Last year, the FDA adopted requirements to tag advertisements for vaping and e-cig advertising with a warning that e-cigs contain nicotine and that nicotine is an addictive chemical. These requirements were to go into effect in 2018. In the last week, I have received several questions about these rules and their effective date. According to this FDA document (see the table on Page 5), released in August, the new disclosure obligations are still set to become effective on August 10, 2018. We wrote about that effective date here, and about the adoption of the requirements, including additional health warning disclosures required for cigar advertising, here. We don’t claim to be FDA experts, so companies offering these products should consult with lawyers who are knowledgeable about the status of additional obligations imposed on manufacturers and retailers adopted by the FDA last year.
The comment dates have now been set on the FCC’s proposal to abolish the requirement that licensees of certain classes of broadcast stations (including translators and auxiliary stations) maintain a paper copy of the FCC rules. We wrote about that proposal, one of the first actions of Chairman Pai under the Modernization of Media Regulation initiative, here and here. The proposal was published in the Federal Register today, setting November 13 as the deadline for comments in this proceeding, and November 27 as the deadline for reply comments. If you are interested in making your views known on this issue, file your comments before the deadlines next month.
The alphabet soup of organizations that collect royalties for playing music has never been easy to keep straight, and today royalty issues sometimes seem even more daunting with new players like GMR (see our articles here, here and here) and arguments over issues like fractional licensing that only a music lawyer could love (see our articles here and here). But there are certain basics that broadcasters and other companies that are streaming need to know. Based on several questions that I received in the last few weeks, I’ve been surprised that one of the issues that still seems to be a source of confusion is the need to pay SoundExchange when streaming music online or through mobile apps. For the last 20 years, since the adoption of the Digital Millennium Copyright Act, anyone digitally transmitting noninteractive music programming must pay SoundExchange in addition to ASCAP, BMI and SESAC (and more recently GMR) for the rights to play recorded music – unless the service doing the digital transmission has directly secured the rights to play those songs from the copyright holders of the recordings – usually the record labels. Why is there this additional payment on top of ASCAP, BMI and SESAC?
SoundExchange represents the recording artists and record labels for the royalties for the performance of the recording of a song (a “sound recording” or a “master recording”). ASCAP, BMI, SESAC and GMR by contrast represent the songwriters who wrote the song (not the performers) and their publishing companies. When you play music on your over-the-air radio signal, you only pay for the public performance rights to the underlying musical composition or “musical work” as it is often referred to in the music licensing world – the words and music of the song. This money goes to the songwriters and their publishing companies (the publishing companies usually holding the copyright to the musical composition). But, in the digital world, for the last 20 years, anyone who streams music, in addition to paying the songwriters, must pay the performers who recorded the songs and the copyright holders in the sound recordings (usually the labels). That is the royalty that SoundExchange collects. Continue Reading
In addition to the elimination of the main studio rule (about which we wrote here), another media item is proposed for consideration at the FCC’s October 24 meeting. A draft Notice of Proposed Rulemaking (NPRM) was released earlier this week proposing two changes in FCC requirements – neither change, in and of itself, offering any fundamental modifications of significant regulation, but both showing that this Commission is looking to eliminate bothersome burdens on broadcasters where those burdens are unnecessary in today’s media world or where they do not serve any real regulatory purpose. One change proposes to limit the requirement for TV stations to file Ancillary and Supplementary Revenue Reports to those stations that actually have such revenue, and the other proposing to eliminate the obligation of broadcasters to publish local public notice of significant application filings in a local newspaper.
The first deals with the filing by TV stations of FCC Form 2100, Schedule G (formerly Form 317), which reports on the ancillary and supplementary services revenue received by the TV station. This revenue is received by data transmission and other non-broadcast uses of the station’s spectrum. The report is necessary as, by law, each station offering such services must pay a fee of 5% of that revenue to the Federal government. So, by December 1 of each year, under current rules, each TV station must file the form stating how much revenue they received from these non-broadcast services. As most TV stations have not monetized their excess digital capacity by making it available for non-broadcast “ancillary and supplementary” services, most stations dutifully submit a report each December saying that they have not received any such revenue. To minimize paperwork burdens, the FCC draft NPRM proposes to amend the rule so that the majority of stations need not file this report simply to say that they have no revenue – the obligation to file the report would apply only to those stations that actually have some revenue to report. Continue Reading
The FCC yesterday released the agenda for its October 24th Open Meeting, as well as draft orders of the matters to be considered at that meeting. For broadcasters, the single most significant proposal was a draft order (available here) to abolish the requirement that a broadcast station maintain a main studio in close proximity to its city of license that is open to the public and staffed during normal business hours. The FCC’s draft order determines that, in today’s modern world, where much communication with broadcasters is done by phone or electronically, and as stations either have or soon will have their public files available online, there was no longer any need to maintain the rule mandating the main studio. So, if the Commission adopts the draft order at its October 24th meeting, the requirement which has been on the books since 1939 will be eliminated.
