January 2013

Earlier today, we wrote about the FCC’s reminder that TV broadcasters must, by February 4, complete the upload to their FCC-mandated online public inspection file all materials from the current renewal term that were created prior to the August 2 effective date of the online public inspection file requirement.  We noted that the FCC had not addressed the question of stations that had outstanding renewals from the last renewal term – which could potentially mandate that some stations upload as much as 16 years worth of material to their online files.  Well, today, the FCC issued another decision waiving its rules so that stations only need to post Quarterly Issues Programs lists from the current license term on their online public files – subject to some caveats.

There are certain limits on this waiver.  If the limits are not met, then all Quarterly Issues Programs lists, back to the last granted renewal, have to be posted to the online public file.  The limits include the following:

  1. The last renewal cannot have been opposed by a member of the public.
  2. The delay in the renewal cannot have been caused by issues relating to the public interest service of the station to its local service area
  3. The station must continue to keep the Quarterly Issues Programs lists from the last renewal cycle at the station in a paper public file.

This decision does not relieve stations from all obligations to post materials from prior renewal terms, as described below.Continue Reading FCC Grants Certain TV Stations Limited Waiver from Online Public File Obligations for Documents from Prior Renewal Terms

The six months that the FCC gave to television stations to upload the contents of their paper public files to their new online public file seemed like a long time back in August, when the deadline was announced and the online public file rule became effective. But that deadline is upon us, and the FCC yesterday issued a reminder that television broadcasters (full power and Class A stations) need to have all of their required documents uploaded to their online public file by Monday, February 4.  The 6 month deadline actually falls on the weekend, so the FCC has given stations to the end of the day on Monday to come into compliance. The Commission has even offered to have people at the FCC over the coming weekend to answer questions about the uploading process for all those waiting until the last-minute to comply. 

As made clear in the public notice, no broadcasters need to upload contents of their political files that existed prior to the August 2 effective date of the rules. TV Broadcasters who are affiliates of the Big 4 networks in the Top 50 markets should already be uploading new political file material onto their online files, while other TV broadcasters have until July 1, 2014 before they are subject to the requirement that they upload their new political materials to the online file. In neither case do stations have to upload political file materials that precede the date that the obligation applies to their station. Continue Reading FCC Issues Reminder that TV Stations Need to Complete Online Public File By February 4 – Upload Documents Including All Quarterly Issues Programs Lists and EEO Public File Reports Since the Last License Renewal Grant

With very limited exceptions, all broadcast stations are required to participate in Emergency Alert System, and to transmit any alerts that they may receive during their hours of operation. The FCC has just proposed to issue an $8000 fine to a station that allegedly had a working EAS receiver  (unlike some of the stations we have…

February is almost upon us, and it brings a host of regulatory obligations for broadcasters – as well as the filing deadline for those interested in pursuing new FM channels in an upcoming auction, and a number of opportunities to comment on important FCC proceedings. The week before last, TV NewsCheck published our latest quarterly update on the regulatory issues facing television broadcasters – and these include several with February dates. Most importantly (at least in the short term), there is the obligation for television broadcasters to upload to their Online Public Inspection file all documents created before the August 2 effective date of the rules (but for documents relating to political broadcasting).   So documents that had been kept in paper – like Annual EEO Public Inspection File Reports and Quarterly Issues Programs Lists – need to be in the Online Public File by the beginning of the month. 

In the longer term, while not due in February, comments to be filed this Friday (January 25) on the television incentive auction process, will need to be analyzed in preparation for the Reply comments due on March 12 in this most important proceeding which may well define the composition of over-the-air television in the coming years. Comments on the FCC proceeding on expanding the information gathered in the Form 323 Biennial Ownership Reports are also due in February – just in time for Valentine’s Day on the 14th. 

