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Late last week, the FCC advanced a number of proposals on how it will deal with LPTV stations and TV translators after the incentive auction and the repacking of the TV spectrum into whatever channels are left after part of the TV band is repurposed for wireless uses.  The Notice of Proposed Rulemaking raises a number of issues, including the potential for delaying the mandatory digital transition for LPTV stations and translators that continue to operate in analog.  The FCC also suggested a post-auction window for LPTV and translator stations to file for displacement channels if there current operations are no longer possible after the repacking of the TV band.  It also addressed the potential for LPTVs on Channel 6 being able to transmit, post-digital transition, an analog audio channel so that “Franken FMs” (“radio stations” received on FM radio receivers on 87.7 that really are the audio portion of the LPTV’s programming), can continue. 

Comments on these proposals will be due 30 days after publication of the Notice in the Federal Register, with reply comments 15 days thereafter.  Presumably, as the incentive auction is fast approaching, as is the current deadline for mandatory September 1, 2015 digital conversion of these stations (which we wrote about here when the deadline was adopted), the FCC will act quickly on the proposals that have been made.  So just what are the proposals on which the FCC is asking for comment?
Continue Reading FCC Proposals for Preserving LPTV and TV Translator Service after the Incentive Auction, Plus Proposals for Preservation of the Franken FM and an End to Analog Tuner Requirements

Could a change in the FCC treatment of Internet delivered video services be in the works – and how would that affect services like Aereo?  There were a number of published articles last week that suggested that the FCC was considering extending the definition of a Multichannel video programming distributor (MVPD) to over-the-top video providers or, as they are apparently being referred to, as Online Video Distributors (OVD) who provide linear programming like a cable or satellite company (as opposed to an on-demand provider like NetFlix).  While Chairman Wheeler at a press conference following last week’s open FCC meeting reportedly stated that the issue was “kicking around” implying that no decisions had been made, the FCC did announce that it was making a long-outstanding proceeding to look at this issue into a “permit but disclose” proceeding, meaning that parties can lobby the FCC on the issue as long as they file statements for the record disclosing the substance of their conversations with decision-makers.  What does all this mean?

If the Commission were to consider OVDs to be MVPDs, they would presumably be covered by all of the rules that apply to cable and satellite – including provisions that allow equal access to cable network programming in which the cable companies have a financial interest, and would also be subject to the must carry-retransmission consent regime that is applicable to other MVPDs, requiring MVPDs to negotiate with (and in many cases pay) TV stations to carry their programming.  The open proceeding to consider OVDs as MVPDs was started by a company called Sky Angel that focused on family-friendly programming.  The service initially delivered its programming by satellite, but migrated it to the Internet, at which time they wanted access to cable programming including Animal Planet.  When access to that programming was denied, they complained to the FCC.  The FCC staff initially denied the complaint, determining that MVPDs had to be “facility based,” meaning that they had to own the actual facilities that delivered the programming to the consumer.  The full Commission over two  years ago asked for public comment on whether this decision was correct – we wrote about that request for comment here and here – and the proceeding has essentially sat at the FCC ever since, until it began to get some renewed interest in connection with the Aereo case.
Continue Reading Will FCC Extend MVPD Rules to Online Video Providers – Including Retransmission Consent Fees and Program Access Rules?

With regulatory fees behind us, October brings a number of the routine quarterly regulatory filing dates.  October 10 for all broadcast stations, commercial and noncommercial, is the date by which your Quarterly Issues Programs lists, setting out the most important issues that faced your community in the last quarter and the programs that you broadcast to address those issues, need to be placed in the physical public inspection file of radio stations, and the online public file of TV broadcasters.  As missing and incomplete Quarterly lists have led to more fines in the recent license renewal violation than any other matter, and as the FCC staffers have been reviewing some of the TV station lists that are now posted in the online public inspection files of station, completing these forms on a timely basis remains very important. 

