Broadcast Law Blog

Broadcast Law Blog

NAB Brings Court Challenge to Incentive Auction Rules – As Broadcasters Wait For More Details on the Auction Process

Posted in Digital Television, Incentive Auctions/Broadband Report, Low Power Television/Class A TV, Television

The FCC’s planned incentive auction, by which the Commission hopes to pay broadcasters to surrender some of their TV licenses so that these stations’ spectrum can be repurposed for wireless broadband uses, is almost impossible to define in a simple blog post.  The FCC issued its Order on the Incentive Auction process several months ago and, despite that order being over 300 pages long, many issues remain unresolved.  Last month came the announcement that the National Association of Broadcasters had filed a court challenge to that order (on the first business day after the order was published in the Federal Register, meaning that there is still two weeks in which additional challenges may be filed in Court).  While the NAB is seemingly limiting its current challenge to a few issues (according to a Blog post on the NAB website), there still are many other issues to which broadcasters have no final answers as there are further proceedings yet to come that will help to decide exactly how the process will play out for TV stations in the coming years.  What did the NAB challenge, and what other issues for broadcasters are left to be resolved?

So far, the NAB has only needed to file a notice with the court stating that it is challenging the order.  That is a very limited pleading that gives only the most cursory outline of the NAB’s grounds for its objections to the rules.  Details of all of the grounds for the objections to the ruling do not need to be included in the appeal notice.  Instead, the details will be set out in the NAB’s brief in the case, which will likely not be due for several months.  In the interim, there have been some pleadings asking for expedited processing of the appeal, supported by both the NAB and the FCC, so as to not delay the auction (or to avoid having the auction take place before the appeal is resolved).  From these pleadings, and from an NAB press release and the Blog post referenced above, the principal reasons for the NAB’s challenge can be discerned.  Essentially, there appear to be two issues that are raised. Continue Reading

FCC Regulatory Fees Due On or Before September 23 – What’s New for This Year’s Fees?

Posted in AM Radio, FCC Fees, FM Radio, Low Power Television/Class A TV, Television

Right as everyone was preparing to leave town for the long weekend, the FCC issued its Report and Order on the regulatory fees for 2014, and also issued a Public Notice setting the deadline for paying those fees as 11:59 PM on September 23.  For broadcasters, the FCC also issued a Mass Media Fee Filing Guide providing details on the fee filing process, and provided a fee “look-up” tool on the Commission’s website to see what the fees are for a particular station.  The FCC adopted all the fees for broadcast stations as proposed in its Notice of Proposed Rulemaking (about which we wrote here) with the minor exception of its fees for TV stations, where there were very slight adjustments in the amounts to be paid.  The fees for all categories of broadcasters are provided at the end of this article. 

There are a couple of new wrinkles in the fee filings for broadcasters for this year.  First, there will be no more no more checks or other paper forms of payment.  All payments must be made electronically, through wire transfers, electronic payments, or with a credit card.  If you send a check, it will be returned, and you will be assessed a late fee if the electronic payment is not made by the 23rd. Continue Reading

September Regulatory Dates for Broadcasters – Regulatory Fees, Lowest Unit Rates, and Comments on Multiple Ownership, Online Public File for Radio and MVPDs, Music Licensing and Class C4 FM Stations

Posted in FCC Fees, FM Radio, Internet Radio, License Renewal, Multiple Ownership Rules, Music Rights, Political Broadcasting

September is one of those few months of the year where there are no regular FCC filing deadlines – no quarterly issues programs lists, no children’s television reports, no annual EEO public file reports, and no ownership reports or renewal deadlines.  For TV stations that recently filed a renewal, or which are about to file one, there are the pre-or post-filing notices.  But for most broadcasters, the one routine regulatory deadline in September (which has, in the past, sometimes fallen in August), is the obligation to pay annual regulatory fees.  But, so far, the FCC has not released the Order officially stating what those fees will be, or the Notice setting the filing deadlines – though we expect these notices any day (perhaps any moment).  As the fees need to be paid before the start of the FCC’s new fiscal year on October 1, expect that those fees will be due at some point before the end of September.

