Broadcast Law Blog

Broadcast Law Blog

Copyright Royalty Board Webcasting Royalty Decision Published in the Federal Register – Appeals Due in 30 Days

Posted in Intellectual Property, Internet Radio, Music Rights

The Copyright Royalty Board Decision on the royalty rates to be paid for the public performance of sound recordings by Internet radio companies – webcasting royalties – was published in the Federal Register today. We wrote about that decision setting the royalties here and here. The publication in the Federal Register gives parties to the proceeding 30 days in which to file an appeal of the decision. Appeals are heard by the US Court of Appeals in Washington DC.

While we have written about some issues with the decision raised by small webcasters about there not being a percentage of revenue royalty, as that issue was not raised before the CRB as no small webcasters participated, that is not an issue that the Court will consider – as the Court looks to whether the decision was arbitrary and capricious based on the evidence adduced at trial, or whether the decision was without substantial evidence in the record. It is focused on what was argued at trial, rather than what was not. Similarly, the issues about the performance complement waivers for broadcasters, which we also wrote about in the same article, are statutory issues that need to be addressed by waivers from copyright holders, not by a court appeal. Noncommercial groups have also expressed disappointment in the decision. Continue Reading

126 MHz Incentive Auction Clearing Target Set – Reverse Auction for TV Stations to Bid to Surrender their Spectrum to Wireless Users to Begin May 31

Posted in Broadcast Auctions, Digital Television, Incentive Auctions/Broadband Report, Television

This morning, the FCC released a Public Notice, announcing that the spectrum clearing target for the initial stage of the Incentive Auction will be 126 MHz.  That means, that if the Incentive Auction is completed in the initial stage with the 126 MHz spectrum clearing target, TV channels 30-36 and 38-51 will be reallocated for mobile broadband and unlicensed wireless services, leaving UHF channels 14-29 for broadcast TV stations (along with VHF channels 2-13 which are not being auctioned).  Channel 37 will remain allocated for wireless medical telemetry and radioastronomy services, with unlicensed services permitted. This is the maximum amount of spectrum that the FCC had initially indicated that it would potentially reclaim from broadcasters.

The Public Notice also announces that the actual bidding in the reverse auction, the so-called “clock rounds,” will begin on May 31, 2016.  The initial two days of the auction will have one round per day, with subsequent days speeding up to have at least two rounds per day until further notice from the FCC’s Wireless Bureau which administers the auction. Continue Reading

May Regulatory Dates for Broadcasters – Incentive Auction, Comments on EAS, ATSC 3.0 and Set Top Boxes

Posted in AM Radio, Broadcast Auctions, Cable Carriage, Digital Television, Emergency Communications, FM Translators and LPFM, General FCC, Incentive Auctions/Broadband Report, Political Broadcasting, Television

May is one of those off months in which there are not the kind of routine filings that pop up in most other months – no EEO Public File Reports, no quarterly issues programs lists or children’s television reports, no Biennial Ownership Reports for noncommercial stations (which will soon disappear anyway when noncommercial stations transition to the same biennial report deadline as commercial broadcasters – see our articles here and here). Clearly, the big event for TV will be the likely start of the bidding in the “reverse auction” part of the TV incentive auction. For radio, the big activity will be around the continuing window for AM stations to buy FM translators to move to their communities (see our article here). And, as we wrote in our Broadcasters Calendar here, there are also a number of lowest unit rate windows in the states in which the final Presidential primaries are being held.

There are not even that many comment dates in proceedings of importance to broadcasters. Perhaps the most important is the preliminary comments on the proposed ATSC 3.0 transmission standard for the next generation of television (see our articles here and here). These initial comments are due on May 26. Continue Reading

FCC Application Processing Decisions – No Reasonable Transmitter Site Assurance Necessary for Auction Applications, Change in Control of Nonprofit Governing Board Fatal to Pending Applications

Posted in Broadcast Auctions, General FCC, Noncommercial Broadcasting, Tower Issues

There were several recent FCC decisions on application processing matters worthy of note. One deals with the processing of commercial applications for FM stations or FM translators that are involved in an auction to resolve disputes, the others with the processing of noncommercial applications (in this case for LPFM stations). None break new ground – but instead they reinforce earlier decisions that some who have been around the broadcast industry had found surprising, so these decisions are worth noting. The commercial case involved the question of whether an applicant needs to receive “reasonable assurance of transmitter site availability” before specifying a transmitter site after a broadcast auction. The noncommercial cases deals with the dismissal of an application because of a change in the control of its board of directors while the application was pending.

