Legal Question Hotline

THE INFORMATION ON SPONSOR IDENTIFICATION BELOW MAY CHANGE. THERE IS LEGISLATION IN THE 2011 WASHINGTON LEGISLATURE THAT MAY HAVE A SIGNIFICANT IMPACT ON SPONSOR IDENTIFICATION FOR CANDIDATES AND POLITICAL COMMITTEES. PLEASE CHECK WITH WSAB IF YOU HAVE A SPONSOR IDENTIFICATION QUESTION RELATING TO POLITICAL ADVERTISING

A: Sponsor Identification for Political Spots. Radio and TV stations and candidates face a bewildering array of requirements for sponsorship identification of political advertising. Some of the requirements are federal and apply only to the stations. Others are imposed by state law and, technically, do not apply to stations, but require candidates to include certain items in their advertising. The following is a compilation of the federal and state requirements for the various forms political advertising stations will encounter.

KEY:
The federal requirements applicable to stations are in TIMES ROMAN type.
The federal requirements that apply to candidates, but not to broadcasters are in ARIAL type.
The state law requirements applicable to candidates or ballot measure committees, BUT NOT BROADCASTERS are in underlined italic type.

State or Local Candidates
(Authorized by Candidate or Candidate’s Committee;
Paid for by Candidate, Candidate’s Committee or Other Person

Radio:
(a) Name of the sponsor (candidate or committee);
(b) Must say either “SPONSORED BY” or “PAID FOR BY;
(c) Must be made at beginning or end if spot is less than 5 minutes long (both, if 5 minutes or more);
(d) Must include party affiliation

State or Local Candidate (Independent Expenditure or Electioneering Communication)
(Paid for by Other Person; NOT Authorized by Any Candidate or Candidate’s Committee)

Radio:
(a) Name of sponsor;
(b) Must say either “SPONSORED BY” or “PAID FOR BY;”
(c) Must be made at beginning or end if spot is less than 5 minutes long (both, if 5 minutes or more);
(d) Must clearly state “No candidate authorized this ad. Paid for by (name, city, state);”
(e) If the independent expenditure advertisement is sponsored by a non-individual, other than a political party organization, then the following statement must also be included: “Top Five Contributors: (list the names of the 5 persons or entities making the largest contributions in excess of $700 during the 12 month period before the date of the advertisement).”

TV:
(a) Name of sponsor (person or committee);
(b) Must say either “SPONSORED BY” or “PAID FOR BY;”
(c) Must be made at beginning or end if spot is less than 5 minutes long (both, if 5 minutes or more);
(c) May be aural OR visual (if visual, 4 seconds; at least 4% of picture height; clearly readable with reasonable color contrast with the background);
(d) Must clearly state “No candidate authorized this ad. Paid for by (name, city, state);
(e) If the independent expenditure advertisement is sponsored by a non-individual, other than a political party organization, then the following statement must also be included: “Top Five Contributors: (list the names of the 5 persons or entities making the largest contributions in excess of $700 during the 12 month period before the date of the advertisement).”

Federal Candidate
Authorized by Candidate or Candidate’s Committee; Paid for by Candidate, Candidate’s Committee or Other Person)

Radio:
(a) Name of sponsor (candidate or committee);
(b) Must say either “SPONSORED BY” or “PAID FOR BY;”
(c) Must be made at beginning or end if spot is less than 5 minutes long (both, if 5 minutes or more);
(d) Must say that the spot is “AUTHORIZED BY” the candidate or committee;
(e) Must include a statement that identifies the candidate and that he or she has approved the spot.

TV:
(a) Name of sponsor (candidate or committee);
(b) Must say either “SPONSORED BY” or “PAID FOR BY;”
(c) Must be visual (4 seconds; at least 4% of picture height);
(d) Must be made at beginning or end if spot is less than 5 minutes long (both, if 5 minutes or more);
(e) Must say that the spot is “AUTHORIZED BY” the candidate or committee;
(f) Must include a statement that identifies the candidate and that he or she has approved the spot (must be either full screen view of candidate making this statement or a voice-over with a clearly identifiable photo of the candidate);
(g) Must also include a similar statement (as in (f) above) in clearly readable writing at end of spot (4% of picture height; 4 seconds duration on-screen; reasonable contrasting colors between text and background)).

Federal Candidate (Electioneering Communication) (Paid for by Other Person; NOT Authorized by Any Candidate or Candidate’s Committee)

Radio:
(a) Name of sponsor;
(b) Must say either “SPONSORED BY” or “PAID FOR BY;”
(c) Must be made at beginning or end if spot is less than 5 minutes long (both, if 5 minutes or more);
(d) Must clearly state that the spot is “NOT AUTHORIZED BY ANY CANDIDATE OR COMMITTEE;”
(e) Must include the full name and permanent street address, telephone number OR world wide web address of the person who paid for the spot;
(f) Must include the following statement “ (name of sponsor) is responsible for the content of this advertisement.”

