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

Broadcasters are inevitably moving toward a digital future - exploiting new Internet and mobile platforms to supplement their traditional over-the-air operations.  Last week, I conducted two sessions in Salt Lake City for the Utah Broadcasters Association, one on the legal issues to be considered in connection with broadcasters' use of the digital media, and a second updating broadcasters on all the legal and regulatory issues that they face from Washington with their over-the-air operations.  Slides from the digital media presentation, Broadcasters Online: Legal Issues in the Cyber Jungle, are available here, and those from the broadcast update, the Top Ten Washington Issues that Should Keep Broadcasters Awake at Night, are available here.

To show how quickly things move in Washington, since the seminar, there have been two new developments that relate to topics discussed at the seminar.  On the day of the seminar, the Commission's Enforcement Bureau came out with a policy statement about a certification that broadcasters need to include in all of their advertising contracts certifying that the advertising was not sold with a discriminatory purpose - as there will be a specific question about the certification in all license renewal applications.  We have summarized the requirements for the clause to be included in the advertising contract here. 

At the seminar, we also discussed sponsorship identification, and how stations must acknowledge the sponsor of anything of value that they receive in exchange for any on-air statement.  On Friday, the FCC fined two television stations for receiving video news releases that were used on the air.  These cases made clear that the broadcaster must acknowledge who paid for the production of a video news release that overtly promotes a commercial product - even if the station received nothing from the sponsor except for the video news release itself.  A summary of those decisions can be found here.

Other material of relevance to the broadcasters who attended the seminar include the following:

• A guide to the contents of a station's public inspection file can be found here.
• A guide to preparing for the upcoming license renewal can be found here.
• An article on the required on-air disclosures about the material rules of a broadcaster's contest can be found here
• Slides from last year's Utah seminar on the FCC's EEO rules can be found here, and a guide to EEO compliance can be found here.
• Information about the issues being considered in the FCC's proceeding on potentially repurposing some of the television spectrum can be found here.  
• The FCC's call for stations to register by April 5 their translators, LPTVs and the paths to cable head-ends and satellite receive locations to protect them from white spaces devices is summarized in our article here.

Other issues of importance to broadcasters are routinely summarized the blog. 

 

Public performances, synch and master use licensing, sound recordings, musical compositions - what are all these terms, and how does a digital media company make sense of them and figure out where to go get permission to use music in their business?  These issues were discussed in a webinar that I did with my partner Rob Driscoll from our firm's New York office for the Texas Association of Broadcasters.  The slides for that presentation are available here.  A revised and updated version of our memo on the Basics of Music Licensing in the Digital Media, giving more information on many of the subjects discussed in the presentation, has also just been published, and is available here. 

During the presentation, we talked about the broadcaster's royalty deal with SoundExchange for Internet radio streaming.  Details of that settlement are here.  The performance complement waivers that are associated with that agreement are detailed here.  In the presentation, we also mentioned that stations with websites featuring user-generated content may avail themselves of a safe harbor from liability if they take certain precautions.  Website operators must register with the Copyright Office the name and contact information of a person with responsibility to receive notices from copyright holders that users have posted infringing content, and to take down any content that is in fact infringing.  The Copyright Office instructions for registration can be found here.   These materials may not answer every question, but they may start you asking the right questions as you use music in connection with your digital properties.

Fines for noncommercial broadcasters who air acknowledgments of their donors and contributors that sound too much like commercials have been a problem area for many noncommercial educational radio and television stations, and have resulted in significant fines from the FCC.  The FCC allows "enhanced underwriting announcements" that identify a sponsor, what their business is, and where they are located, but such information must be provided in an objective, non-promotional manner.  Earlier this week, I conducted a seminar for noncommercial broadcast stations who are members of the Maine Association of Broadcasters and the Connecticut Broadcasters Association.  During the seminar, we discussed the FCC rules that govern fundraising done on such stations.  The PowerPoint slides from that presentation are available here, and provide an outline of the FCC rules on underwriting, promotions, fundraising and related issues, with samples of announcements that have led to FCC fines for noncommercial stations.

We have written many times about FCC issues related to fundraising and other matters relevant to  noncommercial stations.  We have written articles about cases where the FCC fined stations for enhanced underwriting announcements that were too enhanced, and violated FCC standards by containing prohibited calls to action, inducements to buy, price information or qualitative claims (see, for instance, articles here and here).  Another article discussed fines issued by the FCC for improper underwriting announcements where the announcements were of excessive length, and where the announcement ran in programming that was not originated by the station and from which the station received no consideration.  Another article discussed the FCC prohibition on noncommercial stations interrupting their regular programming to raise funds for charitable groups other than the licensee.  You can scroll though other articles we have written on other legal issues for noncommercial broadcasters by clicking here.  Watch our blog for other issues that relate to noncommercial broadcasters to stay up-to-date on the latest developments about which you should be aware. 

The nuts and bolts of legal issues for broadcasters were highlighted in two sessions in which I participated at last week's joint convention of the Oregon and Washington State Broadcasters Associations, held in Stephenson, Washington, on the Columbia River that divides the two states.  Initially, I conducted a seminar for broadcasters providing a refresher on their EEO recruiting obligations set out under FCC rules.  With some public interest groups calling for stricter enforcement of a broadcaster's EEO obligations, and with the license renewals for Oregon and Washington State radio broadcasters coming up in 2013 (with TV the next year), broadcasters cannot slack off on these important obligations to widely disseminate information about job openings and to educate their communities about broadcast employment issues as required by the FCC rules.  Slides from my PowerPoint presentation on a broadcaster's EEO obligations are available here.  Broadcasters looking for more information on EEO obligations can review the Davis Wright Tremaine Guide to the EEO rules, here, and our most recent reminder about the obligations for the annual EEO public inspection file report, here.

At a second session, we discussed the variety of legal issues facing broadcasters in the current environment.  Many of the same issues discussed in this session were also discussed in my Top Ten List of Legal Issues to Keep Broadcasters Awake at Night, details of which can be found here.  Some specific questions were raised during the Oregon-Washington session include questions about the FCC rules covering contests that stations conduct, and the rules that apply to such contests.  See our blog post on some of those issues here and here.  The obligations for the public file of broadcasters are also set out in our advisory, here.  Another issue that broadcasters should remember is the new obligation for their advertising contracts to include terms that state that advertising is not sold for any discriminatory purpose, to avoid no-urban, no Spanish dictates (see our post here for details).  As we wrote recently in connection with fines issued to a couple of stations for multiple day-to-day violations of the FCC rules, the attention to these details now will avoid major financial headaches for broadcasters later, and potentially long-term issues at license renewal time as well. 

