Mitchell Stabbe, our resident trademark law specialist, today takes his annual look at the legal issues in Super Bowl advertising and promotions (see some of his past articles here, here, and here).  Take it away, Mitch:  

As a life-long fan of the Baltimore Ravens (the life of the Ravens, not my life), my interest in the Super Bowl XVII has waned a bit.  The opposite is true for those who seek to profit from the playing of the game.  Accordingly, following are updated guidelines about engaging in or accepting advertising or promotions that directly or indirectly reference the Super Bowl without a license from the NFL.  But, first, a trivia question.  Who won Super Bowl I.  (Answer at end)

The Super Bowl means big bucks.

There are currently four primary television networks that broadcast and stream NFL games in the United States (CBS/Paramount+, Fox, ABC/ESPN/ESPN+ and NBC/Peacock).  It is estimated that, with the new contract which took effect this year, each will pay the NFL an average of over $2 billion per year for those rights through 2032, including the right to broadcast the Super Bowl on a rotating basis.

The investment seems to pay off for the networks.  Reportedly, it will cost $7M for a 30-second spot during this year’s Super Bowl broadcast, which is about the same as last year.  It has also been reported that last year’s game brought in advertising revenue totaling $600 M (up from $545 M the prior year).  These figures do not include income from ads during any pre-game or post-game programming.  (In addition to the sums paid to have their commercials aired, some advertisers spend millions of dollars to produce an ad.)  In addition, the NFL receives hundreds of millions of dollars from licensing the use of the SUPER BOWL trademark and logo.

Continue Reading 2024 Update on Super Bowl Advertising and Promotions

We often write about issues concerning the royalties paid by radio stations for their various uses of music.  It is not just paying the royalties that are important, but stations must also observe all of all the other obligations under each of their license agreements.  The Radio Music License Committee asked us to remind commercial radio stations of one of those obligations – the requirement that commercial radio operators report their prior year’s annual station revenues to the Performing Rights Organizations – ASCAP, BMI, and SESAC.  As commercial radio stations pay their royalties to these organizations based on a percentage of the revenues earned by the station, the PROs need this information to compute the royalties that are owed.  Because of the importance of the information, there are penalties in each of the license agreements for stations that don’t timely report their income.  The deadline for reporting the revenue under the agreements with each of the three PROs is April 1, 2024, so stations need to report this information in the next two months.  Note that GMR, which is not subject to antitrust restraints and does not license commercial radio under uniform agreements and procedures worked out with RMLC as do the other PROs, may use metrics other than revenue to set its royalties and may not have this same revenue reporting obligation – check your individual agreement with GMR as to required reporting obligations.

The revenue information for ASCAP, BMI, and SESAC is reported through online portals that each host.  All of these portals are now open for the reporting of last year’s revenue.  SESAC’s online reporting portal is available here, ASCAP’s is here, and BMI’s portal can be found here.  If broadcasters have any problems accessing the portals, they should contact their representatives at the PROs – not the RMLC as it has no control over any of these portals. The deadline is coming up in just two months, so stations should submit the information now rather than risk forgetting and incurring the penalties for late reporting.

President Biden’s signing of the Continuing Resolution last week (see our discussion here) has kept the federal government open, with the FCC and FTC having money to stay open through March 8.  So the FCC will be open and thus there are February regulatory dates to which broadcasters should be paying attention. 

February 1 is the deadline for radio and television station employment units in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma with five or more full-time employees to upload their Annual EEO Public File Report to their stations’ online public inspection files (OPIFs).  A station employment unit is a station or cluster of commonly controlled stations serving the same general geographic area having at least one common employee.  For employment units with five or more full-time employees, the annual report covers hiring and employment outreach activities for the prior year.  A link to the uploaded report must also be included on the home page of each station’s website, if the station has a website.  Be timely getting these reports into your public file, as even a single late report can lead to FCC fines (see our article here about a recent $26,000 fine for a single late EEO report).

