Broadcast Law Blog

Broadcast Law Blog

SOCAN Buys Audiam – The Consolidation and Fragmentation of Music Rights – What Does it Mean for Music Services?

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

The Canadian performance rights society SOCAN (essentially the Canadian version of ASCAP, BMI and SESAC) has announced the purchase of Audiam, a private company that specialized in representing composers trying to maximize their music rights collections – both for performance rights and mechanical royalties – worldwide. Audiam also claims to provide a comprehensive database of rightsholders to both musical compositions and sound recordings – a valuable commodity in and of itself, as there is no uniform public registry for such rights. This follows SOCAN’s purchase of MediaNet, a company that specializes in obtaining clearances for music (including sound or master recordings – the musical compositions that SOCAN has traditionally licensed as recorded by a particular singer or band) so as to provide those rights to digital music stores or services, eliminating the need for these services to separately negotiate terms with sound recording performance rights holders. This consolidation under one roof of public performance and mechanical rights to musical compositions, along with rights to sound recordings, promises at some point in the future, a one-stop shop where music users (including digital music services like Spotify or Deezer, and perhaps even smaller music users like podcasters) can obtain all the rights that they need to use music in their businesses.

This same goal seems to be the motivation behind SESAC’s acquisition in recent years of the Harry Fox Agency (which also handles mechanical licensing – the rights to make reproductions of musical compositions needed for downloads and even on-demand streams) and Rumblefish, a digital service providing clearances for the use of sound recordings in videos, commercials and for other purposes. This same drive to consolidate music licensing services was also, to some degree, behind the push for revisions to the ASCAP and BMI antitrust consent decrees, as ASCAP and BMI wanted the clear right to license mechanical rights as well as the public performance rights they now provide. Even the publisher withdrawals from ASCAP and BMI by major publishing companies that are affiliated with major record labels may have had similar ideas behind them as some have speculated that these major music companies could bundle the licensing of sound recordings and musical compositions (see our article here where we made the same observation). Continue Reading

Covering Breaking News and Local Emergencies – FCC Issues to Consider

Posted in Emergency Communications, General FCC, Intellectual Property, Political Broadcasting, Programming Regulations, Public Interest Obligations/Localism

In recent weeks, tragic events in Orlando, Dallas, Baton Rouge and elsewhere engender thoughts for the victims, their families and their communities.  Events like these have become all too common, and certain normal routine has developed, with broadcast stations devoting substantial amounts of airtime to coverage of the event until some new story takes away their attention. While the events are ones that cause us to think about those involved, and perhaps the broader political and policy issues that each raises, broadcasters also need to consider, to some degree, the legal implications of the coverage of such events and the questions that are sometimes raised about the FCC issues that can arise in such coverage.  Why isn’t EAS invoked?  Can we interview political candidates about the events?  What other legal issues should broadcasters be considering in connection with events like these?

One question that seemingly arises whenever events like these occur is why isn’t EAS used more often?  Even during 9-11, there was no activation of the EAS system, and there were some questions of why that was.  In fact, EAS is not intended to provide a source for blanket coverage of events like those that occurred recently, or even of those with broader national implications like the events of 9-11.  There are no reporters or information-gathering sources at the other end of the EAS alert system putting together updates on the news and ready to start providing substantive coverage of any news event.  Instead, EAS is meant to provide immediate alerts about breaking, actionable events – like the approach of a severe storm, the need to evacuate a particular area in the advance of a fire or after a tanker spill or, in its origins during the Cold War, the possibility of a nuclear attack.  In any of these events, it is not EAS, but the broadcasters themselves and other journalists who are the ones that need to provide the in-depth coverage of events as they occur.  While the FCC is looking at revamping the EAS system in many different proceedings, the basic workings of the system do not change.  A weather alert or a Presidential address on a catastrophic event may occur through EAS, but the full coverage of that event, with all the developments and details, is going to come from the broadcasters themselves, not from Federal, state or local EAS alerts. Continue Reading

Legal Issues for Broadcasters – Updates on Pending Matters

Posted in AM Radio, Appearances, Cable Carriage, Digital Television, EEO Compliance/Diversity, Emergency Communications, FM Radio, FM Translators and LPFM, General FCC, Incentive Auctions/Broadband Report, Low Power Television/Class A TV, Multiple Ownership Rules, Music Rights, Payola and Sponsorship Identification, Political Broadcasting, Programming Regulations, Public Interest Obligations/Localism, Television