TV:
(a) Name of sponsor (candidate or committee);
(b) Must say either “SPONSORED BY” or “PAID FOR BY;”
(c) Must be visual (4 seconds; at least 4% of picture height);
(d) Must be made at beginning or end if spot is less than 5 minutes long (both, if 5 minutes or more);
(e) Must clearly state that the spot is “NOT AUTHORIZED BY ANY CANDIDATE OR COMMITTEE;”
(f) Must include the full name and permanent street address, telephone number OR world wide web address of the person who paid for the spot;
(g) Must include the following statement “ (name of sponsor) is responsible for the content of this advertisement.” (must be audio AND either full screen view of the sponsor (individual) or a person representing the sponsor organization making this statement; or, a voice-over with a clearly identifiable photo of the sponsor (individual) or person representing the sponsor organization;
(h) Must also include a similar statement (as in (g) above) in clearly readable writing at end of spot (4% of picture height; 4 seconds duration on-screen; reasonable contrasting colors between text and background).

Ballot Measures

Radio:
(a) Name of the sponsor;
(b) Must say either “SPONSORED BY” or “PAID FOR BY;”
(c) Must be made at beginning or end if spot is less than 5 minutes long (both, if 5 minutes or more).

TV:
(a) Name of sponsor;
(b) Must say either “SPONSORED BY” or “PAID FOR BY;”
(c) May be either visual or aural;
(d) Must be made at beginning or end if spot is less than 5 minutes long (both, if 5 minutes or more).

Incorrect or Incomplete Federal Sponsor ID Elements: If a candidate spot, which is a "use," is received by the station that does not comply with the FCC’s federal sponsor identification requirements, the station may not refuse to broadcast the spot, but must add or substitute the required sponsor identification, even if it means covering up part of the candidate’s message (assuming, of course, that the candidate either cannot or will not provide the station with another spot which does comply). When there is insufficient time to pre-screen a spot for compliance, the FCC will allow a station to run a spot the first time without risking a violation. Once aired, however, the station must add the required sponsor identification if the spot is not in compliance. Otherwise, the station will be in violation of the FCC’s sponsor identification rule. The station may not broadcast a ballot measure or independent expenditure spot which does not comply with the FCC’s federal sponsor identification requirements, without risking a violation of the FCC’s sponsor identification rule.

Incorrect or Incomplete State Sponsor ID Elements: If a spot airs which does not contain material required by state law, e.g., party affiliation or the additional disclaimers required for electioneering communications or independent expenditures for state or local candidates and ballot measures, the station will not be in violation of the FCC’s political broadcasting sponsor identification rule. The station should inform the sponsor that the spot does not comply with state law and should be changed to avoid a violation of state law. Where the spot is a "use" by a legally qualified candidate, the FCC’s "no censorship" rule applies and, as a result, the station cannot refuse to broadcast the spot if the candidate insists. In that case, the station should prepare a release for signature by the candidate that the candidate has been informed that the spot is not in compliance with the sponsor identification requirements of state law and insists that the station broadcast the spot in that condition. If the candidate refuses to sign the release, the station must still broadcast the spot, but should keep the unsigned statement along with a memo to the file describing the efforts to inform the candidate of the sponsor identification requirements.

Name of Campaign Treasurer

Neither the name of the campaign committee treasurer, other officers, the address nor the telephone number of the committee are required to be included in the announced sponsor identification required by federal or state law, unless specifically listed above.

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CANDIDATE ACCESS TO STATION
THE WEEKEND BEFORE THE ELECTION

Q: Do we have to make sales reps or production staff available to candidates who want to buy time or make copy changes on the weekend prior to the election?

A: Maybe. The FCC's Rule regarding candidate access to the station on the weekend prior to the election applies only to candidates for federal office (President, Vice President, United States Senate and United States House of Representatives). It is part of a federal candidate's right of "reasonable access." If the station has provided weekend access to any advertiser anytime within the 12 months preceding the election, then the station must provide that same availability to federal candidates on the weekend prior to the election. The station is required to provide only those kinds of access which were provided to any advertiser during the prior year. For example, if the station provided only the ability to change copy, but not an account exec available to sell additional time, then the station need only provide copy change access.

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STATION LIABILITY FOR STATEMENTS
IN POLITICAL SPOTS

Q: Close to the election, we often receive calls from a candidate or one side of an issue demanding that we take the other side's spots off the air. Is the station liable for false or slanderous statements in these spots?

A: Candidate Spots ("uses"). In a spot paid for by the candidate or his/her campaign committee in which the candidate appears, i.e. a "use," the U. S. Supreme Court has ruled that a station cannot be held liable for defamatory remarks made in such a spot.

Issue Ads/Third Party ("Soft Money") Spots/Ballot Measure Spots. Stations could be liable for slanderous comments made in spots for ballot issues or third party "soft money" spots because these spots are not "uses" by a candidate. The station's obligation is no different with these spots, however, than it is with a spot by any regular advertiser.

If a station feels that a claim in a spot is misleading on its face, the station has an obligation to investigate, ask the sponsor for substantiation, and make an informed decision whether to run the spot. If a spot seems fine, but a challenge is raised once it's on the air, the station's obligation is the same.