Full power TV and Class A TV stations by October 10 also need to have filed with the FCC their FCC Form 398 Children’s Television Reports, addressing the educational and informational programming directed to children that they broadcast.  Also, by that same date, they need to upload to their online public files records showing compliance with the limits on commercials during programming directed to children.  Children’s television reports have trailed right behind the Quarterly Issues Programs lists as the source of fines at license renewal time – so be sure that these are completed and filed on a timely basis as well. 
Continue Reading October Regulatory Dates for Broadcasters – Quarterly Issues Programs Lists and Children’s Television Reports, New Form for TV CP Applications, Comments on Captioning of Video Clips and Incentive Auction Reimbursement Form and More!

There are more and more signs that the FCC is moving forward aggressively with its “incentive auction” to purchase TV stations so that their licenses can be cancelled and their spectrum sold to and reused by wireless companies for wireless broadband purposes.  In two significant actions this week, the FCC gave broadcasters a first peek at the anticipated value of their stations in an incentive auction, and also clarified the interference standard that will be used by the FCC when they “repack” the stations that do not sell their licenses into a smaller post-auction TV band.  This Declaratory Ruling clarification seems to be addressed to answering some of the questions raised by the NAB in its appeal of the incentive auction order, about which we wrote here (an appeal which has been combined with a separate appeal of the incentive auction order by Sinclair Broadcasting).  But, to most television operators, the more interesting of the two actions is the report issued by the FCC suggesting the values that licensees in the various TV markets might get if they surrender their TV licenses in the incentive auction.

The Report was prepared by an investment banking firm retained by the Commission.  It sets out the procedures for the auction, and how the bidding will work. The report also contains an IRS letter suggesting the tax treatment that would be accorded licensees for incentive auction payments in various scenarios (e.g. a pure surrender of the license, or a surrender of a license as part of a channel sharing agreement, or a decision to move a station from UHF to VHF in exchange for FCC compensation).  But what most broadcasters were most interested in was the chart of projected maximum and median payments to full-power and Class A stations in each of the television markets across the country.  Those projected payments ranged from Los Angeles, where the FCC projected that the maximum that could be paid to a broadcaster for surrendering their license could be as much as $570,000,000, with the median value of a surrendered license being $340,000,000, to much smaller markets where the value, in the smallest television market of Glendive, Montana and in several smaller Alaska markets, where the FCC did not foresee any payments to TV broadcasters for surrendering their licenses.
Continue Reading TV Incentive Auction Moves Forward – FCC Estimates the Value of TV Stations and Clarifies the Interference Standard for Stations Who Remain After the Auction

We wrote last week about some of the upcoming issues on the FCC’s agenda for the very short term related to the TV incentive auction to clear part of the TV spectrum for use by wireless companies, and the subsequent “repacking” of the TV stations who do not sell their licenses in the auction into the new smaller TV band.  On Thursday, the FCC took a step to make that repacking somewhat more concrete – releasing a Public Notice where the FCC’s Media Bureau seeks comment on a draft TV Broadcaster Relocation Fund Reimbursement Form (the draft form is here, and draft instructions to the form can be found here).  This will be the form that broadcasters will use to claim payment from the government for the costs of the repacking.  The Bureau asks for comments on the draft Reimbursement Form.  The comments are due on October 27, 2014.

The form provides a checklist of likely expenses, asking for details of the equipment to be bought and other expenses to be incurred in making the transition, including both hardware costs and soft costs including the reimbursement of tower crews, consulting engineers and even broadcast attorneys for filing the necessary FCC forms.  Broadcasters should carefully review the draft form to make sure that it anticipates all categories of expected expenses that stations may incur in the repacking process.
Continue Reading FCC Seeks Comments on Form for Reimbursement of Expenses for Technical Changes Caused By Repacking the Television Specrum After the Broadcast Incentive Auction

While many broadcasters have been watching Capitol Hill as Congress debates the issues surrounding the extension of satellite TV’s copyright permission to retransmit over-the-air television signals, and the attempts to add other provisions to the bill that could affect television stations, there are a number of issues teed up at the FCC that could also affect the industry.  In the tentative agenda for the September 30 FCC open meeting, there are two issues being considered that have impact on TV.  One has received much press coverage is the repeal of the sports blackout rule that leads to the blackout of local coverage of NFL games when the game is not sold out.  From a blog post by the Chairman (available here), and statements of other commissioners, it appears that this rule is headed for repeal – though the actual blackouts may continue by contract rather than FCC mandate. 

