Broadcast Law Blog

Broadcast Law Blog

Activating the FM Chip in Mobile Phones – As Blackberry Steps Up, a Policy and Product Review

Posted in Broadcast Performance Royalty, Emergency Communications, FM Radio, Internet Radio, On Line Media

This blog usually covers legal and policy issues, not product reviews.  And this article will at least try to relate policy decisions to a product review, but mostly it’s to share a cool new feature on my phone.  To explain, I am one of those holdouts still using a Blackberry.  In dealing with new media clients, I almost feel like I have to make excuses for still using a Blackberry, but as an attorney who travels frequently and writes many emails from the road, the physical keyboard really makes a difference – at least to me.  I can at least say that I did upgrade to the Q10 last year – the Blackberry that has the physical keyboard, but also has a new faster operating system that relies much more on touch commands for everything but the actual typing.  This week, I received what I consider a gift from Blackberry, as I’m also a big radio fan.  While I listen to Internet radio and use digital music services, I also still really enjoy listening to over-the-air radio.  This week, my Blackberry Q10 received an upgrade to its operating system and, with that upgrade, the phone’s FM chip was activated.  Now, my ATT phone gets over-the-air radio – becoming the modern equivalent to the transistor radio – a radio in my pocket at all times.  Of course, being a lawyer, the whole question of activating FM chips in mobile phones brings up policy issues, as it has been in and out of many policy arguments over the last few years.

First, a qualification must be made for international readers of this blog.  The question of an active FM chip in a mobile phone is an issue in the US, but not in many other countries of the world, where FM reception on mobile phones has been standard for many years.  In the US, that has not been the case.  While the chips are built into most phones, they are not activated.  Some suggest that the chips are not activated because the carriers want to encourage data usage through the use of online audio, but the carriers simply say that there is no consumer demand for the activation of the feature.  No matter what the reason, the chip has not been activated in most US phones, and thus policy issues from time to time arise as to whether it’s activation should be mandated or encouraged by government action. Continue Reading

The Text of the FCC’s Order on JSAs and Other Broadcast Ownership Issues is Released – Part One, Hidden Nuggets on TV and Radio Market Definitions

Posted in FM Radio, Multiple Ownership Rules, Television

The text of the FCC’s decision on the attribution of Joint Sales Agreements for multiple ownership purposes, and the termination of the 2010 Quadrennial Review of the ownership rules and the start of the 2014 Quadrennial Review, has now been released by the FCC.  In a slim 211 pages of text, plus another 24 pages of concurring and dissenting opinions, there is more than enough for broadcasters, lawyers and regulators to digest for weeks.  The Order addresses in detail the matters that had already been made public – the attribution of TV JSAs, the further examination of TV shared Services Agreements, and tentative decisions to not fundamentally change any of the Commission’s other ownership rules (with the possible exception of a favorable inclination to look at elimination of the radio-newspaper cross-ownership)(see our summary here).  But there are many details to be examined as to how the Commission reached the decisions that it did and the nuances of the decisions that were made (e.g. the waiver policy that would allow some JSAs to remain in place – the Commission’s decision does not provide much detail – essentially saying that they will grant waivers to deserving JSAs that serve the public interest, but providing little detailed guidance as to what would make a good waiver case, except to say that temporary or short-term waivers were better than long-term ones, and that ones where there was little sharing of other services are better than ones where there is more sharing).  We will cover all of these areas in more detail over the next few days.

But there were some interesting and less expected nuggets that popped out in a first read of the Order, and have not been much covered elsewhere.  For TV, these include the tentative decision to replace the TV Grade B contour with the digital Noise Limited Service Contour for determining whether an individual or entity can own two TV stations in the same market.  Instead of allowing ownership where the Grade B contours do not overlap, the Commission proposes to allow that ownership where the NLSC do not overlap, and to grandfather any combinations that would be affected by this rule change.  Similar small but significant issues were also raised for radio. Continue Reading

FCC Requests Comments on Proposal to Require Multilingual EAS Alerts – Comments Due April 28

