As the calendar flips to March, many of us have put our trust in Punxsutawney Phil’s weather forecasting expertise that an early spring is coming.  A surer place to put our trust, however, is in the guarantee that there are always some regulatory dates about which broadcasters should be aware.  While March is a month without with many of the regularly scheduled deadlines for renewals, EEO public file reports or Quarterly Issues Programs lists, there are still plenty of regulatory dates about which you should take notice.

The closest we come in March to a broadly applicable FCC filing deadline is the requirement that, by March 30, 2020 television broadcasters must complete and submit through LMS the FCC’s new Form 2100, Schedule H documenting their compliance with the requirements under the children’s television (KidVid) rules to broadcast educational and informational programming directed to children.  This report will document that programming from September 16, 2019 (when the new KidVid rules went into effect) to December 31, 2019.  The March 30 date is a transitional date as the FCC moves away from the old quarterly children’s television reports to ones that will be filed annually – in future years by the end of January.  This year, however, the FCC took time to develop the form for the new annual report and to explain how it should be used, thus the extra time to file.  Once filed, TV broadcasters won’t file another children’s television report until early 2021 reporting on compliance for all of 2020.  For more on the transition to the new KidVid obligations, read our articles here, here, and here.  To learn how to work with the new form, watch the FCC’s archived instructional webinar here. Continue Reading March Regulatory Dates for Broadcasters—Children’s Television Reports, Lowest Unit Rate Windows, EEO Audit Responses, AM Revitalization Comments, License Renewal Preparation and More

In a decision released this week, the FCC reiterated a policy of being very tough on petitions to add communities to television markets to change the stations that are considered to be part of the market for cable and satellite carriage purposes.  This strict compliance policy was set out in another case decided last year.  The Commission will dismiss a request for a market modification if all the evidentiary requirements set out by the FCC are not met in the initial filing.  While these requests can be refiled at a later date with the missing information, such a dismissal will delay the processing of any request.

Cable market modifications of the type addressed in this filing have become more common in recent years, at least partially because of a change in the Communications Act enacted by Congress in 2014 (see our article here). In that change, Congress said that , among the statutory factors that must be considered in defining television markets, the FCC must examine whether the communities that are proposed to be added would promote access to in-state television stations.  Prior to the adoption of the revised statute, Congress was concerned that there were too many communities that were included in Nielsen markets where the programming originated from stations located in another state, at one point asking that the FCC study the issue (see our article here).  In these instances, some in Congress believed that residents were deprived of public service and news information as to events and issues in their own state.

Congress set out the following factors to be considered in any analysis of a market modification:

  • whether the station, or other stations located in the same area—(a) have been historically carried on the cable system or systems within such community; and (b) have been historically carried on the satellite carrier or carriers serving such community;
  • whether the television station provides coverage or other local service to such community;
  • whether modifying the local market of the television station would promote consumers’ access to television broadcast station signals that originate in their State of residence;
  • whether any other television station that is eligible to be carried by a satellite carrier in such community in fulfillment of the requirements of this section provides news coverage of issues of concern to such community or provides carriage or coverage of sporting and other events of interest to the community; and
  • evidence of viewing patterns in households that subscribe and do not subscribe to the services offered by multichannel video programming distributors within the areas served by such multichannel video programming distributors in such community.

To address these factors, the FCC requires very specific evidence, set out in seven categories.  Unless evidence is provided as to each of the following matters (or a waiver is sought with a showing as to why it is not possible to provide such evidence), under these recent precedents, the request will be denied.  The evidentiary showings required are:

  • A map or maps illustrating the relevant community locations and geographic features, station transmitter sites, cable system headend or satellite carrier local receive facility locations, terrain features that would affect station reception, mileage between the community and the television station transmitter site, transportation routes and any other evidence contributing to the scope of the market;
  • Noise-limited service contour maps delineating the station’s technical service area and showing the location of the cable system headends or satellite carrier local receive facilities and communities in relation to the service areas;
  • Available data on shopping and labor patterns in the local market;
  • Television station programming information derived from station logs or the local edition of the television guide;
  • Cable system or satellite carrier channel line-up cards or other exhibits establishing historic carriage, such as television guide listings;
  • Published audience data for the relevant station showing its average all day audience (i.e., the reported audience averaged over Sunday-Saturday, 7 a.m.-1 a.m., or an equivalent time period) for both multichannel video programming distributor (MVPD) and non-MVPD households or other specific audience information, such as station advertising and sales data or viewer contribution records; and
  • If applicable, a statement that the station is licensed to a community within the same state as the relevant community.

