Programming Regulations

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In a decision released yesterday, the FCC renewed the licenses of three TV stations held by large broadcast groups, rejecting Petitions to Deny filed by a citizen’s organization arguing that the children’s educational and informational programming run by these stations was not sufficiently educational or informational to meet the requirement that stations run three hours per week of educational and informational programing. The licensees were able to present evidence that these programs where developed with expert guidance to insure that they in fact presented valuable messages to children and, based on that evidence (plus the fact that the challenged programing had been replaced by other non-challenged programming), the renewals were granted. However, the FCC warned stations to be careful in their assessments of the educational nature of children’s programs, as the FCC can sanction stations where that judgment is not deemed to be reasonable.

Every television station has an obligation to present an average of at least three hours per week of educational and informational programming directed to children who are 16 or under. That three hour requirement attaches to each programming stream broadcast by the station (including each digital subchannel – though the obligation can be met if all of the educational and informational programming is done on the main program stream of the station – so a news and weather subchannel does not need to do educational and informational programming if the main program channel does 6 weekly hours of such programming). Such programing is to be designed to serve the “cognitive/intellectual or social/emotional needs” of children. Obviously, what meets those needs can be a matter of debate.
Continue Reading FCC Renews Television Station Licenses after Challenges on the Educational Nature of Children’s Programming – With a Warning to Other Broadcasters

March is one of those rare months on the broadcast calendar when there are few routine regulatory deadlines for broadcasters. As we are winding down in the television license renewal cycle, the month’s only license renewal obligations for TV broadcasters are the pre-filing license renewal announcements on the 1st and 16th of the month for stations in Delaware and Pennsylvania, whose renewals are due on April 1, and the post-filing announcements for TV stations in New York and New Jersey. But there are still dates of interest to broadcasters in the month ahead. Here are some of those dates.

March also brings the obligation, by March 16 for TV stations to be in compliance with the Closed Captioning Quality Standards, which require that broadcasts assess and work to perfect the quality of the closed captioning carried on their stations. While the FCC is looking at bringing television program suppliers under these rules, as of now, the obligation for compliance with the rules is on the television broadcaster. We wrote about the captioning quality rules and the FCC’s recent proceeding to shift some of the burden to program suppliers here.
Continue Reading March Regulatory Dates for Broadcasters – Closed Captioning Quality Standards Effective Date, Comments on Online Public File, MVPD Status for Online Video Providers, LIFO for Political Ads, and FRNs for Biennial Ownership Reports

Last week, I listened in to presentation by RAIN News providing an excellent overview of the digital music industry (their Whitepaper setting out the findings reported during the presentation is available here).  One statement in that presentation suggested to me today’s topic – the use of music in podcasts.  In the RAIN presentation, a statement was made that most major podcasts are spoken word, but no explanation of that fact was provided. One of the biggest reasons for the lack of music in podcasts has to do with rights issues, as the royalties paid to SoundExchange and even to ASCAP, BMI and SESAC don’t apply to traditional podcasts meant to be downloaded onto a digital audio recording device like an iPhone or any other smartphone.  We wrote a warning about this issue a couple of years ago, but as the popularity of podcasts seems to once again on the rise, the warning is worth repeating.

The rights that a broadcaster or digital music company gets from ASCAP, BMI and SESAC (commonly called the “PROs” or performing rights organizations) deal with the public performance of music.  The PROs license the “musical work” or “musical composition” – the lyrics and the notes that make up the song.  They do not license particular recordings of the song.  As we have discussed before in other contexts, a public performance is a transmission of a copyrighted work to multiple people outside your limited friends and family (see our discussions here and here).  SoundExchange’s royalties also deal with public performance – but it is licensing the public performance of the sound recording – the words and music as recorded by a particular artist.  And SoundExchange only licenses such performances where they are made by a non-interactive service – where the user cannot determine what songs it will hear next (and where the service meets certain other requirements – see our article here for some of those additional requirements).  Podcasts don’t fit within the SoundExchange limitations, and while there has been some debate about whether the PROs have any licensing role in the podcast world (see this article), additional rights from music publishers (who usually control the musical composition copyright) are also needed.
Continue Reading Beware of Music in Your Podcasts – SoundExchange, ASCAP, BMI and SESAC Don’t Give You the Rights You Need

The FCC seems to be making another statement – releasing one decision upholding two very large fines against major cable programmers for improper use of EAS tones in ads for a movie, while just two days later releasing another decision approving a consent decree with a broadcaster imposing a penalty and monitoring conditions for using those tones in a radio show.  The first decision was by the full Commission.  It upheld a preliminary decision by its staff that we wrote about here, imposing fines of $1,120,000 against Viacom and $280,000 against ESPN.  The new case was against a Univision radio station in New York – agreeing in a consent decree to a $20,000 penalty.

