The FCC last week released its tentative agenda for its April 23 open meeting.  For broadcasters, that meeting will include consideration of the adoption of a Notice of Proposed Rulemaking (draft NPRM here) looking to broaden obligations for the audio description of television programming (referred to as the Video Description proceeding) – which we will write about in more detail later.  The agenda also includes a Report and Order modifying rules relating to Low Power FM stations, which also addresses the protection of TV channel 6 stations by FM stations (full-power or LPFM) operating in the portion of the FM band reserved for use by noncommercial stations.  The FCC’s draft order in this proceeding is here.  We initially wrote here about these FCC’s proposals when the Notice of Proposed Rulemaking in the proceeding was adopted last year. Today, we will look at how the FCC has tentatively decided to resolve some of the issues.

One of the most controversial issues was the proposal to allow LPFM stations to operate with a directional antenna.  While some directional operations had been approved by waiver in the past, there was some fear that allowing these antennas more broadly could create the potential for more interference to full-power stations.  As a directional antenna requires greater care in installation and maintenance to ensure that it works as designed, some feared that LPFM operators, usually community groups often without a broadcast background or substantial resources, would not be able to properly operate such facilities.  The FCC has tentatively decided to allow use of directional antenna by LPFM stations. However, it will require LPFM stations installing such antennas to conduct proof of performance measurements to assure that the antenna is operating as designed.  The cost of such antennas, the limited situations in which such antennas will be needed (principally when protecting translators and in border areas), and the additional cost of the proof of performance should, in the FCC’s opinion, help to limit their use to entities that can afford to maintain them properly. Continue Reading FCC April Meeting to Consider LPFM and Video Captioning – Looking at the LPFM Proposed Order (Including Interference Protections for TV Channel 6)

In the last three weeks, we have written about actions that the FCC has taken to help broadcasters through the current crisis caused by the COVID-19 virus.  The FCC appears to realize that the business of broadcasting in the current crisis is vastly different than it was just a month ago.  The FCC has provided relief on TV newsgathering and news sharing arrangements,  issued a determination that no charge spots unrelated to an existing advertising schedule do not affect lowest unit rates, granted liberal extensions to stations in Phase 9 of the TV repacking, deferred the filing of Quarterly Issues Programs Lists and the Annual Children’s Television Reports to July 10, and recognized that college-owned stations that are silent when students are no longer on campus do not need an STA to remain silent.  In a webinar I conducted for a number of state broadcast associations last Thursday, I summarized these developments and talked about other FCC rules and policies that broadcasters need to continue to observe during the current crisis.  That webinar is available on the website of the Indiana Broadcasters Association which hosted the session and can be viewed here.

On Friday, the FCC added to the actions that it has taken to assist broadcasters – issuing a Public Notice adopting a policy that, through June 30, commercial advertisers can donate ad time to government agencies or charities to run PSAs dealing with issues relating to COVID-19 without the station having to identify the companies donating the spots as sponsors of the PSA.  Even though the commercial sponsors paid for the time, they don’t need to associate themselves with the virus spots.  This was at the request of the Ad Council, which suggested that some advertisers had ad time that they no longer needed but were reluctant to donate it to COVID PSAs as they feared that, if they were identified as sponsors, their businesses would somehow be associated with the virus.  While it may be the unusual situation where an advertiser cancels its ad schedule and is willing to donate the advertising time for charitable uses without acknowledgement, in some cases it may give broadcasters one more way to try to convince advertisers not to totally cancel their schedules.  And it shows that the FCC is continuing to do its best to assist advertisers in this trying time.  Watch for more developments in the coming weeks.

The judge presiding over the royalty litigation between BMI and the Radio Music Licensing Committee (RMLC) approved the settlement between these parties by an order released on March 23.  At the same time, the judge approved an order keeping the specifics of the approved settlement confidential for 30 days while the settlement is being implemented – so the specific terms of the deal have not been publicly released.  We wrote here about the announcement of that settlement and the fact that it does not clear all rights to podcast music.  The litigation was over the music royalties to be paid by the commercial radio industry to BMI for the public performance of musical compositions which BMI licenses (see our article here about the initiation of this rate court proceeding).  Look for more details about that settlement later this month when the agreements are supposed to be made public (assuming no subsequent delays, given the current crisis).

