Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.  We also note an upcoming event to which broadcasters will want to pay attention.

  • After a multi-year review of the ASCAP and BMI consent decrees, Makan Delrahim, the outgoing head of the Department of Justice’s Antitrust Division, announced that the DOJ will not seek changes to the decrees. Instead, the Division laid out principles that the incoming Biden Administration should consider in future reviews of the decrees.  The review found that, while there was a desire by ASCAP and BMI and some in the music industry for reforms to the decrees, music users believe that they are generally working well.  The consent decrees are important as they allow ASCAP and BMI to license a broad array of musical works to users, including broadcasters, on terms that cannot discriminate between similar users, at rates subject to judicial review to ensure that they are reasonable. (Remarks of Mr. Delrahim)  See our blog article on the initiation of the review, describing the issues which the DOJ explored.
  • The FCC published in the Federal Register its Notice of Proposed Rulemaking that looks at allowing zonecasting by FM boosters, setting the comment dates in this proceeding. The FCC proposes allowing FM boosters to originate up to three minutes of hyperlocal programming (news, weather, advertising, etc.) per hour and seeks comment on the concept and on the proposed rules to implement the idea.  Comments and reply comments are due by February 10 and March 12, respectively.  We wrote about the proposal, here.  (Federal Register)
  • Rules designed to increase unlicensed wireless device use in TV “white spaces” will go into effect on February 11. The rules expand the ability of unlicensed white space devices to operate in unused portions of the TV band (channels 2-35) to provide rural broadband services and Internet of Things applications.  We wrote about the new rules, here.  (Federal Register)
  • Cumulus Radio was fined $233,000 for airing paid programming without the required sponsorship identification and for failing to abide by the terms of a 2016 consent decree that required the company to timely notify the FCC of such violations. Broadcasters are required to disclose information about the sponsors of programming for which they receive payment or other valuable consideration.  (Forfeiture Order)
  • The FCC released a report on the relationship between the number of independent local television news operations in a market and market size. The report concludes, among other things, that there is a strong relationship between the market size, number of television households, and the number of independent local TV news operations.  This information may be considered in future reviews of the FCC’s ownership rules.  (Working Paper)

Next week, the Supreme Court will hear oral argument in Federal Communications Commission, et al. v. Prometheus Radio Project, et al., the Court’s review of the FCC’s 2017 media ownership rule changes.  Live audio of the January 19 proceeding will be available on C-SPAN at 10 am EST and a downloadable recording should be available by January 22 on the Supreme Court’s website.  A decision is expected in early summer.  To get caught up on this case and other media ownership issues, see our blog post, here.  (Case Docket)

After this year’s contentious elections, it is with reluctance that we even broach the subject – but broadcasters and cable companies need to be aware that in many jurisdictions there are elections this November. While most broadcast stations don’t think about the FCC’s political broadcasting rules in odd numbered years, they should – particularly in connection with state and local political offices.  There are elections for governor in November in Virginia and New Jersey, and all sorts of state and local elections in different parts of the country.  These include some mayoral races in major US cities.  Some of these local elections don’t even occur in November – and there are even a few that are taking place as early as next month. As we have written before, most of the political rules apply to these state and local electoral races so broadcasters need to be paying attention.

Whether the race is for governor or much more locally focused, like elections for state legislatures, school boards or town councils, stations need to be prepared. Candidates for state and local elections are entitled to virtually all of the political broadcasting rights of Federal candidates – with one exception, the right of reasonable access which is reserved solely for Federal candidates. That means that only Federal candidates have the right to demand access to all classes and dayparts of advertising time that a broadcast station has to sell. As we wrote in our summary of reasonable access, here, that does not mean that Federal candidates can demand as much time as they want, only that stations must sell them a reasonable amount of advertising during the various classes of advertising time sold on the station. For state and local candidates, on the other hand, stations don’t need to sell the candidates any advertising time at all. But, if they do, the other political rules apply. Continue Reading Reminder – 2021 Will Include Some Off-Year Elections for State and Local Office – and FCC Political Broadcasting Rules Do Apply

The FCC’s Notice of Proposed Rulemaking looking to allow zonecasting by FM booster stations was published in the Federal Register today, setting the comment deadline as February 10, 2021 with reply comments due on or before March 12, 2021.  We’ve written about that proposal here and here.  The FCC proposes to allow FM boosters to originate limited amounts of programming (up to 5% of any program hour) different from their primary stations.  According to the proponents of the proposal, this will allow for insertion of hyper-local content including local news and advertisements in different parts of any station’s coverage area.  So, for instance, an FM station could run in the same commercial spot break ads for different car dealers in different parts of the primary station’s market where that station has boosters.  As we wrote when the NPRM was released, the FCC asks many questions in the NPRM – including technical questions about the likely interference that will result from implementation of the proposal.  It also asks operational, business and policy questions about the impact of the adoption of the proposal.  If you have a position on these issues, now is the time for the filing of comments.

