Broadcast Law Blog

Broadcast Law Blog

Another Media Regulation Modernization Proposal – Abandon the Form 397 EEO Mid-Term Report (Though Maintain the EEO Performance Review)

Posted in AM Radio, EEO Compliance/Diversity, FM Radio, Television

At its meeting yesterday, the FCC adopted a Notice of Proposed Rulemaking suggesting the abolition of the EEO Mid-Term Report, FCC Form 397. That form is filed at the mid-point of the renewal term of TV stations with 5 or more full-time employees and radio clusters with 11 or more full-time employees (see our post here about the form). As the content of the report is principally made up of the broadcaster’s last two EEO Public Inspection File Reports, and those reports are available in a broadcasters online public inspection file (which should be in place for virtually all broadcast stations when the final radio stations covert to the online public file next week, see our post here), the FCC concluded that there is no real reason that these reports need to be separately submitted, and thus proposed its elimination.

The Notice of Proposed Rulemaking did suggest that there were issues on which comments would be appropriate. The one bit of information that would not be readily available without the filing of the Form 397 would be which TV stations have 5 full-time employees and which radio clusters have more than 11 full-timers. That is important as Congress required the mid-term review of the EEO performance of stations meeting these employment thresholds. So the FCC asks how that information should be tracked. It is also noteworthy that the FCC will continue to conduct the EEO mid-term review of stations meeting these employment thresholds even without the filing of the Form 397 reports. Continue Reading

Court Finds That Embedded Twitter Photo on Website May Subject Website Owner to Copyright Liability – Be Careful What You Post

Posted in Intellectual Property, On Line Media, Website Issues

Last week, a US District Court Judge in the influential Southern District of New York issued an opinion finding that the fact that a picture of New England Patriot quarterback Tom Brady that was displayed on the websites of a number of media defendants was potentially infringing – even though the photo was not copied by the website owners and hosted on their servers. Instead, the photo was “embedded” on the websites and actually came from Twitter where it was hosted on servers maintained by that company. The Judge determined that because the photo automatically showed up on the defendants’ websites when those sites were visited by members of the public and appeared to visitors to be an integrated part of their websites, the mere fact that the photo was not hosted on the servers of the defendants, but instead on the server of Twitter, was not enough to provide a defense to the claim that the defendants had displayed the content without permission of the copyright holder. The right to “display” a copyrighted work is an exclusive right given to the copyright holder under Section 106 of the Copyright Act, meaning that the copyrighted work cannot be displayed without the permission of the copyright holder. As we wrote here, here and here, there have been many cases where photographers have sued broadcasters and other media companies for posting photos on their websites or even on their social media feeds without permission.

It had been widely accepted for the last decade that website owners were safe from copyright liability if they merely embedded content that was served from another site (e.g. social media sites like Twitter or YouTube) as contrasted to actually hosting the content on the website owner’s own server. This feeling of security stemmed from a case last decade where the 9th Circuit Court of Appeals made the distinction between hosting content and merely linking to content on another site. In that case, the Perfect 10 case, the defendant hosted an image search site with thumbnail images of pictures (the thumbnails hosted on the site of the defendant), and when a visitor to the site clicked on the thumbnails, the image was expanded by launching the image on the hosting site. In that case, because the large photos that were displayed when the user clicked on the thumbnails were hosted on the plaintiff’s site, the defendant was not found to be infringing for displaying those larger photos. The Judge in last week’s case found some striking differences in the use of an embedded Twitter photo case that, she said, made clear that there should be no clear safe harbor from liability simply because the image was hosted on a site not owned by the defendants in this case. Continue Reading

Starting Small on Media Regulation Modernization – Rule Requiring Hard Copy of FCC Rules Repealed

Posted in FM Translators and LPFM, General FCC, Low Power Television/Class A TV

One of the first proposals in Chairman Pai’s initiative for the modernization of media regulation (see our post here from when the Chairman announced the initiative) was to repeal an FCC rule that many did not even know was a rule – one requiring that broadcasters who have secondary licenses maintain a paper copy of the FCC rules (surprisingly, the rule did not apply to licensees without secondary licenses for things such as boosters and translators). We wrote about the proposal to abolish this rule here. Not even waiting for the Commission meeting tomorrow at which this proposal was to be considered, the FCC issued its Report and Order yesterday, repealing the rule. The Commission notes that station operators have a general obligation to be familiar with the rules that apply to their service, but there is no need to mandate a hard copy of the rules when rules can be accessed from other sources, in more current versions, electronically.

