Broadcast Law Blog : Broadcast Lawyer & Attorney : Davis Wright Tremaine Law Firm : Broadcast Law Blog : Seattle, Los Angeles, Washington D.C., New York, San Francisco, Shanghai

One of the questions we commonly get from broadcasters and others around this time of year is whether and/or how they can use the term SUPER BOWL.  Some refer to it as a trademark while others call it a copyright.  Who is right...and how can it be used?  The term SUPER BOWL is a registered trademark owned by the National Football League. We previously discussed this issue in 2009, 2010 and 2011. 

Actually, the NFL owns at least eight trademark registrations containing the words SUPER BOWL, as well trademark registrations for the terms PRO BOWL and even SUPER SUNDAY.  Aside from these trademark registrations, the NFL also owns the copyright to the telecast of the game itself.  You may have heard that in past years, the NFL tried to stop Super Bowl parties shown on large TV screens.  This was an enforcement of the NFL's copyright in the game.  Now, the NFL apparently no longer tries to stop Super Bowl parties unless the proprietor charges admission to see the game.  Again, this is a copyright issue.  But what do these rights mean for a broadcaster who wants to run a Super Bowl promotion or an advertiser who wants to run a campaign involving the Big Game?

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Just a reminder to broadcast stations in certain states of several upcoming February obligations.  First up, February 1st is the deadline for Radio Stations in Arkansas, Louisiana, and Mississippi to file their FCC Form 303-S license renewal applications seeking a renewal of their broadcast licenses.  (See our earlier license renewal advisory for more information about the FCC's license renewal process.)  Accordingly, radio stations in those state/territories will also need to begin their License Renewal Post-Filing Announcements on February 1st to inform their communities of the renewal filing.  Specific language for the announcements can be found on the Commission's website here, and the post-filing announcements continue on Feb. 16, Mar. 1, Mar. 16, April 1, and April 16.

Second, the next batch of radio license renewals -- which will be filing their renewals on April 2nd -- is Indiana, Kentucky, and Tennessee, which means that Radio Stations licensed to those states, must begin their License Renewal Pre-Filing Announcements on February 1.  The precise language of the pre-filing announcements—which is again dictated by the FCC’s Rules—can be found here. The pre-filing announcements for these stations continue on Feb. 16, Mar. 1, and Mar. 16. 

Third, by February 1, Radio and Television Station Employment Units (SEUs) in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York and Oklahoma must prepare and place in their public inspection file their Annual EEO Public File Report.  Stations that have websites must also post the Annual Report on their website.  The Annual EEO Public File Report summarizes the station's or the SEU's EEO activities during the previous 12 months, and provides information about the recruitment and outreach that the station conducted in the past year.  A copy of our recent reminder advisory with more information can be found here.  In addition, Radio Stations in Arkansas, Louisiana, and Mississippi will also be filing an FCC Form 396 EEO Report by February 1 in connection with their license renewal filing.

Finally, February 1st is the deadline for Noncommercial radio stations in Arkansas, Louisiana, Mississippi, New Jersey and New York, and Noncommercial television stations in Kansas, Nebraska and Oklahoma to prepare and file an FCC Form 323-E Biennial Ownership Report with the FCC.  Please note, this filing date applies only to noncommercial radio and TV stations in the states noted above. The FCC has revised its rules regarding the reporting of ownership interests for commercial broadcast stations, as well as revised the commercial Ownership Report—Form 323. Accordingly, commercial stations now file biennial ownership reports on one unified filing date, which will next occur on Nov. 1, 2013.  A copy of our recent reminder to noncommercial stations about the February 1 filing deadline can be found here.

