Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.

  • In a speech to the Media Institute, FCC Commissioner Starks spoke of the importance of diversity in media ownership and

Next week, I will be discussing regulatory issues for media companies with Eriq Gardner of the Hollywood Reporter (who covers legal issues on their must-read THR, Esq site) in a “Candid Conversation” hosted by Matrix Solutions (more information here, including a registration link).  The sponsor of this conversation consults on media advertising matters, so the content will likely be geared toward the impact of changes on the advertising industry.  While the conversation will cover structural media regulation issues, like broadcast ownership, the relationship between television and various multichannel video providers (both traditional, like cable and satellite television, and online), and similar matters, I think one of most interesting topics will be a discussion of the proposed regulation of tech platforms.  In thinking about that issue (about which we have written many times, including recent articles here and here), it occurs to me that such regulation could have a huge impact on the digital and social media giants that have arisen in the modern media world.

Much has been written, particularly in recent days, about the antitrust regulation to which these tech giants may be subject – with calls for action from both the political right and left (see, for instance, this article drawing parallels between the books recently written about this subject by Amy Klobuchar and Josh Hawley).  Even if such sweeping changes are not adopted, there are more targeted regulatory proposals that could have a direct impact on the advertising on these online platforms.  As we have noted before, advertising on online platforms is now estimated to constitute over 50% of the local advertising sales in virtually every geographic market.  Certainly, privacy regulation limiting the ability of companies to track users across various online platforms could affect such sales.  Less publicized has been the impact of Section 230 reform, which in at least one bill would exempt advertising from the protections afforded companies for the online content that they host.
Continue Reading Regulation of Online Platforms and the Effect on Advertising – Including Section 230 Reforms

Last week, the NY Times ran an interesting article, here, about how many old TV programs now available on streaming services are missing music that was featured on the original broadcast.  This was because when the music rights were initially purchased,  their use was limited to over-the-air broadcasts or was limited to a short period of time, with the producers never envisioning that the programs would be available through on-demand streaming services decades after they originally aired on over-the-air television.  While not mentioned in the article, for many radio broadcasters one of the series most missed on streaming services is the industry favorite WKRP in Cincinnati.  That series took forever to get to digital outlets, and still does not appear to be on any subscription streaming service, reportedly because of music rights issues.  This article and the issues that it highlights should be a warning not just to TV producers, but also to anyone planning to use music in audio or video productions – including podcasts and online videos – that clearing music rights is essential to insure that these productions can be fully exploited  not only when they are first made available, but also in the future if they are repurposed for other platforms.

We have written before (see, for example, our articles here and here) about the need to get permission from the copyright holders in both the musical work (or musical composition – the words and music to a song) and in the sound recording (or master recording – the song as recorded by a particular band or singer).  Just signing up with a performing rights organization (ASCAP, BMI, SESAC or GMR) is not enough because, while podcasts may involve the public performances of the musical works that these organizations license, they do not give rights to make the permanent fixed copies of those songs, synchronized with other audio in the podcast, that can be accessed and downloaded on demand.  These uses require the additional copyrights to reproduce and distribute music, and arguably to make derivative works, that can only be obtained from the copyright holder (see our article here describing why the PRO license itself does not give all rights needed to use music in podcasts).   Similarly, the rights to the sound recording must also be obtained from the copyright holder in the recording – and payments to SoundExchange do not cover the on-demand music uses involved in a podcast.  Thus, when the necessary rights are not obtained from the copyright holders, we have seen podcasts go silent after infringement claims are brought or threatened (see our article here).
Continue Reading Missing Music On Streamed TV Programs Highlights Rights Issues for Podcasters and Video Producers

Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.

  • At the FCC’s regular monthly Open Meeting, the Commissioners voted to adopt new rules mandating sponsorship identification of foreign government-provided

Earlier this week, we highlighted a letter sent last week from Congresswoman Anna Eshoo asking the FCC to review CALM Act complianceThe letter noted that the FCC has received thousands of complaints about loud commercials in the decade that the law has been in effect without having taken any enforcement action.  The FCC wasted no time in reacting, with Media Bureau issuing a request late Monday for comments on the current rules which implement the law and whether changes to those rules are needed.  Comments are due June 3, 2021, with reply comments due by July 9.

The CALM Act (the Commercial Advertisement Loudness Mitigation Act) was passed in 2011 due to the perception of many in Congress that the volume of commercials on broadcast, cable and satellite television was far higher than that in the programming that surrounded the commercials.  After the legislation was passed, the FCC adopted rules to implement the Act (which we described here).  Those rules were principally based on compliance with a set of ATSC (Advanced Television Systems Committee) recommended practices, to be enforced through a complaint-driven system. The FCC has updated those rules once (when ATSC updated its recommended practices – see our article here).  The FCC now asks if those rules should be revisited to make them more effective in combatting the perceived problem of loud commercials.
Continue Reading FCC Being Anything but CALM About Congressional Letter – Asks for Public Comments on CALM Act Enforcement

As we highlighted yesterday in our weekly summary of regulatory issues for broadcasters, last week saw a letter from Congresswoman Anna Eshoo to the FCC asking for the FCC to review the enforcement of the rules established by the CALM Act, which prohibits loud commercials on TV stations.  The letter cites news reports of thousands of complaints annually to the FCC since the rule’s adoption in 2012 without there ever having been an enforcement action against a station for any violation.  When the CALM Act was passed by Congress, there were many industry questions about how that law could be enforced, as there are many subjective judgments in assessing whether a commercial is louder than the program into which it is inserted (see our article here).  But, ultimately, the FCC adopted rules that were based on industry standards and most parties seemed to believe that they were workable (see our article here about the adoption of those rules).  Like many FCC rules, the CALM Act rules are complaint-driven, and even the article cited by Congresswoman Eshoo recognized the difficulty in assessing the merits of any complaint.