The NAB Radio Show in Washington two weeks ago was a upbeat reflection of the present state of the broadcast industry.  But sandwiched around that conference, in the last three weeks, I have spoken at three digital media conferences - and as someone who has grown up on over-the-air radio, and based a career on representing radio stations, the discussions at these conferences raised many questions about the future of the radio industry. At the Radio and Internet Newsletter (RAIN) Summit East in DC, prior to the NAB Radio Show, I gave a summary of the royalty issues facing Internet Radio operators. At the Future of Music Policy Summit in DC the next week, I spoke on a panel on the Future of Radio. And at the Digital Music Forum West in Los Angeles last week, I moderated a panel on music licensing issue for digital media companies. At each of these conferences, the focus was on the digital media, not on over-the-air broadcasting, and many times the question was raised as to whether traditional radio was still relevant in the digital age. I’m not sure how many times I was asked, when I told someone that I am a lawyer who represents radio stations, what I plan to do next when my clients are extinct? Even in media-related industries, many seem to regard radio broadcasters as old-school – a throw back to some other entertainment era. Yet, what surprised me was how these same people who questioned the relevance of radio were all able to talk about what songs were or were not being played on the local rock station, or about the crazy thing some local DJ said that morning and the contests running on radio stations in their market, or about the story on NPR that kept them in their car seats when they were sitting in their driveway at home the night before.

At each of these conferences, in listening to the discussions of the issues facing all the new media (like how to make money), the dark view of radio seemed overblown.  Radio still seems to be a vital medium, especially if it can emphasize the advantages that it has. Harnessing the power of radio with digital media creates platforms that neither has on its own. In many ways radio, of all the traditional media, is best able to use its place in the media landscape to expand in the digital world. Radio has always excelled in reaching niche audiences, in much the same way that the Internet now does. By playing to its strengths, whether that be music, news, talk or sports, or some combination thereof, radio can expand its connection and provide broader and deeper services to its listeners, and serve its audiences like never before.  And all the digital media companies seem to recognize this potential, but seem to be discounting radio's ability to capitalize on its advantages. 

As with any new line of business, there will always be bumps. Unfortunately, my legal brethren are often the ones that create those bumps, occasionally inflating those bumps into small mountains. Legal and regulatory obstacles have scared some broadcasters away from aggressive on-line efforts. I’ve spent much time in the last few years helping clients navigate their entry into the digital world – whether it be in connection with music royalties, concerns with liability from user-generated content or social media pages, the privacy rights of those who sign up for loyal listener clubs, or copyright issues in connection with repurposed content. There are not always easy answers about how a digital broadcaster can do what it wants to do.  And Congress and the FCC will no doubt come up with new legal challenges to broadcasters as they develop their on-line presence – witness our recent posts about the Congressional mandate to close caption broadcast video programming repurposed to the Internet and the Commerce Department inquiry into the protections of copyrighted content and its impact on digital media innovation. 

But, with time and the energy and imagination of all those involved in the radio industry, in one way or another these issues can be worked out. What broadcaster, after years of dealing with the FCC and its attitudinal fluctuations, can’t handle some new regulatory wrinkle? While, in the digital world, the wrinkles may come not come from the FCC but from one of the alphabet soup of other government agencies that Washington has to offer, it’s just another set of rules that the digital-age broadcaster has to help shape, and then adapt to once they are set. Having dealt with content regulation before, the broadcaster has a leg up in adjusting to regulation in the digital world. It’s just a matter of paying attention to the issues, reading the trade press, communicating with your attorney, and participating in the media organizations who always have given you guidance. Just make sure that they are providing the guidance that you need as you become more and more immersed in the on-line world.

And while some of the questions about regulation, royalties and legal issues facing digital media seem today to have no clear answers, remember how new much of this technology really is. Who carried a computer with them 15 years ago, much less a computer that connected to the Internet wirelessly, fits into your pocket and makes phone calls as well? 15 years ago, streaming music on the Internet was essentially a technical possibility only for the geeks. The oldest Internet radio companies that are still operating are at most a decade old. And some of the biggest players in Internet radio and video - like YouTube and Pandora - have been streaming for just 5 years. With much of the digital media so new, and developing and changing so fast, it is no wonder that the law has not caught up. I emphasized the fact that regulation has not caught up with the digital media developments in several recent presentations that I have done summarizing some of the digital media issues facing broadcasters as they travel on their digital safaris. See, for instance our posts here and here on some of these recent presentations. Yet, even with this legal uncertainty, many companies are venturing forward and exploiting the opportunities that the new media bring – staking out their place in the new media universe.

The rewards for radio broadcasters expanding their reach into the digital world may well be great – in terms of audience and advertising growth and potentially even in terms of regulation. It goes without saying that the Internet offers radio broadcasters the ability to connect visually with listeners (and to better serve their advertisers), and the social networking opportunities can enhance the sense of community that good radio stations have long sought to engender. Radio can leverage its brands to bring all sorts of new services to listeners, and use its connection with its audience to promote those services. And it may bring other benefits in terms of regulatory relief. The ability of so many digital media companies to reach listeners, viewers and local residents through the new media may well spell the doom of the “scarcity” rational that has underlied so much broadcast regulation in the past. We have just this week seen three former FCC Chairman say that, given the changes in the media industry, the broadcast multiple ownership rules are no longer relevant. In the past, the scarcity rationale was the basis for most broadcast regulation – the theory was that broadcasters needed to be regulated because they were so intrusive, and spectrum so scare, that only good actors should be allowed to use it. Thus, restrictions that would never have been allowed to be imposed on newspapers were tolerated by the Courts when they were applied to broadcasters. With the Internet available to give you all the content that you want, when you want it, the justification for this scarcity regulation is fast disappearing.

