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In a very busy week, 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 Federal Trade Commission and seven state Attorneys General announced a settlement with Google LLC and iHeart Media, Inc. over allegations that iHeart radio stations aired thousands of deceptive endorsements for Google Pixel 4 phones by radio personalities who had never used the phone.  The FTC’s complaint alleges that in 2019, Google hired iHeart and 11 other radio broadcast companies to have their on-air personalities record and broadcast endorsements of the Pixel 4 phone, but did not provide the on-air personalities with the phone that they were endorsing.  Google provided scripts for the on-air personalities to record, which included lines such as “It’s my favorite phone camera out there” and “I’ve been taking studio-like photos of everything,” despite these DJs never having used the phone.  The deceptive endorsements aired over 28,000 times across ten major markets from October 2019 to March 2020.  As part of the settlement, subject to approval by the courts, Google will pay approximately $9 million and iHeart will pay approximately $400,000 to the states that were part of the agreement.  The settlement also imposes substantial paperwork and administrative burdens by requiring both companies to submit annual compliance reports for a period of years (10 years in the case of iHeart), and create and retain financial and other records (in the case of iHeart, the records must be created for a period of ten years and retained for five years).
    • This case is a reminder that stations must ensure that their on-air talent have at least some familiarity with any product they endorse, particularly where on-air scripts suggest that they have actually used the product.  Stations should not assume that talent know the relevant rules – they more likely will just read whatever is handed to them without understanding the potential legal risk for the station, which, as demonstrated in this case, could be significant.

Continue Reading This Week in Regulation for Broadcasters: November 26 to December 2 , 2022

In a Federal Register notice published today, the Copyright Royalty Board announced cost-of-living increases in the statutory royalties paid by webcasters for the public performance of sound recordings.  These are the royalties paid to SoundExchange by those making noninteractive digital transmissions of sound recordings.  This included broadcasters who simulcast their over-the-air programming on the internet or through mobile apps (or through other digital means including smart speakers like Alexa, see our article here).  The CRB notice sets out the computations that the Board used to determine the amount of the cost-of-living increase.  Those computations led to a royalty rate for 2023 of $.0024 per performance for services that do not charge a subscription fee.  For subscription services, the rate will be $.0030 per performance.  A performance is one song played to one listener – so for one song paid to four listeners one time each, a webcaster pays about a penny.

Given the rate of inflation in the general economy, it is perhaps no surprise that the rates for 2023 represent a substantial increase from the royalties paid last year, and from those that were in place in 2021, the first year of the current 5-year royalty period.  As we wrote here, when the CRB decided on the rates for 2021-2025, the nonsubscription rate was $.0021 per performance.  But the CRB provided for cost of living increases.  That led to rates in 2022 for commercial webcasters, including broadcasters streaming their programming on the internet, of $.0022 per performance for a nonsubscription transmission and $.0028 per performance for a subscription transmission (see our article here mentioning the 2022 increase).
Continue Reading Copyright Royalty Board Announces Cost-of-Living Increase for 2023 Webcasting Royalties – Including Royalties for Broadcasters Who Simulcast Their Programming Online

Even with the holidays upon us, regulation never stops.  There are numerous regulatory dates in December to which broadcasters need to pay heed to avoid having the FCC play Grinch for missing some important deadline.

December 1 is the deadline for license renewal applications for television stations (full power, Class A, LPTV and TV translators) licensed to communities in Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont.  Renewal applications must be accompanied by FCC Form 2100, Schedule 396 Broadcast EEO Program Report (except for TV translators).  Stations filing for renewal of their license should make sure that all documents required to be uploaded to the station’s online public file are complete and were uploaded on time.  Note that your Broadcast EEO Program Report must include two years of Annual EEO Public File Reports for FCC review, unless your employment unit employs fewer than five full-time employees.  Be sure to read the instructions for the license renewal application and consult with your advisors if you have questions, especially if you have noticed any discrepancies in your online public file or political file.  Issues with the public file have already led to fines imposed on TV broadcasters during this renewal cycle.

December 1 is also the deadline by which radio and television station employment units with five or more full-time employees licensed to communities in Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, and Vermont must upload Annual EEO Public File Reports to station online public inspection files (also, the FCC has issued an extension that permits stations in Florida that suffered the effects of Hurricane Ian to upload their Annual EEO Public File Reports by December 12).  This annual EEO 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 a station’s website, if it has a website.
Continue Reading December Regulatory Dates for Broadcasters – License Renewals, EEO Reports, Rulemaking Comments on Foreign Government Programming and EAS, and More

A recent FCC staff decision dismissing an application for a new noncommercial educational (NCE) FM station on technical grounds highlighted a rarely used section of the FCC rules, Section 73.561(b).  That section provides that, when an NCE FM station does not regularly operate for at least 12 hours per day, another noncommercial entity can file an application proposing to use the frequency during the hours that the station is not operating and, if the existing licensee and the new applicant cannot agree on a shared operating schedule, the new applicant can ask the FCC to force the shared-time operation (for more on the recent case, see our summary in our weekly update of broadcast regulatory actions for last week).