While there are few of these routine filing deadlines in September (though broadcasters should, of course, be preparing for the due date for many of these reports in early October), there are a number of important proceedings with September comment dates, appeal deadlines or other important milestones.  And there is the start of the Lowest Unit Rate window for the November election.  Some of the September deadlines are summarized below. Continue Reading

FCC Extends Dates for Comments on Proposal to Create a Class C4 FM Station – What Does This Proposal Seek?

Posted in FM Radio, FM Translators and LPFM

The FCC yesterday issued a public notice extending the time for comments on a Petition for Rulemaking seeking, among other things, to create a Class C4 FM station with maximum power levels at about 12 kW, twice the power of the least powerful class of FM stations – Class A stations that are limited to 6 kW in power.  As we wrote earlier this month when we first addressed this topic, this request for comments is only a preliminary request seeking input as to whether the Commission should even consider this petition further.  Depending on the comments received, the Commission could do nothing at all, or they could adopt a formal notice of proposed rulemaking looking to adopt specific rules for the new service.  Comments on the proposal are now due on September 18, 2014, with reply comments to be filed by October 3.

What does this proposal request?  As stated above, the principal request is that a new FM class of station – a Class C4 – be adopted.  This class would allow Class A stations to approximately double their power to a maximum of 12 kW.  The petitioner points out that the current differences between the classes of FM stations is approximately 3 dB between all classes of FM stations, except for the difference between the current Class A and C3 classes, where the difference in signal intensity is about twice that amount.  Adding the C4 class would make the increases in power between the classes more uniform, and would allow many Class A stations to reach more people and to better penetrate buildings in urban areas.  Why aren’t all broadcasters in favor of this proposal? Continue Reading

New Conditions on Mattoon Waivers for FM Translators Used for AM Stations – Mandatory Rebroadcast of AM on the Translator for 4 Years

Posted in AM Radio, FM Translators and LPFM

It’s come to our attention that the FCC’s Media Bureau has recently been granting applications for changes in the transmitter sites of FM translators to be used for AM stations with conditions on the subsequent use of that translator.  The conditions seem to be added to the construction permits granted to applicants who filed an application for a site change and relied on the Mattoon waiver (see our discussion of that waiver here) to expedite the relocation to the new transmitter site.  The condition requires that the translator be used only with the AM station for a period of 4 years.

A similar condition was proposed in connection with the FCC’s proceeding on AM improvements, where the FCC proposed to open a window for the filing of applications for new translators, but to limit the applicants to AM licensees who want to use those translators to rebroadcast their AM station (see our summary of the proposal for a translator window for AM station owners here).  Obviously, that proposal for an AM-only window for translator applicants has not been adopted, and there has been some objection to the proposal to permanent tie any translator granted as a result of that window to the AM station that initially asks for it.  For instance, some comments suggest that a translator be allowed to change primary stations if the primary station is moved to another AM in the same market owned by the same company, or that it be allowed to be transferred should the AM station cease operations (as there will no doubt be some AMs that may not be able to survive even with an FM translator).  But, in the new condition now being added to translator moves granted pursuant to a Mattoon waiver, any such limitation is not provided. Continue Reading

FCC Decisions, Including Fox TV Renewals, Focus on FCC Limits in Assessing Programming Claims in Reviewing License Renewals

Posted in License Renewal, Programming Regulations, Public Interest Obligations/Localism

Two recent decisions, the most high profile being the renewal of the Fox television stations in the New York City area, demonstrate the analysis that the FCC goes through in deciding if a station has operated in the public interest and if its license deserves to be renewed.  In the Fox case, the focus was on the public service record of the station, and in particular whether the station had adequately addressed the issues of importance to the residents of New Jersey, the state to which one of its TV stations is licensed.  In a second recent case, that of a California radio station, the issue was much more specific – whether the station had promoted illegal drug use, and whether one of the station’s on-air program hosts had been abusive to callers.  In both cases, recognizing the First Amendment concerns posed by second guessing a broadcaster’s programming decisions, the FCC granted the license renewals.

