Broadcast Law Blog

Broadcast Law Blog

Incentive Auction News: Stage 3 Forward Auction Closes After One Round, Stage 4 to Commence Next Week; GAO Issues Report on Effects on LPTV; Court Dismisses Appeal of TV Station Exclusion from Auction

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

Yesterday was a busy day for the TV incentive auction, where the FCC is attempting to clear portions of the TV band by paying TV stations to surrender their licenses, and repurpose the cleared spectrum for wireless broadband users. As we wrote earlier this week, Stage 3 of the Forward Auction started yesterday, where wireless companies would have had to come up with over $42 billion dollars to meet the costs of clearing the TV band. The Forward Auction closed after one round of bidding with bids totaling $19,676,240,520. Thus, we are on to Stage 4, with the FCC expected to attempt to clear 84 MHz of TV spectrum instead of the 108 MHz target in the just concluded Stage 3. The Reverse Auction in Stage 4 is expected to commence on Tuesday, December 13, but look for confirmation later this week.

At the same time, there are two other bits of auction related news – both dealing with stations eligible for the auction. In the first, the US Court of Appeals rejected the appeal of Walker Broadcasting Company, a company that had an authorization for a new TV station, but had not finished construction and licensing of that station in time for inclusion in the auction. Had it been included in the auction, the company could have attempted to sell its license in the auction and, if its station was not one purchased in the auction for surrender, the FCC would have had to find a new channel on which the station could operate after the auction. Instead, the Court upheld the FCC’s ruling that the station had not met the required construction deadlines, and therefore did not qualify to be included in the auction or for post-auction protection. Continue Reading

No Cost of Living Increase in Webcasting Royalties for 2017

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

A year ago, when the Copyright Royalty Board adopted the rates for webcasters (including broadcasters who simulcast their programming by online streaming) to pay for the sound recording performance royalty (see our summary here and here), one difference from previous decisions is that there was a single per-song, per-listener royalty adopted. In the past decisions, the CRB set royalties at the beginning of a 5 year term that generally rose each year of that term. This time, the rates – $.0017 per song per listener for nonsubscription performances, and $.0022 per song per listener for subscription listeners – did not automatically go up each year. Webcasters were successful in arguing that, when they pay on a per song per listener basis, their costs increase as their audience increases, but the value of each play of a song does not itself increase each year. While the CRB did not build in a stepped increase in the royalties each year, they did include a provision for royalties to increase to reflect changes in the cost of living – so that inflation did not erode the value of each play.

In today’s Federal Register, the CRB published a notice of its computation of the cost of living increase for 2017 – finding that inflation has not gone up significantly, so that the per performance rates (rounded to the hundredths of a cent) will not rise in 2017. So the rates arrived at in December 2015 and effective for all of the current year will remain in effect for 2017. Note that the rates established in 2015 are still subject to an appeal filed by SoundExchange (noted in our article here) that should be argued in 2017. But, until then, Internet radio operators can continue to pay at the rates at which they are currently paying, with no increase for 2017.

Stage 3 of the Reverse Auction is in the Books at $40 Billion – Forward Auction to Begin on Monday

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

The FCC last week announced that Stage 3 of the reverse auction portion of the FCC Incentive Auction is now complete, and the amount necessary to be paid to TV stations to vacate the required spectrum in this stage is $40,313,164,425.  This represents a drop from the $54,586,032,836 clearing cost that resulted from Stage 2 reverse auction bidding.  In order for the auction to close, and the TV stations who had “provisionally winning bids” in this stage of the reverse auction to get the amounts that they bid, the forward auction will have to raise this sum, plus the $1.75 billion for the costs of repacking other TV stations plus the amounts necessary to cover the FCC’s auction costs.  That means that the forward auction would need to raise about $42.3 billion to avoid Stage 4 of the auction.  If we had to go to Stage 4, the FCC would further reduce the amount of the TV band that they would try to reclaim to repurpose for wireless uses.  The forward auction is scheduled to commence on Monday, December 5 and we will see if it is successful in meeting the closing price – and we may know quickly if this round goes anything like the short forward auction during Stage 2.

