Broadcast Law Blog

Broadcast Law Blog

Appearances by Political Candidates on Talk Program Exempt from Equal Opportunities – New FCC Declaratory Ruling Explains Why

Posted in Political Broadcasting, Television

Yesterday, the FCC’s Media Bureau issued a Declaratory Ruling, deciding that a syndicated television program, “Matter of Fact with Fernando Espuelas,” was a bona fide news interview program – meaning that appearances on the program by legally qualified candidates for public office would not give rise to equal opportunities (or “equal time” as it is often called). In looking at such request the FCC looked at the following factors – (1) the program was regularly scheduled, (2) its content is controlled by the station or program supplier, and (3) the decisions as to the inclusion of candidates are based on judgments as to the newsworthiness of the appearance and not for political purposes. If these factors are met, the program is considered a bona fide news interview program, and candidates can appear without competitors having the right to claim equal opportunities, and without a candidate’s appearance being considered a “use” that needs to be noted in the public files of stations that carry the program.

In addition to news interview programs, newscasts and on-the-spot coverage of a news event are also “exempt programs” where candidate appearances do not constitute “uses” giving rise to equal opportunities or public file obligations. Over the years, as we wrote here and here, the FCC has been more and more liberal in its interpretations of what constitutes a news or news interview program. It is no longer just the evening newscast on a station and the boring Sunday morning talking heads news interview program that qualify. Instead, the FCC has recognized that people get their “news” from all sorts of different kinds of broadcast programs, and the FCC has determined that any program that regularly features newsmakers, where the program content is in the hands of the producers and where the program’s guests are selected for newsworthiness, and not to promote a particular political agenda, can be an exempt news or news interview program. So the FCC has ruled that a host of programs that may not look like hard news, from the Today Show to Entertainment Tonight, to the Phil Donahue program to even the Howard Stern radio show, could be exempt news interview programs where a candidate’s appearance did not trigger equal time. If they cover some aspect of the news, and regularly feature news makers, they are likely to be determined to be an exempt program. Continue Reading

July Regulatory Dates for Broadcasters – FM Translators for Class A and B AMs; Quarterly Issue Programs and Children’s Television Reports; Comments on EAS, Letters from the Public and Regulatory Fees, Cable Royalty Claims; and More

Posted in Cable Carriage, Children's Programming and Advertising, Emergency Communications, FCC Fees, FCC Fines, FM Radio, FM Translators and LPFM, General FCC, Incentive Auctions/Broadband Report, License Renewal, Noncommercial Broadcasting, Political Broadcasting, Programming Regulations, Public Interest Obligations/Localism, Television

While TV broadcasters can enjoy an incentive auction respite in July as attention shifts to the “forward auction” where we will see whether wireless carriers come up with enough money to fund the $86,422,558,704 (plus $1.75 billion for repacking costs, plus auction-related administrative costs) needed for the buyout of TV stations who agreed to surrender their spectrum, radio broadcasters will get some of their own attention as, at the end of the month, the second window for the filing of 250-mile waiver applications opens for Class A and B AM stations. We wrote about these waivers here, which allow an AM licensee to acquire an FM translator and file an application to move it up to 250 miles and operate it on any commercial frequency that does not create interference in their market. That window for Class A and B AM stations opens July 29 and runs through October 31 (and remains open for any other AM that has not already filed one of these waivers in the first window which opened back in January).

In addition to the AM window, there are routine filing deadlines for all TV stations – required to file their FCC Form 398 Children’s Television Reports by the 11th of the month (because the 10th of July is a Sunday) demonstrating the educational and informational programming they broadcast directed to children. By the 10th television stations also need to upload information into their online public files to demonstrate compliance with the limits on commercial time in children’s programs. Continue Reading

FCC Chairman Releases Summary of Media Ownership Reform Proposals – Little Change in Existing Ownership Rules, Reinstatement of JSA Ban

Posted in AM Radio, Assignments and Transfers, FM Radio, Multiple Ownership Rules, Television

