FCC Reinstates Workplace Diversity Reporting Requirement

The FCC issued an Order last Friday reinstating the collection of workforce composition data for television and radio broadcasters, requiring broadcast licensees to file Form 395-B, which collects race, ethnicity, and gender information about the licensee’s employees, on an annual basis.  The requirement to file Form 395-B had been suspended for almost 20 years, but in July of 2021, the FCC issued a Further Notice of Proposed Rulemaking in an effort to refresh the public record regarding the form and determine whether the requirement should be implemented again.  The Commission’s stated goal in reestablishing this requirement is to facilitate analysis and understanding of the broadcast industry’s workforce and changes and trends occurring in the industry. 

The FCC’s EEO rules prohibit employment discrimination on the basis of race, color, religion, national origin, or sex and require almost all broadcast licensees to develop and maintain an EEO program to ensure equal opportunity and nondiscrimination in employment policies.  Between 1970 and 2001, the FCC required the submission of Form 395-B, listing the composition of broadcasters’ workforce in terms of race, ethnicity, and gender.  After a series of court rulings which determined that aspects of the FCC’s EEO rules at that time were unconstitutional, and called into question the legitimacy of the Form 395-B requirements, the FCC suspended the Form 395-B filing requirement in 2001.  According to the FCC, these decisions did not directly implicate Form 395-B—they implicated how the data collected by the form was to be used.  Accordingly, the Commission claims to maintain the authority to require broadcast licensees to submit Form 395-B.   

In reinstating the Form 395-B requirement, the FCC restates that diversity in media organizations is critical for successfully serving viewers, listeners, and readers, but the Commission also noted that station-specific employment data would not be used for the purpose of assessing compliance with EEO regulations.  The data collected with Form 395-B will be published publicly on a station-by-station basis.  Commenters have expressed concerns with how this publicly-disclosed information may be used, claiming it could stir third parties to place pressure on hiring processes.  In response, the Commission stated that it may reconsider its approach to such data collection if such issues arise, but it also stated that such concerns were overstated and outweighed by the FCC’s overarching goals in this proceeding.  If, however, the Commission views diversity of employees is key to a broadcaster’s public service, it would seem that Form 395-B records would necessarily be considered at license renewal time.  Dissents by Commissioners Carr and Simington echoed concerns regarding the value of the data collected and the potential for improper outside use of the publicly-disclosed data to pressure licensees’ hiring decisions.   

The FCC also concurrently issued a Second Further Notice of Proposed Rulemaking on the establishment of a similar data collection requirement for multichannel video programming distributors on Form 395-A.  The FCC tentatively concluded that the collection of Form 395-A should be reinstated along with Form 395-B and that the data collected by this form should also be made available for public review.   

Broadcast licensees should make preparations to comply with this revived filing requirement and may want to review the status of their EEO programs.  It is anticipated that the first filing of the revived Form 395-B will be due by September 30, 2024.  If you have questions about Form 395-B, Form 395-A or any EEO requirements, please contact your FHH attorney.

FHH Protects Client Rape Victim’s Privacy in U.S. Fourth Circuit

On February 21, 2024, an FHH attorney, Thomas F. Urban II, won an important victory for the firm’s client, Jane Doe, to protect her right to pursue her civil claims against her rapist without having to expose her identity.  Due to Urban’s efforts and those of his co-counsel, Walter Steimel of Steimel Counselors Law Group, LLC, the U.S. Court of Appeals for the Fourth Circuit issued a published Opinion protecting the anonymity of Doe.  Doe’s counsel established that her assailant was liable for the rape after he not only refused to provide a DNA sample that would have confirmed his culpability but also failed to mount a defense on default judgment.  Doe v. Sidar, No. 23-1177 (4th Cir. 2024).  In acknowledging the need to protect Doe’s identity, the Fourth Circuit vacated an order issued by Senior Judge Claude Hilton of the U.S. District Court for the Eastern District of Virginia issued just eleven days before trial in the case was to begin, where Doe’s identity would have been revealed. 