 

Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.  Also, we include a quick look at some important dates in the future.

  • The Enforcement Bureau advised broadcasters (and other participants) of their Emergency Alert System obligations, including the requirement to make EAS messages accessible. The advisory provides a good reminder of a broadcaster’s EAS obligations. (Advisory)
  • The FCC issued a status report on the incentive auction repack and announced that it has sufficient funds available for the reimbursement of costs incurred by LPTV and TV translator stations because of the repacking to increase their payments from 85% of verified estimates to 92.5%. According to the status report, all of the stations repacked as part of the incentive auction have vacated their pre-auction channels and, as of this week, over 95% of the stations are operating with their final technical facilities.  (Public Notice)
  • The FCC released its count of broadcast stations as of year-end 2020, finding more than 33,500 stations, including more than 15,000 full-power radio stations and nearly 1,200 full-power TV stations. (Broadcast Station Totals)
  • The FCC submitted its annual report to Congress on the implementation of the PIRATE Act and the enforcement actions it has taken over the last year. The report notes that COVID-19 and the lack of congressionally-appropriated funds in FY 2020 for the Act have limited implementation and enforcement activities.  (Report)
  • Four low power FM stations in Iowa and Missouri failed to file license renewal applications by their October 1, 2020 filing deadline and are in danger of seeing their licenses expire. This serves as a reminder to television stations in Arkansas, Louisiana, and Mississippi and radio stations in Kansas, Nebraska, and Oklahoma to file their renewal applications, due by February 1, 2021.  (Public Notice)
  • In the copyright world, the Copyright Office released a Notice of Inquiry to review changes to the copyright license granted to satellite TV providers under 2019’s Satellite Television Community Protection and Promotion Act to provide local-into-local retransmission of television stations. The review seeks comments by March 8 as to how the new law impacts affected parties including consumers and stations.  Read more about the inquiry, here.
  • A handful of large radio groups and webcasters will be audited by SoundExchange over their compliance with their copyright licenses for the public performance of sound recordings required when they transmit their programming on the Internet.  Read more about this and other music licensing audits, here.

To help you stay on top of the many scheduled regulatory dates for the rest of the year, we published our Broadcaster’s Regulatory Calendar for 2021, which sets out many of the broadcast regulatory dates and deadlines in 2021.  (Broadcast Law Blog)

Looking ahead, on Monday, a notice is scheduled to appear in the Federal Register announcing the comment period for the FCC’s FM booster rulemaking (we covered the “zonecasting” proposal in more detail, here).  The proceeding asks if boosters should be allowed to originate hyperlocal program that is different from the programming carried on the station they rebroadcast.  Comments will be due by February 10, 2021 and reply comments will be due 30 days later on March 12, 2021.  On Wednesday, the FCC will hold the first of its required monthly Open Meetings of 2021.  After releasing a tentative agenda with only bureau and staff presentations about the FCC’s accomplishments during his term, Chairman Pai, who will preside over his last Open Meeting, added three items for Commissioners to vote on – none of which directly impact broadcasters.  The meeting will be streamed live, here, at 10:30 pm Eastern on January 13.

The Copyright Royalty Board today published a Federal Register notice announcing that SoundExchange was auditing a number of broadcasters and other webcasters to assess their compliance with the statutory music licenses provided by Sections 112 and 114 of the Copyright Act for the public performance of sound recordings and ephemeral copies made in the digital transmission process by commercial webcasters. A separate notice to audit the company Music Choice, which also provides a digital music service usually delivered with cable or satellite television services, was also issued to audit their compliance both on webcasting and on their subscription music service which is subject to separate royalty rules set out in a different part of the same section of the Copyright Act and set through a different Copyright Royalty Board proceeding. A third audit notice has gone out to a company called Rockbot, a Business Establishment Service whose royalties are exclusively paid under Section 112 of the statute (see our article here about the CRB-set royalties for these services that provide music played in various food and retail establishments and other businesses).