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The FCC' Notice of Proposed Rulemaking in its Quadrennial Review of the Multiple Ownership Rules was published in the Federal Register today, setting the deadline of March 5 for initial comments in that proceeding.  Reply comments are due on April 3.  We summarized the FCC's tentative conclusions on changes to the ownership rules when the Commission first released its NPRM in late December.  The issues to be considered include changes to the broadcast-newspaper cross ownership restrictions, the possible elimination of rules restricting the ownership of radio and TV in the same market, the potential attribution of TV shared services agreements (i.e. potentially making a shared services agreement "count" as an ownership interest in a multiple ownership analysis), and other possible revisions to the local radio and TV ownership limitations (or exceptions that would allow for waivers of the limits in defined circumstances).  The Commission is also looking for suggestions on how these rules can be used to promote the minority ownership of broadcast stations.

As we wrote in December, this is but one more step in a long process before any new rules will be adopted.  After the filing of the comments, there are bound to be many groups informally discussing proposed changes with FCC Commissioners and staffs, and much consideration before any final rules are adopted.  Even these tentative conclusions took the FCC over a year and a half to produce from the date of the initial Notice of Inquiry in this proceeding.  Given the upcoming elections, and the potential for just about anything to become a campaign issue, a decision like this, that may contain controversial elements, will most likely be postponed until some time after election day.  And even when decided, these rules are often debated for years afterward, as this NPRM is reviewing issues that Courts have rejected from previous ownership review orders reached in 2003 and 2007.  Nevertheless, look for much more debate on these issues in the coming months. 

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As we reported last week, the FCC has adopted a Report and Order establishing rules for the closed captioning of video programming delivered via Internet protocol (i.e., IP video), as required by the 21st Century Communications and Video Accessibility Act (CVAA). DWT has now released an advisory with further details about the new rules, which is available here. The new rules govern TV stations, cable systems, broadcast and cable networks and virtually every other professional video program producer who is now, or will be in the future, making programming available online. The rules also impose new requirements on hardware (such as set-top boxes, PCs, smartphones DVD players, Blu-ray and tablets) designed to receive or play back video programming transmitted simultaneously with sound and integrated software.

With rules that are so wide-reaching, everyone involved in these businesses needs to understand what the new rules entail.  A summary of the Commission's Order follows below, and please see our advisory for complete details about the new rules. Consistent with CVAA's mandate, the FCC has adopted rules that:

• Extend to all full-length video programming previously distributed on television with captions to require that captioning appears when such programming is displayed online via IP;
• Establish a two-year transition for uncaptioned, archival IP-delivered content that is shown on TV with captions after the new rules’ effective date;
• Require video programming owners to send caption files for covered IP video to video programming distributors and video programming providers along with the program files, or alternatively, inform the distributors–using a mechanism agreed to by the parties–that captions are not required for a particular program;
• Require video programming distributors and video programming providers to enable the rendering or pass-through of all required captions to the end user;
• Require captioning of covered IP video to be of at least the same quality as the captioning that the programming had when it appeared on TV;
• Establish deadlines by which categories of covered IP video must be captioned, as follows:
  • Programming that is prerecorded and unedited for online distribution, when subject to the new requirements, must be captioned within 6 months of the rules’ effective date;
  • Programming that is aired live or “near-live” on TV, when subject to the new requirements, must be captioned within 12 months of the rules’ effective date;
  • Programming that is prerecorded and edited for online distribution, when subject to the new requirements, must be captioned within 18 months of the rules’ effective date;
• Adopt the Society of Motion Picture and Television Engineers (SMPTE) Timed Text format (SMPTE ST 2052-1:2010: “Time Text Format (SMPTE-TT)” 2010 as a safe-harbor interchange and delivery format, but stop short of requiring all covered entities to use this standard;
• Decline to adopt categorical exemptions other than that mandated by the CVAA (i.e., consumer generated programming. which is statutorily exempt);
• Establish procedures by which video programming providers and video programming owners may petition for exemptions from the new requirements based on economic burden;
• Accommodate de minimis failures to comply with the new captioning obligations;
• Adopt procedures for complaints alleging violations of the new rules;
• Decline to adopt specific forfeiture amounts, opting instead to penalize violations based upon the facts and circumstances of each case;
• Permit entities to comply with the new requirements by alternate means; and
• Impose requirements for devices subject to the closed captioning requirements.