While all of this is going on, the rules on prohibited communications (about which we wrote here), remain in effect.  Thus, TV stations that filed initial applications to participate in the auction remain prohibited from communicating any information about their auction participation – even information that they have already dropped out of the bidding or that the FCC has told them that their stations will not be needed in the reverse auction.

Copyright Office New Electronic Registration for Designated Agents for Take Down Notices Goes Live – and The Office Asks for More Comments on Assessing The Section 512 Safe Harbor for User-Generated Content

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

The Copyright Office’s new system for registering designated agents for the service of take-down notices when it is believed that user-generated content infringes on intellectual property rights has now gone live. The Copyright Office issued a reminder, here, that all new registrations of agents for the service of these take-down notices must now be submitted in this new electronic system. We wrote more here about the new system and the new requirements for registration, including the requirement that all who are already registered on the old paper forms must re-register in the new system by December 31, 2017. This is important for all media companies who allow third-party users to post content on their sites – whether that content is written articles, photos, videos, music or any other material that could infringe on anyone’s rights under the Copyright Act. Registration is a pre-requisite of getting “safe-harbor” protection for companies who host such third-party content under Section 512 of the Digital Millennium Copyright Act. We discussed this issue in my seminar yesterday on legal issues for broadcasters in digital and social media, the slides from which will be posted shortly.

On Section 512, the safe harbor for those who host user-generated content, the Copyright Office last month issued a Request for Additional Comments in its study of the safe harbor. The safe harbor provides that, if an Internet service provider follows certain rules including the registration of an agent for take-down notices, and some unrelated party uses the service and posts or transmits unauthorized copyrighted material, the service has no liability. Exactly what requirements the service needs to observe depends on the type of the service. ISPs, who provide a mere conduit for material transmitted by others have one set of rules, while companies (including most media companies) that allow content to be posted on their sites to be viewed by the public, have another set of rules that place more obligations on these companies, including avoiding any steps to encourage the posting of infringing content, taking down infringing content of which they have actual notice or for which they have been received an uncontested take-down notice, and otherwise not affirmatively profiting from such infringing content. As part of its role of advising Congress on copyright issues, the Copyright Office began a study of the Section 512 exemption a year ago, which we wrote about here. Congress has also held hearings on the matter, and may well try to tackle it in its reform of the Copyright Act that is supposed to be in the works after the new Congress convenes in 2017. Last month’s request for additional comments suggests just how difficult that the reform of this section will be. Continue Reading

Upcoming Seminar on Digital and Social Media Legal Issues for Broadcasters – and Thoughts About Profiting From Trademarks

Posted in Intellectual Property, Music Rights, On Line Media, Trademark, Website Issues

Tomorrow afternoon eastern time, I will be conducting a webinar for at least 20 state broadcast associations on legal issues for broadcasters in their social and digital media efforts.  We’ll talk about many of the potential legal landmines that can be hidden in these new media efforts, many of which we have written about here before.  These will include, but by no means be limited to, issues with the unauthorized use of photos on station websites and mobile apps, the need for captioning of online video, sponsorship identification in the digital world as required by the FTC, and all sorts of music licensing issues that come up when broadcasters want to take their content and put it onto Internet-based delivery systems.  So, mostly, we’ll be talking about legal risks that broadcasters face when expanding their digital media efforts.  Check with your state association to see if they are participating in this webinar.

But, what we don’t usually write about is how broadcasters and others can profit from their intellectual property rights.  In our five-part series on the basics of trademark law (links to all are at the end of the final article here), we wrote about the benefits of Federal trademark registrations, and mentioned that these brands can be valuable as they can be licensed to third parties.  An example of how valuable was contained in a recent blog post on the Jacobs Media Blog, here, talking about how, in their program consulting role, they came up with the idea of the brand “The Edge” for alternative formatted stations and, after some legal battles, they obtained a Federal trademark for that brand name, and have been receiving royalty checks for the last 20-plus years.  Read the article to get an appreciation of the value of trademarks – and the need to secure rights not just in the US but, especially as digital media brings your content to a worldwide audience, internationally as well.  We’ll talk some about these issues during the webinar tomorrow, and you can read more about trademarks in our posts here, and watch for more of them on Trademark Tuesdays in the future.