Posted in Emergency Communications

With so much going on at the FCC and in connection with other topics that we consider, I’m sometimes late getting to all of the issues that arise, and sometimes never mention some of them.  But there is one interesting and important proceeding that the Commission has recently resuscitated and is worthy of mention – the proposal to mandate multilingual emergency alerts by broadcast stations – even when the station broadcasting in a language other than English is knocked off the air by some local emergency.  The proposal would require that all primary EAS stations broadcast national alerts in both English and Spanish, and that state EAS plans should designate stations to provide emergency information in other languages where there are significant populations that have a primary language other than English or Spanish.  Not only that, but English language stations in these areas are proposed to have to play a back-up role, ready to step in and provide emergency information in one of these languages should the primary station serving a particular non-English speaking population be forced off the air.  Comments on this proposal are due on April 28, and replies by May 12.

This is not a new proposal, having first been raised by MMTC (the Minority Media Telecommunications Council) in 2005 after there was a perceived failure to get information to minority populations in the area of Hurricane Katrina.  In recent filings, MMTC has suggested that broadcasters need to work together with local authorities to develop a plan that communicates each party’s responsibility based on likely contingencies. Specifically, MMTC stated, “Such a plan could be modeled after the current EAS structure that could include a ‘designated hitter’ approach to identify which stations would step in to broadcast multilingual information if the original non-English speaking station was knocked off air in the wake of a disaster.” What are the potential issues with such an approach?  Continue Reading

Raising the Royalties for Musical Works? A Discussion of the Potential Dispute between Music Rights Holders over the Value of Their Rights

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

In discussing music royalties, the controversy that usually makes the news is the dispute between music services and copyright holders – with services arguing that the royalties are too high and rightsholders contending that they are underpaid. The introduction of the Songwriters Equity Act in Congress earlier this year seems to point toward a new area of dispute – one between the various rightsholders themselves.  This issue was one that was much discussed on a panel that I moderated last week at the RAIN Summit West (audio of that panel is available here).  What is this conflict?

The Songwriters Equity Act, while not explicit in identifying the controversy, does point to the dispute. As we have written many times before, in any piece of recorded music, there are two copyrights – the sound recording copyright (also known as the “master recording,” the recording of a particular song by a particular artist, rights usually held by the record label), and the right to the musical work (or “musical composition,” the words and music to a song, usually held by a publishing company).  The proposed legislation suggests that the amount of the royalties for the public performance of sound recordings can be taken into account in setting the royalties that are payable to songwriters for the public performance of the songs that they have written.  This would amend Section 114(i) of the Copyright Act, which currently prohibits the consideration of the sound recording royalty in determining the rates to be paid for the public performance of musical works.  The proposed legislation would also substitute the “willing buyer, willing seller” standard for the 801(b) standard in setting rates under Section 115 of the Copyright Act, the mechanical royalty (see our discussion of the difference between these standards, here).  While this does not sound like a big deal, it may have a significant impact. Continue Reading

Comment Dates Set on FCC’s Proposed Elimination of the Network Nonduplication and Syndicated Exclusivity Rules – Comments to be Filed by May 12

Posted in Cable Carriage, Programming Regulations, Public Interest Obligations/Localism, Television

The FCC is now taking comments on the proposal to do away with the syndicated exclusivity and network nonduplication protection rules.  The Further Notice of Proposed Rulemaking, about which we wrote here, was published in the Federal Register today, giving interested parties until May 12 to file their initial comments, and until June 9 to file their replies.  As we wrote last week, the abolition of these rules could affect the retransmission consent negotiation process, by allowing multichannel video programming distributors (MVPDs – cable and satellite TV) to replace the programming of a television station that does not agree to proposed retransmission consent fees with the signal of another distant television station carrying the same programming.  We note that the same FCC order contained a prohibition against two non-commonly owned stations in the same market from jointly negotiating retransmission consent agreements.  That part of the decision was not published in the Federal Register, meaning that the 30 day clock leading to its effective date has not yet begun to run. 

While some suggest that the network nonduplication and syndex rules could be replaced by more definitive contracts between stations and programmers, limiting a station’s right to consent to having its signal exported to another market, the Commission asks many questions including how enforceable such contracts would be, and whether the abolition of these rules would have an impact on localism.  The important issues raised by the Further Notice should be considered carefully by stations and MVPDs, and comments should be submitted to the FCC by the deadlines set out in today’s Federal Register publication.

