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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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