In the Fox case, the issues were broader in nature.  The Fox station WWOR was licensed to New Jersey – in fact receiving a special license renewal when its then-owner, RKO General, was fighting the loss of its other broadcast licenses for issues involving purported lack of candor with the FCC.  The WWOR renewal was granted when Congress passed very specific legislation agreeing to grant the license of any TV station that moved to a state with no VHF television service (which, at that time, was the superior transmission service for TV).  RKO agreed to move WOR from New York City to Secaucus, NJ and received a license renewal as NJ had no VHF stations at that time.  The renewal was granted with the expectation that, as a NJ station, its public interest programming would focus on NJ.  Whether the service provided by current licensee Fox to NJ was the issue that the FCC addressed in the license renewal challenge. Continue Reading

FCC Seeks Comments on Expanding Online Public File Obligations to Radio and to Cable and Satellite Television Operators

Posted in AM Radio, Cable Carriage, FM Radio, General FCC, Political Broadcasting, Public Interest Obligations/Localism, Website Issues

The FCC has asked for public comment on whether it should extend the online public inspection file obligation to radio, and also whether it should adopt an online public file obligation for cable television and satellite television operators.  The latter proposal originates in a recent petition by the Sunlight Foundation and two other public interest groups seeking an online political file for cable and satellite television providers.  Sunlight has been active in filing complaints with the FCC raising issues with the adequacy of television broadcaster’s online political files and their sponsorship disclosures (see our articles on the Sunlight Foundation’s recent filings here and here).  The extension of the online file obligation to radio had been proposed when the obligation was adopted for TV broadcasters (see our article here about the obligations for the TV online public file), but the FCC did not adopt the obligation, leaving that adoption for another day.  The FCC now asks for comments on whether that day has come, and radio broadcasters should be subject to the same obligations.  Comments are due August 28, and Reply comments are due September 8.

This proceeding appears to be just a preliminary request for comments, rather than a formal rulemaking seeking to establish rules for an online file for MVPD.  There are no specific rules proposed for what would be in an online public file for MVPDs, and the Public Notice indicates that the FCC staff has not yet determined if it has the resources to host an online public file for radio operators.  It is also worth noting that the FCC, in adopting the requirement for an online public file for TV stations, said that it would conduct a review of the process for TV stations before it adopted the rule for radio – a process that was begun over a year ago (see our post here), but has never been completed.  As we remarked when the Commission issued a reminder before the political file rules went into effect for small market TV stations, we were somewhat surprised that this effective date would occur before there was any resolution of that review.  But the online political file rule went into effect for small market TV with no resolution of the review of the effectiveness of the online file (see our reminder here), and now it looks like the FCC will begin the process of extending the requirement to radio.  Perhaps the proposal to extend the obligations to radio will prompt the review of the effectiveness of the online file before any extension is adopted.  This obligation will not be imposed overnight, as a formal rulemaking process will probably take at least a year, and probably more, to adopt final rules.  But the process of extending the public file rule to radio has begun, so broadcasters should be ready to file comments in this new and unexpected proceeding in just 3 weeks.  And cable and satellite television companies will be right there filing comments with the radio broadcasters.

Comment Dates Set for Rulemaking on the Required Captioning of Online Video Clips – What is Being Considered?

Posted in Digital Television, Internet Video, On Line Media, Television, Website Issues

The Commission has set the date for comments on it Further Notice of Proposed Rulemaking on certain aspects of the captioning of Online Video clips.  We recently summarized the FCC action setting up compliance deadlines for the captioning of video clips taken from programs that are shown on TV with captions, and then repurposed for online use.  While the Commission has already established the obligations for TV broadcasters to take these clips and caption them when shown online on the broadcaster’s own website or through its own app, there are still certain areas to which the rules have not yet been extended on which comments are sought. The Comment deadline is October 6, with replies due November 3 (see the full text of the FCC decision here, and the Federal Register publication of the comment dates here).  What is being considered?

Basically, questions are asked about three areas. The first is whether to require that clips be captioned when they are shown on third-party websites.  The current rules require that full programs shown on TV and repurposed to the Internet be captioned when shown on third-party sites, but the new rules for clips were not immediately extended that far, as the Commission seeks comments on the costs and difficulties that might exist in such an extension. Continue Reading

The Summer of Copyright Part 4 – The Department of Justice Reviews the ASCAP and BMI Consent Decrees – What Should Broadcasters and Music Services Know?

