Here are some of the FCC regulatory and legal actions of the last week—and congressional action in the coming 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.

  • The Media Bureau reminded broadcasters that July 13, 2021—the hard deadline

As business adapts to the pandemic so, too, do legal issues.  A couple have come to my attention in recent weeks that I thought bear passing on.  One deals with copyright concerns, the other with FCC matters about use of unlicensed FM transmitters.  Both arise as businesses adapt the way in which they deal with their customers – including how media companies deal with their audiences.

The copyright issues deal with music licensing matters.  Broadcasters are used to having performance licenses that allow them to broadcast music over the air and stream it on the Internet.  Venues for live music have similar licenses, as do hotels and meeting halls where conventions and other meetings take place – often involving the use of music.  But, as people are no longer frequenting these locations, businesses try to recreate their usual ambiance in an online environment using Zoom, Facebook Live, or one of the many other digital platforms that now exist.  If that ambiance includes music or other copyrighted materials, be sure that you have the rights to use those copyrighted materials in the new environment in which your business is operating.
Continue Reading Random Issues to Consider as Media Businesses Adapt to the New World of the Virus – Music Uses on Zoom and Other Platforms, Unlicensed FM Transmitters

Here are some of the regulatory and legal actions 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.

  • FCC fines against two radio stations serve as a reminder that station managers need to pay close attention

A decision was expected in December on the royalties to be paid by broadcasters and other digital media companies who stream their non-interactive audio programming on the Internet.  As we wrote at the beginning of the pandemic, the Copyright Royalty Board, which hears the arguments about the royalties to be paid to SoundExchange in a trial-type administrative hearing, had to postpone the hearing that was initially slated to begin in March.  That hearing will now begin later this month.  Because of the delays in the hearing caused by the pandemic, Congress authorized the Copyright Office to extend various statutory deadlines.  This week, the Copyright Office announced that the December deadline for a decision on webcasting royalties has been pushed until April 15, 2021.

This does not mean that the royalties themselves will not go into effect on January 1.  The current CRB proceeding is to determine the rates that will be in effect for 2021 through 2025.  The proceeding began early in 2019 (see our posts here and here).  The January 1 effective date for the new royalties remains in place, so any decision released later in 2021 will be retroactive.  In January, webcasters and other internet radio operators will pay the royalties currently in place, and there will be some mechanism for a true up of the amounts due once the decision becomes effective.  That is not unusual in the music royalty world.  Just a few months ago, the Radio Music License Committee reached an agreement with BMI on royalties that was retroactive several years.  The Copyright Royalty Board decisions themselves, even if released to the parties in December, are often not final until the next year as the public version of any CRB decision usually takes time to release, and the parties have time after a decision is released to seek edits to the decision.  The Copyright Office itself also reviews the CRB decision for legal errors.  Even after that, the decision can be appealed to the Courts, so the ultimate resolution may be unknown for years – yet parties conduct their business while waiting to see if any adjustments to fees already paid may be due at some later time.
Continue Reading Copyright Office Extends Until April Date by Which Decision on SoundExchange Royalties for 2021-2025 Must be Released

We recently wrote about a case where a Judge in the US District Court for the Southern District of New York found that the website Mashable had a license to use a photo accessible from its site that was actually an embedded photo coming from the servers of Instagram.  In that decision, the Court found that, under Instagram’s Terms of Use, the photographer, by posting photos on Instagram, gave it the right to sublicense the photo to others, which included Mashable who embedded it using an API from Instagram.  This week, the Court issued an Order reconsidering its decision – based on it being pointed out that, for the claim of a sublicense to be sustained, it had to be clear that a license was in fact being issued.  The Court reviewed Instagram’s Platform Policy which made general statement about it helping “publishers discover content, get digital rights to media, and share media using web embeds.”  The Court concluded that, without further evidence, it was unclear that this language alone granted a sublicense to Mashable, and therefore reconsidered its decision to dismiss the photographer’s infringement claim.

This case will go on to look at whether Instagram in fact intended to give Mashable a sublicense to use the photo through the use of the API.  But it does suggest that sites that use embedded media from a social media platform on the assumption that the social media site, by providing other sites the ability to embed their content are in fact sublicensing that content, should proceed with caution.  Those companies looking to post embedded content on their sites should carefully review the terms of use of the social media site to see if a sublicense is in fact being conveyed.  In our last article on the case, we noted that this decision was contrary to another decision in another case (see our article here on that other case) that found a site owner could be liable for embedded content that was accessible from its site.  We noted that there were factual differences in the two cases.  This reconsideration requires even more caution in the use of embedded content from social media sites, particularly in light of the conflicting precedent.
Continue Reading Court Reconsiders Decision About Website Getting License to Embedded Photo from Instagram Terms of Use

We summarized the provisions of Section 230 of the Communications Decency Act on Monday, looking at the application of the law that the President has sought to change through the Executive Order released last week.  Today, it’s time to look at what the Executive Order purports to do and what practical effects it might have on media companies, including broadcasters.  As we noted in our first article, the reach of Section 230 is broad enough that any company with an online presence where content is created and posted by someone other than the site owner is protected by Section 230 – so that would include the online properties of almost every media company has.