FCC Reminds Small Market TV That Political File Goes Online As of July 1, No FCC Review of the Obligations Seems Imminent

Posted in General FCC, Political Broadcasting, Public Interest Obligations/Localism, Television

The FCC on Friday issued a reminder to all TV stations that, as of July 1, they will have to upload all of their new political broadcasting documents to their online public files.  Up to this point, only stations affiliated with the Top 4 networks in the Top 50 markets had to worry about putting their political file materials online.  Later this year, that obligation is extended to all TV stations.  Materials created before July 1 do not need to be uploaded, but need to be retained at the station in the remnants of their paper public file (which should still contain letters from the public about station operations, which are not to be uploaded to the FCC online public file).  For more details about the online public file, see our article here.  For more about the requirements for the political file, see our Guide to the FCC’s Political Broadcasting Rules, here.

This public notice is interesting in that it reminds broadcasters of their obligations, without taking into account the inquiry begun by the Commission last June. That inquiry was to review the experience of large stations in complying with the online public file rules for political broadcasting materials (see our article here), and to look at complaints by certain public interest groups that the online files were not user-friendly and pleadings by broadcasters suggesting alternative ways of presenting political file materials that would be both more useful to the public and less burdensome on broadcasters.  Last June’s notice is mentioned in a footnote in Friday’s reminder, but the footnote merely states that the inquiry exists and that comments were received, but the FCC has not decided what to do with those comments.  The implication is that the FCC does not intend to do anything with the June inquiry any time soon, so the July 1 deadline remains in place. It looks like no relief from the FCC can be expected, so it is full-steam ahead for small TV broadcasters, as all of their political documents will need to be online starting July 1.  With an active political broadcasting season in store for many states, be prepared!

Copyright Office Begins Wide-Ranging Inquiry Into Music Licensing

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

The Copyright Office recently issued a Notice and Request for Public Comment on a study that they have commenced on music licensing in all of its forms.  We’ve written about the complexity of the music licensing process many times, and about proposals for reform.  Many of these proposals have been issued in connection with the speeches of Copyright Register Maria Pallante’s discussion of copyright reform (see our article here), and the subsequent Green Paper on Copyright issued by the Patent and Trademark Office (see our article here).  This Notice appears to be one more step in this overall review of copyright underway throughout the administration and in Congress.  The Notice released by the Copyright Office is wide-ranging, and touches on almost every area of controversy in music licensing.  Comments are due on May 16, and the Copyright Office promises to hold roundtable discussions to further explore the issues in music licensing.

The issues on which the Copyright Office asks for comments deal both with the licensing of the musical composition or musical work (the words and music of a song) and the sound recording (the song as actually recorded by a particular artist).  The request deals with both the public performance right for musical compositions, usually licensed through ASCAP, BMI and SESAC, and the rights to make reproductions of the works, which are usually licensed by the music publishers, sometimes through organizations like the Harry Fox Agency.  On the sound recording side of the music world, the rights are usually licensed by the record company except for the public performance royalties paid by non-interactive music services, which are collected in the United States by SoundExchange.  Continue Reading

Details of the FCC Decision Prohibiting the Joint Negotiation of Retransmission Consent By Local TV Stations and Starting Proceeding to Examine Syndex and Network Nonduplication Protections

Posted in Cable Carriage, Television

While we are waiting for the full text of the FCC’s decision  taken Monday on the multiple ownership rules, rolling one Quadrennial Review into another and prohibiting most Joint Sales Agreements, we can look in more detail at the FCC’s decision on retransmission consent issues.  We wrote about the historical background of both of these issues earlier this week.  When that is finally released, the full text of the decision will give us the details of the multiple ownership decision.  But the Commission has released the full text of its decision prohibiting two independently owned Top 4 TV stations in the same market from jointly negotiating retransmission consent agreements, and starting a further proceeding to look at whether the network non-duplication and syndicated exclusivity rules should be abolished.