The rule states that the FCC will typically only force a time share operation when an application asking for share-time authority is on file during the pendency of the existing station’s license renewal application.  As most radio license renewals have already been granted during the recent three-year cycle for radio license renewals that ended earlier this year, most NCE stations do not face a real risk of a forced share-time operation until the next renewal cycle starts in 2027.  But an application seeking frequency sharing can be filed at any time in situations where an NCE FM station does not regularly operate for at least 12 hours per day, forcing negotiations about a shared time operation, and no doubt increasing scrutiny on the station during its next renewal.  Thus, such NCE stations should review their operating schedules now and think about ways to minimize the risk of a forced share-time operation.
Continue Reading Reminder to Noncommercial FM Stations – Operating Less Than 12 Hours a Day Can Bring Forced Time-Share Requirement

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 effective date of a recently adopted FCC Report and Order aimed at making emergency alerts delivered over television and

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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.

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Global Music Rights (GMR) has sued three radio groups for allegedly playing GMR catalog songs but not paying the associated public performance royalties to GMR.  As we have written many times, GMR is a performing rights organization (a “PRO”) representing what they term in the complaints filed against these companies “an elite roster of just over 100 songwriters.” The complaints specifically note that the songwriters include Bruce Springsteen, Bruno Mars, Drake, Pharrell Williams, John Lennon, and The Eagles.  The full list of songwriters and songs represented by GMR is available on their website here.  As these songwriters are no longer represented by ASCAP, BMI or SESAC, for a company to publicly perform any of these songwriters’ music, they either need a license from GMR or they need to directly license the music from the songwriters or their agents (or fit into one of the limited exemptions that we wrote about here, exceptions that would typically not cover commercial radio broadcasting).

The lawsuits seek $150,000 for each copyrighted work that was allegedly infringed – the maximum set out by the Copyright Act for “statutory damages,” i.e., damages that can be collected even without providing evidence of actual harm caused by the alleged copyright infringement. The allegations against one of the companies suggest that the company played over 100 GMR compositions more than 20,000 times without obtaining a license.  While courts have discretion to order far lower statutory damages than those being sought here, even the threat of such damages has been enough to put many of the original file-sharing music sites out of business. Of course, in this case, these damages are being sought not from some company that provides unauthorized, unlimited downloads of copyrighted music, but from radio companies that presumably are already paying other performing rights organizations for the use of music.
Continue Reading Lawsuits Filed Against Three Radio Companies Alleging That They are Playing Global Music Rights Songwriters Without a License – Background for the GMR Claims  

With regulatory fees due today, September 30, 2022 (extended from September 28 because of the effects of Hurricane Ian and some other technical issues with fee payment by this FCC Public Notice, with the date for waiver requests similarly extended by this Public Notice), it is time to look ahead to October and some of the regulatory dates and deadlines that broadcasters have coming in the month ahead.

October starts with the TV license renewal deadlines for Television, Class A, LPTV, and TV Translator Stations in Alaska, American Samoa, Guam, Hawaii, N. Marianas Islands, Oregon and Washington State.  The deadline for filing is October 3 as the 1st of the month falls on a Saturday, thus extending the deadline to the next business day.  As we have previously advised,  renewal applications must be accompanied by FCC Form 2100, Schedule 396 Broadcast EEO Program Report (except for LPFMs and TV translators).  Stations filing for renewal of their license should make sure that all documents required to be uploaded to the station’s online public file are complete and were uploaded on time.  Note that your Broadcast EEO Program Report must include two years of Annual EEO Public File Reports for FCC review, unless your employment unit employs fewer than five full-time employees.  Be sure to read the instructions for the license renewal application and consult with your advisors if you have questions, especially if you have noticed any discrepancies in your online public file or political file.  Issues with the public file have already led to fines imposed on TV broadcasters during this renewal cycle.
Continue Reading October Regulatory Dates for Broadcasters – Renewals and EEO Obligations, Quarterly Issues Programs Lists, Rulemaking Comments and More

As we wrote in several of our recent weekly summaries of regulatory issues for broadcasters, the FCC released a Public Notice the week before last announcing that regulatory fees must be submitted by 11:59 PM Eastern Time on September 28. This public notice set the deadline for the payment of fees established in the FCC’s Report and Order released just before Labor Day, which resolved objections to the higher fees that had been proposed for broadcasters by reducing those proposed fees somewhat (while still raising broadcaster’s fees on average about 8% over fees paid in prior years).  Since the Public Notice setting the fee payment deadline, the FCC has been busy issuing numerous notices, providing guides, and launching web pages with information about the fees and the procedures for paying those fees.

A notice that should be reviewed by all broadcasters owing fees is one issued on Friday when the FCC released another Public Notice setting the specifics for payment of the fees.  This notice details the payment process and requires that all payments be made through the FCC’s CORES database.  The notice also states that payments can only be made by credit cards, VISA or Mastercard debit cards, ACH transfers or wire transfers.  No cash or checks will be accepted.
Continue Reading More on FCC Regulatory Fees Due on September 28 – Public Notices on Payment Procedures, Deadlines, Amounts, and Waivers

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 additional public notices in connection with the upcoming September 28 deadline for submission of annual regulatory fees.

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