Discussion of FCC, copyright, advertising and other legal issues of importance to radio and television broadcasters and other media companies
Principal Editor: David O’Connor
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.
…
A topic not much discussed among broadcasters, but one that should be paramount in the future planning of all broadcast companies, is insuring the security of their stations and the safety of their employees. This is an issue on which all broadcasters should be focusing. Last month, the Wisconsin Broadcasters Association for the second time featured a panel at one of its conventions dealing with this topic. While many might think that security issues won’t arise at their stations, in fact it can be an issue at any station in any market. Listening to the stories told by the participants on these panels, and in later discussions with audience members at the two WBA conferences where the panel has now been featured, and judging from news reports, the topic is clearly one that all broadcasters should be considering. Video of the panel held last month is available here.
While the panel was premised on protecting journalists who often are the highest profile “faces” of a TV station, from the discussion it was clear that the need for security planning is one that applies not just to TV stations with news operations, but even to radio stations and other media outlets that can, for one reason or another, be targeted by someone with a grudge against the outlet or one of its personalities. We have seen high profile incidents like the shooting of the Roanoke TV journalists or the employees of an Annapolis newspaper, and we have seen just in the last few weeks pipe bombs sent to news organizations and threats against cable TV hosts. But, as discussed at the WBA panel, there have been many less publicized incidents. Two of the panelists discussed their experiences, one a shooting at a small community-run radio station and the second an intruder making threats and smashing station property in broad daylight at a small market TV station. These incidents, beyond simply raising questions of employee safety, raise both practical and legal issues for all broadcasters.
Continue Reading The Importance of Assessing the Safety and Security of Broadcast Stations and Their Personnel
Next Wednesday, July 25, I will be speaking at the Podcast Movement Conference in Philadelphia, as part of the Broadcasters Meet Podcasters Track, discussing legal issues that broadcasters need to consider as they move some of their content into podcasts. One of the topics that I will be discussing will be the music royalty obligations of podcasters who use music in their programs. A month ago, we wrote about how broadcasters’ streaming royalties are affected by smart speakers like the Amazon Alexa and Google Home, as these speakers play the digital streams of a radio station’s programs where SoundExchange royalties must be paid, as opposed to the over-the-air signal of the station, where no such royalties are owed. These smart speakers may have an impact on podcasters royalties, affecting who needs to be paid in connection with the use of music in podcasts.
When I initially started to write about issues of music use in podcasts, my emphasis was on the need to secure direct licenses from performers and composers (or their record companies and publishing companies) for the rights to make reproductions and distributions of music in podcasts. When digital content is downloaded, it triggers rights under copyright law implicating the reproduction and distribution rights of copyright holders (see our article here), as opposed to their public performance rights – the rights with which broadcasters are most familiar as those are the rights that they obtain when paying Performing Rights Organizations ASCAP, BMI, SESAC and GMR in connection with their over-the-air broadcasts and those PROs plus SoundExchange in connection with noninteractive digital streaming. When podcasts were something that were downloaded, just like the purchase of a download of a song from the iTunes music store, it was the reproduction and distribution rights that were triggered, and conventional wisdom was that the PROs had no role to play in the licensing of downloaded media. As technology has changed, the analysis of what rights you need to use music in podcasts may well be changing too. The direct licensing of music for your podcast is still needed – but a public performance right may well also be necessary.
Continue Reading Hey, Alexa, How Are Your Affecting My Podcasting Music Royalty Obligations?
Almost every week, we write about some legal issue that arises in digital and social media – many times talking about the traditional media company that did something that they shouldn’t have done in the online world, and ended up with some legal issues as a result. Two weeks ago, I conducted a webinar, hosted by the Michigan Association of Broadcasters and co-sponsored by over 20 other state broadcast associations, where I tried to highlight some of the many legal issues that can be traps for the unwary. Issues we discussed included copyright and trademark issues, a reminder about the FTC sponsorship identification rules for online media, FCC captioning obligations, privacy implications, as well as discussions about the patent issues that have arisen with the use of software and hardware that makes the digital transmission of content possible. Slides from that presentation are available here and, for the full webinar, a YouTube video of the entire presentation is available below which can be reviewed when you have some spare time over this upcoming holiday or at any other time that you want to catch up on your legal obligations.
Some of the specific issues that we talked about are familiar to readers of this blog. We discussed the many issues with taking photographs and other content found on the Internet and repurposing them to your own website without getting permission from the content’s creator (see our articles here and here). Similar issues have arisen when TV stations have taken YouTube videos and played them on their TV stations without getting permission from the creator. Music issues arise all the time, especially in producing online videos and creating digital content like podcasts, as your usual music licenses from ASCAP, BMI, SESAC, GMR and SoundExchange don’t cover the reproduction and distribution rights involved when content is copied or downloaded rather than live-streamed (see our article here). The presentation also cautioned companies to be careful about trying to rely on “fair use” as there are no hard and fast rules on when a use of copyrighted materials without permission is in fact fair (see our articles here and here on that subject).
