Noncommercial Broadcasting

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). 

Continue Reading CRB Releases Proposed ASCAP, BMI, SESAC and GMR Rates for Noncommercial Broadcasters

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.

2023 has begun – and everyone is speculating as to what the New Year will bring.  Last week, we published an article looking at some of the regulatory issues that the FCC will potentially deal with this year.  But some regulatory dates are already on the calendar, and broadcasters need to be aware of the obligations that they impose.  So, each year, at about this time, we put together a look at the regulatory dates ahead for broadcasters.  This year is no different – and we offer for your review our Broadcasters’ Regulatory Calendar for 2023.  While this calendar should not be viewed as an exhaustive list of every regulatory date that your station will face, it highlights many of the most important dates for broadcasters in the coming year – including dates for EEO Public Inspection File ReportsQuarterly Issues Programs listschildren’s television obligations, annual fee obligations, retransmission consent/must-carry elections, the Biennial Ownership Report due later this year, and much more.

There seem to be fewer dates highlighted than on last year’s calendar.  That’s because there are two sets of deadlines that are not as significant this year.  With the license renewal cycle almost at its end, the calendar just contains information about license renewals for the 4 states (New York, New Jersey, Pennsylvania, and Delaware) whose television stations have license renewal applications due in the last two renewal cycles (February 1 deadlines for New York and New Jersey TV stations, and April 1 for stations in the other two states). 

Continue Reading Broadcasters’ Calendar – A Look Ahead to the Regulatory Dates for 2023

The new year brings a series of regulatory deadlines in January and a February 1 license renewal deadline that broadcasters should take note of.  As in 2022, the FCC will remain vigilant in making sure that its deadlines are met, so the following items should not be overlooked or left until the last minute.

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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.

  • By a Public Notice issued on December 15, the FCC’s Public Safety and Homeland Security Bureau told broadcasters to submit

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