Broadcast Law Blog

A recent Washington Post article highlights a bill that was recently introduced in Congress suggesting that the FCC bring back their rules for audio descriptions of video programming - rules which were thrown out by the Courts several years ago as being beyond the scope of the Commission's authority without explicit Congressional authorization.  But not only does this bill propose to give that missing Congressional approval to the FCC to re-introduce video description requirements for broadcast television, but it would authorize the FCC to introduce these rules, and closed-captioning requirements, on all video screens, including MP3 players, wireless devices and other video devices getting their programming through the Internet or other digital technologies.  With this bill, and various other proposals that have surfaced in recent months, it seems more and more likely that, as the Internet becomes even more important in the provision of broadcast-like programming in the future, the FCC may be called on by Congress to impose broadcast-like restrictions on that programming.

The full text of the recent bill, introduced by Congressman Markey, Chair of the House Subcommittee on Telecommunications and the Internet, can be found here.  A summary of the bill is also available on Congressman Markey's website.  The bill deals first with the accessibility of telephones and other communications devices, before setting out the provisions dealing with the captioning and video description requirements for broadcast and Internet video devices.  The bill first asks the FCC to study and report to Congress on the issues with captioning and video description on video devices, and then asks the FCC to adopt rules governing these matters, making video programming placed on the Internet that was either broadcast on a television stations or which is "comparable" to broadcast programming to be subject to these rules.  The idea is to make all TV-like programming subject to the rules, no matter what device it is viewed on.  Presumably, if adopted, the law would allow the FCC to make exemptions for certain types of programming (just as it currently allows exemptions from the current closed captioning requirements for small entities that have insufficient resources to caption a program).  The bill also requires that the FCC make sure that program guides and emergency information are available to those with hearing or visual difficulties, and that the navigation devices on video receivers can  be worked by those with disabilities.  So the FCC would have much to do to comply with this law, if adopted, and all within an 18 month period.

Posted By David Oxenford In Digital Television , Indecency , Internet Video , On Line Media | Permalink | 1 Comments | Email entry

While US webcasters may think that they have legal issues - whether it be the Internet radio music royalties that have been such a concern (see our coverage, here) or the copyright and other liability issues that surround user-generated content on various websites (see our story here), they face nothing like new rules that were recently adopted for webcasters in China.  The new rules require government permits from two separate Chinese government agencies before webcasting operations can begin.  In addition, the rules appear to require ownership and control of webcasting operations by state-owned companies.  A memo on these new rules, prepared by attorneys from Davis Wright Tremaine's Shanghai office, can be found here.

These rules apply to streaming audio and video delivered to mobile and wireless devices.  The rules also require yet another permit for sites that contain news content, and require taping of programs (a proposal made by our own FCC in connection with broadcast programs to monitor for indecency) to monitor for program content that may offend government requirements.  Clearly, it's a different system than that in place in the US - one which website operators interested in an operation in China should study carefully.  Again, details can be found in the memo prepared by the attorneys in our Shanghai office.

Posted By David Oxenford In Internet Radio , Internet Video , On Line Media , Website Issues | Permalink | 0 Comments | Email entry

As more and more broadcasters create and use websites (and, to some extent, are required to post more information on those sites by the FCC, see our post here), they should be cautious about the legal liabilities that arise from these sites.  For instance, as websites are used to gather personal information for listener's clubs, news alerts or for e-commerce purposes, the site owners need to be concerned about privacy issues. Many states are now requiring privacy policies to be posted on websites that gather personal information.  In a recent decision, the Federal Trade Commission entered into a consent decree with a website owner who had not abided by the privacy policy that it posted, requiring that the site owner hire security consultants and regularly file reports, for the next 20 years, with the FTC on its efforts to comply with its policies.  This case is a demonstration that website owners should not casually adopt privacy policies without fully understanding and adhering to their terms.

Davis Wright Tremaine's Privacy and Security blog features a summary of this consent decree and explains the ramifications of the decision.  Broadcasters and other website owners should learn from this decision that they should not blindly copy a privacy policy that they find on some other website and adopt it as their own.  Instead, they need to carefully craft a privacy disclosure that honestly discloses their policies and practices.  In this case, the website owner promised that personal information would be maintained in a secure fashion, yet the FTC found that simple hacking techniques were able to get access to that information.  For website owners who are collecting private information, and promising privacy and security, to avoid legal issues in the future, make sure that you are living up to your promises. 