While the request in this case was filed by a county government, requests can also come from stations that want to be carried on MVPDs in communities that are now considered to be outside of their markets, or by cable or satellite providers who want a station to be considered local so that they need not pay distant-signal copyright fees.  No matter who files the market modification request, these cases make clear that the request must be very detailed for the Commission to process it.

Some of the requested information – such as information about non-MVPD household viewing patterns – can be difficult to obtain, especially in counties where there is little over-the-air viewing.  Other information may require an archival dig into historical records to find the history of TV carriage in a market.  These cases make clear that the effort must be made, or the request will be denied.

Global Music Rights, the relatively new performing rights organization that signed a number of composers of popular songs away from ASCAP and BMI in order to seek higher music royalties for the public performance of their works on radio stations and other media platforms (see our articles here and here), lost one round in its litigation with the Radio Music License Committee in RMLC’s attempt to bring GMR under some sort of rate review under the antitrust laws.  RMLC has alleged that GMR, by combining multiple artists in a single essentially take-it-or-leave-it package, is able to charge rates well above what any artists could receive on its own, thus violating the antitrust laws (see our articles here and here).  This is a theory like the one which lead to an arbitration with SESAC dramatically lowering royalty rates the radio industry pays to that organization (see our articles here and here).  In a decision released Friday, the Judge presiding over RMLC’s case rejected GMR’s arguments that the suit should be dismissed without a trial.   The Judge, in a short three-page opinion, said that viewed in their most favorable light to RMLC (which is the standard used in deciding on such motions), the facts alleged by RMLC were enough to support the claims it made in the lawsuit, so the case will go to trial.

But this is not necessarily a great victory, as the Judge notes that it remains to be seen whether, when the full facts are introduced at the trial and challenged by GMR, these facts will in fact be enough to sustain the claims of RMLC.  A similar finding was made in GMR’s countersuit – arguing that RMLC formed an illegal buyer’s cartel in violation of the antitrust laws by trying to negotiate royalty rates for most commercial radio operators (see our article here on that countersuit).  The Court rejected RMLC’s argument that the GMR suit should be dismissed, finding that there were enough facts raised to potentially support GMR’s claims, though also warning that it remained to be seen if, once the facts were presented and challenged at trial, whether they indeed would sustain GMR’s claims. Continue Reading Litigation Continues as Court Rejects GMR Motion to Dismiss RMLC Lawsuit – and RMLC’s Request to Dismiss GMR Claims

The FCC yesterday released another of its regular EEO audit notices (available here), asking that approximately 240 radio stations and about 80 TV stations, and the station employment units (commonly owned stations serving the same area) with which they are associated, provide to the FCC (by posting the information in their online public inspection file) their last two year’s EEO Annual Public File reports, as well as backing data to show that the station in fact did everything that was required under the FCC rules. Audited stations must provide copies of notices sent to employment outreach sources about each full-time vacancy at the stations as well as documentation of the supplemental efforts that all station employment units with 5 or more full-time employees are required to perform (whether or not they had job openings in any year). These non-vacancy specific outreach efforts are designed to educate the community about broadcast employment positions and to train employees for more senior roles in broadcasting. Stations must also provide, in response to the audit, information about how they self-assessed the performance of their EEO program. Stations that are listed in the audit notice have until March 23, 2020 to upload this information into their online public file.