Continue Reading February Regulatory Dates for Broadcasters – Annual EEO Public File Reports, C-Band Transition Reimbursement, Political Windows, and More

Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC released its agenda for its Open Meeting scheduled for February 15.  The FCC will consider two items of interest to broadcasters:
    • For years, the FCC has been exploring how to provide multilingual EAS alerts on broadcast stations (see our Broadcast Law Blog articles here, here, and here on the FCC’s past rejection of attempts to mandate that broadcasters originate such alerts).  At its upcoming meeting, the FCC will consider a draft Notice of Proposed Rulemaking (NPRM) proposing that public safety and other groups that originate alerts would be provided pre-scripted, pre-translated alert messages in thirteen non-English languages that the originators can distribute during emergencies to TV and radio broadcasters, cable service providers, and other EAS participants.  Among the questions asked in the NPRM is whether a station receiving these pre-scripted alerts in multiple languages would have to broadcast the alert only in the language of its programming, or whether it would have additional obligations to broadcast alerts in other languages common in its service area. 
    • The FCC will also consider a draft Report and Order that, if adopted, would permit a new type of wireless microphone system called “Wireless Multi-Channel Audio System” (WMAS).  The new rules permit the use of WMAS on a licensed basis in frequency bands where wireless microphones already are currently authorized, including the TV bands (VHF and UHF).  The FCC stated that its goal was to enhance the spectral efficiency of wireless microphone use and noted that it did not intend to alter the existing spectrum rights or expectations of existing users, including broadcast licensees. 
  • The FCC adopted a Notice of Proposed Rulemaking, in which it proposes to require TV and radio stations to file reports with the FCC regarding station operational outages in the FCC’s Network Outage Reporting System (NORS) database and on their operating status during disasters in the FCC’s Disaster Information Reporting System (DIRS) database.  DIRS reporting is currently voluntary for broadcasters.  The FCC’s Public Safety and Homeland Security Bureau also issued a Public Notice announcing that it will be conducting a DIRS voluntary exercise on February 6 through February 8 to ensure that communications providers, including broadcasters, can access and file reports in the DIRS system.  The Bureau’s Public Notice contains information on how to register and participate in the DIRS exercise. 
  • The FCC announced that February 26 will be the deadline for filing comments in response to the FCC’s Notice of Proposed Rulemaking (NPRM) adopted last month (see our articles here and here) which proposes to require multichannel video programming distributors to report lapses in their carriage of TV stations when retransmission consent negotiations fail, i.e., “blackouts.”  Reply comments will be due March 26. 
  • The FCC took several actions related to pirate radio:
    • The FCC submitted its annual report to Congress on its enforcement of the PIRATE Act, which enables the FCC to issue fines up to $2,391,097 against pirate radio operators (see our article on the adoption of the Act).  The report notes some of the substantial fines issued against pirate radio operators, as well as the issuance of 44 warning notices sent to property owners and managers of sites hosting pirate radio activities (some of which we discussed here, here, and here).  It also noted that the FCC started a pirate radio database in January 2023 (now updated with all publicly released enforcement activity through December 2023), it has expanded its staff dedicated to enforcing the PIRATE Act, and it will be buying additional equipment over the next two years to better investigate pirate radio activities. 
    • The FCC also proposed to fine five Florida-based pirate radio operators a total of $3.5 million, actions which were the result of the FCC’s first sweep of the Miami area for pirate radio activities under the PIRATE Act.  Under the PIRATE Act, the FCC can fine pirate radio operators up to $119,555 per day and a maximum of $2,391,097 as recently adjusted for inflation (see here and here regarding our discussion of the FCC’s recent adjustments of fines for inflation).  In one decision released this week, the FCC proposed a $2,391,097 fine – the maximum penalty allowable under the Act – against a pirate radio operator for operating illegally on 22 specific days in 2023 when the FCC was monitoring its operations, a fine that was multiplied by the pirate’s 12 year history of illegal operations, which included multiple prior FCC actions including seizures of broadcast equipment.  The FCC also proposed $358,665 fines – the maximum penalty for three days of violations – against three additional pirate radio operators and a $120,000 fine against the fifth pirate radio operator.  The decisions proposing these fines are available here, here, here, and here.
  • The House Subcommittee on Communications and Technology announced that it will hold a hearing on January 31 at 10:30 AM EST titled “TV Timeout: Understanding Sports Media Rights.”  The focus of the hearing is on how streaming services have disrupted the media marketplace. The hearing can be viewed live here.    
  • The FCC’s Media Bureau entered into a Consent Decree with the licensee of a group of Nebraska FM stations requiring an $8,000 penalty to resolve the Bureau’s review of three unauthorized transfers of control. The Bureau found that the stations’ licensee failed to seek FCC consent prior to the transfer of the voting stock of its controlling shareholder to successive trusts three times between 2017 and 2019.  This is one of several recent cases that show that changes in estate planning by station owners can trigger FCC requirements for prior approval of changes in control of an FCC licensee, and the penalties that can result when such approvals are not obtained (see, for instance, the cases we noted here, here, here, here, and here). 
  • In a Memorandum Opinion and Order, the full Commission selected the winning applicants in six groups of mutually exclusive applications filed during the November 2021 filing window new for noncommercial educational (NCE) stations – selecting winning applicants proposing to serve the following communities: Gallup, New Mexico; Weeki Wachee, Florida; Burlington, Iowa; Central Gardens, Texas; Key West, Florida; and Grand Forks, North Dakota.  The facts leading to the Commission’s decisions are based on detailed factual analysis and vary widely from group to group, and thus each will not be summarized here.  But, in many cases, losing applicants were cited for failing to properly document their claim of eligibility for points under the points system criteria used to choose between mutually exclusive applications for new noncommercial stations, or for untimely or inaccurately reporting their other broadcast interests. The Order provides good examples of the Commission’s application of the points system (see our articles here and here for more information on how the point system works).
  • The Commission published in the Federal Register a list of proposed community of license changes, allowing the public to comment on these changes (as required by the rules for all radio city of license changes).  Comments are due by March 22, 2024.  The proposed changes are: KKIS(FM), from Jacksonville, TX to Maydelle, TX; KUNY(FM), from Paragonah, UT to Enoch, UT; KYML(FM), from Mount Laguna, CA to San Diego Country Estates, CA; WCQS(FM), from Asheville, NC to Mars Hill, NC; and WYQS(FM), from Mars Hill, NC to Asheville, NC.
  • The Bureau issued a Report and Order allotting TV channel 31 to Shawano, Wisconsin, allowing the permittee of an unbuilt TV station at Wittenberg, Wisconsin to change its city of license to Shawano.  The Bureau agreed that providing Shawano (a community nine times larger than Wittenberg) with its first local TV service is the type of “rare circumstance” which justifies a waiver of the general prohibition on the removal of a community’s sole first local service.  The Bureau also found that the public interest would not be adversely affected by the change in city of license because the station had not yet been constructed, and thus no Wittenberg viewers rely on any existing service from the station. 

