Broadcast Law Blog

Broadcast Law Blog

NAB Asks For Changes in FCC Local Radio Ownership Rules – What’s Next?

Posted in AM Radio, FM Radio, Multiple Ownership Rules

The National Association of Broadcasters radio board last week voted on a proposal to revise the FCC rules limiting the number of stations that one company can own in a radio market. This proposal was forwarded to the FCC for consideration in the next Quadrennial Review of the FCC’s ownership rules, scheduled to commence at some point later this year, in a letter delivered to the FCC’s Chief of the Media Division. The NAB suggests that one party should be able to own up to 8 FM stations in any of the Top 75 Nielsen radio markets. It proposes that there should be no FCC ownership limits in markets smaller than the Top 75, and that AMs do not need to be counted against the ownership limits. Owners who incubate the ownership of stations by new entrants into broadcasting would be allowed to own up to two additional FM stations in a market. Why would the NAB take this position?

The letter sets forth many of the same issues that we cited in our article on radio ownership here. Competition is significantly different than it was in 1996, when the current rules setting limits at 8 stations in a market (only 5 of which can be AM or FM) in the largest markets, and in the smallest markets, only two stations (one AM and one FM). As we wrote in our April article, competition for listening like Pandora, Spotify or even YouTube did not exist in 1996 (not arriving on the scene for another decade). Changes in competition for local advertising has been even more dramatic, with some sources showing that over 50% of local advertising revenue (the bread and butter of local radio) is now going to digital competitors – with Facebook, Google, and even the digital music services selling advertising to local advertisers throughout the country, even in the smaller markets. Continue Reading

What Do Broadcasters and Media Companies Need to Know About the GDPR?

Posted in Internet Radio, Internet Video, On Line Media, Privacy, Uncategorized, Website Issues

By now, you have probably heard that the European Union (EU) has a new data protection law on the books, the General Data Protection Regulation (GDPR) – but what are the new rules, and how might they apply to broadcasters? Below we address these and other commonly asked questions about the GDPR.

What is the GDPR? The GDPR is a new European privacy law that, as of May 25, 2018, generally governs how organizations – including those EU-based and many that are not – collect, use, disclose, or otherwise “process” personal information. While some limited exceptions exist (e.g., businesses with fewer than 250 employees are exempt from some requirements), the GDPR imposes an array of obligations on companies subject to it.

Who does the GDPR apply to? The GDPR clearly applies to companies established in the EU that collect personal information about individuals in the EU, but it also claims a broad extraterritorial reach. Indeed, it can apply to organizations, including broadcasters, without an EU presence. For instance, it can apply to broadcasters who collect or use data to provide services like streaming TV or radio to individuals in the EU. It also can apply to broadcasters who use website cookies and other online tracking mechanisms to “monitor” individuals in the EU (e.g., profiling for behavioral advertising). That said, it remains to be seen whether regulators will enforce the GDPR against companies that for the most part are not serving EU citizens and do not have EU operations, but may occasionally and unknowingly acquire data of an individual in the EU or an EU citizen in the United States. Continue Reading

Countdown to License Renewal – Recent FCC Decisions Highlight Some Issues to Consider

Posted in FCC Fines, License Renewal, Programming Regulations, Public Interest Obligations/Localism

We are less than one year away from the beginning of the next radio license renewal cycle. By June 1 of 2019, radio broadcasters with stations licensed to communities in Maryland, Virginia, West Virginia and the District of Columbia must have their license renewal applications on file. Stations in certain southeastern states follow two months later, with other states to follow every two months until the cycle ends 3 years after it began with the filing of renewals by stations in the northeast. The FCC’s list of state-by-state renewal deadlines is available here. The TV cycle begins the year after the radio cycle and progresses in the same order. We wrote here about how the online public inspection file will heighten scrutiny of the performance of stations in meeting their public service obligations – and the particular importance of timely preparation and uploading of the Quarterly Issues Programs lists – the only officially mandated documents showing how stations addressed issues of importance to their communities in their over-the-air programming. But there are other issues that stations should be considering in this year before renewals are filed.

From time to time in this run-up to the renewal, we will highlight issues that station owners should be considering. In the last week, there have been a few issues that that were highlighted by FCC announcements of fines levied on broadcasters for various rule violations. One obvious issue is making sure that you stay on top of the deadlines, and don’t forget to timely file the renewal application. An FCC decision released yesterday fined a station $1500 for failing to timely file its renewal in the last renewal cycle. This station filed its application about 4 months late, just before the license expired (broadcasters file their renewals 4 months in advance of the expiration of the license to give the FCC time to review and grant the renewal before the current license expires). In the past renewal cycle, other stations were fined even more when they waited even longer to file their late renewals. Obviously, it is important to stay on top of the filing deadlines. Continue Reading

Hey, Alexa, How Much Did You Raise My SoundExchange Royalties?