Defamatory Content. Slanderous statements need to be caught before they go on the air. Non-"use" spots should be screened to ensure that they do not contain any slanderous comments for which the station could be held liable. If the station feels that a spot contains such material, it can ask for substantiation of the claim and make its decision to air the spot or not based on the facts presented.

Why You Get These Calls. It is no coincidence that demands for stations to take political spots off the air come within the last three weeks, or so, before the election. It is purely a campaign tactic. Campaign organizations are not trying to ensure that the airwaves contain only the "truth." They want to make sure that the airwaves don't contain their opponents spots in the crucial final days prior to the election.

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PRIMARY ELECTION "OPPOSING" CANDIDATES

Q: There are quite a few candidates running in both parties' Primary Elections for Governor. During the period leading up to the Primary Election, when one gubernatorial candidate appears, do we have to provide "equal opportunities" to ALL of the other candidates for Governor, or only those within the same party as the person who ran the spot?

A: An "opposing" candidate of a candidate who appears in a "use" on your station has a right of "equal opportunities." When Washington changed from the "closed" Primary Election in which only candidates within the same party were opponents, to the "Top Two" Primary Election, the old rules changed.

Now, all candidates in a Primary Election are "opposing" candidates because the top two vote getters, no matter what party preference they may have, will face each other in the General Election. It could happen that two Republicans running in the Primary end up as the top two vote getters and would then face each other in the General Election. So now, all candidates in a Primary Election are "opposing" candidates for equal opportunities purposes.

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RETENTION OF POLITICAL MATERIALS IN THE PUBLIC FILE

Q: Now that the election is over, I want to do some "weeding-out" of the political section of our station's Public File. How long do we have to keep the files and the spots?

A: Documentation. The FCC's Rule, which requires stations to keep documentation regarding political broadcasts, mandates that the material be kept for two years. However, Washington state law requires media entities which accept political advertising to keep the same information on file for public inspection for three years following the election to which they pertain. However, any materials which relate to a complaint filed with the FCC or the Washington State Public Disclosure Commission (PDC), involving the station, must be retained until the matter is resolved.

Spots. There is no FCC or Washington State Rule which requires a station to keep a copy of the script or the tape of a political spot.

Did you know that a few years ago the PDC proposed to require stations to keep not only the documentation, but every spot as well, and for four years? They also proposed to require stations to make facilities available to the general public on demand to review any of the spots on file. WSAB defeated this proposal by educating the PDC staff and members of the Commission about the practical impossibilities of the proposal and testifying in opposition to it at the PDC's hearing on the issue!

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STATION SUPPORT OF BALLOT ISSUES

Q: There will be a number of initiatives, referenda, school bond issues and other ballot measures on the November General Election ballot. If our station wants to support or oppose one or more of these measures by giving free air-time to the campaign committees, do we have to give free time to the other side?

A: No. The FCC's ruling in a Fairness Doctrine case in December, 1991 held that the Fairness Doctrine would no longer be applied to a station's handling of ballot measures. That decision leaves the station's programming on a ballot measure completely up to the station. The station may support or oppose a ballot measure without incurring any obligation to present the opposing viewpoint.

However, in light of the FCC's decision, the Washington State Public Disclosure Commission (PDC) has ruled that any airtime which a station provides at less than fair market value to one or the other side of a ballot measure will be considered an "in-kind" contribution to that campaign. The PDC has ruled that a contribution does not include "coverage of a campaign or the issues or personalities involved in the form of news, feature, editorial, public affairs or similar programming...." But, a systematic "mention" by a talk-show host, which amounts to commercials for the ballot measure would constitute a contribution under the PDC's ruling. In the event that a contribution by the station occurs, the station must report, to the campaign committee receiving the benefit of the air-time, the value of the air-time, which can be done in the form of a letter. The campaign committee must, in turn, report that contribution to the Public Disclosure Commission in its periodic campaign finance disclosure filings.

By the way, WSAB is partially responsible for the exception for news and public affairs programming. The original draft of the ruling by the PDC did not contain any such language. WSAB's comments and testimony during the rulemaking proceeding helped lead to the adoption in the final version of wording to protect Washington broadcasters.

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"COMPARABLE USE RATE" OUTSIDE LOWEST UNIT CHARGE PERIOD

Q: Does the FCC regulate the rate a station may charge candidates after they become "legally qualified" but before the Lowest Unit Charge period begins? Does this need to be in our disclosure statement of time sales practices?

A: If a candidate purchases spots to air after the candidate becomes "legally qualified" but before the lowest unit charge period takes effect the station may charge the candidate the "comparable use rate." The station may charge the candidate no more than it would for a regular advertiser making the same spot purchase. While the station cannot charge the candidate a premium, simply for being a political candidate, the station is not required to discount the rate charged, either.

Generally, the date of the Washington Primary Election gives candidates as much as two weeks during which candidates will be "legally qualified" prior to the beginning of the Lowest Unit Charge period. During that time candidates may want to get on the air with spots. The station may charge the "Comparable Use Rate" during this period of time, changing to Lowest Unit Charge, beginning August 6th.

