FCC Incubator Order Becomes Effective Just as Third Circuit Hears Arguments on 2017 Order Relaxing FCC Broadcast Ownership Rules

The Office of Management and Budget, acting pursuant to the Paperwork Reduction Act, has just approved the FCC’s broadcast incubator program, about which we wrote here. That approval makes the program effective. The program permits an established broadcaster to provide assistance to a new broadcaster (generally, a qualified small business) to enter the radio broadcast industry. If, over a 3-year period, the assistance provided by the existing broadcaster (usually either financial assistance or management training) is deemed a success, the established broadcaster can receive a credit allowing it to purchase a station in excess of the radio ownership limits allowed for broadcasters in a market of similar size to the one in which the incubation occurred. It is interesting that this rule became effective just as the US Court of Appeals heard oral argument on the question of whether that program does enough to encourage new entrants into broadcast ownership to meet court-imposed obligations to address these issues.

The oral argument is on the appeal of the FCC’s 2017 ownership decision which, among other things, did away with the prohibition on newspaper-broadcast cross-ownership and the rule that required that there be 8 independently owned TV stations in a market before one owner could own two stations in that market. The appeal, as we wrote here, essentially argues that the FCC has not done enough to promote minorities and other new entrants to get into broadcast ownership. Reports are that the judges asked the FCC many questions at yesterday’s argument as to whether the FCC had enough data to conclude that the changes that were made in 2017 were in the public interest and would not unduly burden new entrants who want to get into media ownership. Continue Reading

US Attorneys and FCC Combine to Shut Down Pirate Radio Station

By David Oxenford on June 11, 2019 Posted in FCC Fines, FM Radio, General FCC, Programming Regulations

The FCC yesterday issued a News Release about an unusual action taken by the US Attorney’s Office in Massachusetts entering into a consent decree with a pirate radio operator, where the operator agreed to surrender all of its operating equipment to the FCC, and to stop broadcasting illegally. If the operator is again caught operating a broadcast station without authority, the US Attorney can collect a $75,000 fine. From time to time, the FCC has cooperated with the US Marshall’s Office to seize pirate radio equipment (see, for instance, our article here), but taking a pirate to court to enforce an FCC decision is a more unusual action.

This shows what the FCC and the Department of Justice can already do to stop illegal pirate radio operators. The FCC itself routinely issues Notices of Violation to pirate radio operators – telling them to cease operations and holding them liable for FCC fines (see for instance, notices here, here, here and here issued in the last two weeks). However, the FCC can’t itself force the pirate to pay, and has to get the Department of Justice involved to force a collection. As with this pirate in Massachusetts, who was previously issued a notice of violation by the FCC, sometimes pirates just ignore the FCC’s actions. This pirate shut down one station and only partially paid the fine, and then started another pirate radio station. But, from this news release, it appears that getting a notice from the US Attorney that you are being hauled into court for not adhering to an FCC order apparently has a greater deterrent effect – leading to this settlement. Of course, if Congress passes the PIRATE ACT, about which we wrote here, the much bigger fines that could be imposed under that act could give the FCC an even more significant weapon to combat pirates in the future. Watch developments in this area in coming months.

Maybe Serial Moves of FM Translators to Relocate Them From Rural to Urban Areas are Not So Bad….

By David Oxenford on June 7, 2019 Posted in FM Translators and LPFM

You may remember a few years ago, the FCC cracked down on “serial modifications” of FM translators to move them from rural to more urban areas (see, for instance, the cases about which we wrote here and here), considering such moves an abuse of process. In a decision released earlier this week, it looks like the FCC’s Audio Division may be backing away from that policy. In that decision, the FCC approved an application for a move of a translator into Chicago as the 4th hop from the translator’s original site in rural Illinois.

