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In 10 days, we’ll mark the 12th anniversary of my first post welcoming readers to this Blog.  I’d like to thank all of you who read the blog, and the many of you who have had nice words to say about its contents over the years.  In the dozen years that the blog has been active, our audience has grown dramatically.  In fact, I’m amazed by all the different groups of readers – broadcasters and employees of digital media companies, attorneys and members of the financial community, journalists, regulators and many students and educators. Because of all the encouragement that I have received from readers, I keep going, hopefully providing you all with some valuable information along the way.

I want to thank those who have supported me in being able to bring this blog to you.  My old firm, Davis Wright Tremaine LLP helped me get this started (and graciously allowed me to take the blog with me when I moved to my current firm six years ago).  My current firm, Wilkinson Barker Knauer LLP, has also been very supportive, and I particularly want to thank several attorneys at the firm (especially David O’Connor and Kelly Donohue) who help catch, on short notice, my typos and slips in analysis for articles that I usually get around to finishing shortly before my publication deadline.  Also, a number of other attorneys at the firm including Mitch Stabbe, Aaron Burstein, Bob Kirk and Josh Bercu have contributed articles, and I hope that they will continue with their valuable contributions in the future.  Thanks, also, to my friendly competitors at the other law firms that have taken up publishing blogs on communications and media legal issues since I launched mine – you all do a great job with your own take on the issues, and you inspire me to try to keep up with you all. …
Continue Reading 12 Years of the Broadcast Law Blog – Where We Have Been and What We Are Looking at Next

On Monday, the US Supreme Court issued an opinion striking down a Federal law (the Professional and Amateur Sports Protection Act or “PASPA”) which prohibited state legislatures from taking any action to legalize betting on sports. PASPA also contained a restriction on advertising sports betting. The state of New Jersey challenged that law, arguing that it improperly limited the authority of state legislatures to act. The Supreme Court agreed, and invalidated the entire Act, including the restriction on advertising sports betting. Some trade press articles have suggested that this signals a boom for broadcasters and other ad-supported media companies as companies rush to start advertising legal sports betting now that the prohibition is gone. While in the long run that may be true, and there may be immediate benefits to stations in certain states, there are numerous caveats for broadcasters to consider before they recognize an advertising boom from sports betting companies.

The entire decision was not based on any analysis of whether or not betting on sports is a good thing, but instead it was a decision based exclusively on a question of state’s rights. The Supreme Court determined that Congress cannot tell state legislatures what they can and cannot do. While Congress may have the authority to ban or otherwise regulate sports betting, if they wanted to regulate it, they should have done so directly. Instead, as the law prohibited state legislatures from taking action to legalize sports betting and other actions predicated on that limitation on states rights, the Supreme Court determined that this was an exercise of authority that Congress does not have – Congress can’t tell state legislatures what to do. Based on the Court’s analysis that all parts of the act were premised on this ban on state legislative actions, the entire law was struck down. That means that there is no blanket federal ban on sports betting, and it leaves each state to regulate as it may wish. For companies ready to take bets on sporting events, and media companies who want to take advertising from sports betting companies, in most cases they need to wait for the states to make decisions on how to proceed.
Continue Reading Supreme Court Strikes Down Law against Sports Betting – But Broadcasters Need to Proceed with Caution

This week’s political primaries in Texas are but the first of many more election contests that will occur between now and November. Already, we are receiving client calls about the political rules, how they should be applied, and what stations should be considering in anticipation of the upcoming elections. I’ve discussed the general FCC issues to be considered by broadcasters in many different ways. In January, I conducted a webinar for two state broadcast associations on these issues, following a similar webinar that I conducted with the head of the FCC’s office of political programming back in November for about 20 additional state associations. The slides from the most recent webinar are available here. Our firm also has available a Guide to Political Broadcasting, here, that provides information about many topics that come up in this area every year. But, with the election still months away, and in many states primaries that don’t occur until the summer, are there issues that broadcasters should be considering today?

