Hey, Alexa, How Are Your Affecting My Podcasting Music Royalty Obligations?

Next Wednesday, July 25, I will be speaking at the Podcast Movement Conference in Philadelphia, as part of the Broadcasters Meet Podcasters Track, discussing legal issues that broadcasters need to consider as they move some of their content into podcasts. One of the topics that I will be discussing will be the music royalty obligations of podcasters who use music in their programs. A month ago, we wrote about how broadcasters’ streaming royalties are affected by smart speakers like the Amazon Alexa and Google Home, as these speakers play the digital streams of a radio station’s programs where SoundExchange royalties must be paid, as opposed to the over-the-air signal of the station, where no such royalties are owed. These smart speakers may have an impact on podcasters royalties, affecting who needs to be paid in connection with the use of music in podcasts.

When I initially started to write about issues of music use in podcasts, my emphasis was on the need to secure direct licenses from performers and composers (or their record companies and publishing companies) for the rights to make reproductions and distributions of music in podcasts. When digital content is downloaded, it triggers rights under copyright law implicating the reproduction and distribution rights of copyright holders (see our article here), as opposed to their public performance rights – the rights with which broadcasters are most familiar as those are the rights that they obtain when paying Performing Rights Organizations ASCAP, BMI, SESAC and GMR in connection with their over-the-air broadcasts and those PROs plus SoundExchange in connection with noninteractive digital streaming. When podcasts were something that were downloaded, just like the purchase of a download of a song from the iTunes music store, it was the reproduction and distribution rights that were triggered, and conventional wisdom was that the PROs had no role to play in the licensing of downloaded media. As technology has changed, the analysis of what rights you need to use music in podcasts may well be changing too. The direct licensing of music for your podcast is still needed – but a public performance right may well also be necessary. Continue Reading

ATSC 3.0, Next Gen TV, Inches Closer to Reality with FCC Simulcasting Rules Becoming Effective

By David Oxenford on July 19, 2018 Posted in Digital Television, Television

This week, the approval of the Office of Management and Budget of FCC rules imposing new paperwork burdens relating to simulcasting of a TV station’s primary signal on a host station when it converts to the new ATSC 3.0 next generation TV transmission system was announced in the Federal Register. The primary rules for ATSC 3.0 were adopted last year, and became effective in March 2018 (see our post here). But the rules requiring an FCC application before commencing the simulcast of the primary signal on the host station as well as over the new ATSC 3.0 signal, the notifications necessary to TV viewers and MVPDs, and other filing obligations required OMB approval under the Paperwork Reduction Act before they could become effective, and that approval has now been obtained. But this does not mean that Next Gen TV stations will be popping up everywhere immediately.

The FCC this week issued a Public Notice announcing the approval of these paperwork requirements, but indicating that it is not yet accepting applications for stations proposing to operate with the ATSC 3.0 standard. The FCC is still preparing a new form for ATSC 3.0 stations to file, and getting its LMS filing system ready to accept all of the newly required FCC filings associated with the conversion. A subsequent public notice will be released when the FCC is ready to accept ATSC 3.0 applications – at some undetermined time in the future, likely at some point in 2019. The Public Notice does offer the option for stations ready to operate with the new system to request experimental authority to do so (several such requests have been filed and granted for tests by commercial and noncommercial stations). But, until the new forms are ready, and until more ATSC 3.0-capable receivers are available to consumers, a mass conversion of stations to the new transmission standard will have to wait.

What Does an FCC Designation for Hearing Mean?

By David Oxenford on July 17, 2018 Posted in Assignments and Transfers, Multiple Ownership Rules, Public Interest Obligations/Localism

In light of yesterday’s announcement that the FCC Chairman has proposed that portions of the acquisition by Sinclair Broadcast Group of the television stations owned by Tribune Media would be designated for hearing, one question that many have asked is, “What does designation for hearing mean?” Several decades ago, the process of designating an application for hearing was a common occurrence – used by the FCC to decide between competing applicants for new broadcast (and in some cases non-broadcast) licenses, in connection with determinations of whether or not to grant the license renewal of broadcast stations where substantive petitions or competing applications were filed against such applications, or to deal with enforcement issues when there were questions about the facts of a particular situation. The FCC had a large staff of Administrative Law Judges who heard these cases, and they were usually quite busy. But as the staff of ALJs at the FCC has dwindled to one, and as cases referred to that Judge are increasingly infrequent, it might be worth discussing a bit about the hearing process at the FCC.

