Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.
- On July 28, the United States Court of Appeals for the District of Columbia Circuit issued an opinion rejecting appeals of the Copyright Royalty Board’s (“CRB”) decision that set the 2021-2025 royalty rates that non-interactive webcasters must pay to SoundExchange for the digital public performance of sound recordings (see our Broadcast Law Blog article here for more on the CRB’s 2021 decision). These rates apply to all companies that provide a non-interactive internet-delivered stream of programming that includes recorded music, including broadcast simulcasters. There were three appeals before the Court. NAB argued that broadcast simulcasters should pay a lower royalty rate than webcasters who provide a custom radio service allowing some control over the music that they hear. As the simulcast listener cannot influence what songs they will be hearing (because the broadcaster is making those decisions), the NAB argued, simulcasters are not as much of a substitution for users buying music or using on demand services that pay higher royalties as are custom radio services where the user can influence, though not guarantee, the songs that they will hear. NRB-NMLC (the National Religious Broadcasters Noncommercial Music Licensing Committee) argued that their rates should have been lower as the CRB should have used the rates set for NPR as a benchmark to set rates for other noncommercial broadcasters, including noncommercial religious broadcasters. SoundExchange argued that the rates should have been even higher than those set by the CRB. The Court found that none of these arguments merited reversal of the CRB’s decision, noting the high deference courts must give to decisions of an expert agency, particularly on technical issues like those explored by the CRB in this case. Even though these appeals were pending, the rates went into effect in 2021 following the 2021 CRB decision. Thus, this Court decision will not change the royalties that webcasters should already be paying. Watch our Broadcast Law Blog for more details on this decision early next week.
- Congress is currently considering the Communications, Video, and Technology Accessibility Act (CVTA) that would expand the FCC’s authority to require accessible video programming both on television and online. The existing law (i.e., the 21st Century Communications and Video Accessibility Act) defines what programming must have closed captioning and audio description (providing an audio track that describes the visual action in a television program) and sets out requirements for making communications equipment accessible. On July 25, Sen. Ed Markey and Rep. Barbara Eshoo introduced a revised version of the CTVA that substantially changes the prior version (see Senator Markey’s statement here citing the need to adopt new legislation to cover all platforms, including online platforms and video conferencing services). If adopted, the CVTA as revised would, among other things, do the following:
- Narrow the scope of closed captioning and audio description obligations on Internet Protocol-delivered (i.e., online) video to only English and Spanish-language video programming.
- Add obligations to ensure that closed captioning and audio description data remain with the video programming, and is provided in common formats, so that it is accessible wherever the content is viewed.
- Add obligations for all devices that receive or play back video programming to include user interfaces that are accessible to individuals with vision, mobility, and speech disabilities (instructions and prompts on how to operate the device cannot be accessible only through text or other visual means).
- For platforms that allow for the posting of user-generated content, the platform must provide technology for users to caption and do audio descriptions of their programming. The platforms should also prompt users to add closed captioning and audio description to the content that they upload.
- The audio description rules would be revised to include, to the extent practicable, requirements for audio description to convey, in the same language as the audio, the content of open subtitles if the subtitles convey information relevant to the program that is not conveyed in the audio of the program (presumably meant to require audio description to read subtitles if, for instance, those subtitles translated the audio of a foreign language used in isolated segments of a program where the audio is otherwise in English or Spanish).
These changes would be made to a bill that includes many additional new requirements for captioning and audio description of broadcast and online video. If adopted by Congress and signed into law, the legislation requires the formation of a committee to recommend specific timetables and rules for implementation of these obligations. The Committee will report to the FCC within a year of the adoption of the legislation, so that the FCC can adopt final rules implementing the legislation.
- The U.S. Senate Committee on Commerce, Science and Transportation approved the AM For Every Vehicle Act, passing it on to the full Senate for a vote (see statement of Senator Cruz, the Ranking Republican member of the Committee, applauding the Committee’s action). As we wrote when the legislation was first introduced, if adopted, the Act would require that the National Highway Traffic Safety Administration conduct a rulemaking proceeding, to be completed within one year, to mandate that AM be included in all cars sold in the US as a standard feature, without any additional cost to new car buyers. In addition, until the effective date of the new rule, the seller of any car without an AM radio would have to provide “clear and conspicuous labeling” to inform any buyer that the car does not have an AM radio. The bill would also require the Government Accountability Office to study whether there was any other available technology to replicate the reach and effectiveness of AM in delivering emergency alerts to the public. In a statement released on July 27, FCC Commissioner Geoffrey Starks “applaud[ed] Congress for its bipartisan action to ensure the continued reception of AM signals in all vehicles.” Before becoming effective, not only is full Senate approval required, but House approval is also necessary (the bill has not yet been approved by the relevant House committee). There currently is no timetable as to when the bill will be considered by the full Senate or by the House.