SoundExchange may conduct an audit of any licensee operating under the statutory licenses for which it collects royalties.  Such audits cover the prior three calendar years in order to verify that the correct royalty payments have been made. The decision to audit a company is not necessarily any indication that SoundExchange considers something amiss with that company’s royalty payments – instead they audit a cross-section of services each year (see our past articles about audits covering the spectrum of digital music companies audited by SoundExchange here, here, here and here).  Audits are conducted by outside accounting firms who, after they review the books and records of the company being audited, issue a report to SoundExchange about their findings.  The company being audited has the right to review the report before it is issued and suggest corrections or identify errors.  The reports are then provided to SoundExchange and, if they show an underpayment, it can collect any unpaid royalties, with interest.  While, by statute, the notice of the royalty must be published in the Federal Register, the results of the audit and any subsequent resolution usually are not made public. Continue Reading Copyright Royalty Board Announces SoundExchange Audits of Royalty Payments for Webcasters (Including Broadcast Simulcasts) and Other Digital Music Services

A Notice of Inquiry from the Copyright Office was published today in the Federal Register, announcing the initiation of an inquiry into the effects of the 2019 changes in the statutory license under Section 119 of the Copyright Act for satellite television providers to retransmit local television stations.  Pursuant to that license, a satellite carrier can retransmit local television stations into their own markets without having to negotiate with each copyright holder in the programming carried by local stations.  Instead, the satellite carrier pays a license fee set by the statute and the proceeds of that license are redistributed through proceedings held by the Copyright Royalty Board to the copyright holders.  As part of that license, satellite carriers can import signals of distant network television stations into a market in certain circumstances – circumstances that were greatly limited by the Satellite Television Community Protection and Promotion Act (the “STCPPA”) in 2019.  As part of that statute, Congress instructed the Copyright Office to conduct this study to review the impact of the 2019 changes.

The 2019 changes eliminated the ability of satellite carriers to import distant network signals to households in a market where:

  • The households could not receive a local over-the-air signal via an antenna;
  • The household received a waiver from a local network affiliate to receive a distant signal;
  • “Grandfathered” households that received distant signals on or before October 31, 1999; and
  • Households eligible for a statutory exemption related to receiving “C-Band” satellite signals.

These exceptions were problematic to broadcasters as they introduced a distant network affiliate into a television market, encouraging viewers to watch that distant station at the expense of the local affiliate.  Congress was concerned that these situations encouraged viewers to watch distant news rather than the local news and information provided by in-market stations.  Many of these provisions were also hard to implement and enforce.  For instance, the question of whether a household could receive an over-the-air signal could often be a contentious question.  Waivers also were problematic, as a local station could feel pressure to give a waiver to a local resident to avoid bad will within the community.  Thus, in 2019, all of these exceptions were abolished. Continue Reading Copyright Office Begins Review of Changes in Satellite Television Statutory License for Carriage of Local Television Stations

Here we are, in a new and hopefully more “normal” year – wondering what will be ahead.  Each year, at about this time, we put together a look at the regulatory dates ahead for broadcasters – or at least the primary ones that we already know.  This year is no different – and we offer for your review our Broadcaster’s Regulatory Calendar for 2021.  While this calendar should not be viewed as an exhaustive list of every regulatory date that your station will face, it highlights many of the most important dates for broadcasters in the coming year – including dates for license renewals, EEO Public Inspection File Reports, Quarterly Issues Programs lists, children’s television obligations, annual fee obligations and much more.  This year, for LPTV and TV translator operators, there are also dates associated with this summer’s deadline for all such stations to be operating digitally (see our article here).

While this likely will not be a big political advertising year like 2020, there will be some state and local races – so we note the start of the Lowest Unit Charge window for this year’s November election – relevant in states like New Jersey and Virginia where there are races for governor and state legislature, and to the many locations across the country that will have mayor’s races and other state and local political contests.  Look for local information about the dates for any primary elections for these elections – as those primaries have their own LUC windows for the 45 days preceding the primary.  See our article here on how the other political broadcasting rules apply to state and local elections. Continue Reading A Broadcaster’s 2021 Regulatory Calendar – Looking at Some of the Important Dates for the Year Ahead

