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

A reminder that by February 1 noncommercial radio stations in Arkansas, Louisiana, Mississippi, New Jersey, and New York, and noncommercial television stations in Kansas, Nebraska, and Oklahoma must prepare and file electronically a biennial Ownership Report with the Federal Communications Commission (FCC) using the current noncommercial FCC Form 323-E.

Please note, this filing date applies only to noncommercial radio and TV stations in the states listed above. The FCC has revised its rules regarding the reporting of ownership interests for commercial broadcast stations, and has revised the commercial Ownership Report – Form 323. Although commercial broadcast stations will file on a unified reporting deadline, by Order released late December 2009, the FCC has suspended indefinitely the filing of biennial Ownership Reports for commercial broadcast stations as we've posted previously. The Commission is taking additional time to address certain issues raised by petitioners and to revise the new form further.  Once the FCC re-releases the form, stations will have 90 days to file the report, so stations should watch this space or the FCC's releases for future news about the return of the Ownership Report for commercial stations. 

Noncommercial stations, on the other hand, continue to follow the previous rules filing biennial Ownership Reports on FCC Form 323-E, which has not been revised. The FCC is conducting a rule making proceeding to change, potentially, some of the ownership reporting rules for noncommercial licensees, but meanwhile, noncommercial broadcast stations continue to follow the existing rules.  Accordingly, as Feb. 1, 2010, marks the two-year anniversary of the filing of a biennial Ownership Report for noncommercial stations in the above-referenced services and states, those stations must now file a biennial Ownership Report to update their ownership information or affirm the information currently on file.  More information about this filing deadline can be found in our recent client advisory, available here.  

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Many Webcasters who have elected the the royalty rates set by many of the settlement agreements entered into pursuant to the Webcasters Settlement Act must file an election notice with SoundExchange by January 31 to continue to be covered by those settlement agreements.   These agreements were entered into by groups of webcasters and SoundExchange, and allow the webcasters to pay royalties at rates lower than those rates set by the Copyright Royalty Board for 2006-2010.  January 31 is an important date even for those webcasters who are covered by agreements that don't demand an annual election, as most Internet radio operators must make annual minimum fee payments by January 31.  SoundExchange does not send out reminders of these obligations, so Internet Radio operators must remember to make these filings on their own.  The original election forms filed under settlement agreements signed by the NAB and by Sirius XM cover the entire settlement period from 2006-2015, so no election form must be filed each year, though minimum fee payments must still be made.  Note that certain small broadcasters, who need not meet SoundExchange recordkeeping obligations, do need to file an election to certify that they still meet the standards necessary to count as a small broadcaster.  The WSA settlement agreements that cover Pureplay webcasters, Small Commercial webcasters, Noncommercial Educational webcasters and other noncommercial webcasters all are entered into on a year-by-year basis.  Thus, to continue to be covered, parties currently governed by these agreements need to file a Notice of Election to again be covered by these agreements by January 31 (though note that the SoundExchange website provides for filings by February 1, presumably as January 31 is a Sunday).

The election forms are available on the SoundExchange website, though they are not easy to find. The forms that must accompany the annual minimum fees are also on the SoundExchange website.  Note that in some cases there are forms that cover both webcasters who paying under a particular settlement, as well as under the special provisions for small entities that are covered by these same agreements (e.g. Small Pureplay webcasters file a different form than other Pureplay Webcasters even though both are governed by the same agreement.  Similarly Small Broadcasters file a form different than other broadcasters, though both are covered by the same agreement).  These forms can be found at the links below.  Click on the name of the category of webcasters for a link to our article that summarizes the particular settlement, the minimum fees required, and the qualifications for small webcasters under that deal (if there is such a provision):

• Broadcasters minimum fee form - here.
• Small broadcasters election form - here.  Minimum fee payment form - here.
• Pureplay webcaster election form - here.  Minimum fee payment form - here.
• Small pureplay election form - here.  Minimum fee payment form - here.
• Small commercial webcaster election form - here.  Minimum fee payment form - here.
• Microcaster election form - here.  Minimum fee payment form - here.
• Noncommercial educational webcaster election form - here.  Minimum fee payment form - here.
• Other noncommercial webcaster election form - here.  Minimum fee payment form - here.
• Noncommercial microcasters election form - here. Minimum fee payment form - here.
• Satellite radio (for their webcasting operations - a deal that may also fit other commercial webcasters who are not covered by other agreements) minimum fee payment form - here.