The commercial case involved the application for a new FM translator in New Jersey, where a local broadcaster filed a petition asking that the translator application be denied as the applicant had never received permission to specify the tower site, owned by the petitioner, in the “long-form” application filed by the applicant after the applicant prevailed in an auction. After the petition was filed, the applicant amended his application to specify another transmitter site. But, under an old line of cases, the failure to have “reasonable assurance” of a transmitter site was fatal to an application and could not be corrected by a later amendment to an available site. In this week’s decision, the FCC reiterated a decision that it made a few years ago (see, for instance, our article here) concluding that, where an application is granted as a result of an auction, the applicant need not have “reasonable assurance” of its transmitter site at the time it files its “long-form” application (the application that specifies the technical details of the facilities that the applicant intends to use to operate its station). Continue Reading

FCC Requests Initial Public Comments on ATSC 3.0 Proposal for Next Generation of Over-the-Air TV

Posted in Digital Television, Incentive Auctions/Broadband Report, Television

The FCC has released a Public Notice, as promised by FCC Chairman Wheeler at last week’s NAB convention, asking for public comment on the proposal filed by the National Association of Broadcasters, the Consumer Technology Association and others requesting that the Commission approve ATSC 3.0, the next transmission system for over-the-air television broadcasting. We wrote last week about that proposal, here, and the hopes of some broadcasters that the FCC would work quickly to approve this standard, so that it could be rolled out as TV stations make other changes as part of the post-incentive auction repacking of the TV band (see our article here on repacking issues). Comments on the proposal are due on May 26 and replies on June 27.

Note that these are simply preliminary comments on the proposal filed the week before last. This is not a notice of proposed rulemaking – a notice that would be necessary before the FCC actually adopts the new standards. Instead, the FCC will take these preliminary comments, digest them and then formulate its own proposal for a set of rules to govern the deployment of ATSC 3.0 and the other issues addressed in the petition (including the use of a “host station” to continue to broadcast in the current DTV standard the main program stream of any station that converts to ATSC 3.0, and the issues with the treatment of converted stations for satellite and cable carriage purposes). Other issues not addressed in the initial proposal, such as the treatment of LPTV stations and whether stations can transition if they don’t find a “host station” to continue to transmit their signals in the current format, are likely to be raised in these preliminary comments, and addressed in any NPRM. But, at least the preliminary steps have been taken to get the regulatory ball rolling. Most TV broadcasters are no doubt hoping that subsequent actions can be taken quickly as well.

As Incentive Auction Draws Near, Focus Begins to Shift to TV Spectrum Repacking – and Even FM Broadcasters Take Note of Potential Issues

Posted in Digital Television, FM Radio, Incentive Auctions/Broadband Report, Television, Tower Issues

At the NAB Convention last week, FCC Chairman Tom Wheeler discussed the timing of the incentive auction and how some of the remaining issues may soon be resolved. One subject of talk in a number of NAB sessions, as well as in the trade publications, has been how the repacking of broadcast television spectrum will proceed after the auction. Even FM broadcasters noted the potential for disruption of their operations as the repacking may affect shared users of broadcast towers, and given that hundreds of TV stations potentially face changing out antennas to operate on new channels in the smaller post-auction television band.

The Chairman made clear that the FCC will be announcing soon, perhaps as early as this week, the “spectrum clearing target” for the auction. In other words, the FCC will be announcing how much of the TV band it intends to try to clear for wireless broadband uses, based on how many TV stations expressed interest in potentially taking a buyout of their spectrum in their commitments filed at the end of last month. After the targets are announced, the FCC will quickly begin the reverse auction, a process where, round by round, the FCC will lower the prices offered to TV stations to abandon their spectrum until the FCC has committed to buy just the right amount of spectrum to meet its clearing targets. Then, it will turn around and repackage and resell that spectrum to wireless companies in the “forward auction.” The Chairman indicated that the clearing target may also signal the answers to many other issues. Continue Reading

2016 is a Big Year for Radio and ASCAP, BMI and SESAC

Posted in AM Radio, Broadcast Performance Royalty, FM Radio, Intellectual Property, Music Rights, Noncommercial Broadcasting, On Line Media

The “performing rights organizations” – ASCAP, BMI and SESAC – don’t get as much attention in these pages as do the royalties paid to SoundExchange for the use of “sound recordings.” The PROs collect for the public performance of the “musical work” or the musical composition – the words and music of a song. These royalties are paid anywhere that music is performed in the US – including by radio and TV stations, by retail establishments and by digital music users. The performance of the sound recording, on the other hand, is only subject to a royalty in the US when it is performed by means of a digital transmission (reproductions of sound recordings, and of musical works, are separately licensed). 2016 is a big year for broadcasters’ relations with the PROs as public performance royalty changes could be coming soon.