Posted By David Oxenford In Internet Radio , Internet Video , Website Issues | Permalink | 0 Comments | Email entry

As the nation's television stations move closer and closer to the February 17, 2009 termination of analog broadcasting, plans are well underway to re-use the channel that these stations must surrender after that date.  Currently, most television stations operate on two channels, their traditional analog channel, and a transition channel on which they have been allowed to transmit their digital signal until the end of the digital transition.  As we wrote here, the FCC has assigned to all stations a final channel on which they will operate once the transition is complete (usually the transition channel or the original analog channel).  After February 17, 2009, the television stations will only broadcast on their final digital channel, and their other channel will be returned to the FCC.  All television operations will be consolidated in Channels 2 through 51, allowing the re-use of Channels 52-69.  Some of those returned channels have already been auctioned off (see our post here about some of the operations on those channels), and the FCC has recently announced auction rules for the remaining channels.  Our firm has just issued an Advisory setting out the important dates for participation in that auction - the so-called 700 MHz auction.  That advisory is available, here.

As these channels have excellent propagation characteristics, it is believed that they will be highly sought, with some estimates that the nationwide channels may bring several billion dollars into the Federal treasury.  Rumored uses include various forms of broadband access, either through open systems where consumers will pay for access as they do for any Internet access, but content providers will not have to pay, to more closed systems where the licensees determine what content will be provided.  As set out in the Advisory, at least some degree of openness to new devices that connect to the network is guaranteed on some portion of this spectrum under the Commission's orders.  But ultimately how much of that spectrum is used for closed systems transmitting video or audio entertainment (sounds like broadcasting) remains to be seen.   The more things change....

Posted By David Oxenford In Digital Television , General FCC , Internet Video , On Line Media | Permalink | 1 Comments | Email entry

Website operators planning to allow visitors to post their own "user generated content" can, for the most part, take solace that they will not be held liable for third-party posts if they meet certain criteria.  The Communications Decency Act provides protection against liability for torts (including libel, slander and other forms of defamation) for website operators for third-party content posted on their site.  The Digital Millennium Copyright Act provides protection against copyright infringement claims for the user-generated content, if the site owner observes certain "safe harbor" provisions set out by the law.  The requirements for protection under these statutes, and other cautions for website operators, are set out in detail in our firm's First Amendment Law Letter, which can be found here.

 As detailed in the Law Letter, the Communications Decency Act has been very broadly applied to protect the operator of a website from liability for the content of the postings of third parties.  Only recently have courts begun to chip away at those protections, finding liability in cases where it appeared that the website operator in effect asked for the offending content - as in a case where the owner of a roommate-finder site gave users a questionnaire that specifically prompted them to indicate a racial preference for a roommate - something which offends the Fair Housing Act.  However, as set forth in the Law Letter, absent such a specific prompt for offending information, the protections afforded by this statute still appear quite broad.

Posted By David Oxenford In Internet Radio , Internet Video , On Line Media | Permalink | 0 Comments | Email entry

We wrote last month about the fact that the Copyright Office has initiated a major proceeding to reexamine the statutory licenses that allow cable systems and satellite distributors to retransmit the programming of local television stations.  A statutory license allows retransmission of television signals by these multichannel video providers without getting the consent of copyright owners of each and every program (and program elements contained in the programming, e.g. music) that a broadcast station may feature in its programming. As part of this proceeding, the Copyright Office promised to hold public hearings on these licenses. The Office has announced the schedule for these hearings, to be held from July 23  to July 26. Parties interested in participating in the hearings need to register their interest on or before June 15. The Copyright Office’s notice about the hearing, which contains instructions on the process for filing a request to testify, can be found here.

Written comments in this important proceeding are due July 2. The Copyright Office has also encouraged interested parties to file suggested questions to be posed to the participants in the hearing by July 2.  Reply comments in the case are due on September 13.  The Copyright Office has also encouraged parties to respond to the testimony presented at the hearing in their reply comments. 

Posted By David Oxenford In Cable Carriage , Internet Video | Permalink | 0 Comments | Email entry

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.

