A $12,000 fine issued to an FM translator operator for operating with a transmitter power output that exceeded its licensed limits was upheld by the FCC’s Enforcement Bureau in a decision released this week.  The Commission rejected the licensee’s argument that the Commission should have first given it notice and an opportunity to fix the improper operation before issuing a fine.  The FCC noted that licensees, not the FCC, have the obligation to determine if they are operating legally or not.  The FCC also rejected an argument that the licensee was only trying to maintain its effective radiated power when its antenna was damaged by a storm when it increased its transmitter power output.  But, unlike for full-power stations, the transmitter power output of FM translators is regulated, and to make a change, you need FCC approval.  The FCC also rejected attempts to reduce the amount of the fine based on the licensee never having been fined before, an argument rejected based on the licensee’s record that included several other violations that had not resulted in fines.

When we wrote about this case when the FCC’s staff initially issued the fine, we warned translator operators to keep this case in mind when reviewing their operations.  With so many new translators coming on the air in the last few years, it is important for operators to remember to limit TPO to what is specified in a license. The power output cannot exceed 105% of what is authorized on the license (See Section 74.1235(e) of the FCC Rules). Full-power non-directional FM stations, on the other hand, can generally change their TPO and transmission line without prior FCC approval as long as the change does not result in changes to authorized ERP (and even some ERP changes are permitted without a construction permit application – see Section 73.1690 for details), with the licensee only having to file an application for license on Form 302 after the changes have been made. But translators need approval to change TPO before it is done. Translators can sometimes be out of sight and out of mind.  But licensees are just as responsible for their proper operation as they are for the proper operation of any other station.  Given the size of the fine issued in this case, translator operators should be sure that they know the rules and review their operations to make sure that these operations fully comply with all of the FCC’s rules.

The FCC yesterday acted to resolve the proceeding begun a year ago (see our article here) to eliminate the rule that prevented an FM or TV broadcaster from denying space to a competing broadcaster on a broadcast tower that it controls.  As expected, that rule was eliminated by an order to become effective when it is published in the Federal Register (as it adopts no new paperwork requirements, review under the Paperwork Reduction Act which so often delays the effective date of FCC actions is not required).  This rule was initially adopted 75 years ago and, in the past, it had been seen as a way to ensure that a broadcaster could not, by withholding access to a unique tower site that the existing broadcaster controlled, foreclose a new competing station from coming on the air.

The FCC justified its abolition of the rule by finding that there are many more towers now available to broadcasters than were available when this rule was first adopted, and most of these new towers are owned by companies that do not own broadcast stations and have no incentive to stop a new broadcast station from leasing space on their facilities.  Also, the FCC noted that it is not the lack of access to tower space that limits the ability of potential broadcasters to launch new competitive stations in a market, but instead the lack of available spectrum in any community on which to operate a new FM or TV station. Continue Reading FCC Eliminates Rule Requiring Broadcast Station Tower Owners to Give Access to Competing Stations

Almost every broadcaster and other media company uses digital and social media to reach their audiences with content and information that can be presented in ways different than those provided by their traditional platforms.  Whether it is simply maintaining a website or streaming audio or video or maintaining a social media presence to reach and interact with their audiences, these alternative platforms pose their own legal issues.  These issues can range from the protection of a current brand to concerns over having the rights to exploit content that you obtain from others.  You can have concerns over music rights. There has been much litigation over improper uses of photos found on the Internet (see our articles here, here and here).  And there are concerns over the rights of social media platforms to use your content in ways that you don’t expect (see my blog articles here and here).  Toss in some sponsorship identification issues from the FTC and emerging privacy concerns, and there are plenty of legal issues that you need to consider in exploiting digital platforms. To help highlight the issues, I conducted a webinar for numerous state broadcast associations a few weeks ago, the video of which is available below (note that the sound quality was a little rough at first but improves a few minutes into the discussion).  Plenty of legal issues for any media company to consider:

Here are some of the regulatory and legal developments of the last week of significance to broadcasters – and a look ahead to the FCC’s consideration of two media modernization items in the coming week.  Links are also provided for you to find more information on how these actions may affect your operations.