As we discussed on our Blog this week, the Copyright Royal Board corrected the deadline for interested parties to file petitions to participate its new proceeding to set webcasting royalty rates for 2026 through 2030.  The new filing deadline is now February 5, not February 6 as originally stated.  We also discussed SoundExchange’s announced audits of five broadcast companies to assess their compliance with their statutory music licenses, noting SoundExchange’s ability to audit any licensee operating under the licenses for which it collects royalties.

We also discussed on the Blog the FCC’s Notice of Proposed Rulemaking released last week aimed at giving incentives to broadcasters to air more local journalism and local programming by prioritizing the processing of certain applications filed by stations that feature local programming.  We look at the FCC’s question posed in the NPRM as to whether the abolition of the main studio rule in 2017 achieved what the FCC alleges was its goal of fostering the creation of more local content, and the Republican Commissioners’ dissents based on their belief that the NPRM was laying the groundwork for reinstating the main studio rule. 

The FCC last week issued a Notice of Proposed Rulemaking aimed to give incentives to broadcasters to air more local journalism and local programming by prioritizing the processing of certain applications by stations that feature local programming.  That decision drew dissents from both of the FCC’s Republican Commissioners, not because of the proposal for the preference, but because they were concerned about language in the Notice asking for comment on whether the FCC was correct in its 2017 decision that abolished the main studio rule and the policy requiring broadcasters to have the capability of originating programming from a physical location in their service areas.  

The proposal to prioritize the processing of applications by stations with local programming is a narrow one.  The priority would only apply to renewal applications, and applications for sales of full-power stations (assignments of licenses and transfers of control).  The FCC’s proposal would not apply this preference to routine applications that are processed in the normal course (with renewals usually being granted within a month after the three-month comment period following the renewal filing deadline, and assignment and transfer applications similarly being routinely granted within a few weeks of the end of the 30 day public comment period following the public notice of the filing of an application for FCC approval of the sale).  Instead, the majority decision proposes to apply the priority only to applications that are non-routine, giving faster processing to applications that have petitions filed against them, or where the FCC has other concerns with a routine grant of the application (seemingly, in the renewal context, that would apply to cases where there are certifications in the application that cannot be made by an applicant, e.g., where it cannot certify that it had properly maintained its public inspection file during the license term, or that the applicant had not violated FCC rules or had not been silent for an extended period during the license term).