There are so many legal issues that facing broadcasters that it is sometimes difficult to keep up with them all. This Blog and many other activities that those at my firm engage in are meant to help our clients and other broadcasters keep up to date on all of the many regulatory challenges with which broadcasters must deal, while at the same time keeping up with their business operations. Each quarter, my partner David O’Connor and I update a list of the legal and regulatory issues facing TV broadcasters. That list of issues is published by TVNewsCheck and is available on their website, here. Our latest update was published last week, and provides a summary of the status of legal and regulatory issues ranging from the adoption of the ATSC 3.0 standard at one end of the alphabet to White Spaces and Wireless Microphones on the other – with summaries of other issues including the Incentive Auction, EEO compliance, Political Advertising and Sponsorship Identification, along with dozens of other topics, many with links to our more detailed discussions here on the Blog. Of course, these issues change almost daily, as last week’s article does not include a discussion of the Chairman’s announcement that there will be no changes in the rules regarding the good faith negotiation of retransmission consent agreements, an announcement about which we wrote last week, here. But if you are trying to keep on top of all the other legal and regulatory issues TV broadcasters should be considering this summer, or if you are looking for the current status of specific proceedings potentially impacting TV broadcasters, check out our most recent updated summary, here.

Of course, there are issues that radio broadcasters face as well. Since the end of May, I have traveled to five different broadcasters’ conventions to talk about the many legal and regulatory issues that are facing the broadcast industry generally, including those that are facing radio. The slides that I used for my presentation at the last of these conferences, the Montana Broadcasters Annual Convention, are available here. In that presentation, I discussed issues including AM revitalization and FM translators, the online public inspection file, music licensing, political broadcasting, and other matters. While none of these articles or presentations can be comprehensive, these slides and the TV NewsCheck update, at least give you a quick overview of the many issues that broadcasters should be watching to stay on top of their legal obligations.

FCC Chairman Announces No Changes in Good Faith Negotiation Standards for Retransmission Consent Agreements Between TV and MVPDs

Posted in Cable Carriage, Television

FCC Chairman Tom Wheeler yesterday used a blog post to announce that the Commission’s pending rulemaking concerning its retransmission consent rules is ending without the adoption of any additional rules.  This proceeding was to review the “totality of the circumstances” test in determining whether TV stations and MVPDs (cable and satellite television systems) were negotiating in good faith to reach a retransmission consent agreement.  In last year’s Notice of Proposed Rulemaking in this proceeding, the FCC proposed a number of possible negotiating tactics that could be declared to be per se violations of the good faith standard – including items such as ending retransmission consent before a major television event (like the Super Bowl) or blocking access to online streams of programming to Internet subscribers who were affiliated with the MVPD involved in the retransmission dispute (see our summary of the proceeding here).  Many broadcasters and industry analysts feared that there would be regulations adopted that could restrict TV stations’ ability to negotiate favorable retransmission consent deals.  But the Commission seems to have reached the conclusion that they can already, under existing rules, cajole parties to reach a deal if the need arises and that no more specific regulations are needed.

In his blog post, Chairman Wheeler stated that after FCC staff had conducted an extensive review of the record, “it is clear that more rules in this area are not what we need at this point.”  He noted that the FCC has an existing nine-point test to judge the compliance of parties with the good faith requirement, plus the broader “totality of circumstances” standard that can be used to find a party in violation even when none of the specifically prohibited conduct has occurred.  While little enforcement action has actually been taken in this area, it has often been threatened to bring parties to the table and encourage a voluntary settlement.  The Chairman seemed to think that the existing remedies were enough to act in extreme cases, and trying to decide in more specificity which practices were prohibited and which were permitted “could limit future inquiries.”    In other words, adopting more specific prohibitions could make it more difficult to rely on the broader “totality of circumstances” test in any particular case that did not involve a specifically prohibited activity.  Continue Reading

$700,000 to Be Paid By Media General to End Inquiry on its Attempts to Enforce a JSA – What are the Limits on the Enforceability of a Contractual Restriction on an FCC Licensee’s Sale of its Station?

Posted in Assignments and Transfers, FCC Fines, Incentive Auctions/Broadband Report, Multiple Ownership Rules, Programming Regulations, Public Interest Obligations/Localism, Television

The FCC yesterday announced a consent decree with Media General by which Media General agreed to pay a $700,000 “settlement payment” to the US Treasury to settle the investigation of its attempts to enforce the provisions of a Joint Sales Agreement with Schurz Communications.  Media General had tried to enforce the JSA when Schurz tried to terminate that agreement in order to sell its station to Gray Television.  Media General tried to get an injunction from a state court seeking to stop the sale, continue the JSA, and prevent Schurz or Gray from putting the station into the incentive auction.  As we wrote here when the case first arose, the FCC wrote to the court, contending that the injunction would not only violate the conditions placed on the sale by the FCC (that the Schurz station be sold before the Gray deal could close) but, more importantly for the general broadcast community, that the restrictions on the sale of the station, and its participation in the incentive auction, were improper restrictions on the control rights of the licensee.  Essentially, the FCC was saying the licensee’s right to sell the spectrum it had was not one that could be conveyed to a third party.  The FCC even stated its intention to initiate a proceeding to determine whether Media General’s FCC licenses should be revoked.

