FTC Updates Advertising Guides and Increases Scrutiny

On June 29th, the Federal Trade Commission (FTC) released updated rules to combat deceptive advertisements and endorsements. Along with new endorsement guidelines and answers to FAQs, these new rules mark a potential new era of FTC enforcement for advertisers who participate in online marketing.  

There have been huge shifts in the social media advertising landscape since the FTC last updated their endorsement guidelines in 2009. Instagram came online in 2010, the infamous Fyre Festival orange square was posted in 2016, and Twitter has completely overhauled its verification system in the past year. In other words, consumers and advertisers were due for an update on what counts as deceptive advertising online.  

Under the new rules, sponsored content still requires disclosure. Where there is a material relationship between an advertiser and an endorser, that relationship must be disclosed. The disclosure should be clear and conspicuous, and advertisers who fail to make such disclosures may face investigations and fines from the FTC. 

The new rules provide further guidance regarding the disclosure of material relationships between sponsors and social media influencers. The scope and reach of the rules has greatly expanded.  

Some additions to be aware of are: 

“Brand” is now Included in the Definition of “Product.” Advertisements may have to include a disclosure when an influencer is paid to promote a particular brand, not just a specific product or event. 

Advertisers May be Liable for False Statements by Their Endorsers. An advertiser is now subject to liability for misleading and false statements made through endorsements or for failure to disclose a material relationship. Advertiser liability may exist even where an endorser is not liable. The updated guides state that advertisers should: 

  1. Provide guidance to their endorsers on the need to ensure that their statements are not misleading and to disclose unexpected material relationships; 
  1. Monitor their endorsers’ compliance; and 
  1. Take action sufficient to remedy noncompliance and prevent future noncompliance. While not a safe harbor, good faith and effective guidance, monitoring, and remedial action should reduce the incidence of claims of noncompliance, and reduce the likelihood that an advertiser will face an FTC enforcement action. 

Clear and Conspicuous Disclosure Defined. The new FTC rules add a definition of what a “clear and conspicuous” disclosure would entail.  It now means that a disclosure is difficult to miss (i.e., easily noticeable) and easily understandable by ordinary consumers. They further explain that the disclosure should be in the same form as the endorsement itself. For example, if an endorsement is made over audio, then that disclosure should also be made over audio. 

Fake Positive Reviews are Considered Endorsements. Under the new rules, a fake positive review that is posted online is considered an endorsement and therefore subject to the disclosure rules.  

It’s a good time to review your company’s social media policy and contact your communications attorney for any help in complying with the FTC’s updated rules. 

  

Stay tuned for additional social media compliance pitfalls for broadcasters 

FCC Announces Opening of Biennial Ownership Report Filing Window

This week, the Commission issued a Public Notice announcing that the filing window for submitting biennial ownership reports will open on October 2, 2023.  All licensees of commercial and non-commercial full power television, Class A television, low power television, AM radio, and FM radio stations, as well as any entity having an attributable interest such licensees, must file biennial ownership reports this year.  These reports must be filed on Form 323 or 323-E by December 1, 2023.  The information in the report must reflect the ownership structure as of October 1, 2023.  The filing fee for ownership reports for licensees of commercial stations is $95 per station.  

Now would be a good time for broadcast licensees to review the last ownership report filed with the FCC to determine if the information remains accurate or must be updated in the report due this year.  FHH is here to assist.  Please contact us to confirm that you want our team to assist in the preparation and filing of your report(s).  If you have any questions about filing your biennial ownership reports, please contact your FHH attorney.   

TV Station Licensees: Don’t Forget the October 1st Deadline for Uploading Election of Cable TV/Satellite Status

While it’s only July, TV station licensees should be mindful of an October 1st deadline for uploading to their station online public information file (“OPIF”), the station’s election of cable TV/satellite must-carry or retransmission consent status.    

Under the FCC’s rules, for full power and certain Class A/Low Power commercial TV stations, there is a three-year cycle for electing between carriage pursuant to must-carry or retransmission consent on cable TV/satellite systems (otherwise known as multichannel video programming distributors, or “MVPDs”).   The current three-year cycle ends on December 31, 2023.   Elections for the next cycle (which begins on January 1, 2024) must be uploaded by October 1, 2023.  

Commercial full power and eligible Class A TV stations do not need to make separate elections for each MVPD – one blanket election is sufficient if the station is electing the same status for all MVPDs.   If a station elects retransmission consent on some systems, and must-carry on others, then it must specify each separate election in its online election notice.    

