Broadcast Law Blog

Broadcast Law Blog

FCC Officially Starts Proceedings to Abolish Main Studio Rule and Review All Other Broadcast Rules

Posted in AM Radio, FCC Fines, General FCC, Multiple Ownership Rules, Programming Regulations, Public Interest Obligations/Localism, Television

As expected, at its monthly open meeting yesterday, the FCC started two proceedings of particular importance to broadcasters. The first looks at the abolition of the main studio rules. The second asks for comments on all of the other rules affecting broadcasters and other media companies to see which are ripe for appeal. For the most part, the proposals as adopted mirrored the draft orders released for public review back at the end of April, which we summarized here.

The proposal to review all media rules – referred to as the Modernization of Media Regulation – will look at all media-related FCC rules with the idea of eliminating or modifying those that no longer make sense in the modern media environment. Only the multiple ownership rules, already under review in separate proceedings (see our posts here, here and here) are excluded from this review. Comment dates for proposals to change specific rules are due by July 5, with replies due August 4. The two Republican commissioners supported this proposal. Commissioner Clyburn, the FCC’s lone Democrat, dissented from the adoption of the Public Notice launching the inquiry, not necessarily because she is opposed to review of existing rules, but because she felt that the notice presupposes that the public interest can only be achieved by abolishing rules that limit industry operations. She suggests that many FCC rules remain important – including EEO rules, Biennial Ownership Reports, and certain rules governing access to cable programming. The Republican commissioners, on the other hand, point to the efficiencies that can be gained by abolishing rules that no longer make sense, or which require filings that serve no particular purpose (see Commissioner O’Rielly’s statement here). No doubt, these differing perceptions of the rules will be reflected in comments filed by various parties in this proceeding. Continue Reading

SoundExchange Acquires CMRRA – What Does it Mean for Music Licensing?

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

This week SoundExchange, the non-profit rights organization that collects the royalties paid by digital music companies for the public performance in the United States of sound recordings, announced that it had acquired CMRRA (the Canadian Musical Reproduction Rights Agency, Ltd). CMRRA licenses the reproduction rights to musical works in Canada. As we have written before, musical works or musical compositions are the lyrics and music for a song, while the sound recording is the actual recording of that song by a singer, band or other performer. We have also written before about the difference between the public performance right and the right to make reproductions of songs (including “mechanical rights”), rights that arise in different contexts and usually require a different type of license before a music service can use a song in its business. Why would a company that licenses the public performances of sound recordings in the US acquire a company that licenses reproduction rights in Canada?

SoundExchange’s public notice talks about its ability to “integrate and streamline the administration and distribution of sound recording and music publishing royalties.” And it also highlights that the deal will allow it to “offer a broad and comprehensive range of services to rights holders in both sound recordings and music publishing and music users alike across North America.” While SoundExchange suggests that it is the first company to offer a comprehensive range of services in licensing both sound recordings and musical works in North America, this deal instead seems to be part of a trend where rights collectives are merging to offer such comprehensive services in licensing both public performance rights and the rights to make reproductions, for both sound recordings and musical works. Continue Reading

FCC Details Window for LPTV Stations and TV Translators Displaced by the Incentive Auction to Seek New Channels

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

The FCC last week released a Public Notice describing the process for the filing of applications for replacement channels for LPTV stations and TV translators that are displaced by the incentive auction.  As the repacking of the TV band following the incentive auction will require LPTV and TV translator stations now operating on channels above 37 to move to a new channel below that channel, and as others will be displaced by full-power stations being moved from high channels to channels below 37 (or simply being rearranged on their channels to make room for some of the stations being repacked into the smaller TV band), this displacement window will be necessary for these LPTV/TV translator stations to continue to operate. The Public Notice sets out that the FCC will open a displacement window after full-power stations that were repacked as a result of the incentive auction have had their own windows when they can request alternative channels or increased facilities, as set out in the FCC’s auction Closing Notice (see that notice here).  The FCC estimates that the LPTV/TV Translator window will likely be announced 7 or 8 months after last month’s Closing Notice in the auction – meaning that it is likely to be announced at the end of this year.  As the announcement of the window will give LPTV and translator stations 60 days to prepare applications, and the window itself will last 30 days, it looks like we are looking at displacement applications being due late in the first quarter of 2018.

In addition to displaced LPTV stations and displaced TV translators, full-power TV stations that lost coverage areas because of the repacking will be able to file in this displacement window for a new class of translators.  In fact, these new translators will receive a preference over displacement applications for LPTV stations and TV translators if both happen to file for the same channel.  The FCC will, however, provide mutually exclusive applicants filed during the window an opportunity to move to a different channel to resolve any conflict. Continue Reading

Copyright Office Makes Changes to Registration of Designated Agents for Take-Down Notices for User Generated Content – Reminder of December 1 Deadline to Register in New Electronic System

Posted in Intellectual Property, Internet Video, On Line Media, Website Issues

The Copyright Office last year announced changes to its system for registering designated agents for receiving take-down notices that are sent by copyright owners when they believe that user-generated content posted on a website is infringing on the copyright owner’s content (see our article here). The new system makes these registrations electronic, and requires all services seeking protection under Section 512 of the Copyright Act (the “safe harbor” for user-generated content) to register in the new system by December 1, 2017. Last week, the Copyright Office announced certain minor changes to the information required of the companies registering their designated agents in this new system (see Federal Register notice here).

