As we wrote here, the FCC recently adopted a Notice of Proposed Rulemaking to consider changes to its rules dealing with applications for new noncommercial educational stations and LPFM stations. The FCC plans to publish that Notice of Proposed Rulemaking in the Federal Register tomorrow, making comments due May 19, 2019, with replies due on June 18 assuming publication takes place as planned. The changes proposed are set out in our article summarizing the FCC’s NPRM when the draft was first released. They would affect everything from requirements for the governing documents of applicants for new stations to holding periods for new stations to the length of LPFM construction permits. If you are interested in applying for a new noncommercial station at some point in the future, or in the rules that govern those that do apply, watch this proceeding very carefully.
The FCC on Friday issued a Public Notice reminding radio stations that the license renewal cycle begins in June, when all stations in Maryland, Virginia, West Virginia, and the District of Columbia are due to electronically file their license renewal applications, along with the Broadcast Equal Employment Opportunity Report on Form 396 (the 396 being required of all full-power stations, even those with fewer than 5 full-time employees). It is still unclear whether these applications will be filed using the current electronic database for radio (called CDBS), or whether the FCC will require radio stations to use the new electronic database that TV stations have been using for several years now (called LMS).
The renewal filing obligation applies to LPFMs and FM translator stations, as well as full-power stations. As we have written many times in recent months (for example here and here), after the June filing deadline for these Mid-Atlantic states, the renewal cycle moves south – with stations in the Carolinas filing by August 1. Every other month for the next 3 years, radio stations in other states will file their renewal applications. The order in which stations file is available on the FCC’s website, here. The TV renewal cycle starts one year later, beginning in June 2020. Continue Reading
In July, we wrote about the FCC’s plan to transfer the responsibility for EEO enforcement from the Media Bureau, where it has resided, to the Enforcement Bureau which the FCC suggested would have more resources and experience to aggressively enforce the FCC’s EEO rules and policies. That transfer was effective on Friday (see the FCC public notice here). So expect future correspondence on EEO matters to come from the Enforcement Bureau, rather than the Media Bureau, though we expect that the people actually processing the day-to-day activities of the EEO Branch (like the recent EEO audit we wrote about here) to remain largely the same. So, while there is a new cop in town, this shows that the FCC continues to take EEO enforcement seriously, as should you at your broadcast station. See our article here on the basics of broadcasters EEO obligations, as updated here by the FCC’s changes in its requirements for the wide-dissemination of information about station job openings.
Alternate Title: March Madness Trademarks: It’s
March Spring and You Do Not Want to Make the NCAA Mad Angry at You
As we have previously reported, the National Collegiate Athletic Association (NCAA) is very serious about taking action against anyone who may try to trade off the goodwill in its March Madness marks — even if the NCAA’s actual marks are not used. For example:
- Readers may recall that the NCAA filed a trademark infringement action in 2017 against a company that ran online sports-themed promotions and sweepstakes under the marks “April Madness” and “Final 3.” The defendant stipulated to an order providing that it would cease using those marks at least until the end of the year, but the order did not provide for dismissal of the case. The defendant failed to file an answer to the complaint and the NCAA was granted a default judgment, after which it filed a motion requesting an award of attorneys’ fees against the defendant in the amount of $242,213.55. In May 2018, the Court awarded attorneys’ fees in the amount of $220,998.05.
- The NCAA sued a car dealership that had registered and was using the mark “Markdown Madness” in advertising. (The case was settled.)
- Even schools that are part of the NCAA are not immune from claims of infringement. Seven years after the Big Ten Conference started using the mark “March Is On!,” the NCAA opposed an application to have that mark federally registered. (Ultimately, the opposition was withdrawn, the mark was registered, but the registration was assigned to the NCAA.)
These actions illustrate the level of importance that the NCAA places on acting against the use of trademarks which seek to create an association with its annual Collegiate Basketball Tournament. Clearly, such activities continue to carry great risks. Accordingly, following is an updated version of our prior blog posts on this subject.