 Continue Reading February Legal Deadlines for Broadcasters – Online Public File, Review of Incentive Auction Comments, Filing Deadline for FM Auction, and Lots of Renewals and EEO Public File Reports

Deciding how to pay music royalties has always been difficult – trying to figure out what permissions are necessary, who has the rights to grant such permission, and how much the rights will cost. The one place where the rights were fairly simple – paying for the right to publicly perform musical compositions – may be getting more difficult. According to an article in the New York Post, Pandora may be getting a taste of that new reality, having to pay significantly more money to Sony ATV music publishers than it had previously paid for that same music when it was licensed by ASCAP and BMI. 

The rights to publicly perform musical compositions had until very recently been relatively straightforward. All a broadcaster, digital media company or other music user needed to do was to pay ASCAP, BMI and SESAC royalties (ASCAP, BMI and SESAC are often referred to as the PROs, or Performing Rights Organizations) – and the music service essentially had the rights to publicly perform virtually all the musical compositions in the world. And ASCAP and BMI were covered by antitrust decrees – so their rates were more or less known for most categories of music use – only subject to a rate court hearing once every now and then when these collection societies could not come to an agreement with the members of a particular class of music users. While SESAC is not subject to the antitrust consent decrees, and not necessarily as easy to deal with, most music services figured out a way to cut a deal with the society too.Continue Reading Pandora Enters Settlement to Pay For Public Performance of Sony/ATV Musical Works – What’s Its Impact on Licensing for Music Services and Rights Holders?

The FCC this week released a Public Notice announcing comment deadlines on rulemaking proposals relating to the FCC Biennial Ownership Reports. The first set of proposals deals with a Notice of Proposed Rulemaking issued earlier this month, proposing a series of changes to the process for filing these reports. The proposals include a requirement that the all persons with attributable interests in broadcast stations get a unique FCC Registration Number (an "FRN"), which will require filing their Social Security numbers with the FCC. The second proceeding is one released in 2009, but is only now being published in the Federal Register triggering the comment deadline. This proposal suggests that certain nonattributable owners be identified and reported on these Biennial Ownership Reports despite their nonattributable status. Comments on these proposals will be due on February 14, 2013, with reply comments due on March 1, 2013.

The Biennial Ownership report, in its current form, was initially adopted in 2009.  The new reports were to gather information not just about the ownership of broadcasters, but also about their race, ethnicity and gender, so that the FCC could get a better handle on the presence of minority owners in broadcasting.  The first report on the new form was to be filed in November 2009, but that deadline was pushed back to July 2010 when issues with the new form developed.  The second Biennial Ownership report was to have been filed by commercial stations in late 2011 (two years after the original date), and the next is due later this year.  The information in the first two reports was compiled into the information that formed the basis of the FCC’s December request for comments on the impact of proposed changes in the multiple ownership rules on minority ownership. Continue Reading FCC Seeks Comments on Biennial Ownership Report – Seeking Social Security Numbers From All Attributable Owners – and Some Who Are Not

With the league championship match-ups set, and the Super Bowl only 3 weeks away, broadcasters are once again getting ready for the onslaught of advertising opportunities that come with the big game. But, as we write every year at this time, broadcasters need to be extremely careful in using the term "Super Bowl" in any advertising by a sponsor who has not been authorized to use that term. Super Bowl is a trademarked term, meaning that its use, particularly for commercial purposes, is limited. Trademarked terms should not be used in commercial messages except by authorized advertisers. These advertisers have paid big bucks to be able to say that they are a Super Bowl sponsor. See this article from the New York Times about the pricing of Super Bowl advertising. As the NFL enforces its trademarks rigorously (so that they can get the big bucks from the official advertisers), don’t risk their use without official permission.

This does not prevent all discussions of the Super Bowl on the air. News reports about the game can still air, using the name of the game. DJs can still chat about who is going to win the Super Bowl. But don’t try to commercially exploit these terms (e.g. saying that you are "Springfield’s Super Bowl station") unless you really have really the rights to use the trademarked term. Be careful, as a cute promotional idea can end up costing your station far more than you intended.Continue Reading Advertisers Beware – Remember That “Super Bowl” is a Protected Trademark That Can’t Be Used in a Commercial Without Permission

Every year, about this time, I dust off the crystal ball to offer a look at the year ahead to see what Washington has in store for broadcasters. This year, like many in the recent past, Washington will consider important issues for both radio and TV, as well as issues affecting the growing on-line presence of broadcasters. The FCC, Congress, and other government agencies are never afraid to provide their views on what the industry should be doing but, unlike other members of the broadcasters’ audience, they can force broadcasters to pay attention to their views by way of new laws and regulations. And there is never a shortage of ideas from Washington as to how broadcasters should act. Some of the issues discussed below are perennials, coming back over and over again on my yearly list (often without resolution), while others are unique to this coming year.

