Programming Regulations

Earlier this week, we highlighted a letter sent last week from Congresswoman Anna Eshoo asking the FCC to review CALM Act complianceThe letter noted that the FCC has received thousands of complaints about loud commercials in the decade that the law has been in effect without having taken any enforcement action.  The FCC wasted no time in reacting, with Media Bureau issuing a request late Monday for comments on the current rules which implement the law and whether changes to those rules are needed.  Comments are due June 3, 2021, with reply comments due by July 9.

The CALM Act (the Commercial Advertisement Loudness Mitigation Act) was passed in 2011 due to the perception of many in Congress that the volume of commercials on broadcast, cable and satellite television was far higher than that in the programming that surrounded the commercials.  After the legislation was passed, the FCC adopted rules to implement the Act (which we described here).  Those rules were principally based on compliance with a set of ATSC (Advanced Television Systems Committee) recommended practices, to be enforced through a complaint-driven system. The FCC has updated those rules once (when ATSC updated its recommended practices – see our article here).  The FCC now asks if those rules should be revisited to make them more effective in combatting the perceived problem of loud commercials.
Continue Reading FCC Being Anything but CALM About Congressional Letter – Asks for Public Comments on CALM Act Enforcement

As we highlighted yesterday in our weekly summary of regulatory issues for broadcasters, last week saw a letter from Congresswoman Anna Eshoo to the FCC asking for the FCC to review the enforcement of the rules established by the CALM Act, which prohibits loud commercials on TV stations.  The letter cites news reports of thousands of complaints annually to the FCC since the rule’s adoption in 2012 without there ever having been an enforcement action against a station for any violation.  When the CALM Act was passed by Congress, there were many industry questions about how that law could be enforced, as there are many subjective judgments in assessing whether a commercial is louder than the program into which it is inserted (see our article here).  But, ultimately, the FCC adopted rules that were based on industry standards and most parties seemed to believe that they were workable (see our article here about the adoption of those rules).  Like many FCC rules, the CALM Act rules are complaint-driven, and even the article cited by Congresswoman Eshoo recognized the difficulty in assessing the merits of any complaint.

Nevertheless, with this letter and the publicity that it has received in the broadcast trade press, TV stations should carefully review their compliance with the CALM Act rules, as this publicity could signal that the FCC will turn its attention to this issue in the coming months.  In fact, with a Commission that is currently evenly divided between Democrats and Republicans until the vacant seat on the Commission is filled, enforcement of existing FCC rules may well be one place where the current Commission will turn its attention while more controversial (and potentially partisan) rule changes await FCC action.
Continue Reading Congressional Letter to FCC on CALM Act Violations Puts Focus on FCC Enforcement Issues

Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.

  • According to press reports, broadcasters should pencil in August 11, 2021 on their calendars for the next national test of

Here are some of the regulatory developments from 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.

  • The National Association of Broadcasters this week announced that its CEO, Gordon Smith, will be stepping down at the end

The broadcast trade press is full today with the news that NAB CEO Gordon Smith will be stepping back from that position at the end of the year, to be replaced by current COO (and former head of Government Relations) Curtis LeGeyt.  As many will remember, Smith took over the organization over a decade ago during a turbulent time for the industry.  At the time, TV stations faced increasing calls for other uses of the broadcast spectrum, and radio stations faced a possible performance royalty on their over-the-air broadcasts of sound recordings.  Since then, through all sorts of issues, there has been a general consensus in the industry that its leadership was in capable hands and meeting the issues as they arose.

But many issues remain for broadcasters – some of them ones that have never gone away completely.  The sound recording performance royalty for over-the-air broadcasting remains an issue, as do other music licensing issues calling for changes to the way that songwriters and composers are compensated, generally calling for higher payments or different compensation systems (see our articles here on the GMR controversy and here on the review of music industry antitrust consent decrees).  TV stations, while having gone through the incentive auction giving up significant parts of the TV broadcast spectrum, still face demands by wireless operators and others hungry for more spectrum to provide the many in-demand services necessary to meet the need for faster mobile services (see our articles here on C-Band redeployment and here on requests for a set aside of TV spectrum for unlicensed wireless users).  But competition from digital services may well be the biggest current issue facing broadcasters.
Continue Reading With a Change at the Top at the NAB as CEO Gordon Smith Plans His Departure – What are the Regulatory Issues That are Facing Broadcasters?