This is but one small step in removing unnecessary FCC regulation – but it is one in the right direction. We look forward to more such actions on more substantive topics in the coming months.

FCC LMS Filing System Off-Line for Maintenance For Parts of This Weekend – Making Biennial Ownership Report Filings More Difficult

Posted in AM Radio, EEO Compliance/Diversity, FM Radio, General FCC, Noncommercial Broadcasting, Television

Note, for all of you who are trying to complete your Biennial Ownership Reports that are due for commercial and noncommercial stations on March 2 (see our post here about the March 2 filing date), the FCC yesterday posted a notice on the log-in screen for its LMS electronic database, in which the ownership reports are filed, that it will be off-line for maintenance during parts of the upcoming 3-day weekend. As the system has had glitches in recent weeks, that maintenance may be overdue, but if you are running late on completing the Biennial Ownership Reports, this may not be welcome news.  Plan accordingly. 

Note, 2/16/2018, 3:30 PM – I have been told that the FCC anticipates that the outages will be mostly confined to overnight hours, so most folks trying to complete the report during the daytime over the weekend will not be affected.  So, barring any unforeseen issues, it will only be night owls who will be affected by the outages. 

Court of Appeals Denies Rehearing on Multilingual EAS Obligations for Broadcasters

Posted in AM Radio, Emergency Communications, FM Radio, Programming Regulations, Public Interest Obligations/Localism, Television

As we wrote here, MMTC (a DC-based public interest group) had petitioned the US Court of Appeals for a Rehearing on its decision (about which we wrote here) upholding the FCC decision deciding not to impose any multilingual EAS obligations on broadcasters.  The full Court of Appeals has just issued a one sentence order denying that reconsideration request.  While, theoretically, MMTC’s next appeal would be to the Supreme Court, lacking an issue of major significance or constitutional importance, that is unlikely. 

Thus, as we wrote here, the next step in any attempt to deal with multilingual EAS alerts will be with the FCC, which has agreed to further consider a survey of state EAS coordinators (“SECCs”) to see how best to insure that EAS alerts are distributed widely to the entire population.  By May, SECCs are supposed to integrate information about non-English speaking groups within their states into their State EAS plans, and file those revised plans with the FCC.  After that has occurred, we will see if the FCC takes further action in this area.  So stay tuned, as the issue continues to evolve. 

 

With the March 1 Deadline Looming, What Should Radio Stations Be Doing to Prepare Their Online Public File? – Five Questions About Station Obligations

Posted in AM Radio, FM Radio, General FCC, Noncommercial Broadcasting, Public Interest Obligations/Localism, Website Issues

On a day when the rest of the country is thinking about chocolate and Champagne, many radio stations need to be considering the FCC requirement that their public inspection file be made available online in a system hosted by the FCC. From the calls I have received in the last few days, it appears that, even though the FCC adopted the requirements two years ago (see our post here), and station groups with 5 or more employees in the Top 50 markets had to covert to the online file soon thereafter, many smaller stations are only now realizing that the March 1 mandatory conversion date for all full-power stations – commercial and noncommercial – is fast approaching.

We recently conducted a series of seminars for state broadcast associations on the online public file obligation. The slides from last of these, conducted for the Iowa and Indiana Broadcasters, are available here. In addition to those slides which provide an outline of the online public file obligations, there are many resources on the FCC’s own website about the public file. To summarize some of the last minute issues being faced by broadcasters, the Indiana Broadcasters posed 5 questions about the requirements – and our answers are shared below.

    1.  If a station is starting from ‘square one’ in preparing for the Online Public File requirement that kicks in for all radio stations on March 1, what are the first couple of steps one should do immediately?

With the March 1 deadline fast approaching for having your online file up and activated , stations should now be actively uploading the required material to the FCC file, and making sure that the information automatically uploaded by the FCC is accurate. We have already heard reports that the FCC system for hosting the online public file is running slowly, especially during business hours, making uploads difficult. That is likely to get even worse as we get closer to the March 1 deadline. So if a station has not started to get its online public file ready, it needs to do so immediately.

For a station that has done nothing, it needs to start by registering to get a password for the FCC’s site that hosts the file. A station first needs to go to the “Owner Sign In” page here. Using the station’s FCC Registration Number (FRN) and password will allow it to log in and set up a passcode for the public file. If a station doesn’t know its FRN or has forgotten its password, it can call the FCC’s FRN Help Line: 877-480-3201 (Mon.-Fri. 8 a.m.-6 p.m. ET). Once the station has its passcode, a station uses that passcode to log into the FCC-hosted platform, here, and start uploading its documents.

