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This week, the appointment of Commissioner Ajit Pai as Chairman of the FCC became official.  Since his appointment on Monday, he has released a list of acting bureau chiefs at the FCC (here), including naming Michelle Carey, a long-time FCC employee, as Acting Chief of the Media Bureau upon the departure of Bill…

The FCC yesterday released its tentative agenda for its January meeting, to be held on January 31. This will be the first meeting of the post-Chairman Wheeler era, and the two Republican commissioners will be in the majority for the first time in 8 years. There is a single item on the tentative agenda…

At the beginning of each year, we publish our broadcaster’s calendar of important dates – setting out the many dates for which broadcasters should be on alert as this year progresses.  The Broadcasters Calendar for 2017 is available here.  The dates set out on the calendar include FCC filing deadlines and dates by which…

The FCC yesterday issued a Public Notice of the filing of a Petition for Rulemaking asking the FCC to declare that a broadcaster, by using its own airwaves and online sources to publicize job openings at its station, satisfies the requirement that a broadcaster widely disseminate information about job openings to members of all groups within its likely recruiting area. In 2002, when the FCC adopted its current EEO rules, it determined that online recruiting would not widely disseminate information about job openings in the way that a local newspaper would given the digital divide that the FCC thought existed at that time. But, the FCC said that it would later revisit that decision as circumstances change. The petition suggests that circumstances have indeed changed in the 14 years since the rules were adopted, that online recruiting is how people now find and apply for new jobs, and that it is time that the FCC recognize that fact and allow online recruiting to satisfy the obligation that a broadcaster give its community notice of job openings. Comments are due January 30, and replies on February 14.

The FCC has up to this point actively enforced its prohibition on station’s relying solely on its own airwaves and online sources for recruiting purposes, fining stations who meet their wide dissemination obligations solely by relying on such sources (see our articles about such cases here and here). But some at the FCC itself have recognized that this position no longer makes sense – including Commissioner O’Rielly who, in a blog post we wrote about here, suggested that broadcast recruiting in today’s world is appropriately done online, and that the FCC’s rules should reflect that fact. As set out in the Petition, Julius Genachowski, then-chairman of the FCC, recognized in a speech that: “In today’s world, you need broadband to find a job and apply for a job, because companies increasingly require online applications.” The petition notes that the FCC has recognized that the Internet is fine for public files and contest rules, so shouldn’t it also be found to be sufficient to get out the word about job openings?
Continue Reading Should Online Recruiting Satisfy the FCC’s EEO Requirements for Wide Dissemination of Job Openings? – Comments Requested on Petition Saying that it Does

After months of speculation, Chairman Wheeler today announced that he will step down from the FCC on Inauguration Day. Together with the Senate not confirming the renomination of Commissioner Rosenworcel (as the Senate is effectively on recess and not expected to return before the end of the term, her renomination will almost certainly not be approved in this session of Congress, meaning that she must step down when the Congress adjourns on January 3), that leaves three Commissioners on the FCC. Two are the current Republican commissioners – Pai and O’Rielly – and Democratic Commissioner Mignon Clyburn. What will that mean for broadcasters?

First, it is expected that one of the two Republicans will be named as Acting Chairman to set the agenda for the first few months of the Trump administration, until a permanent Chair is announced (and confirmed by the Senate, if that Chair is not one of the two current Republicans). These commissioners have been vocal in their dissents on several big issues for broadcasters – including the repeal of the UHF discount (about which we wrote earlier this week) and on other issues dealing with the ownership of television stations – including the decision to not repeal the newspaper-broadcast cross-ownership rules, and the decision to reinstate the FCC’s ban on Joint Sales Agreements in TV unless they are done between stations that can be co-owned. We already speculated about these issues being on the Republican agenda soon after the election. What other issues are likely to be considered?
Continue Reading And Then There Were Three – Chairman Wheeler to Step Down on Inauguration Day Leaving a Republican-Controlled FCC – What’s It Mean for Broadcasters?

Just a few weeks ago, we wrote about the Radio Music License Committee (RMLC) filing a lawsuit against Global Music Rights (GMR) alleging that GMR was violating the antitrust laws by offering an all or nothing blanket license for rights to play the songs written by certain songwriters now represented by this new performing rights organization. RMLC was seeking to impose some oversight over the rates being charged for GMR royalties. This would be similar to the controls over the rates of ASCAP, BMI and SESAC, whose rates can only be imposed following an agreement with a copyright holder or, where there is no voluntary agreement, by a determination by a court (for ASCAP and BMI) or an arbitration panel (for SESAC) that the new rates are reasonable. Now, GMR has filed its own lawsuit against RMLC (though it claims that its suit is unrelated to the one that RMLC filed against it) alleging that it is RMLC that is violating the antitrust laws (and certain California statutes) by forming a “cartel” of buyers, i.e. commercial radio stations who are refusing to deal with GMR individually but instead are looking to RMLC for the negotiation of a license agreement that will cover the entire industry. What are the issues presented by this dueling litigation?

