All posts by David Oxenford

FEC Seeks Comment on Proposal for Change in TV Political Disclosures

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David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP

We usually think of the FCC as the agency that sets the details of the broadcast disclosure obligations for political candidate’s TV ads. But the Federal Election Commission has its own rules for political advertising that are binding on the candidates, rather than on the stations. But because these ads run on broadcast stations, stations need to pay attention to them to avoid getting caught up in arguments about whether candidate ads are legal, and because the FEC rules often get adopted by the FCC. For these reasons, broadcasters need to pay attention to an entry in today’s Federal Register, where the FEC gives notice of its receipt of a Petition for Rulemaking proposing changes to the textual disclosures made in TV political ads.

Right now, the written disclosures of the sponsor of political ads need to run at 4% of vertical picture height for not less than 4 seconds – the same requirement reflected in both the FEC and FCC rules. The proposal on which the FEC seeks comment suggests that the screen height requirements in the current rules are outdated in the digital television world. According to the Petition, current industry guidelines for a normal disclaimer size is 22 pixels (approximately 2% of the vertical picture height) using HD resolution. Thus, the Petition suggests that 2% be adopted as the standard for political disclosures when shown on high definition digital television transmissions, with the 4% obligation being retained for standard definition broadcasts. After receiving comments, the FEC will decide whether to commence a formal rulemaking proceeding. Comments on this proposal are due on or before Monday, April 15, 2019.

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).

There are no additional costs for the call; the advice is free as part of your MAB membership.

Important Dates for Broadcasters in 2019 – A Broadcaster’s Calendar

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David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP

While the shutdown of the Federal government delayed FCC activities in January, with the government back in business (hopefully for the long term), we have put together a Calendar of Important Dates for Broadcasters for 2019, available here. The calendar highlights normal regulatory dates like those for Annual EEO Public Inspection File Reports, Quarterly Issues Programs Lists, Quarterly Children’s Television Reports and Biennial Ownership Reports, it also includes dates relevant to the repacking of the TV spectrum and, something that we have not seen in the last 5 years, dates relevant to the radio license renewal cycle that begins this year. We also have the December start dates for the lowest unit rate windows for the Iowa Caucuses and New Hampshire primary. While this is not a comprehensive list of all regulatory dates that a broadcaster can expect, and while there can be some changes in these dates as the year goes on, it does provide a start keeping you on top of your regulatory burdens. Obviously, consult your own counsel for dates that affect your own station.

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).

There are no additional costs for the call; the advice is free as part of your MAB membership.

Update on Updating the Public Inspection File Post-Shutdown

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David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP

On January 30, we published an article talking about an FCC public notice extending all filing deadlines that fell between January 8 and February 7 (except those dealing with auctions and other activities of the FCC unaffected by the government shutdown) to February 8. The article also mentioned that the FCC gave stations that had not been able to upload material into their public inspection files during the shutdown until February 11 to complete the upload of required public file materials – including specifically the Quarterly Issues Programs lists that should have been uploaded by January 10. This led some broadcasters to ask about public file documents that are now due to be uploaded – e.g. EEO Public Inspection File Reports due to be included in the public file by February 1 by stations in certain states (see our article here for a list of the states) – can stations wait until February 11 to upload those documents? Apparently not, we are hearing from the FCC, as the public notice about the February 11 deadline says that it applies only to documents that were to be uploaded to the public file between January 3 and January 28. So documents that are to be uploaded by February 1 would not be among those with the extended deadline. Obviously, consult your own counsel for details on all of these deadlines – but it looks like, if you have a public file February 1 – you should meet that deadline.

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).

There are no additional costs for the call; the advice is free as part of your MAB membership.

January Regulatory Dates for Broadcasters – The Shutdown Does Not Put Everything on Hold

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David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP

We typically publish our article about upcoming regulatory dates before the beginning of each month, but this month, the looming FCC shutdown and determining its effect on filing deadlines pushed back our schedule. As we wrote on Friday, the effect of the shutdown is now becoming clear – and it has the potential to put on hold a number of the FCC deadlines, including the filing of Quarterly Children’s Television Reports due on January 10 and the uploading of Quarterly Issues Programs lists, due to be added to station’s public inspection files on January 10. The FCC-hosted public inspection file database is offline, so those Quarterly Issues Programs lists can’t be uploaded unless the budget impasse is resolved this week. Certifications as to the compliance of TV stations with the commercial limits in children’s television programs would also be added to the public file by January 10 – if it is available for use by then. While these and other dates mentioned below may be put on hold, there are deadlines that broadcasters need to pay attention to that are unaffected by the Washington budget debate.