Together with the main studio rule, the FCC order would also eliminate the requirement that the station have staff members available at that studio. Instead, the licensee, to maintain contact with their community, must maintain a toll-free number accessible to residents of the station’s city of license. That number must be answered during normal business hours of the station – but the person answering the phone line need not be in the city of license. The FCC urged, but did not require, that the phone line be monitored during other hours as well. The phone line can be shared with multiple stations – so an “800” number available nationwide would seem to meet the requirement. Continue Reading
With the recent hurricanes and last night’s tragedy in Las Vegas, the FCC Public Notice issued last week reminding all video programmers of the importance of making emergency information accessible to all viewers seems very timely. The public notice serves as a good refresher on all of the obligations of video programmers designed to make emergency information available to members of the viewing audience who may have auditory or visual impairments that may make this information harder to receive. As the FCC also reminds readers of its notice of the ways in which to file complaints against video programming distributors who do not follow the rules, TV broadcasters need to be extremely sensitive to all of these requirements.
What are these obligations? These are some of the obligations highlighted by the FCC’s reminder:
- For persons who are visually impaired, rules require that emergency information that is visually provided in a newscast also be aurally described in the main audio channel of the station.
- When emergency information is provided outside of a newscast (e.g. in a crawl during entertainment programming), that information must be accompanied by an aural tone and then an audio version of the emergency information must be broadcast on a secondary audio channel (SAP channel) of a TV station at least twice. See our articles here, here and here about this obligation.
- For persons who are deaf or hard of hearing, the Commission requires that emergency information provided in the audio portion of a broadcast also be presented visually, through methods including captioning, crawls or scrolls that do not block any emergency information provided through other visual means (like other captions or crawls).
- For stations that are permitted to use electronic newsroom technique (ENT) captions, where ENT does not provide captions for breaking news and emergency alerts, stations must make emergency information available through some other visual means. See our post here on this obligation.
- The FCC suggests, but does not require, that stations make emergency information available through multiple means (maps, charts, and other visual information) and in plain language, so that all viewers can understand the nature of any emergency.
The beginning of a calendar quarter always brings numerous regulatory obligations, and October is one of those months with a particularly full set of obligations. All full-power broadcasters, commercial and noncommercial, must complete their Quarterly Issues Programs Lists and place these reports into their public inspection files by October 10. These reports are the FCC’s only official record of how a station served its community. They document the broadcaster’s assessment of the most important issues facing their communities, and the programming that they have broadcast to address those issues. Failing to complete these reports was the biggest source of fines during the last license renewal cycle – with fines of $10,000 or more common for stations missing numerous reports during the license renewal term (see, for example, our articles here, here and here). With the public inspection file for all TV stations now being online and the public file of large radio groups in major markets also already converted to being online, the timeliness of the completion of these reports and their inclusion in the public file can now be assessed by the FCC and anyone else who wants to complain about a station’s regulatory compliance (as documents added to the public file are date stamped as to their inclusion, and the FCC has used this stamp to assess station’s compliance in other areas, see our post here). All other radio stations will be converting to the online file by March 1, 2018 and will need to upload this quarter’s reports into the file by that date (along with all others back to your last license renewal, see our post here), meaning the reports they complete this quarter too can be scrutinized from afar. Thus, be sure that you complete this important requirement.
