Today’s post will be a bit more into the legal weeds than many of our articles, addressing the standards used by courts to review the decisions of administrative agencies like the FCC.  Last month, there was a Supreme Court argument in a case called Relentless, Inc. v. Department of Commerce that the popular press suggested was going to end the regulation of media companies.  Even the media trade press seemed to think that the decision could cut back on regulations that come from the FCC and other agencies.  As with much popular coverage of legal issues, the real-world impact of the case, while certainly significant in legal practice, is probably overstated.

The Relentless case challenges a judicial precedent in place since a 1984 decision in another case, Chevron [U.S.A.] Inc. v. NRDC, Inc.  The policy adopted in that case, referred to as the “Chevron Doctrine,” says that the courts will defer to the decision of an administrative agency interpreting an ambiguous Congressional statute unless the agency’s decision is arbitrary and capricious or contrary to law.  What that basically means is that, if a policy adopted by Congress is capable of many different interpretations, the Courts will defer to the interpretation of the expert agency that is supposed to enforce that statute, unless the interpretation cannot be squared with the language of the statute or the record before the agency.  We’ve written many times on this blog about this doctrine without necessarily identifying it by name, usually in connection with appeals of a Copyright Royalty Board or FCC decision and how difficult it is to convince a court to overturn these actions.Continue Reading What Does the Supreme Court’s Review of the Chevron Doctrine Mean for Media Companies Challenging Decisions of the FCC and Other Government Agencies? 

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 FCC announced the circulation for Commissioner review and approval of two decisions of interest to broadcasters, signifying that we

We often write about issues concerning the royalties paid by radio stations for their various uses of music.  It is not just paying the royalties that are important, but stations must also observe all of all the other obligations under each of their license agreements.  The Radio Music License Committee asked us to remind commercial

President Biden’s signing of the Continuing Resolution last week (see our discussion here) has kept the federal government open, with the FCC and FTC having money to stay open through March 8.  So the FCC will be open and thus there are February regulatory dates to which broadcasters should be paying attention. 

February 1 is the deadline for radio and television station employment units in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma with five or more full-time employees to upload their Annual EEO Public File Report to their stations’ online public inspection files (OPIFs).  A station employment unit is a station or cluster of commonly controlled stations serving the same general geographic area having at least one common employee.  For employment units with five or more full-time employees, the annual report covers hiring and employment outreach activities for the prior year.  A link to the uploaded report must also be included on the home page of each station’s website, if the station has a website.  Be timely getting these reports into your public file, as even a single late report can lead to FCC fines (see our article here about a recent $26,000 fine for a single late EEO report).Continue Reading February Regulatory Dates for Broadcasters – Annual EEO Public File Reports, C-Band Transition Reimbursement, Political Windows, and More

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 FCC released its agenda for its Open Meeting scheduled for February 15.  The FCC will consider two items of

The Copyright Royalty Board has published in the Federal Register a correction to its notice announcing the commencement of the next proceeding to set rates for the royalties paid by webcasters (including broadcasters who stream their music through the internet) to SoundExchange for the public performance of sound recordings in the period 2026-2030.  The correction is to the date by which interested parties must file a petition to participate – setting that date as February 5, 2024, not February 6 as originally stated.  Thus, interested parties have a deadline one day earlier than previously announced.  We wrote more about that proceeding here.

The CRB also published in the Federal Register a notice announcing that it would be auditing five broadcast companies who are streaming their signals to assess their compliance with the statutory music licenses provided by Sections 112 and 114 of the Copyright Act for the public performance of sound recordings and ephemeral copies made in the digital transmission process by commercial webcasters. Another audit notice has gone out to a company called RFC Media, which is both a webcaster and a Business Establishment Service whose royalties are exclusively paid under Section 112 of the statute (see our article here about the CRB-set royalties for these services that provide music played in various food and retail establishments and other businesses).Continue Reading Copyright Royalty Board Issues Correction of Deadline to File Petitions to Participate in New Proceeding to Set Webcasting Royalty Rates for 2026-2030, and Issues Notices of Audits of Webcasters

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 FCC’s January 12 report listing the items on circulation (those orders or rulemaking proposals that have been drafted and

Update (January 24, 2024) – The Copyright Royalty Board issued a Federal Register Notice correcting the deadline for Petitions to Participate in the WEB VI proceeding – making clear that the deadline is February 5, 2024, not February 6 as previously reported. This article has been updated with the corrected deadline. For more information, see our article here).