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With the NCAA Basketball Tournament about to begin, broadcasters, publishers and other businesses need to be wary about potential claims arising from their use terms and logos associated with the tournament, including March Madness®, The Big Dance®, Final Four® or Elite Eight,® each of which is a federally registered trademark. March Mayhem® is also registered to the NCAA, which is currently seeking to register March to the Madness.
The NCAA Aggressively Defends Against Unauthorized Use of its Trademarks
The NCAA states that $844.3M of its annual revenues derives from the licensing of television and marketing rights in the Division I Men’s Basketball Tournament. Moreover, its returns from the tournament have historically grown each year. Most of this income comes from broadcast licensing fees. It also has a substantial amount of revenue from licensing March Madness® and its other marks for use by advertisers. As part of those licenses, the NCAA agrees to stop non-authorized parties from using any of the marks. Indeed, if the NCAA did not actively police the use of its marks by unauthorized companies, advertisers might not feel the need to get a license or, at least, to pay as much as they do for the license. Thus, the NCAA has a strong incentive to put on a full court press to prevent non-licensees from associating their goods and services with the NCAA tournament through unauthorized use of its trademarks. Continue Reading
Earlier this week, the FCC released an order adopting new rules governing the sale of TV stations serving as “satellites” of other stations in their markets – either rebroadcasting the primary station or otherwise operating in conjunction with that parent station, usually serving rural areas where an independent full-service station cannot economically operate. The new rules allow for the sale of these stations, together with the parent station, without an expensive economic showing that the same conditions that originally justified the satellite status still exist. The applicant just needs to certify that the same conditions exist and, absent challenge, the FCC will presume that the parent and satellite can be sold together. We summarized this proceeding here and here. This is one more action under the FCC’s Modernization of Media Regulation initiative to simplify some of the rules by which broadcasters are governed. The new policies will be effective 30 days after they are published in the Federal Register, following review under the Paperwork Reduction Act.
The FCC has once again started sending out email notices to broadcast stations that are not in compliance with their online public file obligations. This follows a set of notices sent in early December, where the FCC first warned specific stations that there were issues with their online public inspection files (see our article here). The new email notices seem to be sent to two classes of stations – those that have done nothing to their online public files, and those that have activated the files, but not uploaded their Quarterly Issues/Programs Lists to those files. Some of the new notices follow up on notices sent in December. Both sets of notices ask for reports to the FCC from the stations that received the notice of corrective actions that they have taken.
We have been warning of the FCC’s concern about incomplete or inactive online public files for some time, and the potential impact that noncompliance could have on license renewals, which start for radio stations in Maryland, Virginia, West Virginia, and the District of Columbia in June 2019, with pre-filing public announcements of those filings due to begin on April 1 (see our article here). The renewal obligation for radio moves across the country with stations in a few specific states filing every other month in this three-year renewal cycle (for more information see, for instance, our articles here and here). Clearly, this set of emails is a warning to stations that the FCC is watching their public files, and that compliance problems will bring issues, and probably fines, if the files are not complete by license renewal time. The emails that have been sent out do not target every station in noncompliance with the public file obligations – but instead seem to just be a sampling of those stations – so do not relax and assume compliance simply because you did not receive any contact from the FCC. Continue Reading
In the last few weeks, the press has been buzzing with speculation that the Department of Justice is moving toward suggesting changes in the antitrust consent decrees that govern the operations of ASCAP and BMI. Those consent decrees, which have been in place since the 1940s, among other things require that these Performing Rights Organizations treat all songwriters alike in distributions based on how often their songs are played, and that they treat all services alike with users that provide the same kind of service all paying the same rate structure. Rates are also reviewed by a court with oversight over the decrees when the PROs and music services cannot come to a voluntary agreement to arrive at reasonable rates. The decrees have also been read to mean that songwriters, once part of the ASCAP or BMI collective, cannot withdraw with respect to certain services and negotiate with those services themselves while still remaining part of the collective with respect to other music users (see, e.g., our articles here and here about the desires of certain publishing companies to withdraw from these PROs to negotiate directly with certain digital services while still remaining in these PROs for licensing broadcasting and retail music users).