  • This week, many large and small radio operators that submitted license renewal applications without certifying full compliance with the FCC’s political file obligations received an email from the FCC. That email proposes that these stations enter into consent decrees to get their renewals granted.  A party entering into one of these consent decrees needs to appoint a company compliance officer to monitor political advertising compliance, adopt a compliance plan, hold training sessions, and file yearly reports with the FCC on all political sales.  These consent decrees appear to have gone to virtually every station that could not certify complete compliance with the public file rules, without consideration of the nature of their public file issues.  The decrees are similar to the consent decrees recently entered into by six of the largest radio groups (about which we wrote here).  This week’s action is a vivid reminder of how seriously the FCC takes compliance with the political file rules (for a refresher on the political broadcasting rules, see here for our political broadcasting blog articles and here for WBK’s Political Broadcasting Guide).  If you received one of these emails, talk to an attorney experienced in FCC matters before you sign it to see what options may be available to you and to discuss the details of the obligations imposed by the decrees.  (Consent Decree Example)
  • New carriage election notice rules that apply to LPTV and Class A stations became effective July 31. The new rules require certain LPTV stations and non-commercial educational translator stations that are retransmitted by a multichannel video programming distributor (MVPD) to respond as soon as is reasonably possible to communications about carriage election issues that are received via the contact information the station should have provided in the FCC’s LMS database.  Qualified LPTVs (i.e. LPTV stations in rural areas entitled to elect must-carry status) must also follow detailed procedures to notify an MVPD of changes to the station’s carriage election.  For details as to the information that must be provided, see the FCC’s Public Notice released this week.
  • The FCC released the final cost catalog for reimbursement of expenses associated with C-Band earth station transitions that result from portions of the C-Band being repurposed for 5-G wireless uses. Many radio and TV stations receiving satellite-delivered programming are affected.  The FCC also announced an August 31 deadline for electing a lump sum reimbursement payment (and the format for that election).  (Public Notice)
  • The Department of Justice’s Antitrust Division held a two-day music licensing workshop, bringing together interested parties, including representatives from the broadcast industry and from the performing rights organizations, as well as songwriters, music publishers, and economists. These parties discussed the ASCAP and BMI consent decrees, public performance licensing, and general music licensing issues.  (Assistant Attorney General Makan Delrahim’s Opening Remarks)(Video and transcripts of the sessions will be made available on the DOJ’s website for this workshop when they are available).
  • We posted to the Broadcast Law Blog our monthly feature looking at important regulatory dates in the month ahead. Visit the blog to read about the August dates to watch, including license renewals, EEO reporting, the FCC Open Meeting, and Broadcast Internet rulemaking comments – and an alert to watch for the details that should be coming soon on the annual regulatory fees due in September.  (Broadcast Law Blog)
  • FCC Commissioner Michael O’Rielly appeared virtually at The Media Institute’s Communications Forum luncheon series where he discussed his views on media regulation and modernization, Next Generation TV, diversity in media, and free speech issues. (Prepared Remarks)  (Video)

Next week, here is an event that we will be watching:

  • The FCC will hold an Open Meeting on August 6. The Commissioners are expected to consider two media modernization items relevant to broadcasters: (1) Elimination of the rule prohibiting the duplication of programming by two AM stations serving the same area, and (2) repeal of the rules for FM and TV broadcasters that currently require a licensee to make available to competitors antenna space on any “unique” tower site that they own.  We wrote in more detail about these two proposals here and here.  The Open Meeting will be livestreamed at 10:30 a.m. on August 6.

While we are approaching the end of summer in this most unusual year, the regulatory dates keep coming, though perhaps a bit slower than at other times of the year.  One of the big dates that broadcasters should be looking for is the announcement of the Annual Regulatory Fees that will likely be paid sometime in September.  This year, there has been much controversy over those fees, with the FCC proposing that broadcasters’ fees should go up even though the FCC’s budget is flat, while the NAB has argued that they should remain flat or decrease.  And many broadcast groups have argued for liberal waivers of the fee requirement in this year of the pandemic when so many stations were hit so hard by the economic downturn.  Watch for this decision – likely toward the end of the month.