We note that the FCC’s CDBS and LMS databases are up and operating, though most filings will be considered to be submitted the day that the FCC reopens. As the databases are up and operating, many applications can be electronically filed – so TV stations might as well timely upload their Children’s Television Reports on schedule by January 10, to avoid any slow uploading that may result from overloading of the FCC’s system as the FCC reopens. Other FCC deadlines are unaffected by the shutdown – most notably, as we wrote on Friday, those that related to the repacking of the TV band following the TV incentive auction. The FCC has money to keep its auction activities operating so staff are working to keep the repacking on track. Deadlines coming up for the repacking include a January 10th deadline for stations affected by the repacking to file their Form 387 Transition Progress Report. Auction deadlines proceed whether or not the FCC is otherwise open for business.

FCC filing deadlines in certain rulemaking proceedings may well also be on hold if the shutdown continues. Deadlines for pleadings will be pushed back to the day after the day the FCC resumes its normal operations. Comments are due in the FCC’s proceeding to determine what to do with Class A “clear channel” AM stations on January 22 (see our summary here), but these could be affected if the shutdown persists.

Even the FCC meeting scheduled for January 30 could be in jeopardy if the shutdown runs through the end of the month. That meeting is scheduled to feature the adoption of the FCC’s order abolishing the FCC Form 397 Mid-Term EEO Report (see the draft order here, released last week) and the start of a rulemaking proceeding to make some changes in the FCC’s standards for deciding between mutually exclusive applications for new noncommercial broadcast stations, including LPFM facilities (see the draft order here).

Early February brings the obligation for EEO Public Inspection File Reports to be uploaded to the public file of Commercial and Noncommercial Full-Power and Class A Television Stations and AM and FM Radio Stations in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma that are part of an Employment Unit with 5 or more full-time employees. Stations with those due dates should be prepared to upload their Public File Reports by February 1 if the FCC’s Public Inspection File database is up and operating by then.

Deadlines not affected by the shutdown include ones imposed by other government agencies. For instance, the Copyright Office and Copyright Royalty Board are not affected by the shutdown. We would expect that the CRB will this month be issuing its invitation for interested parties to file Petitions to Participate in the next proceeding to determine the royalty rates to be paid to SoundExchange for the digital performance of music by webcasters (see our article here). As we wrote here, with the increase in digital performances of broadcast stations through Alexa and other smart speakers, it is more important than ever for broadcasters to secure a reasonable royalty rate for the streaming of their signals. This proceeding will determine the royalty rates for Internet radio for 2021-2026.

Upfront minimum fee payments will also be due under various music license agreements by the end of the month. This would include the royalties to be paid to SoundExchange under most of the current royalty deals. For most webcasters, a payment of $500 per each channel streamed is due by the end of the month.

No doubt, other deadlines will arise this month, particularly if the government shutdown is resolved. As always, we have highlighted here just some of the more notable regulatory deadlines. Check with your own station’s counsel for more information about deadlines that may apply to your own stations.

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).

There are no additional costs for the call; the advice is free as part of your MAB membership.

Podcaster Sued for Copyright Infringement for Using Music without Permission – Remember ASCAP, BMI and SESAC Licenses Don’t Cover All the Rights Needed for Podcasting

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David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP,

It was news recently when a company that promotes poker was sued by one of the major record labels and publishing companies for the use of music in podcasts without permission. As we have written before (see, for instance, our articles here and here), the use of music in podcasts requires a license from the copyright holder of both the musical composition and the recorded performance of the music (usually, for popular music, a publishing company and a record label). In this case, one of the first we’ve seen against a podcaster for infringement of a copyright holder’s music rights (though we have heard of other situations where cease and desist letters were sent to podcasters, or where demand letters from copyright holders resulted in negotiated settlements), Universal Music alleges that the podcast company used its music and refused to negotiate a license despite repeated attempts by the music company to get the podcaster to do so. Thus, the lawsuit was filed.

