Last week was a busy one for the FCC, with decisions or proposals on a number of issues that can affect broadcasters, including changes to the EAS rules and proposals for the expansion of video description – the requirements that TV stations carry a certain amount of programming that is accompanied by audio descriptions to explain the visual action to TV station viewers who are blind or otherwise visually impaired. Today, we’ll look at the proposals for expanding the required amount of “video description” required by TV stations.

Under current FCC rules, television stations affiliated with ABC, CBS, Fox and NBC and which are located in the Top 60 US TV markets must carry a minimum of 50 hours of video programming per quarter that is described by accompanying audio descriptions of the on-air visual action. These descriptions are usually broadcast on the station’s secondary audio programming (“SAP”) channel, often used for foreign language translations of programming. These SAP channels are also used for the required audio transmission of video alert warnings that occur outside of news programs (see our article about that requirement for emergency information, like video crawls during entertainment programming, to be translated into audio and broadcast on these SAP channels, here and here). Qualifying programming must either be in prime time or programming addressed to children. The rules also require that TV stations in all markets pass through network programming with such audio descriptions if those stations are technically able to do so. The FCC notes that, given the requirement for emergency information on SAP channels, all TV stations should now have that ability to pass through network programming with audio description of the video programming. The FCC now proposes to further expand the obligations of TV broadcasters to do audio descriptions of video programming that they air.
Continue Reading FCC Proposes Expansion of Requirements for TV Stations and MVPDs to Provide Audio Description of Video Programming

April brings the whole panoply of routine regulatory dates – from the need to prepare EEO Public File and Noncommercial Ownership Reports in some states, to Quarterly Issues Programs lists for all full-power broadcast stations and Quarterly Children’s Television Programming Reports for all TV stations.  So let’s look at some of the specific dates that broadcasters need to remember this coming month.

On the first of the month, EEO Public Inspection File Reports should be placed in the Public Inspection files of all stations in employment units with five or more full-time employees in the following states: Delaware, Indiana, Kentucky, Pennsylvania, Tennessee and Texas.  In addition, EEO Mid-Term Reports on FCC Form 397 need to be submitted to the FCC by radio stations that are part of employment units of 11 or more full-time employees in Kentucky, Tennessee and Indiana.  For more on the EEO Mid Term Report, see our article here.
Continue Reading April Regulatory Dates for Broadcasters – Quarterly Issues Programs Lists and Children’s Television Reports and Much More

FilmOnX, that Aereo copycat service that seeks to deliver the signals of over-the-air television stations to consumers’ computers for a fee, has lost another round in its attempt to be recognized as a cable system. Ever since the Aereo decision of the Supreme Court (which we summarized here), finding that services like Aereo and FilmOn did involve a public performance of television programming for which they permission of program owners, FilmOn has been seeking to be declared a cable system. Why? Because cable systems have a “statutory license” under Section 111 of the Copyright Act allowing them to rebroadcast television programming without explicit permission of the copyright owners simply by paying a fee – a fee which is very small when rebroadcasting a television signal in its own television market. The decision released last week by the US District Court for the Northern District of Illinois joined courts in New York and DC (see our article about the DC court decision here) in determining that FilmOn did not qualify for that license. Only a lone court in California has thus far agreed with FilmOn’s position (see our summary here), and that decision is on appeal.

In reaching its decision, the Illinois court looked at the definition of a cable system in the Copyright Act. The Copyright Act states that a cable system is “a facility” that “receives signals transmitted or programs broadcast by one or more television broadcast stations” and “makes secondary transmission of such signals or programs by wires, cables microwave or other communications channels” to subscribers. In looking at that definition, the Court found that the FilmOn system was not a facility that made secondary transmissions (meaning a rebroadcast or retransmission of the original signal) of the television signals that it received. While it received those signals, rather than transmitting those signals to the public, as does a traditional cable system or even an unwired “wireless cable system,” FilmOn instead simply transmitted those signals to the Internet, and the Internet was the mechanism that delivered the signals to the customers. In essence, the Court adopts the requirement for a “facilities based” transmission system in order for a system to be considered a cable system for purposes of qualifying for the statutory license – meaning that it must be one that owns or controls the means of communication of the television signals to the company’s customers. As FilmOn does not own or control the Internet, it is not such a facilities-based carrier.
Continue Reading Another Loss for FilmOnX in its Quest to Be Recognized as a Cable System Entitled to Rely on Statutory License to Retransmit TV Signals

The FCC today adopted rules to require that the public inspection files of radio stations (and of cable television systems and operators of satellite radio and television companies) to put their public inspection files online.  While, thus far, the FCC has only released a public notice summarizing its decision and not the full text explaining its reasoning, what is clear is that the new rule will go in to effect later this year for commercial radio stations with 5 or more full-time employees which are located in the Top 50 markets.  Other radio stations will have two years to come into compliance with the new requirements.