December Regulatory Dates for Broadcasters – EEO Reports, Ownership and Ancillary Revenue Reports, Ownership Review and Incentive Auction Updates

Posted in Broadcast Auctions, EEO Compliance/Diversity, FCC Fees, General FCC, Incentive Auctions/Broadband Report, Multiple Ownership Rules, Noncommercial Broadcasting

While we are into the holiday season, that does not stop the routine regulatory obligations for broadcasters. December 1 brings a host of routine obligations for stations in many states. EEO public file reports must be added to the public files of Commercial and Noncommercial Full-Power and Class A Television Stations and AM and FM Radio Stations in Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, and Vermont that are part of an Employment Unit with 5 or more full-time employees. Of course, for TV stations and radio stations that have already converted to the online public file, that will mean uploading those reports to the FCC-hosted public file. For all stations, a link needs to be included on the main page of your station website, if your station has a website, which leads to these reports. Mid-Term EEO Reports on FCC Form 397 must be filed with the FCC by December 1 by radio employment units with 11 or more full-time employees in Colorado, Minnesota, Montana, North Dakota, and South Dakota and television employment units with five or more full-time employees in Alabama and Georgia. For more on these Mid-Term Reports, see our article here.  

A year from now, on December 1, 2017, all broadcast stations are expected to be required to file Biennial Ownership Reports, including noncommercial stations which now have those reports due on the anniversary date of the filing of their license renewal applications. See our article here on the new obligation that will be effective next year, though appeals of that requirement from some noncommercial groups are pending (see our article here). But, until that rule is effective, non-commercial stations need to continue to file on their renewal anniversary dates. Thus, on December 1 of this year, Noncommercial Television Stations in Alabama, Connecticut, Georgia, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont and Noncommercial AM and FM Radio Stations in Colorado, Minnesota, Montana, North Dakota, and South Dakota have the obligation to submit their Biennial Ownership Reports to the FCC. Continue Reading

FCC Extends for 18 Months the Requirement for TV Stations to Convert Visual Emergency Information to Audio on SAP Channel

Posted in Digital Television, Emergency Communications, Programming Regulations, Television

The FCC released an order last week giving TV stations an additional 18 months to comply with a requirement that emergency information conveyed to the TV audience during non-news programming in a visual or graphical manner (e.g. on-screen weather maps during entertainment programming) be converted to audio that is broadcast on the TV station’s SAP channel. We wrote about the FCC’s request for comments on the extension here. If the extension had not been granted, those requirements would have kicked in this week. But, as broadcast groups and those representing the visually impaired agreed that there was no available technology to make this conversion of graphics to speech, an 18 month extension of the obligation was appropriate. Thus, broadcasters have more time to comply with this requirement (though the obligation to convert text carried in non-news programming – like emergency crawls – to speech broadcast on the SAP channel is already in effect for all TV stations (see our articles here and here). The waiver extension is subject to the condition that NAB and the other petitioners provide a status report to the FCC on efforts to develop a technical solution by November 22, 2017.

RMLC Files Antitrust Lawsuit Against GMR And Seeks to Enjoin New Music License Fees on Radio Stations

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

RMLC, the organization that represents most commercial radio stations in the US in negotiating music license agreements for the public performance of musical compositions, has filed an antitrust lawsuit against GMR (Global Music Rights). GMR is a new performing rights organization (PRO), founded by music industry heavyweight Irving Azoff.  As we wrote here and here, GMR has signed agreements to represent songs from the catalogs of many prominent songwriters, including Adele, Taylor Swift, some of the Beatles, Madonna, Jay Z and many other big names.  RMLC (the Radio Music License Committee) is asking in its lawsuit that, initially, GMR be enjoined from licensing its catalog of songs for more than a rate that represents the pro rata share of its catalog to those of the other PROs while its broader antitrust action is litigated to establish an appropriate mechanism for determining those rates in the future.

