Broadcast Law Blog

Broadcast Law Blog

Commissioner Pai Proposes Looking at Class C4 FM Stations – Good for Broadcasters?

Posted in FM Radio, FM Translators and LPFM

At last week’s Radio Show, Commissioner Pai presented remarks, talking about the pending regulatory ideas that can help radio broadcasters. After discussing the benefits of the recent rule changes that have made translators available for AM stations, and other AM improvement proposals that are on the table, he turned to FM. In his discussion of FM, he applauded efforts to include an activated FM chip in mobile phones. Then, he turned to a proposal first put out for FCC comments two years ago – the idea that the FCC look at the potential of the creation of a new class of FM stations – the Class C4 FM radio station.

A Class C4 station would fit between Class A FM stations (limited to 6 kw ERP at 100 meters antenna height above average terrain) and a Class C3 (25 kw at 100 meters). The Class C4 station would be authorized with a power of up to 12 kw ERP. According to the Commissioner’s speech, this would allow for Class A stations to upgrade their facilities to better serve their communities. We wrote about this proposal when it was first released (here), presenting more details about the technical facilities that are involved in this proposal. While some broadcasters did initially support the proposal, others were less enthusiastic about the idea. Why are there issues with this proposal? Continue Reading

Reminders: Nationwide EAS Test and Reg Fees Filing Deadline This Week!

Posted in AM Radio, Emergency Communications, FCC Fees, FM Radio, General FCC, Television

Tomorrow, September 27, is the deadline for commercial broadcasters to submit their annual regulatory fees. We wrote about those fees and this deadline here and here. Don’t forget to get them in by the deadline, as the failure to file on time will result in processing holds on any subsequent application that your station may file, plus penalties and a possible collection action from the FCC.

Also this week is the second Nationwide EAS Test, to be conducted Wednesday, September 28. Stations should have already signed up in the FCC’s ETRS system so as to be able to report on the success or failure of this test (see our post here) and also programmed their EAS receivers to recognize Nationwide EAS event code – see our post here. Form Two in ETRS, reporting on the results of the EAS test at your station, is due on September 28, the day after the test (see the FCC notice here). So be sure that you are signed up and ready to report after Wednesday’s Nationwide EAS test. A busy week for broadcasters all around – don’t overlook these deadlines!

Legal Issues for Digital Audio Companies – A Presentation

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

This week, I was given 15 minutes at the RAIN (Radio and Internet Newsletter) Summit in Nashville to summarize all of the legal issues that are important to digital audio companies including webcasters and podcasters.  While getting everything into a presentation that short entailed some speed talking and the briefest description of many very complicated issues, I hope that I was able to at least outline issues about which companies should be cognizant.  For folks who weren’t at RAIN, or even those who were and couldn’t keep up with the speed of the slides flashing across the screen in the conference ballroom, a copy of those slides is available here.

The presentation addressed not only music royalty issues covered in my Texas Broadcasters’ presentation last month – issues certainly important to digital media companies – but it also at least touched on numerous other issues that we have written about here from time to time, from privacy and TCPA issues, to trademarks and FTC digital sponsorship and endorsement guidelines.  Lots of issues were covered in a short time – so feel free to take a quick look at the slides for highlights of those concerns and watch for more thorough discussion of these issues as we cover them from time to time on these pages.

Trademark Basics for Media Companies, Part One: What Trademarks Are and Why They Matter

Posted in Intellectual Property, Trademark

In today’s digital economy, trademarks are often the most valuable assets that a business owns.  For example, in 2015, Google’s trademark portfolio was estimated to be worth $76 billion, which constituted almost one third of the entire value of the company.  Microsoft clocked in at $67 billion, with Verizon close behind at almost $60 billion.  While you may not hit 11-digit figures like these intellectual property behemoths, a smart trademark strategy can put you on the right course.  This blog is the first of a five-part series that will help you understand trademarks and how they function, so that you can maximize the value of your own trademark portfolio.  We’ll run the other four articles on the next four Tuesdays (“Trademark Tuesday”) and plan to offer a free webinar covering trademark basics at the end.  So keep reading!