In its Opinion, the Fourth Circuit held that it was “conclusively established that Cenk Sidar raped Jane Doe [the anonymous rape victim] in London in September 2017.”  Sidar is the CEO of a Washington, D.C.-based Artificial Intelligence company, Enquire AI.   As the Court explained,  

“[t]he legal effect of a default judgment [issued by the district court for Sidar’s failure to provide the DNA sample] is that [Sidar] is deemed to have admitted the plaintiff ’s well-pleaded allegations of fact . . . and is barred from contesting . . . the facts thus established.”  For that reason, we must assume that Sidar “admitted that he . . . raped” Doe and the truth of her allegations about how he did so. 

The Fourth Circuit also acknowledged that “[t]here is a ‘presumption’ that parties must sue and be sued in their own names,” and that “[f]or that reason, few cases warrant anonymity.”  The Court evaluated Doe’s request for anonymity based upon the Fourth Circuit’s existing test, which looks at five non-exhaustive factors when ruling on motions to proceed by pseudonym.   

In this case, the Court held that the district court’s “decision to remove Doe’s anonymity on the eve of the damages-only trial” strained the bounds of its permitted discretion in three ways:  First, the district court failed to adequately take into account the nature and strength of Doe’s legitimate interest in anonymity by seriously understating Doe’s legitimate privacy interests.  The Court held that the issues here were not merely sensitive—they involved intimate details of Doe’s sexual assault by Sidar and resulting psychological trauma.   

Second, the Fourth Circuit found that the district court’s analysis was legally flawed in its suggestion that fairness considerations invariably cut against anonymity unless the opposing party was also proceeding anonymously.  Judge Hilton had ruled that allowing Doe to remain anonymous while requiring Sidar to use his name at trial was unfair to Sidar.  Noting that Sidar had never requested anonymity, the Fourth Circuit held that Sidar having been found liable for the rape through a default judgment weighed in Doe’s favor to use a pseudonym.   

Third, the Fourth Circuit found that the district court’s decision was based on a “flawed . . . legal premise” because it did not address the fact that its entry of a default judgment tipped powerfully in Doe’s favor.  The Court held that because Sidar was already found liable and because further proceedings would be limited to determining the damages he must pay, the “risk of any unfairness to” Sidar from Doe’s continued anonymity was significantly reduced. 

For these reasons, the Fourth Circuit concluded that the district court exceeded the bounds of its discretion in its order requiring Doe to use her real name at trial, and thus vacated Judge Hilton’s order and remanded it with directions to reconsider in light of its opinion.   

Thomas F. Urban II is a civil litigator who was recently named a Best Lawyer TM for commercial litigation in Virginia, with a specialization in First Amendment and privacy mattersUrban was recently lead counsel for an amicus brief on behalf of several women’s groups such as the National Organization for Women and groups advocating for the protection of sexual assault victims filed in the appeal of the Amber Heard v. Johnny Depp case shortly before that case settled.  Currently, Urban and other FHH attorneys are counsel for Subspace Omega, LLC in an antitrust lawsuit seeking over $500 million from Amazon Web Services, Inc. in the U.S. District Court for the Western District of Washington.  Case No. 2:23-cv-01772-TL (W.D.Wa.).  Urban is also currently defending a favorable judgment for his clients Jeffrey Lohman and The Law Offices of Jeffrey Lohman in a RICO case against an appeal by Navient Solutions, LLC in the U.S. Fourth Circuit. 

If you have any questions about representation for future litigation, please contact Fletcher, Heald & Hildreth. 

FCC Clarifies that AI-Generated Voices are Subject to TCPA

Given the increasing power of artificial intelligence (AI) technologies to generate content that mimics human voices, the FCC issued a unanimous Declaratory Ruling clarifying that current AI technologies that generate human voices constitute “artificial or prerecorded voices” subject to the Telephone Consumer Protection Act (TCPA). The TCPA protects consumers from unwanted calls made using artificial or prerecorded voices by prohibiting the making of such calls to residential and wireless lines without the prior express consent of the party receiving the call.   

With this Declaratory Ruling, the FCC seeks to deter negative uses of AI and ensure that the protection of the TCPA covers emerging technologies without unintentionally creating carve-outs for technologies that may otherwise be able to exploit perceived ambiguities in the FCC’s rules. Chairwoman Rosenworcel cited a recent scam perpetrated against potential primary voters in New Hampshire who received a call with an AI-generated voice that seemed to be that of President Biden, and which urged potential voters not to vote in the upcoming election. Other scams target parents or grandparents with voices that appear to be those of their children or grandchildren and request money to help the “child” get out of trouble. 