The FCC has a good set of Frequently Asked Questions about the online public file process here.

2.  Are all radio stations now going to be required to use an online Public File?

The online public inspection file is required for all full-power stations, commercial and noncommercial, unless the station has obtained a waiver. Few if any waivers have been granted. Unless you are a very small station with real provable issues with Internet access, I would not expect waivers at this point, so late in the game.

3.  What are the most important uploading obligations?

The FCC has already uploaded many of the required documents, and those documents should be found already in the folders when you first log into the FCC’s hosting platform. The information already uploaded by the FCC includes pending applications, ownership reports, a contour map showing the stations coverage, The Public and Broadcasting procedure manual, and copies of the station’s license and renewal authorization. Look these over carefully and determine which of the FCC-uploaded documents need to be made available to the public. The FCC will upload all applications filed for your station going back many years – when only pending applications need to be made visible to the public. So you need to select which ones will be made available to the public by keeping them in the “On” position and toggling the rest to the “Off” position so that the public can’t see them. We have also heard reports that there have been instances where the FCC has not uploaded the most recent license into the authorization folder, so you should check to make sure that what has been uploaded reflects accurately your current operations.

A station will have two sets of documents that will take a significant amount of time to manually upload. Any station that is part of a Station Employment Unit with 5 or more full-time employees needs to upload all of its Annual EEO Public Inspection File Reports, back to the start of the current renewal term for the state in which the station is located. There will likely be 4-6 of these reports, depending on the license term for the state in which the station is located.

In addition, stations need to upload all of their Quarterly Issues Programs lists going back to the start of the license term. All stations, commercial and noncommercial, should have these reports. These are the only documents that the FCC requires to show how your station met the needs and interests of its community of license (for more information on these reports, see our article here). As all of the Quarterly Issues Programs lists going back to the start of the license term need to be uploaded, you are looking at uploading more than 20 of these quarterly reports. Because there are so many, these will likely take more time than anything else to upload.

Unlike the EEO Reports and Quarterly Issues Programs lists referenced above, the FCC has said that you only need to upload “new” political file documents (i.e. those created after the file goes live to the public). If you decide not to upload the old political documents, you must maintain all “old” political file documents in a paper public inspection file for two years from the date that the document was created. If you are thinking of no longer maintaining a main studio open during normal business hours, you may want to consider uploading all political documents now so you no longer need to maintain a paper file available to local residents.

There are other documents commonly to be included in the file that station employees will need to manually upload. These include licensee organizational documents, contracts relating to ownership rights (e.g. options, pledges or voting proxies), and other contracts that restrict a licensee’s control over station operations (all of which are supposed to be listed on your ownership report) either need to be uploaded or included on a list of documents available for inspection upon request (with information as to how to contact someone at the station that can provide the documents within 7 days). Time brokerage or joint sales agreements need to be uploaded. And, for noncommercial stations, a list of donors contributing to support the broadcast of a specific program (as opposed to general station donors) is to be included in the public file.

The FCC has published a complete list of all of the documents that you need to have in your file here.

4.  After uploading the documents, how long do I need to keep copies of these files?

Retention periods vary for the various documents that need to be in the file. As noted above, EEO Public Inspection File Reports and Quarterly Issues Programs lists for the entire license term need to remain in the file until your next license renewal is granted. Applications need to be in the public file only until the application is granted and the grant is final (no longer subject to any appeal or review). Only the most recent ownership report needs to be in the file (as a reminder, the next biennial ownership report is due by March 2, 2018). Documents in the political file need to be maintained for two years from the date of their creation. Certain contracts and agreements (like time brokerage agreements) need to be maintained for the life of the agreement. So review the FCC’s rules on the retention of documents. In the slide deck we prepared here, many of the retention periods are provided.

5.  What advantages and disadvantages of the online file?

The obvious advantage is that you no longer have to maintain a paper file and give physical access to your studio to anyone who wants to see the file. Of course, by putting the file online, you make the contents of the file available for review by anyone, anywhere, any time. So public interest groups and the FCC itself can use it to assess your compliance – including looking at electronic date stamps on documents to determine whether documents were timely included in the file. Late filings could become a real issue for documents like Quarterly Issues Programs lists which were rarely if ever reviewed by the FCC when they were kept in the paper public file. Remember, on the next renewal application, you will likely be asked to confirm that you placed all required materials in the public file on time. The FCC and the public will now know whether your response is accurate or not.