Given the scope of the new rules, there will undoubtedly be questions and requests for clarification that arise along the way.  We wll continue to track these new rules and provide further updates on this important issue. 

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This afternoon, the FCC released its long-anticipated Report and Order (R&O) setting forth the Commission’s new closed captioning rules for IP-delivered video programming, pursuant to the 21st Century Communications and Video Accessibility Act (CVAA). 

As we explained when the rules were first proposed in September, the CVAA directed the FCC to establish how and when certain IP-delivered video programming must be captioned, as well as the closed captioning capabilities for devices used to view video programming. The R&O adopts closed captioning requirements for owners, providers, and distributors of IP-delivered video programming; a safe harbor technical standard and delivery format for IP video captions; a staggered compliance schedule; complaint rules; and requirements for manufacturers of devices used to view the video programming at issue.

We are currently reviewing this comprehensive rulemaking, and will post our in-depth review next week, both here and on our DWT Advisories page.

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Last week, I participated in an FCC-sponsored webinar to discuss its EEO rules.  Along with two other private firm lawyers, the chief of the FCC's Office that administers its EEO rules and one of his senior staff members participated on a panel to discuss the legal obligations of broadcasters and MVPDs in meeting the EEO rules.  The panel, which lasted almost two hours, was a very thorough discussion of the requirements of the FCC rules.  It provided insight into how the FCC identifies problems, and even suggested some ideas as to how broadcasters can assure compliance with the requirements in the easiest way possible.  While lengthy, the webinar, which is archived on the FCC's website, is worth viewing to get a very good summary of the FCC rules.  If a station or MVPD has its management employees and others with hiring responsibility sit down and watch the video, and use it as part of a training program for management employees on EEO matters, it may even count as one of the non-job specific supplemental outreach initiatives that the FCC requires each entity subject to the EEO rules to conduct.

We wrote last week about a recent set of FCC fines to two broadcasters that had not widely disseminated information about all of their job openings - relying instead on only a combination of internal sources (word-of-mouth, station websites, intra-company referrals) and Internet websites for their outreach efforts for a substantial number of job openings.  At the webinar, the FCC officials said that there were a number of other enforcement actions in the pipeline that should be public soon.  The FCC is reviewing every license renewal application that is filed with the FCC to determine if its accompanying Form 396 provides information necessary to demonstrate compliance with the three prongs of the FCC's EEO program - wide dissemination for all job openings, notice of job openings to community groups that request such notice, and non-vacancy specific initiatives that are designed to educate a community about the nature and requirements of broadcast jobs.  Stations are also reviewed when the FCC conducts random audits (5% of all stations and MVPDs are supposed to be audited annually) and when complaints or other information comes to the attention of the FCC staff.  Staff members remarked that they have even called stations to discuss issues when visiting a station website for personal reasons and noting the absence of the most recent Annual EEO Public File Report that needs to be posted on a station website on the anniversary date of the filing of the license renewal applications for stations in the state of the station's city of license. 

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Changing the city of license of an AM or FM station is getting more difficult, based on recent FCC decisions.  As we have written before, the FCC's Rural Radio order changed the manner in which the FCC reviews city of license changes.  In connection with any proposed city of license change, the FCC reviews the proposal to make sure that the change will result in a favorable arrangement of allotments, making sure that the distribution of radio channels is in the public interest.  In making that decision, the FCC has relied on a series of priorities - first insuring that all areas of the country get at least two radio reception services (Priority 1 was to provide service to "white areas" that currently receive no radio service at all, Priority 2 was to provide a second reception service to all areas).  The next priority was to provide as many communities as possible with their first "transmission service", i.e. a station licensed to that community that would have a primary responsibility to address its needs and interests.  Finally, if there was no proposal to provide a first or second reception service or a first local transmission service, the FCC  looked at Priority 4 factors, i.e. other public interest matters.  In the past, service to a greater number of people itself was a Priority 4 consideration.  Based on a case released last week, service to a greater population apparently is no longer be viewed as justification for the change in the city of license of a radio station - even if the proposed move is from a rural community that already has a significant amount of service to a similarly well served urbanized area and results in a significant increase in the population served by the station.

