Internet (ATSC 3.0) services.  The principal changes addressed in the FCC’s draft order are clarifications of the rules on the annual ancillary and supplementary services fee.  The changes in the draft order include reducing the fees to be paid by noncommercial television stations that offer new noncommercial, non-broadcast services through their ATSC 3.0 operations.  Ancillary services are not allowed to “derogate” the broadcast service and, in the draft order, the Commission would retain its current interpretation of “derogate” as meaning that a station must continue to offer at least one standard definition television programming channel.

By December 10, radio stations that entered into a consent decree with the Media Bureau over violations with their online political file in the first round of consent decrees that were released in August and September must submit their first compliance report.  This report documents compliance with the political file rules from October 4, 2020 through Election Day on November 3, 2020.  These stations must email their compliance spreadsheet to the FCC’s political programming staff.  The spreadsheet does not get uploaded to the station’s public file.  Review your consent decree closely for any other requirements applicable to your operations.  We wrote about the consent decrees, here.

Reply briefs in the FCC v. Prometheus Radio Project case are due to the Supreme Court by December 16.  This case is a review of a lower court’s decision to reject the FCC’s 2017 broadcast ownership changes.  These briefs follow the briefs filed in November (you can read them here) by the FCC (through the Solicitor General), the National Association of Broadcasters, and other broadcast industry parties.  The Court is set to hear oral arguments on January 19, 2021 and then issue a decision later in the year.  See our post on this case, here.

Comments are due by December 24 in two FCC proceedings.  The first proceeding is a proposal to enhance and standardize sponsorship identification requirements for broadcast programming that is paid for, or provided by, foreign governments or their representatives.  The proposed rules set out specific disclosure obligations to inform audiences of a foreign government’s influence over the programming to which they are listening or viewing.  Reply comments are due by January 25, 2021.

The second proceeding is an attempt to resolve an open question raised by the NAB about which licensee is legally responsible for the simulcasted programming from another licensee, including programming that airs on a host station’s subchannel as the ATSC 1.0 “lighthouse” signal of another station that has converted to NextGen TV (ATSC 3.0).  See our blog post, here, for more details.  Reply comments are due by January 25, 2021.

We are also expecting a Notice of Proposed Rulemaking from the FCC on the proposal to allow FM boosters to transmit limited amounts of programming different than that being broadcast on their primary station.  This “zonecasting” proposal would allow for different commercials or news reports to be broadcast in different parts of a station’s service area.  See our articles here and here on the initial FCC request for comments on this proposal.

The FCC may also adopt an order on its proposal to expand the use of television distributed transmission systems, as a draft item was circulated among FCC Commissioners for their review last week.  See our article here on the Notice of Proposed Rulemaking on this proposal adopted by the FCC earlier this year.

Be sure to check with your station counsel for more details about these dates and whether there are any other important dates this month applicable to your station’s operations.  We wish you a safe, healthy, and happy holiday season – but keep watching for additional regulatory matters that may arise as we count down the remaining days of this year (and as we anticipate the start of a new administration at the FCC in January).

This Week in Regulation for Broadcasters:  November 14, 2020 to November 20, 2020

Delivered... David Oxenford and Adam Sandler | Scene | Sun 22 Nov 2020 5:22 pm

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

  • After reviewing comments submitted this summer (we wrote about the rulemaking, here), the FCC will vote at its next Open Meeting, on December 10, on new rules for Broadcast Internet (ATSC 3.0) services. The principal changes addressed in the FCC’s draft order are clarifications of the rules on the annual “ancillary and supplementary services” fee that broadcasters offering non-broadcast services on their television channels must pay.  The changes in the draft order include reducing the fees to be paid by noncommercial television stations that offer new noncommercial, non-broadcast services through their ATSC 3.0 operations.  These services are not allowed to “derogate” the broadcast service and, in the draft order, the Commission would retain its current interpretation that this means that a station must continue to offer at least one standard definition television programming channel.  (Draft Report and Order)
  • The FCC voted this week to update its rules dealing with cable programming disputes, including a clarification as to when a complaint can be made against a cable or satellite operator for alleged program carriage or retransmission consent violations. Under the old rules, such a complaint could be made up to one year after the cable and satellite operator was notified of the complaint.  Now, complaints can be made up to one year after the alleged violation, closing a loophole that potentially allowed complaints to be made for conduct that occurred years in the past.  The new rules will be effective 30 days after publication in the Federal Register.  (Report and Order)
  • The FCC and NAB submitted their briefs this week to the Supreme Court in the FCC v. Prometheus Radio Project case, in advance of oral arguments and a decision in 2021. Reply briefs on behalf of Prometheus Radio Project are due by December 16.  This case is a review of a lower court’s decision to reject the FCC’s 2017 broadcast ownership changes.  See our post, here, about the Supreme Court review.  (Court Docket)
  • In the last 10 days, two lawsuits by the Trump campaign alleging defamation against media entities, including the lawsuit against a Wisconsin television station for airing an attack ad by Priorities USA about the President’s response to the coronavirus, were dismissed. We wrote about those dismissals here, addressing the issues that these actions highlight for broadcasters who run attack ads that are not sponsored by a candidate’s campaign committee.