Election notices generally need not be sent to MVPDs.  Notice needs to be sent to an MVPD only when and if the station’s election status vis a vis that MVPD changes (must-carry to retransmission consent or vice versa, or a first-time election).  Change notices must include the station’s call letters; community of license; Designated Market Area; and station contact information (name, email, phone number).  A copy of the status change notice must be emailed to the cable operator at the address listed in the “Carriage Election Contact Information” in the cable operator’s OPIF, with a copy sent to ElectionNotices@fcc.gov, and uploaded to the station’s OPIF.     

Because full power non-commercial educational stations do not have the option of electing retransmission consent, they are not required to upload cable TV election notices, but they still must upload their satellite carriage requests to the station’s OPIF.    

In any case, stations should make sure that the “Carriage Election Contact Information” in their OPIF remains accurate.    

Since low power TV stations do not maintain an OPIF, LPTVs that have must-carry rights and are currently carried on an MVPD need not do anything if the station is not changing election status, but if the station is changing status, or making initial elections, then they must email their elections to the MVPD, and copy ElectionNotices@fcc.gov.  The email to the cable operator should be to the address listed in the “Carriage Election Contact Information” in the cable operator’s OPIF.   

Please contact us if you have questions regarding eligibility for carriage, the process of electing carriage status, or the form of election notices.

FCC Modifies Next Gen TV Multicasting Rules to Ease Transition

In a recently released Third Report and Order, the FCC has revised its Next Generation Broadcast Television (ATSC 3.0 or Next Gen TV) rules to enhance the transition from the current TV technology (ATSC 1.0).  Among other things, the Order allows a Next Gen TV station to modify its license to include certain non-primary video programming streams (multicast streams) that are aired on “host” stations during a transitional period.  The Order also extends until at least July 17, 2027, the requirement that the programming on a station’s ATSC 1.0 channel be “substantially similar’ to the programming on its ATSC 3.0 channel.  The FCC states that these actions are designed to minimize viewer disruption as much as possible during the industry-wide transition to ATSC 3.0.   

 

Background 

In 2017, the FCC authorized television broadcasters to use the ATSC 3.0 transmission standard on a voluntary, market-driven basis.  The FCC required that broadcasters voluntarily deploying the ATSC 3.0 service must, with very limited exceptions, continue to air at least their primary streams using the current-generation TV transmission standard, ATSC 1.0, to their viewers through “local simulcasting.”  Because a TV station cannot simultaneously broadcast in both 1.0 and 3.0 formats from the same facility and on the same channel, simulcasting requires a partnership between the Next Gen TV station and another broadcaster in the local market (i.e., a temporary “host” station). The partnership involves either: (1) airing an ATSC 3.0 channel at the temporary host’s facility, while using its original facility to continue to provide an ATSC 1.0 simulcast channel, or (2) airing an ATSC 1.0 simulcast channel at the temporary host’s facility, while converting its original facility to the ATSC 3.0 standard in order to provide a 3.0 channel.   

In 2017, the FCC adopted the requirement that a Next Gen TV station’s ATSC 1.0 simulcast must be “substantially similar” to that of the primary video programming stream on the ATSC 3.0 channel; i.e., the programming must be the same except for advertisements, promotions for upcoming programs, and programming features that are based on the enhanced capabilities of ATSC 3.0.  In the recent Order, the FCC stated that this approach, which this Order retains, seeks to “ensure that viewers do not lose access to the broadcast programming they receive today, while still providing flexibility for broadcasters to innovate and experiment with new, innovative programming features using Next Gen TV technology.”  The FCC previously decided, however, that the substantially-similar requirement would expire on July 17, 2023, unless extended, because it “could unnecessarily impede Next Gen TV programming innovations as the deployment of ATSC 3.0 progresses.”  Notably, though, the underlying requirement that a Next Gen TV station simulcast in the ATSC 1.0 format does not currently have a sunset date. 

The FCC’s Order also addresses the fact that existing rules do not address a guest station’s licensing of a host’s spectrum multicasting. Since the adoption of the existing rules, the Media Bureau has implemented an interim process by which a Next Gen TV broadcaster in ATSC 3.0 can seek special temporary authority (STA) to air 1.0 multicast streams on a host station.   