While the FCC’s primary target is scammers, the Declaratory Ruling makes clear that the TCPA applies to all calls made using an artificial or prerecorded voice. “[T]he TCPA’s demands fully apply to those calls and, thus, consumers can themselves choose whether to receive them.” Even if a live agent selects the prerecorded message to be played, the TCPA requires prior express consent from the called party. “[T]he presence of a live agent on a call selecting the prerecorded messages to be played ‘does not negate the clear statutory prohibition against initiating a call using a prerecorded or artificial voice.’” Likewise, “this rationale applies to AI technologies, including those that either wholly simulate an artificial voice or resemble the voice of a real person taken from an audio clip to make it appear as though that person is speaking on the call to interact with consumers.”   

For both businesses that rely on telephone sales or marketing and telecommunications providers that offer outbound calling platforms, now is a good time to review your TCPA compliance polices generally and to ensure those policies cover AI-generated voices. If you have any questions or would like assistance with TCPA compliance, please contact your FHH attorney.

Corporate Transparency Act Triggers New Federal Filing Requirement for Most Small and Medium Companies.

The federal Corporate Transparency Act (“CTA”), enacted by Congress on January 1, 2021, established new ownership disclosure and reporting requirements for most small and medium sized U.S. companies (“Reporting Companies”), including both existing and newly created companies. The deadline for filing the required report is January 1, 2025, but companies should not wait to review CTA requirements and make this filing – there may be corporate steps that they have to take prior to filing.   The CTA’s requirement to disclose the owners of companies is designed to assist U.S. authorities in fighting tax evasion, organized crime, terrorism financing and money laundering.   But the impact will be felt by law abiding companies of all industries – including broadcasters and telecommunications companies.       

The CTA requires that Reporting Companies file with the Financial Crimes Enforcement Network of the Treasury Department (“FinCEN”), personal identification information on the “beneficial owners” of their company at the time of the company’s formation.  The CTA also requires that such information be updated upon any change in beneficial ownership.    

Who Needs to Report? 

The CTA refers to companies that are required to file reports as “Reporting Companies.”    For the purposes of the CTA, a Reporting Company is defined to include any corporation, limited liability company, or other similar entity that is created by the filing of a document with the secretary of a state or similar office, or is formed under the laws of a foreign country and registered to do business in the U.S. by the filing of a document with the secretary of a state or similar office. So, sole proprietorships and certain trusts would not meet this definition.   In addition, applicants for new entities that meet the definition of Reporting Company need to report.   For the purposes of the CTA, “applicants” include the individual who directly filed the document that created or first registered a domestic or foreign Reporting Company, and the individual who was primarily responsible for directing or controlling the filing of the creation or first registration document.  

The CTA contains a number of exceptions from the reporting requirement.  These exceptions include any entity that employs more than 20 people and has at least $5 million in annual revenue and a physical presence in the U.S. In addition, tax-exempt organizations do not need to comply with the reporting requirements.  Also subject to exceptions are publicly traded companies, “inactive” companies,  banks, insurance companies, certain registered investment companies,  investment advisors and registered public accounting firms.  

 

What Information is Required to Be Reported? 

The information that must be reported includes the identity of each beneficial owner of the Reporting Company, or each applicant to form a new Company. A “beneficial owner” is defined generally as an individual who, directly or indirectly, exercises substantial control over a Reporting Company or owns or controls at least 25 percent of the ownership interests of the Reporting Company. This reported information includes full legal names, dates of birth, residential or business addresses, and an identification number (such as passport or driver’s license).   The Reporting Company must also disclose information about the Company itself, including  IRS Taxpayer Identification Number (“TIN”) (including an Employer Identification Number (“EIN”)), while foreign Reporting Companies without a U.S. TIN must provide tax ID issued by their foreign jurisdiction.  

 

Who Has Access to the Reported Information?  