In the old decisions, the FCC had looked at instances where operators tried to move translators to big markets through multiple minor change applications – accomplishing through these “hops” what they normally could not do except during a major change window for translator applications – something that has not happened for since 2003. These old decisions deemed it an abuse of process to accomplish through multiple steps what an applicant could not do through a single application, especially when the applicant evidenced no intent to serve the public at any of these interim locations. In these cases, the applicant had often constructed on a temporary basis at a hop location, only to take the translator off the air after just a few days of operation (often dismantling the tower too). The decision this week looked at a slightly different situation and found that the multiple hops into Chicago were permissible – and set out criteria for determining whether such hops were permissible or not. Continue Reading

DOJ Starts Review of BMI and ASCAP Consent Decrees – Exploring the Background of the Issues

By David Oxenford on June 6, 2019 Posted in Uncategorized

The Department of Justice’s Antitrust Division yesterday announced that it was starting a review of the ASCAP and BMI antitrust consent decrees that govern the United States’ two largest performing rights organizations for musical compositions (referred to as the “musical work”). The DOJ’s announcement of the initiation of the examination of the consent decrees poses a series of questions to which it invites interested parties – including users, songwriters, publishers and other interested parties – to file comments on the decrees, detailing which provisions are good and bad and, more broadly, whether there is a continuing need for the decrees at all. Comments are due on July 10.

This re-examination of the decrees has been rumored for many months. Back in March, we wrote about those rumors and the role that Congress may play in adopting replacement rules should the DOJ decide to fundamentally change the current provisions of the consent decrees. The DOJ itself just recently looked at the consent decrees, starting a review only 5 years ago with questions very similar to those it posed yesterday (see our post here on the initiation of the last review 5 years ago). That review ended with the DOJ deciding that only one issue needed attention, whether the decrees permitted “fractional licensing” of a song. We wrote about that complex issue here. That issue deals with whether, when a PRO gives a user a license to play a song, that user can perform the song without permission from other PROs when the song was co-written by songwriters who are members of different PROs. The DOJ suggested that permission from one PRO gave the user rights to the entire song, an interpretation of the decrees that was ultimately rejected by the rate courts reviewing the decrees (see our article here). So, effectively, the multi-year review of the consent decrees that was just concluded led nowhere. But apparently the DOJ feels that it is time to do it all again. To fully understand the questions being asked, let’s look at what the consent decrees are, and why they are in place. Continue Reading

Next EAS Test Scheduled for August 7 – Updated ETRS Forms Due July 3

By David Oxenford on June 5, 2019 Posted in Emergency Communications

The FCC on Monday released a Public Notice announcing that its next test of the Emergency Alert System (EAS) is scheduled for August 7 with a back-up date of August 21 (back-up dates being provided in the event that there are severe weather situations or other emergencies in early August which could increase the potential for public confusion on the originally scheduled date). This test will, unlike the last test we wrote about here, rely solely on the broadcast-based daisy chain where the test is initiated on certain broadcast primary stations, then rebroadcast by stations that monitor those primary stations, who then pass on the test to other stations that monitor these secondary stations and so on down the line to all the EAS participants. This test will not use the Internet-based IPAWS system used in other recent tests.

Thus, in the run-up to the August test, broadcasters should be sure that their EAS receivers are in working order and are tuned to receive the correct stations that they should be monitoring in order to receive alerts. Check your state EAS plan to make sure you know what stations you are to monitor. Make sure that you have been receiving and logging (in your station log) weekly and monthly tests as required by the FCC rules. If you have not been receiving these tests, that likely indicates problems either with your receivers or with the stations that you are monitoring – so find out the reasons for missing tests now and take any corrective actions (as you are required to by the rules). Check out all of your other EAS equipment to make sure that everything is working properly and prepare for the other paperwork obligations that arise because of the upcoming test. Continue Reading

Political Broadcasting Issues to Consider Now for the 2020 Election Campaign

By David Oxenford on May 31, 2019 Posted in Advertising Issues, Political Broadcasting

The 2020 presidential elections already loom large, with one of the over 20 Democratic candidates for the Presidential nomination seemingly appearing on whatever TV talk show you tune into on your TV set. With the first debate among these candidates scheduled for late June, it seems like we have a real election already underway – and it is time for broadcasters to start thinking about their political broadcasting obligations under FCC rules and the Communications Act, and beginning to make plans for compliance with those rules.