The new case arose at a Spanish language station, where DJs in a comedy sketch on a morning radio show played the EAS tones repeatedly while joking about men who gain weight, and once even joking that playing the tone was illegal.  The FCC was alerted to the use of the tones by a radio listener who apparently was scanning the radio band, heard the tones and tried to determine what the emergency was – eventually figuring out that the alerts were not really part of an emergency at all.  The $20,000 penalty was combined with the FCC’s imposition of a requirement that the station prepare a compliance manual for its employees about the EAS system, conduct training programs, and report to the FCC about its compliance with the plan and the EAS rules for the next three years – including any EAS noncompliance at any of its stations.
Continue Reading More Big Penalties for Use of EAS Tones in Non-Emergency Programming

In odd numbered years like 2015, most broadcast stations don’t think about the FCC’s political broadcasting rules. But they should – and we have been receiving many calls from clients about the perhaps surprising number of elections that are taking place this year.  These include many races for state and local political offices, everything from school boards and city council to state legislative positions, plus the odd special election to fill vacancies in Congress or some other office.  As we have written before, most of the political rules apply to these state and local electoral races as well as to the few Federal elections that are taking place to fill open Congressional seats.

Candidates for state and local elections are entitled to virtually all of the political broadcasting rights of Federal candidates – with one exception, the right of reasonable access which is reserved solely for Federal candidates. That means that only Federal candidates have the right to demand access to all classes and dayparts of advertising time that a broadcast station has to sell. As we wrote in our summary of reasonable access, here, that does not mean that candidates can demand as much time as they want, only that stations must sell them a reasonable amount of advertising during the various classes of advertising time sold on the station. For state and local candidates, on the other hand, stations don’t need to sell the candidates any advertising time at all. But, once they decide to sell advertising time to one candidate in a state or local race, almost all of the other political rules apply. 
Continue Reading Reminder – Political Broadcasting Rules Apply Even to State and Local Elections

Who says that the Internet is not regulated?  Whether to treat Internet video providers by the same rules that apply to cable and direct broadcast satellite systems is the subject of a Notice of Proposed Rulemaking released by the FCC just before Christmas, notice of which was published in the Federal Register today, setting the comment dates on the proposal.  Comments are due by February 17, and replies by March 2.  This proceeding could have a substantial impact on Internet video providers – potentially extending FCC jurisdiction to a whole host of services not currently subject to its rules, and potentially subjecting Internet video services to all sorts of rules that apply to traditional MVPDs (multichannel video programming distributors), including the FCC’s EEO rules, captioning rules and CALM Act compliance.  Even the political broadcasting rules, which the FCC notes in the NPRM only specifically apply to cable and direct broadcast satellite rather than to MVPDs generally, could potentially be looked at in the future for these services should they come under FCC jurisdiction.  At the same time, the rules could also have an impact on program suppliers and broadcast networks, as various rules dealing with access to cable and broadcast programming could extend to Internet video providers, potentially conflicting with existing contractual obligations and even the Copyright Act.  What are some of the specific issues being considered?

The issues raised in the Notice are many – including the very fundamental one as to whether the FCC even has the authority to include Internet delivered video (what the FCC refers to as Over the Top or OTT providers) under the rules for MVPDs.  While the general definition of MVPD would seem to cover Internet video (as it covers anyone who makes multiple channels of video programming available for purchase by subscribers), it is not that simple.  As with any Federal law, one can’t just stop the analysis with a quick read of the statute.  The statute, in at least one place, defines a “channel” as a portion of the electromagnetic spectrum capable of delivering a TV channel.  And the FCC has defined a TV channel as one comparable to what is delivered by broadcast TV.  It’s that reference to “electromagnetic spectrum” that has tripped up previous services seeking an expansion of the MVPD definition.  In the case of Internet-delivered service called Sky Angel, the FCC staff 5 years ago determined that, as it was not a facilities based system – it did not control that electromagnetic spectrum on which its programming was delivered – it could not be an MVPD.  The full Commission sought comments on the staff decision then (see our article on that request for comments on Sky Angel here and here,) and, with the recent Aereo decision (see our articles here and here) and its aftermath, and the seemingly daily announcement of new online video service offerings from everyone from CBS to HBO to Dish and Disney, the FCC seems now ready to move with this expansion of its authority to cover video on the Internet.  Because of the potential for very similar video services to have very different regulatory burdens (cable and satellite could be subject to all the FCC MVPD rules, while the same programming, delivered by an Internet service, might have none of those obligations under the current regulatory interpretations), the majority of the FCC want to move forward with this proposal.  But it asks for comments on whether it really has the authority to do so. 
Continue Reading FCC Regulation of Internet Video? – Dates Set for Comments on Treating Over-the-Top Video Providers like Cable and Satellite TV

With the college football champion now decided, and the NFL league championships this coming weekend to decide this year’s Super Bowl teams, it’s that time when we post our warning about being careful with using the phrase “Super Bowl” in your promotions and commercials.  Both copyright and trademark issues can arise at Super Bowl time.  Trademark is usually the biggest concern, as there are always issues when broadcasters and advertisers don’t watch their commercials and promotions to avoid improper uses of a trademarked phrase like “Super Bowl.”  But copyright issues can also arise when broadcasters or others make a commercial use of part of the game’s TV coverage, or hold commercial paid viewing parties where proper rights to display the telecast has not been obtained.

