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Regulations FAQs

Advertising

Can I advertise casino gambling on my station?: In June 1999, the U.S. Supreme Court struck down the federal statute prohibiting the broadcast of gambling activities, if those gambling activities are legal under state law. In New Mexico, this opened the way to the broadcast of advertisements of legal, commercial gambling, such as that conducted at state authorized race tracks, fraternal clubs and veteran organizations. Prohibitions remain against broadcast advertising of any gambling activities that are not legal or not authorized under federal or state law and supporting regulations. At this time, the FCC has indicated that it would not enforce the lottery rules as they might apply to casino gambling.

Under federal law, broadcasters are allowed to air ads for Indian gaming, depending on the type of gaming. There are three types of Indian games. Class I consists of ceremonial or celebration-type Indian gaming. Class II consists of Indian bingo/lottos. Class III consists of casino gambling-type games. To broadcast advertisements of Indian gaming several requirements must first be fulfilled: the gaming activity must occur on tribal land and be operated by the tribe; the gaming must be permitted by the state; the state law must not be preempted by any federal law (e.g., if raffles are completely forbidden in the state, then bingo cannot be played on the reservation and consequently cannot be advertised); and also for Class III gaming, there must be a “tribal-state compact” between the state and the tribe which must be approved by the National Indian Gaming Commission before advertising Class III gaming.

The FCC has yet to issue an affirmative opinion of online casino advertisements, but the same case precedent and agency and agency interpretations that have been applied to traditional casinos would still be applied to online casinos.

Are there any rules limiting the amount of advertising during educational or informational programming on my television station?: The Children’s Television Act and the FCC’s rules limit the amount of commercial matter than can be aired in certain children’s television programming to 10.5 minutes per hour on weekends and 12 minutes per hour on weekdays. Specifically, these commercial limits apply to programming originally produced and aired primarily for an audience of children 12 years old and younger. Licensees must complete and place in the public file each quarter a certification of their compliance with these limits (or explanations of any overages). The Children’s Television Act requires that the Commission review, at renewal time, the extent to which television licenses have met the hourly commercial time limits. Substantial forfeitures have been imposed for children’s commercial overages.

What are the requirements regarding political broadcasting?: Political broadcasting requirements consist of (1) reasonable access to air time for federal candidates, (2) equal opportunity to candidates and (3) the charging of the lowest unit charge (LUC) for that class of time for candidate spots including a “use” run during the 45 days preceding a primary and 60 days preceding a general election. If programming presented during the election campaign period includes an appearance by any legally qualified candidate for public office (including federal, state and local candidates), regardless of whether the candidacy or election is discussed, equal opportunity must be provided to any opposing candidate who makes a timely request. Equal opportunity means approximately equal time with comparable audience reach. Some categories of programming are exempt from the equal opportunity programming requirements, including news, regularly scheduled news interviews and on-the-spot coverage of bona fide news events. The charge to the candidate must be the lowest unit charge for the same class and amount of time for the same period for paid equal opportunity spots.

Broadcasters must also ensure that the proper sponsorship information is included within each political spot that is aired. Records of all requests for time by candidates must be placed in the Political File, which must be retained in conjunction with the Public Inspection File.

What are the rules regarding advertising tobacco, alcohol and legal marijuana?: Federal:
Both the Department of Justice (DOJ) and the Federal Trade Commission (FTC) have the authority to regulate advertisement of tobacco products by the broadcast media. Broadcasters may advertise cigars, pipe smoking, and smoking accessories (e.g., lighters, smoking papers, etc.). Broadcasters may NOT advertise cigarettes, little cigars, and smokeless tobacco products, such as chewing tobacco and snuff. Generally advertisers may advertise for a shop whose legal name includes the words “tobacco” or “cigar”, e.g., “Sam’s Tobacco Counter”. It is probably a violation to broadcast an advertisement for an establishment whose name includes the word “cigarette”, e.g.., Celia’s Cigarette Stop”. However, programs that mention a cigarette product because it is part of the title for an unrelated advertisement is allowed. For example, the “DuMaurier Canadian Tennis Open” is permitted, so long as references to the product are kept to a minimum.

In the early 2000s, the Distilled Spirits Council lifted a self-imposed restriction on both television and radio advertisements of liquor in an effort to improve the status of distilled spirits and so that it could more fairly compete with the beer and wine industries. Currently, there are no FCC or federal regulations that prohibit the advertising of alcoholic beverages on radio or television. Some state laws do have restrictions on the advertisement of alcoholic beverages. While states are allowed to regulate such advertising in-state by local broadcasters, they are still not permitted to regulate such advertisements broadcast on cable. Although there are not many restrictions to date on the advertisement of alcohol by broadcasters, both Congress and the FTC have recently instituted inquiries into the effects of such advertising on the public. As a result, restrictions on advertising may change in the future.

With a number of states now legalizing the recreational or medical use of marijuana it is unclear how the FCC will handle advertising of marijuana or related services. Marijuana possession is still a felony under federal law. The FCC has not explicitly stated how they would handle advertisements for marijuana but broadcasters should use caution in advertising this material.