Posted in Broadcast Performance Royalty, Intellectual Property, Internet Radio, Music Rights

In the last year, the popularity of Alexa, Google Home and similar “smart speaker” devices has led to discussions at almost every broadcast conference of how radio broadcasters should embrace the technology as the new way for listeners to access radio programming in their homes. Broadcasters are urged to adopt strategies to take advantage of the technology to keep listeners listening to their radio stations through these new devices. Obviously, broadcasters want their content where the listeners are, and they have to take advantage of new platforms like the smart speaker. But in doing so, they also need to be cognizant that the technology imposes new costs on their operations – in particular increased fees payable to SoundExchange.

Never mentioned at these broadcast conferences that urge broadcasters to take advantage of these smart speakers is the fact that these speakers, when asked to play a radio station, end up playing that station’s stream, not its over-the-air signal. For the most part, these devices are not equipped with FM chips or any other technology to receive over-the-air signals. So, when you ask Alexa or Google to play your station, you are calling up a digital stream, and each digital stream gives rise to the same royalties to SoundExchange that a station pays for its webcast stream on its app or through a platform like TuneIn or the iHeartRadio. For 2018, those royalties are $.0018 per song per listener (see our article here). In other words, for each song you play, you pay SoundExchange about one-fifth of a cent for each listener who hears it. These royalties are in addition to the royalties paid to ASCAP, BMI, SESAC and, for most commercial stations, GMR. Continue Reading

FCC Rejects LPFM Informal Objections Against Hundreds of Pending FM Translator Applications

Posted in AM Radio, FM Radio, FM Translators and LPFM

On Friday, the Audio Division of the FCC’s Media Bureau released a letter decision rejecting an objection filed by three groups advocating on behalf of LPFM stations against almost 1000 FM translator applications – most of which were filed to provide FM translators for AM stations in the most recent window for the filing of such applications. We wrote about the grounds for the objections here, which included claims that Section 5 of the Local Community Radio Act, an act setting some ground rules for the relationship between LPFM stations and translators, mandated that the FCC evaluate each of these applications for its individual impact on LPFM opportunities in the future. Once the objection was rejected, the FCC resumed processing of pending applications.

The letter decision found numerous issues with the objection. It noted that 55 of the applications had already been granted when the objection was filed, and 35 had been dismissed, thus the objection came too late. Additionally, a number of the applications to which the objection was directed were mere minor changes in existing translators. The Audio Division noted that the Section 5 of the LCRA, which says that translators and LPFMs are equal in status and that the FCC needed to provide opportunities for each of those classes of stations, did not apply to evaluations of modifications of existing translators, but instead only to applications for new translators. Continue Reading

FCC Issues Notice of Inquiry on Establishing a Class C4 FM Station and Changing Short-Spacing Rules

Posted in FM Radio

The FCC yesterday released a Notice of Inquiry (NOI) seeking to gather more information about a proposal to establish a new Class C4 FM station. This new class of FM station would allow some Class A stations, currently limited to power levels of 6 kW ERP at an antenna heights of no more than 100 meters, to increase their facilities to up to 12 kW. We wrote about this proposal here and here at earlier stages of its consideration. The FCC also includes in its Notice of Inquiry a proposal to amend Section 73.215 of the FCC rules. That section allows FM stations to be located at less than the normally required distances to stations to which they could potentially cause interference, if they use directional antennas or otherwise protect the other station’s maximum permitted facilities. The proposal on which the FCC seeks comments is one that would allow short-spacings under Section 73.215 if the upgrading station protects the other station’s actual contours, not their maximum permitted contour. In other words, stations that are not operating at the full permissible height or power for their class of FM station could lose protections they currently enjoy, and either be forced to upgrade themselves to block the short-spaced application or be prohibited from doing so in the future.

On the C4 proposal, the FCC asks how the implementation of this proposal would impact other full-service stations and the many new FM translators that have been authorized in the last few years. In addition, the FCC asks whether any increased coverage by the stations that could take advantage of the C4 proposal would outweigh the general increase in the “noise floor” (the overall interference caused to FM stations) in the FM band. Questions about the proposal’s impact on LPFM channel availability are also raised in the NOI. Continue Reading

Comments Due July 6 on Proposed Rules for Resolving FM Translator Interference Complaints

Posted in AM Radio, FM Radio, FM Translators and LPFM

The FCC today published in the Federal Register a summary of its proposed rules for resolving complaints of interference to existing full-power stations or other existing FM services from new or relocated FM translators. We summarized the FCC’s proposals in its Notice of Proposed Rulemaking here and here. The publication in the Federal Register triggers the 30 day comment period. Comments are due by July 6 with reply comments due by August 6. There are certain to be many broadcasters expressing their views on the FCC’s proposals in this proceeding. Expect final FCC action late this year or sometime in 2019.