The other issue on the agenda that has received less press, and about which less is known, is changes to the rules on white-spaces devices, those wireless devices that have been authorized to operate on a non-interference basis in the portions of the TV band that are not being used in particular markets.  We wrote about the adoption of the current rules, here, and we will be watching to see what changes to these rules are adopted later this month.  Also on the agenda, with possible relevance to television and other media companies, is an item to further consider how to regulate the use of wireless microphones.
Continue Reading FCC Action on TV Issues Coming Soon – Sports Blackout Rule, White Spaces, Post-Auction Treatment of LPTV and TV Translators, and OET-69 Revisions

The FCC’s planned incentive auction, by which the Commission hopes to pay broadcasters to surrender some of their TV licenses so that these stations’ spectrum can be repurposed for wireless broadband uses, is almost impossible to define in a simple blog post.  The FCC issued its Order on the Incentive Auction process several months ago and, despite that order being over 300 pages long, many issues remain unresolved.  Last month came the announcement that the National Association of Broadcasters had filed a court challenge to that order (on the first business day after the order was published in the Federal Register, meaning that there is still two weeks in which additional challenges may be filed in Court).  While the NAB is seemingly limiting its current challenge to a few issues (according to a Blog post on the NAB website), there still are many other issues to which broadcasters have no final answers as there are further proceedings yet to come that will help to decide exactly how the process will play out for TV stations in the coming years.  What did the NAB challenge, and what other issues for broadcasters are left to be resolved?

So far, the NAB has only needed to file a notice with the court stating that it is challenging the order.  That is a very limited pleading that gives only the most cursory outline of the NAB’s grounds for its objections to the rules.  Details of all of the grounds for the objections to the ruling do not need to be included in the appeal notice.  Instead, the details will be set out in the NAB’s brief in the case, which will likely not be due for several months.  In the interim, there have been some pleadings asking for expedited processing of the appeal, supported by both the NAB and the FCC, so as to not delay the auction (or to avoid having the auction take place before the appeal is resolved).  From these pleadings, and from an NAB press release and the Blog post referenced above, the principal reasons for the NAB’s challenge can be discerned.  Essentially, there appear to be two issues that are raised.
Continue Reading NAB Brings Court Challenge to Incentive Auction Rules – As Broadcasters Wait For More Details on the Auction Process

Right as everyone was preparing to leave town for the long weekend, the FCC issued its Report and Order on the regulatory fees for 2014, and also issued a Public Notice setting the deadline for paying those fees as 11:59 PM on September 23.  For broadcasters, the FCC also issued a Mass Media Fee Filing Guide providing details on the fee filing process, and provided a fee “look-up” tool on the Commission’s website to see what the fees are for a particular station.  The FCC adopted all the fees for broadcast stations as proposed in its Notice of Proposed Rulemaking (about which we wrote here) with the minor exception of its fees for TV stations, where there were very slight adjustments in the amounts to be paid.  The fees for all categories of broadcasters are provided at the end of this article. 

There are a couple of new wrinkles in the fee filings for broadcasters for this year.  First, there will be no more no more checks or other paper forms of payment.  All payments must be made electronically, through wire transfers, electronic payments, or with a credit card.  If you send a check, it will be returned, and you will be assessed a late fee if the electronic payment is not made by the 23rd.
Continue Reading FCC Regulatory Fees Due On or Before September 23 – What’s New for This Year’s Fees?