On the radio side of things, the commercial radio industry is for the most part represented in its negotiations with the PROs by the Radio Music License Committee (RMLC)(see our prior article on RMLC here). RMLC operates partially though payments made by stations that elected to be governed by RMLC’s prior settlements with the PROs, and partially through contributions (including volunteer efforts) from radio companies. This year will be an important one for radio, as the ASCAP and BMI agreements (which we summarized here and here) both expire. If new deals cannot be reached with these organizations, there is the potential for rate court litigation over the proper royalty amount. As broadcasters will remember, the current royalties were a return to a percentage-of-revenue model, after a period during which broadcasters had been paying a flat fee based on market size – a royalty experiment that many broadcasters thought was a failure as it resulted in increasing royalties in a period during which radio revenues did not increase. Most seem to believe that the return to the percentage of revenue is a better system, though there can always be improvements to any license. Watch for more news on these negotiations from RMLC over the coming months to see the issues that may be on the table.

SESAC is also in a new process, arrived at as a result of an antitrust consent decree following litigation brought by the RMLC (see our article here). Under this process, if an appropriate royalty cannot be negotiated, there will be an arbitration proceeding later this year to set the royalty for the next three years. Broadcasters have complained that SESAC receives more in royalties than it deserves, given the amount of music that it represents. As part of the negotiated antitrust settlement, SESAC is also supposed to provide a current database of music which it licenses – and for stations that rely on that database to try to eliminate their use of SESAC music, they cannot be sued by SESAC for not having a license until a song is listed in the database.

One new issue may be arising in the future on the PRO side of the royalty world. A new PRO, Global Music Rights, has been formed to represent the interests of certain songwriters and music publishers (music publishers are the companies that often hold the copyrights to musical compositions). This year, songs written by artists including members of the Eagles as well as John Lennon and Pete Townshend, may no longer be represented by BMI as their writers have indicated an intent to withdraw and change their representation to GMR (see BMI’s page on this subject here). While the current licenses in place with ASCAP, BMI and SESAC through this year should cover radio broadcasters during the current period, dealing with these artists in the future may be an issue – perhaps requiring the negotiation of royalties with this new PRO.

Also confusing issues is the fact that the Department of Justice is reviewing the antitrust consent decrees under which ASCAP and BMI operate. These organizations have suggested that the decrees are outdated, and prevent songwriters from getting a marketplace rate for royalties. User groups of course largely disagree with that suggestion, but many do agree that some reform of the decrees may be in the public interest, particularly lifting restrictions on these organizations that limit them to licensing just public performances to the extent that such limits are in the consent decrees (see our article here and here on some of the issues that are being discussed). SESAC is already in the business of licensing more than just public performance rights – licensing the reproduction rights to music having purchased the Harry Fox Agency that specializes in such licensing, as well as a service that licenses sound recordings. Some think that the establishment of one-stop shops for music rights may be useful for music users – provided that appropriate protections against unfair competition practices apply.

Noncommercial radio broadcasters have their own royalty proceeding that is ongoing as their PRO royalties are set not by a rate court in New York, but instead by the Copyright Royalty Board under Section 118 of the Copyright Act. A proceeding to set these royalties was started earlier this year (see our article here), and the parties to the case have been set (see the list of the parties who have filed to participate here). The parties to the proceeding are currently in a “negotiation period” to see if a settlement can be reached on the royalties to be paid by noncommercial broadcasters for their over-the-air broadcasting. If no settlement is reached, written exhibits setting out the proposed rates of each party will be filed later this year with written testimony to support the claims, with a trial to be held next year, and a decision due before the end of 2017, when the current royalties expire.

All in all, for the entire radio industry, this will be a very busy year dealing with these organizations. Watch what happens, pay attention to communications from the RMLC and other organizations representing broadcasters, and participate where appropriate to help establish fair royalties going forward.