The Copyright Royalty Board on Friday published in the Federal Register a call for interested parties to file Petitions to Participate in the proceeding to set the royalty rates to be paid by webcasters (including broadcasters who simulcast their programming through internet-delivered channels) in the period 2026-2030.  These royalties are paid by webcasters to SoundExchange for the noninteractive streaming of sound recordings.  The CRB is required to review these rates every five years.  These proceedings are lengthy and include extensive discovery and a trial-like hearing to determine what royalty a “willing buyer and a willing seller” would agree to in a marketplace transaction.  Because of the complexity of the process, the CRB starts the proceeding early in the year before the year in which the current royalty rate expires.  So, as the current rates expire at the end of 2025, parties will need to sign up to participate in the proceeding to determine 2026-2030 rates by February 5, 2024 by filing a Petition to Participate.  The Petition must describe the party’s interest in the proceeding and be accompanied by a filing fee of $150.  The Federal Register notice provides other procedural details for filing these Petitions.

Once the Petitions to Participate are filed, the CRB will set out the rules and procedures to be followed in the proceeding.  Initially, there is a 90 day period in which the parties can try to settle the case.  While parties can settle at any time (subject to approval of the terms by the CRB), this initial 90-day period occurs before any litigation begins and offers parties the opportunity to avoid much of the cost of litigation.  Once that period ends without a settlement, the litigation begins.  Initial stages of the litigation (including the identification of witnesses, submission of the rate proposals and the evidence supporting those proposals, and the initial discovery) will likely all take place in 2024, with the hearing itself conducted in 2025, followed by final briefs summarizing the evidence and arguing about the conclusions to be drawn from that evidence. There are usually oral arguments held after the briefs are submitted.  At that point, the three Copyright Royalty Judges will consider the evidence and the arguments and release their decisions late in 2025, so that parties know the new rates as of January 1, 2026. While there may be appeals of the decision that are argued well beyond the effective date of the new rates, the rates become effective while those appeals are pending.Continue Reading Copyright Royalty Board Starts WEB VI Proceeding to Set Webcasting Royalties Paid to SoundExchange for 2026-2030: Petitions to Participate Due February 5

Expecting quiet weeks, we took the holidays off from providing our weekly summary of regulatory actions of interest to broadcasters.  But, during that period, there actually were many regulatory developments.  Here are some of those developments, with links to where you can go to find more information as to how these actions may affect your

Earlier this week, we covered the broadcast issues that the FCC may be facing in 2024.  But the FCC is just one of the many branches of government that regulates the activities of broadcasters.  There are numerous federal agencies, the Courts, Congress, and even state legislatures that all are active in adopting rules, making policies, or issuing decisions that can affect the business of broadcasting and the broader media industry.  What are some of the issues we can expect to see addressed in 2024 by these authorities?

For radio, there are music rights issues galore that will be considered.  Early in the year, the Copyright Royalty Board will be initiating the proceeding to set streaming royalties for webcasters (including broadcasters who stream their programming on the Internet) for 2026-2030.  These proceedings, which occur every five years, are lengthy and include extensive discovery and a trial-like hearing to determine what royalty a “willing buyer and a willing seller” would arrive at for the noninteractive use of sound recordings transmitted through internet-based platforms.  Because of the complexity of the process, the CRB starts the proceeding early in the year before the year in which the current royalty rate expires.  So, as the current rates expire at the end of 2025, parties will need to sign up to participate in the proceeding to determine 2026-2030 rates early this year, even though the proceeding is unlikely to be resolved until late 2025 (unless there is an earlier settlement)(the CRB Notice asking for petitions to participate in the proceeding is expected to be published in the Federal Register tomorrow).  Initial stages of the litigation (including the identification of witnesses, the rate proposals, the evidence supporting those proposals, and the initial discovery) will likely take place this year. Continue Reading Gazing into the Crystal Ball at Legal and Policy Issues for Broadcasters in 2024 – Part II: What to Expect from the Courts and Agencies Other than the FCC