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With tomorrow’s FCC meeting to detail dates and procedures for the TV incentive auction dominating the headlines, there are other August regulatory dates that should not be overlooked. While we never can get to all of the relevant dates in our monthly highlight article, here are a few items worth your consideration. For one, we will soon be seeing details for submitting the regulatory fees that are due from all commercial broadcasters (and most other commercial entities regulated by the FCC) before the end of September. Last year, that notice came out right at the end of the month – immediately before the Labor Day weekend, somewhat later than in past years (see our article here). So be on the alert for that notice, to allow you to be ready to pay those mandatory fees before the applicable deadline.

Already, by the first of the month, commercial and noncommercial full-power and Class A television stations and all radio stations in California, Illinois, North Carolina, South Carolina, and Wisconsin that are part of an employment units with 5 or more full-time employees should have put into their public inspection files their annual EEO Public Inspection File Report, and posted those reports online so that they are accessible to visitors to their station websites. As part of the Mid-Term EEO reporting process we wrote about here, radio stations in the Carolina’s that are part of employment groups with 11 or more full-time employees should have also filed their Form 397 EEO Reports with the FCC by August 3. Noncommercial television stations in Illinois and Wisconsin should also have submitted their Biennial Ownership Reports by August 3, as should have noncommercial radio operators in both North and South Carolina and California. Details on all of these standard regulatory deadlines are available in our Broadcaster’s Regulatory Calendar, here.
Continue Reading August Regulatory Dates for Broadcasters – While Incentive Auction Dominates the News, Other Dates to Watch

Over-the-top video systems, using the Internet to transmit over-the-air TV signals to consumers, are back in the news. Last week, a US District Court Judge in the Central District of California, in a case involving FilmOnX, an Aereo-like service that had been involved in many of the court decisions that had preceded the Supreme Court’s Aereo decision, suggested that such platforms can get that public performance right through the statutory license provided by Section 111 of the Copyright Act – the same section of the Act that allows cable systems to retransmit broadcast signals without getting permission from every copyright holder of every program broadcast on those stations. Just last year, we were writing about the Supreme Court decision in the Aereo case, where the Court determined that a company could not use an Internet-based platform to stream the signals of over-the-air television stations within their own markets without first getting public performance rights from the stations themselves. The new decision raises the potential of a new way for these Internet services to try to get the rights to rebroadcast TV signals.

The FilmOn decision was on a motion for summary decision, and is a very tentative decision – the Judge recognizing that he was weighing in on a very sensitive subject, going where both the FCC and the Copyright Office have thus far feared to tread, and disagreeing with the Second Circuit Court of Appeals that had held the opposite several years ago in the Ivi decision. The FilmOn decision is a preliminary one – subject to further argument before the Judge at the end of the month. Even if adopted as written, the judge recognized the potential impact of his decision, and the fact that it contradicted Ivi and other decisions. Thus, the decision stated that its effect would be stayed pending an immediate appeal to the Ninth Circuit Court of Appeals. So, even if finalized, we have not seen the last of this argument yet.
Continue Reading A Compulsory License for Internet TV Platforms to Retransmit Broadcast TV? One US District Court Considering FilmOnX Seems to Think So

The FCC issued a public notice seeking comment on a Petition for Rulemaking filed by cable operator Mediacom asking for the FCC to require TV stations, in their license renewal applications, to certify that the licensee will not block any multichannel video programming distributor (i.e. cable or satellite TV) from carrying the signal of the station at the end of a retransmission consent agreement unless the station is accessible over-the-air or by Internet streams to at least 90% of the homes in the market served by the MVPD. Comments on this Petition are due by August 14. This is an initial Petition for Rulemaking (which can be viewed here), so these comments will inform the FCC as to whether to further pursue the proposals made in the Petition through a formal Notice of Proposed Rulemaking which would be needed before a rule change.