The station should have a separate Sales Practices Disclosure Statement for the Comparable Use Rate period.

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Sold Out vs. Equal Opportunities

Q: If our station is sold out, can we refuse to sell spots to candidates?

A: "Sold out" is a relative term. Keep in mind that being sold out is simply an artificial limit on the number of units or minutes of commercial time a station will allow. The FCC does not recognize a station as sold out, simply because the station's self-imposed commercial limit has been reached. There are two main instances when your station might have to make time available to candidates even if it is "sold out."

1) Equal Opportunities: If you have one candidate on-the-air and his or her opponent make an equal opportunities request, the station has an absolute obligation to provide that time.

2) Federal Candidates' Right of Reasonable Access: If a federal candidate makes a request for time, your station has an obligation to negotiate what is reasonable and run that many spots.

What can you do if the station is "sold out?" Well, you have two choices: Bump other, regular advertisers; or, add inventory. Either one will entail a discussion that you might not look forward to, either with a client or the Program Director. It may be that you cannot avoid the problem entirely, but by planning ahead, you can certainly reduce its occurance.

ALCOHOL BEVERAGE ADVERTISING

PRICE & BRAND SPOTS

Q: The manager of a grocery store wants to advertise "specials" on various alcoholic beverages. Can the spots mention the special price and the brand name?

A: Yes, with some restrictions.

Price: Two requirements apply to price advertising. First, the retailer cannot sell (therefore advertise) an alcoholic beverage at less than acquisition cost. Certain exceptions apply, such as stock close-outs or seasonal goods, damaged goods, or to meet the price of a competitor selling the same product in the same locale.

Second, retailers cannot advertise alcoholic beverages using terms such as "two for the price of one," "two for one drinks," "buy one get one free," "two for $ __" or any other phrase which means that a customer would have to purchase more than one drink at a time in order to receive the special price. The Washington State Liquor Control Board feels that these types of inducements violate the rule against promoting over consumption.

Brand name: The brand name may be used as long as the retailer is the sponsor of the advertising, and no payment (in whatever form) has been made to, or offered to the retailer by an alcoholic beverage manufacturer or distributor (or solicited by the retailer). In other words, there is no such thing as "co-op" advertising with alcoholic beverages. The name of a retailer may not be used in spots sponsored by either a distributor or manufacturer.

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RETAILER LIQUOR PROMOTIONS

Q: Can our station trade-out merchandise with a beer distributor and then give it away at a station promotion at a bar?

A: No. The Washington State Liquor Control Board has revised its interpretation of the "tied house" statute that generally prohibits "joint" promotions. A liquor supplier (beer distributor or manufacturer) may sell or trade-out novelty items, such as tee-shirts, for airtime, but only on a dollar for dollar basis. The novelty items may not be sold or traded to the station for less than the cost of the item.

The station may not give the novelty items to a retailer licensed to sell alcoholic beverages by the Liquor Control Board, nor may the station give the items away on its own behalf at a retail licensed premises, regardless of how the station acquired the items. However, the station may sell the novelty items, at not less than cost, to the retail licensed premises for giveaway at a promotion sponsored by the retailer.

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ALCOHOL BEVERAGE ADS - "HAPPY HOUR"

Q: Can we broadcast spots for a bar or tavern that promote "Happy Hour?"

A: Yes, but there are some problems to avoid. The Washington State Liquor Control Board has adopted a rule that prohibits its licensees from "encouraging over consumption." The Liquor Control Board has interpreted this rule to mean that a bar cannot offer a "2 for 1" type promotion. The bar may not require a customer to purchase more than one drink in order to get the special price.

In addition, a liquor licensee may not require that a patron buy more than one drink in a certain period of time in order to get the special price. In both cases, the customer must be able to purchase only one drink and still be able to pay the special price. As long as the language of the spot does not "promote over consumption" they will be acceptable to the Liquor Control Board.

The bar may use the term "happy hour" in its spots. A few years ago, the Liquor Control Board proposed to adopt a rule banning the term "happy hour," but WSAB intervention prevented this from becoming law.

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MISCELLANEOUS ADVERTISING ISSUES

TOBACCO PRODUCT ADVERTISING

Q: A smoke shop has approached our station about advertising. Can we advertise any tobacco products?

A: Yes, some. Federal law prohibits the advertising of cigarettes, little cigars and all smokeless tobacco products on radio and television stations. The most important provision is the definition of "little cigar," because there is not much question about what constitutes a cigarette. However, the prohibition does extend to "roll your own" products, such as cigarette papers and tobacco.

This leaves the advertising of cigars (regular, big old stogies) and pipe tobacco permissible. The station can also advertise the pipes themselves and the other paraphernalia which pipe smokers use.

Keep in mind that the use of the word "cigarette," even as a part of the name of a store (i.e., as in the required sponsor identification) is prohibited. This is true even if the ad has nothing to do with smoking-related products. For example, a retailer named "Joe's Cigarette and Convenience Store" could not advertise its weekly milk special because the word "cigarette" appears in the name of the store which would be required for the sponsor identification (and for other obvious reasons).

