Broadcast Law Blog

Broadcast Law Blog

CRB Sets Rates for Public Performance Royalties for Noncommercial Broadcast Stations for Over-the-Air Broadcasting – Rejects GMR Claim for Royalties

Posted in Intellectual Property, Music Rights, Noncommercial Broadcasting

The Copyright Royalty Board on Friday published in the Federal Register its decision setting the royalty rates that noncommercial broadcasters will pay to the performing rights organizations for the public performance of musical compositions in over-the-air broadcasting during the period 2018-2022.  The rates reflect settlements between ASCAP, BMI and SESAC and various organizations representing noncommercial broadcasters. The Corporation for Public Broadcasting agreed to one set of rates paid to cover NPR and PBS affiliates. The NRB (the religious broadcasters’ organization) agreed to another set of rates that apply to non-NPR radio stations not owned by colleges and universities, setting out rates that these noncommercial stations pay to each of the three legacy performing rights organizations. For these radio stations, the rates are based on the population served by each noncommercial station. College and university-owned stations can take advantage of a third set of rates, based primarily on the number of students in the school.

Interestingly, the newest PRO, GMR (about which we have written many times in connection with its battles with commercial radio – see for instance our articles here and here), did not file to participate in this proceeding when the proceeding began in early 2016 (see our article here on the commencement of the proceeding). The settlements approved by the CRB recognized that there may be some songwriters and publishers who are not members of ASCAP, BMI and SESAC but have music that is played on the air. A $1 fee to cover this unaffiliated music was provided in the settlement agreements. Only after these settlements were fully negotiated, filed with the CRB for approval, and published in the Federal Register as required by applicable law (well after what would otherwise have been the time for the litigation over the royalty rates had there been no settlements), GMR objected arguing that it should have been allocated royalties equal to those that SESAC is to receive. In the order published in the Federal Register on Friday, the GMR claim was rejected as being barred by the Copyright Act which effectively prohibits organizations from sitting back and ignoring a proceeding until the very last moment. Only “parties” to a proceeding, those that had timely participated in the case, are entitled under the law to object to a settlement and offer alternative proposals. Thus, for the five year period for which these royalties are in effect, this decision settles what the noncommercial broadcaster pays for the public performance rights to musical compositions for over the air broadcasts.

The Government Is Closed, But the FCC Is Not – How Government Agencies Dealing with Media Issues are Handling the Shutdown

Posted in FM Translators and LPFM, General FCC, Intellectual Property, Trademark

As anyone who had turned on TV, listened to the radio, looked at the Internet or read a newspaper knows, the Federal government ran out of money at midnight on Friday, and news outlets are calling it a government shutdown.  But, unlike shutdowns in the past where all agencies closed their doors at the same time (see our articles here, here and here), not all agencies will be closed for business on Monday, even if no settlement is reached before then.  The FCC on Friday announced that they had sufficient funds to keep running normally through the coming week, seemingly postponing closing until after business is done on January 26.  We have even heard that FCC auctions (including the upcoming filing window for FM translators for AM stations) may be funded differently than the rest of the agency, and may continue even if there is no resolution to the shutdown, though we will have to wait for official confirmation that the filing window will go on.

Other Federal agencies with which media companies regularly deal need to check with the agency to see what their status is.  The Copyright Office has an announcement on its website that it is closed and its website frozen in the same form that it had at midnight on Friday.  By contrast, the Patent and Trademark Office states on its website that it has sufficient funds from prior appropriations to continue to function “for a few weeks.”  The FAA is slightly more vague – saying that it will continue to perform only “exempt functions” but, other than to say that airport controllers and security will remain functioning, there is no definition as to what exempt functions include.  The FTC website is totally silent about the shutdown (we understand that they will be shut down, but no statement appears on their website, so watch for more information).  So if there is no resolution of the impasse over government funding, and you have business with the Federal government on Monday, find out from the agency what their status is, and how the shut-down is affecting them.