Posted By David Oxenford In Cable Carriage , Digital Television , Internet Video , On Line Media | Permalink | 0 Comments | Email entry

Yesterday's New York Times featured an article on radio's increasing use of Internet video to promote their on-air programs, to extend their brand, and to increase the connection with their listeners.  This is another manifestation of the theme we wrote about earlier this week in connection with this year's RAB Convention, where the emphasis was on radio broadcasters maximizing and leveraging their digital assets.  But, in doing so, stations must be alert for the legal issues that this extension can raise.

For instance, we have written before about the concerns about using copyrighted music in video productions without permission from the record company or other copyright holder in the musical performance.  Stations should not make their own music videos without securing authority from a copyright owner of the song that they are featuring (from both the artist and the composer).  If stations are asking listeners to post their own video on the station's website - like a local YouTube - the station must be prepared to take down any video using copyrighted material if the station is asked by the copyright holder.  And the station should adopt Terms of Use for its site, warning users not to post copyrighted material without permission.  The station should also not encourage the use of copyrighted material without permission - for example, it should not give prizes to the producers of the best music video for the website unless it has obtained permission for the use of the particular song or songs that are to be used by contestants.

Remember, the Internet magnifies all sorts of intellectual property issues by making it possible for copyright and trademark owners to monitor infringement far beyond the coverage contours of the broadcast station. 

Posted By David Oxenford In Internet Video , On Line Media | Permalink | 0 Comments | Email entry

I've just returned from this year's Radio Advertising Bureau convention in Dallas.  In reflecting on the convention, and in discussing it with many who were in attendance, the consensus was that this was not your Father's RAB convention.  I was surprised by how little discussion there was of traditional radio at the conference.  The sessions weren't the typical ones about how to make the most money from selling your cluster of radio stations in combination, or how to compete against the newspaper or the Yellow Pages, or how to get the most out of your sales staff.  Instead, virtually every session talked about leveraging your digital assets.  There were discussions of using your website, streaming, podcasts, text messaging, and  audio on cell phones to increase the financial performance of broadcast stations.  There were discussions of HD Radio and some of the opportunities that service might offer if and when it starts getting consumer acceptance.  All in all, it seemed as if radio (or at least those planning the convention sessions) had received the message that the industry needs to take advantage of its ability to drive traffic to new technologies, and drive that traffic to new media sources that stations themselves create. 

In the past, there seemed to be a fear about discussing these new technologies.  It was almost as if the technologies weren't discussed, they'd go away.  But at the RAB, and at many of the conventions of the state broadcast associations that I have attended over the last year, broadcasters seemed to have decided that they need to embrace the new media.  While the old fear had been that these new media sources would cannibalize the current broadcast audience, everyone seems to now recognize that the audience is going to use these technologies no matter what - so the broadcaster might as well be the one cannibalizing its own audience.

While legal and regulatory issues do not tend to be the primary topic of discussion at the RAB Conference, as in almost any broadcast discussion, they do come up.  Here too, the discussion was digital.  For instance, in the speech by NAB President David Rehr outlining the priorities of the NAB for the year, only the effort to authorize FM translators for AM stations (which we wrote about here), was not a "digital" topic.  The other issues discussed by Mr. Rehr included pushing the FCC for final rules for digital radio, monitoring the actions of satellite radio companies XM and Sirius, and finally, the issues that arise out of the Perform Act.  The Perform Act is a copyright bill introduced in the Senate last month that would affect digital royalties for music used on the Internet, place restrictions on services promoting the promotion and sale by digital music providers of devices that disaggregate songs contained in a digital stream, and require copy protection technologies to be employed by digital music providers.  Hardly the exciting stuff that makes for an applause line in a convention speech.  While we will write more about the Perform Act in a separate posting, the major concern for broadcasters is that the sponsor, California Senator Diane Feinstein, suggested in her remarks that the performance royalty on sound recordings which now applies to satellite radio and webcasting (which we have written about many times including here), should also apply to broadcast radio.  And that is a big enough issue - one that could hit broadcasters directly in the pocketbook - that it demands the industry's attention in every forum. 