Google Announces Programmatic Buys of Audio Ads – Looking at Legal Issues with Programmatic Sales

Posted in Advertising Issues, Internet Radio, On Line Media, Payola and Sponsorship Identification, Political Broadcasting

Last week, it was announced that Google through its DoubleClick platform, would be offering programmatic buying opportunities for advertisers looking to place audio ads into online streams. While that system is initially being rolled out among the big digital audio services, if it or other similar platforms are expanded more broadly, it could bring more advertising into internet radio, podcasting and other digital audio program channels. But, being the spoilsports that we tend to be as lawyers, we wanted to pass on some issues to consider in accepting programmatic buys – whether in online streams or in over-the-air broadcasts. The immediacy of the audience’s perception of an audio insertion into a program stream can bring unintended results – some of which may have legal consequences.

We have already written about the issues for some of the programmatic buying platforms that are inserting ads into broadcast radio and television programming. As we wrote here and here, these ads can potentially impact a broadcaster’s legal compliance – particularly in the area of political broadcasting, where these ads could affect a station’s lowest unit rate, as well as reasonable access, equal opportunities and even political file disclosure obligations. While none of these FCC issues apply directly to online ads, as we wrote here, there are potential rules on political advertising that may soon be applied to online ads, either through actions by the Federal government or by the enactment of rules to implement a recently passed New York State law that compels disclosures for online political ads similar to those required by the FCC for broadcast ads. There are other considerations as well. Continue Reading

Geoffrey Starks to be Nominated as New FCC Commissioner

Posted in General FCC

Geoffrey Starks, currently an Assistant Chief in the FCC’s Enforcement Bureau, will, according to multiple reports released last week, be nominated to fill the FCC Commissioner’s seat currently held by Mignon Clyburn. Commissioner Clyburn, as we wrote here, has announced that she will be stepping down. She has already ceased participating in FCC meetings and on most other Commission decisions. If nominated as expected and confirmed by the Senate, Mr. Starks will be the second Democratic Commissioner, joining Jessica Rosenworcel. His term will run until 2022. Senate consideration of his nomination is likely to be paired with an extension of the term of Commissioner Carr, the most recent Republican to join the FCC, coming on board last year (see our article here). If both are approved, the FCC will continue with a 3-2 Republican majority as is usual during the administration of a Republican president.

Mr. Starks does not have a public history of direct involvement with broadcast issues, though presumably his position in the Enforcement Bureau gives him some exposure to those issues. Prior to his service at the FCC, he worked with the Department of Justice, as an attorney in a big DC law firm and clerked for a US Court of Appeals judge. With the Commission likely to be dealing with numerous important broadcast issues in the coming year, we will be watching to see how his positions on these issues develop.

12 Years of the Broadcast Law Blog – Where We Have Been and What We Are Looking at Next

Posted in Advertising Issues, AM Radio, General FCC, Intellectual Property, Music Rights, On Line Media, Television, Uncategorized, Website Issues

In 10 days, we’ll mark the 12th anniversary of my first post welcoming readers to this Blog.  I’d like to thank all of you who read the blog, and the many of you who have had nice words to say about its contents over the years.  In the dozen years that the blog has been active, our audience has grown dramatically.  In fact, I’m amazed by all the different groups of readers – broadcasters and employees of digital media companies, attorneys and members of the financial community, journalists, regulators and many students and educators. Because of all the encouragement that I have received from readers, I keep going, hopefully providing you all with some valuable information along the way.

I want to thank those who have supported me in being able to bring this blog to you.  My old firm, Davis Wright Tremaine LLP helped me get this started (and graciously allowed me to take the blog with me when I moved to my current firm six years ago).  My current firm, Wilkinson Barker Knauer LLP, has also been very supportive, and I particularly want to thank several attorneys at the firm (especially David O’Connor and Kelly Donohue) who help catch, on short notice, my typos and slips in analysis for articles that I usually get around to finishing shortly before my publication deadline.  Also, a number of other attorneys at the firm including Mitch Stabbe, Aaron Burstein, Bob Kirk and Josh Bercu have contributed articles, and I hope that they will continue with their valuable contributions in the future.  Thanks, also, to my friendly competitors at the other law firms that have taken up publishing blogs on communications and media legal issues since I launched mine – you all do a great job with your own take on the issues, and you inspire me to try to keep up with you all.  Continue Reading