So, what is a trademark?  A trademark identifies products or services as coming from a particular source.  Although a trademark is usually a word, a phrase or a design, it can also consist of or incorporate features such as color, smell, taste, shape (product configuration), touch, motion and sound.  But not all trademarks are created equal.  A strong mark can preclude the use by others of somewhat similar marks for goods and services that may not be directly competitive.  In contrast, a weak mark may only be entitled to protection against the use of an identical mark for the same goods and services.  How do select a trademark that will most effectively help you build your brand? Continue Reading

FCC’s Decision on the Quadrennial Review of the Multiple Ownership Rules – Part 1 – Radio Issues

Posted in AM Radio, FM Radio, Multiple Ownership Rules

The FCC’s Order released at the end of August deciding the issues in its Quadrennial Review of its ownership rules is over 100 pages long. The full document, with the dissents from the Republican Commissioners, required regulatory impact statements and similar routine attachments totals 199 pages. The Order addresses many issues. For TV, it declines to change the local ownership rules, readopts the decision to make Joint Sales Agreements into attributable interests (thus effectively banning them in many markets, though making some tweaks to the grandfathering of existing JSAs), and adopts new rules for reporting shared services agreements. The Order retains the newspaper-broadcast and radio-television cross-ownership rules. It takes limited new steps to encourage minority ownership (principally re-adopting the rule that allowed small businesses to acquire and extend expiring construction permits for new stations and to buy certain distressed properties, see our article about that old rule here), but does not adopt any racial or gender preferences for broadcast ownership. It also ends consideration of using TV channels 5 and 6 for the migration of AM radio and other new audio services including those targeted to new entrants into broadcast ownership (see one of our articles about that proposal here). And it rejects most proposals to change the radio ownership rules. Today, with the NAB Radio Show just two days away, we will look closer at the radio rules, and will cover many of these other aspects of the decision in coming days.

Perhaps the biggest “ask” for changes in the rules came from numerous radio groups that requested changes in the “subcaps” that apply to radio ownership. For instance, in the largest radio markets, one owner can hold up to 8 stations, but only 5 can be in any one service (AM or FM). Some parties had hoped to be able to own more FM stations in a market, particularly given the growing levels of competition in the audio marketplace from satellite and online radio. Some AM owners looked to hold more than the current maximum number of AMs in a market as a way to provide economies of scale that might help to preserve and strengthen the struggling AM radio industry. The Commission rejected such changes. Continue Reading

BMI Judge Rejects DOJ Conclusion that Consent Decree Requires 100% of Songs – What Does that Mean for Music Services?

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

On Friday, the US District Court judge who oversees the administration of the BMI Consent Decree rejected the recent Department of Justice interpretation that the antitrust consent decree required that, when BMI licensed music to music users, that license would embody the full musical work, not just a fractional interest that might be held by the songwriter who was the BMI member. DOJ’s decision stemmed from its review of the ASCAP and BMI antitrust consent decrees, which was initiated by ASCAP and BMI.  While ASCAP and BMI initiated the review looking for certain relief from provisions of the Consent Decrees that govern their operations (see our summary of the initial proposals here), in its decision, which we wrote about here, the DOJ decided that the only clarification of the consent decree that it would put forward was one that required 100% licensing by ASCAP and BMI.  100% licensing means that, if a song was licensed as part of the repertoire of ASCAP or BMI, the licensee would get rights to all of that song, even if there were multiple songwriters some of whom were not affiliated with ASCAP or BMI.  This interpretation was rejected by Judge Stanton, the Judge who oversees the BMI consent decree.  His decision can be found on the BMI website, here.

The Judge’s decision seems to be premised not on the policies and practicalities of licensing by ASCAP and BMI, but instead simply from an interpretation of the language of the BMI consent decree itself.  Moreover, the decision itself does not necessarily conclude that songs to which BMI holds less than a full right will necessarily be excluded from the BMI repertoire, only finding that “[i]f a fractionally-licensed composition is disqualified from inclusion in BMI’ s repertory, it is not for violation of any provision of the Consent Decree.”  The decision basically says that the rights conveyed by the BMI licenses to the songs in its catalog, and even the validity of the rights to even license any song in its repertoire, are not consent decree decisions, but instead decisions that are left to be determined in civil proceedings interpreting property and contract rights.  Seemingly, the Judge’s decision ends up raising more questions than it answers.  Continue Reading

Pandora and Amazon Negotiating Agreements with Record Labels – Why They Don’t Just Rely on the CRB Rates?

Posted in Intellectual Property, Internet Radio, Music Rights

The press has been full of reports over the last few weeks about Pandora and Amazon negotiating deals with record labels over music royalties, and some observers have expressed confusion – why don’t these services just rely on the rates set by the Copyright Royalty Board at the end of last year? The answer, as we have written many times before (see e.g. our articles here and here) is that the CRB rates apply only to noninteractive webcasters (companies that provide radio-like services where the listener cannot designate what song he or she will hear next). The services that rely on the CRB rates (which we summarized here and here) must abide by specific rules, including something called the “performance complement” which limits how frequently the service can play a particular artist or a particular song. Even the number of times that a listener can skip a song has been set by caselaw and industry practice (see our article here) – the fear being that if you allow unlimited skips the service becomes more like an interactive one.

