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

In a ruling released last week, a US District Court Judge issued a ruling finding that a download of a recorded musical work does not give rise to a "public performance" requiring a payment to ASCAP, BMI or SESAC.  If this decision is upheld on appeal, it could mean that one less fee would have to be paid in connection with on-demand downloads - which would also affect podcasts and video downloads made available by broadcasters on their websites.  However, there are many issues that must be understood about this ruling, so broadcasters should not impetuously rush to provide downloads and podcasts without first securing the bundle of rights necessary for such performances.

First, it is important to understand the issue that was presented in this case.  The case did not involve streaming of programming - so it has no effect on Internet radio royalties.  It involves only downloads - where a copy of a specific work is downloaded to a single consumer's computer at the request of that consumer.  This is what happens when a consumer buys a song from iTunes, or downloads a podcast made available by a broadcaster.  There is no question that, to provide such a download or podcast containing music, a service needs to get permission from the copyright holder in the "sound recording," the song as recorded by a particular artist.  This is typically received from the record company which holds the copyright.  In addition, there is a requirement that the rights to the composition must be obtained for purposes of the making of the making of a "reproduction" and a "distribution" of the underlying composition.  This is typically obtained from the publishing company or a clearinghouse such as the Harry Fox agency.  A service that provides downlaods of music can alternatively pay a statutory royalty for the composition, though that requires following a somewhat cumbersome process of filings set out by the Copyright Office and requiring specific notice to the copyright holder in the publication.

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At it's meeting on Thursday, the FCC announced that it is commencing a proceeding that would require cable systems to adopt measures to insure that over-the-air television stations would continue to be available even to analog cable subscribers after the end of the digital television subscribers.  This might include some sort of dual carriage requirement that a cable system carry both an analog and a digital feed of a television station's signal (which the FCC had rejected for pre-transition cable carriage), or that the system provide a converter box to the analog subscriber.  While the FCC has not released the full text of its Notice of Proposed Rulemaking setting out the details of the issues that it raises, a Public Notice about the proposal can be found here.  A summary of the issues is also available in our firm's bulletin, here.

Watch for more on this proceeding once the full text of the Notice of Proposed Rulemaking is released.

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On Thursday, the FCC issued its Report on violent programming on television, finding that such programming has a negative impact on the well being of children, and suggesting that Congressional action to restrict and regulate such programming would be appropriate.  A summary of the findings of the Commission can be found in our firm's bulletin on the Report, here.  As we point out in our bulletin, the Commission did not adopt this report with a united voice, as both Commissioner Adelstein and McDowell expressed concerns about the thoroughness of the report, the practicality and constitutionality of drawing lines between permitted and prohibited violence in programming, and even whether the government is the proper forum for restricting access to such programming or whether this isn't fundamentally an issue of family and parental control. 

The Report suggests that legislative action to restrict violent programming  or to channel it to certain time periods might be appropriate as parents are often not home when children watch television, and technological controls, like the V-Chip, are ineffective as parents don't know that they exist or, if they are aware of the existence of the controls, they don't know how to activate them.  The Commission also suggests that the ratings given to programs are not always accurate.  An interesting alternate take can be found in an article in Slate, here, citing a study not mentioned by the FCC finding that parents, even when carefully educated about the V-Chip and its uses, do not use it.  This seems to indicate that parents are not as concerned about the issue as is the FCC, and suggests that the real motivation is not restricting what is presented to children, but instead what is available to adults.

 

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The Internet Radio Equality Act was introduced in the House of Representatives today, proposing several actions - most significantly the nullification of the decision of the Copyright Royalty Board raising royalty rates for the use of sound recordings by Internet radio stations.  Our summary of the decision and its aftermath can be found here.  In addition to nullifying the decision of the Board, the Act does the following:

1. Changes the "willing buyer, willing seller" standard used to determine royalty rates for Internet radio to the "801(b)" standard - named after section 801(b) of the Copyright Act, which considers a variety of factors in determining royalties - factors including possible disruption to the industry of royalties, the maximization of the distribution of the copyrighted work to the public, the relative value of the contributions of the copyright holder and the service, and the determination of a fair rate of return to the copyright holder.  The 801(b) standard is the used for determining rates for satellite radio and digital cable radio.
2. Establishes an interim royalty rate for 2006-2010 of  (at the choice of the webcaster) either .33 cents per Aggregate Tuning Hour of listening or 7.5% of the service's revenues directly related to Internet radio
3. For noncommercial radio, places the royalty determination into Section 118 of the Copyright Act, which is where other noncommercial royalties (including the royalty for ASCAP and BMI for over-the-air use of musical compositions) are found, using the standards set forth in that section; and
4. Establishes a royalty for 2006-2010 for noncommercial entites at 150% of the fee that the service paid for the sound recording royalty during 2004.
5. Requires three studies to be conducted after the initiation of the next royalty proceeding, that will be submitted to the Copyright Royalty Board for their consideration in that case.  One study, by the National Telecommunications and Information Administration ("NTIA"), would study the economic impact of royalties on the competitiveness of the Internet radio marketplace.  A second, to be conducted by the FCC, would study the impact of royalties on local programming, diversity of programming (including foreign language programming), and the competitive barriers to entry into the Internet radio market.  A final study, by the Corporation for Public Broadcasting, would provide information to the CRB on the impact of the royalties on public radio operators. 

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At this evening's much-delayed Open Commission Meeting, the FCC acted unanimously to adopt a Notice of Proposed Rule Making (NPRM) proposing procedures and rule changes to complete the transition to digital television.  The NPRM will address a number of the final details regarding how stations will complete the DTV transition.  Although the text of the NPRM has not yet been released, based on the summary provided at the open meeting and in the related News Release, it appears that the Rule Making will include the following proposals:

• By December 1, 2007, require stations to file a new form with the FCC detailing the status of the station's DTV buildout, the additional steps the station needs to take to complete the transition, and its plan for achieving completion.
• Limit the grant of future extensions of time to construct digital facilities, and potentially eliminate equipment delays as a basis for an extension, as well as make the standard for a financial hardship waiver much higher.
• Offer expedited processing to stations applying for a construction permit for their post-transition channel based on the new DTV Table of Allotments.
• Examine the circumstances in which stations may reduce or terminate analog service to facilitate construction of post-transition facilities.
• Set February 17, 2009 as the date by which stations returning to their analog channels must complete their digital transition.
• Set the next extension granted by the Commission as the final date by which stations remaining on their allotted DTV channel must complete their DTV build out. 

The NPRM will also contain details on procedures for the filing, processing, and grant of applications to get stations to their final DTV facilities on their elected digital channels.  A copy of the FCC's News Release issued tonight is available here, but contains few details.  Further information, as well as the opportunity to comment on the FCC's proposed rules will be forthcoming with the release of the text of the NPRM.  Once the text is released, we will be sure to provide complete details, as this information will be critical to full power television stations who have yet to complete their DTV build outs. 

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As we've discussed before, here, the FCC has been reviewing their power to regulate violent programming on broadcast stations.  Despite the apparent constitutional and practical issues involved in such restrictions (e.g. are Roadrunner cartoons covered?), published reports indicate that a majority of the FCC Commissioners will issue a report asking Congress to give the FCC authority to regulate violent programming.  The Washington Post today published a story stating that the FCC will this week release its report and ask Congress for the authority to regulate not only broadcast stations, but also basic cable programming.  In the indecency area, the Courts have stepped in to prevent the FCC from regulating cable, given its subscription nature and its ability to block specific channels of programming upon request of a subscriber.  If the FCC does in fact ask for the ability to regulate basic cable, this will break new ground, and will surely end up in court.

 At a legal panel in Las Vegas, held in connection with the National Association of Broadcasters Convention, panelists speculated that the Chairman of the Commission and Commissioner Copps favor the report - while Commissioners Adelstein and McDowell are more concerned about the constitutional implications of this action - making for coalitions on this issue different from those that usually are in place on most FCC decisions relating to broadcasting.

This report, which many had expected to be released prior to the NAB Convention, will no doubt provoke heated arguments in Congress, the Courts and at the FCC.  It's one more programming issue in a year where proposing new programming restrictions seems to have become the rage.

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The Copyright Office last week released a wide-ranging Notice of Inquiry, asking many questions about the statutory licenses that allow cable and satellite companies to retransmit broadcast television signals without getting the specific approval of all the copyright holders who provide programming to the television stations. The notice was released so that the Copyright Office can prepare a report to Congress, due June of 2008, in which it will present its views as to whether the various statutory licenses still perform a necessary function, and whether any reforms of the current licenses are necessary. To complete its report, the Notice asks many questions about how these licenses currently work, whether the licenses function efficiently, and whether they should be retained, modified or abolished in favor of marketplace negotiations. The Notice even asks whether the existing statutory licenses should be expanded to take into account the different ways video programming is now delivered to the consumer, including various Internet and mobile delivery systems. Thus, virtually anyone involved in the video programming world may want to be part of this proceeding. Comments are due July 2 and reply comments are due September 13.