Obviously, this petition raises controversial issues. Mediacom asserts that it is looking after the interests of consumers in being able to access television programming – and not losing that access during retransmission consent negotiations. Broadcasters, on the other hand, feel that the ability to remove their signal from an MVPD is their most effective bargaining chip in retransmission consent negotiations. Broadcasters will no doubt argue that they have the rights to their programming and, if the MVPD will not agree to terms for its carriage, the MVPD should no longer have the right to carry the programming.
Continue Reading FCC Asks for Comments on Petition for Rulemaking that Would Tie TV License Renewals to Restrictions on Blackouts after the Expiration of Retransmission Consent Agreements

May is one of those months where there are no routine, recurring FCC regulatory filing deadlines – no EEO reports or Quarterly Issues Programs lists, no Children’s Television Programming Reports or noncommercial station ownership report deadlines. But, as with any month, that does not mean that there are no dates of concern for broadcasters – as there are certain compliance deadlines and other important dates of which broadcasters need to be aware in the upcoming month. Here is our summary of some of the dates that broadcasters should be watching in the upcoming month.

The only thing approaching a routine regulatory date of note is the obligation of TV stations in Delaware and Pennsylvania to air the third and fourth of their required six post-filing announcements of the filing of their renewal applications – the last of the renewal applications for either radio or TV that were filed in this renewal cycle. The next routine license renewal filing window will be when radio renewals being again in June of 2019 – with the filing of radio license renewals by stations in Maryland, Virginia, West Virginia and DC. However, as we have written before, EEO Mid-Term reports are due from larger radio station groups in these 3 states and in DC on June 1 of this year. So radio station employment units (commonly controlled station groups serving the same area and having at least one common employee) with 11 or more full-time (30 hours per week) employees should be preparing to file those reports on FCC Form 397 by June 1.
Continue Reading May Regulatory Dates for Broadcasters – Including EEO Mid-Term Reports, FM Auction, Emergency Communications Compliance, TV Market Modification Comments, Class A TV Digital Conversion Deadline and More

The FCC has extended the Reply Comment deadline in its proceeding looking at whether to apply some or all of the regulations applicable to multichannel video programming distributors (MVPDs – cable and satellite TV) to over-the-top video providers who provide multiple channels of video programming in a linear fashion (i.e. like a cable system, with…

The FCC has finally had published in the Federal Register its Notice of Proposed Rulemaking proposing to extend the online public file obligations to radio, satellite radio, cable operators and satellite TV providers. This publication starts the countdown to the filing deadline for the comments in the proceeding. Comments are due by March 16…

The FCC yesterday released a public notice extending the comment dates in their proceeding to regulate Online (or “over-the-top”) Video, particularly Internet video providers who provide multiple channels of linear video programming (programming streamed at the same time to all viewers, as opposed to on-demand video like that provided by Netflix or Amazon), in the …

As in any month, February has many impending deadlines for broadcasters and media companies – many routine regulatory obligations as well as some that are specific to certain proceedings.  First, let’s look at some of the routine filing deadlines.  On February 2, license renewal applications in the second-to-last filing window of this renewal cycle are due to be submitted to the FCC by TV stations in New York and New Jersey.  The last TV stations to have to file in a regular renewal cycle will be due on April 1, for those TV stations in Pennsylvania and Delaware.  After these stations complete their renewal filings, it will be another 5 years before another set of routine license renewals are to be filed.  Stations in Pennsylvania and Delaware should be broadcasting their pre-filing announcements on February 1 and February 16 (and there are also post-filing announcements that need to be run by the New York and New Jersey stations, as well as those in New England that filed their applications by December 1). 

Radio and TV stations in New York and New Jersey, as well as in Arkansas, Kansas, Louisiana, Mississippi, Nebraska and Oklahoma, should be placing EEO Annual Public File Reports in their public files (online for TV and paper for radio, with links to the reports on their websites) by February 1 if they are part of an employment unit with 5 or more full-time employees.  By February 2, noncommercial TV stations in Arkansas, Louisiana, Mississippi, New Jersey, and New York should file with the FCC their Biennial Ownership Reports, and noncommercial radio stations in Kansas, Nebraska, and Oklahoma should be filing those same reports on February 2.  Commercial radio and TV stations in the entire country will be filing their Biennial Reports in December of this year.  A guide to many of the regular FCC filing deadlines can be found in our Broadcasters Calendar available here.
Continue Reading February Regulatory Dates for Broadcasters – TV Renewals, EEO Reports, Lots of TV Incentive Auction Activity, OTT MVPD and Contest Comments, and Last-Minute January Deadlines for Webcasting

Last week, the Copyright Royalty Board asked for comments on a proposed settlement agreement between Sirius XM and SoundExchange, and some articles about that announcement have not been entirely clear about what the deal covers.  It has nothing to do with webcasting royalties for 2016-2020, which are still being litigated (see our article here about the proposals of the parties in that case).  Nor does it have to do with the royalties payable for Sirius’ primary satellite radio service, which were just upheld by the Court of Appeals (see our article here).  Instead, these royalties have to do with a very narrow part of Sirius’ business – providing music channels packaged and sold to consumers along with video services like cable and satellite TV.