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AUTO DEALER AD CREDIT DISCLOSURES

Q: What disclosures are required when an automobile dealer advertises a sale on credit?

A: Both federal and state law require that if the ad copy contains any of the credit terms, or "trigger terms," then all of the credit terms must be disclosed. Typically a car purchase is "closed-end" credit where credit is advanced for a specific period of time and a specific purchase transaction.

Trigger Terms. Closed-end "trigger terms" are:

1. Amount or percentage of any down payment; or,

2. Amount of any single payment; or,

3. Number of payments; or,

4. Time period of repayment; or,

5. Amount of any finance charge.

Required Disclosures. If ANY "trigger term" is used, then ALL of the following credit terms must be disclosed in the spot:

1. Amount or percentage of any down payment. The total down payment as a dollar amount must be stated, but the ad does not need to use the term "down payment;" and,

2. Terms of repayment (amount and number of individual payments, total of payments); and,

3. "Annual Percentage Rate."

All disclosures must be clear and conspicuous. The disclosure requirements for auto credit sales ads DO NOT allow the advertiser to make minimal disclosures and refer to a toll-free hotline or a print ad for more details, as is the case with auto lease ads. Different rules control the disclosures required for auto lease ads.

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VEHICLE "COST" ADVERTISING

Q: May an auto dealer advertise a new car for sale as "$97 above cost?"

A: Yes. However, state law [RCW 46.70.180(1)(d)] regulating auto dealers, requires that any computation of "cost," when advertising that a new automobile will be sold at a certain amount above or below cost, must be calculated by using the exact amount of the factory invoice on the specific vehicle referred to as the "cost."

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SIRENS

Q: I have an advertiser who really wants to get people's attention, may I use sirens in the company's spots?

A: There's nothing like a good, loud siren to scare the daylights out of an unsuspecting driver who does not know whether he or she is hearing it on the radio or on the street. For many years, the FCC had a rule (former Section 73.4240; deleted effective 11-28-83) which prohibited the use of "sirens and like emergency sound effects in broadcast announcements." However, the fact that the FCC eliminated its rule does not, necessarily, make it o.k. in every circumstance. Stations and advertisers must take care not to use such sound effects in such a way that they will result in liability from sources other than the FCC. In addition, the station will want to keep in mind the FCC's anti-hoax rule, to ensure that no violation occurs.

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FIREWORKS ADVERTISING

Q: May our station advertise fireworks?

A: Yes. There is no state or federal law that restricts retailers from advertising fireworks, regardless of who the retailer is or where the fireworks are sold. However, caution should always be taken when writing and producing the spot not to make it misleading or deceptive with respect to the legality or not of the fireworks sold. Washington state law allows cities and counties to adopt and enforce fireworks laws that are more restrictive than the basic state law. Therefore, a specific firework may be completely illegal in one city but legal in the surrounding county and the neighboring city. WSAB has defeated several attempts to prohibit the advertising of "illegal" fireworks, a bill usually targeting fireworks sold on Indian Reservations. Such a law would be devastating to broadcasters because a station cannot control where its signal goes, and would end up advertising fireworks that were legal in one place and illegal in another, both within the signal of the station.

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SPONSOR IDENTIFICATION

SPONSOR I.D.

Q: I heard a spot recently promoting a generic type of product, i.e., not by brand name, and at the end it said "A message from" and named the group promoting this product. Is this a legal sponsor I.D.?

A: No. FCC Rule Section 73.1212 requires that when a station broadcasts matter for which consideration is directly or indirectly paid or promised the station must announce, at the time of the broadcast that the matter is "sponsored," or "paid for," and "by whom, or on whose behalf the consideration was supplied...." The Rule provides an exception in the case of matter advertising commercial products or services. An announcement stating the sponsor's corporate or trade name or the name of the sponsor's product, when it is clear that the mention of the name of the product constitutes a sponsorship identification, is deemed sufficient.

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VERIFYING SPONSOR I. D.

Q: How far does a station have to go to discover who the "real" sponsor of an issue advocacy spot is?

A: Every advertisement that runs on a station must fairly and fully disclose the entity that runs an ad on a station. Stations are not ordinarily required to investigate the identity of their sponsors. However, if the station is notified that a sponsor I.D. is not accurate, then the station has an obligation to investigate by contacting the sponsor and asking for verification that it is the source of the funds paying for the advertising, and that another entity is not supplying virtually all the funding. The station is required to change the sponsor i. d. only if it is presented with credible evidence that the sponsor i. d. is incorrect.

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"TEASER" SPOTS

Q: We have a client who has seen "teaser" billboards, the ones that put up just a portion of the message over a period of time and then finally reveal who the advertiser is. May we broadcast that kind of campaign for his next set of spots on our station, without any indication of who the advertiser is until the end of the campaign?