As we have pointed out before, a broadcaster or other media company that has performance licenses from ASCAP, BMI, SESAC and even GMR does not get the right to podcast music – nor do the SoundExchange royalty payments cover podcasts. These organizations all collect for the public performance of music. While podcasts may require a performance license (see our article here about how Alexa and other smart speakers are making the need for such licenses more apparent as more and more podcast listening is occurring through streaming rather than downloads), they also require rights to reproduction and distribution of the copyrighted songs and the right to make derivative works – all rights given to copyright owners under the Copyright Act. These rights are not covered by the public performance licenses which only give the rights to make performances to the public. What is the difference between these rights?

The public performance right is simply that – the right to perform a copyrighted work to the public (those beyond your circle of family and friends). Making a copy of a copyrighted work is a different right, as is the distribution of that recording. Both are triggered when the podcast is downloaded onto a phone or other digital device – the manner in which podcasts were initially made available to the public. As we have written before (see, for instance, here and here), by convention (and now by the provisions of the Music Modernization Act), making available music for on-demand streaming (where a listener can choose a particular song, or a set of songs that will play in the same order all the time) has come to be considered to involve the rights of reproduction and distribution (the “mechanical royalties” covered by the MMA – see our articles here and here on the MMA).

The right to make a derivative work is another right of the copyright holder (see my article here on derivative works). A copyright owner must give his or her permission before their work is modified in some way. While that can involve the changing of lyrics to a song, it can also involve associating that song in some permanent way with other content. In the video world, that is referred to as a synch right – where the audio is “synched” to the video creating a single audiovisual work. Synch rights are not specifically defined by the Copyright Act. They have traditionally referred to audiovisual productions, but the same concept is at play in the creation of a podcast, where the music is synched to other audio content to create the podcast. In the Universal Music complaint against the podcaster, Universal complains that the podcaster violated not just the public performance rights of the copyright holders, but also their rights to authorize the reproduction, distribution, and the derivative works made from their copyrighted material.

This is all a long way of saying that podcasters need to get permission for the use of music in their productions. Many podcasters have commissioned original works where they license from local artists the recordings of music written and performed by those artists. Some online services have recently begun to develop, licensing music for podcasts for set fees. But, thus far, most of that music is not major label releases, but instead independent music. Right now, for major label releases, you need to get permission directly from the copyright holders to use their music. The bottom line – don’t use music in podcasts without getting permission.

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).

There are no additional costs for the call; the advice is free as part of your MAB membership.

Playing Music in Bars and Restaurants – Cautions When Allowing Broadcast Stations to Play in Retail Outlets

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David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP,

A few days ago, I noted a news story about a bar that stopped hosting live music when it was hit with a lawsuit by BMI because it had not paid royalties for its use of music. The issue of music in bars and restaurants also came up in a continuing legal education seminar on music licensing that I moderated the week before last. Given that I have not written on this topic in some time, I thought that it was worth a reminder that retail outlets, including bars and restaurants, have to pay music royalties to ASCAP, BMI, SESAC and perhaps GMR for the performance of music in their venues, except if they fit within very detailed exceptions that allow for certain businesses to avoid those payments.

We wrote an article here that goes into detail on the exceptions. Basically, for very small businesses, their employees can use a single device of the type used in a home to play music. This exception was designed to allow businesses to allow their employees to have personal audio devices to entertain themselves. So that portable radio on the counter of the dry cleaner or at the secretary’s desk can play music without paying royalties. For larger businesses there is a different exception that allows them to avoid liability but only if they meet very specific rules.