The license renewal cycle continues in August for both radio and TV.  Full-power TV, Class A TV, TV translator and LPTV stations in North Carolina and South Carolina and full-power AM, FM, FM translator, and LPFM radio stations in Illinois and Wisconsin should be putting the finishing touches on their license renewal applications—due to be filed on or before August 3 (the deadline being the 3rd as the 1st of the month is a Saturday).  While stations are no longer required to air pre-filing announcements, the requirement to air post-filing announcements remains.  Those announcements must begin airing on August 1 and continue through October.  See our article about how to prepare for license renewal here. Continue Reading August 2020 Regulatory Dates for Broadcasters:  TV and Radio License Renewals, EEO Reporting, FCC Open Meeting, Broadcast Internet Comments and More

Here are some of the FCC regulatory, legal, and congressional actions of the last week—and music licensing action in the coming 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.

  • The Media Bureau settled investigations into six major radio groups (collectively 1,184 stations) over political file violations. Though negotiated individually, the consent decrees with each company are principally the same: admitting lapses in uploading to their political files records of requests for the purchase of political broadcast time, appointing a compliance offer, and agreeing to develop and follow a compliance plan that includes submitting periodic proof-of-compliance reports to the Commission.  Be sure the people in your operation who handle political advertising are aware of and follow all FCC rules (good places to start are the WBK Political Advertising Guide and Broadcast Law Blog political advertising articles, including this article from Friday summarizing the political file rules).  (News Release)  (Consent Decrees)
  • The FCC is upgrading its online payment interface and infrastructure, to comply with the Department of Treasury’s pay.gov requirements. The upgrades will give users more control over payments and financial standing with the Commission and better visibility into their payment history.  Expect to see these changes rolling out throughout the summer and fall.  (Public Notice)
  • Commissioner Michael O’Rielly’s nomination for another five-year term advanced out of the Senate Commerce Committee and moves to the full Senate for consideration. (O’Rielly Statement)
  • Communications Daily newsletter reported that the FCC staff who are currently teleworking will be permitted to do so into 2021 to provide more flexibility given the uncertain nature of the pandemic, and the move to the new FCC headquarters will be delayed at least through September. Early in the pandemic, we wrote about how the move to remote work was not expected to cause much disruption to the routine regulatory activities of the Commission and, now a few months later, that still seems to be the case.  Where disruptions may continue to occur are to activities that require a physical presence at headquarters—like auctions.  We wrote in March about the indefinite delay of an FM auction.

Next week, we will be keeping our eye on the following action at the Department of Justice:

  • The Department of Justice’s Antitrust Division is holding a virtual public workshop on competition in the music industry, music licensing, and public performance rights. Through a series of panels over two days, the workshop is expected to cover the ASCAP-BMI consent decrees, marketplace competition issues, and competition between ASCAP, BMI, SESAC, and GMR.  Registration is free.  (DOJ Workshop Details)

The FCC this week announced consent decrees with six large radio groups over problems with the political files maintained by these groups.  The consent decrees included very specific compliance plans for each company to ensure that it met all FCC political file obligations in the future.  And it suggested that the penalties were mitigated by the current economic conditions caused by the pandemic – but emphasized the importance to the FCC of the political file obligations and suggested that industry associations take steps to educate all broadcasters about their public file obligations when they run political advertising.  Based on these decisions, we thought that we would republish an updated version of an article that we ran two years ago about those political file obligations so that broadcasters can review their own files to ensure that they have in their files the documents that the FCC wants to see.

Our article from two years ago looked at the political file obligations not too long after the FCC required that all of these documents be made available online, as part of the FCC-hosted online public inspection file. The fact that this file can now be viewed by anyone anywhere across the globe has made the required documents much more visible than when they could be reviewed only by physically visiting the main studio of a broadcast station. Not only can these documents be reviewed by the FCC in Washington, DC, but they can be reviewed by candidates, their agencies, and political ad buyers across the country.  In fact, we understand that some political ad buyers have online “bots” that scan these files routinely to keep track of political ad buying across the country.  Plus, with the license renewal cycle ongoing, the FCC reviews the political file as part of their review of a commercial station’s license renewal application (where licensees need to certify as to whether they have kept their public files complete in a timely fashion). Continue Reading FCC Enters Consent Decrees with Six Big Radio Groups – Looking at What the FCC’s Political File Rules Require

Our friends at Edison Research recently released a study on music discovery highlighting the ways in which people discover new music.  Among their findings was that broadcast radio, YouTube and streaming services were among the largest sources for that discovery.  That report caused one radio trade publication to suggest that podcasts, which ranked relatively low among the places where new music is discovered, might have opportunities to grow there.  What that suggestion overlooks is one of the biggest reasons that music podcasts have not taken off – rights issues.  There still is no easy way to clear the rights to major label music – so most podcasts are limited to spoken word featuring limited, directly licensed music.