The Rural Radio order changed the Priority 3 preference for a first transmission service by determining that any proposal for a city of license within an urbanized area would be viewed as being a proposal for service to the entire urbanized area (meaning that, instead of being a first local service to a named community, all the stations in the urbanized area would be considered as serving the same city). Thus, a proposal to take a station from a rural area (e.g. proposing to take the third radio station from some smaller rural town) to a city without a service in a urbanized area would no longer be viewed as providing the first local transmission service to the suburban community (but would instead be viewed as being a proposal to provide just another service to a metro area that probably already has many stations that are licensed to the various communities in the urbanized area).  Some had thought that, while Priority 3 would no longer justify such a move, a Priority 4 preference would be available if the move would allow the station to serve a much larger population, and if any loss area was already well served.  In the proposed move discussed last week, the Commission relied on language in the Rural Radio Order that stated that population increases alone would not be enough to justify a city of license change when a station proposed to move into an urbanized area.  In this case, the Commission's staff found wanting a proposal to move from the well-served community of Boone, Iowa to a community in the Des Moines urbanized area - even though the proposed change would result in service to over 300,000 more people than are currently served by the station - increasing the number of people served by the station from less than 100,000 to over 400,000. The request was not denied outright, but instead the applicant was given another opportunity to supply additional information to demonstrate the public interest benefits that would result from the move. 

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The Supreme Court heard oral argument today (Jan. 10, 2012) in FCC v. Fox Television Stations, which put squarely before the Court the constitutionality of the FCC’s current indecency enforcement regime.  The case came to the Court from decisions by the Second Circuit, involving broadcasts of the Billboard Music Awards and NYPD Blue, which held that the enforcement regime at the center of the FCC’s “crackdown” on broadcast indecency over the last several years had become unconstitutionally vague.

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The FCC has extended the comment deadline in two proceedings looking at imposing new public interest obligations on TV broadcasters (and potentially, at some point in the future, on radio stations as well).  Both proceedings are an outgrowth of the FCC's Future of Media Report, that suggested that broadcasters be made to be more responsive to their communities through better documentation of how they are meeting their public interest obligations.  We mentioned in our post on January FCC deadlines last week, that the reply comment deadline on the Notice of Proposed Rulemaking on the online public inspection file, which was originally scheduled for last week, has been extended until January 17.  In addition, the initial comments on the Notice of Inquiry on the development of a form on which broadcasters would report on their public interest programming (to replace the Form 355 that was adopted but never implemented) were due on January 17, but the due date for those comment has been extended until January 27, with replies now due on February 9.  We summarized the issues raised by the online public file notice of proposed rulemaking here, and those set out in the Notice of Inquiry on the new form to document the public interest service of TV broadcasters here.  File comments as to how these proposals would affect your operations, and watch to see what action the FCC takes later this year in these very important proceedings. 

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The Copyright Royalty Board has just announced that it is accepting petitions to participate in the next proceeding to set the royalty rates to be paid for the ephemeral copies made by "business establishment services" in connection with any digital transmission of sound recordings.  Business establishment services are essentially background music services who provide music to businesses to be played in stores, restaurants, elevators, and other establishments.  Under the Copyright laws, businesses are not required to pay a public performance royalty under Section 114 for the use of sound recordings (they do pay ASCAP, BMI and SESAC for the public performance of musical compositions).  But the law (Section 112) does require that these services pay for the ephemeral copies made in the transmission (e.g. server copies).  In the last proceeding, settled in 2008, SoundExchange and participating services reached an agreement to pay a fee of the greater of $10,000 or 10% of revenues.  Parties who want to participate in this new proceeding to possibly adjust this rate must file a petition with the Copyright Royalty Board, showing their interest in the proceeding, by February 2.  The CRB will later this year announce a settlement window, hoping that the parties who file notices of intent to participate can work out a deal.  If no deal is reached, direct cases will be due in the fall, and a hearing will be held next year, with the rates to be set before the current rates expire at the end of 2013.

