Broadcast Law Blog

Broadcast Law Blog

Beware of Using Photos on Your Website – Make Sure that You Have the Rights Before You Post

Posted in Intellectual Property, On Line Media, Website Issues

The use of photographs on websites continues to be an issue. According to trade press reports, lawsuits were filed against two broadcasters for the unauthorized use of photos on websites, though one suit was quickly dismissed as the named broadcaster in fact had purchased rights to the photos through Getty Images, a clearance house for the rights to use photographic images. But the filings of these lawsuits, along with other suits we wrote about here filed a little over a year ago, highlight the concerns that any company should have about the photos that are found on their websites. I highlighted these issues in my digital media presentation for broadcasters, which I wrote about here just two weeks ago.

Photos that are found on the Internet cannot just be copied and posted to your own website without getting permission from the copyright owner. Contrary to what some might think, unless necessary permissions are obtained, everything on the Internet is not free to exploit on your own site. I know of many broadcasters who have received demand letters from the owners of photographs that have been copied from some website and re-used on the broadcaster’s site without permission. Many have settled with the copyright holder to avoid the fate of these broadcasters who were recently sued – so take these demand letters seriously if you receive one. Continue Reading

No Holidays for the Incentive Auction – Instructions and a Webinar for Broadcasters Who Plan to Enter the Auction and Disputes Over Repacking and LPTV

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

The road to the incentive auction’s anticipated start in March continues to be paved. With broadcasters who are intending to participate in the auction needing to file their initial Form 177 applications expressing that intent by January 12 (see our article here), the FCC has published instructions for completing the FCC Form 177 applications, providing an almost line-by-line explanation of the requirements for filing of the forms. These forms are to be filed by every licensee who is thinking about possibly offering their station up for any sort of compensation in the auction, whether that compensation is a total buy-out of their spectrum, or whether it is merely compensation for moving from a UHF channel to a digitally-less-desirable VHF channel. The full instructions for the form are available here and, as we wrote here, you can find a view of the form itself here (with the actual form not to be available until the window for filing that form opens on December 8).

To further explain the process, the FCC will be conducting a webinar on the reverse auction process on December 8 at 1 PM Eastern Time. Information and an agenda for the webinar were released yesterday, and can be found here. The webinar looks to be focusing on the nuts and bolts of the completion of the Form 177, a general overview of the auction process, the specific information sought by the Form including the filing of any channel sharing agreements, and the options for offering your station for buyout or move to VHF in the auction. The Public Notice also provides links to register for the auction and the web page from which the stream will originate (and at which it will be archived). Continue Reading

Adele’s New Record is Not on Online Streaming Services – Except Where It Is – The Difference Between Interactive and Noninteractive Streaming

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

Adele’s decision to not stream her new CD “25 on services like Apple Music and Spotify has been the talk of the entertainment press pages – like this article from the New York Times.  These articles make it sound like, if you listen to any Internet music service, you’ll not hear a song from the new record.  But, in fact, if you listen to an Internet radio service, like a Pandora, iHeart Radio, Accuradio, the streams of over-the-air radio stations, or any of the myriad of other “noninteractive services” that are available online, you will hear music from 25.  The legal distinctions that allow these services to play Adele’s new music is often not recognized or even acknowledged by the popular press.  Why the difference?

As we’ve written before in connection with music from the Beatles (see our articles here and here), the difference deals with how music is licensed for use by different types of digital music services.  On-demand or “interactive” audio services, like Spotify and Apple Music or the recently in-the-news Rdio, obtain music licenses through negotiations with the copyright holders of the sound recordings – usually the record labels.  These are services where a listener can specify the next track that he or she will hear, or where the listener can store playlists of music they have selected, or even hear on-demand pre-arranged playlists with the tracks in the playlist identified in advance by the service.  If the record labels and the service can’t come to terms for the use of music by one of these interactive services, then the music controlled by the label does not get streamed.  Often, these negotiations can be lengthy, witness the delay of over a year from when Spotify’s announced its launch in the US and when that launch actually took place, because of the complexity and adversarial nature of these negotiations.   In some cases, major artists, like Adele, and before her Taylor Swift and, for a long time, bands like the Beatles and Metallica, had agreements with their labels that gave them the rights to opt out of any deal that their labels did with these audio services.  So, if an artist like Adele can opt out of being played by a service like Spotify, why is she being streamed by online radio?  Continue Reading

Closing the 2003 FM Translator Window – Mutually Exclusive Noncommercial Applications Set for Resolution by Point System Paper Hearings

Posted in FM Translators and LPFM, Noncommercial Broadcasting

While much of the attention paid to FM translators has recently come from their use to rebroadcast AM stations and the upcoming windows for, first, relocating existing translators to AM markets and, later, a window for new translators for AM stations (see our article here), many forget that there are still many translator applications pending from the 2003 translator window.  While thousands of translators from that window were granted in the last few years (see, e.g., our articles here and here), there are still many pending mutually exclusive applications pending at the FCC.  While the commercial applications that are pending will eventually be resolved through auctions, by law, noncommercial applicants cannot be resolved through auction.  So, yesterday, the FCC released a Public Notice which initiates the process of requiring the remaining noncommercial translator applicants to submit information about their qualifications under the FCC’s point system used to resolve mutual exclusivity between such applicants.  By December 16, 2015, remaining noncommercial applicants need to submit to the FCC, electronically, information about the number of points to which they are entitled under the FCC’s criteria.  Failing to provide that information will lead to the dismissal of the pending application.