The cable and satellite statutory licenses were adopted by Congress to allow these multi-channel video systems to retransmit broadcast  signals. Without these licenses, the individual owners of copyrighted material – including syndicated,  network, sports, and music programming -- would have to be consulted to secure necessary copyright approval before the television signal could be retransmitted. As the multi-channel video providers would, in many cases, not even know who held all these rights, they instead pay a statutory license which is collected, pooled, and then distributed to the various rights holders in proportions agreed to by those copyright holders or, in the absence of agreement, set by the Copyright Royalty Board.

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The FCC's agenda for its meeting to be held on Wednesday, April 25, contains four separate items related to the digital television transition.  The issue receiving the most press coverage is the proposal advanced by Chairman Martin that would require the cable carriage of television signals in both analog and digital formats until all cable subscribers have been transitioned to a digital cable format.  As the item addressing this issue is a Notice of Proposed Rulemaking, no final rules will be adopted this week.  Instead, this will be an issue on which parties can comment, and will likely take the FCC quite some time to resolve.  The agenda contains other items that may ultimately be just as important.

For consumers, the Commission will consider new rules on the labeling of television equipment - presumably to warn consumers that they may be buying a piece of analog television equipment that may not work after the February 2009 digital conversion.  Another item will address other technical issues in the digital transition.  The final item is not coming from the Media Bureau which usually considers broadcast matters, but instead from the FCC's Wireless Bureau, which regulates the spectrum at Channel 52 and above (the so-called 700 MHz spectrum) which will be fully reclaimed from broadcasters for wireless services after the end of the digital television transition. The item will consider a number of issues on how operators in that spectrum will be able to operate as they come online.  As there are already uses of that spectrum to provide media services, e.g. QualComm's Media Flo technology about which we wrote here, and other wireless broadband uses are planned, broadcasters should monitor the developments that arise in this area as they may well affect the competitive environment in the years to come.

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Last week, the FCC issued a Public Notice asking for information as to the compliance of television broadcasters with their obligations to provide programming that addresses the educational and informational needs of children.  While the Notice indicates that it is a follow-up to the 2004 Order addressing the children's broadcasting obligations of digital television broadcasters, the notice also refers to the $24 million settlement with Univision to resolve allegations that it had misclassified entertainment programming as being educational programming addressed to children.  The Commission asks questions in its notice as to whether television broadcasters are complying with the rules, and whether the rules provide sufficient guidance to broadcasters as to what kind of programming satisfies the rules for educational broadcasting.

We wrote about the Univision settlement agreement, here.  It is interesting that the FCC, after issuing the largest broadcast fine in history to Univision, apparently rejecting the arguments that Univision made that its programming was in compliance, now asks whether the rules provide enough guidance for broadcasters to know whether or not particular programs comply.  As we've written before in many contexts, whenever the government gets into issues of defining when speech is acceptable or not, guidelines and limits are difficult or impossible to establish.  Nevertheless, the Commission is now asking that parties help to clarify the definition of educational programming directed to children.  Comments are due 30 days after publication of this Notice in the Federal Register, and reply comments are due 15 days later.

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On Friday, the FCC issued a Notice of Proposed Rulemaking to establish the fees and collection procedures for the 2007 regulatory fees - the amount that entities regulated by the FCC pay for the privilege of being regulated.  These fees reimburse the US Treasury for the cost of the regulation.  While no one likes to pay these fees, the total amount to be collected by the FCC is actually slightly less than last year, meaning that the proposed regulatory fees for broadcasters are not proposed to increase from the fees paid last year. The proposed fees for broadcasters for 2007, and the fees that were paid in 2006, are found in the attachment to the FCC's Notice.  Fees will be paid at a date to be established later, sometime in August or September.

For radio stations, the fees are based on the Class of station, and the population served by that station.  These fees range from $400 for a Class C AM station serving less than 25,000 people, to $9125 for a Class B or C2 or higher FM station serving over 3,000,000 people.  For AM stations, population is computed based on the 5 mv/m service area.  For FM stations, it is based on the 70 dbu contour.