Currently, the two largest PROs, ASCAP and BMI, are subject to antitrust consent decrees that govern their operations – decrees that the Department of Justice recently refused to substantially modify at the request of these groups (see our articles here and here.).  SESAC recently entered into a settlement of with RMLC, following an antitrust action similar to the one filed Friday against GMR, imposing restraints on SESAC’s ability to unilaterally impose its rates on radio stations, requiring instead that such rates be set by arbitrators if they cannot be voluntarily negotiated (see our articles here and here).  The songs in the GMR catalog are covered by ASCAP, BMI and SESAC licenses through the term of the current licenses with those organizations, but those licenses for radio all expire this year (see our article here).  Thus, RMLC argues that, if there is no injunction, starting January 1, 2017, a radio station will either be forced to pay whatever rates GMR demands for songs that are being withdrawn from the catalogs of ASCAP, BMI and SESAC, or risk being sued for copyright infringement (and potential damages of up to $150,000 per infringement).  Continue Reading

FCC Reminds TV Broadcasters that Reports on Ancillary and Supplementary Services (and Required Fees) Are Due By December 1

Posted in Digital Television, FCC Fees, Low Power Television/Class A TV, Television

The FCC yesterday issued a Public Notice reminding all TV broadcasters (full-power, LPTV, translator and Class A stations, both commercial and noncommercial, if they have digital operations) that they must, by December 1, file a report as to whether or not they provide ancillary and supplementary services through their broadcast spectrum. If they do provide such services, they must pay a fee of 5% of gross revenues received by the TV station for such services. Ancillary and supplemental services do not include non-subscription video channels delivered directly to the public, but would include any other services proved over the station’s spectrum from which the station receives compensation, including “computer software distribution, data transmissions, teletext, interactive materials, aural messages, paging services, or audio signals, [and] subscription video.” All stations must file the report – even if they don’t receive any such revenue (as they must state that fact on the report).

The Public Notice also noted that the report needs to be filed on FCC Form 2100 Schedule G, using the FCC’s new “Licensing and Management System” electronic filing system (LMS). This previously had been filed on FCC Form 317. Stations that owe a fee must also submit a Form 159. Filing details are in the notice. Don’t forget the filing and the fee if required – as the FCC warns appropriate sanctions will be taken against stations that don’t file or file late.

Reminder: Free Webinar Next Week on Trademark Law – Protect Your Slogans and Brands

Posted in Advertising Issues, Appearances, Intellectual Property, Programming Regulations, Trademark

The protection of brands, slogans, positioning statements and program titles must be a high priority of any electronic media company. These assets establish the identity of any broadcaster, webcaster or other media company.  Media companies need to protect these assets through the rights accorded by trademark law.  We have been running a series of articles on trademark law – including our five part series on the Basics of Trademarks (Part 5, which links to the other 4, is here). Next Tuesday, at 1 PM Eastern Time, Kelly Donohue and Mitch Stabbe of our trademark group are presenting a free webinar to further explain the importance of protecting all of your branding materials, and the legal issues that need to be considered by any company in looking to promote and protect these important identifiers of your products and services. You can sign up for this webinar by clicking here. This link will lead you to the sign-up page and provide further information about the webinar.

I’ve seen many broadcasters spend much time and money to develop some new positioning statement or on-air slogan, only to find out that some other company already has a trademark on the brand that they developed, effectively rendering all of their time and money wasted. Even program titles and DJ air names can be protected by trademark law. In fact, some companies produce significant revenue licensing their protected marks to others, and others protect station identities through trademark law. While state employment laws may limit noncompete agreements, the impact of the departure of a station DJ may be minimized if the station owns the name that the DJ has used on the air. Clearly, it is important that your company understand both how to protect and exploit its trademarks and its other promotional and branding assets. So join us for this important webinar next Tuesday.