Congress established, in Sections 309 and 310(d) of the Communications Act, the manner in which the FCC is to process applications filed with it. In cases involving applications for new stations or for the purchase and sale of stations, applications are filed providing information required by the FCC and such supplemental information as the FCC may request. Interested parties routinely have 30 days in which to file objections to applications, in which the petitioner needs to submit detailed allegations supported by facts either in the public record or otherwise supported by statements from those with personal knowledge of the facts, arguing why an application should not be granted. Applicants have the opportunity to respond. In most cases, the FCC will attempt to resolve any disputes, or any questions that it has on its own, on the basis of the written materials presented in the application, the petitions, and in response to any FCC supplemental request for information. But Section 309(e) makes clear that, if there is a “substantial and material question of fact” or if the Commission is otherwise not able to determine that an application meets the requirements of the rules, it needs to formally designate the application for hearing. Continue Reading

A Big Day at the FCC – Kids TV, EAS and C Band Proposals, Incubator and LPTV/FM Repacking Reimbursement Drafts, FM Translator Reconsideration, and NJ TV License Renewal Decision

By David Oxenford on July 13, 2018 Posted in Children's Programming and Advertising, Emergency Communications, FM Translators and LPFM, General FCC, License Renewal, Multiple Ownership Rules, Programming Regulations, Public Interest Obligations/Localism

There was lots of news out of the FCC yesterday that will give us issues to write about for weeks to come. Here are some highlights. At its open meeting, the FCC adopted a Notice of Proposed Rulemaking on potentially reforming the children’s television rules – including a review as to whether the current requirement that regularly scheduled programs of 30 minutes in length are the only means to meet the obligation to broadcast 3 hours of educational and informational children’s programming each week for each stream of free over-the-air programming broadcast by a station without facing heightened FCC scrutiny. The rulemaking will also look at whether all kid’s programming obligations could be met by broadcasts on a single multicast stream or through other efforts. The FCC Press Release on the action is here, and and the text of the notice is here.

On EAS, the FCC took actions to strengthen the reliability of the EAS system by allowing real EAS tones to be used in PSAs to promote the system, subject to certain safeguards, and to allow for testing of the EAS system using “live codes” with appropriate warnings and disclaimers. The order also requires the reporting of false emergency messages that may be sent out. The FCC Press Release on that item is here, and we will post a link to the full text when it is available. Continue Reading

Comments Due August 13 on Inquiry on Class C4 FM Stations and FM Short-Spaced Stations

By David Oxenford on July 12, 2018 Posted in FM Radio

Comment dates have now been set on the FCC’s Notice of Inquiry seeking comments on the creation of a new Class of FM stations – C4 (proposed to operate at maximum power of 12 kw, midway between 6 kw Class A stations and 25 kw Class C3 stations) – and on proposals to change the rules on Section 73.215 FM short-spaced stations (those located at less than the full required mileage separations from co- and adjacent channel stations – proposing to require protection of other stations only to their actual, not potential maximum, facilities). We wrote more about the questions raised in that proceeding here. The FCC Notice of Inquiry was published in the Federal Register today. Comments are due by August 13, with reply comments due by September 10. The FCC will take the comments that are filed, consider them, and decide whether or not to move forward to propose specific rules on either of these issues. If you are interested in these issues, file your comments by the deadline set in today’s notice, and watch for further actions in this proceeding.

FCC Application Fees Going Up

By David Oxenford on July 11, 2018 Posted in FCC Fees

The FCC yesterday released an Order announcing its adjustments to its application fees for commercial broadcasters and other FCC licensees. The fee schedule reflects a 3.7% cost of living increase in the processing fees that are paid when broadcasters file an application with the FCC. Fees for broadcast applications can be found starting at page 27 of the PDF containing the Order. The increases are modest – for example, the fees for a minor change, an assignment, or a transfer application increase from $1070 for to $1110 per station. These new fees will be effective 30 days after this Order is published in the Federal Register. So, if you are planning an FCC application that will be filed a few months from now, pay attention to the effective date of the new fee schedule to avoid having your application bounced for paying an incorrect fee.