This exception is based on the physical size of the business and the number of broadcast receivers that it uses. It applies only when the business plays an FCC licensed radio or TV station (or cable or satellite TV programming) where the originator of the programming has paid the appropriate fees. The business that takes advantage of this exception can’t charge an admission fee. And the business must fit into one of these categories:

  • It has less than 2,000 gross square feet (excluding parking – but the parking area must be just used for parking – so the area around the gas pumps or other actively used outside areas would probably count toward the 2,000 square feet) or, for “food service or drinking establishments” (bars and restaurants), the square footage is less than 3750 gross square feet (excluding parking as long as the parking is only used for parking, e.g. it does not become a patio during good weather);
  • Or, if the business has more than the square footage set out above, then:
    • If the business only plays the radio, it can have no more than 6 total speakers, no more than 4 of which can be in one room (or adjoining outdoor space)
    • If the business plays TV, it can have no more than 4 TVs, none bigger than 55 inches (diagonal screen size), and no more than one in any room (and there can’t be more than 6 speakers providing the TV audio, with no more than 4 in any one room)

Note that this exception is not limited to consumer-type radios, but the business can only play FCC licensed radio or TV stations (cable and satellite TV count as TV too). No CDs, no hooking up to an iTunes library and no streaming services. If a business plays any of these other services, or features live music, then they must get public performance licenses.

For even more detail on these issues, see the article that I co-authored in the ABA Intellectual Property Division’s magazine Landslide that is available here. Avoid trouble – get the licenses that you need.

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).

There are no additional costs for the call; the advice is free as part of your MAB membership.

FCC Starts Warning Stations of Noncompliance with Online Public Inspection File Rules

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David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP,

On December 6, the FCC has started to email out notices to numerous radio stations throughout the country, notifying them that there are issues with their online public inspection files. The email notices do not reveal what the specific problem is – but instead simply say that there are issues and ask for notice of corrective actions to the FCC. We have been warning of the FCC’s concern about incomplete or inactive online public files for some time, and the potential impact that noncompliance could have on license renewal, which starts for radio stations in the Washington DC area in June 2019, and then moves across the country in this three-year renewal cycle (see, for instance, our articles here and here). Clearly, this is a warning to stations that the FCC is watching their public files, and that compliance problems will bring issues, and possibly fines, if the files are not complete by license renewal time (or even earlier if documents were not timely created).

As we have written before (here and here), the biggest issues will likely be with stations not uploading Quarterly Issues Programs Lists and, for stations that are part of clusters with 5 or more full-time employees, Annual EEO Public Inspection file reports. Look at your file now and make sure that you are in compliance with these and all other public file obligations to insure that you do not have issues that can come back to haunt you at renewal time – or at any other time that the FCC decides to use its enforcement authority to start issuing fines.

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).

There are no additional costs for the call; the advice is free as part of your MAB membership.

The Importance of Assessing the Safety and Security of Broadcast Stations and Their Personnel

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David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP,

A topic not much discussed among broadcasters, but one that should be paramount in the future planning of all broadcast companies, is insuring the security of their stations and the safety of their employees. This is an issue on which all broadcasters should be focusing. Last month, the Wisconsin Broadcasters Association for the second time featured a panel at one of its conventions dealing with this topic. While many might think that security issues won’t arise at their stations, in fact it can be an issue at any station in any market. Listening to the stories told by the participants on these panels, and in later discussions with audience members at the two WBA conferences where the panel has now been featured, and judging from news reports, the topic is clearly one that all broadcasters should be considering. Video of the panel held last month is available here.

While the panel was premised on protecting journalists who often are the highest profile “faces” of a TV station, from the discussion it was clear that the need for security planning is one that applies not just to TV stations with news operations, but even to radio stations and other media outlets that can, for one reason or another, be targeted by someone with a grudge against the outlet or one of its personalities. We have seen high profile incidents like the shooting of the Roanoke TV journalists or the employees of an Annapolis newspaper, and we have seen just in the last few weeks pipe bombs sent to news organizations and threats against cable TV hosts. But, as discussed at the WBA panel, there have been many less publicized incidents. Two of the panelists discussed their experiences, one a shooting at a small community-run radio station and the second an intruder making threats and smashing station property in broad daylight at a small market TV station. These incidents, beyond simply raising questions of employee safety, raise both practical and legal issues for all broadcasters.

As discussed in last month’s panel, the practical issues can be as simple as the question of how to conduct operations when your station has become a crime scene. The manager of the Wisconsin community radio station where a night-time intruder shot the on-air DJ discussed not only the security review that the incident prompted, but also the operational issues that resulted from the incident. While police investigated the incident, station employees could not get into their building to operate the station. This highlighted the need for disaster and emergency planning for all stations, not just because of incidents like this, but for any eventuality (e.g. flood or chemical spill) that could make a studio inaccessible. How does a station deal with the lack of access to their main studio? Can they keep operating if that happens? Have they made plans for such an event?