This Notice reminds webcasters that all sound recording performance rates are temporary ones, that have to be readjusted every 5 years.  Webcasters will be filing similar notices to participate in the next proceeding in January 2014, with new rates to be set before the end of 2015.  We'll write soon about the issues that are likely to come up in that proceeding.  But webcasters should be making their plans now to be ready to put on a good case as to why the current rates should be adjusted in the 2015 proceeding.

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In addition to the normal FCC deadlines for routine filings, January brings the deadline for comments in a number of FCC proceedings, and a filing window for new FM applications.  For TV stations, the Commission recently extended to January 17 the Reply Comment deadline on its proposals (summarized here) for an online public inspection file.  Many public interest groups have supported the FCC's proposals to put the public file online, including the political file and new information concerning sponsorship identification information, while broadcasters have expressed concerns about the burden and practicality of an online file with all the information that the FCC is considering.  Comments are also due on January 17 on the related Notice of Inquiry looking into the adoption of a new form to document the public interest programming of TV broadcasters to replace the never-effective Form 355.  Comments deadlines on Petitions for Reconsideration of two other rulemaking decisions - on the adoption of rules allowing AM stations to use FM translators, and the Rural Radio proceeding - are due on January 4 with replies on January 17.  That the FCC only now sought comments on the 3 year old Reconsideration petitions in the AM translator proceeding is unusual, as the issue raised by the reconsideration petitions has also been incorporated in the recent FCC proceeding looking at the relationship between FM translators and LPFM opportunities.

We just reminded broadcasters of the new FM window, where applications for 119 new FM channels can now be filed between now and the January 12 deadline.  Broadcasters also need to remember to complete their Quarterly Issues Programs lists, and place them in their public file, by January 10.  As we've written, there are big fines for stations who forget to complete these reports and have to report their absence at license renewal time.  See our advisory on the Quarterly Issues Programs Lists, here, and also our advisory on Children's Television obligations, including Form 398, that needs to be filed at the FCC by January 10, along with a public file report documenting compliance with the limitations on commercial advertising in children's programming . 

For more information on many of the routine regulatory deadlines for broadcasters, see our Broadcasters Calendar for 2012 here.

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The Copyright Office last week issued its Report to Congress on pre-1972 sound recordings (with an Executive Summary), addressing whether to bring these recordings under Federal law.  As we wrote last year when the Copyright Office solicited comments on the issues raised by this report, sound recordings (i.e. aural recordings embodied in some fixed form like a CD, record or digital file) created in the United States prior to 1972 are not protected under Federal copyright law.  Instead, any protections accorded to these sound recordings are under state laws.  Congress, at the request of a number of archivist and music library groups, asked that the Copyright Office review the issues that would be raised by bringing these sound recordings under Federal law.  Some archivists and librarians feared that, in preserving old recordings, they could run afoul of state copyright laws, and that a unified set of rules under Federal law might be easier to follow.  Why is this issue more broadly important to the music community?  For internet radio station operators, it is because the proposals to Federalize all such recordings could have an impact on digital performance royalties (as there does not appear to be any public performance right in sound recordings under state laws and, under current law, these recordings would not be covered under the SoundExchange royalties that most noninteractive services play).  The Report is also significant in that it raises questions about copyright laws dealing with user-generated content, specifically whether the DMCA safe harbor provisions protecting the operators of Internet service companies from copyright liability for the content posted by third parties apply to pre-1972 sound recordings.