A: No. The FCC's Rule regarding sponsor identification requires that the station broadcast a proper sponsor identification at the time it transmits any program matter for which the station has received consideration (goods, services, money, etc.). For a retailer, the mention of the retailer's trade name is sufficient to comply with the Rule when it is clear that it is a sponsorship identification. Each spot must contain the appropriate sponsorship identification, so a flight that progressively adds information about the advertiser, ultimately revealing the advertiser's identity, is not allowed.

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NEWS COVERAGE

Recording & Broadcast of Emergency
Broadcast Services' Transmissions

Q: My News Director wants to use excerpts from the police and fire scanners we have in the newsroom so add authenticity and excitement to newscasts. Can we do that?

A: The interception, recording and rebroadcast of emergency services traffic received over a scanner is a violation of the Communications Act, unless the emergency services authorities have given permission for such rebroadcast.

Until recently, station news departments have been satisfied with simply listening to police and fire scanners so they can quickly be at the scene of breaking news. However, the ever escalating competitive nature of the news business has created a desire at some stations to make additional use of those resources.

Routine interception and divulgence of police communications would violate Section 705 of the Communications Act: "No person not being authorized by the sender shall intercept any radio communication and divulge or publish the existence, contents, substance, purport, effect or meaning of such intercepted communications to any person."

Generally, officials responsible for public safety who desire to cooperate with news media, will authorize the monitoring of public safety radio transmissions for the more efficient gathering of news, and will indicate the conditions under which such transmissions may be used.

Therefore, licensees should contact officials of the public safety agencies whose radio transmissions are monitored in order to obtain the necessary authorizations and to ascertain the conditions under which use and divulgence are appropriate.

WSAB thanks Richard Zaragoza and David Oxenford at the law firm of Shaw Pittman in Washington, D. C. for supplying the foregoing information.

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BEWARE OF THE FCC'S ANTI-HOAX RULE

Q: April Fool's Day is coming up. What can we do without violating the FCC's anti-hoax rule?

A: With April Fool's Day just about upon us, stations should resist the temptation to broadcast a hoax that could result in substantial public harm. The FCC has said that it will impose fines of up to $25,000 where fabricated stories concern crimes or catastrophes that could unduly alarm the public.

The FCC's "anti-hoax" rule is violated if the station licensee knows that the information being broadcast is false; it is foreseeable that the broadcast of the information will cause substantial public harm; and the broadcast does, in fact, cause substantial public harm. The FCC says that "public harm" includes the diverting of police, fire or other public safety resources, such as flooding the "911" switchboard, not necessarily just property damage or personal injury.

There's nothing wrong with having a little fun, but avoid the pranks which have gotten stations into trouble in the past, such as stories that a local garbage dump was about to explode; that a station employee had been taken hostage and/or killed; that a volcano was erupting near town (that was in Connecticut; around the Northwest it would be an even more serious problem because of the actual possibility that one of our volcanoes could erupt); that the country was being attacked with nuclear weapons (including the use of tones similar to the old EBS emergency alert signal).

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PUBLIC FILE

E-MAIL IN THE PUBLIC FILE

Q: Do we have to keep every e-mail message the station receives in our public file?

A: No. FCC Rule 73. 3526(e)(9) requires that the station place it its public inspection file all written comments and suggestions received from the public regarding station operation, unless the writer has requested that the letter not be made public or when the station feels that it should be excluded from public inspection because it is indecent, defamatory or obscene.

E-mail messages are included to the extent that they are transmitted via the internet to station management or to an e-mail address that is publicized by the station. Personal e-mail messages sent to station employees need not be placed in the public file. E-mail messages may be retained in either written or electronic format. However, if the e-mail is kept electronically, the station must be prepared to provide either a paper copy or access to a computer terminal at the location of the public file in order to access the e-mail. In the case of identical communications, the station may retain one sample copy and a list that identifies the parties who sent the others.

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ACCESS TO THE PUBLIC FILE

Q: Can our station require people who want to look at the public file to make an appointment in advance, or come back later if the person who handles the public file is not here when they want to look at it? Can we require them to identify themselves and tell us why they want to see the public file?

A: No to both questions. The Public File must be available at any time during regular business hours. The FCC's Public Inspection File Rule requires that a station provide "ready access" to its public file. A station may not require that a member of the public make an appointment in advance or return at another time to inspect the public file, or that members of the public examine the public file only at time most convenient to the station or its staff.

In addition, the station cannot require individuals who request access to the public file to identify themselves or the organization they represent. Neither can the station require the person who wants to inspect the file to state why they want to inspect the file.

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COPIES OF DOCUMENTS FROM THE PUBLIC INSPECTION FILE

Q: Is my station required to make copies of documents in the Public File if someone inspecting the File wants a copy?

A: Yes. Any material which is required to be kept in the Local Public Inspection File must be available for machine reproduction. This includes documents contained in the political section, as well as, documents in applications, license renewal, ownership and all other sections of the File.

The requesting party may be required to pay a reasonable amount for the copying, normally the station's cost. The copies must be made within a reasonable time, based on the volume of the copying request and availability of copying equipment. However, the copied documents must be provided within a maximum of seven (7) days, unless copying facilities are not available in the station's community.