With this talk of reform of the consent decrees, Congress, particularly the Senate Judiciary Committee under the leadership of Senator Lindsey Graham, has reportedly stepped in, telling DOJ not to move to change the consent decrees without giving Congress the chance to intervene and devise a replacement system. In fact, under the recently passed Music Modernization Act, notice to Congress is required before the DOJ acts. Already, both the PROs and user’s groups are staking out sides. What are they asking for? Continue Reading
March is one of those unusual months in the broadcast regulatory cycle, where there are no routine EEO public file obligations, and no quarterly filing obligations or other regularly scheduled regulatory deadlines. That means that my tardiness in publishing this article before the start of the month did not miss anything important. But, starting next month, there will be a whole new set of deadlines about which broadcasters need to be concerned, as April 1 is when the first pre-filing announcements for broadcast license renewals will begin, signaling the start of the 3-year long radio renewal cycle. The 3-year TV license renewal cycle will begin at the same time next year.
Radio broadcasters in Maryland, Virginia, West Virginia and the District of Columbia will be the first to file their renewal applications – and they will need to start running their “pre-filing” notices on their radio stations beginning on April 1, in anticipation of a June renewal filing (renewal applications to be filed no later than June 3, as June 1 is a Saturday). The FCC has posted a helpful guide to the times that these notices need to run, and a model for the text of these notices, here (although the model text is now outdated, in that it does not acknowledge that stations now have online public files; the FCC has a pending proceeding to modify these public notices that one would hope would be resolved soon – see our articles here and here for details). Stations in the Carolinas begin their pre-filing announcements two months later, with stations in other states to follow at 2-month intervals after that. The schedule for renewals is on the FCC website here, and the pre-filing announcements begin two months before the renewal-filing deadline. Continue Reading
When is your website or app covered by the Children’s Online Privacy Protection Act (“COPPA”) and the FTC’s COPPA Rule? Although there are gray areas under COPPA, one clear way to fall under this law is to know that you’re collecting information from children under the age of 13 online. That’s part of what landed Musical.ly, now known as TikTok, in trouble with the FTC – including a record-setting COPPA fine of $5.7 million. COPPA isn’t limited to the kinds of video social network apps that Musical.ly provides; broadcasters’ websites and apps may end up falling under COPPA.
According to the FTC’s complaint, Musical.ly knew that it was collecting information from children under 13 (COPPA doesn’t apply to anyone else) for several reasons. For instance, press articles described the popularity of Musical.ly among under-13 users, the company received hundreds of complaints from parents trying to close their kids’ accounts, and the company itself provided guidance to parents regarding their children’s usage of the app. Continue Reading
The PIRATE Act, imposing Federal penalties on pirate radio station operators, was passed last week by the US House of Representatives and referred to the US Senate for consideration. We wrote about versions of this bill introduced in prior Congressional sessions here and here. This bill, among other things, would impose penalties of up to $100,000 a day for violations of the Act, up to a total maximum fine of $2 million. It also imposes on the FCC the obligation to report annually to Congress on its activities to crack down on pirate radio, including its efforts to coordinate with the US Attorney’s office and other government officials to seize the equipment of illegal operators of pirate stations. The House passage of this legislation was lauded by Commissioner O’Rielly at the NAB’s recent Leadership Conference in Washington DC, as he has been an aggressive advocate of stronger action against pirate operators.
The Act places particular emphasis on markets identified as being among the top 5 for such illegal broadcasts – requiring the FCC to assign appropriate enforcement officials to those markets at least one a year to do sweeps to locate pirate stations. It also gives the FCC the ability to immediately issue a Notice of Apparent Liability (proposing a fine) without first having to give notice to the pirate radio operator that they are acting illegally. It also requires that the FCC maintain a searchable database of reports of pirate radio operations. While the bill says that penalties can be imposed on “any person who willfully and knowingly does or causes or suffers to be done any pirate radio broadcasting,” which is a broad definition, it does not specifically identify landlords and advertisers as being subject to action, as some past proposals have. The FCC itself has been fining landlords in recent cases (for example, in the case we wrote about here), so perhaps it is now viewed that this provision is not required. In any event, the bill now goes to the Senate for its consideration.