Here are some of the regulatory developments in the last two weeks of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC released an order revising its fees for broadcast applications and other filings. The fees were adjusted to reflect the Commission’s accounting of the amount of legal, engineering, and supervisory resources spent on reviewing the filing.  For the first time, the fees will include payments for FM translator minor changes.  The new fee schedule will go into effect after the FCC has updated its internal systems and notice is published in the Federal Register. (Report and Order)
  • The FCC announced that, beginning January 15, it will marginally increase its fines for rule violations to adjust for inflation. (Order)
  • For broadcasters who use drones (“unmanned aircraft systems” or “UAS”), the Federal Aviation Administration released two lengthy decisions amending its regulations governing their operations. The new rules mandate a “digital license plate” to identify most drones to enhance security in the industry and pave the way for expanded operations that are currently allowed only through special waivers or exemptions. At the same time, the FAA modified its rules for small UAS, i.e., those weighing less than 55 pounds, to permit qualified operators to fly them over people and moving vehicles and at night without waivers, provided certain conditions are met. An FAA press release with links to the decisions is available here.
  • The Federal Trade Commission announced consent decrees with six companies over their marketing of CBD products, finding the advertising of specific health benefits of CBD to be deceptive (FTC Press Release). For more information on these decrees and other cannabis advertising issues for broadcasters, see our blog article here.
  • The FCC’s Media Bureau granted a waiver allowing the common ownership of two TV stations in the Lubbock, Texas market even though there would not be eight independent operators in the market after the combination, as required under current FCC ownership rules. The Commission justified the waiver on its “failing station” standard, finding that the acquired station had “been struggling for an extended period of time both in terms of its audience share and in its financial performance.” See the FCC’s letter for the criteria a station must meet to be considered failing and the Video Division’s analysis of this particular transaction.
  • In two decisions, the FCC approved foreign ownership of broadcast companies in excess of 25%. Specific FCC approval is required when foreign ownership in a company holding broadcast licenses is proposed to exceed 25%, with the FCC and other government agencies reviewing the national security and public interest implications of the foreign ownership (decisions on Estrella Broadcasting, Inc. and Univision Holdings, Inc.)
  • In a reminder to pay attention to filing deadlines, eleven low power TV stations in Florida and Puerto Rico failed to submit renewal applications by their October 1, 2020 filing date and are now in danger of their licenses expiring. (Public Notice)  Television stations in Arkansas, Louisiana, and Mississippi and radio stations in Kansas, Nebraska, and Oklahoma are next due to file their license renewals, with a deadline of February 1, 2021.
  • The FCC released its biennial Communications Marketplace Report that analyzes, among other things, the state of the radio and TV marketplaces. The report is provided to Congress to advise it on economic and competitive trends in regulated industries to provide information for any legislation that it may consider.  (2020 Communications Marketplace Report)

For a look ahead, we posted on our blog a review of some of the regulatory dates and deadlines in January and early February of which broadcasters should be aware.  In the coming month, among other things, look for a new FCC administration, quarterly issues/programs lists, KidVid reports, comment deadlines for two proceedings, the Supreme Court’s oral argument on multiple ownership issues and, in a number of states, February 1 license renewal and EEO public file report deadlines.  (Blog)

Just before Christmas, the Federal Trade Commission issued consent decrees with six companies resolving proceedings alleging that their marketing of CBD products was deceptive.  The consent decrees included monetary penalties as high as $80,000 and compliance plans to ensure that the named companies would not engage in future marketing of unproven health benefits of CBD products.  The FTC issued a press release on the consent decrees (links to the decrees and related documents can be found on the same webpage as the press release).

Some of the health claims that the FTC found problematic were very specific, suggesting that CBD could aid in the treatment of specific diseases and medical conditions.  Other claims found to be improper included more general claims that CBD was effective for “pain relief” and that the products are safe for all users.  As noted in the FTC documents, only proven health claims for CBD can be included in marketing material – and so far, the proven health benefits have been limited to those provided by specific FDA-approved anti-seizure medications.  While these decrees were with companies selling CBD products, rather than media companies that ran their ads, as we have noted before, broadcasters and other media companies should be alert to advertising messages that exceed permissible guidelines.  While the FDA has promised further guidance on the sale and marketing of CBD products, action has likely been stalled by the agency’s concentration on pandemic-related issues.  Continue Reading More FTC Consent Decrees Emphasize Prohibitions on Advertising of Unproven Health Benefits of CBD Products

The holiday season is nearly behind us and many are looking forward to putting 2020 in the rearview mirror with a hopeful eye on 2021.  The new year will bring big changes to the Washington broadcast regulation scene, with the inauguration of a new President and installation of a new FCC chair who will make an imprint on the agency with his or her own priorities.  And routine regulatory dates and deadlines will continue to fill up a broadcaster’s calendar.  So let’s look at what to expect in the world of Washington regulation in the coming month.

On the routine regulatory front, on or before January 10, all full-power broadcast stations, commercial and noncommercial, must upload to their online public inspection files their Quarterly Issues Programs lists, listing the most important issues facing their communities in the last quarter of 2020 and the programs that they broadcast in October, November and December that addressed those issues.  As we have written before, these lists are the only documents required by the FCC to demonstrate how stations served the needs and interests of their broadcast service area, and they are particularly important as the FCC continues its license renewal process for radio and TV stations.  Make sure that you upload these lists to your public file by the January 10 deadline.  You can find a short video on complying with the Quarterly Issues/Programs List requirements here. Continue Reading January Regulatory Dates for Broadcasters – A New FCC Administration, Quarterly Issues Programs Lists, KidVid, Comment Deadlines and a Supreme Court Oral Argument on Ownership Issues