Last week, we published a calendar of regulatory deadlines for broadcasters.  This article looks ahead, providing a preview of what other changes might be coming for broadcasters this year – but these are delivered with no guarantees that the issues listed will in fact bubble up to the top of the FCC’s long list of pending items, or that they will be resolved when we predict. But at least this gives you some warning of what might be coming your way this year. Issues unique to radio and TV, and those that could affect the broadcast industry generally, are addressed below.

General Broadcast Issues

 

There are numerous issues before the FCC that affect both radio and television broadcasters, some of which have been pending for many years and are ripe for resolution, while others are raised in proceedings that are just beginning. These include:

 

Multiple Ownership Rules Review: The FCC is very close to resolving its Quadrennial review of its multiple ownership proceeding, officially begun in 2011 with a Notice of Proposed Rulemaking. The rumors were that the FCC was ready to issue an order at the end of 2012 relaxing the rules against the cross-ownership of broadcast stations and newspapers, as well as the radio-television cross-interest prohibitions, while leaving most other rules in place. TV Joint Sales Agreements were also rumored to be part of the FCC’s considerations – perhaps making some or all of these agreements attributable. But even these modest changes in the rules are now on hold, while parties submit comments on the impact of any relaxation of the ownership rules on minority ownership. Still, we would expect that some decision on changes to the ownership rules should be expected at some point this year – probably early in the year. Continue Reading Gazing Into the Crystal Ball – What Washington Has In Store For Broadcasters in 2013

The full decision of the Copyright Royalty Board setting the royalty rates to be paid to SoundExchange by Sirius XM and Music Choice from 2013 through 2017 has now been released.  We wrote about the initial release of the summary of the decision before Christmas.  The final decision is interesting in many respects. First, it is the first decision to be released since two of the original three Copyright Royalty Judges left the bench. The decision, as released was actually two decisions – one signed by the new Chief Judge and an acting judge who filled in for Judge Wisniewski, the Board’s economic expert, when he had to retire for health reasons. The second decision, reaching the same result but based on different reasoning, was signed by the Board’s lone holdover, Judge Roberts, a long-time fixture at the Copyright Office before joining the Board. In addition, the decision seems to reject some premises that had long been used to justify royalty rates in other proceedings – and thus may give some insights on approaches to be used in the webcasting royalty proceeding that will begin in 2014 and conclude in 2015. The majority decision also, for the first time, gives at least some weight to direct licensing deals for the public performance of sound recordings by a noninteractive service. Finally, the decision provides explicitly for carve-outs from the established royalties for music on which no royalties need to be paid, including music that is directly licensed, and for pre-1972 sound recordings.

Before looking at the decision, it needs to be noted that these royalties are theoretically decided not just for Sirius XM and for Music Choice, but also for other services that fit into their class of service as defined by Sections 112 and 114 of the Copyright Act. Thus, the Music Choice decision applied theoretically to all "Preexisting Subscription Services" (or a "PSS") and the Sirius XM decision to all "preexisting satellite digital audio services" (or, as used in the decision, "SDARS" – satellite digital audio services). The "pre-existing language means that these services were either in existence or authorized by the FCC (for the SDARS services) at the time of the adoption of the Digital Millennium Copyright Act in 1998.  Of course, since 1998, all of Music Choices then-existing competitors in the cable audio business have gone out of business with one exception, and the second SDARS service – XM Radio – has merged with Sirius. So, effectively, these rates apply only to very few companies.Continue Reading Full Text of Copyright Royalty Board Decision on Sirius XM and Music Choice Royalties Released – The Basics of the Decision