The FCC has promised to randomly audit 5% of all broadcast stations each year. As the response (and the audit letter itself) must be uploaded to the public file, it can be reviewed not only by the FCC, but also by anyone else with an internet connection anywhere, at any time.  The license renewal cycle which began last year adds to the importance of this audit, as a broadcaster does not want a recent compliance issue to headline the record the FCC will be reviewing with its license renewal (see our article here about the license renewal cycle). So, whether you are on the list or not, this is a good time for broadcasters to review what is required by the FCC’s EEO rules. Continue Reading FCC Issues First EEO Audit of 2020 Targeting 320 Radio and Television Stations – Reviewing the Basics of the FCC’s EEO Rules

One presidential caucus down, 49 (primaries and caucuses, plus a few more in the territories) to go in the next four months – with primaries for Congressional, state and local offices stretching out through August.  This presidential primary race has already seen unprecedented amounts of advertising on local stations, including through network advertising buys.  Based on campaign announcements made in recent days, the advertising is likely to only increase as we move to the Super Tuesday states.  As the Democratic party nomination race heats up, broadcasters are likely to continue to see a flood of political buys, as candidates, PACs and other groups try to get the last word before the voters go to the polls. Here are four issues that broadcasters should be considering in this active, condensed broadcast season:

  1. Practice Inventory Management. In the last days before an election, there will be many demands on the commercial inventory of many stations, and stations will need to be careful in managing that inventory. Remember, all candidates have the right to buy equal time to the time aired by opposing candidates in the prior 7 days. While candidates cannot sit on their equal opportunity rights until the last minute, equal opportunity buys can place real demands on your commercial inventory, especially if one candidate tries to reserve lots of time in the days immediately preceding a vote. Plus, you will be getting demands from candidates for new time, and requests from PACs and other political advertisers. Thus, be sure that you have practiced wise inventory management so that there is room for all of the spots that you are obligated to run. Be particularly careful about selling a large schedule to one candidate now, reserving big blocks of time in the final days before the primary date, as opposing candidates will need to be able to get their equal opportunities before the primary – even if you have to bump commercial advertisers – and potentially eat into program time.
  2. Weekend Access. The FCC has said that if a station has, in the year prior to the election, made its employees available to a commercial advertiser for new orders or changes in copy on the weekend prior to an election, they need to make employees available for those activities to political candidates. Even if the station completely shuts down on the weekend, and no salesman ever signs a deal with an advertiser during a Saturday golf outing and no weekend employee ever agrees to change the copy on a big advertiser’s spots, the station may still need to make employees available during the last weekend before the election to allow candidates to exercise the equal opportunity rights discussed above. Start planning now as to the staffing you may need to handle last-minute political requests that weekend before the primary.
  3. Be Prepared for Take-Down Demands. In the last days before any election, the ads can get more pointed, and some may trigger take-down notices from candidates who are being attacked. Remember, if the attack ad is run by a candidate’s authorized campaign committee, you can’t censor the ad based on its content. That means you are legally forbidden to pull the ad even if it lies about the opponent. But ads bought by PACs and other non-candidate groups can be refused based on their content. So you need to carefully evaluate the claims made by the party demanding that the spot be pulled, because if the claims made in the spot are in fact false and defamatory, the station could have liability for continuing to run the non-candidate attack ads after receiving notice demanding that they be taken down. We wrote more about this subject here and here.
  4. Keep Your Public File Up to Date. While you may be incredibly busy just getting political ads on the air, don’t forget your public file obligations.  The required information about advertising buys by candidates and issue advertisers (including, for candidate and federal issue ads, all the information about the schedule bought, the price paid, the class of time for the spots purchased) need to get into the political file “immediately” – i.e., on a same-day or next business day basis – so that other candidates and the public can see what has been bought.  With the recent FCC rulings requiring stations to disclose all the federal candidates, all the federal offices, and all the national issues that are included in any federal issue ad (see our posts here and here).), you need to have staff ready to fulfill your obligations.