The Treasury Department states that the reported information will be maintained in a secure federal database. The information will be treated as confidential and will not be made available to the public. The information may only be disclosed to federal and state law enforcement agencies under certain circumstances for national security, intelligence, or law enforcement purposes. Foreign law enforcement may also request information through the appropriate channels. Financial institutions, with the consent of the Reporting Company, will be able to access the database for customer due diligence requirements imposed by state and federal laws. The Treasury Department may also obtain access to the information for tax administrative purposes. 

 

When and How are Reports Filed?  

Fillings must be made through the BOI E-Filing System.  Filing deadlines depend on when the Reporting Company was created.   Domestic Reporting Companies created before January 1, 2024, and any foreign entity that became a Reporting Company before January 1, 2024, must file by January 1, 2025.   Domestic Reporting Companies created between January 1, 2024 and January 1, 2025, and any foreign entity that becomes a Reporting Company after January 1, 2024, must file within 90 days of registration.    

 

What if My Company Fails to Properly File a Required Report?  

Under the CTA, companies that fail to file a required report may be subject to both civil and criminal penalties. Any party that fails to comply with reporting requirements or willfully files false information will be liable for fines of not more than $500 for each day that the violation, not to exceed $10,000, or two years of imprisonment, or both. There is a safe harbor for individuals who believe that a submitted report contains inaccurate information, and then voluntarily and promptly submit a corrected information report. 

 

What Should I Do Now?  

-Assess the Facts:  Entities should evaluate whether they meet the criteria of a “Reporting Company.”  If an entity meets the criteria for reporting, then further steps should be taken.  

-Prepare for and Gather Information:  Entities should gather and maintain the information needed for reporting.  This may require changes to the entity’s corporate by-laws, in connection with obtaining information about the beneficial owners, or authorizing the filing.  

-Consult:  Entities may want to seek legal advice, particularly regarding whether the criteria for Reporting Company applies to the specific entity, as well as regarding other requirements for reporting.  

-File a Report if Required:  Companies should not wait until December to file – it is easy to forget the deadline, and questions can arise that can delay the filing process.  

 

Please contact us if you have any questions.  Also, please contact us as soon as possible if you would like our assistance with this, as we must prepare for this work.      

FCC Releases NPRM Seeking Comment on Proposal to Require Subscriber Rebates for Retransmission Consent Blackouts

On January 17, 2024, the FCC released a Notice of Proposed Rulemaking (“NPRM”) seeking comment on a newly proposed requirement for cable operators and direct broadcast satellite (“DBS”) providers, which, if enacted, would require those cable operators and DBS providers to make available rebates to their subscribers for programming blackouts caused by failed retransmission consent or carriage renegotiations. 

If adopted, the new rule would add an arrow to the Commission’s quiver as it seeks to address what the FCC states is an increasing number and duration of broadcast station blackouts across the country over the past decade.  This NPRM comes while another FCC proposal is being considered that would require multichannel video programming distributors (“MVPDs”) to notify the Commission when a blackout occurs due to a breakdown in retransmission consent negotiations. 

The NPRM specifically seeks comment on (i) how to apply the new rule; (ii) whether to specify the method that cable operators and DBS providers must use to offer the rebates and, if so, how they should issue rebates; (iii) the FCC’s statutory authority to adopt the proposed rebate rule; (iv) how the FCC should enforce the proposed rebate rule; (v) the costs and benefits of such a rule; (vi) the effects that such a rule would have on digital equity and inclusion; and (vii) any other alternative proposals to ensure that subscribers are made whole when they lose access to programming due to blackouts, which are inherently beyond their control.  The Commission also invites the public to provide comments on why the number of blackouts has increased so substantially in recent years.  

If you have any questions or would like assistance with preparing comments to the NPRM, please contact your FHH attorney.

FCC Proposes to Prioritize Application Processing for Stations that Provide Locally Originated Programming

On January 17, 2024, the FCC released a Notice of Proposed Rulemaking (“NPRM”) seeking comment on a proposed rule that would prioritize review of certain broadcast applications filed by stations that certify that they provide locally originated programming.

Eligible Stations

Under the proposed rule, priority review would be available to radio and television stations (excluding boosters and translators) that certify that they air locally originated programming for at least 3 hours per week, on average. Such priority review would be further limited to “complex” applications, or applications for which processing is not immediately available because of an existing hold, petition to deny, or other issue that required further staff attention. Since the majority of applications that might be eligible for priority treatment are currently processed routinely, the questions of how the FCC staff might define “complex” and on what basis, as well as how impact this policy would have, become more interesting.