The rules, like the TV rules adopted several years ago (see our Q and A about the TV online file requirements, here), require that stations upload their files into an FCC-maintained database that will display the contents of each station’s file to the public.  According to today’s public notice, political broadcasting material only needs to be uploaded on a going forward basis upon the effective date of the new rules (i.e. only new documents created after the effective date of the new rules needs to be uploaded – existing documents would be maintained in the station’s paper file until the two-year retention period for political documents has expired).  It appears that all other documents not already in FCC databases will need to be fully uploaded by licensees within 6 months of the effective date of the new rules.  The documents that will need to be uploaded within that 6 months would include Quarterly Issues Programs Lists and the Annual EEO Public Inspection file report back to the beginning of the station’s current license term – documents not normally filed with the FCC.  Ownership Reports, FCC applications and similar documents filed with the FCC will be automatically uploaded to the station’s public file by the FCC’s own systems. 
Continue Reading FCC Adopts Online Public File Requirements for Radio, Satellite and Cable – To be Effective for Large Market Radio Later This Year

In the last week, copyright audits have been in the news.  Several broadcasting publications noted the recent announcements by the Copyright Royalty Board that SoundExchange has decided to audit several companies that pay it royalties, including webcasters (including Pandora and a number of broadcasters in connection with their webcast operations), business establishments services (those who provide music for stores and other businesses – DMX and Muzak) and music services provided by cable and satellite video providers (e.g. DMX and Muzak).  It was also just announced in the Federal Register that the sports leagues plan to audit a number of MVPDs to determine if the MVPDs have been accurately paying the royalties owed the sports league for the sports programming on TV stations carried on certain satellite and cable systems.  What are these audits, and why are they being announced by publication in the Federal Register?

When media companies buy a piece of equipment, or a building in which to house their operations, they usually know in advance how much their purchase is going to cost, and in the vast majority of cases, they get a bill specifying the price.  Even the purchase of some programming is easily quantifiable – either as a fixed fee per month, or some barter arrangement or other set fee.

But, in many other licensing transactions, the fees are not as easily quantifiable.  For certain movie packages or other syndicated video programming, the number of times that a program is played is not necessarily clear in advance.  For music, it is even more complicated, as a digital music service never knows how much music it is going to use when it enters into a licensing agreement.  In the case of programming carried by an MVPD on a distant signal basis pursuant to the compulsory copyright licenses under Sections 111 and 119 of the Copyright Act, the MVPD in advance won’t know how many subscribers it will have or exactly what programming the stations that it carries will program.  So in all of these cases, the user of the copyrighted material does not get a bill.  Instead, the user has to tell the “seller” of the rights (or its representative) how much they owe.  Because the buyer is reporting how much they think that they owe, the rights organizations usually have the right, by contract or by law, to audit the user to decide if the user paid the right amount.
Continue Reading SoundExchange Audits of Digital Music Companies and Sport Leagues Audits of MVPDs Published in the Federal Register – Understanding Audit Rights Under Statutory Licenses

It’s that time of the year when we need to dust off the crystal ball and make predictions about the legal issues that will impact the business of broadcasters in 2016.  While we try to look ahead to identify the issues that are on the agenda of the FCC and other government agencies, there are always surprises as the regulators come up with issues that we did not anticipate. With this being an election year, issues may arise as regulators look to make a political point, or as Commissioners look to establish a legacy before the end of their terms in office.  And you can count on there being issues that arise that were unanticipated at the beginning of the year.

But, we’ll nevertheless give it a try – trying to guess the issues that we will likely be covering this year.  We’ll start today with issues likely to be considered by the FCC, and we’ll write later about issues that may arise on Capitol Hill and elsewhere in the maze of government agencies and courts who deal with broadcast issues.  In addition, watch these pages for our calendar of regulatory deadlines for broadcasters in the next few days.