 

The FCC’s Recent Order 

In the recent Order, the FCC adopted rules designed to preserve consumer access to multicast programming in 1.0 format during the voluntary ATSC 3.0 transition.  The rules are intended to provide the industry with “regulatory certainty about the legal treatment of licensed multicast streams; clarify that the originating station (and not the host station) is responsible for regulatory compliance regarding a multicast stream being aired on a host station; give the FCC clear enforcement authority over the originating station in the event of a rule violation on the hosted multicast programming stream; and facilitate NCE stations’ 3.0 deployment by allowing them to serve as hosts to commercial stations’ multicast streams.”   

The main provisions of the Order are as follows: 

  • Simulcast Multicast Streams.  Next Gen TV stations may now modify their licenses to include simulcast multicast streams on one or more host stations, whether that guest stream is a 1.0 or 3.0 simulcast (“simulcast” multicast streams).  Any simulcast streams must be “substantially similar” in 1.0 and 3.0 formats.  That is, the 1.0 multicast must be paired, one to one, with an identified 3.0 multicast stream. Notably, the Order allows NCE stations to host commercial multicast streams, without violating Section 399B of the Communications Act.   
  • Non-Simulcast 1.0 Multicast Streams.  Next Gen TV stations broadcasting in 3.0 may modify their licenses to include one or more multicast streams on one or more host stations in the 1.0 format, even if they are not simulcasting that stream in 3.0 (“non-simulcast” 1.0 multicast streams). That is, a Next Gen TV station broadcasting in 3.0 on its own channel may modify its license to include one or more 1.0 multicast streams aired on a 1.0 host or hosts, even when it is not simulcasting that multicast stream on a paired stream in a 3.0 format. To permit the licensing of multicast streams on a host, each of the originating station’s guest multicast streams will be licensed as a temporary channel on the host.   
  • Limits on Licensing of Host Capacity.  The FCC limits the number of 1.0 guest streams that may be included in a single Next Gen TV’s license to those it would have the capacity to transmit in 1.0.  The goal here is to ensure that a Next Gen TV broadcaster does not use the interim flexibility of the new rules to aggregate capacity beyond that which is legally permissible today.  A Next Gen TV station must demonstrate compliance with this rule by either: (1) showing that it is seeks hosting only for streams it was broadcasting on its own 1.0 facility prior to its transition to 3.0; or (2) by providing an example of another 1.0 station that has carried or is carrying a similar programming lineup to that which it seeks to provide on hosts at the same resolution. 
  • Use of Multicast Streams to Minimize 1.0 Primary Stream Service Loss.  The FCC will allow, in certain circumstances, a Next Gen TV station to simulcast its primary stream programming both on its primary stream host and on a multicast stream carried by a different partner station, in order to minimize the impact of 1.0 primary service loss that would result if the originating station could only air its primary stream on a single host. This appears to primarily address the situation where streams are aired on LPTV 1.0 hosts.   The Order suggests, though, that this relief will not be routinely granted.    
  • Ownership. The FCC extended the “ownership waiver” that applies in the primary stream context to ensure that hosted multicast streams do not implicate the FCC’s broadcaster attribution rules, while reiterating that any changes in the rules governing multicast streams will apply equally to hosted multicast streams. 
  • Extension of Sunset of “Substantially Similar” Rule.   The Order extends to at least July 17, 2027 the sunset date of the requirement that the programming on a station’s ATSC 1.0 channel be “substantially similar’ to the programming on its ATSC 3.0 channel.  This is intended to protect consumers by ensuring that over-the-air viewers who rely on 1.0 are able to continue watching the same programming, as well as any new programming offerings on a broadcaster’s primary channel that can be reasonably provided in the 1.0 format. 
  • Extension of the Requirement to Comply with the ATSC A/322 Tech Standard.   In the First Next Gen TV Report and Order, the FCC required compliance with only two parts of the ATSC 3.0 suite of standards:  (1) ATSC A/321:2016 “System Discovery & Signaling” (A/321), which is the standard used to communicate the RF signal type that the ATSC 3.0 signal will use; and (2) A/322:2016 “Physical Layer Protocol” (A/322), which is the standard that defines the waveforms that ATSC 3.0 signals may take. The FCC, however, decided that it was not appropriate at the time “to require broadcasters to adhere to A/322 indefinitely,” since “the ATSC 3.0 standard could evolve, and stagnant FCC rules could prevent broadcasters from taking advantage of that evolution.”  The FCC therefore determined that the requirement to comply with the A/322 standard would expire on March 6, 2023, absent Commission action to extend it. The most recent Order retains the A/322 requirement at this time and extends the sunset date to July 17, 2027, based on the finding that “the A/322 requirement remains essential at this time for protecting both innovators and investors in the 3.0 space, allowing stakeholders to develop and purchase equipment with confidence.” 