Qualifying Programming

What Counts as Local?

The FCC is seeking comment on how it should define “local” for the purposes of granting priority application review. It specifically asked whether it should adopt a definition based upon the station’s community of license like that used in the now-repealed main studio rule, or whether the “local” market could simply be defined as the station’s service contour.

When is Programming Locally Originated?

As to what would qualify as “local program origination,” the NPRM proposed looking to “any kind of activity” that occurs within the local market. Activities like program scripting, recording, or editing would presumptively qualify. But the FCC specifically is requesting comments on what other activities should qualify as local program origination.

The FCC offered some examples of locally-originated programming, such as music played by an on-site DJ, broadcasts of local school and music events local venues or festivals. Commenters may propose other potential examples. In addition, the FCC sought comment on whether repetitive programming, automated programs, and time-shifted recordings of non-local programming should be excluded from consideration.

How Much of the Program Should be Locally Originated?

Under NPRM, programs would not need to be 100% locally originated to qualify. Instead, a program would simply need to include an element of local creation. However, for programs that contain content made entirely outside of the local market, the FCC sought comment on whether it should require that a minimum portion be locally originated.

Minimum Program Hours

The FCC proposed awarding priority to licensees providing, on average, at least three hours of locally originated programming per week. The FCC is seeking comment on the exact number of hours that it should require, whether eligibility should be limited to stations that satisfy the average for a set period of time, and maintain the average after submission of the application.

Eligible Applications and Priority of Review

Under the proposed rule, only applications for license renewal, assignment of license, and transfer of control would be eligible for priority review. The FCC stated that other applications typically require less processing time but did not elaborate on the differences. Still, the FCC sought comment on whether other applications should be eligible.

For applications that involve multiple stations, the FCC proposed making priority review available only if the applicant certified that all stations listed on the application comply with the criteria. The NPRM is seeking comment on that proposal.

As noted above, the Commission proposed limiting priority review to only applications with some sort of issue. The NPRM proposes prioritizing “complex” applications filed with a certification before those filed without a certification. “Simple” applications, or applications without processing issues, theoretically would not be delayed. It is somewhat unclear, however, whether the definition of applications with issues might shift, or, with limited staff resources, some applications can be prioritized over others without causing delays to the others. On the other hand, prioritization of certain applications could bring the staff to the decision point on difficult issues sooner The NPRM is seeking comment on this approach.

Finally, the FCC proposed making the certification a purely voluntary section in the application. Applicants that choose not to certify will have their applications processed under existing procedures and substantively identical standards. Of course, since those applications without a certification will come after both routine applications and priority, “complex” applications, processing times almost necessarily will increase.

The Commission also spend a great deal of time discussing the now repealed main studio rule, as well as the much longer ago repealed program origination rule, but did not propose reinstituting those rules. The Commission also did not acknowledge that while it has stated a preference for local programming in the past, there is no current, legal requirement for locally originated programming.

Comments in this proceeding will be due 30 days from Federal Register publication of the NPRM. Reply comments will be due 60 days after such Federal Register publication.

For more information or to discuss commenting on any of these proposed rules, please contact your attorney at Fletcher, Heald & Hildreth.

FCC Releases NPRM Proposing New Reporting Requirements for Retransmission Consent Blackouts

On December 21, 2023, the FCC released a Notice of Proposed Rulemaking (“NPRM”) proposing new reporting requirements for multichannel video programming distributors (“MVPDs”).  The amendments to the FCC’s rules, if enacted, would give MVPDs 48 hours to notify the FCC when a blackout of 24 hours or more of a broadcast television station, or stations, occurs on a video programming service due to a breakdown in retransmission consent negotiations.  The new rules would also require that MVPDs notify the FCC within two business days of a blackout’s resolution.  The FCC has invited public comment on its proposals, and commentators have 30 days from the NPRM’s publication in the Federal Register to do so. 