First the trademark issues that arise not only with the Super Bowl, but also with other big brand events like March Madness which will begin to be hyped soon after the Super Bowl.  As we do every year when the Super Bowl and March Madness roll around, we remind broadcasters to scrutinize their advertising and promotions to avoid anything that appears to imply a tie-in with any of these events – especially where the trademark-protected name of the event is used in the ad or promotion itself. (See past articles here, here and here). 
Continue Reading Beware of the Trademark and Copyright Issues in Ads and Promotions Involving the Super Bowl

A consent decree, requiring $50,000 payment to the FCC by the licensee and programmer of a noncommercial radio station, demonstrates two potential problem areas for broadcasters involved in LMA or Time Brokerage (TBA) arrangements.  First, for noncommercial licensees it makes clear that the programmer cannot be paying the licensee any more for the programming time on the station than the costs of operation of the station itself – the licensee cannot “profit” from the LMA payments and use money for other non-broadcast activities of the licensee.  Second, for any party engaged in an LMA, it is important for the licensee to maintain control over station operations – even if the bulk of the programming is coming from its LMA partner.

The lesson of this case for the noncommercial licensee is that an LMA can’t be looked at as a revenue-generating activity for the licensee.  In this case, the licensee received significant LMA payments that were about twice the amount of the actual costs of its operation of the station.  These excess payments were to be credited to the ultimate purchase price of the station should the programmer choose to exercise an option at the end of the LMA term.  However, these payments were apparently not characterized as option fees, but instead as LMA payments.
Continue Reading $50,000 Penalty for LMA Operations – No Payments in Excess of Expenses for Noncommercial Licensees, and a Reminder that Licensee Must Remain in Control

With the obligation of television stations to file the quarterly Children’s Television Reports on FCC Form 398 by Monday (as the usual January 10 date is on a weekend) and the simultaneous requirement to place into their online public file documentation of compliance with the commercial limits in Children’s programming, it is worth reminding stations of the seriousness with which the FCC continues to view its children’s television rules.  There have been a number of fines and enforcement actions against TV stations in recent weeks, highlighting the need for stations to be vigilant about compliance with all aspects of the children’s television rules.  While the license renewal cycle, during which most of these issues come to light, is coming to an end in 2015 and stations that have already been renewed won’t face renewal scrutiny for at least another 5 years, issues that arise even this far out from the renewal window can haunt the station at the next renewal.  Moreover, with the public inspection files of stations now online, the FCC or other interested parties can view station’s compliance with these obligations at anytime from anywhere, and can easily file FCC complaints.  So TV stations cannot let down their guard simply because their license renewal has been granted.

In the past week, we saw one interesting case, where the FCC proposed to fine a station $3000 for failing to include the “E/I” symbol in the educational and informational programming directed to children on two of its multicast channels.  The FCC rejected arguments by the licensee that the programming on those channels was in Korean, and thus the E/I symbol would not make sense to the Korean viewers of the programing.  The Commission reasoned that, if the station wanted an exemption to the rules, where it could identify the programming as educational and informational in Korean text, the station should have asked for a waiver of the rules. 
Continue Reading Remember Children’s Television Compliance Obligations – The FCC Does Not Forget

Each year, at about this time, we pull out the crystal ball and make predictions of the issues affecting broadcasters that will likely bubble up to the top of the FCC’s agenda in the coming year.  While we try each year to throw in a mention of the issues that come to our mind, there are always surprises, and new issues that we did not anticipate. Sometimes policy decisions will come from individual cases, and sometimes they will be driven by a particular FCC Commissioner who finds a specific issue that is of specific interest to him or her.  But here is our try at listing at least some of the issues that broadcasters should expect from Washington in the coming year.  With so many issues on the table, we’ll divide the issues into two parts – talking about FCC issues today, and issues from Capitol Hill and elsewhere in the maze of government agencies and courts who deal with broadcast issues.  In addition, watch these pages for our calendar of regulatory deadlines for broadcasters in the next few days.

So here are some issues that are on the table at the FCC – starting first with issues affecting all stations, then on to TV and radio issues in separate sections below. 

General Broadcast Issues

There are numerous issues before the FCC that affect both radio and television broadcasters, some of which have been pending for many years and are ripe for resolution, while others are raised in proceedings that are just beginning. These include:

Multiple Ownership Rules Review: In April, the FCC finally addressed its long outstanding Quadrennial Review of the broadcast multiple ownership rules – essentially by punting most of them into the next Quadrennial Review, which probably won’t be resolved until 2016.  Issues deferred include any revisions to the local ownership limits for radio or TV (such as loosening the ownership caps for TV stations in smaller markets, which the FCC tentatively suggested that they would not do), any revision to the newspaper-broadcast cross-ownership rule (which the FCC tentatively suggested that they would consider – perhaps so that this rule can be changed before the newspaper becomes extinct), and questions about the attribution of TV Shared Services Agreements (which the FCC is already scrutinizing under an Interim Policy adopted by the Media Bureau).
Continue Reading What Washington Has in Store for Broadcasters in 2015 – Part 1, What’s Up at the FCC