 

All of the multicasting licensing rules will apply until the FCC eliminates the mandatory local simulcasting requirement. 

 

If you have any questions about the FCC’s new Next Gen TV multicasting rules, please contact us.    

Think Before You Post – FHH Attorneys Outline Risks in Social Media Marketing

What are the rules for social media advertising campaigns and the use of influencer endorsements? Seth Williams and Jackie Fisher tackled that question in Media Financial Management’s Town Hall Webinar, #Sponsored: Avoiding Risks in Social Media and Influencer Marketing. Influencer marketing—where individuals use their social media following to generate interest in brands, events, or products—has exploded in the U.S., with some sources valuing the 2022 market at $16.4 billion. Social media marketing is regulated chiefly by the Federal Trade Commission (“FTC”), whose mandate is to protect consumers from false and deceptive advertisements.  

Companies who use influencers to advertise on social media should be aware that such endorsements need to be clearly and conspicuously disclosed. Disclosure is required in any instance where an endorsement is made and there is a material relationship between the brand and the influencers. Advertisers, and sometimes influencers themselves, who fail to make such disclosures may face investigations and fines from the FTC. This is true for the social media presence of broadcasters as well. 

With a quickly growing market and a set of proposed updated rules before the FTC, it’s important for companies to ensure that they stay up to date on their social media policies and carefully review their marketing practices.  

If you have questions about your company’s social media marketing activity and compliance with applicable rules, please contact your friendly FHH attorney.  

FCC Announces LPFM Construction Permit Application Filing Window

On June 22, the FCC announced that a filing window for applications for new low power FM (LPFM) station construction permits will open on November 1, 2023 and close on November 8, 2023.  LPFM proposals in the entire FM band, from channels 201 to 300, will be eligible for filing during this window.   

This LPFM filing window is the first since 2013 and the first since the 2019 amendments to the Commission’s rules and procedures for the filing of LPFM applications and the selection and licensing of competing LPFM applications.  Those updates to FCC rules make it more difficult for applications dismissed as a result of unlicensed broadcasting to be reinstated, permit applicants to engage in discussions and agreements regarding time-share procedures before the designation of a tentative selectee, and expedite the processing of applications after a time-share agreement has been reached.   

More detailed information about filing procedures and requirements will be issued by the Commission as the filing window nears, but prospective applicants are encouraged to begin familiarizing themselves with the application process, which will require filing Form 2100, Schedule 318 in LMS.  If you have any questions regarding the LPFM filing window or the application process, please contact your FHH attorney.

FCC Announces End to System Outages and Updated Deadlines

 

On June 21st, the FCC announced that the Universal Licensing System (ULS), Tower Construction Notification System (TCNS), E-106 System, and Antenna Structure Registration System (ASR) are now operational following an outage that began on June 9th.  

As discussed in our prior blog post, the FCC had previously extended filing deadlines to address the system outages. Now, with the systems back online, the Commission has released updated guidance regarding due dates: 

Regulatory Filings in ULS and ASR. The deadlines for all regulatory filings due in these systems between June 9, 2023 and June 29, 2023 have been extended to Friday June 30, 2023.  

Special Temporary Authority. All STAs that were set to expire between June 9, 2023 and June 29, 2023 will now expire on Friday June 30, 2023

Historic Preservation Review Periods. For any review periods based on filings made in the TCNS and E-106 systems that were in progress, those periods were paused until the systems came back online. The review periods will now resume as of June 21, 2023. 

Responsive Pleadings. To the extent that due dates are extended for filings to which reply or responsive pleadings are allowed, the actual filing date will trigger the timeframes established by the Commission’s rules for reply or responsive pleadings. 

The FCC further requested in their public notice that parties consider delaying the submission of discretionary filings until after this week. For further information, you can review the Commission’s public notice or contact us at FHH with your questions. 

FCC Extends Deadlines During Certain FCC System Outages

The FCC announced that it would extend deadlines to accommodate outages in the Universal Licensing System (ULS), Tower Construction Notification System (TCNS), E-106 System, and Antenna Structure Registration Systems (ASR).  

These extended deadlines include: 

Regulatory Filings in ULS and ASR. All regulatory filings that needed to be or will need to be made in these systems starting June 9, 2023 are extended, and will remain paused until at least three business days after the Commission announces that the systems are back online. 