Only nine more months and political season will be over, when your station can go back to simply dealing with its normal commercial advertisers. Until then, you need to deal with all of these issues.  More on political advertising can be found in our Guide to Political Broadcasting, here, and in the slides that I recently used in a webinar on political broadcasting issues that I did last week for broadcasters in 4 states (available here).  Remember, none of this guidance is definitive, as facts are really important in assessing any legal issue – especially in the political broadcasting context.  But these guides can help to identify the issues that you should be considering.  For now, be prepared for the onslaught of political advertising issues, and have your communications lawyer’s phone number on speed dial!

BMI and the Radio Music License Committee announced a settlement of their rate court litigation over the royalties that commercial radio will pay for the public performance of musical compositions licensed by BMI.  While we have not yet seen the agreement, the press release already raises one issue likely to sew confusion in the broadcast industry – the extent to which the agreement allows the use of music in podcasts.  While the press release says that the BMI license includes the use of music in podcasts, radio stations should not assume that means that they can start to play popular music in their podcasts without obtaining the rights to that music directly from rightsholders.  They cannot, as BMI controls only a portion of the rights necessary to use music in podcasts and, without obtaining the remaining rights to that music, a podcaster using the music with only a BMI license is looking for a copyright infringement claim.

So why doesn’t the license from BMI fully cover the use of music in a podcast?  As we have pointed out before, a broadcaster or other media company that has performance licenses from ASCAP, BMI, SESAC and even GMR does not get the right to podcast music – nor do the SoundExchange royalty payments cover podcasts. These organizations all collect for the public performance of music. While podcasts may require a performance license (see our article here about how Alexa and other smart speakers are making the need for such licenses more apparent as more and more podcast listening is occurring through streaming rather than downloads), they also require rights to the reproduction and distribution of the copyrighted songs and the right to make derivative works – all additional rights given to copyright owners under the Copyright Act. These additional rights are not covered by the public performance licenses from ASCAP, BMI, SESAC, GMR and SoundExchange, nor are the rights to use the “sound recording” or “master” in the podcast. What is the difference between these rights? Continue Reading BMI Settlement of Royalty Battle with RMLC to Include Music in Podcasts? – Not So Fast….

Did you know that the FCC has a rule that requires that a broadcaster notify its audience that a program has been pre-recorded when the program “creates the impression” that it is live?  Probably many broadcasters had forgotten about that rule (if they ever knew it existed).  This week the FCC’s Enforcement Bureau entered into a Consent Decree with Salem Media Group, in which Salem agreed to pay a $50,000 penalty and set up a monitoring and compliance plan for 3 years, after admitting that it violated this FCC rule.  The Enforcement Bureau specifically states that the action “will send a signal to the industry that the Commission remains vigilant in its duty to ensure that licensees adhere to the live broadcasting rule.” Consider yourself warned!

Section 73.1208 of the FCC’s rules requires broadcast stations to disclose to their audience that program material is prerecorded when “time is of special significance, or . . . [when] an affirmative attempt is made to create the impression that [the program material] is occurring simultaneously with the broadcast.”  The program that led to the Enforcement Bureau action was called HealthLine Live, airing on Saturdays on over 20 Salem stations.  The FCC, in its initial investigatory letter to Salem station KRLA(AM), the originating station (a letter available, as of the date of this article in the station’s public file), noted that because the word “Live” was in the title of the program, and because the program featured listener calls, the program gave the impression that it was being broadcast live.  Reviewing the transcripts of the program provided by the licensee, it certainly seemed to convey the impression that the program was a live discussion of health issues.  Continue Reading Did You Know that There is a Rule that Broadcasters Have to Tell Their Audience that a Program Is Recorded When It Seems to Be Live? – FCC Sends a $50,000 Reminder

Most years, at some point in January, we look into our crystal ball and try to see some of the legal and regulatory issues likely to face broadcasters.  We already provided a calendar of the routine regulatory filings that are due this year (see our Broadcaster’s Regulatory Calendar).  But not on that calendar are the policy issues that will affect the regulatory landscape in the coming year, and into the future.  This year, the biggest issue will no doubt be the November election.  Obviously, broadcasters must deal with the many day-to-day issues that arise in an election year including the rates to be charged political candidates, the access to airtime afforded to those candidates, and the challenges associated with the content of issue advertising that non-candidate groups seek to transmit to the public.  The election in November will also result in a President being inaugurated in just less than a year – which could signal a continuation of the current policies at the FCC or potentially send the Commission in a far different direction.  With the time that the election campaigns will demand from Congress, and its current attention to the impeachment, Congress is unlikely to have time to tackle much broadcast legislation this year.