Continue Reading FCC Proposes to Prioritize Processing of Applications by Stations with Local Programming – And Asks Many Questions About Whether the FCC Should Have Abolished the Main Studio Rule

The Copyright Royalty Board has published in the Federal Register a correction to its notice announcing the commencement of the next proceeding to set rates for the royalties paid by webcasters (including broadcasters who stream their music through the internet) to SoundExchange for the public performance of sound recordings in the period 2026-2030.  The correction is to the date by which interested parties must file a petition to participate – setting that date as February 5, 2024, not February 6 as originally stated.  Thus, interested parties have a deadline one day earlier than previously announced.  We wrote more about that proceeding here.

The CRB also published in the Federal Register a notice announcing that it would be auditing five broadcast companies who are streaming their signals to assess their compliance with the statutory music licenses provided by Sections 112 and 114 of the Copyright Act for the public performance of sound recordings and ephemeral copies made in the digital transmission process by commercial webcasters. Another audit notice has gone out to a company called RFC Media, which is both a webcaster and a Business Establishment Service whose royalties are exclusively paid under Section 112 of the statute (see our article here about the CRB-set royalties for these services that provide music played in various food and retail establishments and other businesses).

Continue Reading Copyright Royalty Board Issues Correction of Deadline to File Petitions to Participate in New Proceeding to Set Webcasting Royalty Rates for 2026-2030, and Issues Notices of Audits of Webcasters

Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.

