I just finished speaking on a panel at the Radio Ink Convergence ’09 conference in San Jose.  My panel was called "The Distribution Dilemma: Opportunities, Partnership and Landmines."  As the legal representative, my role was, of course, to talk about the landmines.  And one occurred to me in the middle of the panel when a representative of Ibiquity, the HD Radio people, about one of the opportunities available for the multicast channels available in that system, where an FM radio operator can, on one FM station, send out two or three different digital signals.  The particular opportunity that was discussed was the ability to bring in outside programmers to program the digital channels, specifically talking about a recent deal where a broadcaster had entered into a deal with a company that would be brokering a digital channel in major markets, and programming that station with a format directed to the Asian communities.  Broadcasters are generally familiar with the fact that, when they broker their traditional analog broadcast station to a third party, the licensee remains responsible for the content that is delivered in that brokered programming – e.g. making sure that there are no payola, indecency, lottery or other legal issues that pop up in that brokered programming.  Broadcasters need to remember that that same responsibility applies to multicast streams, whether they are on HD radio or on a multicast stream broadcast by a digital television station.  These stream are over-the-air broadcast channels subject to all FCC programming rules.

Foreign language programming has traditionally presented programming issues for broadcasters.  In the 1970s and 1980s, there were multiple cases where broadcasters actually lost licenses because there was illegal activity taking place in brokered programming.  In these cases, the programming contained illegal content and the licensee had no way to monitor the content of the programs as the licensee had no one on staff who spoke the language in which the programming was produced.  The FCC basically said that the licensee had the responsibility to be able to monitor all programming broadcast on its station – so they had abdicated their responsibility to keep the station in compliance with FCC rules by not knowing what was being said in the brokered programming.

And it is not just foreign language programming that can present issues.  In some of those older cases, there were problems where one would least expect it.  In one case, a preacher was, in his sermons, citing Bible verses to convey information about illegal "numbers" games that were taking place in the station’s community.  As recently as last week, noncommercial broadcasters were fined by the FCC for improper underwriting announcements that were broadcast in programming provided by third-party programmers (see our post here).

Thus, when a radio broadcaster cuts a deal to broker a HD Radio digital channel to some other company, or a TV broadcaster brokers time on a digital multicast channel, the broadcaster can’t just collect a check and ignore what is being broadcast on that channel.  The broadcaster must monitor that programming, and has the legal responsibility for all the content that is provided by the third party.   Consider the economics and logistics of that monitoring when negotiating a deal, and be sure to provide protections in your contracts to provide safeguards and penalties for the broker who violates your programming standards.