Broadcast Law Blog

Broadcast Law Blog

“Where seldom is heard a discouraging word?” Supreme Court Allows the Federal Registration of Disparaging Trademarks

Posted in Intellectual Property, Programming Regulations, Trademark

The U.S. Supreme Court has invalidated the statutory bar against the federal registration of disparaging trademarks, on the ground that it violates the First Amendment and is unconstitutional. What does this mean for businesses in general, including, in particular, broadcasters and the Washington DC National Football League franchise?

History of the Case

The case involved an application by Simon Tam to register the mark THE SLANTS for an Asian-American band. Mr. Tam selected the name in order to make a statement about racial and cultural issues. The federal Lanham (Trademark) Act states that a trademark shall not be denied registration unless, among other reasons, it:

Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.

Accordingly, the Patent and Trademark Office (PTO) denied the application on the basis that, regardless of Mr. Tam’s intent, the phrase “THE SLANTS” may be disparaging to a substantial percentage of persons of Asian descent. The PTO also stated that it was bound by a 1981 precedent issued by the United States Court of Appeals for the Federal Circuit, holding that the statute was constitutional. Continue Reading

Modernization of Media Regulation – What Rule Changes Should Broadcasters be Requesting?

Posted in EEO Compliance/Diversity, FCC Fines, FM Radio, General FCC, Multiple Ownership Rules, Political Broadcasting, Programming Regulations, Public Interest Obligations/Localism, Television

It is not every year that the FCC seriously asks broadcasters for suggestions as to what rules it should abolish or modify, but that is exactly what the FCC is doing in its Modernization of Media Regulation proceeding (about which we wrote here and here). Comments due the week after next, on July 5, and broadcasters should accept the invitation and suggest rules that are ripe for repeal or amendment. I recently spoke at the Wisconsin Broadcasters Association’s annual convention and the broadcaster who chaired the association’s Federal legislative committee urged all broadcasters in attendance to register their ideas for reforms. That comment made me realize that many broadcasters may not be taking this invitation seriously.

The number of changes already made in broadcast regulations in the less than 6 months that Chairman Pai has headed the agency (e.g. reinstating the UHF discount, abolishing the requirements for letters from the public in the public file, allowing online recruitment to be the sole means of EEO wide dissemination of job openings, relaxing the location restrictions on FM translators for AM stations, relaxing the limitations on noncommercial fundraising, abolishing the obligation for noncommercial stations to report the social security numbers of their board members, the rescission of FCC enforcement actions for political violations, and the revocation of a policy statement against shared services agreements) demonstrate that this Commission is serious about deregulation. There has perhaps never been as real an opportunity as now to make your voice heard about the broadcast rules that should be relaxed as part of this proceeding. What rules should be examined by the FCC? Continue Reading

Almost 80 Radio Stations Hit With New FCC EEO Audit Letter

Posted in EEO Compliance/Diversity

While the FCC in April made broadcaster’s compliance with the FCC’s EEO rules easier by allowing the wide dissemination of information about job openings through online sources (see our article here), there still remain significant obligations under those rules (see our article here). The FCC made that clear on Friday, releasing a Public Notice announcing its second EEO audit letter of 2017 for about 80 radio broadcasters, all west of the Mississippi. The FCC’s public notice announcing the commencement of the audit includes the audit letter that was sent to all of the targeted stations.  The list of about 80 radio stations subject to the audit is here. Responses are due July 27, 2017. As employment information for all stations within a named station’s “employment unit” must be provided in response to the audit, the reach of this notice goes beyond the 80 stations named in the audit notices.

The FCC reminds stations that were targeted by the audit to put a copy of the audit letter in their public file. The response, too, must go into the file. For all the TV stations hit by the audit letter, and those radio stations that have already converted to the online public file, that will mean that the audit letter and response go into that FCC-hosted online public file. Continue Reading

Court Rejects Stay on FCC’s Reinstatement of UHF Discount – Does it Mean TV Ownership Consolidation is in the Clear?

Posted in Digital Television, Multiple Ownership Rules, Television

Yesterday, in a very short one page decision, the US Court of Appeals rejected the requests filed by public interest groups to stay the effect of the FCC’s decision to reinstate the UHF discount (see our article here about some of the issues involved in this stay request, and our article here about the reinstatement of the UHF discount by the current FCC). For the foreseeable future, this decision will free many broadcast television groups to acquire more television stations as UHF stations (which most TV stations now are) count for only half their audience reach in assessing compliance with the 39% limit on the national audience share that any TV owner can have. While, contrary to some press reports, this does not signal the Court’s final approval of the FCC’s decision to reinstate the discount, it does suggest the direction which the Court is likely to take in its assessment of this Commission decision.