Posted By David Oxenford In Advertising Issues , Digital Radio , Intellectual Property , Internet Radio , Internet Video , On Line Media | Permalink | 1 Comments | Email entry

The FCC yesterday adopted two orders approving the initiation of operations by Qualcomm of its MediaFLO wireless multimedia system on television channel 55 in the Richmond/Norfolk area of Virginia, and in St. Louis Missouri.  Qualcomm purchased the nationwide rights to use Channel 55 in an FCC spectrum auction several years ago.  At the end of the digital transition, channels 52 and above will no longer be used by television broadcasters, but instead will be used for wireless services (as well as some public safety users).  The channels between 52 and 59 have already been auctioned, and can be used if they don't cause interference to current television users.  In these two cases, Qualcomm was able to reach agreements with broadcasters in adjacent markets to agree to accept minimal amounts of interference so that Qualcomm could initiate its MediaFLO service.  The FCC found that the minimal interference to these stations would not significantly affect television viewers, and granted Qualcomm authority to commence operations.

According to the Qualcomm website, their MediaFLO service will provide interactive audio and video to handheld devices - essentially mobile phones optimized for multimedia content.  While the website seems to imply that this will be a closed system with content provided by a limited number of providers or partners, it will operate with a IP type technology, which could allow a more open system in the future.  Other users are apparently planning to use these channels for high speed wireless Internet services.  So, perhaps ironically, as free over-the-air TV abandons these channels in the next two years as the digital transition nears its end, a new subscription audio and video service will take its place.  Progress?

Posted By David Oxenford In Digital Television , Internet Radio , Internet Video , On Line Media | Permalink | 0 Comments | Email entry

In recent weeks, the FCC has been vigorously defending its indecency rules in Court.  First, oral arguments on the FCC's actions against Fox and NBC for "fleeting utterances," one-time unscripted airing of profanities during television coverage of live award programs, were held the week before Christmas - with a decision possible in the upcoming months.  At the same time, briefs are being filed in the case involving Janet Jackson and the Super Bowl clothing malfunctions.  But, with more and more video moving on-line, where the FCC's indecency rules don't reach, who is the FCC really protecting?

A recent article in the New York Times (subscription required for full archived content) reported on NBC's Saturday Night Live posting on the Internet an unedited copy of a partially censored animated feature that aired on its program.  If viewers can access complete, unedited content of a television program online, and that online content can be promoted on the air, unless there is some great expansion of the FCC's power in regulating on-line activity, it seems that the FCC's indecency crackdown doesn't accomplish much.  But, with the pending court actions, it may well be that the FCC's ability to regulate indecency shrinks before it increases.

Posted By David Oxenford In Indecency , Internet Video , On Line Media | Permalink | 0 Comments | Email entry

Google's recent announced plans to purchase You Tube has ignited a veritable blizzard of discussion about potential copyright litigation that could result from the user-generated content that forms the backbone of the You Tube experience.  For broadcasters who have been venturing into the on-line world, this discussion highlights the cautions that they should exercise in dealing with their own websites.

The issue has been raised as so many of the videos posted on You Tube contain copyrighted material, often used without permission from the Copyright holder.  While You Tube has reached agreements with some record labels and broadcast networks for use of their copyrighted material in exchange for some revenue sharing, other rights holders have not yet reached agreements.  Discussions of the purchase and the issues raised by the use of this copyrighted material can be found in many publications, including those in the Wall Street Journal and a discussion with the Electronic Freedom Foundation's Fred von Lohmann on SearchBlog.  These discussions focus on the defense from the Digital Millennium Copyright Act that gives bulletin board-type services exemptions from copyright liability if they do not encourage the violations, and act promptly to remove any material that they have been notified is in violation of the Copyright laws. 

Whether or not the DMCA fully protects Google, the discussion highlights the need for broadcasters to use care in their use of user-generated material on their website.  While broadcasters need not shun all user-generated content, they need to make sure that they have done their diligence.  Broadcasters should review the terms of use on their sites, making sure that they warn those who may post home-grown videos that they should not contain copyrighted material without permission of the owner.  If notified that their sites nevertheless contain copyrighted material for which no permission has been given, they should promptly take steps to remove the offending material.  And, if feasible, the broadcasters should even consider ways to identify infringing material and to remove such material.  And they should watch developments with You Tube and other similar sites.