Some who closely follow these issues (and the coverage of CRB issues on this blog) may think that the rates for these services were set at the same time as the Sirius rates for their satellite music service, as the CRB at that time set the rates that were applicable to Music Choice, which also offers a music service bundled with cable or satellite video programming (see our articles on the recent decision on the appeal of the rates, and the article on the CRB decision itself here).  Even though Music Choice offers pretty much the same service, their rates are different – as Music Choice was classified as a “preexisting subscription service” in the Digital Millennium Copyright Act, while the service that Sirius provides is classified as a “new subscription service” paying at a different royalty rate set by the CRB using a different royalty standard.  How did this happen?
Continue Reading Copyright Royalty Board Announces Settlement between Sirius and SoundExchange for New Subscription Services Packaged with Cable and Satellite Video – How Different Royalty Standards Result in Different Royalty Rates

Who says that the Internet is not regulated?  Whether to treat Internet video providers by the same rules that apply to cable and direct broadcast satellite systems is the subject of a Notice of Proposed Rulemaking released by the FCC just before Christmas, notice of which was published in the Federal Register today, setting the comment dates on the proposal.  Comments are due by February 17, and replies by March 2.  This proceeding could have a substantial impact on Internet video providers – potentially extending FCC jurisdiction to a whole host of services not currently subject to its rules, and potentially subjecting Internet video services to all sorts of rules that apply to traditional MVPDs (multichannel video programming distributors), including the FCC’s EEO rules, captioning rules and CALM Act compliance.  Even the political broadcasting rules, which the FCC notes in the NPRM only specifically apply to cable and direct broadcast satellite rather than to MVPDs generally, could potentially be looked at in the future for these services should they come under FCC jurisdiction.  At the same time, the rules could also have an impact on program suppliers and broadcast networks, as various rules dealing with access to cable and broadcast programming could extend to Internet video providers, potentially conflicting with existing contractual obligations and even the Copyright Act.  What are some of the specific issues being considered?

The issues raised in the Notice are many – including the very fundamental one as to whether the FCC even has the authority to include Internet delivered video (what the FCC refers to as Over the Top or OTT providers) under the rules for MVPDs.  While the general definition of MVPD would seem to cover Internet video (as it covers anyone who makes multiple channels of video programming available for purchase by subscribers), it is not that simple.  As with any Federal law, one can’t just stop the analysis with a quick read of the statute.  The statute, in at least one place, defines a “channel” as a portion of the electromagnetic spectrum capable of delivering a TV channel.  And the FCC has defined a TV channel as one comparable to what is delivered by broadcast TV.  It’s that reference to “electromagnetic spectrum” that has tripped up previous services seeking an expansion of the MVPD definition.  In the case of Internet-delivered service called Sky Angel, the FCC staff 5 years ago determined that, as it was not a facilities based system – it did not control that electromagnetic spectrum on which its programming was delivered – it could not be an MVPD.  The full Commission sought comments on the staff decision then (see our article on that request for comments on Sky Angel here and here,) and, with the recent Aereo decision (see our articles here and here) and its aftermath, and the seemingly daily announcement of new online video service offerings from everyone from CBS to HBO to Dish and Disney, the FCC seems now ready to move with this expansion of its authority to cover video on the Internet.  Because of the potential for very similar video services to have very different regulatory burdens (cable and satellite could be subject to all the FCC MVPD rules, while the same programming, delivered by an Internet service, might have none of those obligations under the current regulatory interpretations), the majority of the FCC want to move forward with this proposal.  But it asks for comments on whether it really has the authority to do so. 
Continue Reading FCC Regulation of Internet Video? – Dates Set for Comments on Treating Over-the-Top Video Providers like Cable and Satellite TV