The new changes make it easier for smaller companies to register in the new system. Initially, the system had required a user to establish an account with the Copyright Office before registering the designated agent. That account registration, while not public, did require the submission of information including the physical address of a contact person, and a secondary contact person for the company. Recognizing that many small website owners who might register for the sale harbor (e.g. a blogger running his or her own blog) might not have a secondary contact person for their website operations, the Copyright Office made the secondary contact optional. The office also eliminated the need to register a title for the contact person and the physical address for that person. Presumably, that address is no longer necessary as most contacts would be done through email or by phone – data fields that are still required. Why register in this system? Continue Reading

Copyright Royalty Board Announces Additional Webcaster Audit by SoundExchange – Reminder to Carefully Maintain Your Royalty Records as They Can be Reviewed at Any Time

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

In the Federal Register last week was a notice that SoundExchange intends to audit the royalty payments of Pandora for its Internet radio service. As we wrote at the beginning of the year, SoundExchange routinely decides to audit representative companies in various segments of the digital music industry. In January, for instance, they issued notices of audits for a number of broadcasters, pure webcasters, and other digital music services (see our post here about the audit notices released in January). These audit notices are usually released at the beginning of the year though, from time to time, we’ve seen SoundExchange decide later in the year to audit a particular service (see our article here).

What is involved in an audit? We wrote about the royalty audit process here. SoundExchange issues notice of an audit, and that notice must be published in the Federal Register. SoundExchange selects an auditor who, under the rules of the Copyright Royalty Board, must be a CPA. The auditor reviews the books and records of the service and issues a report, to which the service can respond. Neither the audit report nor the response are filed with the government or otherwise made public. The results of the audit are provided to SoundExchange for any appropriate action they may take. Under the audit rules, if a service has underpaid SoundExchange by more than 10%, in addition to any late fees it owes, it also has to pick up the cost of the audit. This audit notice reminds all digital music services to accurately measure their audiences and properly report to SoundExchange, as it is always possible that their royalty payments can be reviewed. As this notice makes clear, just because they were not targeted in January does not mean that they will not be reviewed at some other point during the year. Continue Reading

Announcement of FCC Window for AM Stations to File For New FM Translators Coming Very Soon

Posted in AM Radio, FM Translators and LPFM

At the NAB Convention, Chairman Pai announced that the promised windows for AM stations to apply for new FM translators would open this summer (see our article here). It now looks as if that promise is about to become a reality as on Friday the FCC added to its list of “items on circulation” a Public Notice announcing that window. Each week, the FCC updates this list of items on circulation (see the list here). These “items” are the orders that have been written by the FCC staff and are now being reviewed by the Commissioners themselves.  Once these items are reviewed and approved, often in a matter of days or a few weeks, they are released to the public. So it looks like the formal announcement on the dates for the windows will be coming very soon.

If adopted and released to the public by the FCC in the next few weeks, that announcement will likely set a date for filing for these translators – probably opening the first window about 60 days after the notice is released. Applications would then be filed in the window set for these filings. This could mean that the first window could open as early as July.  The Commission will be opening two windows. The first will be for Class C and D AM stations. Once those applications have been filed, a second window will open for Class A and B AM stations. Only AM stations that did not file for a translator relying on the 250 mile waivers available last year (see our article here) are eligible to apply for translators in these upcoming windows. Stations that acquired translators through other means can still apply for a new translator in this window. However, only one new translator will be available in this window for each AM eligible to file. Continue Reading

5 Questions on the Meaning of the FCC’s Recent Ruling on Online Recruiting – How Does it Change a Broadcaster’s EEO Obligations?

Posted in AM Radio, EEO Compliance/Diversity, FCC Fines, FM Radio, Television

The FCC recently issued a declaratory ruling (which we summarized here) addressing the requirement that broadcasters widely disseminate information about all of their job openings in such a way as to reach all of the groups within their communities. The recent FCC decision stated that a broadcaster can now rely solely on online sources to meet the wide dissemination obligation. In the past, the sole reliance on online sources would have brought a fine from the FCC, so this is a big change for broadcasters – one which recognizes the realities in the world today as to where people actually go to find information about job openings .

