Long-pending Entercom proposal adopted … finally.
If you’re a broadcast station that conducts contests and promotes those contests on the air, the FCC has just ushered you into the 21st Century. Soon you will be able to advise your audience about the material elements of your contests by simply posting them online (as opposed to reading them on the air repeatedly during the course of the contest).
The only thing surprising about this rule change is that it took so long.
Since 1976, the contest rule (that would be Section 73.1216) has required (among other things) periodic on-air disclosure of all material elements of the contest. (You can find some examples of the rule in action here, here and here.) For many contests, that imposes a considerable burden on both stations (who must be sure to intone the rules on the air, often at auctioneer speed – or scroll them in infinitesimal print – regardless of how much that can interrupt program flow) and audience members (who have to suffer through the interruptions).
Nearly four years ago, Entercom formally asked the Commission to allow broadcasters simply to post their contest rules online, so that the rules would be available to whoever might want to consult them whenever they might want to. As Entercom put it, this would be consistent with “how the majority of Americans access and consume information in the 21st century.”
At long last, Entercom’s proposal (with some tweaks) has been adopted.
Oddly, it took the Commission nearly three years to get the rulemaking process rolling (even though, during that intervening time, nobody objected to the proposal and multiple parties enthusiastically supported it). And then it took nearly a year to crank out the relatively straightforward 11-page (not including appendices) Report and Order.
But let’s not look this particular gift horse in the mouth. Instead, let’s look at the New and Improved Contest Rule:
Moving Contest Rules Online. The most prominent aspect of the new rule: it permits broadcasters to post contest rules online in lieu of broadcasting them. The posting would have to be in writing (obviously) and would have to include all the “material terms” of the contest. It would have to be available on some website that is “publicly accessible” – that is, a site that is designed to be available, for free (with no registration necessary) on a 24/7 basis. The site can be the station’s, the licensee’s, or some other site that meets the “public accessibility” criteria. The one thing that the website homepage will have to have: a “conspicuous link or tab” that leads directly to the contest information.
The new rule is permissive, not mandatory. That is, if a licensee prefers for one reason or another to stick with on-air announcements of contest rules for some contests or all contests, it may do so.
On-air Announcement of Web Address. If you’re going to use an online site, you’ll have to let your audience know how to get to that site. This doesn’t need to be elaborate: on-air announcements like “for contest rules go to kxyz.com and then click on the contest tab” should do the trick, or anything else that will allow “a typical consumer easily to locate the website’s home page”. However you choose to announce the online site, you’ll have to do it “periodically”. This is the same less-than-specific requirement that has applied to the on-air announcement of contest rules. (The good news here is that the Commission declined to require that the website address be announced every time any on-air mention is made of the contest.)
Duration of On-line Disclosure. Online rules will have to stay online for at least 30 days following the conclusion of the contest. This is a change from the non-online rule, which imposes no requirement for on-air disclosure of contest rules once the contest is done. Of course, if a website features rules for a contest that has already come and gone, the potential for confusion arises. With that in mind, the Commission cautions that licensees “should timely label expired contest terms to make clear that a contest has ended, including the date that a winner was selected”.
Mid-contest Changes in Rules. The Commission recognizes that, in some rare circumstances beyond the licensee’s anticipation or control, a broadcaster might have to make some “limited” changes to a contest’s material terms in the middle of the contest. When that happens, if the licensee is posting the contest rules online, it must revise the online version to reflect the change and, within 24 hours of the change (and periodically thereafter), announce on the air that the rules have been changed. Such announcements must direct the audience to the website reflecting the changes. To help avoid confusion, the Commission suggests that online rules be labeled to reflect the dates of any updates. (In its discussion of mid-contest rules changes, the Commission observes – unnecessarily, we hope – that stations cannot in any event alter contest rules “unfairly or deceptively”.)
Consistency of Contest Terms. Not surprisingly, and not unreasonably, the revised contest rule requires that any on-air disclosure of a contest’s material term(s) be consistent with the online version of the rules. The Commission is obviously serious on this point: it declares that a “failure to disseminate consistent information about a contest” will be deemed a failure to (a) accurately disclose material contest terms, (b) conduct contests as announced, and (c) avoid false, misleading, or deceptive contest descriptions. And don’t think ambiguity will get you off the hook. If any ambiguous language in contest disclosures gives rise to inconsistencies, the Commission will “construe such ambiguities against the licensee”.
Before it can take effect, the new rule must be run past the Office of Management and Budget thanks to the hilariously-named Paperwork Reduction Act. Once that’s been taken care of, the FCC will let us know the effective date through a notice in the Federal Register. Check back here for updates.
Four of the five Commissioners felt compelled to pat themselves on the back for taking this step. We salute them for finally getting to this point, although we do wonder what took them so long. And now that they have, again, embraced the indisputable notion that the public does indeed routinely look to the Internet as a principal source of information, we also wonder when the Commission will revise its EEO rules along the same lines. As we have previously reported, the Commission has historically fined stations for advertising job openings solely or primarily on the Internet, rather than through other, more old-fashioned, means. With the adoption of online “local” public inspection files for television stations and, now, online publication of contest rules, the FCC has repeatedly confirmed its recognition that the Internet is a primary, if not the, go-to source of information. It doesn’t seem to make sense that broadcasters aren’t permitted to rely on it for EEO purposes as well.
And finally, we have a couple of minor quibbles with the separate statement of Commissioner Pai – a Commissioner who, as we have previously observed, seems to be the kind of dude who doesn’t roll on Shabbos. First, he says that he “proposed that the Commission modernize the Contest Rule” back in 2013. Perhaps, but credit where credit’s due: Entercom had beaten him to the punch about a year and a half earlier.
And second, he opens his statement with a reference to an episode of Saved by the Bell. As always, Commission Pai deserves major props for such cultural allusions, but we think there is a more apt one here – the classic episode from WKRP in Cincinnati titled “The Contest That Nobody Could Win”. But maybe that’s just our age showing.