The digital media obviously poses challenges for radio, but also great opportunities. Radio needs to be there as it develops, to ride the wave, and exploit the new media. Radio can interact with its audiences as never before, and provide new services that were not possible a decade ago. I have radio clients who essentially run on-line newspapers, magazines, and even local television stations – without a printing press or a television transmitter. The opportunities are limitless – by unleashing radio’s creativity onto the digital media, radio will remain relevant in the digital age, and the industry will continue the good fortune that it has so long enjoyed. Digital media companies are going after radio’s audiences (see, for instance, this summary of the recent comments of Pandora founder Tim Westergrin about how that service will be taking on broadcaster’s drive time domination), so broadcasters must be ready to meet the challenge by competing on all platforms that are available in the digital media marketplace. Tomorrow is here today, and it is time to take advantage of its opportunities, and meet its challenges.

So you want to start streaming your radio station on the Internet?  Or maybe you want to start a whole new Internet radio station.  In a session at last week's Texas Association of Broadcasters Annual Convention in Austin, Dave Oxenford talked about the legal considerations starting an Internet radio station, while Chris Dusterhoff of Bryan Broadcasting in Bryan/College Station, Texas talked about some of the technical and business issues in doing so.  A copy of Dave's PowerPoint presentation from that session is available here.  The presentation addresses some of the issues that you need to consider, including the music royalties that will be required from most webcasting operations. 

In addition to the issues involved in streaming your signal on the Internet, broadcasters have a host of other legal issues that they should consider in connection with their digital presence.  Issues that arise with service marks and copyrights, with employment issues, social media, privacy and sponsorship disclosure were all addressed in Dave's presentation on the Legal Issues in the Cyber Jungle.  A copy of his PowerPoint presentation is available here.  Dave also mentioned that stations with websites featuring user-generated content, to help insulate themselves from copyright infringement that might occur in the posts from their audience members, should take advantage of the registration with the Copyright Office that may provide safe harbor protection if a station follows the rules and takes down offending content when identified by a copyright holder.  The Copyright Office instructions for registration can be found here.   Additional information about use of music on the Internet can be found in Davis Wright Tremaine's Guide to The Basics of Music Licensing in a Digital Age. 

As I was preparing for a session updating and refreshing broadcasters about their obligations under the FCC’s EEO rules at the Iowa Broadcasters Association annual convention in Des Moines on June 30, I learned of what seemed to be a startling development – the Minority Media and Telecommunications Council, one of the most effective advocates in Washington for minority hiring and ownership, had urged the FCC to suspend its enforcement of the EEO rules. What was this all about? I went on with my presentation (the PowerPoint slides for which are available here, and the slides for the presentation that I did at another session providing an update on Washington issues for radio broadcasters are available here), quickly adding a summary of the MMTC request. While some broadcasters might have hoped that the request recognized that the EEO rules were no longer necessary as broadcasters were, on their own, making great strides in diversifying their workforce, in fact what the MMTC was seeking was tighter EEO enforcement, contending that the current rules are so ineffective as to not be worth the time spent on their implementation and enforcement.

While MMTC acknowledged that there have been a number of recent cases fining stations for noncompliance with the EEO rules, it contends that often the stations that are hit by such fines have very diverse workforces, and thus should not have to worry about EEO outreach. We have written about some of these fines.  These cases demonstrate that the current rules are not targeted at minority and gender-based affirmative action, as FCC rules requiring any evaluation of minority and gender-based hiring were twice declared by the US Court of Appeals to be instances of unconstitutional reverse discrimination. Instead, the current rules are focused instead on bringing new people into the broadcast employment workforce – people recruited from a wide variety of community groups, and not exclusively by word of mouth or through other hiring avenues that simply take people from traditional broadcast hiring sources. But, as MMTC points out, these rules are not based on necessarily seeking to include members of minority groups or women in station workforces.  Thus, as their focus is simply on wide dissemination of information about job openings, even stations that have high percentages of minorities and women on their staffs can still run afoul of the rules by not publicizing job openings.

So what does MMTC want? Seemingly, in some ways, they are seeing a return to an earlier scheme of EEO enforcement. They ask for modifications of the FCC’s EEO rules to include the following:

• The return of FCC Form 395, which requires each station annually provide to the FCC a profile of its workforce based on its racial and gender composition. The flings of Form 395 has been suspended for over 7 years, as a reaction to the court cases declaring the use of racial and gender profiling of broadcast workforces as part of the FCC’s EEO enforcement regime to be unconstitutional. Since then, the FCC has been seeking a way to bring back the form for statistical profiling of the industry without risking having the information used for enforcement purposes, but has not, as yet, adopted procedures to do so.
• More EEO audits. The FCC currently audits 5% of all stations annually for EEO compliance. MMTC suggests that 20% of all stations be audited annually, with some audits being done on site at the stations, rather than simply being a paperwork exercise filed at the FCC.
• An increase in the size of the FCC’s EEO staff so that audits will be more thorough, and completed more quickly. MMTC pointed out that, in several cases, no fines were issued to companies with insufficient EEO efforts as, by the time their EEO efforts were reviewed, a renewal application had been granted, cutting off the FCC’s ability to fine the station for actions taken in a prior renewal period.
• Moving EEO from the Media Bureau to the Enforcement Bureau. The Enforcement Bureau seemingly has been more ready to take aggressive action against stations for FCC rule violations generally than the Media Bureau.
• Exempt stations with diverse workforces from EEO penalties
• Work with the EEOC to investigate more instances where discrimination complaints are filed and take such complaints into account in an FCC review.
• An investigation into whether word-of-mouth hiring remains too common in the broadcast industry
• Start an FCC investigatory hearing into why minority representation in broadcast journalism is decreasing

Whether any or all of these steps is taken remains to be seen. But what we are looking at in MMTC’s request is a return to an emphasis on minority and female hiring, not on simply hiring from all groups within the community, not exclusively from the “old boys” network as currently required by the rules. Watch this space for more developments on the MMTC petition. And, for more information on the FCC’s current EEO requirements, see our advisory on the EEO rules here, and our regular reminders on the FCC’s mandatory public inspection file report, the most recent of which is available here. 

Davis Wright Tremaine attorneys David Oxenford and Rob Driscoll conducted a seminar -  Using Music in Digital Media: Business and Legal Issues - on June 16, 2010 in New York City.  The seminar was presented to attorneys from committees of the New York State and New York City bar associations.  In the seminar, Dave and Rob discussed the music licensing issues that can arise when music is used in digital media - touching on everything from royalties for the streaming of music by Internet radio stations, to the use of music in video productions or in advertisements that may be displayed online, to the occasional use of music by a business on its website to enhance the "stickiness" of that site.  The PowerPoint presentation from the seminar is available here.  Many of the issues that were covered in the seminar are discussed in Dave and Rob's memo the on The Basics of Using Music in Digital Media, available by clicking on this link.

