Discussion of FCC, copyright, advertising and other legal issues of importance to radio and television broadcasters and other media companies
Here are some of the regulatory developments from the last 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.
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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?
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.
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The United States Supreme Court yesterday released its decision upholding the FCC’s 2017 changes to its ownership rules in the FCC v Prometheus Radio Project case (see our summary here). Those rules had been put on hold in 2019 by a decision by the Third Circuit Court of Appeals which held that the FCC had to develop a more detailed record on the impact of rule changes on minority ownership before making any such changes (see our summary of that decision here). The Supreme Court did not issue a sweeping decision evaluating the competitive landscape for the broadcast industry, nor was it expected to. Instead, the Court decision was a narrow legal one, looking at whether the decision of the FCC was entitled to traditional judicial deference to expert administrative agencies.
The Supreme Court was reviewing the legal question of whether the FCC’s 2017 review of diversity was adequately justified. In 2017, the FCC determined that that no substantial impact on diversity was proven by any party who filed comments in the media ownership proceeding and, to the extent that there was an impact, the benefits of making broadcast companies stronger competitors in today’s media marketplace outweighed that impact. The Third Circuit would have had the FCC conduct a sweeping historical analysis of the impact of past instances where the ownership rules were relaxed to see the impact on minority ownership so that the FCC could judge the likely impact of new changes to the rules. The Supreme Court found that the FCC had no obligation to conduct its own studies into that issue and, based on the evidence before the FCC, its decision to relax the rules was not an arbitrary one. Thus, it was entitled to the deference given to decisions of expert regulatory agencies (see our article here on the deference given to administrative agency decisions). In essence, this was a narrow decision based on principles of administrative law to which all nine Justices, liberal and conservative, could agree. …
Continue Reading Supreme Court Reinstates 2017 FCC Changes to Broadcast Ownership Rules Including the End to Newspaper-Broadcast Cross-Ownership Ban – But Radio Changes Yet to Come
After so much turmoil in the last year, radio stations may be inclined to blow off some steam this year with some big April Fools” Day stunt. But because of the continuing issues with the pandemic and social tensions throughout the country, a prank that may seem funny to some could trigger concerns with others. As we do every year about this time, we need to play our role as attorneys and ruin any fun that you may be planning by repeating our reminder that broadcasters need to be careful with any on-air pranks, jokes or other on-air bits prepared especially for the day. While a little fun is OK, remember that the FCC does have a rule against on-air hoaxes. Issues under this rule can arise at any time, but a broadcaster’s temptation to go over the line is probably highest on April 1.
The FCC’s rule against broadcast hoaxes, Section 73.1217, prevents stations from running any information about a “crime or catastrophe” on the air, if the broadcaster (1) knows the information to be false, (2) it is reasonably foreseeable that the broadcast of the material will cause substantial public harm and (3) public harm is in fact caused. Public harm is defined as “direct and actual damage to property or to the health or safety of the general public, or diversion of law enforcement or other public health and safety authorities from their duties.” If you air a program that fits within this definition and causes a public harm, you should expect to be fined by the FCC.…
Continue Reading Plan April Fools’ Day On-Air Stunts With Care – Remember the FCC Hoax Rule
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.
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After a long winter, spring has finally arrived and has brought with it more daylight and warmer temperatures—two occurrences that do not necessarily pair well with keeping up with broadcast regulatory dates and deadlines. Here are some of the important dates coming in April. Be sure to consult with your FCC counsel on all other important dates applicable to your own operations.
On or before April 1, radio stations in Texas (including LPFM stations) and television stations in Indiana, Kentucky, and Tennessee must file their license renewal applications through the FCC’s Licensing and Management System (LMS). Those stations must also file with the FCC a Broadcast EEO Program Report (Form 2100, Schedule 396).
Both radio and TV stations in the states listed above with April 1 renewal filing deadlines, as well as radio and TV stations in Delaware and Pennsylvania, if they are part of a station employment unit with 5 or more full-time employees (an employment unit is a station or a group of commonly controlled stations in the same market that share at least one employee), by April 1 must upload to their public file and post a link on their station website to their Annual EEO Public Inspection Report covering their hiring and employment outreach activities for the twelve months from April 1, 2020 to March 31, 2021.…
Continue Reading April Regulatory Dates for Broadcasters: License Renewal, Issues/Programs Lists, EEO, Webcasting Royalties and More
Last week, the FCC issued a hearing designation order, sending to an Administrative Law Judge the question of whether an AM station’s license renewal application should be granted. The hearing seeks to gather evidence as to whether the renewal should be granted despite the station’s record, under its current licensee, where it was operating for only 36% of the time that the licensee owned the station prior to the renewal being filed, and for only 2 days in the 9 months in 2020 after the renewal was filed. During much of the period that the station was operating, it operated at less than full power (according to the FCC, often without receiving an STA for that low power operation).
Because of these prolonged periods of silence, the FCC asks whether the licensee was really serving the public interest. For example, if a station is not operating, it cannot cover local issues or broadcast EAS warnings. Over the last several years, there have been several cases where the FCC has designated for hearing or revoked licenses of stations with records of non-operation for extended periods during a license renewal term, finding that broadcasters cannot warehouse spectrum. See our articles here and here about some recent examples. If a broadcast channel is not used by a licensee, these hearings are held to determine if the public interest might not be better served by taking the channel from its current licensee and awarding it to some other party who will make use of it.…
Continue Reading FCC Hearing Designation Order Reminds Broadcasters that Long Periods Where They are Not Operating May Lead to License Renewal Problems
Here are some of the regulatory developments of the last 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.
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Global Music Rights, one of the newest performing rights organization licensing the public performance of musical compositions, has agreed to extend its interim license with commercial radio broadcasters. That license is set to expire at the end of March (see our article here). This interim license has been offered and extended for the last several years to allow stations to perform GMR music while GMR litigates with the Radio Music Licensing Committee over whether GMR is subject to any sort of antitrust regulation of the rates that it sets (and GMR’s countersuit over whether the RMLC itself violates the antitrust rules as a buyer’s cartel, by allegedly organizing all the buyers of GMR’s music to hold out for a specific price). We wrote about that litigation here. With the pandemic, the lawsuit which should have already gone to trial is likely not going to be heard until possibly next year, as discovery in the case has been postponed until later this year.
Today, the RMLC notified radio broadcasters that GMR will again extend its interim license while the litigation plays out – but GMR wants a 20% increase in the royalties that it receives. RMLC made clear that this is not a negotiated rate – it is one that GMR has imposed with no input from RMLC. Stations should expect to hear from GMR about the extension by March 15. If they do not, stations interested in the extended license should reach out to GMR. Many stations are confused by this royalty, so we thought that we would provide some background. …
Continue Reading GMR Offers to Extend Its Interim License With Commercial Radio Stations – But It Wants a 20% Increase in Royalty Payments
