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.
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The United States Supreme Court yesterday released its decision upholding the FCC’s 2017 changes to its ownership rules in the FCC v Prometheus Radio Project case (see our summary here). Those rules had been put on hold in 2019 by a decision by the Third Circuit Court of Appeals which held that the FCC had to develop a more detailed record on the impact of rule changes on minority ownership before making any such changes (see our summary of that decision here). The Supreme Court did not issue a sweeping decision evaluating the competitive landscape for the broadcast industry, nor was it expected to. Instead, the Court decision was a narrow legal one, looking at whether the decision of the FCC was entitled to traditional judicial deference to expert administrative agencies.
The Supreme Court was reviewing the legal question of whether the FCC’s 2017 review of diversity was adequately justified. In 2017, the FCC determined that that no substantial impact on diversity was proven by any party who filed comments in the media ownership proceeding and, to the extent that there was an impact, the benefits of making broadcast companies stronger competitors in today’s media marketplace outweighed that impact. The Third Circuit would have had the FCC conduct a sweeping historical analysis of the impact of past instances where the ownership rules were relaxed to see the impact on minority ownership so that the FCC could judge the likely impact of new changes to the rules. The Supreme Court found that the FCC had no obligation to conduct its own studies into that issue and, based on the evidence before the FCC, its decision to relax the rules was not an arbitrary one. Thus, it was entitled to the deference given to decisions of expert regulatory agencies (see our article here on the deference given to administrative agency decisions). In essence, this was a narrow decision based on principles of administrative law to which all nine Justices, liberal and conservative, could agree.
Continue Reading Supreme Court Reinstates 2017 FCC Changes to Broadcast Ownership Rules Including the End to Newspaper-Broadcast Cross-Ownership Ban – But Radio Changes Yet to Come
After so much turmoil in the last year, radio stations may be inclined to blow off some steam this year with some big April Fools” Day stunt. But because of the continuing issues with the pandemic and social tensions throughout the country, a prank that may seem funny to some could trigger concerns with others. As we do every year about this time, we need to play our role as attorneys and ruin any fun that you may be planning by repeating our reminder that broadcasters need to be careful with any on-air pranks, jokes or other on-air bits prepared especially for the day. While a little fun is OK, remember that the FCC does have a rule against on-air hoaxes. Issues under this rule can arise at any time, but a broadcaster’s temptation to go over the line is probably highest on April 1.
The FCC’s rule against broadcast hoaxes, Section 73.1217, prevents stations from running any information about a “crime or catastrophe” on the air, if the broadcaster (1) knows the information to be false, (2) it is reasonably foreseeable that the broadcast of the material will cause substantial public harm and (3) public harm is in fact caused. Public harm is defined as “direct and actual damage to property or to the health or safety of the general public, or diversion of law enforcement or other public health and safety authorities from their duties.” If you air a program that fits within this definition and causes a public harm, you should expect to be fined by the FCC.
Continue Reading Plan April Fools’ Day On-Air Stunts With Care – Remember the FCC Hoax Rule
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.
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After a long winter, spring has finally arrived and has brought with it more daylight and warmer temperatures—two occurrences that do not necessarily pair well with keeping up with broadcast regulatory dates and deadlines. Here are some of the important dates coming in April. Be sure to consult with your FCC counsel on all other important dates applicable to your own operations.
On or before April 1, radio stations in Texas (including LPFM stations) and television stations in Indiana, Kentucky, and Tennessee must file their license renewal applications through the FCC’s Licensing and Management System (LMS). Those stations must also file with the FCC a Broadcast EEO Program Report (Form 2100, Schedule 396).
Both radio and TV stations in the states listed above with April 1 renewal filing deadlines, as well as radio and TV stations in Delaware and Pennsylvania, if they are part of a station employment unit with 5 or more full-time employees (an employment unit is a station or a group of commonly controlled stations in the same market that share at least one employee), by April 1 must upload to their public file and post a link on their station website to their Annual EEO Public Inspection Report covering their hiring and employment outreach activities for the twelve months from April 1, 2020 to March 31, 2021.
Continue Reading April Regulatory Dates for Broadcasters: License Renewal, Issues/Programs Lists, EEO, Webcasting Royalties and More
Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.
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Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.
…
In a Public Notice, the FCC has reminded all analog LPTV stations and TV translators that they need to convert to digital by July 13, 2021 or cease operations. The Notice reminds operators of these stations that, if they cannot meet the July 13 deadline, they can request an extension by March 15. Upon a showing setting out that their inability to meet the deadline was for reasons beyond their control, the Commission may grant an extension of up to 6 months to construct the digital facilities (though, even if their conversion deadline is extended, the analog operations must cease by July 13).
One issue left unresolved by the FCC is the status of “Franken FMs,” those analog LPTV stations on Channel 6 whose audio is used to provide an FM radio service on 87.7 on the FM band. As we wrote here, the FCC asked for comments on a request to allow these stations to continue to provide an analog audio signal even after the digital conversion deadline to allow these audio services to continue. Though the deadline is getting close, there thus far has been no response by the FCC on that request.
Continue Reading FCC Reminds Analog LPTV/TV Translators of July 13 Digital Transition Deadline – Extensions Due by March 15
Global Music Rights, one of the newest performing rights organization licensing the public performance of musical compositions, has agreed to extend its interim license with commercial radio broadcasters. That license is set to expire at the end of March (see our article here). This interim license has been offered and extended for the last several years to allow stations to perform GMR music while GMR litigates with the Radio Music Licensing Committee over whether GMR is subject to any sort of antitrust regulation of the rates that it sets (and GMR’s countersuit over whether the RMLC itself violates the antitrust rules as a buyer’s cartel, by allegedly organizing all the buyers of GMR’s music to hold out for a specific price). We wrote about that litigation here. With the pandemic, the lawsuit which should have already gone to trial is likely not going to be heard until possibly next year, as discovery in the case has been postponed until later this year.
Today, the RMLC notified radio broadcasters that GMR will again extend its interim license while the litigation plays out – but GMR wants a 20% increase in the royalties that it receives. RMLC made clear that this is not a negotiated rate – it is one that GMR has imposed with no input from RMLC. Stations should expect to hear from GMR about the extension by March 15. If they do not, stations interested in the extended license should reach out to GMR. Many stations are confused by this royalty, so we thought that we would provide some background.
Continue Reading GMR Offers to Extend Its Interim License With Commercial Radio Stations – But It Wants a 20% Increase in Royalty Payments
Yesterday the FCC released another of its regular EEO audit notices (available here), asking over 200 radio and TV stations, and the station employment units with which they are associated (i.e., commonly owned stations serving the same area) , provide to the FCC (by posting the information in their online public inspection file) their EEO Annual Public File reports for the last two years, as well as backup data showing that the station in fact did everything that was required under the FCC rules.
To lighten the burden on stations due to the pandemic, certain requirements usually associated with these audits have been adopted. Audited stations must provide representative copies of notices sent to employment outreach sources about each full-time vacancy as well as some documentation of the supplemental efforts that all station employment units with 5 or more full-time employees are required to perform (whether or not they had job openings in any year). These non-vacancy specific outreach efforts are designed to educate the community about broadcast employment positions and to train employees for more senior roles in broadcasting. Stations must also provide information about how they self-assessed the performance of their EEO program. Answers to certain other questions are also required. Stations that are listed in the audit notice have until April 26, 2021 to upload this information into their online public file.
Continue Reading FCC Issues First Broadcast EEO Audit of 2021– Reviewing the Basics of the FCC’s EEO Rules