When a document is removed from the Public File for copying, especially if the copying will take place outside the station, and the document will be out of the File for any substantial amount of time, a notation to that effect, including the anticipated return date/time, should be placed in the File where the document would normally be located. The notation should identify the document sufficiently so that if a member of the public (or an FCC inspector) inspects the File and looks for that document, it will be apparent why it is missing and when it will be available for inspection and copying.

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EMERGENCY ALERT SYSTEM & BROADCAST
OF EMERGENCY INFORMATION

EAS TESTS IN FOREIGN LANGUAGE

Q: Our station broadcasts primarily in Spanish, with a little programming in Japanese and English. In which language should we broadcast the EAS Test?

A: Spanish or English. The FCC Rule which governs EAS test procedures, provides that "script content may be in the primary language" of the station. FCC Rule 11.61(a)(1)(v). The use of the word "may" is permissive, thereby giving the station the option to broadcast the EAS test in the primary language, Spanish, or in English.

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BROADCASTING EMERGENCY INFORMATION

Q: With all the recent flooding, our station wanted to broadcast road closures and other information, but our AM's nighttime signal did not quite cover the entire disaster area. Could we have stayed on at our daytime power to broadcast this emergency information?

A: Under certain conditions, an AM station, may, without further authority from the FCC, use its full daytime power during nighttime hours to broadcast emergency information.

Type of Emergency. The emergency must be one in which broadcasting the emergency information is necessary to the safety of life and property. Examples of the types of emergencies considered by the FCC to justify these broadcasts include hurricanes, floods, tidal waves, earthquakes, icing conditions, heavy snows, widespread fires, discharge of toxic gasses, widespread power failures, industrial explosions, civil disorders and school closings and changes resulting from such conditions.

Other Broadcast Service. It must be impossible to provide adequate advance warning of the emergency conditions with the station's nighttime facilities, and regular, unlimited time broadcast service is nonexistent, inadequate from the standpoint of coverage or not serving the public need.

Commercial Matter. The broadcasts at the daytime power must be done on a noncommercial basis, so all spots must be moved to other dayparts. However, recorded music may be used as filler to provide program continuity.

Transmitter Logging. Such operation must be noted on the station's transmitter log, and should be accompanied by a notation indicating that the station was operating under the authority of Section 73.1250(f) of the FCC's Rules. The notation should include the nature of the emergency and the nature of the emergency information broadcast. It must be sufficient for the station to document the need for broadcasting with daytime power at night in the event of an interference complaint.

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MISCELLANEOUS OPERATIONAL ISSUES

RETENTION OF PROGRAM LOGS

Q: How long does a station have to keep program logs?

A: Since the FCC's great "underbrush deregulation" of the early 1980's, stations have not even been required to have a program log. In the past, when a station license renewal application required the licensee to compare a "composite week" of programming with the promises the licensee had made as a part of its previous license renewal application (as well as other reasons), program logs were required to be kept for several years. Then, with the elimination of that "promise vs. performance" license renewal requirement, program logs were also deregulated. This did not deregulate the transmitter or maintenance logs, however.

But, don't throw out your daily logs just yet. You will need them for billing purposes and you should keep them long enough so that in the event a client disputes your affidavit and billing statement, you will have the original document to back up the bill. For this purpose, a year after the bill is paid should be sufficient. Remember, you may need to prove performance to manufacturers for co-op buys, too.

Logs are business records, as well, so beyond keeping them for billing purposes, your accountant should be consulted to find out what he or she recommends as a retention period for these records for tax purposes, and the like.

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EXCUSES ACCEPTED BY THE FCC

Q: We've had a few problems at our station in the last year or two and, frankly, some FCC rules have not been observed. What kind of excuses for rule violations will the FCC accept?

A: Not many. Read on: The seller of a Kentucky TV station has been fined $20,000 for failing to maintain a main studio, for failing to maintain a public inspection file, and for failing to regularly broadcast station identification announcements. In response to the FCC's Notice of Apparent Liability, the station admitted that "its operations may not have always been in complete compliance with all Commission rules and policies with regard to main studios." A bit of an understatement: According to the FCC's Order in the case, for a period of nearly two years, the station's main studio was co-located at its transmitter building, which was locked and fenced to prevent entry. In addition, the FCC found that the station public inspection file, eventually discovered at a public library, was substantially incomplete for a period of nearly two years. The FCC also found that regular station identification announcements were not made over some unspecified period of time. There was also no local, toll-free telephone number, no employees who worked regular hours and no television production equipment, for a period of nearly two years. Zingo! A $20,000 fine, but the Commission did approve a transfer of control to a new owner.

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FCC REPEAT OFFENDERS

Q: If our station has had an FCC fine in the past, could that make it harder on us if we have a violation in the future?

A: Yes, it could. Dick Zaragoza, of the Shaw Pittman law firm in Washington, D. C. and General Counsel of the Broadcast Executive Directors Association, reports that he has learned, informally, from the Commission that when the regional enforcement officials seek to determine the appropriate forfeiture amount for a given violation, they check the FCC's database to see if the licensee or group owner has committed the same type of rule violation before. If so, they will likely view the new violation as a type of repeat offense for which the licensee should pay more than if the violation were a first-time offense.