  • President Biden signed a Continuing Resolution passed by Congress averting a federal government shutdown that was to begin on January 19 for parts of the government, and on February 2 for other portions of the federal government – including the FCC and the FTC.  The resolution provides funding for the FCC and the FTC through March 8. 
  • The FCC released two Notices of Proposed Rulemaking (NPRM) of interest to broadcasters:
    • In the first NPRM, the FCC proposed to prioritize the review of non-routine license renewal, assignment of license, and transfer of control applications – providing faster processing of any issues that resulted in the application not being processed in the normal course, if the application was filed by a broadcast station that provides at least three hours per week of locally originated programming.  The proposed prioritization policy was intended to incentivize stations to provide locally originated programming.  The majority of the Commissioners suggested that this was needed in light of the FCC’s 2017 elimination of the rule requiring stations to maintain a main studio located in or near their communities of license and the related requirement that the main studio have local program origination capability (see our articles here and here regarding the former requirement).  In the NPRM, the FCC asked for comments as to whether the elimination of the main studio was a mistake, questioning whether the basis for eliminating that rule – fostering the creation of more and better local content – had been achieved.  While the FCC did not explicitly propose in the NPRM to reinstate the main studio rule, both Republican Commissioners dissented from the NPRM as they believed that the FCC was headed in that direction. We will write more about this proposal this coming week.
    • In the second NPRM, the FCC proposed to require cable operators and direct broadcast satellite (DBS) providers to issue rebates to subscribers affected by blackouts resulting from failed retransmission consent negotiations with TV stations.  Through the NPRM, the FCC seeks public comment on whether and how to require cable operators and DBS providers to issue these rebates.  The FCC also requests comment on whether there are other methods to incentivize cable operators, DBS providers, and broadcasters to limit the occurrences of blackouts.  The NPRM follows the FCC’s decision last month in which it proposed to require cable operators and DBS providers to disclose the occurrence of any blackouts resulting from failed retransmission consent negotiations with TV stations, which we discussed here and here
  • The FCC’s Media Bureau imposed significant financial penalties on several broadcasters for perceived violations of the FCC’s rules:
    • The Bureau entered into a Consent Decree with the licensee of two Idaho FM stations requiring a $500,000 penalty and a compliance plan to resolve the Bureau’s investigation as to whether the stations violated the FCC’s rules governing sponsorship identification and maintenance of political files.  The Bureau found that the station had broadcast paid programming, sponsored by a local political party and one of its leaders, which discussed controversial issues and featured candidates for public office, without providing on-air sponsorship identification announcements for multiple episodes of the program and numerous advertisements promoting it.  The station also failed to note the federal issues and candidate appearances in the stations’ political files for multiple episodes of the program.  With the 2024 political season already well underway, this decision should serve as a warning to all broadcasters of the potential consequences for failing to comply with the FCC’s political file requirements.  For a deeper dive on election year planning, see our post, here, and  our Political Broadcasting Guide.
    • The FCC fined Cumulus Media $26,000 for its failure to upload one EEO Annual Public File Report to its online public inspection file until about 9 months after the due date.  The FCC previously proposed a $32,000 fine on the company for its failure to timely upload the annual EEO report to the online public inspection files for five co-owned stations in a Georgia market.  The principal change in this week’s decision was to reduce the fine by $6,000 – the amount previously proposed by the FCC for the licensee’s failure to self-assess its EEO program.  This portion of the proposed fine was imposed on the theory that, if the licensee had been regularly assessing its program, it would have noted that the required report had not made it to the online public file and fixed that problem.  This week’s decision reaffirms that reasoning but reduces the fine by the amount allocated to the failure to self-assess the program, finding that Cumulus may not have had notice that reviewing public file uploads was part of its obligation to self-assess its EEO program.  See our Broadcast Law Blog article here for our further discussion of this case, which demonstrates the continuing importance that the FCC places on EEO enforcement.
    • The Bureau entered into another Consent Decree with an Indiana AM station’s licensee requiring an $8,000 penalty to resolve issues arising from the Bureau’s review of a transfer of control application involving the licensee’s shareholders.  First, the Bureau found that the licensee failed to obtain FCC approval by filing a transfer of control application for the transfer of shares of the licensee’s controlling shareholder to a trust of which the shareholder was the trustee.  The licensee then failed to timely file an involuntary transfer of control application within 30 days of the former shareholder’s death to reflect the resulting change in the trustee, filing the involuntary transfer of control application over 18 months late.  This is one of several recent cases that show that death of a controlling owner (or even estate planning by the owners of a station) can trigger FCC requirements for approval of changes in control of an FCC license, and penalties can result when such approvals are not obtained (see, for instance, the cases we noted here, here, here, and here).
    • The Bureau proposed a $16,500 fine against the licensee of an Alabama FM translator station for allegedly failing to timely request FCC authorization for temporary facilities for the translator, operating the translator without proper FCC authorization, and falsely certifying in the translator’s license renewal application that it did not have any unresolved or adverse character issues.  The Bureau proposed the fine based on its finding that the licensee had been operating the translator at variance from its license since June 2017 without obtaining FCC authorization to do so.  Additionally, the Bureau found that the licensee failed to disclose in the renewal application that the licensee’s principals were involved in cases involving cancelled stations in which those individuals were found to have made false statements and operated those stations with unauthorized facilities.  The FCC’s rules normally require a base fine of $10,000 for unauthorized operations, and a base fine of $3,000 for failing to request special temporary authority (STA) to operate at variance from a station’s license.  In this case, however, the Bureau reduced the proposed fine for unauthorized operations from $10,000 to $5,000, and the proposed fine for the late-filed STA request from $3,000 to $1,500, because FM translator stations are secondary services.  The Bureau, however, proposed a $10,000 fine for the licensee’s false certifications. 
  • The Media Bureau also took two actions that could result in the cancellation of station licenses:
    • The Bureau dismissed an Oregon FM station’s license renewal application after determining that the station failed to operate from an authorized location for over twelve months and its license therefore terminated automatically pursuant to Section 312(g) of the Communications Act.  Section 312(g) states that a station’s license will be automatically cancelled if the station that has not operated as authorized for a full year, unless the FCC makes an affirmative determination that there are public interest factors warranting the preservation of the license.  The Bureau rejected the licensee’s claim that no authority was necessary as its move of its antenna from one site to another was less than one second different in geographical coordinates.  The FCC found that a move of less than three seconds does not require a construction permit only when it involves a coordinate correction and, even then, the move requires FCC approval in a license application after the move.  Neither a construction permit nor a license application was filed by this licensee.  The Bureau also dismissed the station’s argument that it was exempt from requesting authority to move to a new transmission facility as the antenna at the new site was mounted in a tree, and thus did not require construction of a new tower.  The Bureau dismissed the station’s argument as baseless, noting that placing a station’s antenna in a tree required prior FCC authorization just as placement of a station’s antenna on a tower because the FCC needs to know the precise location of any station’s transmission facilities to ensure adequate interference protection to other stations and the safety of air navigation. 
    • The Bureau, along with the FCC’s Managing Director, issued an Order to Pay or to Show Cause to the licensee of an Illinois AM station and a Missouri FM station in which the Bureau proposed to revoke the stations’ licenses unless, within 60 days, the licensee pays the delinquent regulatory fees and interest, administrative costs, and penalties.  According to the Order, the FCC’s records indicate that the stations currently have unpaid regulatory fee debt from fiscal years 2010, 2012, and 2013 totaling $13,121.32 for the AM Station, and totaling $11,828.38 for the FM station.
  • The National Association of Broadcasters (NAB) released a report detailing the public safety importance of AM radio.  In the report, the NAB explained that AM radio is an essential component of the nationwide Emergency Alert Service – especially given AM radio’s unique importance to communities of color and rural areas.  For that reason, the NAB again urged Congress to pass the AM Radio for Every Vehicle Act (see our previous discussion of NAB’s position on the bill here), which would mandate the installation of AM radios in all new cars, including electric vehicles.  As we discussed here, the bill has not mustered sufficient support in Congress to pass.  See our discussion here regarding the bill, and its importance to the survival of AM broadcasting.
  • Using the maximum fine permitted before the recent inflation adjustment (see here and here regarding our discussion of the FCC’s recent adjustments of fines for inflation), the FCC’s Enforcement Bureau issued two Notices of Illegal Pirate Radio Broadcasting to landowners in Hazelton, PA, and Newark, NJ, for allegedly allowing pirates to broadcast from their properties.  The Bureau warned the landowners that the FCC may issue fines of up to $2,316,034 under the PIRATE Radio Act if the FCC determines that the landowners continued to permit any individual or entity to engage in pirate radio broadcasting from their properties.

