The days of on-air fast-talking contest announcements are coming to an end. Last Thursday, the FCC adopted revised rules that allow broadcasters to disclose contest rules on an Internet website, as opposed to reading them over the air. Prior to this rule change, under the FCC’s “Contest Rule” (47 C.F.R. Section 73.1216), broadcasters that advertised a contest on-air were required to fully disclose the “material terms” of the contest and then conduct the contest substantially as announced or advertised – a requirement that was adopted almost four decades ago, and which the FCC now acknowledges is inconsistent with the way Americans obtain information today.
Those that want to take advantage of the new Internet website option must comply with the requirements that the FCC lays out in the Report and Order, including:
- The website that is used to disclose the contest terms must be “publicly accessible” – i.e., designed to be accessible to the public 24/7, for free, and without any registration requirement.
- The broadcaster must identify the relevant website address “periodically,” using language that enables consumers to find the contest terms easily (e.g., “for contest rules go to kxyz.com and then click the contest tab”). [Note that the FCC expressly refrained from defining what “periodically” means…but it did examine whether the full “https://” website address should be required and decided to instead permit less-awkward short-form addresses and links.]
- The broadcaster must establish a conspicuous link or tab on a website homepage that will take consumers to the contest information.
- The terms must remain on the website for at least 30 days after the contest has ended.
- The contest terms that are disclosed on the website must conform in all substantive respects to the contest terms broadcast over the air.
- If there is a change in the material terms after the contest is first announced, the broadcaster must announce on air that the contest rules have been changed and direct participants to the website to review the changes; this announcement must be made on air within 24 hours of the change and periodically thereafter.
Note that in its discussion of this requirement, the FCC expressly stated that it “[does] not expect broadcasters to regularly change the material terms of a contest after the contest has commenced” because the Contest Rule “prohibits false, misleading or deceptive contest descriptions and requires broadcasters to conduct their contests substantially as announced.” The provision is included, according to the FCC, because “on rare occasions, limited changes to a contest’s terms may be necessary to address changes in circumstances beyond the anticipation or control of the broadcaster.” In other words, and the requirement is not there because the FCC expects that broadcasters will frequently need to change their rules, but in the unlikely event that such a change is required.
These new rules will go into effect once they have been reviewed and approved by the Office of Management and Budget—which is more likely than not to be a rubber-stamp, in light of the acknowledged expertise of the FCC in the area and the fact that the new rule will clearly reduce paperwork (the key function of OMB’s review). While the rules are not official until then, we are unlikely to see enforcement of the old Contest Rule against licensees that we saw in cases like this one, discussed in a previous blog. Broadcasters should always be cognizant, of course, of the importance of advertising sweepstakes and contents in manner that is truthful and not deceptive, of running the promotion the way it was advertised, and of giving away the promised prizes when they were promised –which became issues past FCC cases. But you will no longer have to keep that guywhotalksreallyfastlikeanauctioneer on your payroll (at least to read your sweepstakes rules).