Broadcast Law Blog

Broadcast Law Blog

What’s Up With Music Rights for Broadcasters and Webcasters? – A Presentation on Pending Issues

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

While this summer has perhaps not brought the big headlines in trade press about copyright issues involving broadcasters – particularly in the area of music rights – there still are many issues that are active. I addressed some of those issues in a presentation earlier this month at the Texas Association of Broadcasters Annual Convention. I did my presentation in conjunction with a representative of SoundExchange, where he covered the nuts and bolts of the obligations of broadcasters and webcasters to file royalties for the noninteractive digital performance of sound recordings (e.g. webcasting and Internet radio). While the rates for 2016-2020 are on appeal (see our articles here, here and here), these rates are effective pending appeal and webcasters need to be paying under them. In the Texas presentation, I covered some of the many other copyright issues that are on the horizon, many of which we have written about in the pages of this blog. The slides from my presentation are available here. They provide an outline of many of the pending matters.

The presentation covered the controversy about the Department of Justice decision on the ASCAP and BMI consent decrees, about which I wrote about here. That controversy continues, as the PROs seek judicial or legislative relief from the new DOJ requirement for 100 per cent licensing of split works (see my article for an explanation of what that means). In the interim, the radio industry is negotiating new royalties with both of these organizations, as the current license agreements expire at the end of this year (see our article here). Continue Reading

FCC’s Audio Division Case Clarifies Processing Rules for FM Upgrades and Forced Channel Changes

Posted in FM Radio, General FCC

Rules regarding the processing FM applications – particularly those involving upgrade applications that require the forced change of the channel on which another station is operating – can be very complicated.   In a decision released the week before last, the FCC looked at all sorts of issues that can be raised by one of these applications – including clarifying the timing of the required reimbursement for the costs of the station that is being forced to change channels, the timing of required channel changes, and the ability of an applicant to file an upgrade while a license application is pending for initially constructed facilities of a station. For any radio operator contemplating an upgrade involving coordination of channel changes with other stations, this decision is worth a read.

The issue of reimbursement of the costs of a forced channel change is one that comes up in numerous upgrade applications. A station that wants to upgrade its facilities can ask the FCC to change the channel of another FM station to clear room on the dial for that upgrade – and that other station can be moved on the FM dial even if it does not want to change its channel. The FCC will order the other station to change channels as long as the upgrade proponent is able to find another channel for that station which is technically feasible at that station’s current transmitter site and is fully-spaced under the FCC rules governing required mileage separations between FM stations. Unless there is a unique issue about the channel to which the forced station is being moved, there are very few objections that can be raised to one of these involuntary channel changes. However, the station that is upgrading has an obligation to reimburse the changing station for all of the costs of the forced relocation. Continue Reading

Update: More on Marijuana Advertising

Posted in Advertising Issues, License Renewal, Public Interest Obligations/Localism

In the few days since I posted this update on concerns about marijuana advertising, there has been much attention devoted to the subject – and none of it undermines my belief that broadcasters need to continue to be cautious in this area. Yesterday, there was an article in the Sacramento Bee newspaper, specifically addressing the topic of potential marijuana advertising on broadcast outlets in light of the current ballot proposition in California proposing to decriminalize marijuana in the state. Note that the general consensus of those interviewed in that article was that caution was still the word for broadcasters who are considering running marijuana advertising.

Others may have taken hope from the recent decision of a federal appeals court that found that criminal prosecutions of entities and individuals who were complying with state laws decriminalizing medical marijuana by the Department of Justice were barred by a rider to a federal appropriations bill. Some saw this as a broad statement that the federal government would not be enforcing its marijuana laws in any context. But if you read that court decision, it is clear that the bar on the spending of any money on prosecutions applies only to the DOJ (not to all federal agencies such as the FCC) and only to medical marijuana. Moreover, the decision practically quoted the same warning that I included in my articles on the topic – the rider does not change the underlying law declaring the sale and distribution of marijuana illegal under federal law, and that we have an election in November, and who knows what a new Congress or new administration will do in this area. So the caution light continues to burn on broadcast marijuana advertising.

Reminder: EAS Form One Registration Due By August 26 for All Broadcasters

Posted in AM Radio, Emergency Communications, FM Radio, FM Translators and LPFM, Television

In our reminder on August regulatory dates for broadcasters, we noted that broadcasters must register their stations in a new FCC filing system that will allow them to electronically report on the success of the next EAS National Test, to be conducted on September 28. The new registration system, called EAS Test Reporting System (“ETRS”), requires all stations (including LPFM stations) to register by August 26, by filling out what is referred to as Form One in that system. The FCC Public Notice announcing the new filing requirement is available here. More information about the form and a link to the Registration Page for the form are available on the FCC’s website, here. I have been told that this form can be tricky to complete, and will require reference to your state EAS plan, so don’t wait for the last day to try to get this done. The FCC has given stations until September 26 to edit their initial filings – but you need to get something on file by next Friday. Time is short, and completing the form (especially if you have multiple stations) may take some effort, so don’t delay in completing this form.