In rejecting the stay, the Court merely says that the public interest groups did not meet the high standards necessary for a stay. As we wrote in our article the week before last, and have written before in other contexts where stays of administrative decisions have been sought (see e.g. our article here), there is a high burden for any petitioner to meet before a stay is ordered. Basically, the court looks at questions including whether the petitioner has shown that it is likely to ultimately prevail in the final decision in the case, whether there are irreparable damages that will occur from not issuing the stay and how the equities of the situation weigh in deciding whether a stay should be imposed. Presumably, the Court here either decided that the public interest groups had not shown that they were likely to prevail in the ultimate appeal of the FCC’s decision, or that they had not shown that there would be irreparable harm from not imposing the stay. Continue Reading

FCC Announces Potential Solutions for LPTV Stations that are Displaced Before Getting the Opportunity to File for a New Channel

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

The FCC in a Public Notice released yesterday recognized that some LPTV stations and TV translators may get bumped from their current channels even before full power stations start their transition to new channels to repack the TV band to make parts of it available for wireless Internet operations. The FCC has established windows for the repacking of full-power TV stations where, over a 39 month period, stations that currently operate on Channels 38 and above will be repacked into a smaller TV band under channel 37. LPTV stations are not part of that phased repacking, but instead will have the opportunity to file for displacement channels at some point, probably early next year, if they currently operate on channels 30 or above, or if repacked full-power stations in what will be the core TV band displace the LPTV or translator from their current channel (see our article on that displacement filing window here).

The problem for these secondary stations is that the FCC yesterday announced the grant of construction authorizations for several wireless licensees who bought the cleared TV spectrum. Those wireless companies are free to start testing and operating on portions of the TV band that don’t currently house full-power stations at any time, and some have indicated interest in commencing testing and operations in the very near future. When they do start testing their new facilities on their new spectrum, they may force some existing LPTV stations or TV translators off of their current channels. Once given notice by a wireless operator of its intent to start operations, the LPTV or translator has 120 days to cease operations. If those notices are given in the next month or two, that 120 day period will end before the displacement window for LPTV and translator operators have even filed to seek new channels. So yesterday’s public notice suggested two ways in which these stations can keep operating until they find a permanent, post-repacking home. Continue Reading

FCC Reminds Repacked TV Stations of Upcoming June and July Deadlines

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

The incentive auction, where the FCC agreed to buy the spectrum of numerous TV stations so that they could repackage that spectrum and sell it to wireless users, ended with the FCC’s Closing Notice released in April. But, in order to clear contiguous blocks of spectrum for the wireless companies who bought spectrum in the auction, the FCC not only had to buy the spectrum rights of a number of TV stations, but they also had to repack the remaining TV stations into a smaller TV band. Dates are coming up when the stations that were repacked will need to give the FCC notice as to their plans to construct, and also their expected expenses in constructing so that they can get reimbursement from the FCC for the costs that the incur. Yesterday, the FCC issued a Public Notice to remind stations that are being repacked as to some of the upcoming deadlines in this repacking process.

The FCC reminded stations (and MVPDs, who can also seek reimbursement for the costs that they incur as a result of the repacking) of the following post-auction filing deadlines:

  • June 12, 2017: Reassigned TV stations (and stations changing bands as a result of their auction bids, e.g. those that are moving from UHF to VHF channels) that determine that they are unable to construct facilities that meet the technical parameters specified in the FCC’s April 13, 2017 Closing and Channel Reassignment Public Notice, as well as any other reassigned stations and band changing stations unable to meet the July 12, 2017 construction permit filing deadline (outlined in the next bullet), may seek a waiver of the July 12, 2017 deadline if they file a waiver request by June 12, 2017.  Any station expecting to seek this waiver should contact its Regional Coordinator at the FCC (see our article here about the Regional Coordinators) as soon as possible.
  • July 12, 2017: Unless they have been granted a waiver of this deadline, all reassigned stations and band changing stations must electronically file applications for construction permits to build their post-auction channel facilities no later than July 12, 2017. Although stations have until this deadline to make these filings, the Public Notice encourages stations to do so as soon as possible.
  • July 12, 2017: Reassigned stations, as well as MVPDs that will incur costs by continuing to carry reassigned stations, must file their estimated construction costs for equipment and services no later than July 12, 2017.  These relocation cost estimates and any required supporting documentation must be filed electronically with the FCC using FCC Form 2100, Schedule 399.