The newly proposed rules come on the heels of an increasing number and duration of broadcast station blackouts on MVPD platforms across the country over the past decade.  Under existing FCC rules, broadcast television stations and MVPDs are required to negotiate retransmission consent agreements in good faith, and if a party to a retransmission consent negotiation believes the other party has not acted in good faith, it may file a good faith complaint with the FCC.  The FCC historically has relied, at least in part, on good faith complaints to ascertain the market landscape for blackouts.  However, in the NPRM, the FCC found that “given that many broadcast station blackouts on MVPD platforms occur without either party filing a complaint with the Commission, we cannot rely on good faith complaints to inform us when a deal impasse has resulted in a blackout, nor can we consider such complaints an accurate sampling of significant service disruptions.”  The FCC also depends on media reports or informal communications with staff to learn of breakdowns in negotiations and resultant blackouts.  Given the secondhand nature of these information sources and the accompanying uncertainties of what is essentially an ad hoc process, the FCC posits that the new notification requirements are in the public interest.  

Specifically, MVPDs would be required to notify the FCC both at the start and conclusion of a qualifying broadcast station blackout (i.e., one that exceeds 24 hours in length) through a new online reporting portal.  The new online portal would be modeled after the FCC’s Network Outage Reporting System (“NORS”) and “would use an electronic template to promote the ease of reporting and encryption technology to ensure the security of the information.”   

If a qualifying blackout occurs, MVPDs would have 48 hours to provide basic blackout information to the FCC (the “Initial Blackout Notification”).  The NPRM proposes that MVPDs provide the following information in the Initial Blackout Notification: (i) the name of the reporting entity; (ii) the station or stations no longer being retransmitted, including network affiliation(s), if any, of each affected primary and multicast stream; (iii) the name of the broadcast station group, if any, that owns the station(s); (iv) the Designated Market Areas in which affected subscribers reside; and (v) the date and time of the initial interruption to programming.  Subscriber information would be provided confidentially through the new online portal, without the need for a separate filing.  

Once a blackout is resolved, MVPDs would then have two business days to publicly identify the date retransmission resumed and provide updated information via another notification (the “Final Blackout Notification”).  The amended data contained in this notification would be public. The FCC specifically requests comment on the information disclosures required, the proposed two-business-day reporting window, and the public treatment of the disclosures. 

If you have any questions or would like assistance with preparing comments to the NPRM, please contact your FHH attorney.  Happy New Year from FHH! 

FCC Releases Report and Order Concluding Its 2018 Quadrennial Regulatory Review

After receiving a mandated deadline from the U.S. Court of Appeals for the D.C. Circuit, the FCC presented its long-awaited Christmas gift to the broadcast industry with the December 26 release of the 2018 Quadrennial Review Report and Order (“R&O”).  By a 3-2 vote, with both Republican commissioners dissenting, the R&O found that the FCC’s existing broadcast ownership rules, with some minor adjustments, remain necessary and in the public interest.  This FCC action brings to a close yet another chapter in the FCC’s Sisyphean saga of quadrennial reviews and resultant litigation.

The FCC opted to retain outright the Dual Network Rule, finding that the existing prohibition against common ownership of two or more affiliates of the Big Four broadcast networks (ABC, CBS, Fox, and NBC) in a market remains necessary.  The majority opinion reasoned that “loosening the rule to allow a combination between Big Four broadcast networks would lessen competition for advertising revenue and likely subsequently result in the remaining networks paying less attention to viewer demand for innovative, high-quality programming.”  Further, the Democratic majority of Commission found that the Dual Network Rule increases the bargaining power of local broadcast affiliates and empowers them to influence network programming decisions in ways that better serve the interests of their local communities.  Rather than contract the Dual Network Rule, the FCC’s R&O expands it by preventing the use of LPTV and digital multicast affiliations to circumvent the existing embargo on acquiring a second top-four ranked television station in a market.

By an equally-divided Commission, the FCC also voted to keep in place the Local Radio Ownership Rule, with minor adjustments aimed at making permanent the long-employed interim contour-overlap methodology used to determine ownership limits in areas outside the boundaries of defined Nielsen Audio Metro markets and in Puerto Rico.