This is only a report to Congress, and such reports have no binding impact.  Instead, they merely set out the position of the authors of the report from the Copyright Office.  Such reports are also cited as evidence in court cases as to what the Office believes the current state of the law to be.  The Office has written a number of reports over the years making suggestions about how copyrights should be administered and, given the complexity of copyright law and the competing interests affected by any revisions to the laws, many of their proposals have never been implemented.  This report suggests that pre-1972 sound recordings be brought under Federal laws.  Specifically, the report suggests that current copyright holders get protection for most pre-1972 works until 2067 (when state law protections are to run out under the current law, allowing the works to move into the public domain).  The protections would be accorded to works that are used by the copyright holder (sold at some reasonable price) and registered with the Copyright Office at some point after a law implementing its proposals became effective.  Works from prior to 1923 would be subject to a similar use and registration process, but would only get 25 years of additional protection.  Seemingly, protections for works that are not registered would pass into the public domain after the applicable registration period expires.  For some webcasting companies, this change could have an immediate impact.

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Fines of $14,000 and $8,000 were proposed by the FCC for violations of its EEO rules in two cases (here and here) released on the FCC's last business day of the year.  In both cases, the fines were issued as these clusters of stations, on the FCC Form 396 EEO Reports filed with their license renewal applications, publicized a number of job openings without adequate recruitment.  In the cases faulted by the FCC, the stations' recruitment relied solely on either internal station sources (e.g. word of mouth, referrals from existing employees, ads on the stations or on their own websites) or on on-line resources.  The Commission concluded that this was inadequate dissemination of the information about these openings.  Based on the failure to engage in broad outreach for all of their job openings, these fines were issued by the FCC - perhaps the first of more to come as the FCC reviews license renewal applications during the current license renewal cycle.  Perhaps coincidentally, the FCC will be conducting a webinar on its EEO rules on Wednesday, January 4, which is intended to help explain the obligations of broadcasters and other FCC regulated entities under these rules.

 The January 4 webinar will feature two panels.  The first will be a panel of FCC and private attorneys (I will be one of the participants) who will outline the legal obligations of broadcasters under the FCC's EEO rules and policies and discuss how these rules are applied .  A second panel will feature industry representatives talking about EEO compliance best practices at their stations.  The webinar is free, but requires registration (here).  The FCC public notice of the webinar can be found here, and a further description of the seminar is available on its blog (here).  No doubt, the issues leading to the two fines announced on Friday will be discussed during the legal session.

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The FCC issued its Notice of Proposed Rulemaking in its reexamination of its multiple ownership rules, suggesting limited changes in its rules governing the number of interests that one person or company can have in media outlets in a particular community.  The FCC's tentative conclusions leave most of the current rules in place - including rules that limit the number of radio and TV stations that one entity can own in a market, and rules prohibiting combined ownership of daily newspapers and TV stations in the same market.  The Commission also proposed keeping the dual network rule, prohibiting the combination of any of the four major TV networks.  Shared Services Agreements were another issue addressed by the FCC - proposing to examine SSAs and and other news and program sharing agreements between otherwise independent stations.  The FCC did propose the abolition of one rule - the rule that currently limits the ownership of radio and TV stations in the same market.  In the NPRM, the FCC suggested that other ownership rules could be waived in some instances, so the details of waivers and exceptions could become an important aspect of any final decision in this proceeding.  All of these conclusions are tentative, and the Commission asks many questions about each of its tentative conclusions and asks for public comment on its ideas.  The public can formally weigh in with comments for 45 days after the NPRM is published in the Federal Register, and file replies 30 days later.  After that, there is sure to be much lobbying of the Commissioners before any final decision is made.

This proceeding combines several on-going proceedings.  The Commission started its required Quadrennial Review of the ownership rules over two years ago with a series of public hearings, and a Notice of Inquiry.  The Commission also is dealing with the clean-up of its last review of the ownership rules, which was embodied in a controversial decision reached late in 2007 (see our summaries here and here).  The Third Circuit Court of Appeals threw out significant parts of that decision, finding that the FCC's relaxation of the newspaper-television rules had not been the subject of adequate notice to the public, and that the FCC had ignored its obligations to take steps to promote minority ownership of the media.  Some parties seeking repeal of the newspaper-television cross-ownership rules have asked the Supreme Court to review the Third Circuit decision - but this NPRM looks to reexamine many of these issues in the event that the Supreme Court doesn't otherwise preempt their decision.    Below we'll take a look at specific questions raised by the NPRM.

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