Stations in Iowa and other early primary states have already been receiving buys from Presidential candidates, PACs, and other third-party groups. That spending is sure to increase in the latter part of the year as these early primaries and caucuses are scheduled early in 2020. What should stations in Iowa and in other states be thinking about now to get ready for the 2020 elections?

We have written about some of the issues that broadcasters should already be considering in our Political Broadcasting Guide (which we plan to update shortly). Obviously, one of the primary issues is lowest unit rates – as those rates become effective 45 days before the primaries (or before any caucus which is open to members of the general public). Thus, the lowest unit charge windows for Presidential campaigns will start for the political contests in Iowa and New Hampshire in December, and roll across the country early next year as the other primaries and caucuses draw near. In addition to our Political Broadcasting Guide, we wrote about other issues you should be considering in determining your lowest unit rates here. Continue Reading

June Regulatory Dates for Broadcasters – License Renewal, EEO Reports, Reg Fee Comments, Ownership Appeal Argument and More

By David Oxenford on May 30, 2019 Posted in Cable Carriage, Children's Programming and Advertising, Digital Television, EEO Compliance/Diversity, Emergency Communications, FCC Fines, FM Radio, General FCC, Incentive Auctions/Broadband Report, License Renewal, Multiple Ownership Rules, Programming Regulations, Public Interest Obligations/Localism, Television

The license renewal cycle, about which we have been warning broadcasters for at least the last year (see, for instance, our posts here, here and here), is now upon us. June 3 is the filing deadline for license renewals for radio stations in Maryland, DC, Virginia and West Virginia. Radio stations (including FM translators and LPFMs) licensed to any community in any of those states should be filing their renewal applications in the FCC’s Licensing and Management System (LMS) by Monday’s deadline. The new FCC forms, as we wrote here, have been available since early May, so the renewal and the accompanying EEO program report should either be on file or ready to be filed in LMS by the June 3 filing deadline. These stations should also be running their post–filing license renewal announcements on the 1^st and 16^th of June, July and August. Radio stations in the next renewal group, in North and South Carolina, should begin their license renewal pre-filing announcements on June 1^st and 16^th as well, informing the public about the upcoming filing of their renewals due on August 1. See this article on pre-filing announcements for more information.

In addition, broadcasters in Arizona, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, Wyoming, and the District of Columbia that are part of an Employment Unit with 5 or more full-time employees should also be preparing to add to their online public inspection file their Annual EEO Public File Report. This report is due to be added to their online public files by June 1. A link to this report should also be placed on the station’s website, if it has a website. Continue Reading

FCC Starts Accepting ATSC 3.0 Applications – The Next Generation of TV Transmission

By David Oxenford on May 29, 2019 Posted in Digital Television, Television

Effective yesterday, May 28, the FCC is accepting applications for television stations to begin to convert to the next generation TV transmission standard – ATSC 3.0 or “NexGen TV.” Last week, the Commission issued a Public Notice announcing that the form (FCC Form 2100) necessary for stations to apply to transition to the new standard is now available for both full-power (Schedule B to Form 2100), low power (Schedule D) and Class A TV stations (Schedule F). Only stations currently sharing channels as part of a Commission-approved channel sharing agreement following the FCC’s incentive auction are not able to apply for the transition at this point, as the FCC Form needs further revisions to its forms to accommodate applications for the transition by these stations. Those forms are expected later this year. In the interim, sharing stations can move forward with 3.0 operations by seeking Special Temporary Authority.