After so much turmoil in the last year, radio stations may be inclined to blow off some steam this year with some big April Fools” Day stunt.  But because of the continuing issues with the pandemic and social tensions throughout the country, a prank that may seem funny to some could trigger concerns with others.  As we do every year about this time, we need to play our role as attorneys and ruin any fun that you may be planning by repeating our reminder that broadcasters need to be careful with any on-air pranks, jokes or other on-air bits prepared especially for the day.  While a little fun is OK, remember that the FCC does have a rule against on-air hoaxes.  Issues under this rule can arise at any time, but a broadcaster’s temptation to go over the line is probably highest on April 1.

The FCC’s rule against broadcast hoaxes, Section 73.1217, prevents stations from running any information about a “crime or catastrophe” on the air, if the broadcaster (1) knows the information to be false, (2) it is reasonably foreseeable that the broadcast of the material will cause substantial public harm and (3) public harm is in fact caused.  Public harm is defined as “direct and actual damage to property or to the health or safety of the general public, or diversion of law enforcement or other public health and safety authorities from their duties.”  If you air a program that fits within this definition and causes a public harm, you should expect to be fined by the FCC.
Continue Reading Plan April Fools’ Day On-Air Stunts With Care – Remember the FCC Hoax Rule

After a long winter, spring has finally arrived and has brought with it more daylight and warmer temperatures—two occurrences that do not necessarily pair well with keeping up with broadcast regulatory dates and deadlines.  Here are some of the important dates coming in April.  Be sure to consult with your FCC counsel on all other important dates applicable to your own operations.

On or before April 1, radio stations in Texas (including LPFM stations) and television stations in Indiana, Kentucky, and Tennessee must file their license renewal applications through the FCC’s Licensing and Management System (LMS).  Those stations must also file with the FCC a Broadcast EEO Program Report (Form 2100, Schedule 396).

Both radio and TV stations in the states listed above with April 1 renewal filing deadlines, as well as radio and TV stations in Delaware and Pennsylvania, if they are part of a station employment unit with 5 or more full-time employees (an employment unit is a station or a group of commonly controlled stations in the same market that share at least one employee), by April 1 must upload to their public file and post a link on their station website to their Annual EEO Public Inspection Report covering their hiring and employment outreach activities for the twelve months from April 1, 2020 to March 31, 2021.
Continue Reading April Regulatory Dates for Broadcasters: License Renewal, Issues/Programs Lists, EEO, Webcasting Royalties and More

Here are some of the regulatory developments 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.

With Dr. Seuss recently in the news for the decision of his estate to pull from publication certain books that were racially insensitive, we thought that we would go back and look at another decision involving the good doctor that we did not get around to reviewing when it came out at the end of last year – the decision that a book, Oh, The Places that You Will Boldly Go, a mash-up of Dr. Seuss and Star Trek, was an infringement on the Seuss’ copyrights and did not qualify for fair use treatment.  Who knew that Dr. Seuss would play such a prominent role in legal and public policy!  As we summarize below, and as we have written before (see for instance our articles here and here), fair use is not a simple concept or one that is as broadly applicable as many in the media industry seem to think.

The decision from the 9th Circuit Court of Appeals in the Boldly Go case overturned a lower court opinion finding the book to be a parody of the original Seuss work (Oh, the Places You Will Go), and thus entitled to fair use protection.  The 9th Circuit found that Boldly Go was not a fair use, but instead an improper exploitation of the copyrighted work.  The Court reached its decision by reviewing the factors set out in Section 107 of the Copyright Act that are required for a fair use analysis.  This decision is one which all media companies should review carefully, as it makes clear that fair use is not as broad of a concept as apparently believed.  Importantly, fair use does not cover any use that may be an amusing adaptation of an original work.  For instance, I am often asked by radio companies whether taking a song and substituting a new set of lyrics that provide some funny commentary on some newsworthy topic is fair use.  As is evident from the analysis undertaken in the Boldly Go case, unless the “parody” is making fun of the original copyrighted work, it may well not qualify as a fair use and thus may be subject to a claim of copyright infringement.
Continue Reading Dr. Seuss and Fair Use – Just Because You Make a Funny Version of a Copyrighted Work Does Not Mean that You Will Escape an Infringement Claim

Here are some of the regulatory developments 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.

  • The FCC’s Enforcement Bureau reminded stations of their obligation to comply with all sponsorship identification rules and to disclose information