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In recent weeks, some of the radio trade magazines have been carrying coverage of the litigation between the Radio Music License Committee (RMLC) and ASCAP and BMI over the rates that will be paid by commercial radio broadcasters for the public performance of musical compositions that are licensed through these Performing Rights Organizations (PROs).   Negotiations over royalty rates are not new nor is the occasional litigation over those royalties However, because of changes in the law governing these processes, the arguments raised this year  are different and raise important new questions about what could be the first steps toward an entirely different, and perhaps fairer, process for resolving the royalties that broadcasters (and others) pay for the use of music.

What is different, and what are the arguments being made?  RMLC is arguing that the US District Court that oversees the antitrust consent decrees that govern ASCAP and BMI should consolidate the proceedings to determine the rates that broadcasters will pay, rather than considering those rates in separate proceedings.  If parties cannot agree with ASCAP and BMI as to the rates to be charged for the use of music for a particular purpose, a judge from the US District Court in the Southern District of New York conducts a proceeding as a “rate court” to determine a reasonable royalty rate, much as the Copyright Royalty Board does in establishing SoundExchange royalties for the digital public performance of sound recordings.  Because both the ASCAP and BMI agreements with the commercial radio industry have expired, proceedings are underway to determine the rates that radio will pay to these organizations. Continue Reading RMLC Requests Consolidation of ASCAP and BMI Proceeding on Radio Music Royalties – A Step Toward a Unified Process for Resolving All Music Royalty Issues? 

  • The FCC released its Report and Order setting the annual regulatory fees that broadcasters must pay for 2023. The Order
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  • FEMA and the FCC announced that this year’s Nationwide EAS Test is scheduled for October 4, 2023 (with a back-up
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FEMA and the FCC announced that this year’s Nationwide EAS Test is scheduled for October 4, 2023 (with a back-up date of October 11 in case there is a real or threatened event that occurs around October 4).  FEMA will transmit the nationwide test of the EAS at 2:20 pm EDT on October 4, 2023 using the Integrated Public Alert and Warning System (IPAWS), the Internet-delivered warning system that has been required for broadcasters for about a dozen years. The test will be disseminated in English and Spanish as a Common Alerting Protocol (CAP) message using the Nationwide Test of the Emergency Alert System (NPT) code.  FEMA issued a Release announcing the test.  The FCC issued a much more extensive Public Notice which includes a list of recommended steps that broadcasters should take to prepare for the alert, and a reminder for broadcasters to be sure that their information in the EAS Test Reporting System (ETRS) is accurate and up-to-date. 

While the steps recommended by the FCC to prepare for the test are all somewhat obvious, they should still be reviewed by broadcasters to make sure that they have not overlooked anything that can enhance their preparation for the test.  Among the recommendations from the FCC are that the broadcaster review their role in their state’s EAS plan, and make sure that their equipment and software has been updated to the most current versions. The FCC also suggests making sure the EAS clock on station EAS equipment is synchronized with the official time used by the National Institute of Standards and Technology which is used by the IPAWS system.  Having an accessible EAS Official Handbook and reviewing the handbook for instructions on the operation of the EAS system is also on the FCC’s list.Continue Reading Nationwide EAS Test Set for October 4 – Start Your Preparations Now

August may be a light month for regulatory dates, as everyone enjoys the end of the summer with many, including Congress, taking the last of their summer vacations.  But there are still dates to which broadcasters should be paying attention.  One that most commercial broadcasters should be anticipating is the order that will set the amount of their Annual Regulatory Fees, to be paid sometime in September before the October 1 start of the federal government’s new fiscal year.  Sometime in August (or possibly in the first days of September), the FCC will make a final determination on the amount of the fees, and then announce the deadlines for the payment of the fees.  As we wrote here, the FCC has proposed to decrease fees for broadcasters from the amounts paid in prior years, but there have been some comments filed in opposition to that proposal. An Order concerning regulatory fees is currently on circulation among FCC Commissioners, so watch for the FCC decision making a final determination on those fees.

August has other routine regulatory deadlines.   August 1 is the deadline for Radio and Television Station Employment Units in California, Illinois, North Carolina, South Carolina, and Wisconsin with 5 or more full-time employees to upload to their online public inspection file their Annual EEO Public File Report. A station employment unit is a station or cluster of commonly controlled stations serving the same general geographic area having at least one common employee.  For employment units with 5 or more full-time employees, the annual report covers hiring and employment outreach activities for the prior year.  A link to the uploaded report must also be included on the home page of each station’s website, if the station has a website. Continue Reading August Regulatory Dates for Broadcasters:  Reg Fee Order, EEO filings, HD Power Increase Proposal, and More

  • Around this time of year, the FCC typically issues a Public Notice reminding TV broadcasters, cable operators, satellite television services,
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  • Chairwoman Rosenworcel announced that the FCC, at its open meeting on July 20, intends to allow 13 “Franken FM” or
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July is relatively light on broadcast regulatory dates, but the Quarterly Issues/Programs List deadline on July 10 is one that applies to all full-power broadcasters and Class A TV stations.  As set forth below, there are a few other dates worth noting this coming month – with more to come in August.