In reviewing the notice and the attached list of pending noncommercial applicants, one notes that some of the applicants don’t appear to be noncommercial entities.  But the FCC considers a translator to be noncommercial when that translator rebroadcasts a noncommercial station, regardless of the owner of the translator.  Obviously, however, the applicant who is not itself a commercial entity will not fare well in the point system analysis – likely lacking the ability to claim that it has a local established noncommercial presence with a local board, or part of a state-wide network.  While many of these translators are proposed to be operated on commercial frequencies, applications that are awarded through the point system analysis can only be sold to another noncommercial company that qualifies for the same number of points for a period of 4 years after it begins operations, and then only for its out-of-pocket expenses.  However, the Commission does offer an opportunity to avoid being selected through the point system. Continue Reading

FCC Extends Date for Filing of Applications by Broadcasters to Participate in the Incentive Auction, and Revises Opening Bid Amounts

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

The FCC today issued a Public Notice extending the deadline for the filing of the initial forms for broadcasters to participate in the incentive auction. We wrote about the form here, and the initial deadline here. The deadline is extended from December 18 to January 12. This also has the affect of extending the date for entering into Channel Sharing Agreements (see our articles here and here).  The change is based on FCC determinations that the coverage area of some stations was incorrectly computed (see the FCC’s recomputed coverage numbers here). The recomputation of the coverage has also affected the opening bid prices for some stations. The new opening bid prices are listed here. Right now, the auction is still scheduled to move forward in late March, but obviously this shows that glitches can result in changes – so stayed tuned.

Using Drones for TV News – What are the Legal Issues?

Posted in Digital Television, Privacy, Programming Regulations, Television

With the Federal Aviation Administration convening a task force to require the registration of most drones, I thought that it was worth taking another look at the current rules regulating the use of by media companies of what are more officially called unmanned aerial systems (“UAS”) and unmanned aerial vehicles (commonly called “drones”). We offered some discussion of the FAA process to license drone for commercial use a few months ago, here. Rachel Wolkowitz (see her bio here), one of the attorneys following these issues for our law firm Wilkinson Barker Knauer LLP in Washington, DC, offers these broad observations on how drones can be used for newsgathering under current FAA rules, and offers some cautions for both current and future use.

The use of drones presents great opportunity, and potential risk, for newscasters. Drones can be cheaper to fly than helicopters, and potentially can get closer to the action. On the other hand, drone technology is still nascent and safer operating technologies – e.g. sense-and-avoid systems that use internal systems to find and avoid hazards – are still being developed. Federal, state, and local governments are struggling with the potential safety and privacy implications that follow from putting thousands of drones in the sky for a variety of uses.  They are creating a patchwork of laws, rules, and policies that have the potential to trigger liability for broadcasters.  Below, we provide a high-level discussion of some key legal considerations for operating drones for news gathering. Continue Reading

Highlighting the Scope of Legal Issues that Can Arise in a Media Company’s Digital Operations

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

What legal issues should a broadcaster be concerned about when expanding its use of digital media?  Two weeks ago, I did a presentation for the CBI National Student Electronic Media Conference on issues for college broadcasters who are using digital media.  While this presentation was made to college broadcasters, most of the issues discussed are relevant to commercial broadcasters as well, especially to broadcasters who are expanding their digital presence – whether by increasing content on their websites, developing podcasts, or using social media to connect with their audience.  The slides for the presentation are available here, and address issues including the use of music on a website (see, for instance, our article about concerns over the use of music in podcasts), how broadcast stations brands (program titles and slogans) can draw unwanted attention from trademark holders who have registered similar marks, how media created for analog purposes may need new permissions to be used in other digital mediums, how fair use needs to be relied on sparingly in borrowing someone else’s content for your digital media production, cautions on the use of social media, and the steps that need to be taken by stations to avoid liability for user-generated content (see our articles here and here on user-generated content).