The full Commission this week issued an Order fining Cumulus Media $26,000 for its failure to upload one EEO Annual Public File Report to its online public inspection file until about 9 months after the due date.  The unanimous decision of the five Commissioners generally upheld an EEO Notice of Apparent Liability, issued unanimously by all four FCC Commissioners about two years ago, where the Commission had proposed a $32,000 fine on the company for its failure to timely upload the annual EEO report for a cluster of five co-owned stations in a Georgia market (and the fact that a link to that report on each stations’ website was also missing for that period).  The principal change in this week’s decision was to reduce the fine that had been proposed by $6,000, reflecting the amount that the Notice of Apparent Liability had assessed for the licensee’s failure to self-assess its EEO program. Broadcasters are required to regularly assess the effectiveness of their EEO program.  The proposed fine was imposed on the theory that, if the licensee had been regularly assessing its program, it would have noted that the required report had not made it to the online public file and fixed that problem.  This week’s decision reaffirms that reasoning but reduces the fine by the amount allocated to the failure to self-assess the program, finding that Cumulus may not have had notice that reviewing public file uploads was part of the obligation to self-assess.

It is very important to note that this decision did not cite any failure by the licensee to recruit widely when it had open positions, nor any failure of the group to conduct the required EEO non-vacancy specific outreach (these obligations described in our posts here and here).  The alleged violations cited in the decision were simply tied to the failure to upload the annual report.  In fact, Cumulus stated that the report was prepared on time, but was not uploaded to the public file because of an administrative oversight due to staff turnover.  While the base fine for this violation totaled less than $10,000, the proposed fine was increased because Cumulus was found to have previous FCC rule violations for EEO and sponsorship identification matters.  Both Cumulus and the NAB argued that this amount was excessive for a single instance of a paperwork shortcoming – the FCC rejecting that reasoning, finding that the upload was a critical part of the broadcaster’s EEO obligations as it gives the public a way to monitor the performance of the licensee. 

Continue Reading FCC Imposes $26,000 Fine on Broadcaster for One EEO Annual Public File Report that was Uploaded Late

Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC’s January 12 report listing the items on circulation (those orders or rulemaking proposals that have been drafted and are currently circulating among the Commissioners for review and a vote) noted the removal from the list of a draft Notice of Proposed Rulemaking which proposes prioritizing FCC review of applications seeking approval for license renewal and assignments or transfers of control when those applications are submitted by broadcasters that provide locally originated programming.  The removal from the list usually means that the item has been voted on and will be made public within a few days.  This proposal was announced in November by FCC Chairwoman Rosenworcel to support and incentivize local journalism by rewarding broadcasters’ commitment to meeting the needs and interests of their local communities.  How the prioritization of assignment and renewal applications would promote local journalism when these applications are, for the most part, routinely processed and granted within a few weeks of the end of statutorily required public comment periods, was not set out in the announcement.  We will be looking for the release of any FCC action to see the details of this proposal. 
  • The FCC’s Media Bureau proposed a $150,000 fine against a New York TV station for allegedly failing to negotiate in good faith a retransmission consent agreement with a large cable provider.  The Bureau alleged that the TV station violated the FCC’s good faith negotiation requirements by repeatedly proposing terms that foreclosed the ability of the parties to file complaints with the FCC.  The TV station contended that parties to such agreements typically agree to withdraw good faith negotiation complaints once a final agreement has been reached.  The Bureau disagreed, finding that such contractual terms are presumptively inconsistent with the good faith negotiation requirement.  See our Broadcast Law Blog article here for other instances where the FCC has found violations of the good faith negotiation requirements for retransmission consent agreements.
  • The FCC announced that the inflation-adjusted maximum penalties for FCC violations released by the Enforcement Bureau last month will become effective on January 15.  As we previously discussed here, the maximum fine for most violations will be $61,238 for each violation or each day of a continuing violation, with a maximum total fine for any continuing violation not to exceed $612,395.  Maximum fines involving indecency will now be $495,500 for each violation or each day of a continuing violation, with a maximum of $4,573,840 for any single act.  Fines for violations of the rules prohibiting pirate radio operations will now be as much as $119,555 per day not to exceed a total of $2,391,097.
    • Using the maximum fine permitted before the inflation adjustment, the FCC’s Enforcement Bureau issued a Notice of Illegal Pirate Radio Broadcasting to a landowner in the Bronx, New York for allegedly allowing a pirate to broadcast from its property.  The Bureau warned the landowner that the FCC may issue fines of up to $2,316,034 under the PIRATE Radio Act if the FCC determines that the landowner continued to permit any individual or entity to engage in pirate radio broadcasting from its property.
  • The FCC released its quarterly Broadcast Station Total Press Release.  The release shows that, compared to the same release from a year ago, there are 40 fewer AM stations, and 23 fewer commercial FM stations, but 79 more noncommercial FM stations.  There were also 10 more commercial UHF TV stations and 5 fewer commercial VHF TV stations; and 4 more noncommercial UHF TV stations and 4 fewer noncommercial VHF TV stations. 
  • The US Court of Appeals for the District of Columbia Circuit, in a brief order, denied a petition filed by a Kentucky AM station which sought a court order to compel the FCC to reinstate its cancelled license because the FCC failed to notify the station of its dismissal of its renewal application.  The station sought relief from a February 2023 decision affirming a prior decision to cancel the station’s license because it failed to file its 2020 license renewal application.  The station argued that it had no notice of its need to file a 2020 renewal (because its 2012 renewal was still pending because of public file and other issues). The FCC found that the Public Notice announcing the renewal filing procedures for all licensees made clear that a filing was required, even for applicants that had their prior renewal still pending.  While the station owner argued that it had no knowledge of this requirement, the FCC said individual knowledge was not necessary, as the licensee had constructive notice from the publicly released notice about renewal processing procedures. This case makes clear to all licensees that they need to be familiar with all FCC procedures for any requirement that could possibly affect them to avoid missing an important FCC obligation.
  • The FCC’s Media Bureau dealt with several cases of fines on stations for improper operations or FCC paperwork.  These include the following:
    • The FCC’s Media Bureau proposed fines against two TV stations for their failure to timely upload their quarterly issues/programs lists to their online public inspection files.  In the first case, the Bureau proposed a $6,000 fine for a Texas TV station for allegedly failing to timely upload these lists for a total of nine quarters, i.e., five lists more than one year late, two lists between one month and one year late, and two lists between one day and one month late.  In the second case, the Bureau proposed a $3,000 fine against a California TV station for allegedly failing to timely upload these lists for a total of six quarters, i.e., one list over six months late and five lists over one year late.
    • The FCC’s Media Bureau issued a $2,000 fine to the licensee of two Idaho TV translators for failing to timely file license applications for the translators and operating the stations without authorization after their construction permits had expired.  As we wrote here, the Bureau originally proposed a reduced $13,000 fine against the licensee ($6,500 instead of $13,000 per station) because TV translator stations are secondary services.  In this week’s order, the Bureau further reduced the fine to $2,000 ($1,000 per station) based on the licensee’s demonstration of inability to pay the proposed fine due to financial hardship.
    • The FCC’s Media Bureau proposed fines against an Oregon and a Washington LPTV station (see here and here) for failure to timely file their license renewal applications – which in both cases were filed over one month late without explanation.  In these decisions, the Bureau continued its recent practice of proposing a $1,500 fine against an LPTV station for failure to timely file a license renewal application.
  • The FCC’s Media Bureau requested comment on a TV station’s proposal to allocate reserved noncommercial educational (NCE) television channel 12 to Waynesboro, Virginia, as the community’s first local television service and its first NCE television service.  Comments and reply comments are due 30 and 45 days, respectively, after the proposal is published in the Federal Register
  • The FTC announced that it will hold an informal hearing on its proposed rule banning fake reviews and testimonials in advertisements and marketing materials enabled by the emergence of generative artificial intelligence.  Specially, to combat such harms, the FTC is proposing to prohibit businesses from engaging in misconduct, including: selling or obtaining fake consumer reviews and testimonials, buying positive or negative reviews, using insider reviews, making or using unjustified legal threats, intimidation, or false accusations to prevent or remove a negative consumer review, and using fake social media subscriber and viewer data.  The hearing is scheduled for February 13 at 10 a.m. ET.  The proceeding follows previous FTC warnings regarding the use of deceptive endorsements in advertisements, which we discussed here.  The FTC has also issued penalties against media companies for permitting the use of deceptive endorsements in advertisements, which we discussed here