That comment made us think that we should re-run an article from earlier this year, that explained music rights in podcasts.  That article was prompted by the settlement between the Radio Music License Committee and BMI over music royalties for broadcasting.  While a press release about the settlement said that the BMI license includes the use of music in podcasts, we pointed out that radio stations should not assume that means that they can start to play popular music in their podcasts without obtaining the rights to that music directly from rightsholders.  They cannot, as BMI controls only a portion of the rights necessary to use music in podcasts and, without obtaining all of the remaining rights to that music, a podcaster using the music with only a BMI license is looking for a copyright infringement claim. Continue Reading Using Music in Podcasts – Talk to the Copyright Holders – Why You Can’t Rely on Your ASCAP, BMI, SESAC and SoundExchange Licenses

FCC rules currently prohibit radio stations in the same service (AM or FM) that have over 50% overlap of their principal community contours (the 70 dBu for FM stations and the 5 mV/m contour for AM stations) from duplicating more than 25 per cent of the total hours in their average programming week.  In preparation for the FCC’s open meeting on August 6, the FCC last week released its draft order proposing to eliminate that rule as to AM stations (as we wrote on Friday).  As the draft order looks to eliminate the rule only for AM stations while retaining that rule for FM stations, it is worth taking a deeper look at this tentative decision particularly as one of its implications is that the FCC may well be allowing AM stations to transition to all-digital operations.

The draft decision provides two reasons for eliminating the rule for AM stations.  First, it suggests that the challenging economic and competitive status of AM radio justifies the decision to allow duplication by AM stations that operate in the same area. Keeping a station operational and providing some service is preferred over letting that station go silent.  The economic condition of the AM band was determined to alone be justification for the decision to permit duplication.  But the FCC provided a second reason – one that suggests that the FCC is seriously considering the proposal (about which we wrote here and here) to allow for all-digital AM stations.  In the draft order, the FCC says that allowing AM program duplication would provide an opportunity for an AM station to go all-digital while still broadcasting its programming on another AM station in the current analog format – allowing listeners to hear the station even if they do not yet have a digital AM receiver. Continue Reading A Deeper Look at the FCC’s Proposal to Eliminate Program Duplication Rules for AM But Not FM Stations – Looking to All Digital AM? 

Here are some of the FCC regulatory and legal actions of the last week—and congressional action in the coming 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.