The RMLC suit is premised on the concept that any time multiple products from independent marketplace competitors (in this case the songs of multiple songwriters) are packaged together and sold at an all or nothing price, there is the potential for obtaining prices higher than would be obtained on the open market. For example, while a contemporary hits formatted radio station could potentially decide that the price of Adele songs are too high and pull those songs from its playlists, it is not able to do so if that song is bundled with songs written by Pharrell Williams, Bruno Mars, Beyoncé, Kanye West, Brittany Spears and Katie Perry (all of whom are listed on the GMR website as being part of its repertoire) so that the radio station either takes all the songs from all of those writers or none at all. While it might be able to get away with not playing one or two of these artists, if it has to pull them all, listeners will notice. If the station wants to keep playing in the format that it has selected, it has to pay the bundled rights fee asked by the representative performing rights organization.
Continue Reading GMR Sues RMLC – Claims Antitrust Violations for Negotiating Royalties on Behalf of the Radio Industry – What Are the Implications?

November is one of those few months where there is a very light load of routine regulatory filings for broadcasters.  This is a month with no routine FCC ownership or children’s television reports.  There are no routine EEO reports for the public file, and no other FCC regularly-scheduled deadlines.

Of course, there are several other dates that broadcasters need to be aware of.  October 31 is the end of the FM translator window to move translators up to 250 miles to serve AM stations – so November 1 will likely bring lessened demand for any translator that did not find a new AM home during the window that has been open to various groups of AM stations since January. Those looking for translators to operate with FM stations may find opportunities now less expensive, but harder to move, so opportunities will be limited to stations near to areas where the translators already are located.

Once the FCC’s Broadcast Incentive Auction for television has concluded, the FCC will announce two windows for new FM translators.  These windows (the first for Class C and D AM stations only, and the second for Class A and B AM stations) will only be open to AM licensees that did not participate in the 2016 windows.  See our article here for more information. 
Continue Reading November Regulatory Dates For Broadcasters – Incentive Auction, EAS, Political and More

Once you have identified your marks and sought protection through registration for some or all of them, there are still going to be other issues that you will need to consider. Trademark owners have an obligation to police their marks and take steps to stop infringers. Otherwise, they may run the risk that someone else will profit off their marks or tarnish the reputation they have developed for those marks. In extreme cases, the failure to police one’s marks may result in losing them entirely. The biggest issues in trademark protection today arise from the use of trademarks on the Internet. In this blog, we identify some situations that you may encounter or want to think about.

Also, note that we have set a date for our free webinar – please join us on November 15th at 1pm Eastern Time for a live overview of the many issues we have discussed in this series. You can register here.

Cybersquatting

You undoubtedly have one or more websites to promote your services, to interact with your listeners or viewers or to make video or audio available for online viewing or listening. You have spent a fair amount of time and money promoting your sites. Then, you learn that someone else has registered and is using a domain name that is confusingly similar to your domain name or one of your trademarks to attract traffic to their site. There are numerous ways that these cybersquatters can register a variation on your domain name or mark: adding (or dropping) a hyphen, adding a generic term, misspelling a word, omitting a letter, and replacing the letter “o” with a “zero” or the letter “l” with a “one” are some of the most common.
Continue Reading Trademark Basics, Part Five: Trademarks on the Internet

Each quarter, my partner David O’Connor and I update a list of the legal and regulatory issues facing TV broadcasters. That list of issues is published by TVNewsCheck and is available on their website, here. This update was published today, and provides a summary of the status of legal and regulatory issues ranging…

Earlier this week, our friends at the broadcast and digital media consulting and research firm Jacobs Media posted an article on their blog called “What Could Possibly Go Wrong,” dealing with the financial and reputational issues that can arise if a contest is not fully thought out. That article reminded me of all of the legal issues that we have written about over the years that can arise if all of the issues with a broadcast contest are not carefully considered. Those potential issues range from the an FCC fine if the contest is not conducted as advertised, to the threat of civil liability if the contest results in an injury to a contestant or observer. I thought that I would highlight some of the articles that we have written in the past to remind broadcasters of those potential liabilities.

On the FCC side, the FCC has always been a stickler on the rules, requiring that broadcasters, when conducting their own on-air contests, announce the rules of those contests and to follow those rules as announced. While that burden has become somewhat lighter in the last year as the FCC has allowed stations to publicize the material rules of a contest on a station’s website rather than having to announce them on the air (as long as the on-line location of those rules is itself publicized sufficiently on air, see our post here), that rule change has not affected the underlying obligation of a broadcaster to conduct the contest as announced, in accordance with the contest’s announced rules.
Continue Reading What Could Possibly Go Wrong With a Broadcast Contest? – From the Legal Side