The settlement of this case still leaves many other music royalty issues for the commercial radio industry.  Many of these are supposed to be resolved this year but with the upending of the economy by the pandemic and its impact on the operations of broadcasters and other organizations involved in these issues, who knows when these issues will be decided?  The issues include the resolution or arbitration of a new 3-year agreement with SESAC (see our article here on the last royalty decision on SESAC royalties) and the ongoing litigation with GMR (see our last article on this litigation here).  On top of those proceedings dealing with rights to specific musical compositions, we still have pending a broad review by the Department of Justice of the ASCAP and BMI consent decrees governing the compositions licensed by those organizations (see our articles here and here).  Plus, for the digital streaming of sound recordings, we have a Copyright Royalty Board proceeding to determine the royalty rates to be paid to SoundExchange for the years 2021-2025, which was scheduled to be decided by year’s end.  But, as we wrote here, the multi-week trial in that proceeding, which was to have started in March, has been postponed because of the COVID-19 crisis.  In this time of great uncertainty throughout the economy, these many important music royalty issues remain pending for the radio industry.

Many stations seem unsure of how to apply the recent FCC guidance  that no charge spots given to advertisers to help them through the pandemic do not need to be counted in computing a station’s Lowest Unit Charge, as long as the no-charge spots are not part of paid advertising contracts and are not otherwise considered bonus spots.  We wrote about that guidance last week when it was first released by the FCC, here.  Because this issue can get complicated quickly, we recommend that individual stations talk to their counsel about any specific application of the FCC’s Public Notice to their situation.  However, as we were involved in seeking the guidance from the FCC, what follows are some general thoughts as to issues that stations should keep in mind in applying the FCC’s decision.

To be exempt from Lowest Unit Charge calculations, any no-charge spots should not be added to any existing advertising package, nor should they be used as a direct incentive to buy a new package, e.g., no promises should be made to give 20 no-charge spots to an advertiser if they buy a paid schedule of 20 spots.  The whole idea is that these spots are gifts to the advertiser to help them through the crisis, separate and apart from any commercial advertising transaction – while at the same time building goodwill for the station and helping the station fill holes in their inventory that have resulted from cancelled advertising.  These gifts should be viewed as a temporary measure to get through the crisis.  Because these no-charge spots cannot be tied to paid packages, stations should be careful on how they promote them to advertisers.  Here are some ideas:

  • Don’t call them “bonus spots” in any communications.  Call them “goodwill spots” or “covid-19 spots” or something else, but you do not want to imply that they are a bonus associated with another package.
  • Don’t give them in strict proportion to any existing contract, e.g., don’t give an advertiser 10% of its paid schedule in “goodwill spots.”  That also makes it look too much like they are part of a paid schedule.
  • Don’t list them on the same invoice or affidavit of performance that you provide to an advertiser showing its paid spots.  There is no requirement that you provide specific documentation to advertisers of what you run, but if you do, keep it apart from the documentation of paid schedules.
  • The spots should be preemptible.  Don’t make any promises or guarantees of any specific number of spots that will be provided and remind advertisers that this situation is temporary and simply an expression of good will on your station’s part during these difficult times for everyone.  You also should not guarantee any particular audience size or reach or frequency.
  • While not required, having a unique message relating to the pandemic, or packaging multiple advertisers together in spots to promote local businesses, can help differentiate these spots from normal paid schedules that are still subject to LUC consideration.

This is a unique solution for a unique time, but one that some stations may be able to employ as a win-win for both the stations and their communities.  Talk to your counsel for more details on how to employ this kind of program without running afoul of the FCC guidance.

 

 

The FCC on  Friday released a Public Notice announcing that they are giving stations more time in which to upload their Quarterly Issues Programs lists to their online public file and to file their first Annual Children’s Television Report.  In our list of April regulatory dates for broadcasters last week, we had highlighted both of those filings.  Because of the disruption of the schedules of so many people, and the lack of access to many broadcast stations, the FCC appears to have decided that broadcasters should get more time to meet these regulatory obligations.