Another topic that was discussed was the use of music in user-generated content, and how website operators can avoid liability that may arise from the posting on their sites of content using music and other copyrighted materials by users over whom the site owner has no control.  The Digital Millennium Copyright Act provides protection for those who host sites where such content is posted, but certain formalities need to be observed by the site owner to insure that they receive the law's full protection.  Site owners cannot encourage the posting of copyrighted content unless the appropriate clearances have been obtained, they cannot have actual knowledge of the infringing content, they cannot receive a direct financial benefit from the infringement, and they must act promptly to remove infringing content if notified that it is on their site.  To make this notification possible, to provide a "safe harbor" under the DMCA, a website owner needs to place a notice on its website in a "location accessible to the public," and register with the Copyright Office, the name of a person to be contacted by a copyright owner if the owner finds its content being used on the site without permission.  This notice must provide the contact person's address, phone number and email address.  Information about registering the contact person with the Copyright Office, a list of those website operators who have registered, and a link to the form to be used to register a contact person, can be found here.

On May 27, 2010, David Oxenford spoke to the Vermont Association of Broadcasters annual meeting in Montpelier, updating the broadcasters on Washington events of importance, and discussing the FCC's political broadcasting rules.  A copy of Dave's PowerPoint on issues of importance to broadcasters will be posted here soon.  Broadcasters may want to refer to Davis Wright Tremaine's Political Broadcasting Guide for a discussion of the political broadcasting issues that may arise in this election season.  One of the political broadcasting issues that was discussed in detail was the issue of what a station should do when faced with a political ad that comes from a third party, attacking a political candidate, and the candidate tells the station that the ad is untrue and, if it continues to run on the air, it may subject the station to liability.

This issue may be coming up more in the coming months.  The recent Citizens United case signals the potential for more campaign spending by corporations and labor unions. This money would be spent directly by these organizations, not contributed to the candidates, as the case did not loosen the limits on corporate contributions directly to candidate’s campaign committees. Thus, as the ads will not come from candidates, they will not be subject to the “no censorship” rule that applies only to candidate ads. Because the no censorship rules prevent a broadcast station from rejecting a candidate’s ad based on its content, stations are protected from any liability for the content of those candidate ads. In contrast, broadcasters are free to reject ads from corporations, labor unions, or other non-candidate groups. Because they can choose whether or not to accept such ads, they can technically be held liable for the contents of those ads, should the ad be defamatory or otherwise contain legally actionable material. This should not be new to broadcasters as, even before Citizens United, stations were often faced with complaints from candidates about ads from third party interest groups (like the political parties' campaign committees, or so-called 527 groups like MoveOn.org) that were permitted to advertise even before the recent decision. Most broadcasters want to be able to accept these advocacy ads from non-candidate groups, but they also want to avoid potential liability. What is a station to do when it receives such an ad, or when an ad is already running and a candidate complains about its contents?

While there is no easy answer, and a broadcaster should always consult with their lawyer when one of these issues arises, the broadcaster can rely on the standard for judging potential liability in most cases is that used in a defamation case. This standard, set out by the US Supreme Court, requires a finding of “malice” before a party can be found to be liable for transmitting information about a “public figure,” which would include a political candidate. For liability to be found, the malice standard requires that the broadcaster ran the ad either knowing it to be false or with reckless disregard of its truth. Thus, if a broadcaster has actual knowledge that a claim made in an ad is false, or has a substantial reason to doubt its truthfulness, yet nevertheless runs the ad and it does in fact prove to be false, there is the potential for liability. But if the ad is the typical campaign rhetoric – that Candidate A votes for big government, or votes for spending bills that waste taxpayer’s money, or that he has not done enough for education – there is no reason for the station to be on notice that there is anything wrong with such a spot, and running it in the first instance is not likely to be a concern. 

What we have seen in many recent campaigns, however, is that candidates or their representatives object to such ads once they start running, and demand that a station cease running the ad and threaten to sue if no action is taken. Once one of these letters challenging an ad arrives, if the ad in indeed false, the letter could be seen as putting the station on notice of the potential untruth of the ad. Thus, the receipt of the letter heightens the station’s duty to investigate to determine if the spot may in fact present some basis for liability. In many cases, the ad’s sponsor will have ready substantiation that the station can review. If, after investigation, the claims appear to have a reasonable basis, it's unlikely that the broadcaster will get into trouble for airing those ads. But if the ads are baseless, the broadcaster needs to beware.

Should the broadcaster pull the ad while it investigates? That involves the broadcaster and its counsel in some risk assessment. The risk often depends on the nature of the ad and the kind of claims that it makes. If the ad is making those typical political claims that are subject to interpretation (“Candidate X is a big spending liberal ”or “candidate Y favors policies that will lessen your freedom”), it is less likely that a court would find these to be actionable claims – particularly where the claims cannot really be proved false. By contrast, if there are claims that directly address the character or integrity of the candidate (e.g. “he was having an affair with a city employee while in office” or “he used taxpayer funds for his own private use”), then, if these claims are proved false, there is much more risk for the station. These kinds of ads should be approached more cautiously. 

There is no easy way to just say take the money and run.  While there have only been a handful of cases where a station has been sued for the content of a third-party ad, and even fewer where they have had to pay any damages, the threat is always there. Thus, in dealing with these issues, stations need to be careful, and need to vet the ads with their attorneys.  But most ads probably will be able to be run.  So proceed - but proceed with care.  

And remember, these cautions apply only to ads by third party groups.  If the ad is by a candidate's authorized campaign committee, the station cannot censor the ad, and it cannot be held liable for its contents.  So if you get a letter from an opposing candidate challenging the content of the ad by a candidate, you can't censor the ad, and should not be pulling it for investigation or because of concerns about the truth of the ads.  So be careful about the contents of third party ads, but rest easy when a candidate ad is running. 