New Mexico:
New Mexico has some local restrictions on alcohol advertising. These restrictions are found in New Mexico Liquor Regulations, published by the New Mexico Alcohol & Gaming Division. The restrictions recite prohibitions against advertising certain activities prohibited in the liquor regulations. Items prohibited include:

  1. Contest involving drinking of alcohol, or giving alcohol as prizes for any game or contest.
  2. Selling an unlimited number of drinks in a given time, for a fixed price, i.e., “all you can drink in one hour for $5.”
  3. No “two-for-one” drink prices, or allowing a person to have more than two unconsumed drinks at one time.
  4. Selling or delivering drinks for less than half the normal price.
  5. Selling or delivering drinks for less than the cost.

Can I advertise e-cigarettes on my station?: While it appears that advertising vapor cigarettes or e-cigarettes may currently be legal, the FDA issued a warning about the potential health risks associated with these produces. NAB is advising stations to stay away from this advertising because of the potential liability down the road. This includes advertisement of non-tobacco products from retailers with “Cigarette” in the name, (i.e., “Cigarettes-R-Us”).

In addition, the Cigarette Labeling and Advertising Act of 1965 strictly prohibits advertising “any roll of tobacco wrapped in any substance containing tobacco which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette…” (See 15 U.S.C. §§ 1335, 4402Cc).

The NMBA and our attorneys caution our members on this issue.

What are the rules governing political broadcasting and advertising?: The broadcast of political messages is covered by a complex set of laws and regulations and all station personnel involved with programming, sales and traffic should be aware that decisions about what ads to run, when to run them and how much to charge for them may have serious consequences for the station. With several federal positions, as well as many state and local offices being contended this year, you will need to decide which of those races will be permitted to buy time on your station. All candidates for federal offices – including US Senate and US House seats - are entitled to “reasonable access” to your station. That is, you must sell time.

“By contrast, candidates for state and local office have no absolute right to reasonable access – stations can refuse to sell time for such races. If, however, a station sells ads to one candidate for a particular office, the FCC’s “equal opportunities” rule requires that station to sell ads to all qualified candidates for that particular office. Stations may pick and choose among the state and local races, however. For example, a station could choose to accept ads from state senate candidates but refuse them from county council candidates.” (CommLaw Blog, September 29, 2012).

Do I have to charge a political candidate New Mexico Gross Receipts Tax on advertising?: Once the determination of which candidates and which issues you’ll air, state Gross Receipts Tax may be applicable. Below is a quick guide for most cases. Nonetheless, this is a general summary; check with your personal tax advisor for questions on specific application of rules and tax results.

Type of Advertiser

Taxed

Not Taxed

Presidential

 

X

Federal/State/Local Candidate (running only in New Mexico)

X

 

Issue/PAC (Blended Party/Candidate)

 

 

President

 

X

Local (NM) Candidate

X

 

New Mexico Party

X

 

PAC- President

 

X

PAC-State, local, federal

X

 

Issue- National or multi-state

 

X

Issue- New Mexico

X

 

  1. Applicable gross receipts tax (GRT) rate is the rate in effect at the business location of the broadcaster.
  2. The location of the advertising agency placing the ad is immaterial. It is the type of advertiser which controls. No GRT is due “when the advertising message is supplied by or on behalf of a national or regional seller or advertiser not having its principal place of business in or being incorporated under the laws of this state.” As a rule of thumb, ads aimed at New Mexico issues and New Mexico campaigns are taxed; items aimed at national issues or races are not.
  3. The advertising agency may also be subject to gross receipts tax. That issue is separate and distinct from the issue of whether the sale of broadcast time is subject to GRT. The issue is whether the services of the agency are performed in New Mexico or in another state. If the services are performed in New Mexico, GRT will be owed by the agency even if the broadcast time is not subject to GRT.
Finally, we encourage all our members to ensure your political broadcast forms are current. Version PB 18 is the most current form to be filed with the FCC. If you don’t have this latest edition, you can download the form or order a CD-ROM from the NAB for $30.

What kinds of restrictions are there on New Mexico stations running marijuana-related advertising on a station that reaches a state that has legalized marijuana?: While there is not an unqualified "green light" to running such ads, it indicates that the federal government seems to be making a low priority of enforcing federal anti-marijuana laws. However, even under Colorado law, marijuana ads are restricted to times when there is no more than 30% of the audience under 21 years of age.

Federal law still prohibits such ads and it is likely that New Mexico law does too. While prosecution of such ads seems to be a low priority, there are no guarantees of no prosecution. Bottom line is all NMBA attorneys advise stations to steer clear of this kind of advertising.

How can I review our stations' systems to ensure that we're in compliance with the FCC`s political advertising requirements?: The Political Broadcasting Rules: A Refresher Course

The 2015 elections are now in the books, but the 2016 election season, featuring federal campaigns (Presidential, Vice Presidential, Congressional) galore, is already upon us. Now’s a good time to be sure you’ve got a handle on the rules.

The 2016 elections are a year away, but the race for presidential nominations is already heating up, and primaries themselves will begin in just a few months. With what is certain to be a contentious and hard-fought election season fast approaching, now is the time for broadcasters to review their systems to ensure that they will be in compliance with the FCC’s political advertising requirements. A little advanced planning can go a long way in making this election season run smoothly (and, ideally, profitably) for your station.

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