Note that there is no specific form for NPR affiliates covered under the NPR settlement, as an organization set up by the Corporation for Public Broadcasting handles all payments and SoundExchange filings.  Other companies providing Internet radio services need to pay attention to these dates - and file the necessary papers and make the required payments by the upcoming deadline. 

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Last Friday we posted about the FCC's announcement that it would open a filing window in December for noncommercial applicants interested in seeking authority for 67 existing vacant FM allotments.  Today, the FCC revised the timing of that window and postponed the opening until February 2010.  Accordingly, rather than accepting applications for these vacant noncommercial allocations in December, the window for filing will now be from February 19 through February 26, 2010.  In addition, the accompanying freeze on the filing of commercial and noncommercial minor modifications will now go into effect on February 6th and last through the closing of the window on February 26, 2010.  The FCC postponed the window in response to a request from a group of noncommercial entities and associations who said that two months would not be enough time for interested applicants to get approval from their boards and pull together an application.  The FCC agreed and pushed the date back.  So noncommercial entities interested in filing for these new stations have some additional time to prepare.  Further information is available in our earlier blog and in the FCC's Public Notice released today. 

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The FCC today announced the opening of a filing window for noncommercial applicants interested in seeking authority for 67 existing vacant FM allotments.  Applications on FCC Form 340 will be accepted from December 11th through December 18th for these vacant FM allotments in the non-reserved band between Channels 221 and 300.  A full listing of the allotments that are available can be found here.  Although the vacant channels are in the non-reserved FM Band these particular allocations have been reserved exclusively for noncommercial use.  Thus, the window is restricted to noncommercial educational applicants only.

In the event that multiple applications are filed seeking the same allotment, then the channel will be awarded by applying the Commission's comparative point system for noncommercial applicants.  Further details on filing an application can be found in today's Public Notice, and complete step-by-step instructions are available on the Commission's website here. 

In order to provide stability and predictability for applicants interested in filing for these vacant allotments, the FCC is imposing a freeze on the filing of minor change applications for both commercial and noncommercial FM radio stations.  The freeze will go into effect after 11:59 PM on November 25, 2009 and remain in effect through the close of the filing window.  Accordingly, any existing FM stations that intend to file a minor modification in November and December should plan ahead so they don't get delayed by the freeze.  In addition, the FCC has also imposed a freeze, effective immediately, on any applications proposing to change the reference coordinates for these 67 allotments.  Similarly, petitions or counterproposals proposing a change in the class, channel, or community of license of any of the allotments will not be accepted until December 19th, after the filing window has closed. 

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The deadline for submitting comments in the FCC's rule making proceeding regarding Arbitron's use of Portable People Meters (PPM) has been set for July 1, 2009.  Reply comments are due by July 31st.

As we discussed in our earlier post, the FCC has begun a rule making to examine the use of the PPM technology of radio audience measurement now being rolled out by Arbitron in radio markets throughout the country.  Various groups have contended that Arbitron’s PPM technology has certain methodological flaws that under counted particular groups, including minority groups, and thus could have an impact on the financial viability of the stations listened to by such groups.  The FCC’s Notice of Inquiry asks about those perceived flaws, about the potential impact of any flaws on the use of Arbitron market definitions for purposes of the FCC radio multiple ownership rules, and on the more general question of whether the FCC even has the jurisdiction to regulate the use of the PPM.  Interested parties can submit comments to the FCC in paper, or electronically using the ECFS filing system. 

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Last month, the FCC released its proposal to restrict the movement of FM stations from rural areas into larger markets (which we summarized here).  The proposals that the FCC has put forward would greatly restrict the ability of broadcast owners to move stations to cover larger population areas - in many senses reversing the decision of the FCC just two years ago granting stations more flexibility to change cities of license and otherwise improve their facilities (see our posts here and here).  As we pointed out in our summary of the proposals, if adopted, these new rules could impair diversity - making it harder for minorities and other new entrants to acquire stations in larger markets, as move-in stations often provide the only opportunities for such groups to acquire stations at reasonable prices.  The FCC order advancing these changes has now been published in the Federal Register, setting the date for the filing of public comments on these proposals.  Comments are due to be filed on July 13, with replies due by August 11.   Broadcasters interested in these issues should start to prepare those comments now, providing the Commission with sufficient information to show the public interest benefits of these station moves.   

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