On May 11, Brendan Holland presented a Webinar on the FCC's EEO Rules.  Hosted by the Michigan Association of Broadcasters and shared with 28 other state broadcast associations, the seminar provided a refresher course on the Equal Employment Opportunity rules.  A copy of the Power Point presentation from Brendan's seminar is available here, and an archived copy of the Webinar itself will be available on the web soon.  Broadcasters should contact their state broadcast associations or the Michagan Association of Broadcasters for the link  and access to the archived Webinar.  Also, a copy of DWT's EEO primer is available here.  A description of yesterday's Webinar is below.

With annual EEO public file reports due for stations in Michigan by June 1st, and the next broadcast station license renewal cycle just around the corner in 2011, stations need to make sure that they are familiar with the FCC’s EEO rules and are taking all the steps necessary to ensure that they stay out of trouble. EEO continues to be a hot issue for the FCC, and one that draws many fines from the Commission, both at license renewal time and in connection with the ongoing random EEO audits that the FCC conducts several times a year.

With the changes in ownership, personnel, and hiring efforts that inevitably occur at stations over time, it is important that station owners, managers, and hiring personnel are on top of the FCC’s rules. This session hosted by the Michigan Association of Broadcasters will provide a primer on the FCC’s Equal Employment Opportunity rules, including the outreach required for the opening of jobs at the stations, the non-vacancy related activities that stations should be engaging in, and the record keeping requirements to make sure you keep all the necessary documents to support what the station did. The goal of the session is to refresh your understanding of the rules, provide insight into the FCC’s enforcement and guidance in the past few years, and highlight some common pitfalls.

David Oxenford, Bob Corn-Revere, David Silverman, Brendan Holland, and others from Davis Wright Tremaine's media and communications practice will be in Las Vegas, Nevada from April 10-15 for the 2010 NAB Show.  The NAB convention is an annual event and a focal point for engineering, legal, and business issues for the broadcasting and greater media worlds.  Bob Corn-Revere will be speaking at the American Bar Association Conference, Representing Your Local Broadcaster, on April 11, on a panel on new technology and the dangers it poses for journalists reporting from disaster areas or other scenes where immediate verification of information is not possible - the panel is called:  "Clear and Present Danger, Guiding Journalists Through the Catastrophic Perils."  David Oxenford, on the morning of April 12, will be speaking at the NAB Show on a panel called, "Copyright Licensing: Seeking a Bridge Over Troubled Waters", a panel dealing with the proposed broadcast performance royalty, streaming fees, the current ASCAP and BMI negotiations, and other copyright issues that arise in day-to-day operation of a broadcast station.  Dave will also be moderating a panel at the Radio and Internet Newsletter's RAIN Internet Radio Summit, to be held in conjunction with the NAB Show, at the Renaissance Hotel on April 12.  Be sure to join us at these and other events in Las Vegas.

To help you attend the Show, we have been offered some discounts and free admissions for our readers.  The RAIN Summit, Internet Radio's main event, has offered readers of the Broadcast Law Blog a 30% discount on admission to the conference.  That conference includes a full day of discussion of Internet radio topics, and will feature many of the industry's biggest names.  From past experience, this always a great event with much great information, important for anyone with any interest in Internet radio and digital media.  The Summit features great networking opportunities, with a box lunch and post-conference reception.  An Exhibit Hall pass to the NAB Show is also included for RAIN attendees

For those not interested in Internet radio, we can still get you into the NAB Show's Exhibit Hall - for free!  The NAB has offered our readers free access to the Exhibit Hall at the show. This free Exhibits-Only pass includes:

• Access to the Exhibit Hall at the Show
• Access to the Opening Keynote and State of the Industry Address
• Access to Info Sessions on the Convention floor
• Content Theater and Destination Broadband Theater

To find out how to register for these discounted offers, click on the Continue Reading link below.

To register for the RAIN Summit, go to the Summit registration site here, enter the code "RAINBLB" (for RAIN Broadcast Law Blog), and you'll get a 30% discount off the broadcaster/webcaster rate.  More information about the RAIN Summit, including a schedule of the panels and a list of speakers, is available here. 

For the NAB Exhibit Hall pass, please visit this site to redeem, or register at http://nabshow.com/register with the code A913.   More information is available at the official show website at http://www.nabshow.com. 

Feel free to pass along either of these offers.

For a sample of what's in store for the 2010 NAB Show, check out the schedule for the Broadcast Management Conference available here.  And, while we can't offer a discount, you can find more information about the ABA Conference on Representing Your Local Broadcaster here.

See you in Las Vegas!

Using music on your website, employees on Facebook or twitter, doing podcasts?  Everyone needs a guide to the legal issues that you may face as broadcasters move their content to new platforms.  At the Convention of the Oklahoma Association of Broadcasters, held in Oklahoma City on March 18-19, David Oxenford conducted a seminar on Legal Issues for Broadcasters Operating in a Digital World – dealing with legal issues that broadcasters need to take into account when moving their content and presence beyond their over-the-air signals.  The PowerPoint presentation used in that seminar is available here.  Other issues that were discussed in that session include:

• Use of music on websites (see our guide to Music Rights for Digital Media Companies here)
• Domain name issues (see our recent post on new domain names here)
• FTC guidelines on disclosing consideration given to bloggers and other users of social media sites (see our post on that subject here)
• Legal issues that arise from the social media (see Davis Wright Tremaine's webcast on the social media, here)
• Issues in connection with user generated content (see our posts here)

In addition, David conducted a separate seminar on FCC issues facing broadcasters.  A copy of the PowerPoint from that presentation is available here.  Issues discussed in that session included:

• The FCC's National Broadband Plan and its impact on television broadcasters (see our post here)
• The proposed broadcast performance royalty (or performance tax, see our post here)
• The FCC proceeding on the Future of Media (see our posts here and here)
• The recent Citizens United decision and its impact on political broadcasting rules (see our description of that case here, and our Political Broadcasting Guide, here)
• A variety of fines imposed on stations for violations of FCC rules - a summary of many of the recent fines can be found here.

 Broadcasters and others interested in the Digital Media should watch our Blog for future developments on all these issues and the many other legal matters of importance to their businesses. 