These are important steps in giving the FCC and other parties the information needed to see exactly what technical facilities stations will be using to meet their repacking obligations, which may give some suggestion as to whether the FCC’s ambitious repacking deadlines can be met. The cost estimates will also give some idea if the $1.75 billion budgeted for the repacking cost reimbursements will be sufficient to meet all of those costs. Thus, these upcoming dates are very important – make sure that your station meets its obligations.

 

FCC Releases Instructions for Window for AM Stations to File for FM Translators and Announces Translator Filing Freeze – Pay Attention to the Details!

Posted in AM Radio, FM Translators and LPFM

Late yesterday, the FCC released the Public Notice setting out the instructions for the upcoming window for Class C and D AM stations to file for new FM translators. The window will be open for the submission of applications from July 26 to August 2 – and mutually exclusive applications filed during that window will be resolved by an auction if they cannot be resolved by settlements or engineering solutions. This is a very complicated Public Notice, as the FCC is treating these applications as those filed in preparation for an auction. Applicants need to read this notice very carefully to avoid traps – traps which include having conversations with mutually exclusive applicants outside a yet-to-be-announced settlement window when engineering solutions to resolve conflicts between applications filed in the window will be allowed. There actually is a rule against “prohibited communications” outside of the settlement window – meaning that mutually exclusive applicants can’t talk to each other except during these designated settlement windows.

Resolving mutually exclusive applications is also not as easy as some may have thought. Applicants can resolve conflicts only by filing settlements or technical amendments that comply with the minor change rules – meaning that they can only amend to different sites on the same channel, or on channels three up and three down from that initially specified, or a channel precluded from use by the initially proposed channel because of Intermediate Frequency interference. Applicants, under the rules announced yesterday, cannot amend to any vacant channel that may be available in their area (a restriction different than that allowed in some past secondary service windows in the past – such as that opened for LPFM applicants).

This may be to preserve some channels for applicants in the next window – one to be announced in the future for all AM stations (including Class A and B AM stations) to file for new translators. But that second window will only be open to AM stations that did not rely on the 250 mile waivers in last year’s AM Revitalization windows (see our article here) or in this first upcoming window. AM stations that previously obtained translators for their stations without relying on the 250 mile waiver last year, however, are not precluded from filing for another translator in the upcoming window.   Once an application is filed in this window (or if one was filed last year in reliance on the 250 mile waiver), even if it is ultimately dismissed, the applicant who submitted the application cannot take advantage of a subsequent window. So it would seem that mutually exclusive applications filed in this upcoming window, that cannot file a minor change application to resolve their conflict, will not have another chance to file for a translator in the second window later in the year.

And, as noted above, these applications are not the simple application for an FM translator construction permit that many applicants might be used to filing. Instead, they are auction applications which require certain auction-related disclosures to be acceptable. Hopefully, the FCC will be holding some sort of training session for these applications, as I expect that some small AM stations that may be interested in filing in this window will come away baffled by the auction instructions. As noted above, these rules include the restrictions on prohibited communications – forbidding applicants with applications that are mutually exclusive from talking about auction strategy or tactics, which would seemingly include trying to settle the conflicts – except during designated settlement windows. So, while you can consider engineering solutions to resolve conflicts with your engineer, don’t convey the potential solution to other applicants except when the FCC tells you that you can do so.

As part of the Public Notice, the FCC also announced a filing freeze on any technical changes to existing translators so as to freeze the database that applicants will use to prepare their applications. The freeze will be in effect from July 19 until August 2.

In short, read these instructions carefully, and go over them with your attorney and engineer to make sure that you don’t inadvertently overlook some requirement that would result in your missing this opportunity to get a new FM translator for your AM station.