The broadcast performance royalty is one of those issues likely on hold this year.  While it was recently re-introduced in Congress (see our article here), it is a struggle for any copyright legislation to get through Congress and, in a year like the upcoming one, moving a bill like the controversial performance royalty likely will likely not be high on the priorities of Congressional leaders.  This issue will not go away – it will be back in future Congresses – so broadcasters still need to consider a long-term strategy to deal with the issue (see, for instance, our article here on one such strategy that also helps resolve some of the music royalty issues we mention later in this article). Continue Reading Looking Ahead to the Rest of 2020 – Potential Legal and Regulatory Issues For the Remainder of the Year

Last week, FCC Commissioner Michael O’Rielly was in the news for sending a letter to the major record labels asking for information about their practices in paying broadcast stations for airing the label’s music.  The letter follows correspondence last year between the Commissioner and the RIAA (the Recording Industry’s trade group) asking for similar information, which the RIAA claimed that it did not have.  This process began after a Rolling Stone magazine article suggested that “payola” was still a common practice in the broadcast industry.  These actions, and the press reports that followed, raise a couple of interesting questions including what the FCC rules are on payola, and how broadcast practices compare to those of online companies.

The Communications Act prohibits the practice of “payola” by requiring, in Section 317, that when any content is aired on a station in exchange for anything of value, the station must disclose that “consideration” has been paid by the person or entity that pays for the consideration.  Thus, “payola” arises when a broadcast station employee or contractor receives or is promised anything of value in return for putting any content on the air, and that payment is not disclosed to the public.  Payola usually occurs when someone makes a gift or payment to a person involved in station programming (i.e., station employees, program producers, program suppliers) in exchange for favorable on-air exposure of a product or service.  While the term “payola” is most often associated with the receipt by a station announcer or music director of money, trips or other value for playing songs on the station, the same prohibition applies whenever any station programming personnel receive anything of value in exchange for airing any content where a sponsorship identification is not broadcast.  For examples of fines for airing programming for which consideration was received without acknowledging the receipt of valuable consideration, outside the context of music, see our articles here, here and hereContinue Reading FCC Commissioner Asks Record Labels for Information About Payola Practices – What are the FCC Rules?  How Do These Practices Compare to Online Music Providers?

With the holiday season getting smaller in the rear-view mirror and many parts of the country dealing with ice, snow, and single-digit temperatures, broadcasters could be forgiven for dreaming about the sunshine and warmth that come with spring.  Before spring arrives, however, broadcasters need to tend to important regulatory matters in February.  And, if you find yourself eager to plan past February, use our 2020 Broadcasters’ Calendar as a reference tool for tracking regulatory dates through the end of 2020.

But focusing on the month ahead, by February 3, all AM, FM, LPFM, and FM translator stations in Arkansas, Louisiana, and Mississippi must file their license renewal applications.  For the full-power stations in the state, there’s an additional EEO task to complete irrespective of how many employees a station employment unit (SEU) has.  Before filing for license renewal, stations in these three states must submit FCC Schedule 396. This schedule is the Broadcast Equal Employment Opportunity Program Report, which is a reporting to the FCC of the SEU’s equal employment opportunity activities for the last license period (SEUs with fewer than five full-time employees are not required to maintain an EEO recruitment program and are only required to check a box that they have fewer than 5 full-time employees and skip ahead to the certification).  The sequencing here is important: When filing for license renewal, the application (Schedule 303-S) asks for the file number of your already-filed Schedule 396.  So, without having already filed the schedule, you won’t be able to complete your renewal application. Continue Reading February Regulatory Dates for Broadcasters—License Renewals, EEO Reporting, Rulemaking Comments, FM Auction Filing Deadline, Lowest Unit Rate Windows, and More