July 10 is the deadline by which all full-power television, full-power radio and Class A television stations must upload to their online public inspection files their Quarterly Issues/Program Lists for the second quarter of 2023.  The lists should identify the issues of importance to the station’s community and the programs that the station aired in April, May and June that addressed those issues.  As you finalize your lists, do so carefully and accurately, as they are the only official records of how your station is serving the public and addressing the needs and interests of its community.  See our article here for more on the importance of the Quarterly Issues/Programs list obligation.

July 10 is also the deadline by which noncommercial educational stations must upload to their public inspection files documentation of any on-air fundraising benefitting third parties that interrupted their normal programming from April 1 through June 30, 2023.  This obligation applies to noncommercial educational stations not affiliated with NPR or PBS that conducted such third-party on-air fundraising.  For more information about this requirement, see our article here.  Also on July 10, Class A television stations should upload to their online public file documentation of their continuing eligibility for Class A status during the period from April 1 through June 30, 2023.

Chairwoman Rosenworcel announced that the FCC, at its open meeting on July 20, intends to announce its decision resolving whether it will continue to allow “Franken FM” or “FM6 stations,” (i.e., LPTV stations operating on TV channel 6 with an analog audio service that can be received on FM radios at 87.7 MHz) to provide their existing analog radio service by authorizing it as an “ancillary or supplementary service.”  LPTV operators had asked the FCC to bless the post-conversion operation of an analog audio signal embedded in the digital Channel 6 LPTV station transmissions so that these FM broadcasts can continue, which the FCC has tentatively decided to do with respect to 13 LPTV stations that had provided such service in the past.  For more details on this item, see our blog article here

July 31 is the deadline by which commercial television stations with locally-produced programming whose signals were carried as distant signals by at least one cable or satellite system in 2022 may file royalty claims for compensation with the Copyright Office in Washington, DC.  Cable and satellite systems are obligated to pay these royalties pursuant to their compulsory copyright license to carry distant TV signals on their systems. Stations that do not file claims by the July 31 deadline will not be able to collect royalties for distant carriage of their signals during 2022.  The filing process consists of two-steps: (1) if you did not do so last year, you must register through the Copyright Royalty Boards’s eCRB system and then (2) file your claim electronically through eCRB by July 31, 2023.  

The Commission recently issued a Public Notice announcing that it is taking comments on a Petition for Rulemaking filed by REC Networks in which REC proposes rules to govern a possible future FM translator filing window.  Among REC’s proposals are a limit on applications by any one applicant and limits on the sale of any construction permits that are granted in any new filing window.  Comments on the REC Petition are due on July 26, 2023 and will give the FCC the opportunity to decide whether to further advance these proposals through a formal rulemaking process. 

The FCC has published its All-In Pricing for Cable and Satellite Television Service Notice of Proposed Rulemaking (NPRM).  Comments are due July 31, and replies are due August 29.  The NPRM proposes to require cable operators and direct broadcast satellite (DBS) providers to specify the “all-in” price for video service in their promotional materials and on subscribers’ bills.  Cable operators and DBS providers would be able to complement the aggregate line item with an itemized explanation of the elements that compose that single line item. 

Looking forward to early August, August 1 is the deadline for Radio and Television Station Employment Units in California, Illinois, North Carolina, South Carolina, and Wisconsin with 5 or more full-time employees to upload to their online public inspection file their Annual EEO Public File Report. A station employment unit is a station or cluster of commonly controlled stations serving the same general geographic area having at least one common employee.  For employment units with 5 or more full-time employees, the annual report covers hiring and employment outreach activities for the prior year.  A link to the uploaded report must also be included on the home page of a station’s website, if it has a website. 

For those radio employment units in North Carolina and South Carolina, the Annual EEO Public File Report brings a new requirement, as this is the mid-point of those stations’ renewal term.  As we wrote here, this means that the FCC will conduct its EEO Mid-Term Review of those radio employment units with 11 or more full-time employees.  When radio stations in these states upload their Annual EEO Public File Reports, they must also check a new checkbox in the Settings section of the FCC-hosted public inspection file stating whether or not they have 11 or more full-time employees in their employment unit, so the FCC knows which clusters to review as part of the Mid-Term Review.  All other radio groups will need to complete this step as well prior to their Mid-Term Review.

As always, this list of dates is not exhaustive.  Note, too, that deadlines can change.  Always review these dates with your legal and technical advisors, and note other dates not listed here that may be relevant to your operations. Continue Reading July Regulatory Dates for Broadcasters – Quarterly Issues/Programs Lists, Franken FMs, Copyright Distant Signal Copyright Claims, and More