On March 16, David Oxenford spoke at a Continuing Legal Education Seminar on the FCC’s Political Broadcasting rules. The panel, sponsored by the Federal Communications Bar Association, included another attorney in private practice, an attorney from the NAB, Bobby Baker (the head of the FCC’s Political Broadcasting office), and a media time buyer for political candidates. The panel not only discussed the basic rules governing political advertising on broadcast stations, but also dealt with topics including the impact of the Citizen’s United case on FCC rules (see our post here on that topic), issues of what to do if a political spot contains objectionable content, and how stations should deal with complaints from candidates about the content of political ads. Many of these topics and others are discussed in the Davis Wright Tremaine Political Broadcasting Guide, available here.  The discussion also provided a useful reminder on certain aspects of the law regarding how much broadcast stations can charge political candidates for the purchase of advertising time on broadcast stations.

At the session, the political time buyer complained that broadcast stations were trying to charge political candidates premium prices for purchases of advertising time outside the “political window.” During the window, 45 days before a primary and 60 days before a general election, stations are required to charge candidates the “lowest unit rate” charged for any spot of the same class of time run on the broadcast station. Outside the window, broadcasters do not have to charge lowest unit rates but, as the buyer reminded the audience, they do still need to charge “comparable rates” to what the station charges advertisers for the same type of purchase. So, while candidates do not get volume discounts without buying in volume (as they do during the window), if they do buy in the required volume, they should get the same discount that other advertisers get. Stations should not “mark up” the rates charged to political candidates outside of the window.

Another question that came up dealt with the sale of advertising time on election day, whether it be the day of the primary or the general election.  As the law requires that stations charge the lowest unit rate for the 45 days before the primary and the 60 days before the general election, what do stations charge for time sold on election day?  After significant discussion, it was agreed that stations should charge the lowest unit rate on election day as well as during the political window before the election.  However, even for Federal candidates, there is no right of access to political time on election day.  That is, stations can decide themselves whether or not to sell time on election day.  But, if they do, it should be at lowest unit charge.

Watch our Blog as we highlight other election issues that arise during this election season. 

In the last two weeks, David Oxenford has, at two different conferences, moderated panels on digital music rights and licenses.  At the Digital Music Forum East, in New York City on February 25, 2010, his panel focused on rights and licenses generally, featuring panelists from SoundExchange, BMI, the Harry Fox Agency, Rightsflow and MediaNet.  As a handout, David provided copies of Davis Wright Tremaine's Guide to The Basics of Digital Music Licensing, available here.  Discussion on the panel included the question of when there is a public performance versus when there is a reproduction of a copyrighted piece of music (see our post here), royalties for interactive streaming (see our post here), and the difference between a sound recording and a musical composition, rights to both of which are needed in most digital uses of music (see our post here).

At the RAIN Summit North, held at Canadian Music Week on March 12, David's panel discussed the music royalty structure for Internet Radio companies in Canada. Panelists included the CEO of  Re:Sound (the Canadian version of SoundExchange, collecting royalties for the public performance of sound recordings) and the head of CMRRA-SODRAC (CSI), the Canadian Rights Society that collects for reproductions of musical compositions.  In Canada, broadcasters and Internet radio companies pay not only to SOCAN, the Canadian equivalent of ASCAP, BMI and SESAC in collecting for the public performance of musical compositions, but also to CSI for the reproductions of musical compositions made in servers, buffers and other digital reproductions. 

 

David Silverman participated on a panel discussing the legal aspects of social media at the Great Lakes Broadcasting Conference in Lansing, Michigan on March 3, 2010. His PowerPoint presentation focused on the risks and benefits of using Twitter, Facebook and other social media in the employment context, including use by broadcasters. There are a number of laws that impact both the protection and vulnerability of social media. The bottom line is that stations need to determine the extent to which social media use will be permitted and/or encouraged in the workplace and then develop a social media policy that will delineate the ways in which station employees can use social media with regard to station matters, while at work or at home.  A copy of David's PowerPoint presentation from the session is available here. 

On February, 18, 2010, David Oxenford conducted a seminar for the Utah Broadcasters Association on legal issues that affect radio and television broadcasters.  First, David summarized the various broadcasting legal and policy issues pending before the FCC and Congress.  David's PowerPoint presentation is available here.  Broadcasters interested in Washington issues that may affect them this year may also want to read our blog post from early January where we presented our legal predictions for 2010.

David then conducted a refresher course on political broadcasting issues that may arise in this election year.  His PowerPoint on political issues for broadcasters can be viewed here.  Broadcasters wanting more information on the FCC's political broadcasting rules and policies should review the Davis Wright Tremaine Political Broadcasting Guide.  A discussion of the issues for broadcasters raised by the recent Citizen's United case is available here.

Finally, David discussed recent developments in enforcement of the FCC's EEO policies.  The PowerPoint used in this session can be seen here .  Our Advisory on EEO rules and policies is available here, with forms and recordkeeping suggestions attached to that memo.  Our most recent EEO Public Inspection File Report advisory, with a model report attached, is available here.  Finally, our description of one of the recent FCC fines for noncompliance with the EEO policies is available here. 

David Oxenford today conducted a webinar for the Kansas Association of Broadcasters on the rules for political advertising.  In addition to the elections for the US House of Representatives, Kansas has a race to fill a vacant US Senate seat, as well as elections for Governor and a whole host of state and local offices.  With an August primary and the November general election, the 2010 election season could be a busy one in the state.  David's presentation covered reasonable access, equal opportunities, lowest unit rates, FCC paperwork obligations and the other related issues that govern how broadcasters need to treat political candidates and other political advertisers.  The slides from David's presentation are available here.  Broadcasters should also refer to Davis Wright Tremaine's Political Broadcasting Guide for information about preparing for the upcoming campaign, and spotting legal issues that may arise during the election season.

The 2010 political broadcasting season is almost upon us, with Texas leading the way.  With the first 2010 primaries on March 2, candidates in Texas are already in windows during which they need to file the paperwork to qualify for a place on the primary ballot.  Once they qualify for that ballot spot, they become "legally qualified candidates" in the eyes of the FCC, triggering reasonable access (for Federal candidates) and equal opportunities requirements.  Soon after, broadcast stations in Texas need to start according lowest unit rates to candidates (Federal, state and local) in the primary - such rates to start on January 16.  To help broadcasters prepare for the primary and the rest of the election season, David Oxenford and Bobby Baker, the head of the FCC's Office of Political Programming, conducted a webinar for the Texas Association of Broadcasters on December 2, 2009, originating from the TAB offices in Austin.  The PowerPoint slides used in the presentation is available here.  The Davis Wright Tremaine Political Broadcasting Guide that forms that basis of the TAB's political guide can be found here.