Update: Pirate Radio

Posted in FCC Fines, FM Translators and LPFM, General FCC

A few months ago, we wrote about pirate radio and the FCC’s efforts to stop these stations from popping up all around the country. In the last few weeks, the FCC has issued several fines to pirate radio operators – including one who shut down his operations and gave his transmitter to the FCC when they first inspected his facility, only to start up again someplace else a few weeks later (see the order proposing a $15,000 fine here). In some of the decisions (e.g. the one here proposing a $15,000 fine), the FCC references the websites and sales operations of these pirate radio operators. In light of this kind of brazen activity, we wonder how effective the threat of an FCC fine may be in curbing these operators. But the FCC does seem to be ramping up its activity in this area – as is evident from the webpage that they have created to document their efforts. In one interesting development, the FCC sent a warning letter to a property owner for a home from which a pirate radio station operated, warning that the operation was illegal – perhaps setting the stage for more aggressive actions against those who enable pirate radio operators. Watch as the FCC efforts develop in the coming months.

Congressional Proposal for Copyright Small Claims Court – What Does It Suggest?

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

In the last few weeks, we’ve seen almost daily press reports of new lawsuits against media companies being sued for the use of photos on their websites without permission of the photographers. We’ve written many times about copyright issues that can arise if media companies put content on their website without getting permission of the copyright holder. Most recently, we wrote about the legal issues that can arise by taking photos or videos from Internet sites and reposting them to your own site, or using them in on-air productions. We’ve also written articles about how your ASCAP, BMI and SESAC license don’t give you rights to use music in video productions or to post online music that can be accessed in any on-demand fashion – so that such rights have to be cleared directly with copyright holders for such uses – including the use of music in podcasts. Even though these concerns exist, some copyright holders have been reluctant to sue, as litigation over these matters sometimes costs more than the likely recovery (though broadcasters, too, are concerned about litigation as the costs of defending against such a lawsuit can be very high). One idea has been kicking around for a long time – some sort of small claims court for resolving smaller copyright claims at less cost to the parties. Last month, a bill was introduced in Congress to create such a court – a new Copyright Claims Board.

The bill was sponsored by a single Congressman, and has thus far received the support of only a single co-sponsor. Given the time left in the current Congressional session, it would be unlikely to go any further this year. But with a promised examination of the Copyright Act generally on tap for the next Congress, some part, or all, of this proposal might again see the light of day next year. For a bill sponsored by a single Congressman, introduced late in the Congressional session with little time for approval, the bill is actually quite detailed, setting out a complete structure for the new court, as well as specific procedures that would be followed by any copyright owner seeking to adjudicate their claims through this new process. Continue Reading

FDA Continues to Schedule Marijuana as a Schedule I Drug – Doing Nothing to Clarify the Still Murky State of Broadcast Advertising

Posted in Advertising Issues, License Renewal, Public Interest Obligations/Localism

Last week’s letter from the FDA detailing its position that there should be no change in marijuana being classified as a Schedule I drug under Federal law reinforces the fact that, under Federal law, the drug is still illegal – no matter what certain states may do to legalize or decriminalize its use. As the FDA’s decision emphasizes that the sale and distribution of the drug is still not permitted under Federal law, we thought that we would rerun the advice that we gave to broadcasters – Federal licensees – about running advertising for marijuana. As we said in February when we first ran this article, advertising for marijuana is still a concern.  Here is what we said in February:

Broadcasters, like other federally regulated industries, continue to be leery about advertising for marijuana, even in states where cannabis dispensaries have been legalized for medical or even recreational use.  This week, the NY Times ran an article about companies trying to provide ways for dispensaries to use electronic payment systems, as federally regulated banks and credit card companies often refuse to deal with these businesses.  This is despite guidance given by the Department of Justice to banks about how to handle funds coming from such organizations.  Where the federal regulator (the FCC) has provided no advice whatsoever, broadcasters as regulated entities need to be very restrained in their desires to run ads for these dispensaries that appear to be legal under state laws. Continue Reading

How To Follow the FCC Incentive Auction

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

As the leaders of the FCC’s Incentive Auction Task Force said in opening a post on the FCC’s blog last week, “Who says nothing happens in Washington in August?”  Bidding in the initial stage of the FCC Incentive Auction’s forward auction phase begins on Tuesday, August 16th, and with it, the longest pre-auction run-up period in FCC history is finally over!