First Appeal of Multiple Ownership Rule Changes Filed by Public Interest Groups

Posted in Multiple Ownership Rules, Public Interest Obligations/Localism, Television

Prometheus Radio Project and Media Mobilizing Project, public interest groups who have been opponents of relaxation in the FCC’s broadcast ownership rules, have filed the first Petition for Review of the FCC’s Order on Reconsideration of the Quadrennial Review of those rules. In November, the FCC by a 3 to 2 vote eliminated the rule requiring that eight independent television voices remain in a market before a TV duopoly would be approved, eliminated the newspaper/broadcast and radio/television cross-interest rules, and made other changes (which we summarized here). The petitioners filed their appeal in the Third Circuit, which has for more than a decade heard appeals of FCC ownership rulemakings, and has often been skeptical of FCC actions (though most recently, as we wrote here, seemed to express some views that the newspaper/broadcast cross-ownership ban was outdated). In any event, these groups have filed before the effective date of the new rules, and there is some thought that they may seek a stay of that effective date (the filing of the appeal itself does not itself stay the effectiveness of the decision). Stay tuned….

New “Blue Alert” EAS Warning Order Published in the Federal Register – To be Implemented By Broadcasters by January 18, 2019

Posted in Emergency Communications

As we wrote here, the FCC recently adopted a new Blue Alert code to be added to the warning codes in the EAS system. This code is to be used for warnings about imminent danger to law enforcement authorities. The FCC’s Order (available in full here) has now been published in the Federal Register, making the rule changes effective. However, the FCC has provided one year for new equipment or upgrades to existing equipment to be rolled out, meaning that broadcasters will need to implement these new EAS codes and be prepared to use them by January 18, 2019. Start your preparations to implement these new codes now.

15 Years Later – Auction of FM Translators from 2003 Translator Window Scheduled

Posted in Broadcast Auctions, FM Translators and LPFM

The FCC has just announced an auction for approximately 43 translators left over from the 2003 FM translator window (see proposed auction procedures here, and list of mutually exclusive applicants here). The auction is scheduled to begin in June. These applications are mutually exclusive applications left over from that 2003 window, where the parties did not settle during the settlement window that the FCC opened several years ago (see our article here) and which were not dismissed when the Commission retroactively imposed limits on how many applications filed in the window from any applicant the Commission would process (see our article here). These contentious issues, involving a determination of the priorities to be accorded LPFM stations and FM translators, took the FCC many years to resolve, postponing this auction for so long.

We would expect that this delayed auction is a very unusual circumstance, and applications that may be mutually exclusive in the recent and upcoming windows for filing for FM translators for AM stations, will be resolved much more quickly as the underlying basic issues have generally been resolved. When we will see an open window for new FM translators, not tied to AM stations, is anyone’s guess at this point, but we know that at some point later this year, we should see a number of new translators both from this auction and from the windows for AM stations.

Washington Legal Issues for TV Broadcasters – Where Things Stand in the New Year

Posted in Cable Carriage, Children's Programming and Advertising, Digital Television, EEO Compliance/Diversity, Emergency Communications, General FCC, Incentive Auctions/Broadband Report, Indecency, Low Power Television/Class A TV, Multiple Ownership Rules, Payola and Sponsorship Identification, Political Broadcasting, Programming Regulations, Public Interest Obligations/Localism, Television

It’s a new year, and a good time to reflect on where all the Washington issues for TV broadcasters stand at the moment, especially given the rapid pace of change since the new administration took over just about a year ago. While we try on this Blog to write about many of the DC issues for broadcasters, we can’t always address everything that is happening. Every few months, my partner David O’Connor and I update a list of the legal and regulatory issues facing TV broadcasters. That list of issues is published by TVNewsCheck and the latest version, published this week, is available on their website, here. It provides a summary of the status of legal and regulatory issues ranging from the adoption of the ATSC 3.0 standard at one end of the alphabet to White Spaces and Wireless Microphones on the other – with summaries of other issues including the Incentive Auction, Ownership Rule Changes, Media Regulation Modernization, EEO compliance, Political Advertising and Sponsorship Identification, along with dozens of other topics, many with links to our more detailed discussions here on the Blog. Of course, the status of these issues changes almost daily, so watch this Blog and other trade publications for the latest Washington news of interest to broadcasters.