So here are some issues that are on the table at the FCC.  While the TV incentive auction may well suck up much of the attention, especially in the first half of the year, there are many other issues to consider.  We’ll start below with issues affecting all stations, and then move on to TV and radio issues in separate sections below. 
Continue Reading What Washington Has in Store for Broadcasters in 2016 – Looking at the Legal Issues that the FCC Will Be Considering in the New Year

The FCC appears poised to decide what to do with its proposals for an online public inspection file for radio stations, and for cable and satellite TV systems. The FCC’s list of “Items on Circulation” (orders that have been written and are being considered for approval by the FCC Commissioners) indicates that the decision

While January starts off with some regulatory deadlines that apply to all broadcasters – Quarterly Issues Programs lists must be placed in a station’s public file by the 10th of January – there are many other dates that come due this month, dates to which broadcasters need to pay careful attention. For TV stations, they need to file at the FCC by January 11 (as the 10th is a Sunday) Children’s Television Reports, listing all of the programming that they broadcast in the previous quarter addressing the educational and informational needs of children. Records showing a TV station’s compliance with the commercial limits in children’s television should also be placed in the station’s public file.  As we have written, missing Quarterly Issues Programs lists (see our articles here and here) and Children’s Television Reports (and even late Children’s Television Reports) provided the basis for most of the fines during the last renewal cycle (see, for instance, our article here) – even for missing reports from early in the renewal cycle and, for the Children’s Reports, even where the reports were filed (repeatedly) only a few days late. So it is important to meet the obligations imposed by these regular filing deadlines.

Starting on the first day of this new year, there are a host of other obligations and deadlines that arise. On January 1, TV stations need to be captioning clips of video programming that they make available on their websites or in their mobile apps, if those clips came from programming that was captioned when shown on TV. For more on that obligation, see our article on the new online captioning requirements here.
Continue Reading January Regulatory Dates for Broadcasters – Quarterly Issues Programs Lists and Children’s Television Reports, Incentive Auction, FM Translators for AM Stations, Webcasting Fees, LUR Windows and More

The US District Court in Washington DC last week decided that FilmOn X could not rely on the compulsory license of Section 111 of the Copyright Act to retransmit the signal of over-the-air television stations to consumers over the Internet. The compulsory license allows a system to rebroadcast copyrighted material without getting express permission from the copyright holder, as long as the service files the rules set out by the statutory provisions that create the license. The DC Court’s decision was the exact opposite of a decision reached in July by a California court which found that FilmOn did fit within the definition of a cable system as set out by the Copyright Act (see our summary of that decision here). Why the difference in opinions over exactly the same system?

Both Courts focused on the language of Section 111 which defines a cable system as follows:

A “cable system” is a facility, located in any State, territory, trust territory, or possession of the United States, that in whole or in part receives signals transmitted or programs broadcast by one or more television broadcast stations licensed by the Federal Communications Commission, and makes secondary transmissions of such signals or programs by wires, cables, microwave, or other communications channels to subscribing members of the public who pay for such service. For purposes of determining the royalty fee under subsection (d)(1), two or more cable systems in contiguous communities under common ownership or control or operating from one headend shall be considered as one system.

Even though both courts looked to this same definition, they reach different conclusions – the principal difference being one over the requirement that, to be a cable system, the company must make “secondary transmissions of such signals or programs by wires, cables, microwave, or other communications channels.” The California court had looked at this definition, and determined that Internet retransmissions of TV programs were in fact secondary transmissions (a secondary transmission being a retransmission of the broadcast) by “wires, cables, microwave or other communications channels” – concluding essentially that the Internet was a communications channel. The DC Court, in contrast, did a far more searching analysis of this statutory language, and found that Internet transmissions don’t qualify as cable systems under this definition.
Continue Reading DC Court Finds FilmOn X Internet TV Service is Not a Cable System and Cannot Rely on Statutory License to Retransmit Over-the-Air TV Signals

December is one of those months when all commercial broadcasters have at least one FCC deadline, and there are also many other filing dates of which many broadcasters need to take note.  For all commercial broadcasters, Biennial Ownership Reports are due on December 2.  Hopefully, most broadcasters have already completed this filing obligation, as FCC electronic filing systems have been known to slow as a major deadline like this comes closer.  See our article here for more on the Biennial Ownership filing requirement that applies to all commercial broadcast stations.

Noncommercial stations are not yet subject to the uniform Biennial Ownership Report deadline (though the FCC has proposed that happen in the future, see our article here, a proceeding in which a decision could come soon).  But many noncommercial stations do have ownership report deadlines on December 1, as noncommercial reports continue to be due every two years, on even anniversaries of the filing of their license renewal applications.  Noncommercial Television Stations in Colorado, Minnesota, Montana, North Dakota, and South Dakota have to file their Biennial Ownership Reports by that date.  Noncommercial AM and FM Radio Stations in Alabama, Connecticut, Georgia, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont also have the same deadline for their Biennial Ownership Reports. 
Continue Reading December Regulatory Dates for Broadcasters – Ownership and EEO Reports, Retransmission Consent and Foreign Ownership Rulemaking Comments, Incentive Auction and Accessibility Obligations