Our Broadcast Law Blog, we looked at the Copyright Royalty Board’s announcement of the start of a new proceeding to set the royalty rates for 2026-2030 to be paid by webcasters (including broadcasters who simulcast their programming through internet-delivered channels) to SoundExchange for the noninteractive streaming of sound recordings.  Petitions to participate in the proceeding to set those rates are due February 6, 2024.

Update (January 24, 2024) – The Copyright Royalty Board issued a Federal Register Notice correcting the deadline for Petitions to Participate in the WEB VI proceeding – making clear that the deadline is February 5, 2024, not February 6 as previously reported. This article has been updated with the corrected deadline. For more information, see our article here).

The Copyright Royalty Board on Friday published in the Federal Register a call for interested parties to file Petitions to Participate in the proceeding to set the royalty rates to be paid by webcasters (including broadcasters who simulcast their programming through internet-delivered channels) in the period 2026-2030.  These royalties are paid by webcasters to SoundExchange for the noninteractive streaming of sound recordings.  The CRB is required to review these rates every five years.  These proceedings are lengthy and include extensive discovery and a trial-like hearing to determine what royalty a “willing buyer and a willing seller” would agree to in a marketplace transaction.  Because of the complexity of the process, the CRB starts the proceeding early in the year before the year in which the current royalty rate expires.  So, as the current rates expire at the end of 2025, parties will need to sign up to participate in the proceeding to determine 2026-2030 rates by February 5, 2024 by filing a Petition to Participate.  The Petition must describe the party’s interest in the proceeding and be accompanied by a filing fee of $150.  The Federal Register notice provides other procedural details for filing these Petitions.

Once the Petitions to Participate are filed, the CRB will set out the rules and procedures to be followed in the proceeding.  Initially, there is a 90 day period in which the parties can try to settle the case.  While parties can settle at any time (subject to approval of the terms by the CRB), this initial 90-day period occurs before any litigation begins and offers parties the opportunity to avoid much of the cost of litigation.  Once that period ends without a settlement, the litigation begins.  Initial stages of the litigation (including the identification of witnesses, submission of the rate proposals and the evidence supporting those proposals, and the initial discovery) will likely all take place in 2024, with the hearing itself conducted in 2025, followed by final briefs summarizing the evidence and arguing about the conclusions to be drawn from that evidence. There are usually oral arguments held after the briefs are submitted.  At that point, the three Copyright Royalty Judges will consider the evidence and the arguments and release their decisions late in 2025, so that parties know the new rates as of January 1, 2026. While there may be appeals of the decision that are argued well beyond the effective date of the new rates, the rates become effective while those appeals are pending.

Continue Reading Copyright Royalty Board Starts WEB VI Proceeding to Set Webcasting Royalties Paid to SoundExchange for 2026-2030: Petitions to Participate Due February 5