FCC Chairman Tom Wheeler this week released a “fact sheet” setting out a summary of the draft order now circulating among the FCC Commissioners for review and possible approval. This order, if adopted, would resolve the Quadrennial Review of the FCC’s ownership rules. As we wrote here, the US Court of Appeals for the Third Circuit recently pushed the FCC to quickly resolve this proceeding. The FCC had punted two years ago when it decided that it could not resolve its 2010 Quadrennial Review of the ownership rules and pushed consideration of most of the issues forward to this Quadrennial Review, preliminarily suggesting that few rule changes were necessary. The Chairman’s fact sheet seems to suggest that, in fact, few are being proposed.

  • With one exception, despite the proliferation of new media outlets that compete for the revenue and audience of over-the-air radio and television, the proposed changes set out in the fact sheet seem to make the ownership rules more restrictive – not less restrictive. In other words, traditional media is not given any significantly greater leeway to combine operations to compete with its digital competitors. The one exception is a very modest proposal to allow case-by-case waivers of the newspaper-broadcast cross-ownership rule (which some commentators, including us, have suggested may outlive the newspaper), but only where it can be shown that there are economically failing media entities looking to combine. The order addresses basic FCC ownership rules as follows: Continue Reading

Quick Reminder – New FCC Online Public Inspection File Goes Live Today – Top 50 Market Radio Stations To Start Transition

Posted in AM Radio, FCC Fines, FM Radio, Television

As we’ve written many times (see, for instance, the articles here and here), today is the day that the FCC’s new online public inspection file goes live.  For TV stations, the system is supposed to be more dependable and user friendly.  For radio, commercial stations in the Top 50 Nielsen radio markets are supposed to go live today with their online files.  As we wrote last week, don’t forget to go to the administration page for your station’s public file and turn it to the “on” position to make it live and accessible to the public.  And once it is live, remember to put a link to the online public file on the main page of your station’s website, so that the public can find it.  The online file is live – remember to keep it up to date as the file will be accessible to anyone, anywhere at any time – and they can check on your compliance with the FCC’s rules (see, for instance, our article here for an example of how that online review can turn up rule violations).

A Question for Readers – What’s Brexit’s Impact on Music Licensing in Europe?

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

Usually, on these pages, I’m trying to give my views on legal issues for media companies. Today, I’ll ask for your views on today’s news – as least as it affects media companies.  We write extensively here about US music rights issues, and we have noted how US media companies with an online presence need to obtain international rights to their content before making it available on their websites, if those sites are not geo-blocked to prevent non-US access (see, for instance our articles here and here.  In Europe, over the last few years, there have been many moves toward trying to establish a pan-European music licensing regime so, if you get licenses in one EU market, you can perform music across all the EU.  Obviously this is important as the fewer negotiations that a digital music service has to engage in, the quicker it can launch its operations.  The New York Times has already started to speculate about Brexit’s impact on the arts community generally.  My question to readers – any theories as to what will happen now to those efforts to seek pan-European licensing?  Look for thoughts here over the next few days.

One Week to the Online Public File Effective Date for Top 50 Market Commercial Radio Stations – Don’t Forget to Turn It On!

Posted in General FCC, Programming Regulations, Public Interest Obligations/Localism

One week to go to the effective date for the online public inspection file for commercial radio stations in the Top 50 radio markets that are part of employment units with 5 or more full-time employees.  Two weeks ago, I conducted a webinar for 19 state broadcast associations on what goes into that file (see our article here), and last week the FCC did their own webinar about how broadcasters make the new cloud-based filing system work (see the archived webinar here).  While the mechanics of uploading documents won’t be too unfamiliar for those who have worked with FCC electronic filing systems in the past, there is one detail that you need to note to make the system work – there is an ON/OFF “switch” on the webpage that stations get when they log into their public file.  It is initially set to the OFF position (and OFF is in red letters).  The switch is next to a sentence that says “W[your call letters here]__ is now ready for keeping public inspection files online.  W___ profile is currently turned [OFF] for public view.”  Before the public can see the documents in your online public file, you need to toggle that switch to ON (where it will turn green) and then your online file is live.  So don’t forget to go there and turn it on for the June 24 effective date.  Once you do, it is also a good time to make sure that the FCC has uploaded all the documents that they are supposed to upload to your file (e.g. applications and most other electronic FCC filings, and a coverage map for the station).

