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November 2009
On December 1, 2009, the FTC’s newly-revised Guides on Endorsements and Testimonials will become effective. Broadcasters, including their on-air talent, need to know when a claim is an endorsement/testimonial, what on-air disclosures may be required, and what their obligations are to ensure that claims are truthful and not misleading. These endorsement/testimonial-related issues can arise in a variety of contexts, including when station personnel voice commercials, prepare copy for advertisers, engage in banter regarding a product or service, serve as a spokesperson for an advertiser, or provide content to their station websites.

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November 2009
In a Public Notice released by the FCC today, the Media Bureau has announced that it has extended to January 11, 2010, the prior December 15, 2009 deadline for commercial radio and television broadcast station licensees to file their Biennial Ownership Reports on revised FCC Form 323.

This announcement comes as a great relief to licensees of commercial broadcast stations given that the electronic version of revised FCC Form 323 is not yet available on the FCC’s CDBS system for uploading of data.

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November 2009
All commercial and noncommercial educational digital television broadcast station licensees and permittees must file FCC Form 317 to report whether their stations provided ancillary or supplemental services at any time during the twelve-month period ending on the preceding September 30. The FCC Form 317 is due by December 1, 2009. Electronic filing of FCC Form 317 is mandatory. Paper versions will not be accepted for filing unless accompanied by an appropriate request for waiver.

Ancillary or supplementary services are all services provided on the portion of a DTV station’s digital spectrum capacity or bitstream that is not necessary to provide the required single free, over-the-air signal to viewers. Thus, any video broadcast signal provided at no direct charge to viewers is exempt. According to the FCC, examples of services that are considered ancillary or supplementary include, but are not limited to, “computer software distribution, data transmissions, teletext, interactive materials, aural messages, paging services, audio signals, subscription video, and the like.”

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11/11/2009
In Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009), the Ninth Circuit held that unsolicited text messages to mobile phones sent by a retailer may constitute a “call” in violation of the Telephone Consumer Protection Act (the “TCPA”). This decision has sparked an increase in consumer class actions filed against retailers who send advertisements to consumers by text message.

The TCPA makes it unlawful “to make any call” using an automatic telephone dialing system (“ATDS”) to, among other things, a mobile telephone or pager. 47 U.S.C. Section 227(b)(1)(A). Congress enacted the TCPA in 1991, before text messaging was available, and intended it to prohibit automated voice calls from telemarketers to mobile phones. The U.S. Court of Appeals for the Ninth Circuit, in Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009), extended this consumer protection to text calls made using ATDSs.

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November 2009
This Broadcast Station EEO Advisory is directed to radio and television stations licensed to communities in: Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota and Vermont, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

Introduction
December 1, 2009 is the deadline for broadcast stations licensed to communities in the States/Territories referenced above to place their Annual EEO Public File Report in their public inspection files and post the report on their website, if they have one.

Under the FCC’s EEO rule, all radio and television station employment units (“SEUs”), regardless of staff size, must afford equal employment opportunity to all qualified persons and practice nondiscrimination in employment.

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10/28/2009
Last week the FCC launched a Notice of Proposed Rulemaking (NPRM) proposing to adopt six “open Internet” rules that would bind all broadband access providers, including those providing mobile and satellite broadband services. If adopted, the rules could have pervasive and lasting effects in many industry sectors, including broadband, voice and video service providers, infrastructure, device, chipset and other component vendors, content publishers and distributors, software publishers, and application service providers.

The NPRM abandons the “net neutrality” moniker in favor of a new phrase, “the free and open Internet.” Nonetheless, views on every aspect of the debate remain highly polarized, driven by vast economic stakes in the outcome, disagreements about the factors that have made the Internet a success, philosophical differences about the nature of the Internet and disagreement over the role of the FCC in 21st century communications. The NPRM puts the FCC at center stage in the debate for now, but the federal courts and Congress may take prominent or even decisive roles. Some parties, notably including two of the five sitting FCC commissioners, question the FCC’s legal authority to adopt and enforce the rules it has proposed. If the federal courts agree, the FCC will have to re-tool its approach or look to Congress to expand its jurisdiction.