When I have given various forms of this presentation over the years, many broadcasters and media companies ask why they should be concerned about these issues, as they have operated in the digital media world for a couple of years, and never faced a problem occasioned by any of their online content.  When asked that question, I often think about how new digital media still is.  As set out in the slides, many of the biggest players in the industry – Pandora, YouTube, Netflix, etc. – are all about ten years old, or less.  As the biggest digital media players are less than a decade old, rightsholders have taken their time to ramp up their enforcement efforts.  But in the last 2 or 3 years, we are seeing more and more activity by rightsholders moving to protect their content when it is used without permission online – whether it be music, trademarks or even pictures.  Photographers have become very active in pursuing website operators who have posted pictures, often found elsewhere on the Internet, without permission from the photographer or other copyright holder of that photo (see our article here). Patent holders, too, are more active chasing perceived infringers, making it more and more important for media companies to assure that they get assurances of rights protections through indemnifications in contracts from technology providers (see our articles here and here).   Rightsholders of all types are more active, and more and more legal issues are arising from online content and operations – so be careful with all of your operations, and your digital operations in particular, to avoid potential problems.

FCC Sets Comment Dates on Proposal to Relax Restrictions on Foreign Ownership in Companies Holding US Broadcast Station Licenses – What Is the FCC Proposing?

Posted in AM Radio, Assignments and Transfers, Digital Television, EEO Compliance/Diversity, FM Radio, Multiple Ownership Rules, Television

In Friday’s Federal Register, the FCC published a summary of the Commission’s Notice of Proposed Rulemaking looking to revise its policies regarding the ownership of broadcast stations by non-US citizens setting the date for comments on its proposal of December 21, with Reply Comments being due by January 20.  The FCC two years ago issued a Declaratory Ruling confirming that it would allow broadcasters to have foreign ownership (in a licensee’s parent company) of greater than 25%, overturning what was widely viewed as the Commission’s prior reluctance to approve that degree of foreign ownership of broadcast stations (see our article here for a summary of the FCC’s 2013 action).  But that decision left many unanswered questions, as the Commission decided to proceed on a case-by-case basis in reviewing any requests for approval under the new rules.  When it took almost two years for Pandora to get approval for its acquisition of a broadcast station, almost a year in processing a request under the 2013 ruling (see our article here on the filing of the Pandora petition), when Pandora did not even think that it exceeded the 25% foreign-ownership threshold but it could not prove its compliance based on the FCC’s 40 year old rules setting out the procedures used to assess the foreign ownership of broadcast stations, it was clear that some changes had to be made.  So, in approving the Pandora deal in May, the FCC said that it would conduct a further review of its rules regarding foreign ownership, a commitment that it moves to fulfill by the issuance of this Notice of Proposed Rulemaking.

The NPRM suggests that the FCC will use for broadcasting, with some modifications, the procedures that it uses in assessing foreign ownership of non-broadcast FCC licensees.  While there are many details and nuances in its proposals, the FCC will still need a Petition for Declaratory Ruling to approve foreign ownership above 25% of a parent company of a broadcast licensee (foreign ownership of the licensee itself is flatly prohibited if it exceeds 20%). But it now proposes to adopt the non-broadcast presumptions that, when the FCC approves a foreign owner of more than 5% of a corporation, that approved owner can go up to 49% ownership without further FCC approval.  Similarly, if a foreign owner is approved in a control position, that owner would be able go to 100% without further approval.  But, on a practical level, perhaps more important was the FCC proposals about the mechanics of tracking foreign ownership. 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 today issued a Public Notice reminding 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 on the ancillary and supplementary services that they provide and 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 old Form 317 is no longer used for the filing of this report. The report now needs to be filed on FCC Form 2100 Schedule G, using the FCC’s new “Licensing and Management System” electronic filing system (LMS). 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.

Closing In on the Incentive Auction – Broadcast Application and Reimbursement Forms Available for Review, Reverse Auction Workshop and TV Interference Calculations

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

The last week has been a busy one for the FCC in preparing for the December applications by broadcasters for participation in the TV incentive auction. The incentive auction will, of course, offer TV broadcasters money (in some cases, lots of it, at least initially) to vacate their spectrum so that the television band can be “repacked” – consolidated into fewer channels – with the reclaimed spectrum being divided into different size blocks and resold to wireless companies for wireless broadband uses. In the last week, the FCC has made public two forms that will be important to that effort – the Form 177 which (as we wrote here) will be filed in December by broadcasters initially interested in participating in the auction, and the Form 2100 Schedule 399, which will be used to claim reimbursement by TV stations that do not surrender their licenses but which are forced to change channels as part of the repacking. The Form 177, the form that broadcasters must submit if they want to take part in the reverse auction, is not easy to find, but is available here, on the website of the Office of Management and Budget, where it has been submitted for review under the Paperwork Reduction Act before it can be released to broadcasters for submission by the December 18 filing deadline.

Similarly, and a bit more publicly, the FCC has released the form, Form 2100 Schedule 399, which broadcasters who do not sell out in the incentive auction, but instead are repacked and forced to move to another channel, will use to claim reimbursement for such moves. The form reveals the categories of expenses for which reimbursement would be made. This form is also being submitted to OMB for approval under the Paperwork Reduction Act, according to the FCC Public Notice which provided notice of the form. Continue Reading