TV stations will pay between $64,300 for a VHF station in the Top 10 markets, to $1750 for UHF stations in markets below 100.  LPTV stations and TV translators will pay $450.  For each broadcast auxiliary license, a broadcaster will pay $10.

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As we wrote earlier this week, the Copyright Royalty Board denied motions for rehearing of its decision raising royalty rates for the use of sound recordings by Internet Radio stations.  The full text of that decision has now been posted on the Copyright Royalty Board's website, here.  Our summary of this order can be found here.  We have also posted a more detailed summary of the Royalty decision on our law firm website, here.

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The Copyright Royalty Board today denied the Motions for Rehearing of their decision raising the royalty rate for the use of sound recordings on Internet radio stations for 2006-2010.  The Board found that the Rehearing requests did not demonstrate that there was any manifest error in the initial decision, and did not introduce any new evidence that could not have been introduced in the original hearings.  Finding that these standards for rehearing were not met, the motions were all denied.  The Board decision was brief, not addressing in any specifics the issues raised in the rehearing motions. 

The Board did, however, decide to issue two clarifications to its decision.  It decided that, for administrative convenience, they would permit royalties for a transition period to be paid on an aggregate tuning hour basis for 2006 and 2007.  For 2006, the ATH rate would be $.0123 per hour for Internet-only webcasters, $.0092 per hour for broadcasters who stream their over-the-air music programming, and $.0011 for broadcast stations which use only incidental music (e.g. news/talk and sports stations).  For 2007, those rates would rise to $.0169 for Internet-only webcasters, $.0127 for the simulcast of a terrestrial broadcast station's signal for a music station, and $.0014 for the simulcast of a talk radio station.  These numbers appear to assume 11.5 songs per hour for broadcasters, and 15.4 songs per hour for Internet-only stations.

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The FCC has announced the details of the fourth installment of its ongoing Multiple Ownership Road Show, as it brings its traveling hearings to Tampa-St. Petersburg, Florida on Monday, April 30, 2007.  The hearing will be held at the Tampa Bay Performing Arts Center, and will be a marathon seven hours, lasting from 4PM until 11PM at night.  The Florida hearing will be the latest scheduled stop on the Commission's national tour to hear what the public has to say about media consolidation.  Our previous observations on the Commission's ongoing multiple ownership rule making proceeding can be found here, and a copy of the Public Notice announcing the details for Tampa can be found here.

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The FCC today issued a Public Notice announcing that it has approved four consent decrees settling its investigation into possible payola violations by several large radio broadcasters.  A copy of the public notice summarizing the action is available here, and copies of the full consent decrees can be found on www.fcc.gov.   

CBS Radio, Citadel Broadcasting Corporation, Clear Channel Communications, Inc. and Entercom Communications Corp. each entered into a consent decree with the Commission to end the FCC's investigation into possible violations of the payola rules for failing to provide the required sponsorship identification related to material broadcast on the stations.  In addition to making a combined contribution of $12.5 million to the U.S. Treasury, the broadcasters agreed to implement certain business reforms and compliance measures, such as:

• Prohibiting stations and employees from exchanging airtime for cash or items of value except under certain circumstances;
• Placing limits on gifts, concert tickets, and other valuable items from record labels to company stations or employees;
• Appointing compliance officers who will be responsible for monitoring and reporting company performance under the consent decrees; and
• Providing regular training to programming personnel on payola restrictions.

The consent decrees contain a fair amount of detail regarding the documentation and monitoring that will be required by these stations under these agreements, as well as new details regarding the interaction between radio stations and record promoters.  We are preparing a full summary of the consent decrees, along with an analysis of the impact these orders may have on broadcast radio, so check back early next week. 

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The FCC has just released a Public Notice providing guidance on various situations that may arise under the new simplified processing rules for changes in the city of license of AM and FM stations. These clarifications had been promised for many months, ever since the new rules became effective in mid-January.  The Public Notice sets out a number of scenarios as to when a broadcast station may change its channel or make a change in a city of license by using a Form 301 application, be processed on a first-come, first serve basis, not subject to competing applications, and when a more lengthy process must be used, requiring public notice and comment and the opportunity for counterproposals, before the change can be made. 