What we wrote when the case came out, and what we wonder now, is what the FCC considers the degree to which a licensee’s ability to sell its spectrum can be limited by contract or agreement.  Yesterday’s release provides no guidance, as it was simply a settlement agreement.  The consent decree recites what the FCC was initially concerned with, but Media General did not admit any liability, and the consent decree does not reach any conclusion as to the actual basis of the settlement payment.  So it is conceivable that the FCC was actually only worried about the attempts by Media General to require that the station be kept and the JSA stay in place, even though the FCC ordered that it end.  It may not have been a case dealing principally with control at all, but instead one dealing with grandfathered JSAs and whether those JSAs can stay in place after the sale of one of the television stations involved in the arrangement.  Otherwise, if the case was really about putting limits on the degree to which contracts can limit the ability of a licensee to sell its station, that issue could have had much broader implications than the FCC may have intended. Continue Reading

Avoiding Olympic Hassles – Trademark and Other Legal Protections Limit the Use of Olympics, Paralympics and Related Terms in Advertising, Marketing, and Promotions

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

Over the last several months, we have written about the risks of publishing ads or engaging in promotional activities that refer to the SUPER BOWL® or MARCH MADNESS® without first asking the NFL or the NCAA, respectively, for permission to use those marks.  With millions of viewers about to tune into the OLYMPIC® games in Rio this August, we similarly remind our readers that any Olympic trademarks, symbols or other branded content should not be used in advertising and marketing campaigns across any media platforms (on-air, websites, social media sites, in hashtags, apps, etc.) except by authorized advertisers.  And, for the reasons we discuss below, dealing with these marks deserve an Olympic-size dollop of caution.

We’ve written before (here and here) how Olympic sponsors pay big bucks for the rights to sponsor the Olympics, and to get exclusivity to associate their brands with the games. Thus, the sponsors guard their territory carefully, as do the Olympic organizations whose ability to stage the games is dependent on such sponsorship.  Numerous small businesses, nonprofits, and even individuals have been on the receiving end of cease and desist letters, including, for example, a knitting group that used the term RAVELYMPICS for a knitting competition, a charcuterie in Portland named OLYMPIC PROVISIONS, and a Philadelphia sub shop named OLYMPIC GYRO. Continue Reading

Foreign Ownership of US Broadcast Stations Suddenly the Rage? – FCC Seeks Comments on Two Proposals for Alien Ownership to Exceed 25%, Including One for 100% Australian Ownership

Posted in AM Radio, Assignments and Transfers, FM Radio, General FCC, Multiple Ownership Rules, Television

In the last two days, the FCC has asked for public comment on two proposals for foreign ownership of US broadcast stations where that ownership would exceed 25% of the company – a limit that has for decades been seen as the upper end of ownership by foreign nationals.  While the FCC three years ago said that they would consider such ownership on a case by case basis (see our article here), up until this week, the FCC had considered only one case under this new flexible policy – and that was the case of Pandora, where the FCC took over a year to approve their acquisition of a broadcast station – and Pandora didn’t even think that their foreign ownership exceeded the 25% threshold, but they could not prove it because of the difficulty of assessing the citizenship of public companies (see our article here on the filing of the Pandora petition).  Now, the FCC seeks comments on two cases, one where an Australian husband and wife team seek to acquire 100% ownership of companies owning 29 radio and TV stations in Alaska, Arkansas and Texas.  The second involves Univision, which asks for FCC approval for foreign ownership of up to 49% of its stock, as it plans a public offering which would also involve the conversion to stock of warrants held by a Mexican company that already has a stake in the company.

While the FCC last year asked for comments on adopting new processing rules for these kinds of requests – especially those involving public companies – no order has come out of the FCC on that proceeding yet (see our summary here).  Last month, the FCC did adopt some new procedures for the streamlining of the consideration of foreign ownership requests for all services regulated by the FCC, not just broadcasting, but that proceeding did not deal with the substantive issues surrounding foreign ownership, but instead with the process by which the FCC interacts with other government agencies in assessing the national security concerns with foreign ownership of communications properties.  With this background, does the release of these two requests for comment signal any movement from the FCC on foreign ownership issues? Continue Reading

FAA Clears Small Drones for Takeoff: What You Need to Know

Posted in Programming Regulations, Uncategorized

New FAA rules for drones were recently approved, and the rules may provide more opportunities for broadcasters to get in the game.  Emilie de Lozier from my firm offers these thoughts:

Broadcasters, prepare for takeoff later this summer.  The Federal Aviation Administration recently finalized rules to broadly permit the commercial operation of small unmanned aircraft systems (“sUAS”) – or drones – provided certain requirements are met.  The new rules are in many cases more permissive than the existing regulatory framework, but some potential pitfalls remain.  Rest assured, we are here to help you navigate the complexities of this new regime.  Below we provide a high-level discussion of the new rules and their effect on broadcasters’ future sUAS operations to support newsgathering.