FCC Says Pre-Auction Expenses Can Be Reimbursed to Stations that Have to be Repacked After the Incentive Auction

Posted in Broadcast Auctions, Digital Television, Incentive Auctions/Broadband Report, Television

Can expenses incurred by a TV station now in making moves to prepare for the post-incentive auction repacking of the TV spectrum be reimbursed if that station in fact is forced to move after the auction?  In a clarification “Declaratory Ruling” released on Monday, the FCC said that they can – in an aim designed to expedite the post-transition repacking of the broadcast spectrum.  The TV spectrum, after the auction, will be consolidated into fewer channels, as part of the TV band will be cleared of broadcast stations so that it can be sold to wireless broadband users.  The Commission noted that one party asking for the clarification said that work could begin now on modifying tower structures so that they can be prepared for the mounting of new antenna for stations that have to change channels.

Of course, the FCC noted that the reimbursement can only go to the stations that are actually repacked.  If a station is instead bought out entirely, or if it is left on its current channel, these pre-auction preparatory actions will not be reimbursed.  While the FCC did not mention it, we note that, in making any such moves, stations should remember the rules that prohibit communications about auction plans by broadcasters (this auction’s version of the auction anti-collusion rule).  So discussions involving any stations that filed their initial applications to participate in the auction back in January may well want to refrain from these kinds of conversations to the extent that they involve other stations, or parties that could convey information to other stations involved in the auction, as those conversations might be of concern under these rules limiting communications about auction matters (see our article here about these prohibitions).

Petition Asking FCC to Approve Next Generation of Over-the-Air Television, ATSC 3.0 – What is Being Requested?

Posted in Digital Television, Incentive Auctions/Broadband Report, Television

On the eve of this year’s NAB Show in Las Vegas, the FCC has been asked to approve the next generation of TV transmission – ATSC 3.0.  A broad coalition – broadcasters through the NAB and APTS (the public television association), technology manufacturers (through CTA – the Consumer Technology Association formerly the Consumer Electronics Association), emergency communications advocates (through the AWARN Alliance, which includes broadcasters) and ATSC (the TV technology standards association) have requested that the Commission approve this new technology for use by TV stations on a voluntary basis.  The petition (available here) asks that the FCC approval be granted expeditiously, no doubt so that roll-out could be timed with the repacking of the TV band that will be required following the broadcast incentive auction that is now underway.

The requested changes to the FCC rules are minimal – asking only that TV stations be able to adopt and use the new transmission standard, that stations using the standard be treated as TV stations for must-carry purposes (and providing for prior notice to MVPDs when the conversion is about to occur on a TV station), and to provide for TV stations who decide to convert to be able to continue to broadcast in the current DTV standard.  That continuation of service would be provided by allowing a station that converts to the new standard to simulcast one program stream on another TV station that is operating using the current DTV standard in the same market, as existing TV sets will not be able to decode the new transmission standard.  Here are some questions that we had when reading the Petition and answers to the extent that we can discern them from the filings made so far. Continue Reading

Can You Trademark A State’s Name? Can Such a Trademark Affect a Broadcast Program Title or Other Product Names?

Posted in Intellectual Property, Trademark

Can the name of a state be trademarked so that no one else can use it in a particular line of business? Last week, in connection with the denial of the trademark application filed by the producers of the podcast SERIAL, we wrote about the difficulty of trademarking brands that are descriptive of the product that they promote. What could be more descriptive than the name of a place where the product originates? Yet on Sunday, the NY Times ran a front page story about a legal moonshiner in Kentucky who is being sued by the University of Kentucky for using the name KENTUCKY MIST on shirts and hats to promote his craft moonshine. The University claimed that it owns the trademark for the word “Kentucky” when used on clothing. Can they really do that? Does a media company need to worry about branding a program featuring the name of the geographic location in which they operate?

It depends. Trademark law is, among other things, designed to protect consumers from confusion. When the Trademark Office is analyzing a new federal trademark application, it will look to see whether a mark is “confusingly similar” to any existing registrations or pending applications. As part of this analysis, it will analyze the similarity of the marks, the types of goods and services offered in connection with the marks, and the channels of trade used to sell or promote the goods/services. If a proposed mark is too close on these fronts to a registered mark, the Office may deny the application (or in the case of a lawsuit, a court may find merit to the infringement claim). This can happen even if the mark incorporates a descriptive term, like a geographic area. Does this mean that broadcasters are precluded from incorporating the name of their state in a program title or station tagline if there is an existing registration for that state name? Thankfully, no – but it doesn’t mean that you shouldn’t do your due diligence before adopting your mark. Below are a few tips to help you assess whether your proposed mark is at risk of getting into trademark hot water. Continue Reading