Discussion of FCC, copyright, advertising and other legal issues of importance to radio and television broadcasters and other media companies
Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.
The US Court of Appeals for the DC Circuit issued a decision last week rejecting all of the appeals of the decision by the Copyright Royalty Board (“CRB”) setting the rates that noninteractive webcasters pay to SoundExchange for the digital public performance of sound recordings in the period 2021-2025 (see our article here on the 2021 CRB decision). As detailed below, the Court rejected appeals from three parties, two that argued that the rates were set too high for specific classes of webcasters, and one from SoundExchange itself which argued that the rates should have been even higher.
As a reminder, the CRB rates apply to all companies who provide a non-interactive, internet-delivered steam of programming which includes recorded music or other audio content, including broadcasters who simulcast their over-the-air programming on the internet. Congress established the process of setting rates through hearings by the CRB so that noninteractive webcasters would have access to all recorded and publicly released audio recordings without having to individually negotiate with each copyright holder (see our article here about the CRB’s responsibilities). Services pay these “statutory royalties” to SoundExchange, observe certain requirements that limit how often particular recordings are played so as to not make the services a substitute for buying recordings or listening to them through on-demand services (which pay higher royalties negotiated directly with the copyright holder), and report to SoundExchange what they play. SoundExchange collects the royalties and uses the reports of what the services played to distribute the royalties they collect. One-half of the royalties collected go to the performers on the sound recording, and one-half to the copyright holders of the recording, usually the record labels that own the copyrights for sound recordings.…
Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.
Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.
There are normally a host of regulatory obligations at the beginning of February, but because of technical issues with the FCC’s online public file and LMS systems, many February 1 dates, as well as some January regulatory deadlines, have been extended to late February.
Due to technical problems that affected FCC filings throughout the month of January, the FCC last week issued a Public Notice extending the deadlines for all filings in the FCC’s LMS or online public file systems that were due in late January and early February. The new deadline for these filings is February 28, 2023. This new deadline applies to TV license renewal applications (including the associated Equal Employment Opportunity Report (Form 2100, Schedule 396)) for television stations, LPTV stations, TV translators and Class A stations in New York and New Jersey (which had been due February 1); Annual Children’s Programming Reports (which had been due on January 30); and EEO Public File Reports for broadcast employment units with 5 or more full-time employees in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma (reports that normally would have had to have been uploaded to a station’s public file by February 1). Quarterly Issues Programs lists for all broadcast stations had been due to be uploaded to the public file by January 10, but that date was initially extended until January 31, and the deadline has now been further extended to February 28 by last week’s Public Notice. Note that the Public Notice is broad, stating that any public file document due to be uploaded or any FCC application to be filed through LMS must be filed by February 28. Notwithstanding the extension, licensees should not wait until the last minute to upload documents, as the intermittent problems that have plagued the systems could persist for some time and make meeting even the extended deadline problematic, especially if you wait for the last minute to try to file. For more details about the extension and about other technical issues with the FCC’s filing systems, see the article we recently published on this subject.
February 28 is the deadline by which EAS participants must file their EAS Test Reporting System (ETRS) Form One. Filing instructions are provided in the Public Notice issued by the FCC earlier this month (see also our articles here and here). All EAS Participants – including Low Power FM stations (LPFM), Class D non-commercial educational FM stations, and EAS Participants that are silent pursuant to a grant of Special Temporary Authority – are required to register and file in ETRS, with the following exceptions: Analog and digital low power television (LPTV) stations that operate as television broadcast translator stations, FM broadcast booster stations and FM translator stations that entirely rebroadcast the programming of other local FM broadcast stations, and analog and digital broadcast stations that operate as satellites or repeaters of a hub station (or common studio or control point if there is no hub station) and rebroadcast 100 percent of the programming of the hub station (or common studio or control point) are not required to register and file in ETRS. Carefully read the Public Notice and the form to make sure that all necessary information is properly uploaded.…
The Copyright Royalty Board yesterday published in the Federal Register the proposed rates for the public performance of musical compositions by noncommercial broadcasters for the period 2023 through 2027. The rates reflect settlements between ASCAP, BMI, SESAC and GMR with various organizations representing noncommercial broadcasters. The Corporation for Public Broadcasting agreed to one set of rates paid to cover NPR and PBS affiliates. The NRB (the religious broadcasters’ organization) has a Noncommercial Music License Committee that agreed to another set of rates that apply to non-NPR radio stations not owned by colleges and universities, setting out rates that these noncommercial stations pay to each of these rights collection agencies. For these radio stations, the rates are based on the population served by each noncommercial station. College and university-owned stations can take advantage of a third set of rates, based primarily on the number of students in the school with which the station is affiliated. Comments and objections, if any, to these proposed rates are due on or before February 27, 2023.