As noted previously on this page, most analysts do not expect the forward auction to generate enough revenue in this stage to close the Incentive Auction at the current 126 MHz spectrum clearing target.  (It would take over $88 billion, including funding reimbursements to TV stations that have to change channels after the auction.)  No one knows for sure, however, and the bidders themselves are subject to the gag order imposed by the FCC’s anti-collusion rules, so they can’t talk.  But unlike in the reverse auction, where the FCC provided virtually no bidding information to the public, the agency has set up an online Public Reporting System (the “PRS,” accessible at https://auctiondata.fcc.gov/public/projects/1000), which will provide information on the progress of the forward auction after the end of each bidding round.

In particular, the PRS “Dashboard” page will provide information regarding the progress of the forward auction toward meeting the so-called “final stage rule,” and the “Product Status Stage 1” page will show, for each category of license in each market in the just-completed round, the aggregate demand and the supply, the price at the end of the last completed round, and the price for the next round, among other things.  This will give us the ability, at least in general terms, to tell how the auction is going.  Nothing like an FCC auction to inject some excitement into the dog days of August!

Preparing for the FCC’s Soon to be Released Decision on Changes to its Multiple Ownership Rules

Posted in AM Radio, EEO Compliance/Diversity, FM Radio, Multiple Ownership Rules, Public Interest Obligations/Localism, Television

While the trade press has been full of reports that the FCC has voted on an order addressing the issues raised in its Quadrennial Review of its multiple ownership rules, and that the decision largely left those rules unchanged (including the broad ban on the cross-ownership of daily newspapers and broadcast stations), no final decision on the review has yet been released. However, we did see on Friday that, in the FCC’s list of matters pending before the Commission for approval “on circulation” (i.e. to be voted on without being considered at an FCC open meeting) the ownership item was removed from the list of pending items, seemingly confirming that the decision has in fact been voted on and is thus no longer circulating for approval. If the press reports are to be believed, there has been no major change in the rules despite much last minute hope for some relaxation of the newspaper cross-interest rule. The rules are thus likely to be those indicated by the Chairman in his blog post in late June, which we summarized here. Even if the most significant rules (e.g. local ownership rules for radio and TV – the “duopoly” rules, and the newspaper-broadcast cross-ownership rules) remain unchanged, that does not mean that the broadcast community should ignore the upcoming decision, as there are bound to be other issues addressed in the order that may be of significance.

In connection with the newspaper cross-ownership rules, while the press reports indicate that the rules will remain in place, there are reports that there will be some sort of waiver allowed, seemingly where economics justify the combination. If this is akin to the “failing station” waiver used to justify the ownership of 2 TV stations in markets where such ownership would normally not be allowed, some have wondered, given the economic state of the newspaper industry, if such a waiver would ever be used as it will be a rare case where a last-minute broadcast combination will rescue a failing newspaper. But we will need to see what the details are of the waiver standard to be applied. Continue Reading

Follow Up on Effective Dates of New Rules on E-Cig Advertising

Posted in Advertising Issues

In recent days, there have been a number of broadcast trade press articles about new regulations that have gone into effect for e-cig advertising. We wrote about the FDA proceeding which dealt with these rules here. There appears to be much confusion over what the new rules require, and what is effective now and what will become effective after an FDA rulemaking to determine the specifics of the requirements for e-cig advertising. Right now, as set out in an FDA blog post, there are new restrictions on the sale of e-cigs to those under 18. Also, requirements were already in place that prohibit the promotion of e-cigs by making health claims, and they have not changed. As we said in our prior article, saying that e-cigs are better for your health than regular cigarettes, or that they can help you kick the smoking habit, are prohibited.

In addition, new rules will take effect in two years that will require that e-cig ads have new warnings – specifically “WARNING: This product contains nicotine. Nicotine is an addictive chemical.” The FDA will, during that two year period, adopt rules that specify how that message will be conveyed in various advertising media. There have been trade press articles that have suggested that the e-cig ads will require tags containing 6 different specific health warnings. In fact, as we made clear in our earlier article, those warnings apply not to e-cigs, but to cigars, and are consistent with a prior settlement agreed to by the cigar manufacturers.

So the rules that are now effective do not appear as onerous as some recent articles may have suggested. Nevertheless, these rules are being appealed by some e-cig manufacturers, and at least one senator has put out a statement condemning their effect on the business of the e-cig industry. But, for now, stations should work with their advertisers to make sure that they comply with the current rules – avoiding pitches to those under 18, and avoiding health benefit claims, to keep those advertisers out of hot water with the FDA.