On these panels, law enforcement officials emphasized the need for planning and staff training sessions so that employees know what to do if a threat arises. Many businesses already undertake this kind of training, and local law enforcement authorities are often willing to help conduct the sessions. In the small market TV incident discussed on the panel, a stranger started banging on the front door of a TV station and then retreated to the front lawn of the station using a crucifix he had stolen from a local church to start attacking the sign identifying the station. In the video show during the discussion, a station employee can be seen running out to confront the attacker. Questions were raised as to whether the better and safer approach might have been to shelter in the studio building until law enforcement authorities trained in dealing with such situations arrived on the scene, especially without knowing what other weapons the individual might have had. Would your employees have known what to do in such a situation?

The discussion looked at other instances where stations should be assessing the safety of their employees. While technology has made it possible for station employees, by themselves, to broadcast from all sorts of remote locations, should they do so? Should the station be thinking about security before sending an employee to do a broadcast from a news scene or any other remote location – especially if the employee is going on their own?

Planning for these situations is important, and as I said in my remarks, there are already lawyers thinking about potential liability for stations that don’t do enough to keep their employees safe. Stations should be thinking about how to ensure a safe workplace, and taking active measures to reduce risks. Some companies have already started to review social media accounts of their stations and their on-air employees to try to identify threats early – as some online remarks may be indicative of real potential threats to station personnel. The FCC has eliminated the requirement that stations have a manned main studio accessible by the public during all business hours. While some stations feel that they need to maintain an accessible main studio to show their connection to their communities, others have decided that security is more important. Stations should make educated decisions about such matters, assessing the security implications of their choices.

These are not easy decisions, and there are no clear answers as to what stations need to do to keep their employees safe on the job, while still interacting with the community to provide the localism on which broadcasting thrives. In today’s world, journalists and broadcast companies are often vilified by public figures and even by private individuals who do not, for one reason or another, like what is being broadcast. Because of the attention they get, stations need to be thinking about these issues, and planning for the security issues that may come their way. We will be writing more about these questions in future articles, but start thinking about these issues now.

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).

There are no additional costs for the call; the advice is free as part of your MAB membership.

FCC Reminder About Activation of the Online Public Inspection File – Potential Impact of Noncompliance at License Renewal Time

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David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP

By March 1 of 2018, all radio stations were to have activated their online public file. We wrote about how that activation should be done here, and answered other questions about the online public file for radio here. Yet, from my own review, and from what I have heard from engineers who conduct reviews of broadcaster’s FCC compliance for the Alternate Broadcast Inspection Programs sponsored by state broadcast associations, there remain stations that have not yet complied with the requirement. The FCC has issued a reminder to all stations that their files are supposed to be live, and said that the FCC itself will be activating the file for any station that has not already done so by November 15. If they have to activate your public file, they may note that they had to do so, and that may have consequences for license renewals that will be filed for radio starting next year.

For any stations that have not activated their file, you really need to go to that file now and make sure that it is active and that all the required material is in the file. While the FCC will be automatically uploading copies of documents that are electronically filed at the FCC, every station has certain obligations where their own employees need to upload information into the file. For instance, every full-power station needs to upload on a quarterly basis its Quarterly Issues Programs Lists. As we wrote here, these lists are particularly important as they are the only way in which a licensee reports on how it served its community. With license renewals for radio starting in June 2019, a review of the online public file will likely be part of the FCC’s review of the renewal application. Not having these lists, or not having activated the file at all, will likely lead to FCC fines. So check out your online public inspection file, make sure that it is active, and that the information is complete and accurate. Failing to do so may end up costing substantial sums should the FCC find your compliance lacking – which they now can do from the comfort of their own computer, any time of any day.

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).

There are no additional costs for the call; the advice is free as part of your MAB membership.

Demands to Pull Attack Ads in the Closing Days of the Election – What is a Station to Do?