ATSC 3.0 promises to allow broadcasters to transmit more information through their 6 MHz channel – allowing for additional subchannels of programming or more data transmission capabilities that could be sold to those needing to transmit digital information to the wide areas served by TV stations. The transmission standard is far more mobile-friendly than the current standard and also allows for transmissions in an IP format compatible with so many other digital devices receiving information from Internet sources. But the standard is not backward compatible – meaning that to receive the new television signals consumers will need new TV sets with ATSC 3.0 receivers, or converters to provide the signal to existing TV sets. Thus, to ensure that consumers will not lose access to the over-the-air television signals they now receive, the FCC requires that stations converting to the new standard must also simulcast their primary video signal on a station in their market that continues to operate in the current ATSC 1.0 standard. Low power TV stations do not have this simulcasting obligation, meaning they can convert to 3.0 operations and leave the 1.0 standard behind. Continue Reading

Pre-1972 Sound Recordings and the July 8 SoundExchange Filing Deadline

By David Oxenford on May 20, 2019 Posted in Broadcast Performance Royalty, Intellectual Property, Internet Radio, Music Rights, On Line Media

Recently, the Radio Music License Committee sent out a memo to broadcasters about a July 8, 2019 SoundExchange payment deadline for pre-1972 sound recordings. As with everything in copyright law, the issues surrounding pre-1972 sound recordings are complicated, and the RMLC notice, while seemingly straightforward, still resulted in our receiving lots of questions. These questions may have been compounded because of notices sent to broadcasters back in April about another filing deadline concerning these recordings which caused much consternation for what was, for most broadcasters, a matter of little concern. For most broadcasters, neither of these dates are of particular concern unless the broadcaster has been identifying pre-1972 sound recordings and not paying SoundExchange royalties when those songs are streamed, and we understand that most broadcasters have in fact been paying SoundExchange for these recordings. But let’s try to explain what is going on in a little more detail.

First, let’s look at the basics. Sound recordings (the recording of a particular band or singer performing a song) were originally not covered by federal copyright law. The law provided protections for “musical works” (i.e. the musical composition, the words and musical notes of the song), but the mere recording of that work was initially not seen as a creative work. It was thought of more as a mechanical rendering of the real creative work – the underlying song. So when recordings came to have real value in the first half of the last century, recording artists had to rely on state laws to prevent other people from making and distributing copies of their recordings. Laws against what we would refer to as bootlegging or pirating of recordings were passed in most states, and lawsuits against bootleggers would be brought under these state laws. It was not until 1972 that Congress, through an amendment to the Copyright Act, recognized that the recordings were themselves creative works entitled to copyright protection. But that amendment did not fully make all pre-existing recordings subject to the Copyright Act, instead leaving most sound recordings first recorded in the United States prior to the adoption of the amendment to the Act in February 1972 subject to state laws until 2067. Continue Reading

Looking at “Legal” Marijuana and CBD Advertising – A Presentation on the Issues

By David Oxenford on May 16, 2019 Posted in Advertising Issues, License Renewal, Programming Regulations, Public Interest Obligations/Localism

Perhaps some of the most controversial areas in broadcast advertising are those surrounding the advertising of cannabis products. While many states claim to have legalized marijuana, either for medical or recreational purposes, the Federal government still considers its possession and distribution a felony, and has specific laws that criminalize the use of radio frequencies, the Internet, and publications to promote its use. At the same time, the Federal government has recently decriminalized the possession of various hemp-based products with less than .3% THC (the psychoactive ingredient in marijuana) in the 2018 Farm Act. This has led to an explosion in the sale of CBD products – even though the production of such products is, for the most part, to only be conducted after either the adoption of state laws approved by the US Department of Agriculture or under Federal rules that the USDA is supposed to approve – none of which has happened yet. With all these issues outstanding, I was recently asked to talk about the advertising issues surrounding these products before a continuing legal education seminar sponsored by the New York State Bar Association. The slides from my presentation are available here.

As we have advised broadcasters before, because they are Federal licensees, and marijuana is still a federally prohibited substance, there is substantial risk in running any advertising for products supposedly “legal” in the state in which they are being used. These ads are particularly of concern during the license renewal cycle that begins next month, as objections from anti-marijuana activists could put this issue directly before the FCC. Even though states may have adopted rules governing advertising for these products, the federal law still poses great risks for broadcast licensees – just as it does for other federally-regulated entities. That is one of the reasons that federally-chartered and insured banks have stayed away from taking deposits from marijuana-related businesses (a bill is presently pending in Congress to allow banks to take deposits, but its prospects are uncertain). Continue Reading