The Commission has set the date for comments on it Further Notice of Proposed Rulemaking on certain aspects of the captioning of Online Video clips.  We recently summarized the FCC action setting up compliance deadlines for the captioning of video clips taken from programs that are shown on TV with captions, and then repurposed for online use.  While the Commission has already established the obligations for TV broadcasters to take these clips and caption them when shown online on the broadcaster’s own website or through its own app, there are still certain areas to which the rules have not yet been extended on which comments are sought. The Comment deadline is October 6, with replies due November 3 (see the full text of the FCC decision here, and the Federal Register publication of the comment dates here).  What is being considered?

Basically, questions are asked about three areas. The first is whether to require that clips be captioned when they are shown on third-party websites.  The current rules require that full programs shown on TV and repurposed to the Internet be captioned when shown on third-party sites, but the new rules for clips were not immediately extended that far, as the Commission seeks comments on the costs and difficulties that might exist in such an extension.
Continue Reading Comment Dates Set for Rulemaking on the Required Captioning of Online Video Clips – What is Being Considered?

As we wrote in our previous articles on the music licensing issues being considered during this summer of copyright (here, here and here), one of the concerns driving many of the proposed reforms is the current demand of songwriters and publishing companies for a larger share of the music royalty pie.  In licensing the public performance of musical compositions, ASCAP and BMI represent the vast majority of songwriters, with SESAC representing far fewer writers (together ASCAP, BMI and SESAC are referred to as the “PROs,” the performing rights organizations).  ASCAP and BMI, having such a significant representation of musical compositions, have for over 50 years been subject to antitrust Consent Decrees that limit their operations and oversee the rates that they set for the use of their music.  Among the many requirements under the consent decree are those that obligate ASCAP and BMI to license all users of music who are similarly situated under the same rates and standards, and the oversight of a “rate court” to determine whether rates are reasonable whenever either of the PROs can’t agree on the amount of those rates with a class of music users.  In June, the US Department of Justice asked for public comment on several aspects of the consent decrees, and whether modifications of the decrees were called for.  Comments on the DOJ notice are due today.  Why was this proceeding started, and what is the DOJ looking at?

In two recent hearings examining music licensing, the motivations for ASCAP and BMI to seek changes in the consent decrees were discussed.  The first proceeding was a Copyright Office roundtable held in Nashville in June, in which I was a participant.  There, representatives of ASCAP discussed potential changes to the laws dealing with music licensing. The second was at the two part House Judiciary Committee hearing on music licensing held in late June.  ASCAP and BMI representatives in these forums suggested that there were several objectives in their seeking these reforms, and several specific changes that were requested in the Consent Decrees.  These include the following:

  • Replacing the rate court judges who determine rates when ASCAP or BMI don’t reach an agreement with a company that uses music (currently US Federal District Court Judges in the Southern District of NY) with an arbitration panel.
  • Instead of setting “reasonable rates” as required under the current consent decrees, the PROs request that a new standard be used to set rates – the willing buyer willing seller standard currently used in setting Internet radio sound recording performance royalty rates.
  • Allow publishers to withdraw some of their compositions from the PROs for licensing to certain classes of companies – specifically to withdraw so that the publishers can negotiate with digital media companies at rates that are not overseen by a rate court, while still leaving those same compositions with the PROs to collect from business establishment services (retail businesses that use “background” music) and potentially over the air radio stations – companies where there are lots of licensees who pay small amounts, making it difficult for anyone but a large, well-established company like ASCAP or BMI to pursue
  • Allow ASCAP and BMI to do more than simply license the public performance rights to music services – most likely allow them to provide reproduction and synch rights to the music that they license.
  • To impose interim royalties on any service that asks to be licensed, until an appropriate rate for that service can be set

What prompted this desire to change the consent decrees, and what will the DOJ be doing with the information it collects?
Continue Reading The Summer of Copyright Part 4 – The Department of Justice Reviews the ASCAP and BMI Consent Decrees – What Should Broadcasters and Music Services Know?