Expected to be released soon, possibly this week, will be an FCC Notice of Proposed Rulemaking starting a proceeding looking to authorize FM boosters to transmit limited amounts of programming different than that being broadcast on their primary station.  This “zonecasting” proposal would allow for different commercials or news reports to be broadcast in different parts of a station’s service area.  See our articles here and here on the initial FCC request for comments on this proposal.


Two Trump Defamation Claims Dismissed Including Claim Against TV Station for Political Attack Ad – What is the Relevance for Broadcasters? 

Delivered... David Oxenford | Scene | Wed 18 Nov 2020 4:56 pm

In the last few days, two defamation cases filed against media companies by the Trump campaign have been dismissed – one on the merits and one by agreement of the parties.  This includes the suit filed by the campaign against Northland Television, the licensee of a rural Wisconsin television station.  That station was perhaps the smallest TV station to air an ad by a non-candidate group, Priorities USA, that the Trump campaign alleged was misleadingly edited to assert that the President had labeled the coronavirus a “hoax.”  As we wrote here when that suit was first filed, the campaign claimed that the reference to the hoax was not about the virus itself but was actually a reference to “the Democrats’ exploitation of a pandemic and related characterization of the candidate’s response to the pandemic.”  This suit was vigorously opposed by the station and the sponsor of the ad.  The parties have now agreed to voluntarily dismiss that suit with prejudice, meaning that it cannot be refiled.

Another suit was brought by the campaign against CNN alleging that CNN had libeled the President by publishing on its website an article from one of its contributors who alleged that the campaign had assessed the risks of seeking Russian assistance in the 2020 campaign and had “decided to leave that option on the table.”  The campaign alleged that the statement was false and defamatory – and published with knowledge that it was false.  CNN had countered that the statement was protected as it was presented as opinion, not fact, and moreover it was published without “actual malice.”  As we have written before (see, for instance, our articles here and here), under Supreme Court precedent, a claim about a public figure for defamation can only be sustained if it is both false and published with “actual malice” – meaning that the publisher knew that it was false, or acted with reckless disregard as to whether or not it was false and published it anyway.

In considering a motion to dismiss the claim against CNN, the court reviewed both whether the disputed claim from the article was opinion and therefore not subject to being found to be libelous, and the question of actual malice.  The Court first looked at whether the statement was framed as an opinion.  Statements framed as an opinion of the writer, as opposed to a factual assertion, are generally not libelous (see, for instance, our article here).  The court found that the article could be read as making a factual statement that the President’s campaign was still considering seeking Russian assistance in the 2020 election. Moreover, as the statement had not clearly been described as an opinion of the writer, but instead framed more as if it were a statement of fact, the court concluded that there were no grounds for dismissal based on the claim that the disputed statement was merely the opinion of the writer.

However, the court decided to dismiss the suit after concluding that there was no showing in the complaint of actual malice.  The court looked at the allegations made in the lawsuit that CNN and the writer must have known that the statement was false, given the Trump campaign’s unsupported assertion that there was “extensive public information” available at the time of publication to show that it was false.  The court found that there was nothing in the record supporting these conclusory statements as to what public information was available and whether the author had investigated that information.  Mere allegations that the author must have known the statement was false were insufficient to warrant a finding of malice, according to the court.  In addition, the court concluded that the mere fact that the author had, in the past, been a critic of the President did not show that there was actual malice in this case.  Nor did the general allegations that CNN itself was biased against the President constitute any showing of the actual malice needed to sustain the claim.

Without a showing that the claims were made with actual malice as defined by the courts, the case was dismissed.  But the process that the court undertook to review the claims is instructive for broadcasters in dealing with claims made in political issue advertising.  The decision reinforces some of the suggestions that we have made in the past as to how broadcasters need to deal with attack ads from non-candidate groups – and the cease and desist letters that may follow from the lawyers for the person being attacked.  See our articles here and here on this subject.  As a general matter, where a broadcaster has no knowledge of the truth or falsity of an ad when it begins to air that ad, the airing itself may not constitute actual malice.  But when the cease and desist letter arrives at the station pointing out the alleged falsity of statements made in the ad, then the risk generally increases that continued airing of the ad can more easily be alleged as having been done with actual malice.  The cease and desist letter can be seen as putting the broadcaster on notice that the ad’s claims may be false, so that continued airing without further inquiry by the broadcaster could be seen as being done with malice.  Thus, broadcasters must react quickly when such letters arrive and analyze the claims made.  This is a delicate analysis that broadcasters and other media companies must make throughout any political season, so be sure to have your lawyers on call to help you to evaluate such ads and quickly parse the claims as they come in.

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