We previously wrote about the FAA rulemaking to develop these rules here.  As a quick refresher, in 2012, Congress directed the FAA to develop a plan for incorporating drones into the national airspace.  In the meantime, the FAA created an exemption process pursuant to Section 333 of the FAA Modernization and Reform Act of 2012 to authorize commercial UAS operations on a case-by-case basis.  The FAA has granted more than 5,000 exemption requests to date, including for newsgathering purposes, and thousands of these requests remain pending.  (If your petition is among those pending, you should monitor your petition docket for a status update from the FAA in the coming weeks.)  The new rules are intended to minimize the need for parties, including broadcasters, to seek such exemptions. Continue Reading

Appearances by Political Candidates on Talk Program Exempt from Equal Opportunities – New FCC Declaratory Ruling Explains Why

Posted in Political Broadcasting, Television

Yesterday, the FCC’s Media Bureau issued a Declaratory Ruling, deciding that a syndicated television program, “Matter of Fact with Fernando Espuelas,” was a bona fide news interview program – meaning that appearances on the program by legally qualified candidates for public office would not give rise to equal opportunities (or “equal time” as it is often called). In looking at such request the FCC looked at the following factors – (1) the program was regularly scheduled, (2) its content is controlled by the station or program supplier, and (3) the decisions as to the inclusion of candidates are based on judgments as to the newsworthiness of the appearance and not for political purposes. If these factors are met, the program is considered a bona fide news interview program, and candidates can appear without competitors having the right to claim equal opportunities, and without a candidate’s appearance being considered a “use” that needs to be noted in the public files of stations that carry the program.

In addition to news interview programs, newscasts and on-the-spot coverage of a news event are also “exempt programs” where candidate appearances do not constitute “uses” giving rise to equal opportunities or public file obligations. Over the years, as we wrote here and here, the FCC has been more and more liberal in its interpretations of what constitutes a news or news interview program. It is no longer just the evening newscast on a station and the boring Sunday morning talking heads news interview program that qualify. Instead, the FCC has recognized that people get their “news” from all sorts of different kinds of broadcast programs, and the FCC has determined that any program that regularly features newsmakers, where the program content is in the hands of the producers and where the program’s guests are selected for newsworthiness, and not to promote a particular political agenda, can be an exempt news or news interview program. So the FCC has ruled that a host of programs that may not look like hard news, from the Today Show to Entertainment Tonight, to the Phil Donahue program to even the Howard Stern radio show, could be exempt news interview programs where a candidate’s appearance did not trigger equal time. If they cover some aspect of the news, and regularly feature news makers, they are likely to be determined to be an exempt program. Continue Reading

July Regulatory Dates for Broadcasters – FM Translators for Class A and B AMs; Quarterly Issue Programs and Children’s Television Reports; Comments on EAS, Letters from the Public and Regulatory Fees, Cable Royalty Claims; and More

Posted in Cable Carriage, Children's Programming and Advertising, Emergency Communications, FCC Fees, FCC Fines, FM Radio, FM Translators and LPFM, General FCC, Incentive Auctions/Broadband Report, License Renewal, Noncommercial Broadcasting, Political Broadcasting, Programming Regulations, Public Interest Obligations/Localism, Television

While TV broadcasters can enjoy an incentive auction respite in July as attention shifts to the “forward auction” where we will see whether wireless carriers come up with enough money to fund the $86,422,558,704 (plus $1.75 billion for repacking costs, plus auction-related administrative costs) needed for the buyout of TV stations who agreed to surrender their spectrum, radio broadcasters will get some of their own attention as, at the end of the month, the second window for the filing of 250-mile waiver applications opens for Class A and B AM stations. We wrote about these waivers here, which allow an AM licensee to acquire an FM translator and file an application to move it up to 250 miles and operate it on any commercial frequency that does not create interference in their market. That window for Class A and B AM stations opens July 29 and runs through October 31 (and remains open for any other AM that has not already filed one of these waivers in the first window which opened back in January).

In addition to the AM window, there are routine filing deadlines for all TV stations – required to file their FCC Form 398 Children’s Television Reports by the 11th of the month (because the 10th of July is a Sunday) demonstrating the educational and informational programming they broadcast directed to children. By the 10th television stations also need to upload information into their online public files to demonstrate compliance with the limits on commercial time in children’s programs. Continue Reading