FCC Requires Updating By Broadcasters of EAS Test Reporting System (ETRS) Form One By August 27

By David Oxenford on July 11, 2018 Posted in AM Radio, Emergency Communications, FM Radio, FM Translators and LPFM, Low Power Television/Class A TV, Television

The FCC recently released a Public Notice reminding all EAS participants that they need to file ETRS Form One by August 27, 2018. This form needs to be filed by all radio and TV stations, including LPFM and LPTV stations (unless those LPTV stations simply act as a translator for another station). While the FCC has not announced another nationwide EAS test for this year, the FCC still requires that the form be updated on a yearly basis – with a separate Form One being filed for each encoder, decoder, or combined unit used by any station or cluster.

The Public Notice provides information about where to file the form, and also links to this help page on the FCC website that provides information about completing the form. These Frequently Asked Questions are also helpful. They note the information that needs to be submitted in the ETRS form, including the geographic coordinates of the station (with latitude and longitude in NAD83), and various information about the station’s “designation”, monitoring assignments and “geographic zone” – all information that should be set out in the state EAS plan for the state in which the station is located. As it may take some time to locate all of the required information to make sure that any station’s Form One is current and accurate, stations should not delay in beginning to work on this form.

Reminder – Quarterly Issues Programs Lists Must Be Placed In Public File Today

By David Oxenford on July 10, 2018 Posted in FCC Fines, License Renewal, Public Interest Obligations/Localism

Last week, in our calendar of regulatory dates for broadcasters in July, we reminded broadcasters that their Quarterly Issues Programs lists needed to be placed in their public file by today, July 10. This quarterly requirement has been in place for over 30 years, but is still an obligation whose breach has led to more fines in connection with license renewals and FCC inspections than perhaps any other. As the license renewal cycle beings for radio again next June with the filing of renewals by radio stations in 3 states and the District of Columbia, and the renewal cycle begins for TV in 2020, these lists will again be subject to scrutiny by the FCC and other interested parties. With all of these lists now required to be in each full-power station’s online public inspection file, they will also be far easier to check than ever before. We wrote about the importance of these lists here, and urge every broadcaster to make sure that the lists for the past quarter are posted to your online public file by the end of the day today – and that you take seriously your obligation to report in these lists how your stations have addressed in your programming the issues of importance to the communities that you serve.

FCC Lifts Freeze on LPTV and TV Translator Minor Change Applications

By David Oxenford on July 10, 2018 Posted in Incentive Auctions/Broadband Report, Low Power Television/Class A TV

Last week, the FCC issued a Public Notice announcing that it was lifting the freeze on minor changes for LPTV and TV translator stations – a freeze that had been in place while the displacement window for stations displaced by the TV incentive auction was taking place (see our articles here and here on that displacement window for LPTV and TV translator stations). Now, with the lifting of the freeze, minor change applications for these stations can be filed. This would allow for applications for changes in these stations, like transmitter site modifications, as long as the proposed facilities protect existing full-power, LPTV and TV translator stations, and applications filed during the displacement window.

July Regulatory Dates for Broadcasters – Quarterly Issues Programs Lists and Children’s Television Reports, EAS Reform, LPFM and FM Translators, C Band Earth Stations and More

By David Oxenford on June 28, 2018 Posted in Children's Programming and Advertising, Emergency Communications, FM Radio, FM Translators and LPFM, General FCC, License Renewal, Programming Regulations, Public Interest Obligations/Localism, Television

July brings the obligation for each full-power broadcaster to add a new Quarterly Issues Programs List to their online public inspection file. These reports, summarizing the issues facing each station’s community of license in the prior three months and the programs broadcast by the station to address those issues, must be added to the public file by July 10. As we wrote here, these reports are very important – as they are the only documents legally required by the FCC to show how a station served the public interest. With the online file, these reports can be reviewed by anyone with an Internet connection at any time, which could be particularly concerning for any station that does not meet the filing deadline, especially with license renewals beginning again next year.

Also to be filed with the FCC by July 10, by full-power and Class A TV stations, are Quarterly Children’s Television Reports. While the FCC announced last week that it will be considering a rulemaking proposal at its July meeting to potentially change the rules (see its proposed Notice of Proposed Rulemaking here), for now the requirements remain in place obligating each station to broadcast 3 weekly hours of programming designed to meet the educational and informational needs of children for each free program stream transmitted by the station. Also, certifications need to be included in each station’s online public file demonstrating that the station has complied with the rules limiting the amount of commercialization during children’s television programs. Continue Reading