Similarly, there are many other potential pitfalls for digital media companies. We’ve written about some of the FTC rules on requiring sponsorship identification on sponsored digital content – even tweets and Facebook posts (see our articles here and here). Plus, there are always issues about privacy and security of personal information that sites collect – and particularly strict rules for content directed to children. And, as many stations found out when a company asserted patent infringement claims about digital music storage systems used by most radio stations (see our articles here and here), patent issues can also arise in connection with any companies use of digital media.
Continue Reading Legal Issues in Digital and Social Media – Identifying the Landmines for Broadcasters and Other Media Companies – A Video Webinar
The protection of brands, slogans, positioning statements and program titles must be a high priority of any electronic media company. These assets establish the identity of any broadcaster, webcaster or other media company. Media companies need to protect these assets through the rights accorded by trademark law. We have been running a series of articles…
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…
There are so many legal issues that facing broadcasters that it is sometimes difficult to keep up with them all. This Blog and many other activities that those at my firm engage in are meant to help our clients and other broadcasters keep up to date on all of the many regulatory challenges with which…
Yesterday marked the 10th anniversary of my first post welcoming readers to this Blog. I’d like to thank all of you who read the blog, and the many of you who have had nice words to say about its contents over the years. In the ten years that the blog has been active, our audience has grown dramatically. In fact, I’m amazed by all the different groups of readers – broadcasters and employees of digital media companies, attorneys and members of the financial community, journalists, regulators and even students and teachers. The blog was recently profiled on Lexblog Leaders, relaying some of the stories about readers that I have discovered, and I have many more such stories. Because of all the encouragement that I have received, I’ve keep going, hopefully providing you all with some valuable information along the way.
I want to thank those who have supported me in being able to bring this blog to you. My old firm, Davis Wright Tremaine LLP helped me get this started (and graciously allowed me to take the blog with me when I moved to my current firm four years ago). My new firm, Wilkinson Barker Knauer LLP, has also been very supportive, and I particularly want to thanks several attorneys at the firm (especially Rosemary Harold, David O’Connor and Kelly Donohue) who help catch, on short notice, my typos and slips in analysis for articles that I usually get around to finishing shortly before my publishing deadline. I’ve also published a number of articles written by my colleagues, and I hope that they will continue with their valuable contributions in the future. Thanks, also, to my friendly competitors at the other law firms that have taken up publishing blogs on communications and media legal issues since I launched mine – you all do a great job with your own take on the issues, and you inspire me to try to keep up with you all.
Continue Reading It’s Our Anniversary – A Decade of the Broadcast Law Blog
What legal issues should a broadcaster be concerned about when expanding its use of digital media? Two weeks ago, I did a presentation for the CBI National Student Electronic Media Conference on issues for college broadcasters who are using digital media. While this presentation was made to college broadcasters, most of the issues discussed…
In a decision released last Friday, the FCC made clear how far it is willing to go in extending to noncommercial stations leniency for fines for violations of its rules. As we have written before, the FCC changed its policy in a case in which we were involved so as to mitigate harsh penalties for first-time paperwork violations when those violations were by student-run college radio stations. So, if a noncommercial student-run station is found to have missed several years of Quarterly Issues Programs Lists or failed to timely file Biennial Ownership Reports, instead of a fine that would exceed $10,000 had a commercial broadcaster committed the same violations, the noncommercial licensee will usually be able to reach a consent decree with the FCC, reducing the fine to something like $1000 or $1500, but also including a plan to ensure compliance in the future and a requirement for periodic reports to the FCC on the success of that plan. But the FCC made clear that this policy applied only to paperwork violations, and technical operations of the station would not be covered. In a decision released on Friday, the FCC demonstrated that for technical violations, and violations that go beyond your typical paperwork issues, those fines will be higher.
In Friday’s decision, the licensee of an Atlantic City noncommercial radio station filed its license application four years late, long after the station’s license had expired. Thus, for that period, it had been operating without a license. In addition, it had not prepared Quarterly Issues Programs Lists for the entire prior license term and the current one, did not file any Biennial Ownership Reports. Finally, the station had been operating with an antenna that was more than 2 meters below where its license said that it was supposed to be. While the FCC reached a settlement with the licensee, it broke out the “civil penalty” (i.e. a fine) paid by the licensee into two parts. For the missing ownership reports and Quarterly Issues Programs lists, a penalty of $1500 was imposed for violations that would probably have cost a commercial operator many multiples of that amount (see, e.g. our article here about a $10,000 fine for a commercial operator missing Quarterly Issues Programs Lists). But the FCC also asked for an additional $4750 for the late-filed license renewal and the antenna that was several feet below where it was supposed to be. While these might also be less than what a commercial broadcaster would pay for similar violations (see fines issued today, here, here and here, of $1500 each to three broadcasters who filed renewal applications late, but still within the period before their prior licenses had expired, noting that the typical fine for such a violation was $3000, but reducing that amount because of a clean record in the past or inability to pay a higher amount), they do demonstrate that the Commission’s willingness to negotiate minimal penalties for noncommercial broadcasters does have its limits.
Continue Reading The Limits on FCC Leniency on Fines for Noncommercial Broadcast Stations