Quarterly Issues Programs lists are required to be uploaded to the online public inspection file of all full-power stations every quarter – and would normally be required to be in the public file by April 10.  While urging stations to upload those lists as soon as possible, the Commission has given stations until July 10 (when the next quarter’s lists will be due) to upload this quarter’s report.  So the two reports could be uploaded at the same time. Continue Reading FCC Announces Extensions of Deadlines to Upload Quarterly Issues Programs List and to File Annual Children’s Television Report

Yesterday, the FCC released two public notices reflecting its attempts to assist broadcasters coping with the COVID-19 crisis.  The first public notice deals with the attempts of several broadcasters to support their advertisers while at the same time filling advertising inventory holes that have been created by the cancellation of other advertising schedules.  Broadcasters who we represented requested that they be permitted to schedule no-charge advertising for some of their clients where those spots were not part of negotiated advertising packages, without those spots affecting lowest unit charges in the political windows (likely to be opening in many states in the coming weeks).  The FCC agreed that free spots provided to merchants that are not part of an existing commercial contract or otherwise are not provided as a bonus tied to any contract would not affect lowest unit rates.  This is a limited ruling for broadcasters to use to build up good will with advertisers, and to provide them with assistance in this time of crisis.  It is a limited, nuanced ruling that you should discuss with your counsel – but it does provide broadcasters with the opportunity to be creative in helping support their advertisers in this most unusual time.

In addition to the lowest unit rate issue, the FCC issued another public notice about TV Local Marketing Agreements and similar agreements.  In TV (as in radio), if one broadcaster programs more than 15% of the programming time of another station in their market, the station to which they provide programming becomes “attributable” for multiple ownership purposes, i.e., it counts in determining compliance with the ownership rules.  In markets where one owner cannot own an additional station, news-sharing agreements where one station provides news to another are permissible, as long as those agreements do not constitute more than 15% of the programming time of the second station.  The notice released yesterday indicated that, if the brokering station wants to expand news coverage on the brokered station during this crisis time, the FCC will be liberal in granting waivers to permit the agreement to exceed 15% of the airtime of the brokered station – though prior FCC approval is required.  The waiver will be limited to the period of time that the COVID-19 outbreak remains a national emergency.  The public notice provides email addresses to which such requests should be sent.  These two decisions provide more evidence of the welcome flexibility and relief that the FCC is providing broadcasters in helping to deal with this current crisis.

 

An auction of new FM channels was scheduled to begin in late April (see our posts here and here).  Yesterday, the FCC issued a Public Notice indefinitely delaying that auction. Apparently, the FCC needs to have staff physically present in its Washington, DC building in order to conduct an auction, and with the current teleworking situation, the auction processes cannot function.  With other wireless auctions scheduled for the latter half of the year, there was apparently no way to find time this year to conduct the auction.  Thus, the auction is postponed indefinitely.  Seemingly concluding that it was unfair to hold onto the upfront auction payments for an indeterminate time, the FCC agreed to refund those upfront payments – and the Public Notice provides instructions for securing such a refund.  As business conditions may well have changed significantly whenever the auction is rescheduled, the FCC decided to return all of the “short-form” applications that were filed and to lift all restrictions on “prohibited communications” between competing applicants.  Thus, the auction will start anew, with new applicants, at some later date, likely in 2021.

FCC business marches on in this time of social distancing and mandatory lockdowns, though with modifications caused by the circumstances in which we find ourselves.  The FCC released a Public Notice yesterday announcing that its monthly open meeting scheduled for March 31 will be held by teleconference rather than live in the FCC meeting room.  It can be viewed on the FCC’s website and on its YouTube channel.  Most of the action items will have already been voted on by the Commissioners through the “circulation” process.  This means that the votes will be taken on the written orders without any formal presentations by FCC staff members explaining the actions, and without orally-delivered statements by any of the Commissioners – though the Commissioners can certainly make their feelings known in written statements on the items on which they will have voted.  The meeting itself is likely to consist of Commission announcements and statements by the Commissioners on the current state of affairs.