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10/16/2009
The FCC issued two Public Notices today which, together: (1) impose a freeze on the filing of all FM commercial and noncommercial educational (“NCE”) minor change applications from 11:59 pm, November 25, 2009, through December 18, 2009; (2) impose a freeze, beginning today, October 16, 2009, through December 18, 2009, on any applications proposing to modify the reference coordinates of 67 vacant non-reserved FM Band allotments listed on Attachment A of the Public Notice (attached hereto), as well as on any petitions or counterproposals that propose a change in the channel, class, community, or reference coordinates of those allotments; and (3) create a filing window for applications for those 67 vacant FM allotments reserved for NCE use.

With respect to the NCE filing window, the FCC announced that it will accept applications for the vacant 67 NCE FM allotments on Channels 221 through 300 from Friday, December 11, 2009, until Friday, December 18, 2009.

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10/15/2009
On October 5, 2009, the Federal Trade Commission announced that it finalized the update to its Guides Concerning the Use of Endorsements and Testimonials in Advertising (the “Guides”), which have been in effect in their current form since 1980.1 The evolving practice of companies marketing their goods and services through bloggers and other “new media” received special attention.

The FTC’s changes now make explicit that the principles in the Guides apply to a company’s marketing of its products or services through third parties using “new media,” such as blogs and social networks, and that both advertisers and their “sponsored” endorsers have responsibility for the content of such endorsements as well as for disclosure of commercial links that consumers would not expect to exist between the advertiser and the endorser (such as payments or free products in exchange for a blog post containing a positive product review). The update also includes a couple of changes to the old rules, including the elimination of the safe harbor originally authorized under the 1980 Guides for ads with unrepresentative consumer testimonials–in most such ads now, including a disclaimer such as “results not typical” or “results may vary” will no longer be sufficient.

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10/2/2009
As we wrote in an earlier Advisory, the FCC adopted an order in April 2009 revising FCC Form 323, its Ownership Report form for commercial stations. It also expanded the types of entities and licensees required to file Form 323, announcing that owners of all commercial AM, FM, TV, LPTV and Class A TV stations would need to file the new form by November 1, 2009. The FCC later suspended its existing biennial Ownership Report filing requirement for stations that were to have filed in June, August, or October of 2009, since those stations would have to file the new Form 323 by November 1, 2009 in any event.

At this time, the Office of Management and Budget (OMB) has not yet approved the new Form 323 for use by the FCC. In response to numerous calls from station counsel and industry representatives, the FCC today announced that it is suspending the requirement that stations file the revised Form 323 by November 1, 2009. Instead, stations will be required to file the new Form 323 by a date to be later announced by the FCC that is at least thirty days after the release of a public notice of OMB approval of the new form. In the meantime, the FCC announced that it will continue to suspend the filing of biennial ownership reports on existing Form 323 until the new form is available.

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September 2009
As previously reported, stations that have not yet completed construction or commenced operation of their final post-transition DTV facilities must continue the required general DTV Consumer Education Initiatives until they commence operation on their post-transition DTV facilities. Such stations will be required to file another FCC Form 388 by October 10, 2009, providing the Commission with the details of the DTV Consumer initiatives that they performed between July 1 and September 30, 2009.

By October 10, 2009, those television stations, which completed construction and commenced operation with their post-transition final DTV facilities after June 30, 2009 or have not yet completed construction and commenced operation of their post-transition digital facility, are required to report on the DTV Education Initiatives undertaken in the months of July, August and September by electronically filing the FCC Form 388. The FCC Form 388 is also required to be placed in the station’s public inspection file by October 10, 2009 and posted by that date to the station’s website, if it has one. Details of the FCC’s DTV Consumer Education requirements can be found in our Advisory, “FCC Adopts New DTV Consumer Education and Reporting Requirements,” available on the firm’s website, www.pillsburylaw.com.

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