When the President Uses a Profanity, What Can Broadcast News Do?

Posted in FCC Fines, Indecency, Programming Regulations

Yesterday, the President reportedly used the word “shithole” to describe certain countries whose immigrants were seemingly less favored than others. This predictably caused outrage in many quarters – and left the electronic media, especially broadcast TV in a quandary. Do they broadcast the purportedly used term, or do they use some euphemism so that “shit,” one of those words that the FCC has from time to time found inappropriate to be used on the air, does not reach tender ears? The New York Times ran a story describing how different media outlets handled the story here. What is a broadcaster to do?

The FCC has said repeatedly that there is no blanket rule exempting news programming from its indecency rules – so theoretically, a broadcaster could face an indecency action at the FCC for the use of a proscribed word on the air, even in a newscast. However, the FCC has recognized that decisions made about the language used in newscasts are subject to a different level of First Amendment protection than language that might be included in an entertainment program. So, for instance, when NPR aired excerpts from a tape of mobster John Gotti that had been introduced during his criminal trial, and that tape contained multiple words usually not allowed on broadcast stations, the FCC and the courts found that, in the circumstances of news coverage, the use of these words was not actionable. In another case, a CBS Morning News interview with the winner of the Survivor television program, there was a similar decision from the FCC. On the morning news program, the winning contestant labeled a competitor a “bullshitter.” The FCC took no action, deferring to the licensee’s decision given that it was made in the context of a news program. So, while there is no blanket exception for indecency in news programs (witness the huge fine issued to a TV station that had not properly edited a news segment on a former adult industry movie star turned first responder, about which we wrote here), certainly the FCC has provided stations more discretion to air otherwise prohibited words in their news if necessary to provide context to their news coverage. But with FCC Chairman Pai admonishing broadcasters to “keep it clean,” and with the FCC’s indecency rules still on the books, and any complaint likely to cost time and money to defend, broadcasters may want to be cautious in their approach to these situations, even in the context of news programs.

Update: 1/12/2018;  Tonight, on All Things Considered, there was a very good discussion (available here) of NPR’s use of the term supposedly used by the President, and how the specific words were used only where they were thought to be newsworthy – and the term was used sparingly.  That story struck me as containing good advice for those stations that decide to use any such term on the air in a news report – the profane term should be used sparingly and only when it is newsworthy.  A repeated use of the profane word, even in news reporting, could be used to question the news judgment of the station.  So use judgement and discretion – there is no blank check even in news reports.

As Super Bowl Approaches, Advertisers Should Be Aware of The NFL’s Efforts to Protect Its Golden Goose – 2018 Update on Super Bowl Advertising and Promotions

Posted in Advertising Issues, Intellectual Property, Trademark

For many years, we have posted guidelines about engaging in or accepting advertising or promotions that directly or indirectly allude to the Super Bowl without a license from the NFL. We are at that time of year again, so here is an updated version of our prior posts.

The Super Bowl means big bucks. It is estimated that each of the three television networks that broadcast the Super Bowl pay the NFL in excess of $1 billion per year for the right to broadcast NFL games through 2022, including the right to broadcast the big game on a rotating basis once every three years. Of course, the game generates hundreds of millions of dollars for the networks from advertisers. In addition to the sums paid to have their commercials seen (approximately $5 million for a 30-second spot), many advertisers spend more than $1 million to produce each ad. In addition, the NFL receives hundreds of millions of dollars in income from licensing the use of the SUPER BOWL trademark and logo.