For stations not required to begin their transition by June 24 (and June 24 is just the beginning of the transition even for Top 50 stations, as it just marks the date by which they need to upload new documents into the file – they have 6 months to get all of their old public file documents online), this button also gives them the ability to transition to the online public file early.  Once they upload all their documents (they have until March 1, 2018 to do so), they just flip the switch and they are live – and then they have no more need for the paper file except for letters from the public and old political file documents (post-transition political file documents need to be uploaded – the pre-effective date political documents are kept on paper for two years).  We’ve heard from many smaller stations that they might as well make the transition sooner rather than later, as all the new documents that they are creating (like Quarterly Issues Programs lists, and Annual EEO Public File Reports) will need to get into the online public file sooner or later anyway.  So why not do it now?  Load your documents and flip the switch and kiss the paper file goodbye (that is, once the political documents age out and once the FCC eliminates the need for the letters from the public which they are proposing to do (see our article here).  To watch an archived version of the FCC webinar, you can go here.

FCC EEO Audit List Released – 58 Radio Stations on the List

Posted in AM Radio, EEO Compliance/Diversity, FM Radio

The FCC today released its most recent EEO audit letter for broadcasters – and it is a relatively brief list – just one page with 58 radio stations listed (compare this with the last audit that targeted about 280 radio and TV stations, see our article here).  The FCC’s public notice includes the audit letter that was sent to all of the targeted stations.  Responses are due July 28, 2016. 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. While there are very few Top 50 market stations on the list, those that are listed will need to right away upload the response in their online public file if they file after June 24, the effective date of the online public file for new documents filed by Top 50 market commercial stations that are part of an employment unit with 5 or more full-time employees (see this article for more information on the online public file for radio).

The Commission has pledged to audit 5% of all broadcast stations and cable systems each year to assure their compliance with the Commission’s EEO rules – including the requirements for wide dissemination of information about job openings and non-vacancy specific supplemental efforts to educate a station’s community about job opportunities in the media industry.  We recently summarized FCC EEO issues here, reminding broadcasters of the possibility of being audited.  We also wrote about the start of the obligations for the filing of FCC Form 397 EEO Mid-Term Reports – which started last year for radio groups with more than 11 full-time employees and will extend to TV licensees with 5 or more full-time employees in a few months, and are filed on the 4th anniversary of the filing deadline for the station’s license renewal – which will give the FCC another chance to review station EEO performance.   Continue Reading

It’s Our Anniversary – A Decade of the Broadcast Law Blog

Posted in About this Blog, Appearances, Uncategorized, Website Issues

Yesterday marked the 10th anniversary of my first post welcoming readers to this Blog.  I’d like to thank all of you who read the blog, and the many of you who have had nice words to say about its contents over the years.  In the ten years that the blog has been active, our audience has grown dramatically.  In fact, I’m amazed by all the different groups of readers – broadcasters and employees of digital media companies, attorneys and members of the financial community, journalists, regulators and even students and teachers. The blog was recently profiled on Lexblog Leaders, relaying some of the stories about readers that I have discovered, and I have many more such stories.  Because of all the encouragement that I have received, I’ve keep going, hopefully providing you all with some valuable information along the way.