Historic Preservation Review Periods. For any review periods based on filings made in the TCNS and E-106 systems that were or are in progress during the period of unavailability, those review periods are paused while the systems are unavailable. The review periods will resume when the system comes back online. 

Responsive Pleadings. To the extent the due dates are extended by the Public Notice for filings to which reply or responsive pleadings are allowed, the due dates for those reply or responsive pleadings are extended by at least three business days after the affected systems become available. 

Special Temporary Authority. Any ULS filed STAs expiring on June 9, 2023 through the date the Commission announces normal ULS operations is extended for at least three business days after ULS becomes available again. Emergency STA requests should be submitted through ECFS pursuant to the Commission’s instructions for filing market-based STAs. 

In addition to these deadline extensions, the Commission noted that while they cannot waive any statutory filing deadlines, they will consider the Commission to have been “closed” for the filing of documents in the affected systems beginning at 5 p.m. EDT on Friday, June 9, 2023. The Commission will issue further notice when they are “reopen” and provide the deadline for impacted filings to be submitted. 

The Commission also noted that the CORES System is unaffected and regulatory or application fee payments can be made during this period.  

For further information, refer to the Commission’s public notice or contact us at Fletcher, Heald & Hildreth for help. 

FCC Extends Deadline for Television Stations to Implement Aural Description of Emergency Information

The Federal Communications Commission (“FCC”) has largely granted the NAB’s request and will again extend for 18 months to November 26, 2024, the effective date of the FCC’s rule governing accessibility of emergency communications. This rule requires broadcasters to provide, during non-newscast programming, an aural representation of any visual, non-textual emergency information, such as radar maps or other graphics, on a secondary audio stream. Specifically, the rule in question requires TV stations and other video programming providers to ensure that emergency information provided visually during non-newscast programming is made accessible to individuals who are blind or visually impaired through the use of a secondary audio stream to provide such information aurally. The aural description of this information must accurately and effectively convey the critical details regarding the emergency and how to respond to the emergency. This rule was originally slated to go into effect on May 26, 2015, but the deadline has previously been extended several times. It now is being extended for another 18 months, through November 26, 2024, though with conditions.

The problem with the rule has been that there still is no workable solution based on existing technology that can perform the functions required by the rule. For example, an automated text-to-speech solution cannot be used to aurally describe maps and other graphics because they do not contain text files that can be converted to speech. NAB has stated that it is hopeful that new Artificial Intelligence capabilities and/or the increased adoption of ATSC 3.0 in more markets may help. Plus, the NAB pointed out, the critical details of an emergency provided in a visual, non-textual graphics, such as radar maps, are usually duplicative of the information provided in accompanying textual crawls, which are already aurally described and therefore accessible. Accordingly, the NAB asked for a two-year extension so that the anticipated further developments can take place.

Instead, the FCC granted an 18-month extension, on the condition that the NAB file quarterly reports to provide ongoing updates. These reports must cover the following: (1) the extent to which broadcasters still need the waiver; (2) a description of the NAB’s outreach to the disability community and its efforts to develop standards and best practices and train broadcasters in their use so that critical details are conveyed to the blind or visually impaired; (3) a description of the NAB’s and broadcasters’ efforts to develop an automated solution to enable compliance with the aural description requirement; and (4) a description of training and best practices for broadcasters to offer effective communication of critical emergency information. Additionally, if an effective and preferred alternative to an automated technical solution is developed during the waiver period, subsequent reports should provide information as to the implementation of this alternative solution. The first quarterly report will be due September 1, 2023. Thus, the extension was granted the Friday before Memorial Day, and the first report will be due the Friday before Labor Day. Have a good summer, and if you have any questions, please contact your attorney here at FHH!

Fletcher Heald Attorney Matt McCormick Recognized for Outstanding Service to Broadcast Industry

The Oregon Association of Broadcasters honored retired Fletcher, Heald & Hildreth attorney Matt McCormick with the Tom McCall Leadership Award, which honors an individual for their outstanding service to the state and/or nation on behalf of the broadcast industry. The entire FHH family joins the Oregon Association of Broadcasters in offering their warmest congratulations to Matt! 

OAB also recognized Trila Bumstead as Broadcaster of the Year. In addition, KEZI-TV was awarded Television Station of the Year, and Combined Communications’ radio station KTWS, 98.3 The Twins, Bend was awarded Radio Station of the Year. The James Boyd Heritage Award was awarded to the late anchor Ron Brown from KDRV-TV, Medford. 

Congratulations to all those recognized by the Oregon Association of Broadcasters!

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