Texas will have an unusually active political season, with a primary election for Governor, where the State's sitting Governor's re-election is being challenged in his own party by one of the state's US Senators.  Races for the Texas State legislature will also likely be a hotbed of activity as the state will be electing the legislators who preside over Congressional redistricting after the 2010 census - a process that was particularly controversial in Texas after the last census.  Given the likely level of activity, broadcasters in Texas need to immediately start planning for the 2010 election and the obligations that it imposes on broadcasters.   And broadcasters in the rest of the country should similarly be preparing, as these same issues will be arising for them very soon, and advertising sold now could well have an impact on their political rates later in 2010 (see information about the webinar that David and Bobby conducted for 13 other state broadcast associations here). 

 

DWT attorneys David Oxenford and Ronnie London both spoke at the Future of Television - East Conference held in New York City on November 18-19, 2009. Dave delivered introductory remarks to the Conference, and participated with Shelly Palmer, Host of MediaBytes, in a discussion "What's the Industry Buzz.". Dave discussed the role of Washington in the Future of Television, outlining the issues facing "television" in its broadest sense - including broadband deployment, net neutrality, the battle over the spectrum, privacy, piracy and content protection, and content regulation.  The slides from his presentation are available here.

Ronnie was a panelist on a panel called The Future of Online Video, participating in a discussion with several CEOs of online video companies.  Ronnie discussed issues including FTC disclosure obligations, sponsorship identification requirements, and privacy concerns for companies offering on-line video.

On November 10, Davis Wright Tremaine's David Oxenford and Bobby Baker, the head of the FCC's Office of Political Broadcasting, conducted a webinar on the FCC's political broadcasting rules and policies.  The webinar originated from Lansing, Michigan, before an audience of Michigan Broadcasters, and was webcast to broadcasters in 13 other states.  Topics discussed included reasonable access, equal opportunities, lowest unit charges, and political sponsorship identification and public file rules. 

Seminar participants were provided with Davis Wright Tremaine's Political Broadcasting Guide, available here.  The PowerPoint presentation used in the seminar is available here.

 

David Oxenford provided a legal update on Washington issues to the Kansas Association of Broadcasters Annual Convention in Topeka on October 19, 2009.  His presentation - What Broadcasters Need to Know About What to Expect from Washington in 2009-2010 - discussed issues including the proposed broadcast performance royalty, localism and multiple ownership proceedings at the FCC, LPFM changes, and advertising and sponsorship identification policies.

A copy of Dave's PowerPoint presentation is available here.   

On October 8, 2009, David Oxenford moderated a panel at the Digital Music Forum West in Los Angeles on the Future of Internet Radio.  Panelists included Kurt Hanson, the publisher of the Radio and Internet Newsletter; Johnie Floater, General Manager of Media for Live 365; and Jim Rondinelli, SVP of Strategic Development at Slacker.  The panel discussed the business of Internet radio, as well as the issue of Internet Radio royalties. 

On October 6, 2009, David Oxenford participated in a panel called "Post-Millennium Analysis: The DMCA in the 21st Century" at the Future of Music Coalition's Policy Summit in Washington, DC.  Other panelists included David Carson, General Counsel of the US Copyright Office, and Mitch Glazer, Executive Vice President, Government and Industry Relations for the RIAA.  The panel discussed, among other topics, webcasting royalties and the proposed broadcast performance royalty, and the safe harbor provisions of the DMCA for services which allow the posting of user-generated content.

David Oxenford presented on the topic "The View from Washington –Issues Posed by the DTV Transition" at the Columbia Institute for Tele-Information Symposium Digital TV Transitions: DTV Switchover, Mobile TV, IPTV Lessons and Projections, held at Columbia University in New York City on October 2, 2009.  David discussed issues including low power television's continuing transition, the possible use of TV Channel 6 for radio, DTV reception issues in major markets, and the FCC's OTARD rules restricting zoning and land use regulations on home television antennas.

On September 25, 2009, David Oxenford moderated a panel at the NAB Radio Show in Philadelphia called "The Day the Music Died - Streaming, The Performance Tax and Other Copyright Issues."  In addition to the music royalties involved in webcasting and the possible broadcast performance royalty, the panel discussed other copyright issues, including the state of the current negotiations between the Radio Music Licensing Committee and ASCAP and BMI over composer's royalties for broadcast stations, and issues about licensing music for podcast and mobile applications.  Panelists included Bill Velez, head of the Radio Music Licensing Committee, which is conducting the ASCAP and BMI negotiations, and Jack Donlevie, the General Counsel of Entercom, who was involved in the negotiations of the Broadcaster-SoundExchange settlement on Internet Radio Royalties.

On September 10, 2009, David Oxenford addressed the Christian Music Broadcasters' Momentum '09 Conference in Orlando, Florida.  Dave' s presentation was titled 18 Issues in 18 Minutes: What a Broadcaster Should Worry About From Washington DC.  In 18 minutes, Dave discussed topics including the FCC's proposed localism rules, sponsorship identification and noncommercial underwriting issues, contest fines, FCC technical operating and public file rules , FCC EEO obligations, and copyright issues including streaming fees and the proposed broadcast performance royalty.  The 18 minute presentation to a general session of the conference was followed by a one-hour "Digging Deeper" session where conference participants asked for more details on many of these issues.

A copy of Dave's PowerPoint presentation used for the 18 minute session can be found here. 

Davis Wright Tremaine attorneys Amber Husbands and David Oxenford conducted a webinar on August 26, 2009 for the Kansas Association of Broadcasters, discussing legal issues of importance to on-air talent.  Issues discussed included broadcast indecency, station contests, sponsorship identification and payola issues, potential liability that can arise from the use of social media and newsroom issues.  The newsroom issues included libel, slander and defamation; invasion of privacy; issues about taping and hidden cameras; and possible newsgathering torts including trespassing.

A copy of the PowerPoint presentation used with this presentation can be found here. 

On August 20, David Oxenford attended the Texas Association of Broadcasters Annual Convention in Austin Texas.  At the Convention, Dave participated with two other Washington attorneys in a session updating broadcasters on legal issues that could affect their operations.  He addressed topics including the proposed Broadcast Performance royalty, the proposed increase in power of HD radio operations, and the current state of broadcast indecency regulation.