The Executive Order has four distinct action items directed to different parts of the government.  The first, which has perhaps received the most publicity in the broadcast world, is the President’s direction that the Department of Commerce, acting through its National Telecommunications and Information Administration (NTIA – the Executive Branch office principally responsible for telecommunications policy), file a petition for rulemaking at the FCC.  This petition would ask that the FCC review Section 230 to determine if the protections afforded by the law are really as broad as they have been interpreted by the courts.  The Executive Order suggests that the FCC should review whether the ability granted by the law for an online platform to curate content posted by others – the “Good Samaritan” provisions that we wrote about on Monday – could trigger a loss of protections from civil liability for third-party content if sites exercise the curation rights in a manner that is not deemed to be in “good faith”.  The Executive Order directs this inquiry even though the protections for hosting online content are in a separate subsection of the law from the language granting the ability to curate content, and the protections from liability for third-party content contain no good faith language.  The Order suggests that the FCC should find that there would not be “good faith” if the reasons given for the curation actions were “pretextual,” if there was no notice and right to be heard by the party whose content is curated, and if the curation is contrary to the service’s terms of use.  The Order suggests that the FCC should adopt rules to clarify these issues.
Continue Reading Looking at the President’s Executive Order on Online Media – Part 2, What Real Risk Does It Pose for Media Companies?

When the President issues an Executive Order asking for examination of Section 230 of the Communications Decency Act, which permitted the growth of so many Internet companies, broadcasters and other media companies ask what effect the action may have on their operations.  On an initial reading, the impact of the order is very uncertain, as much of it simply calls on other government agencies to review the actions of online platforms.  But, given its focus on “online platforms” subject to the immunity from liability afforded by Section 230, and given the broad reach of Section 230 protections as interpreted by the Courts to cover any website or web platform that hosts content produced by others, the ultimate implications of any change in policy affecting these protections could be profound.  A change in policy could affect not only the huge online platforms that it appears to target, but even media companies that allow public comments on their stories, contests that call for the posting of content developed by third parties to be judged for purposes of awarding prizes, or the sites of content aggregators who post content developed by others (e.g. podcast hosting platforms).

Today, we will look at what Section 230 is, and the practical implications of the loss of its protections would have for online services.  The implications include the potential for even greater censorship by these platforms of what is being posted online – seemingly the opposite of the intent of the Executive Order triggered by the perceived limitations imposed on tweets of the President and on the social media posts of other conservative commentators.   In a later post, we’ll look at some of the other provisions of the Executive Order, and the actions that it is asks other government agencies (including the FCC and the FTC) to take. 
Continue Reading The President’s Executive Order on Online Media – What Does Section 230 of the Communications Decency Act Provide?

Rights of publicity and privacy can present issues for podcasters and other media companies who feature people in their productions.  Almost two years ago, we wrote about the lawsuit brought by the surviving family members of the character who was central to the S-Town podcast. The podcast focused much of its attention on the life of this individual who was not an elected official or any other sort of public figure. As the individual died before the podcast’s release, the family sued on his behalf, arguing that the podcast violated his rights of publicity.  The lawsuit now has reportedly been settled.  That settlement suggests that we should repeat the advice that we gave when the suit was first filed, as that advice remains relevant today.

Various states grant individuals rights of publicity to exploit their names, likeness, or stories – essentially barring others from exploiting that person without his or her permission. Other state laws grant individuals a right of privacy to keep private facts private. While the details and exceptions to these rights differ from state to state, they generally do not restrict bona fide news stories about public figures or reporting on other matters that are in the public interest – and the First Amendment provides broad protections for truthful stories about public figures.  Most broadcasters and other media companies don’t routinely run up against the restrictions set out in these laws in their day-to-day coverage of news events. But the analysis may be significantly different when a podcast or other media production gets into the stories of individuals who are not public figures.
Continue Reading S-Town Podcast Lawsuit Settled – Reminder on Getting Releases from Podcast Subjects

Music licensing issues are always confusing.  At the request of streaming service provider Live365 which hosted World Audio Day as a virtual substitute for our all getting together at last month’s cancelled NAB Convention in Las Vegas, I participated in a discussion of those issues, trying to provide the basics as to who gets paid

This week, the FCC’s Notice of Proposed Rulemaking on Significant Viewing was published in the Federal Register, setting a comment deadline of May 14, with reply comments due by June 15.  The NPRM asks for comments as to whether the FCC should update its rules for establishing whether or not a TV station is “significantly viewed” in a market other than the one in which it is located, and whether the FCC has the statutory authority to make changes to these rules that have largely been in effect since 1972.

A determination of significantly viewed status is important for determining whether a cable system or satellite television company will carry a TV station in areas that are not part of its home market.  For FCC purposes, significantly viewed stations generally are not subject to the network nonduplication and syndicated exclusivity protections provided to home market stations – meaning that their programming that duplicates that of a local station need not be blacked out by the MVPD at the request of the local station that has the rights to such programming in that market.  For copyright purposes, if a station has significantly viewed status, the MVPD pays at the low rates applicable to a local station pays for the compulsory copyright license needed to carry all of the programming of a television station.  If the station is not significantly viewed, the much higher “distant signal” rate applies, giving the MVPD far less incentive to carry such stations.
Continue Reading Comment Dates Set on Possible Revision to Rules on Significantly Viewed Television Stations for MVPD Carriage Purposes – What Is Being Asked?