The FCC also adjusted the methodology used under the Local Television Ownership Rule to determine station ranking within a market.  Specifically, a television station’s audience share ranking in a Nielsen Designated Market Area (“DMA”) will now be determined based on “the combined audience share of all free-to-consumer, non-simulcast multicast programming airing on streams owned, operated, or controlled by that station as measured by Nielsen Media Research or by any comparable audience ratings service.”  Additionally, the Commission specified a definite time period over which ratings data should be averaged and updated the relevant daypart used to make audience share and ratings determinations.

To the limited extent that the R&O makes any substantive updates to the rules, the changes won’t take effect right away.  The Office of Management and Budget must first review any changes that involve “information collections” while the rest will become effective 30 days after the R&O first appears in the Federal Register.  If you have any questions or would like assistance with complying with these new rules, please contact your FHH attorney.  Until then, we wish you a very Happy New Year!

FDA Adopts New Rules Requirements for “Side Effects” Statements in Prescription Drugs Ads on Broadcast Stations

The Food and Drug Administration (“FDA”) has adopted a Final Rule requiring that when a direct-to-consumer TV or radio ad for a prescription drug makes statements relating to side effects of the drug, those statements must be presented in a “clear, conspicuous, and neutral manner.”  This Final Rule implements one requirement of the Federal Food, Drug, and Cosmetic Act.

Advertisers must begin complying with this rule commencing November 20, 2024.

The FDA will use the following standards to determine whether the statement is presented in compliance with the new rule:

  • Present all information in consumer-friendly language and terminology that is readily understandable;
  • Present audio information regarding the side effects in a manner that is at least as understandable as the audio information presented in the rest of the ad with respect to volume, articulation, and pacing;
  • If in a TV format, present the information using audio and text concurrently, and  present written text on a contrasting background for a sufficient duration and in a size and font that would allow the information to be read easily; and
  • Not include distracting elements, whether in text, images, and/or sounds, which would detract from the statement of side effects.

If you have any questions about these new prescription drug ad requirements or how they should be applied, please contact your friendly FHH attorney.

FCC Adopts Report and Order Allowing Certain LPTVs to Convert to Class A Television Stations

On December 12, 2023, the FCC adopted a Report and Order (“R&O”) providing certain qualifying Low Power TV (“LPTV”) stations with a limited opportunity to convert to Class A status.  The R&O came after the FCC circulated a draft last month and implements the requirements of the Low Power Protection Act (“LPPA”), which is intended to provide eligible LPTV stations with a limited window of one year to apply for a Class A license.  Unlike LPTVs, Class A television stations enjoy primary status, and thereby a measure of interference protection from full service television stations. 

In order to qualify for a Class A license, LPTV stations must: 

  • have satisfied the same requirements applicable to stations that qualified for Class A status under the Community Broadcasters Protection Act of 1999 (“CBPA”), including the requirements with respect to locally produced programming during the 90-day period preceding the date of enactment of the LPPA (i.e., between October 7, 2022 and January 5, 2023); 
  • during that same 90-day period, have complied with the FCC’s requirements for LPTV stations; 
  • satisfy the Class A Service requirements of 47 CFR § 73.6001(b)-(d) or any successor regulation, which contain the requirements that Class A stations broadcast a minimum of 18 hours per day and broadcast an average of at least three hours per week of locally produced programming each quarter; 
  • demonstrate that it will not cause any interference as described in the CBPA; and 
  • demonstrate that, as of January 5, 2023, the station operated in a Designated Market Area (“DMA”) (as defined by the Nielsen Local TV Report) with not more than 95,000 television households.  If the population in the station’s DMA later exceeds the threshold amount for specific reasons beyond the station’s control, this requirement will not apply. 

The filing window will open on the date that the FCC’s rules implementing the LPPA become effective and cease one year thereafter.  However, if an applicant faces circumstances beyond its control that prevent it from filing by the deadline, the FCC will examine such instances on a case-by-case basis. 

The FCC also found that television translator stations are unlikely to satisfy the eligibility requirements of the LPPA, and that LPTV stations that have not completed their digital transitions prior to the 90-day period preceding the enactment of the LPPA are not eligible for Class A designation.  Additionally, the FCC declined to extend must carry rights to LPPA Class A stations and declined to adopt a requested de minimis exception to the DMA eligibility requirement. 

If you have any questions or would like assistance with converting your LPTV to Class A status, please contact your FHH attorney.  Merry Christmas and happy holidays from FHH! 

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