Nevertheless, with this letter and the publicity that it has received in the broadcast trade press, TV stations should carefully review their compliance with the CALM Act rules, as this publicity could signal that the FCC will turn its attention to this issue in the coming months.  In fact, with a Commission that is currently evenly divided between Democrats and Republicans until the vacant seat on the Commission is filled, enforcement of existing FCC rules may well be one place where the current Commission will turn its attention while more controversial (and potentially partisan) rule changes await FCC action.
Continue Reading Congressional Letter to FCC on CALM Act Violations Puts Focus on FCC Enforcement Issues

Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.

  • According to press reports, broadcasters should pencil in August 11, 2021 on their calendars for the next national test of

Back in January, we reminded broadcasters that state and local elections, even those held in “off-years” like 2021, still fall within the FCC’s political broadcasting rules.  Virtually all FCC rules, with the exception of reasonable access, apply to candidates for the local school board or town council just as they do for candidates for President – i.e., once you decide to accept an ad for a local candidate, then equal opportunities, lowest unit rates and online public file obligations all apply (see our article here for more information).  But in that article, we did not focus on political issue ads, which also raise their own FCC obligations, particularly with respect to the public file and sponsorship identification.

Unlike candidate ads, or ads dealing with federal issues, ads from non-candidate groups dealing with state and local elections and issues generally do not require price and schedule information to be uploaded to the online political file (unless those ads also mention a federal issue).  However, those ads do require that the public file contain an identification of the sponsor of the ad (address, phone number and contact person should be provided), plus a list of the ad sponsor’s executive officers or the members of its Board of Directors or similar governing board.  Under the FCC’s guidance from 2019 (see our article here), the FCC thinks that most of these organizations will have more than one governing board member, so if you are provided with the name of only one officer or board member, you are required to reach out to the sponsor or their representative and ask if there are others who should be listed.
Continue Reading Reminder: Issue Ads Require Public File Disclosures Even Outside Political Windows

The broadcast trade press is full today with the news that NAB CEO Gordon Smith will be stepping back from that position at the end of the year, to be replaced by current COO (and former head of Government Relations) Curtis LeGeyt.  As many will remember, Smith took over the organization over a decade ago during a turbulent time for the industry.  At the time, TV stations faced increasing calls for other uses of the broadcast spectrum, and radio stations faced a possible performance royalty on their over-the-air broadcasts of sound recordings.  Since then, through all sorts of issues, there has been a general consensus in the industry that its leadership was in capable hands and meeting the issues as they arose.

But many issues remain for broadcasters – some of them ones that have never gone away completely.  The sound recording performance royalty for over-the-air broadcasting remains an issue, as do other music licensing issues calling for changes to the way that songwriters and composers are compensated, generally calling for higher payments or different compensation systems (see our articles here on the GMR controversy and here on the review of music industry antitrust consent decrees).  TV stations, while having gone through the incentive auction giving up significant parts of the TV broadcast spectrum, still face demands by wireless operators and others hungry for more spectrum to provide the many in-demand services necessary to meet the need for faster mobile services (see our articles here on C-Band redeployment and here on requests for a set aside of TV spectrum for unlicensed wireless users).  But competition from digital services may well be the biggest current issue facing broadcasters.
Continue Reading With a Change at the Top at the NAB as CEO Gordon Smith Plans His Departure – What are the Regulatory Issues That are Facing Broadcasters?

Last week, the FCC’s Enforcement Bureau issued an Advisory reminding broadcasters about their obligation to provide sponsorship identification information to their audiences whenever they receive something of value in exchange for airing any programming.  The Enforcement Bureau’s advisory was quite concise, basically just reminding broadcasters of their sponsorship identification obligations.  But the FCC also highlighted two other issues – (1) that broadcasters have an obligation to exercise reasonable diligence to make sure that any third-party program providers also include sponsorship identification when they are paid to include material in programs that they provide to the station and (2) the FCC can impose substantial fines on stations that do not live up to these obligations.

On the question of exercising reasonable diligence in insuring that program providers meet the sponsorship identification obligations, the FCC pointed to this language form Section 317(c) of the Communications Act:

The licensee of each radio station shall exercise reasonable diligence to obtain from its employees, and from other persons with whom it deals directly in connection with any program or program matter for broadcast, information to enable such licensee to make the announcement required by this section.

This means that a broadcaster needs to ask any party providing syndicated programming to a station to ensure that the rules are met.  The same obligation would apply to time brokers who place programming on the station.  The station owner needs to be sure that these programmers are aware of their obligations under the sponsorship identification rules, and that they observe those obligations.  Reminders to program providers, and review of the programs that they provide, would seem to be part of this reasonable diligence obligation.  We have previously written about this requirement – see for instance our article here.
Continue Reading FCC Issues Reminder On Sponsorship Identification Requirements – Including Obligation to Ensure Syndicated and Brokered Program Providers Comply With the Rules