Radio Owner Forfeits Several FCC Licenses for Being Silent For Prolonged Periods of Time – Warning to Broadcasters for Next License Renewal Cycle

Posted in License Renewal, Programming Regulations, Public Interest Obligations/Localism

Last week, the FCC issued a consent decree entered into with a broadcaster who is the licensee of multiple radio stations, many of which were silent for long periods during the last license renewal cycle. As part of the deal, in order to get renewals for 12 stations granted, the licensee agreed to either surrender the licenses for 9 other stations or to donate them to nonprofit groups. Even the licenses that were renewed were done so only for a short-term (one-year), so the FCC could monitor whether these stations were going to be operated in compliance with the FCC’s minimum operating rules. We have written about cases where the FCC has penalized stations who sought the renewal of the licenses of stations that had prolonged periods of silence during the prior license renewal term (see, for instance, our articles here and here). This case provides much more detail as to the FCC’s thinking in these cases, and provides a warning to broadcasters who might take their stations silent for extended periods that they may not be able to justify to the FCC that they have served the public interest sufficiently to merit the next renewal of their license.

The FCC decision in this case notes that there have been numerous decisions warning broadcasters that prolonged periods of silence on a broadcast station, even if authorized by the FCC through an STA, may still raise substantial questions as to whether a broadcaster has served the public interest sufficiently to receive a license renewal. A broadcaster, in order to receive a license renewal, must show that it has served the needs and interests of its community of license and service area. If the station is off the air for but a few days when it pops back on to save its license, there is little time to provide any substantial service to the community (as we wrote here and here, there is a statutory provision – Section 312(g) – that says that stations that have been off the air for more than a year without any operation will automatically lose their license unless the FCC finds that the license should be reinstated to promote “equity and fairness,” prompting some stations to operate for just a few days each year to avoid invoking the automatic forfeiture of their license). So, while the FCC entered into a settlement with the licensee in this case allowing the preservation of some licenses, the extensive discussion of the history and underlying reasoning of the decision to require that the licensee forfeit numerous other licenses was clearly meant as a warning to other broadcasters to not sit on their spectrum and expect a license renewal. The next license renewal cycle for radio starts in just two years, so broadcasters need to be thinking about these issues in anticipation of the filings that they will soon be making. Prolonged periods of silence risk a station’s license – so be sure that you are operating and serving the public interest.

Court Issues an Administrative Stay on Effective Date of Reinstatement of UHF Discount While It Considers Arguments as to Whether to Put the Discount on Hold

Posted in Multiple Ownership Rules, Television

When the FCC last month reinstated the UHF discount (see our article here), it opened the door to ownership consolidation in the television industry, and immediately deals were announced based on the discount being back in place. But public interest groups in DC, fearing too much consolidation, asked the FCC to stay the effect of the rules. When the FCC did not act, the public interest groups last week asked the US Court of Appeals in the District of Columbia for a stay to put the rules on hold. In response, the Court order expedited briefing on the stay request, with the FCC filing its brief Thursday (here) and the public interest groups scheduled to file their brief shortly. Then late yesterday, the Court issued what it termed an “administrative stay” – temporarily putting the rules on hold while it considers the briefs filed by the parties. The Court was careful to say that this administrative stay was not any sort of judgment on the merits of the stay request – it was just putting everything on hold while the Court considered the arguments of the parties.

While there seems to be a rush to put everything on hold, it is interesting to note that there does not seem to be any imminent risk of anything happening, as the FCC procedurally does not seem to be in a position to imminently grant any application that would create new combinations taking advantage of the reinstated UHF discount. Regardless of this anomalous rush to a decision, the issue to be considered by the Court in assessing any stay request is whether the public interest groups have a likelihood of success on the merits of the case, and whether there is irreparable injury if the stay is not issued (see our article here discussing the standards for a judicial stay). In this case, the Court will be assessing whether the new FCC’s reinstatement of the UHF discount was an arbitrary and capricious decision to overturn the FCC’s abolition of the discount – which took place just last August (see our article after the full text of that order was released in September, here). Continue Reading

Comments on FCC Proposal to Abolish Broadcast Main Studio Rule Due July 3

Posted in AM Radio, FCC Fines, FM Radio, Public Interest Obligations/Localism, Television

In today’s Federal Register, the FCC has given notice of its proposal to abolish the main studio rule.  That notice, here, sets the date for comments on this proposal as July 3.  Reply comments are due two weeks later on July 17.  We wrote about the FCC’s proposal and the questions being asked in this proceeding here and here.  So, if you are interested in expressing your views on this significant deregulatory move by the FCC, file your comments by July 3.