For those who have been involved in the filing of these applications since the January 19 effective date of the rules, and who have informally discussed these processes with the FCC, there are few if any major revelations in the Public Notice.  Essentially, city of license changes can be made on an application where the proposal moves a station from one city to another, when no new station could be located at the second city because of the licensed facilities of the station.  One clarification that had been discussed with the staff in preparation for applications already on file, and confirmed by this notice, is the fact that the new rules allow the change of channel of an existing station, at its current city of license, to a nonadjacent channel (one which is not precluded by the current station operation), using a Form 301 application, as long as there is no upgrade in facilities of the station.  Thus, a station could move from 92.1 to 105.3 (if it works under the FCC's technical standards), without any sort of notice and comment or competing proposal.  In some cases, the station could use this process to change channels, then file an upgrade application on the new channel, and complete a non-adjacent channel upgrade through a two step process never subject to formal comment or counterproposals. 

Even for those without applications currently pending, this public notice is worth reading, as it may give the broadcaster ideas of possible changes that can be made to improve the facilities of its stations.

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We have written much on the Copyright Royalty Board decision on Internet Radio Royalties, and have received many questions and comments on the decision.  To try to put all of the answers in one place, we have put together a comprehensive memo on the decision.  The entire memo can be found here. 

In the memo, we provide a background of the case, a summary of the decision, a discussion of what comes next, and answers to some commonly asked questions.  Those questions follow here, but for a full understanding of the case, we urge you to read the complete memo. 

 To whom does the decision apply? The Board’s decision covers only non-interactive webcasters operating pursuant to the statutory license. Essentially, a webcaster covered by this decision is one that operates like a radio station – where no listener can dictate which artists or songs he or she will hear (some limited degree of consumer influence is permitted, but a webcaster must comply with the restrictions set out in the Copyright statute). These restrictions forbid prior notification to the listeners of when any specific song will play, and restrict the number of songs by a specific artist that can be played. For more information on these restrictions, see our memo on Internet Radio – The Basics of Music Royalty Obligations.


Does the decision cover broadcasters who stream on the Internet? Yes, the decision does cover the Internet transmissions of the over-the-air content of broadcast stations.

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The Presidential election in 2008 seemingly has a record number of candidates who will apparently have a record amount of money to spend on political advertising.  One would think that broadcasters would be celebrating their likely share of this spending.  While broadcasters will no doubt be the recipients of much political spending, the timing of this election's early primaries may also present problems - as political advertising will be running during the broadcasters' busiest advertising season - the period between Thanksgiving and Christmas.  Many of the largest states are now planning a primary in early February, meaning that the lowest unit rate window for political advertising, which begins 45 days before a primary or caucus, will become effective the weekend before Christmas.  And for those states with earlier contests (Iowa, New Hampshire, Nevada and South Carolina), the lowest unit rate period will be in effect for much of December.

Of potentially more concern will be the fact that candidates will be entitled to reasonable access to the airwaves even before the lowest unit rate periods begin.  Under FCC rules and policies, once a candidate is legally qualified to be on a ballot in a state (or for President, once he or she is qualified in ten states, the candidate is qualified in every state), the candidate is entitled to reasonable access to all "classes and dayparts" of advertising time offered by a station.  While the determination of how much time is reasonable is in the discretion of a station, that discretion is not absolute.  Stations must provide at least some time in all dayparts to all qualified candidates for President who request such time, so this may put a strain on commercial inventory in the pre-Christmas period in many states with hotly contested Presidential primaries or caucuses.

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Today's Los Angeles Times contains an article about FCC Chairman Kevin Martin's policy of holding a series of open hearings on possible changes to the FCC's multiple ownership rules.  The article contrasts this policy to that of previous Chairman Michael Powell, who held only one hearing and was criticized by many "public interest" groups for a lack of openness in the proceeding when the 2003 ownership proceeding loosened the ownership rules in several respects.  The article notes that times have changed in many respects - that many companies previously interested in a relaxation of the rules now no longer care - citing divestitures of Disney/ABC and CBS of broadcast holdings in recent months.  Of course, the Tribune Company may still have newspaper-broadcast cross ownership issues that need to be resolved (particularly as grandfathering issues may well come to the forefront as the company seeks FCC approval for its planned transfer of control), and other newspaper companies have similar interests.  The article does not mention the other area where many broadcasters are still very interested in regulatory relief - the extension of TV duopoly into smaller markets where the economics of TV station operation, and the increased costs of the digital conversion, have caused many to desire a relaxation of the prohibitions against owning more than one TV station in these markets.

The other issue not addressed by the article is the timing of any decision on the ownership rules.  While the Commission has committed to the public hearings, they are supposed to continue for the remainder of 2007, thus putting any decision off until 2008.  And will the FCC want to risk a possibly controversial decision in a Presidential election year?  We think not - so a decision postponed until after the election may well be one decided by a different Commission. 