Not surprisingly, the NFL is extremely aggressive in protecting its golden goose from anything it views as unauthorized efforts to trade off the goodwill associated with the game. Accordingly, with the coin toss almost upon us, advertisers need to take special care before publishing ads or engaging in promotional activities that refer to the Super Bowl. Broadcasters and news publishers have greater latitude than other businesses, but still need to wary of engaging in activities that the NFL may view as trademark or copyright infringement. (These risks also apply to the use of “Final Four” or “March Madness” in connection with the upcoming NCAA Basketball Tournament.) Continue Reading

Next Media Modernization Proposals – Eliminate FCC Filing Requirement for Certain Broadcast Licensee Contracts and Expunge Analog TV Rules

Posted in AM Radio, Assignments and Transfers, FM Radio, General FCC, Public Interest Obligations/Localism, Television

At its next open meeting to be held on January 30, the FCC will consider two more proposals in its Modernization of Media Regulation Initiative.  As with many of the other proposals that have been advanced by the FCC as part of this initiative thus far, these proposals address relatively minor matters concerning paperwork obligations rather than substantive FCC rules.  Draft proposals were released yesterday by the FCC dealing with two matters.  The first is a Notice of Proposed Rulemaking suggesting the elimination of requirements that broadcast licensees file paper copies of certain contracts with the FCC.  The second is an Order deleting certain rule sections that explicitly deal with the operations of full-power analog television stations – stations which no longer exist.

It is certainly difficult to argue with the FCC’s decision to delete rules that apply to a service that no long exists, so it is obvious that the more substantive of the two proposals advanced yesterday is the one dealing with the filing of contracts with the FCC by broadcast licensees.  But even this proposal was not particularly substantive, proposing only the elimination of the rules requiring the filing of physical copies of the required contracts, not the obligations that these contracts be available for public inspection and review.  The NPRM suggests that instead of filing the required contracts with the FCC, the inclusion in a broadcaster’s online public file of information about these agreements is sufficient to eliminate the need for the filing with the FCC of physical copies of these documents.  The agreements that are now required to be filed are also required to either be included in the public file or the licensee may opt to include in the public file a list of the contracts with a commitment to produce them within 7 days upon request.  The NPRM also proposes to formalize the practice specifically adopted in connection with some but not all of the required documents – allowing broadcasters to redact financially sensitive business information from any document that it provides upon request.  The NPRM as currently drafted does not ask whether the FCC should examine whether the filing of some or all of these contracts, or even their inclusion in a station’s public file, should be required at all. Continue Reading

Ownership Rule Changes Effective February 7; Comments on Incubator Programs to Foster Diversity in Broadcast Ownership Due March 9

Posted in Assignments and Transfers, EEO Compliance/Diversity, Multiple Ownership Rules, Public Interest Obligations/Localism

Published today in the Federal Register were two notices from the FCC implementing November’s decision on the FCC’s ownership rules. First, a summary of the changes in the rules was published in the Federal Register. These changes particularly affect the local TV ownership rules (changes that we summarized here). Changes included, among other things, the elimination of the rule that required that there be 8 independent owners of TV stations in a market before any party can own two TV stations, elimination of ownership attribution for Joint Sales Agreements between television stations in the same market (meaning that such arrangements do not count in any analysis of compliance with the local TV ownership rules), and a plan to review proposals to combine two of the top 4 stations in any market on a case-by-case basis. These rule changes become effective on February 7.

Also published in the Federal Register was a summary of a different part of the order, one asking questions about how the FCC should structure an incubator program that would support diversity in the ownership of broadcast stations. In that Notice of Proposed Rulemaking, the FCC asks a series of questions as to how a program could be established in a way that would benefit minorities and other new broadcast entrants. As the usual discussion about such programs involves providing established broadcasters a waiver of an ownership rule or other incentive to assist the new entrant, one of the central issues is how to establish a program providing real benefits without creating a loophole in the ownership rules for the sponsoring broadcaster. Comments on the Notice of Proposed Rulemaking are due on March 9, with replies on April 9. Some of the questions asked by the FCC are summarized below. Continue Reading