This decision does not end all other EEO obligations imposed by the FCC rules. The Indiana Broadcasters Association recently asked me 5 questions about that new decision to highlight some of the other obligations that still arise under the FCC’s EEO rules. Here is that discussion of the continuing obligations under the EEO rules:

  1.  The FCC recently issued a Declaratory Ruling about how Job Openings should be posted.  What’s changing?

The FCC is now permitting broadcasters (and cable companies) to meet their obligation to widely disseminate information about their job openings solely through the use of online recruitment sources. In the past, broadcasters were fined if they did not, in addition to online sources, use recruitment sources such as community groups, employment agencies, educational institutions and newspapers to solicit candidates for virtually all open positions at any station. Under the FCC’s new ruling, a broadcaster can use online recruitment sources as their sole means of meeting their obligation to widely disseminate information about job openings, as long as the broadcaster reasonably believes that the online source or sources that it uses are sufficient to reach members of the diverse groups represented in its community. Continue Reading

FCC to Investigate Steven Colbert? – Much Ado About Nothing

Posted in FCC Fines, Indecency

Several articles published at the end of last week suggested that the FCC, based on a statement by FCC Chairman Pai on a radio show, would be investigating comments made by Stephen Colbert on a program last week. The comments, suggesting a sexual act between President Trump and Vladimir Putin, has raised much controversy and apparently resulted in the filing of a number of complaints at the FCC. However, just because the statement was controversial does not mean that the FCC has any jurisdiction to do anything about it consistent with its precedent and constitutional protections which governs speech generally. The Chairman’s statement was no doubt nothing more than an acknowledgement that the FCC would deal with complaints that were filed, rather than any implication that there was likely to be any penalty for the statements of the TV host. Why?

The Colbert Show starts at 11:30 PM on the east and west coasts. Even in the rest of the country where it runs earlier, it begins at 10:30. Under the FCC’s policy on indecency, programs airing after 10 PM and before 6 AM are considered to be in the “safe harbor” where children are unlikely to be in the audience, so indecent programming – programming that “depicts or describes sexual or excretory organs or activities in terms patently offensive as measured by contemporary community standards for the broadcast medium” – is not prohibited. In other words, during these overnight hours, stations can run material that is sexually oriented and which would normally not be acceptable on television – allowing more adult oriented content to run even on broadcast stations. As the Colbert program ran during this safe harbor, the FCC’s indecency rules would not apply. But what about obscenity? Continue Reading

Update: Comment Dates Set on Prometheus Petition for Reconsideration of Relaxation of Siting Rules for FM Translators Rebroadcasting AM Stations

Posted in AM Radio, FM Translators and LPFM

Earlier this week, we wrote about a number of proceedings affecting FM translators, including the Petition for Reconsideration (available here) of the FCC decision relaxing the rules governing the locations at which AM stations using FM translators to rebroadcast their signal can locate those translators (see our summary here). Notice of that Petition has now been published in the Federal Register, setting May 19 as the date for formal oppositions to the petition, with replies due May 30. As many AM stations with FM translators have already filed applications relying on the new rules, there are bound to be oppositions to this petition.

Prometheus argues that the Commission, when it decided to allow AM stations to locate FM translators so that their signals did not exceed the greater of 25 miles from the AM site or the 2 mv/m contour of the AM station, whichever is greater (instead of the lesser of those contours, as had been the prior rule), had not given proper notice of its proposed rule change, as the rule as adopted did not contain an absolute limit on the distance from the AM station that the FM translator could reach, when the FCC had initially proposed a 45 mile limit. Prometheus also claims that LPFM stations that are displaced by new FM stations could be blocked in their site selection by this greater latitude in site selection afforded to AM licensees (though, as we wrote here when Prometheus asked for a stay of the new rules, it is impossible to prove such an assertion, as it is possible that, in any particular case, a translator site closer to the AM station could actually be more preclusive to a particular LPFM filing than one further from the AM site). In any event, broadcasters can voice their opposition to the Prometheus petition by the May 19 deadline.

Reminder – FCC Political Rules Apply to Off-Year Elections for Vacant Congressional Seats, and for State and Local Offices

Posted in Advertising Issues, Political Broadcasting

In odd years like 2017, most broadcasting stations don’t think about the FCC’s political broadcasting rules. But they should – both for special elections to fill open seats in Congress, and for state and local political offices.  Recently, I have received a number of calls about elections to fill seats in Congress that were vacated by Congressmen appointed to positions in the Trump administration. For instance, the race in Georgia to fill HHS Secretary Tom Price’s seat has received much national attention. But there is also a race being fought now to fill Interior Secretary Ryan Zinke’s seat in Montana. Obviously, for Federal elections like these, broadcast stations serving these districts need to offer candidates the full panoply of candidate rights – including reasonable access, lowest unit rates, and equal opportunities. But in other parts of the country where there are no special Congressional elections, there are all sorts of political races taking place in this off year and, as we have written before, most of the political rules apply to these state and local electoral races as well as to the few Federal elections that are taking place to fill open Congressional seats.

Some of these races will be high-profile, like the governor’s elections in Virginia and New Jersey and several big-city mayoral races. Some races may be much more locally focused on elections to school boards or town councils. Stations need to be prepared. Candidates for state and local elections are entitled to virtually all of the political broadcasting rights of Federal candidates – with one exception, the right of reasonable access which is reserved solely for Federal candidates. That means that only Federal candidates have the right to demand access to all classes and dayparts of advertising time that a broadcast station has to sell. As we wrote in our summary of reasonable access, here, that does not mean that Federal candidates can demand as much time as they want, only that stations must sell them a reasonable amount of advertising during the various classes of advertising time sold on the station. For state and local candidates, on the other hand, stations don’t need to sell the candidates any advertising time at all. But, if they do, the other political rules applyContinue Reading