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FCC INSPECTIONS

Q: How are stations selected for FCC inspections? And how should we treat an inspector when he or she arrives at the station? What specific objectives does an inspector have during a visit to a station?

A: Stations are randomly selected for FCC inspection. A station will also be inspected if the FCC receives a complaint regarding the station's operations. For instance, unresolved complaints of a station causing interference to public safety communications services, or complaints from pilots concerning a station's tower lighting are both situations that may trigger an inspection.

FCC inspectors do not like to wait for long periods of time just to get to talk with someone in authority who knows the station's operations. There should always be someone available who can assist an inspector when he or she is performing an inspection. For instance, someone should always be available on short notice who knows where the Public File is located, and where the keys are located for the transmitter site. Basically, station staff should treat the inspector as any guest to the station would be treated.

Usually, the inspector takes an overall "snapshot" of a station's operations. The public file, technical operating parameters, EAS, logs and transmitter site may be reviewed, as well as any areas which were deficient in a previous inspection. Occasionally, an inspector will come to town and just look at, for instance, a station's Public File. Word spreads quickly among local broadcasters that an FCC inspector is in town, which usually results in other stations quickly reviewing their operations (and taking care of any little problems) - an intended objective of the inspector.

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BLANKETING INTERFERENCE

Q: Our station recently completed some technical changes. What is our obligation to people who complain about interference?

A: The FCC's Rules 73.88 and 73.318(b),(c) and (d) govern a station's responsibility with regard to "blanketing interference." Generally, the FCC expects that a station will assume full financial responsibility for satisfying all reasonable complaints arising from blanketing interference within one year of a major change in facilities within a "protected area." Protected areas include any area adjacent to the transmitter in which the AM field strength exceeds 1 V/m or in which the FM field strength exceeds 115 dbu (562 mV/m).

After 1 year, the station must provide information or technical assistance as needed to help resolve blanketing interference problems.

In addition, the FCC has a publication called "The Interference Handbook" which can be obtained by calling the FCC's Consumer Assistance Office at (202) 418-0200.

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PROGRAMMING

STATION CONDUCTED CONTESTS

Q: What must a station disclose and when must it be disclosed in promos for a station contest?

A: The FCC's rule governing station conducted contests, 73.1216, requires a station to disclose fully and accurately the "material terms" of the contest. The "material terms" include those elements which define the operation of the contest and which affect participation in the contest. Material terms will vary with the nature of each contest, but generally they will include how to enter; any eligibility restrictions (e.g., age, driver's license); entry deadline; whether a prize can be won; when prizes can be won; the extent, nature and value of prizes; the basis for valuation of the prizes; and the means of selecting winners (including tie-breaking procedures). From the contestant's viewpoint, these are the factors that will determine whether or not to participate and how to participate and win.

The FCC will give the station some discretion in the time and manner of disclosure of the material terms of the contest. However, the obligation to disclose the material terms begins when the audience is first told how to enter or participate and continues until the contest is concluded. Any promos, including the full disclosure promos, should be understandable to the average listener.

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WAGES/HOURS/LABOR RELATIONS

HOLIDAY PAY

Q: Are we required to pay employees double time for holiday pay?

A: Which holidays are paid holidays and the rate of pay for working on those days is a matter of company policy or compliance with a collective bargaining agreement. There is no provision in state or federal law requiring an employer to provide workers with a specific number of (or any) holidays off or with "holiday" pay if an employee works on a holiday. However, if working on a holiday would put the employee over the 40-hour per week threshold for overtime, then the employee must be paid at the overtime rate.

SMALL MARKET OVERTIME EXEMPTION

Q: I know that there is an exemption in federal law from overtime for announcers, news editors and chief engineers that applies to stations in small markets. Can Washington broadcasters take advantage of this federal law?

A: No, unfortunately. Washington state law does not contain a similar exemption. Therefore, the state law is "more protective" of employees thatn the federal and the state law will control. In other words, the federal Small Market Broadcasting Exemption to the overtime requirement may not be relied upon by Washington broadcast employers.

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PHOTOS OF JOB APPLICANTS

Q: Our station does a lot of promotions with our advertisers where our air personalities appear in person. We want to make sure we hire on-air talent that will make a good impression on advertisers and listeners who come to the promotions. Can we ask them to send us a picture with their demo and resume?

A: No. Washington law does not permit an employer to require a job applicant to submit photograph prior to employment. You can ask for a photograph after hiring for identification purposes. Interview questions or requirements cannot give the applicant the impression that persons of a particular race, religion, gender or age will be favored or disfavored. Questions or requirements that convey this impression to a reasonable person are prohibited even if they are not made with the intent of unlawful discrimination. The effect of questions or requirements is judged in light of how they can be interpreted by the applicant. The station must be careful to avoid not only the intent to discriminate, but also the possibility that their expressions and actions may be so interpreted.

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