  • The Media Bureau reminded broadcasters that July 13, 2021—the hard deadline for LPTV stations and TV translators to transition to digital—is one year away. Stations that have not yet constructed a digital facility must cease analog television operations no later than July 13, 2021 and remain silent until construction is completed.  The Public Notice details the steps stations must take if they may not meet the deadline due to delays with obtaining zoning or other approvals, inability to obtain equipment, financial hardship, the need to modify their current permits for digital operations, and similar constraints.  (Public Notice)  (Broadcast Law Blog)
  • The FCC issued a reminder that cable and satellite TV operators must, after July 31, 2020, deliver certain notices to TV stations by email. This rule change syncs with the FCC’s requirement that TV broadcasters post to their public files, by July 31, 2020, an email address to receive notices from cable and satellite operators relating to carriage matters including must-carry and retransmission consent elections.  (Public Notice)  (Report and Order)  (Broadcast Law Blog)
  • Clarifications and rule changes regarding Next Generation TV (ATSC 3.0), that were released in June, become effective on August 17. The FCC provided additional guidance on waivers (“No Viable Local Simulcasting Partner” and “’Reasonable Efforts’ to Preserve Service”) of the local simulcasting rules to broadcasters deploying Next Gen TV, declined to allow the use of vacant broadcast channels for Next Gen TV deployment, and clarified that the “significantly viewed” status of a Next Gen TV station will not change if it moves its ATSC 1.0 simulcast channel to a host facility.  (Federal Register)  (Broadcast Law Blog)
  • The Media Bureau set aside a grant of consent to assign an FM license and remanded the assignment application to the Bureau for further proceedings after learning more about the proposed assignor’s criminal conviction. This is a good reminder that the FCC can—and will—consider even non-FCC-related wrongdoing when evaluating applications, and generally it will not allow a person with character issues to profit from the sale of a broadcast station.  (Order)
  • Eighteen radio stations in Indiana, Kentucky, and Tennessee were warned that their licenses will expire if they do not file license renewal applications by midnight on August 1, 2020. Stations in these three states were required to file applications for license renewal by April 1, 2020 for terms expiring on August 1, 2020, and these stations did not meet the required deadline.  This is a good reminder to check the date that your license renewal application is due and remember to timely file that application.  (Public Notice)
  • Two “Broadcast Internet” items were published in the Federal Register.
    • The first item, a declaratory ruling, makes clear that television spectrum leased for datacasting does not trigger FCC multiple ownership issues. (Declaratory Ruling)
    • The second item, a Notice of Proposed Rulemaking, seeks comment generally on the industry’s ideas for potential uses of the datacasting potential of ATSC 3.0, what the FCC has termed the Broadcast Internet, and what regulatory barriers exist to deployment of new services. Comments and reply comments are due by August 17 and August 31 respectively.  (NPRM)(Broadcast Law Blog on Broadcast Internet)
  • Chairman Ajit Pai announced the items the Commission will consider at its August 6 Open Meeting. Two items relevant to broadcasters made it to the agenda.(Blog)  (Tentative Agenda and Draft Items)
    • The Commission will vote on an order to eliminate the radio duplication rule for AM stations, while retaining the rule for FM stations. The Chairman notes that the realities of the marketplace and technical challenges faced by AM broadcasters point to elimination of the rule. The current rule prohibits a radio station in one service (either AM or FM) from duplicating more than 25% of the weekly programming of another station in the same service, if there is more than 50% overlap of the principal community contour of either of the stations. We wrote about this proposal here.  (draft Report and Order)
    • The second item to be voted is an attempt to clear what many might consider “regulatory underbrush” by eliminating a rule that requires a broadcaster who owns a unique tower site to share that site with competing local stations. The Commission believes there has never been a case where there was never a case where this rule was used as there was never a showing that a site was unique and, as no broadcast licensees submitted comments during the rulemaking, it plans to abolish the rule.  (draft Report and Order)
  • We wrote on the blog about some issues that businesses of many stripes should consider as more of normal life shifts online, namely music licensing and unlicensed use of spectrum. Music license holders need to review carefully the licenses they hold to be sure that the new activities they are involved in due to the pandemic, including conducting business and other public gatherings on ZOOM and similar platforms, are covered by the rights they hold.  Similarly, businesses that have shifted to serving customers outdoors need to be mindful of their spectrum use (particularly regarding unlicensed low power FM broadcasts) and not run afoul of the FCC’s permitted uses.  You may wish to share our blog post with your advertisers and clients that are dealing with the concerns we discuss in the article.  (Broadcast Law Blog)
  • The FCC took a victory lap now that the 39-month post-incentive auction repacking of the television band has come to a close. In Chairman Ajit Pai’s remarks before the American Consumer Institute Center for Citizen Research and in a news release, the FCC touted the success of the repack and thanked the broadcast and wireless industries, the tower crews, the equipment manufacturers, the radio frequency engineers, and the Commission staff that made the repack possible.  Chairman Pai acknowledged the difficulties encountered—and overcome—along the way and how all parties pulled together to accomplish what was once seen as a task tied to an impossible-to-meet deadline.  (News Release)  (Remarks)  (Broadcast Law Blog)
  • Broadcasters planning to provide on-the-ground coverage of the upcoming national political conventions in Charlotte, NC, Jacksonville, FL, and Milwaukee, WI, and the 2021 Presidential Inauguration in Washington, DC must coordinate their frequency and spectrum use with Louis Libin, the newly-named special frequency coordinator and RF spectrum manager for these events. The FCC established a single point of contact for Broadcast Auxiliary System operations coordination to manage spectrum congestion and alleviate harmful interference.  Libin can be reached at (516) 374-6400 and louislibin@broad-comm.com.  (Public Notice)

And, next week, be aware that this activity is taking place on Capitol Hill:

  • The Senate Commerce Committee on July 22 will vote on Commissioner Michael O’Rielly’s nomination to another five-year term at the FCC. Should the nomination be voted favorably by the committee, the Commissioner’s nomination moves on to consideration by the full Senate.  (Executive Session)