I want to thank those who have supported me in being able to bring this blog to you.  My old firm, Davis Wright Tremaine LLP helped me get this started (and graciously allowed me to take the blog with me when I moved to my current firm four years ago).  My new firm, Wilkinson Barker Knauer LLP, has also been very supportive, and I particularly want to thanks several attorneys at the firm (especially Rosemary Harold, David O’Connor and Kelly Donohue) who help catch, on short notice, my typos and slips in analysis for articles that I usually get around to finishing shortly before my publishing deadline.  I’ve also published a number of articles written by my colleagues, and I hope that they will continue with their valuable contributions in the future.  Thanks, also, to my friendly competitors at the other law firms that have taken up publishing blogs on communications and media legal issues since I launched mine – you all do a great job with your own take on the issues, and you inspire me to try to keep up with you all.  Continue Reading

Political Candidate Ads Without the Candidate’s Voice or Image – What is a Station to Do?

Posted in Advertising Issues, Political Broadcasting

From time to time, questions come up as to whether it is acceptable for broadcast stations to air ads from a political candidate which do not feature the voice or, for TV, the image, of the candidate.  Ads from Federal candidates should almost never be missing the recognizable voice or image, as there are Federal Election Commission rules that specifically put the requirement on the candidate to appear on the spots in the “Stand By Your Ad” disclaimer (“I’m John Smith and I approved this message”).  But sometimes ads from state or local candidates, in states where the Federal requirements have not been extended to local elections by the state legislature, may be missing the voice or image of the candidate.  What are the implications for stations in airing such ads?

The most important implication is in the potential liability of the station for the content of the political ad.  When an ad is a “use” by a candidate, the station cannot censor its content.  It must be run as it is delivered to the station.  Because a station cannot censor the ad, the station has no liability for the contents of the ad.  So if the candidate defames his or her opponent, or violates copyright law, the station cannot be held liable for the content of the ad.  We have written many times about this “no censorship” rule. As we wrote here, that rule (and virtually all of the political rules but for reasonable access) applies to state and local candidates just as it does to Federal candidates.  Continue Reading

Axl Rose DMCA Takedown Notices Illustrate the Difficulty With Safe Harbor Reforms – User-Generated Content and Fair Use Issues

Posted in Intellectual Property, Music Rights, Website Issues

In recent days, the press has been full of stories about Axl Rose from the band Guns N’ Roses sending take-down notices to websites, including Google affiliated sites, that feature a picture taken of him from one of his concerts making him look to be overweight (see, e.g. stories available here, here and here). The photos are often accompanied by captions, reinterpreting Guns N’ Roses songs by modifying the lyrics to include references to food or overeating or otherwise making light of the picture. The take down notice is premised on Rose’s alleged ownership of the underlying photo. According to the press reports, Rose requires all professional photographers taking photos at his concerts to sign releases, giving Rose ownership of all copyrights in the images taken. The legal issues raised by the take down notice are many – including reflecting on the recent calls for reform of the “safe harbor” provisions of the Digital Millennium Copyright Act for user-generated content much in the news lately, particularly with respect to YouTube videos including music (see our article here). No doubt, however, the first issue that will be considered in answering these take down notices is whether the images and associated commentary constitute “fair use.”

The DMCA has adopted a “safe harbor” for “internet service providers” including website owners who host user-generated content – content that is posted not by the site owner and its employees, but instead by users of the site (see our article here). As the hosts of these sites do not control what is being posted, Congress in adopting the DMCA, thought that it was important that the site owners not be liable if users post content that could potentially infringe on some third party’s intellectual property rights. However, the site owner must take certain steps to minimize the posting of infringing content – including making clear in its descriptions of the proper use of the site that users need to respect intellectual property rights, and providing both on the site and in a registration form filed with the Copyright Office the name and contact information for a person who copyright holders should contact if they believe that infringing content has been posted on the site (the Copyright Office is proposing changes to that form, see our article here). Copyright holders can then notify these identified individuals of the perceived infringement by sending what are commonly referred to as “take down notices.” Certain formalities need to be followed in sending these notices are provided under the provisions of the DMCA, including a specific identification of the infringing content, and a good faith belief that the content is in fact infringing. In connection with any take down notice and the decision of the site owner as to whether to honor that request, the question of fair use must be evaluated. Continue Reading