 

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Last Monday, briefs were filed by the parties addressing the motions seeking rehearing of the Copyright Royalty Board's decision to dramatically raise the royalty rates paid for the use of a sound recording on an Internet radio station.  In its briefs opposing each of the webcasters' rehearing motions, SoundExchange took a very aggressive position challenging the very right of the webcasters to raise their rehearing points.  Following the filing, SoundExchange issued another press release, quoting its President John Simson, "just because you don' like the outcome of a fairly played game doesn't mean that you should ask the referee to order the game to be replayed."  In fact, what the webcasters are really doing is asking for an instant replay review of an alleged winning touchdown.  Webcasters are arguing that the "officials" were mistaken in their initial determination, including arguments that the principal basis of the CRB decision, reliance on a SoundExchange expert witness who derived a model for determining what the royalties for noninteractive Internet radio should be based on what parties pay for music use in the interactive marketplace, was a fundamentally flawed model contradicted by one of SoundExchange's own expert witnesses in the satellite radio royalty proceeding which is currently underway. 

SoundExchange spent much of its briefs challenging the right of the webcasters to raise their arguments - claiming that the webcasters should have raised their arguments at an earlier stage of the proceeding, that the webcasters' arguments lacked supporting evidence, and even suggesting that the Broadcasters had breached the "protective order" in the satellite radio proceeding against the use of confidential material when the Broadcasters offered the evidence of the conflicting expert in the satellite radio proceeding.  Each of the webcasting parties amplified their arguments about various aspects of the decision - small webcasters suggesting that the Board should have recognized an "opt-in" category of webcasters who would pay royalties based on a percentage of their total revenue (avoiding many of the issues that the Board found with trying to compute a percentage of revenue for an entity that had multiple business lines), all webcasters challenging the $500 minimum fee per channel, and each arguing that there needed to be an aggregate tuning hour metric on which to compute royalties.  And, as set forth above, most interestingly, there was a fundamental issue raised by the Broadcasters, who discovered that a witness presented by SoundExchange in the CRB proceeding involving the royalties for satellite radio contradicted the premises of the SoundExchange expert in this proceeding on which the Board placed its greatest reliance in reaching its decision.

 

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The FCC announced that it will open a window for new noncommercial FM stations and major changes in noncommercial stations - with all applications to be filed between October 12 and October 19.  This is the first filing window to be opened for new noncommercial stations in almost 7 years, so the demand for these channels will no doubt be high.  The FCC's Public Notice just announces that the window will open, but does not provide any specifics - which are promised in a later public notice.

There are many issues that will need to be discussed in any subsequent notice.  First, the Notice released today indicates that the window will cover applications for stations in the noncommercial reserved band  - between 88.1 and 91.9 on the FM band.  However, since the last noncommercial window, the FCC has also reserved a number of allotted channels in the commercial band for noncommercial use - and these do not appear to be covered by the window notice.

Also, there have been discussions of the possibility of limiting applicants to a certain number of applications, or taking other actions to restrict the number of applications for these channels.  With the new point system adopted by the FCC since the last filing window, local applicants are favored over national groups that may file applications - so if applications are limited, these national groups may well be effectively foreclosed from obtaining any channels in the window, as the choice of  a limited number of channels may end up forcing these applicants to pick channels where there are local applicants who will prevail in any point system analysis.

We will see how this window develops in the coming months. 

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The Sacramento radio contest gone wrong, which led to the death of a contestant, will apparently not lead to any criminal liability for the station or its employees, according to press reports including one in the San Francisco Chronicle, here.  However, as the standards for a criminal prosecution are higher than those for a finding of civil liability, this may not be the last that we hear about this contest.  A complaint is also pending before the FCC about the matter.

We wrote about some of the problems that can arise with contests, here.  Stations should be careful planning and executing any contest.  A company planning a contest should research state law, to be sure that everything is being done is in compliance with all local requirements, and any necessary registrations are filed or local permits obtained.  The rules of the contest must be spelled out, anticipating every eventuality to the extent possible, carefully followed, and publicized (including the requirement for FCC licensees that the principal rules be broadcast on air - see our post here).  And, of course, try to anticipate the participants' possible actions while trying to participate, and avoid situations where the contest could create any dangerous situations.  In this day and age, there is much to consider in planning a simple contest in a manner that avoids potential liability.

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