So a service that wants to provide listeners with the ability to set up their own playlists or to choose to play songs on demand cannot rely on the license available through the CRB decision (the so-called “statutory license” – so named as the license and the CRB rate-setting process were created by a statute passed by Congress). Similarly, services relying on the statutory license cannot cooperate to allow copying of the songs that they play – so even setting up a service to allow the temporary caching of an Internet radio service so that listeners can hear it when they are offline, most likely cannot be done by simply paying the CRB-established rates. So what do music services that want to provide more functionality do? Continue Reading

Eliminating the UHF Discount and Limiting the National Ownership Reach of Television Groups Without Reviewing the Media Marketplace

Posted in Digital Television, Multiple Ownership Rules, Television

Last week, the FCC released its order eliminating the UHF discount. Under this discount, a TV broadcaster, in determining its compliance with the national ownership limit prohibiting any owner from having attributable interests in stations serving more than 39% of the nationwide television audience, would include in its count only one-half of the audience of any market served by a UHF station. This discount originated in the analog world, when UHF stations tended to have smaller audiences as their signals were harder to receive, and yet their operational costs were higher. Three years ago, the FCC proposed to eliminate the discount, as the technical inferiority of UHF stations no longer exists in the digital world (see our post here describing the FCC’s proposed action). This decision, reached in a 3 to 2 vote of the Commissioners, will put several broadcast groups over the national cap, while others will come close to it, limiting their ability to expand into new markets. Did the video distribution marketplace demand this action?

In fact, the Commission’s majority decision really did not examine in any detail the public interest factors justifying this action. Instead, the FCC focused almost totally on the fact that, in the digital world, UHF stations were no longer technically inferior. That was essentially stipulated by all parties, and the Commission viewed the decision as simply being one that was necessary to keep up with technology – as UHF stations were no longer inferior to VHF stations, there was no reason to give owners of these stations a discount in computing compliance with the national ownership limits. The Commission also pointed to the fact that, in the days before the digital transition, it had warned TV broadcasters that an end to the UHF discount was coming. But changes in the media marketplace in the 15 years since many of these statements were made, with the rise of multichannel video program providers and over-the-top television services like Netflix that were not even imagined 15 years ago, are given only a passing reference, as pointed out by the dissenting Republican commissioners. Continue Reading

September Regulatory Dates for Broadcasters: EAS Test, Reg Fees, Lowest Unit Rates, Incentive Auction Stage 2

Posted in AM Radio, Broadcast Auctions, Emergency Communications, FCC Fees, FM Radio, General FCC, Incentive Auctions/Broadband Report, Noncommercial Broadcasting, Political Broadcasting, Television

September is one of those unusual months, where there are no regular filing dates for EEO public inspection file reports, quarterly issues programs lists or children’s television reports.  With the unusual start to the month with Labor Day being so late, and the lack of routine deadlines, we didn’t get our usual monthly highlights of upcoming regulatory dates posted as the month began.  While we didn’t do it early, we actually have not missed the many regulatory deadlines and important dates about which broadcasters need to take note this month.

Several are of particular importance for virtually all broadcasters.  As we wrote here and here, Annual Regulatory Fees for all commercial broadcasters are due by September 27.  Any commercial broadcaster that cumulatively owes more than $500 must file its fees by that date – and the fee filing system is already open.  Note that most noncommercial entities are excused from fee filings. Continue Reading

September FCC Meeting To Be a Big One for Media Companies – Set Top Boxes, Foreign Ownership of Broadcast Stations and Promotion of Independent Programming

Posted in Cable Carriage, General FCC, Intellectual Property, Internet Video, Multiple Ownership Rules, On Line Media, Programming Regulations, Television

September 29 will be a big day for broadcasters and other media companies when the FCC holds its next open meeting. In the tentative agenda for that meeting released on Thursday, the FCC identified several issues that deal with the media including two big items on video issues – the decision as to what to do about the Commission’s proposals to open the cable set top box to competing systems, and a new proposal designed to promote sources of independent programming for video distributors. In addition to these two items, the FCC also says that it will resolve the proposals to make the FCC’s foreign ownership rules for broadcasting more like those applicable to non-broadcast companies, easing some of the procedural restrictions that made it difficult for non-US investors to become owners of US broadcast stations.

The set top box debate is perhaps the debate that has garnered the most publicity, with the Commission proposing to allow more companies to offer a means to access cable and satellite TV programming – perhaps enabling the use of new apps to access and inventory that programming. Content owners and program distributors have worried about security issues with opening programming to access on a myriad of devices, and have also been concerned that the loosening of these restrictions could interfere with contractual rights limiting access to certain programs to certain devices and distribution channels. The FCC Chairman yesterday released this fact sheet about the proposal setting out some specifics of the proposal that will seemingly be voted on at the late September meeting, and the Chairman published this op-ed article in the LA Times explaining what he is trying to do. The matter is sure to remain controversial right through the late-September meeting, and perhaps after the decision as well. Continue Reading