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The March 1 deadline is fast approaching. If you have not already completed the process and made your file available to the public, start working on that file soon. It will take longer than you think, so don’t run out of time to comply.

Addendum – 2/14/2018, 5 PM EST – the post has been edited to reflect that the online public file applies to full-power stations.  LPFM stations and FM translators do not have a public file obligation. 

Commissioner O’Rielly to Head FCC Review of KidVid Rules

Posted in Children's Programming and Advertising, Programming Regulations, Public Interest Obligations/Localism

FCC Commissioner Michael O’Rielly today released a statement announcing that Chairman Pai has requested that he lead an effort to review the FCC’s “KidVid” rules – the rules that govern the amount of educational and informational programming that each broadcast station is required to air to meet the needs of children. Commissioner O’Rielly recently wrote about his concerns that the requirements that each TV station air 3 hours weekly of such programming for each of its program channels no longer make sense in today’s media marketplace where there are so many other outlets for children’s programming. We wrote here about his prior statement on the issues. In the statement released yesterday, he asked that all stakeholders in the children’s television world – including broadcasters, children’s advocates and family group representatives – contact his office with their opinions on the current rules. This new aspect of the FCC’s Initiative for the Modernization of Media Regulation seems to have traction –so interested parties should take advantage of the Commissioner’s invitation and forward their thoughts on children’s television obligations to him.

FCC Extends Comment Dates on National Caps on TV Ownership

Posted in Multiple Ownership Rules, Television

The FCC in December issued a Notice of Proposed Rulemaking, looking at changes in the national television ownership caps. We summarized the issues raised in that Notice here. The FCC yesterday issued an Order extending the comment dates in that proceeding. Comments are now due on March 19, with replies on April 18.

GMR to Extend Commercial Radio Interim Licenses Until September 30, 2018

Posted in Broadcast Performance Royalty, Intellectual Property, Music Rights, Noncommercial Broadcasting

On Friday, the Radio Music License Committee issued a press release that states that Global Music Rights (“GMR”), the new performing rights organization that collects royalties for the public performance of songs written by a number of popular songwriters (including Bruce Springsteen, members of the Eagles, Pharrell Williams and others) has agreed to extend their interim license for the performance of their music by commercial radio stations until September 30, 2018. The notice says that GMR will be contacting stations that signed their previous extension (through March 30 – see our article here) about such an extension. If you don’t hear from GMR, the RMLC suggests that you reach out to them about this extension.

As we have written before (see our articles here and here), GMR and the RMLC are in litigation over whether or not the rates set by GMR should be subject to some sort of antitrust review, as are the rates set by ASCAP, BMI and even SESAC (see our article here on the SESAC rates). In the interim, there is no license to play the GMR music outside the Interim license offered to all commercial stations, or individually negotiated licenses with the company. Commercial stations that play GMR music should either have a license or should discuss carefully with counsel their potential options and liabilities if they continue to play GMR music. Do not ignore the potential liability as, under Copyright law, there are substantial “statutory damages” of up to $150,000 per song, for infringement. Noncommercial stations are not covered by this license being offered by GMR to RMLC members, as public performance royalties for noncommercial broadcasting are set by the Copyright Royalty Board (see our article here). Those stations should also discuss their obligations for royalties under the CRB decision with their counsel.

LPTV and TV Translator Displacement Window Announced – April 10 through May 15

Posted in Incentive Auctions/Broadband Report, Low Power Television/Class A TV, Television

The FCC on Friday issued a Public Notice announcing that LPTV stations and TV translators displaced by the Incentive auction and repacking of the TV band will have an opportunity to file for replacement channels for the ones on which they currently operate in a window that will run from April 10 through May 15.  This is for LPTV and TV translator stations that operated on channels above channel 37, which will no longer be part of the TV band after the post-Incentive auction repacking of TV stations is complete. Also filing will be LPTV stations and TV translators that operate on channels in the core TV band on which full-power stations have been relocated as part of the post-auction repacking. Stations planning to file in this window also need to take into account improvement applications filed by full-power stations in the windows held during the latter part of 2017 (see our articles here and here on those windows). The Public Notice offers access to an FCC tool that will help LPTV and translator station operators locate available channels in the area in which they operate.

The Public Notice for the most part simply announces the dates, as the FCC had promised 60 days prior notice of the opening of the window.  The procedures to be followed during the window were set out in a Public Notice released last May, which we summarized here. So if you operate translators or LPTV stations which were precluded by the repacking, start preparing now for the window.