In a separate session, Dave and addressed the legal issues that arise when a broadcaster streams their station on the Internet, including issues concerning the Internet Radio royalties for the use of sound recordings, as collected by SoundExchange.  A copy of Dave's PowerPoint used in that session is available here.

On October 13, 2008, David Oxenford conducted a session at the Kansas Association of Broadcasters Annual Convention, held in Wichita.  The session, called "What Else Can Washington Do For You?" focused on regulatory and legislative developments that affect broadcasters. 

A copy of the PowerPoint presentation used at this session will be available here soon.

On October 3, 2008, David Oxenford moderated a panel at the Digital Music Forum West in Los Angeles.  The panel, titled Digital Rights and Clearances, discussed what rights were necessary for the use of music by online digital services, in movie and video production, and for other purposes.  Panelist included,  Kevin Arnold, CEO, IODA; Richard Conlon, VP, New Media & Strategic Development, BMI; Maurice Russell, VP, Bus. & Licensing, Harry Fox Agency; Patrick Sullivan, President & CEO, RightsFlow LLC; Les Watkins, SVP, Business Affairs, Music Reports; Bob Kohn, Co-Founder, Chairman & CEO, RoyaltyShare, Inc.
 

A video of this panel can be viewed here.

David Oxenford spoke to the South Dakota Broadcasters Annual Convention at Keystone, South Dakota on September 29, 2008.  He addressed issues including the FCC localism and sponsorship identification proceedings, the digital television transition, the broadcast performance royalty and FCC enforcement issues. 

At the Radio and Records Convention, held in conjunction with the NAB Radio Show in Austin, Texas on September 18, David Oxenford spoke on a panel about the issue of whether a performance royalty should be paid by broadcasters for their over-the-air use of sound recordings.  Also on the panel were Dennis Wharton (NAB Executive Vice President for Media Relations), Ann Chaitovitz (Executive Director of the Future of Music Coalition) and musician Matt Nathanson. 

On August 26, David Oxenford of Davis Wright Tremaine's Washington DC office made a presentation to the Christian Music Broadcasters Board of Directors and Managers Meeting in Nashville.  David talked about many issues of importance to broadcasters, including the FCC's localism proceeding, issues about the relationship between translators and LPFM stations, the FCC proceeding on sponsorship identification, and the pending proposals for a performance royalty on over-the-air broadcasters.

A copy of the PowerPoint presentation that David used will be posted here soon.

David Oxenford conducted a session at the Michigan Association of Broadcasters Annual Meeting and Leadership Retreat at the Crystal Mountain Resort in northern Michigan on July 15, 2008.  The title of his session was A Washington Roadmap to the Broadcast and Internet Regulatory Future.  David discussed legal issues for broadcasters in their digital transition, and highlighted issues that they need to consider in their on-line operations. 

A copy of David's PowerPoint presentation used in the seminar can be found here. 

On June 30, 2008, David Oxenford attended the Montana Broadcasters Association Annual Convention in Whitefish, Montana, and presented a seminar titled: Staying Out Of Trouble in Washington - FCC Fines, Streaming Fees and Whatever Else Keeps You Up At Night.  During the seminar, David discussed topics including the FCC's localism proceeding, the DTV transition, streaming fees and the proposed broadcast performance royalty, as well as the current issues with FCC fines and enforcement matters.

A copy of the PowerPoint shown at the seminar is posted here. 

On June 25 and June 30, David Oxenford presented a webinar to members of the Kansas Association of Broadcasters on the FCC's political broadcasting rules and policies.  The webinars discussed topics including reasonable access, equal opportunities, lowest unit rates, and political advertising paperwork requirements.

A copy of the Davis Wright Tremaine Political Broadcasting Guide can be found here.

A copy of the PowerPoint used in the presentation is available here.

David Oxenford of Davis Wright Tremaine's Washington DC office will speak at the Iowa Broadcasters Association Convention in Des Moines on June 12, 2008.  Dave will be conducting a seminar on the FCC's political broadcasting rules with Bobby Baker, head of the FCC's Office of Political Broadcasting.

DWT's Political Broadcasting Guide, which summarizes many of the FCC's political broadcasting rules, can be found here. 

David's PowerPoint Presentation used during the seminar can be found here.

David Oxenford of DWT's Washington DC office will speak at the 2008 Annual Conference of the Broadcast and Cable Financial Management Association in Dallas, Texas.  David will speak on a panel titled Music Licensing in a Digital Age and Other Website Issues along with a representative of BMI.  The session will be held on May 13.  A conference agenda is available here.

Update - May 15 - The PowerPoint presentation, summarizing issues for a broadcaster's consideration in connection with its website operations, is available here. 

On April 14, David Oxenford was a speaker at the Radio and Internet Newsletter ("RAIN") annual summit, held in Las Vegas.  David spoke on music royalty issues, providing an update on the status of the royalties set last year by the Copyright Royalty Board (about which we have written extensively).  The full agenda for the Conference can be found here.

David Oxenford spoke at the NAB Convention in Las Vegas on a panel titled "Coping with Copyright: From Performance Tax to Internet Streaming" dealing with dealing with Internet radio music royalties and the broadcast performance royalty.  The panel was held on April 15. Handouts included DWT's memo "Copyright Royalty Board Releases Music Royalties for Internet Radio Streaming for 2006-2010—Clarifying the Confusion."

Brendan Holland of Davis Wright Tremaine's Washington DC Office, as co-chair of the Federal Communications Bar Association's Mass Media practice group, will moderate a panel at the practice group's Nov. 13th Brown Bag luncheon regarding HD Radio.  Held at noon at the NAB in Washington, the practice group will hear from Al Shuldiner from iBiquity, Caryn Mathes of WAMU in Washington, and David Layer of the NAB, who will discuss where the radio industry is today with respect to digital radio. 

Burt Braverman of the DC Office of Davis Wright Tremaine will moderate a panel titled Digital Television (DTV) Is Coming at the Future of Television Conference to be held in New York on November 8 and 9.  The panel will also feature representatives of the National Telecommunications and Information Administration, the National Association of Broadcasters and the Consumer Electronics Association.  David Oxenford and Brendan Holland of DWT's DC Office also plan to attend the Conference.