The restriction on the joint negotiation of retransmission consent agreements was founded on the FCC’s sense that such joint negotiations gave the negotiating stations too much power in their negotiations with cable systems and other multichannel video providers.  The Commissioners concluded that this meant that TV stations engaged in such joint negotiations could get more money from cable systems than they could get if they negotiated independently.  While the statements made by the Commissioners at Monday’s open meeting suggested that such negotiating power led to higher rates paid by consumers, the evidence cited by the Commission was principally based on theoretical arguments by economists as to the ability of jointly-negotiating stations to get these high rates.  What specifically did the FCC prohibit? Continue Reading

FCC Attributes JSAs, to Examine SSAs and Network Nonduplication and Syndex Rules – A Return to the 1980s?

Posted in Cable Carriage, Multiple Ownership Rules, Television

The FCC meeting yesterday proposed to attribute Joint Sales Agreements (making them “count” for multiple ownership purposes – meaning that one broadcaster can’t do a JSA with another station unless it can own the other station).  The Commission also apparently kicked the can down the road on all other multiple ownership matters – not changing the local TV ownership rules or amending the newspaper broadcast cross-ownership restrictions, instead deciding to further consider any modification of the rules.  No decision on these issues is expected until probably 2016.  See the FCC’s Public Notice of that action here.  Shared Services Agreements will also be examined – though new ones have effectively been put on hold during the course of the examination by an FCC processing policy released two weeks ago that requires that any party proposing any sort of sharing agreement in a transaction requiring FCC approval demonstrate how that sharing agreement serves the public interest.  Also at the meeting, the FCC took actions to ban joint negotiation of retransmission consent fees by any two of the top 4 rated stations in a TV market, and to reexamine the network nonduplication and syndicated exclusivity rules (see the FCC’s decision here).  While we will have more details on these decisions in the coming days, as we fully analyze the texts of the FCC decisions as they are released, for now it is interesting to look at these decisions with the perspective of history.

Having represented broadcasters in Washington for over 30 years, one sees many of the same issues debated over and over again.  Many of the issues that were thought to be settled years ago come to the fore after most of the participants at the FCC, and even those in industry, forget that these battles had already been fought and seemingly decided.  In introducing the FCC’s examination of Shared Services Agreements at yesterday’s meeting, the representative of the FCC’s Media Bureau talked about how the examination of each transaction will be important for the FCC to determine if there are too many interlocking ties between stations that are supposed to be competitors in a market.  Not mentioned was the fact that this same kind of review used to be done by the FCC under what was called the “cross-interest policy,” a policy that was repealed by the FCC in 1988. Continue Reading

Answering Your Questions on the FCC’s Political Broadcasting Rules – A Guide to Political Broadcasting from Candidates and Issue Advertisers

Posted in Advertising Issues, Political Broadcasting

An active political broadcasting season is already upon us, with things more likely to get even more hectic between now and November.  Are you ready to handle all of the FCC’s political broadcasting obligations?  We’ve prepared an updated Guide to the FCC’s political broadcasting rules in a question and answer format, and it is available here.  We hope that this Political Broadcasting Guide will give you a primer on many of the questions that arise in any political broadcasting season so that you can intelligently discuss the issues with your attorneys when issues arise, and with your staff and media buyers when dealing with routine matters.  And the issues will arise.

Already we have seen a number of contested races, including a primary for the November elections recently held in Texas, and a special election in Florida to fill an open House seat. As in any other even-numbered year, all of the US House of Representatives and one-third of the seats in the US Senate will be filled in the November elections, and there are a great many elections for state and local offices, including many high-profile governor’s races, that will be contested this year.  Check out our 2014 Broadcasters Calendar for some of the upcoming dates for primaries and lowest unit rate windows in your state.  As explained in our Political Broadcasting Guide, there are things that you should be doing now to get ready for the political season, and you will have obligations to potential candidates once they become legally qualified candidates, even if you are not yet in the political window (45 days before a primary and 60 days before a general election).  For instance, as we wrote here, reasonable access applies to Federal candidates even outside the political windows, and equal opportunities and the paperwork and public file requirements apply to all candidates as soon as they are candidates – even outside the actual lowest unit rate windows. Continue Reading