Commercial broadcasters have royalty rates that are to be paid to these performing rights organizations (or “PROs”) set not through the Copyright Royalty Board but instead through varying processes. ASCAP and BMI are subject to antitrust consent decrees (see our articles here and here on arguments about those decrees). The decrees provide that, if the PRO cannot reach an agreement with representatives of the commercial radio industry (usually the Radio Music License Committee – see our article on RMLC here – although commercial religious broadcasters also negotiate rates with these entities through the NRB), a US District Court judge in New York will hold a trial, acting as a “rate court” to determine the amount for reasonable rates. ASCAP and BMI are currently negotiating with the RMLC on new rates for commercial broadcasters. SESAC is also subject to antitrust settlements with both the RMLC and the TV Music License Committee. If SESAC and the committees cannot reach agreements, an arbitration panel sets the rates (see our articles here and here on radio rates set as a result of this process). After prolonged litigation with GMR to have their rates reviewed in some manner, the RMLC last year dropped its lawsuit seeking that relief and GMR now has no oversight as to the rates it charges (see our article on the GMR license that resulted). Noncommercial broadcasting, however, under Section 118 of the Copyright Act, has its PRO obligations set by the Copyright Royalty Board and, like this year, the result is almost always a settlement between the parties (even though, theoretically, the Board could hold hearings to set the rates if the parties had not agreed to the rates). …
Here are some of the regulatory developments of significance to broadcasters from the past two weeks, with links to where you can go to find more information as to how these actions may affect your operations.
In the last few weeks, a Democratic Senator and a Republican FCC Commissioner have both expressed support for the future of AM radio. This is not a new topic, being the subject of speculation for at least the last 20 years as FM listening caught up to and surpassed the older service’s audience. But, when considering worldwide trends, a real question arises as to whether this inquiry is too narrow, and whether the FCC should not be taking more steps to insure the continuation of a free, local broadcast service.
In the last decade, the FCC has considered and, in many cases adopted, various proposals to revitalize the AM service – including providing FM translators for AM stations (see our articles here and here) and permitting all-digital AM operations (see our article here). Other proposals, including one for across-the-board power increases for AM stations (see our article here) and another to lessen the interference protection enjoyed by high powered “clear channel” AMs, which would allow lower power local AM stations to increase nighttime power (see our article here), have not been adopted. What new issues are being raised by these recent expressions of support from DC regulators?
Continue Reading Washington Worries About AM Radio – Senator Markey and Commissioner Simington Weigh in on the Future of the Service While Overseas There are Thoughts of Ending Broadcasting Altogether
On Wednesday, the House Judiciary Committee will be holding a “mark-up session” (see this notice of the session) where they will be considering the American Music Fairness Act which proposes to impose a sound recording performance royalty on over-the-air broadcasting. This would be a royalty paid to SoundExchange to benefit the recording artist and copyright holder (usually the record company) and would be in addition to the royalties already paid to composers and publishing companies through royalties paid to ASCAP, BMI, SESAC and GMR. A mark-up session considers amendments to the bill and could lead to the committee’s approval of the bill. If approved by the Committee, the bill would still need to be approved by the full House of Representatives and the Senate (and signed by the President) before it became law. With the current session of Congress coming to a close at the end of the month, the proposed legislation would need to start over in the Congress. Thus, unless the bill is tacked on to some must-pass legislation in this “lame duck” session of Congress, any action this week by the committee will likely simply be a marker for action in the new year.
The NAB has already issued a statement about the session, pointing out that a majority of the House members have signed on to the Local Radio Freedom Act stating that they will not vote for this legislation. The statement also reiterates the NAB’s interest in working on a “mutually beneficial solution” to the issue of the broadcast performance royalty (an interest in a possible solution we wrote about here). Nevertheless, with this issue back on the table, even if only in a symbolic way, we thought that we should re-post our summary of the American Music Fairness Act and the issues that it raises that we wrote last year, when the legislation was first introduced.
Continue Reading House of Representatives Judiciary Committee to Consider American Music Fairness Act Proposing Sound Recording Performance Royalty on Over-the-Air Broadcasting
Last week, the Federal Election Commission (FEC) adopted new disclaimer requirements for internet-based political advertising, including the identification of the ad sponsor. This decision resolves many of the issues that have been debated at the FEC for over a decade as to what internet content is considered a “public communication” that requires a disclosure of the sponsor of the content – and just what the disclosure should reveal. We wrote about a 2018 rulemaking soliciting comment on these issues that was just part of the process that led to the vote taken last week. While the FEC had generally acknowledged that online political ads should have some sponsorship identification, it is only now that the FEC has adopted detailed requirements for this identification. As discussed below, the proceeding requires disclosures when a sponsor pays an online platform to transmit the political message. However, the FEC postponed for another day consideration as to whether the disclaimers would be required when the sponsor pays others to promote or widely disseminate the message to platforms that are not paid (e.g., where people are paid by a sponsor to post political messages on social media sites). These rule changes will impact most media companies with websites and mobile apps, as well as the nationwide streaming services now developing ad supported platforms.
Specifically, the FEC adopted a proposal that would amend its rules to require a disclaimer on those “communications placed for a fee on another person’s website, digital device, application, or advertising platform.” The FEC also issued a Supplemental Notice of Proposed Rulemaking seeking public comment as to whether disclaimers should be required for political communications where the platform itself may not have been paid, but where the sponsor of the communication paid others to promote or otherwise broaden the dissemination of the communication.
Continue Reading Federal Election Commission Adopts New Rules for Sponsorship Disclaimers for Online Political Advertising – And to Consider Rules for Political Marketing Through Social Media Influencers