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David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP

As we approach Election Day, the political ads seem to be getting more and more frequent, and often more and more nasty. We provided an overview of what a station should do when it gets an attack ad two years ago, and the ads have not become kinder in the intervening period, so we will publish it again (with a few revisions). With the rise in the number of attack ads in this last week before the election, stations are facing more and more demands from candidates who are being attacked, asking that the ads be pulled from the airwaves because the content is not truthful or otherwise presents a distorted picture of reality. What do stations do when confronted with these claims?

We have written about this issue several times before (see, for instance, our articles here and here). In some cases, the stations can do nothing – if the attack is contained in an ad by a candidate or the candidate’s authorized campaign committee. If a candidate in his or her own ads attacks another candidate, the station cannot pull the ad based on its content. Ads by candidates and their authorized campaign committees are covered by the Communication Act’s “no censorship” provision, meaning that the station cannot (except in very limited circumstances) pull the ad based on its content (see more on the “no censorship” provision here). Because the station cannot pull the ad based on its content, the station has no liability if the candidate’s attack ad defames their opponent. In fact, we have heard of cases where a non-candidate group runs an attack ad containing claims that the target of the ad claims are untrue, where stations pull the ad, and where the claims soon reappear in the ads of the candidate who the third-party supported. When they objectionable claims are in a candidate’s own ads, the only remedy of the candidate that is being attacked is to sue the candidate who ran the ad. But what about allegedly false claims made in ads by third parties – like PACs, unions, political parties or other non-candidate groups?

Stations must take seriously any claim that a political ad that they are running is false, particularly where there is legal action threatened if the ad is not pulled from the airwaves. The Communications Act’s “no censorship rule” does not apply to third-party ads, only to candidate ads. Thus stations can pull a third-party ad because of its content. While stations need not fact- check every ad they receive, if an ad is defamatory – spreading falsehoods about a recognizable individual – it could result in civil liability to the station. Under Supreme Court precedent, statements made about public figures (such as political candidates) can be found defamatory only if the person or entity that is distributing them either knew that they were false or distributes them with “negligence,” e.g., where they had notice that the ads were false, yet they continued to distribute the false material anyway. Thus, if a station does not know that a claim in a third-party ad is false, but it is put on notice about the falsity (e.g., by a letter from an attorney representing the party being attacked), the station needs to take steps to investigate the truth of the ad.

If the station ignores a demand letter claiming that an ad is false, and keeps running the allegedly false ad anyway, and the ad is in fact false and defamatory, there is potential liability to the station. Stations should ask the sponsor of any attack ad for documentation backing up their claims, review the supporting material to see if it in fact backs up the claims made, and consult with their attorneys to determine if it is likely actionable. There are often no clear answers, so broadcast companies need to talk to their attorneys and make their own assessment of the risk of liability for continuing to run a third-party ad claimed to be untrue. Typical political claims (e.g. “candidate X is a big-spending liberal” or “candidate Y doesn’t care about our kids as he has voted against school funding increases 12 times”) are less likely to be actionable than are claims about the character, integrity and similar personal qualities of a candidate (e.g., a claim that a candidate did something illegal).

The FCC itself is not a fact checker of claims made in political ads. Many times letters demanding that attack ads be removed from the air suggest that running these ads somehow violates the FCC rules about stations operating in the public interest. Sometimes the demand letters even claim that the ads violate FCC rules against false and deceptive advertising – even though it is the FTC, not the FCC, which deals with deceptive ads. But even the FTC is not routinely involved with the political advertising process, given that the involvement of any government agency is assessing the truth or falsity of any political ad is so fraught with First Amendment issues. Generally, we don’t want a government agency deciding what is true in political ads and what is not. Thus, these questions are left to private actions for defamation.

While defamation actions against broadcasters for not pulling an attack ad are not common, there have been a few broadcast stations sued. These are stations that kept running an allegedly false political ad which they had been told was false. You don’t necessarily want to go to the time and expense involved in any such litigation, so assess these claims with your attorney once they come in. Many of these demand letters seem to be sent more to intimidate stations into pulling ads in the last few days before an election than to advance real legal claims, but you need to carefully review all the demands to make sure that the ones that you receive don’t have merit. Consult your attorney, as these are sometimes not easy calls to make.

For more on various political broadcasting issues, see our Political Broadcasting Guide, here.

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).

There are no additional costs for the call; the advice is free as part of your MAB membership.