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Alleged COVID-19 misinformation raises regulatory questions for broadcasters

With broadcasters helping to keep Americans informed and connected during the coronavirus pandemic, various interest groups are raising questions about whether station owners, or the agencies that regulate them, need to do more to verify broadcast news or advertising.

The broadcast industry recently found itself at the center of two controversies focused on the airing of alleged misinformation about the coronavirus. While some groups believe broadcasters such as Sinclair Broadcast Group Inc., Nexstar Media Group Inc., iHeartMedia Inc. and Cumulus Media Inc. have as much duty as social media companies, if not more, to protect consumers from fraudulent or inaccurate information, industry observers say the law has long protected broadcast editorial decisions from government influence. Thus, they say it is unlikely the U.S. Federal Communications Commission will take a more active role in policing news or advertising content during the pandemic.

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The first incident involved the reelection campaign for President Donald Trump sending cease and desist letters to station owners over the airing of an ad from Democratic super political action committee Priorities USA. The campaign said the ad, which focused on Trump's handling of the coronavirus, featured false information and warned that stations carrying the ad could lose their FCC broadcast license.

Around the same time, the media advocacy group Free Press filed a petition with the FCC asking the agency to investigate whether broadcasters knowingly aired false information about the pandemic. Examples cited in the petition included "context-less coverage of President Donald Trump's press conferences" and statements from conservative radio hosts such as Rush Limbaugh and Mark Levin.

"I think all companies — whether they are broadcasters, cable news outlets like FOX News or online platforms — have a social and corporate responsibility to provide accurate information about a public emergency such as coronavirus," Free Press co-CEO Jessica González said in an interview.

As a matter of law, she noted broadcasters are held to a higher standard when it comes to regulation. She pointed to rules against obscene, profane or indecent content.

"And there is also a rule against hoaxes," she said.

Specifically, the commission prohibits broadcasters from transmitting "false information concerning a crime or a catastrophe" if the station owner knows the information is false and if it is foreseeable that the information will cause "substantial public harm."

Free Press noted a man in Arizona died from ingesting a nonmedical version of the chemical chloroquine phosphate after the man heard Trump tout the anti-malaria drug chloroquine as a potential treatment for coronavirus. The nonmedical version is used to clean fish tanks.

"We also listed quite a bit of other misinformation coming in particular from broadcast radio sources where pundits were calling coronavirus a hoax, telling people that they didn't need to stay at home or take precautions, promoting unproven or scientifically suspect cures — things that we think put lives at risk," González said.

The FCC rejected the petition, saying it "rests on a fundamental misunderstanding of the Commission's limited role in regulating broadcast journalism." The agency said it neither has the authority nor the desire to "enable government-led flyspecking of broadcasters' editorial judgments."

The FCC has not issued a statement on the Priorities USA ad, however, and did not respond to a request for comment.

But most observers do not expect the agency to revoke any broadcast licenses over the ad, despite the Trump reelection campaign's threat.

"From an FCC standpoint, I wouldn't think they would get involved," said Craig Huber, CEO and founder of Huber Research Partners, an independent equity research firm specializing in media, internet and information services stocks. Huber pointed to freedom of speech protections.

Notably, both the First Amendment, as well as Section 326 of the Communications Act, prohibit the commission from censoring broadcast material.

Stuart Brotman, professor of media management and law at the University of Tennessee, Knoxville, noted that these protections extend beyond newscasts and programming to include advertising. He pointed to the FCC's policy stating that "Broadcasters are responsible for selecting the broadcast material that airs on their stations, including advertisements." While the commission says it expects broadcasters to "act with reasonable care" to ensure ads are not false or misleading, the primary responsibility for ensuring ads are accurate lies with the U.S. Federal Trade Commission.

"It appears that the FCC would not be involved in investigating this complaint, since it believes the FTC would be the agency to handle it," Brotman said.