Issues that were to be considered at the meeting of interest to broadcasters include the adoption of a Notice of Proposed Rulemaking on Distributed Transmission System technology for TV stations – making it easier for TV stations to fill in their market coverage with multiple transmitters spread throughout the market, rather than a single big transmitter in the center of the market – a technology made easier as stations transition to the new ATSC 3.0 transmission system (see the draft NPRM here).  FCC Notices of Proposed Rulemaking on significantly viewed TV stations (draft NPRM here) and cable carriage disputes (draft Further Notice of Proposed Rulemaking here) are also on the agenda. Continue Reading FCC Activity in the Time of COVID-19 – Commission Meeting to be Held Virtually, Commissioner O’Rielly Nominated for New Term

Life has been upended for most Americans due to the spread of the coronavirus and that tumult is, of course, reaching broadcasters as it reaches others throughout the country.  As we wrote here, like many agencies and businesses, as part of its COVID-19 response, the FCC has moved most of its workforce to teleworking in an attempt to keep FCC staff and their families safe.  With most FCC forms and filings being submitted electronically, and remote work already being routine for many FCC employees, there should be minimal disruption to broadcasters’ routine daily dealings with the Commission.  Broadcasters should continue to comply with all FCC rules, including meeting filing deadlines, though it does appear that the FCC is willing to be flexible with some deadlines, especially when a broadcaster can point to virus-related reasons that the deadline cannot be met.  Check with your attorney on specific deadlines.  And check our article from yesterday highlighting some issues to consider while preparing for whatever comes next.

While there is much disruption to normal routines, the routines of regulatory life largely carry on.  For instance, before moving on to April deadlines, we should remind TV broadcasters that, if they have not already done so, their first Annual Children’s Television Report is due to be submitted to the Commission by March 30.  See our articles here and here on that new report. Continue Reading April Regulatory Dates for Broadcasters: The FCC May Be Teleworking, But Regulation Goes On

With more and more states, municipalities, and other authorities issuing shelter-in-place warnings or other restrictions on travel, and with more station facilities likely to be closed temporarily because of exposure to the COVID-19 virus, broadcasters need to be planning on how to continue to operate their facilities in the new world we are all facing.  I participated in an online conference last week with over 100 college broadcasters who are perhaps on the front lines of this problem, as so many operate from campus buildings that were closed early after (and in some cases before) the declaration of the pandemic.  We’ve had calls from many other broadcasters about the issues that they are facing in their operations, as communities take actions to enforce the personal distancing urged by medical organizations.  Many commercial broadcasters may be seeing in the upcoming days greater restrictions on unnecessary travel, perhaps impacting access to their facilities and studios.  Planning and coordination among broadcasters – and with broadcasters and local officials – is already underway in many cities and with many state broadcast associations.  But it also needs to be considered by individual broadcasters everywhere.

One of the most basic questions is one of access.  Questions are arising every day as to whether local officials can block access to broadcast stations or to the coverage of news events during the emergency.  Will broadcasters be shut down like so many other businesses?  There has been much written in the trade press and elsewhere about broadcasters being “essential services” that should be allowed access to their facilities and to news events during any crisis.  There is in fact statutory language in the US code to that effect (see, for instance, this section that tells federal officials not to limit access or facilities to radio and TV broadcasters in an emergency).  But that statute restricts the actions of federal officials to block broadcaster access and is silent as to actions by state and local officials.  Even if state laws have similar provisions, those provisions are only helpful if someone in a position of authority has the time and inclination to look at the legal niceties that apply to a given situation.  Coordination with state and local officials is paramount in a situation like the current one that affects everyone, everywhere.  Stations should already be in touch with state and local authorities to see how they can help in the current crisis.  At the same time, they should also be discussing and planning with these officials to ensure access to studios and transmitter sites, and exemptions from travel restrictions for news coverage, so that they can continue to provide their important services to the public. Continue Reading Essential Planning for Broadcasters Facing Coronavirus Restrictions on Access to Facilities and News Events