Posted By David Oxenford In Internet Video , On Line Media | Permalink | 0 Comments | Email entry

The NAB Radio Show held the week before last, in conjunction with the Radio and Records Convention, was notable in its attention to new media. It’s been years since the NAB has devoted so much time to new media issues (remember the Streaming at NAB sessions that were held at the radio show early in the decade?).  And the new media sessions have perhaps never been as central to the Convention. Sessions on streaming, podcasting, downloads, blogging and just generally dealing with the media competition abounded at the convention.

The emphasis on the new media was perhaps most evident and presented most starkly in a pre-convention Summit put on by Jacobs Media. There, one presenter, Gordon Borrell of Borrell Associates, Inc., talked about the reach of media and information on the Internet, and just how prevalent it has become – even in reaching fighting for local advertising dollars – perhaps the one place that over-the-air broadcasters thought was most securely their own. Mr. Borrell pointed to websites such as those run by the Cape May Herald and the Lawrence County Kansas Journal-World as ones which show the power of the Internet to contribute to or eclipse their traditional sponsoring media (he said that the Lawrence site did over a million dollars a year in on-line revenue),. Even sites with no traditional media  partner, like Hartford.com, were said to be generating hundreds of thousands of dollars in local advertising revenue. What was perhaps most surprising was his assertion that in 40% of markets, there is an on-line site that has greater advertising revenue that the most successful radio station in the market.

Another presenter, Jason Calacanis, CEO of Weblogs,  went so far as to suggest that the principal purpose of today’s radio station should be using the station to drive traffic to the station’s website before the station itself became obsolete. Videos of the Jacobs Media Summit are available on-line, here.  While many others found this view to be extreme (Jack Isquith of AOL Music, in a session on streaming held several days later, talked at one point of the “elegance” of radio’s ability to reach local mass audiences more efficiently than on-line media), the whole convention seemed to be in agreement that radio needs to concentrate on the new media and develop their web presence. 

Posted By David Oxenford In Internet Radio , Internet Video , On Line Media | Permalink | 2 Comments | Email entry

A few weeks ago, the New York Times featured an interesting article about the impact of Internet video and other new technologies on the traditional media.  The premise of the article is that big media players, like AOL, FOX and Disney are being forced into bold moves to keep up with the the Internet.  Decisions such as AOL's recent decision to from a subscription to a free service is one move cited by the article as being driven by the availability of free on-line content.  A comment by Rupert Murdoch that he would consider merging Direct TV with Echostar because of the competition from Internet video was another instance that the article cites as support for its premise.  This Sunday's Times featured another article on the impact of Internet technology on the distribution of music, including traditional radio.

These changes impact not only big media, but local media and small Internet players as well.  The choice provided by the Internet has already caused changes in everything from local television to Internet radio.  I started writing this post from rural Wisconsin, where I was for a family event.  Watching the local television station, WEAU-TV in Eau Claire, Wisconsin, I was somewhat surprised to see an a promotion for "build your own newscasts."  The station was promoting its website, and the ability to watch local news stories produced by the station on the website, watching only those stories that you want to see, when you want to see them.  This on-demand availability of new stories when done with local stories avoids most copyright issues.  And it allows local media to serve their audience in the way that the audience wants to be served. 

Posted By David Oxenford In Internet Video | Permalink | 0 Comments | Email entry

This week's Economist includes an interesting story on the competitive pressures being faced by newspapers.  One of the observations about successful newspapers in this competitive, digital world is the ability of the newspaper to exploit its on-line presence.  Successful newspapers were able to not only use their existing content on the Internet, but were also able to expand the reach of their paper and create compelling content to attract their readers and others to the website.  This includes the extensive use of audio and video.

On Friday, I participated in a live webcast, "Webcasting for Rookies" sponsored by the International Webcasters Association.  In a discussion with Michael Gordon of Limelight, the content delivery network, a similar observation was made - that newspapers are some of the biggest users of streaming media.  He observed that newspapers did not view on-line audio and video as competitive to their primary product, but instead as complementary, so they were more willing to promote their on-line product.  Conversely, broadcasters were reluctant to exploit the Internet, as it was seen as being more like broadcasting, and more threatening. 

Mr. Gordon's comments, and those of the other speakers including my discussion of legal issues for webcasters, can be accessed here (free registration required).  Broadcasters should take note.  As the Internet grows, they don't want others to steal their audiences by doing what broadcasters do best - audio and video.

Posted By David Oxenford In Internet Radio , Internet Video | Permalink | 0 Comments | Email entry