Posted in Broadcast Performance Royalty, Intellectual Property, Internet Radio, Music Rights, On Line Media, Television

As we wrote in our previous articles on the music licensing issues being considered during this summer of copyright (here, here and here), one of the concerns driving many of the proposed reforms is the current demand of songwriters and publishing companies for a larger share of the music royalty pie.  In licensing the public performance of musical compositions, ASCAP and BMI represent the vast majority of songwriters, with SESAC representing far fewer writers (together ASCAP, BMI and SESAC are referred to as the “PROs,” the performing rights organizations).  ASCAP and BMI, having such a significant representation of musical compositions, have for over 50 years been subject to antitrust Consent Decrees that limit their operations and oversee the rates that they set for the use of their music.  Among the many requirements under the consent decree are those that obligate ASCAP and BMI to license all users of music who are similarly situated under the same rates and standards, and the oversight of a “rate court” to determine whether rates are reasonable whenever either of the PROs can’t agree on the amount of those rates with a class of music users.  In June, the US Department of Justice asked for public comment on several aspects of the consent decrees, and whether modifications of the decrees were called for.  Comments on the DOJ notice are due today.  Why was this proceeding started, and what is the DOJ looking at?

In two recent hearings examining music licensing, the motivations for ASCAP and BMI to seek changes in the consent decrees were discussed.  The first proceeding was a Copyright Office roundtable held in Nashville in June, in which I was a participant.  There, representatives of ASCAP discussed potential changes to the laws dealing with music licensing. The second was at the two part House Judiciary Committee hearing on music licensing held in late June.  ASCAP and BMI representatives in these forums suggested that there were several objectives in their seeking these reforms, and several specific changes that were requested in the Consent Decrees.  These include the following:

  • Replacing the rate court judges who determine rates when ASCAP or BMI don’t reach an agreement with a company that uses music (currently US Federal District Court Judges in the Southern District of NY) with an arbitration panel.
  • Instead of setting “reasonable rates” as required under the current consent decrees, the PROs request that a new standard be used to set rates – the willing buyer willing seller standard currently used in setting Internet radio sound recording performance royalty rates.
  • Allow publishers to withdraw some of their compositions from the PROs for licensing to certain classes of companies – specifically to withdraw so that the publishers can negotiate with digital media companies at rates that are not overseen by a rate court, while still leaving those same compositions with the PROs to collect from business establishment services (retail businesses that use “background” music) and potentially over the air radio stations – companies where there are lots of licensees who pay small amounts, making it difficult for anyone but a large, well-established company like ASCAP or BMI to pursue
  • Allow ASCAP and BMI to do more than simply license the public performance rights to music services – most likely allow them to provide reproduction and synch rights to the music that they license.
  • To impose interim royalties on any service that asks to be licensed, until an appropriate rate for that service can be set

What prompted this desire to change the consent decrees, and what will the DOJ be doing with the information it collects? Continue Reading

Copyright Office Extends Comment Date on Music Licensing Study; Copyright Royalty Board Extends Reply Comment Deadline on Webcasting Recordkeeping

Posted in Intellectual Property, Internet Radio, Music Rights, On Line Media

Extensions of time were just announced in two proceedings affecting music licensing – one a Copyright Office proceeding studying music licensing generally, and another a Copyright Royalty Board proceeding on webcasting recordkeeping.  Only a week after announcing that it would take another round of comments on its music licensing study, the Copyright Office announced an extension of the due dates for those comments – moving the deadline to September 12.  The expressed reason was to allow participants to have more time to complete their comments.  Perhaps, it was also to await the posting of the transcripts of the roundtables held by the office across the country, where various parties had the opportunity to address many of the issues on which the Copyright Office now seeks comments. See our post here about the questions posed by the Copyright Office in this new round of comments, and our article here about the issues originally identified for comment at the start of this proceeding.

The Copyright Royalty Board has also extended the time to file Reply Comments in its recordkeeping proceeding (to be published in the Federal Register tomorrow, here).  That proceeding seeks to determine whether to change the information that webcasters need to report to SoundExchange about the songs that it plays.  The suggestions included the potential for requiring information about ISRC Codes as well as artist, song title and record label in connection with all the songs that are played on an Internet radio station.  We wrote about that proceeding here.  The new deadline for reply comments is September 5.  Get your comments ready for filing in these important proceedings.