Draft NPRM on Broadcast Contest Rules Stays Close to Entercom Proposal
A draft rulemaking notice seeking comment on allowing broadcasters to communicate contest rule information online rather than over-the-air owes its presence on the FCC's November agenda partly to a June blog post by FCC Commissioner Michael O'Rielly, several broadcast attorneys and an FCC official told us Thursday. Proposed in a petition from Entercom Executive Vice President Jack Donlevie in 2012, the item has languished since, despite receiving no opposition. “Small changes to our Contest Rule could improve consumer notice and options for broadcaster compliance,” O'Rielly said in the post endorsing the rule change. The item is set for a vote at the Nov. 21 open meeting.
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The NPRM seeks comment on changing the rule in ways that closely follow Donlevie's petition, several FCC officials told us Thursday. Donlevie proposed changing the rule to allow stations to broadcast the substantive terms of contests on the station as the current rule provides, or to provide the written terms on a website. The NPRM seeks comment on allowing stations to post the terms on a station's website, a licensee's website or any publicly available website, language intended to provide options for smaller stations that may not have dedicated websites, the officials told us. During a previous comment proceeding, a proposal had been made to allow smaller stations to put contest rules on state broadcast association websites, but the NPRM says the associations don't unanimously agree with that idea, the FCC officials told us.
Entercom's petition received 17 comments and no opposition in 2012, Donlevie said. The issue has been dormant since, likely because the FCC was more focused on broadband issues when it arose, he said. Other broadcast attorneys suggested the issue was likely obscured by more controversial issues. Several attorneys suggested the two-year wait for an NPRM is not atypical for the FCC.
The draft NPRM also seeks comment on whether any eventual rule should specify what terms of a contest should be online and which broadcast. That sort of distinction probably isn't necessary, Donlevie told us Thursday. Since broadcasters want people to participate in their contests, there's a market incentive for them to put enough information on the air to get contestants interested, he said. “My general support for modifying the Contest Rule to accommodate Internet notifications should not be read as an encouragement to initiate broader notification mandates,” O'Rielly said in his blog post. “Any changes the FCC might adopt here should be limited to updating the current rule and be accordingly narrow in scope.”
Changing the 1976 rule requiring the contest terms to be broadcast would be a boon mainly to radio broadcasters, though TV interests have also endorsed the rule change, Donlevie said. “We've submitted data that shows you actually lose listeners when you put contest rules on the air,” he said. The current rule leads radio stations to broadcast the legal language governing their contests in a hard-to-follow stream usually read by a speed talker, Wiley Rein broadcast attorney Kathleen Kirby told us. Kirby represented multiple broadcasters filing in support of Entercom's original petition.
The rule change could also save some stations from the FCC Enforcement Bureau, which has handed out fines for rules not being read over the air in recent years, said Wilkinson Barker broadcast attorney David Oxenford in an interview Thursday. Such complaints often start with dissatisfied contestants complaining about the contests being run incorrectly, Oxenford said in a blog post. “In many cases, the FCC has concluded that the contest was in fact conducted correctly, but fines were still imposed on the broadcaster as the rules were not disclosed on the air as required by the Enforcement Bureau’s interpretation of the rules,“ he said.