TV stations have the additional quarterly obligation of filing with the FCC by October 10 their Quarterly Children’s Television Reports, Form 398. These reports detail the educational and informational programming directed to children that the station broadcast in the prior quarter. These reports are used to assess the station’s compliance with the current obligation to broadcast at least 3 hours per channel of programming addressing the educational and informational needs of children aged 16 or younger. Late-filed Children’s Television Reports, too, were the source of many fines for TV broadcasters in the last renewal cycle (see, for instance, our articles here and here), so don’t forget this obligation and don’t be late in making the required filings. At the same time, TV stations should also include in their public file documentation showing that they have complied with the limitations on commercialization during children’s programming directed to children 12 and under. Continue Reading
The FCC yesterday released a Public Notice providing the details for its settlement window for mutually exclusive applications for new FM translators to rebroadcast AM stations. The settlement window will run through November 29. The mutually-exclusive applications (applications which conflict with each other as they cannot both operate without creating prohibited interference) are listed on an appendix available here. These applications were the ones filed earlier this summer in the FCC’s first window reserved for AM station licensees to file for new FM translators to rebroadcast their AM stations as part of the FCC’s AM revitalization proceeding. The first window was for Class C and D AM stations to submit applications. Class A and B AMs, which generally have greater coverage areas, will be able to file applications in a window to open either later this year or, at this point, more likely in early 2018. The majority of applications filed in this year’s window, which are not listed on the appendix of mutually exclusive applications and which did not receive a letter from the FCC in the last few weeks identifying deficiencies in their short-form applications, are likely “singletons,” meaning that these applications are not in conflict with any other and will likely be asked to file a “long-form” application completing the FCC Form 349 before being proposed for grant at some point later this year or early next year.
As we have written, as these applications were filed in the context of a potential auction, applicants cannot talk to each other except during announced settlement windows. Now that the settlement window has been announced, mutually exclusive applicants can discuss trying to resolve the mutual exclusivity either through technical means or by the dismissal of one of the applications. Technical means could include any “minor change” in the facilities initially proposed by one or both of the mutually-exclusive applicants, e.g. frequency moves to adjacent channels, transmitter site changes, or directional antenna proposals. Dismissal of applications can only be for the reimbursement of a dismissing applicant’s legitimate expenses – the dismissing applicant cannot be paid big bucks to dismiss its application. More details of the settlement process are set out in the Public Notice, but note that the deadline for the submission of any resolution to the FCC is November 29. Continue Reading
The Copyright Office yesterday issued a reminder, here, that their electronic system for “designated agents” of Internet service providers – those who are to receive notice of any claimed infringing content posted on a service provider’s site – is active and all services must register in that system by December 31 for such registrations to remain valid. The previous paper filings will no longer be effective as of the end of the year. Having a current and effective registration for the receipt of take-down notices is necessary for a service to claim a safe-harbor under Section 512 of the Digital Millennium Copyright Act against claims of infringing content posted on the service by third parties.
We wrote more extensively about this new system here and here. The new system also imposed obligations on services to periodically renew and update the information that they provide. For any Internet site that hosts content posted by third-parties that could potentially be infringing on the intellectual property rights of others, registration is essential. So if you allow people outside your company to post music, video, pictures, poetry, articles or anything else that could potentially infringe on the intellectual property of others, be sure to register if you have not done so already, or update that registration if it is out of date or not yet in the Copyright Office’s electronic database.
Yesterday, the FCC adopted a Notice of Apparent Liability proposing to fine three individuals $144,344 for operating a pirate radio station in North Miami, Florida. One individual is alleged to have programed and operated the station while the other two are a husband and wife who owned the property from which the station transmitted. The NAL details the failure of the individuals to cease operations on a permanent basis, even after the operator had been fined for prior operation of an unauthorized radio station, the operator and property owners had received numerous official notices of the illegal activity, and even after repeated visits from government officials notifying the landowners of the illegal operation and once seizing the unauthorized equipment. The FCC also suggests that, on a visit last year, the landowners may have hidden the broadcast equipment when authorities came to their house for an inspection when an unauthorized transmission was detected, the landowners did not answer the knock at their door for about 20 minutes, and when they finally came to the door, the station was no longer operating and the transmitter was gone from the backyard shack that appeared to have housed it. Given the fact that the illegal operation was repeated, and done after prior enforcement actions, the FCC deemed that the parties knew what they were doing was illegal, and thus imposed the maximum fine allowed by the Communications Act for a continuing violation of FCC rules.
This appears to be the highest fine ever issued by the FCC for pirate radio operations, and it may also be the first time that the FCC fined not only the operator of the station but also the landowner from whose property the station operated. We wrote about the FCC’s recent crackdown on pirate radio here. This decision is yet more evidence that the FCC is serious about its primary mission of policing the airwaves to make sure that they are being used as intended. The crackdown is real – pirates beware!