Yes – there are many such issues that broadcasters should be considering immediately. As we wrote here prior to the last Presidential election, it is important to start planning early for an election. As that article details, and as set out in our Political Broadcasting guide, there is much planning for lowest unit rates that needs to take place now – before the actual windows (45 days before the primary and 60 days before the general election) in which those rates apply. Stations are likely selling advertising schedules that will run during the windows later this year, and they are putting together advertising packages that will be offered to commercial advertisers during the window. Consideration needs to be given now as to how that advertising will be treated to avoid unwanted lowest unit rate implications during the window.
Continue Reading It’s Political Broadcasting Season Again – What Broadcast Stations Should Be Thinking About Now, Before the Lowest Unit Rate Windows Open

At the FCC’s open meeting last week, the Commission adopted new policies for assessing and computing foreign ownership of broadcast companies – particularly such ownership in public companies. The Commission’s Report and Order on this matter is dense reading, dealing with how companies assess compliance with the rules which limit foreign ownership to 20% of a broadcast licensee and 25% of a holding company unless there is a finding by the FCC that the public interest is not harmed by a greater foreign ownership interest. The rules adopted last week were principally an outgrowth of the petition for declaratory ruling filed by Pandora which sought FCC approval, in connection with its acquisition of a radio station, for foreign ownership of greater than 25%. Pandora did not file such a petition because its foreign ownership exceeded that percentage, but instead because, based on the FCC methodology in use at the time, Pandora could not prove that it was in compliance (see our summary of the Pandora petition here). The new rules adopted last week essentially reverse the presumption to which Pandora had to comply – rather than assuming that there was a compliance issue because a company cannot prove that its foreign ownership was less than 25%, the FCC will now conclude that there is an issue only where a company, based on knowledge either that it has or should have, actually knows that there it has a foreign ownership compliance problem.

The order requires that public companies regularly take steps to assess their owners to determine if there are potential foreign ownership issues. A public company should know who certain shareholders are, either because they are insiders (e.g. officers and directors) or because they are otherwise known to the company (e.g. through proxy fights, shareholder lawsuits or because they are in some way doing business with the company). Other shareholders can be determined through an array of filings made at the SEC – including filings made when a shareholder exceeds holdings of 5% of the stock of a company, and other filings made by companies that manage more than $100 million in assets who are required to report on their stockholdings. In addition, there are other public sources of information about funds and other investment companies that buy the stock of broadcast companies, from prospectuses to Internet news stories. Public broadcast companies need to monitor all of these sources of information to see whether they potentially have a problem with foreign ownership. The FCC did not require that these companies take other measures that had been used in the past or suggested in the Notice of Proposed Rulemaking in this proceeding (about which we wrote here).
Continue Reading FCC Updates Foreign Ownership Compliance Policies for Broadcast Companies

The Federal Aviation Administration’s (“FAA’s”) recently established rules to allow the commercial operation of small unmanned aircraft systems (“sUAS”) – more commonly known as “drones” – took effect on Monday, August 29, 2016.  We previously wrote about these rules (and the opportunities and risks they present for broadcasters) here and here.  For those eager to get their newsgathering drones off the ground, here are a few things to keep in mind:

Certification.  Under the new rule, all operations must be conducted by, or under the supervision of, a person who holds a “remote pilot certificate.”  The least resource-intensive way to achieve this certification is for licensed pilots (with up-to-date flight reviews) to take a free online training course.  Novice flyers without a pilot’s license are required to pass an aeronautical knowledge test and also meet certain age and security clearance requirements.  Luckily, there are resources available (here and here) to usher you through the process.
Continue Reading Reminder that Broadcasters May Now Leverage the FAA’s Small Drone Rules

New FAA rules for drones were recently approved, and the rules may provide more opportunities for broadcasters to get in the game.  Emilie de Lozier from my firm offers these thoughts:

Broadcasters, prepare for takeoff later this summer.  The Federal Aviation Administration recently finalized rules to broadly permit the commercial operation of small unmanned aircraft systems (“sUAS”) – or drones – provided certain requirements are met.  The new rules are in many cases more permissive than the existing regulatory framework, but some potential pitfalls remain.  Rest assured, we are here to help you navigate the complexities of this new regime.  Below we provide a high-level discussion of the new rules and their effect on broadcasters’ future sUAS operations to support newsgathering.

We previously wrote about the FAA rulemaking to develop these rules here.  As a quick refresher, in 2012, Congress directed the FAA to develop a plan for incorporating drones into the national airspace.  In the meantime, the FAA created an exemption process pursuant to Section 333 of the FAA Modernization and Reform Act of 2012 to authorize commercial UAS operations on a case-by-case basis.  The FAA has granted more than 5,000 exemption requests to date, including for newsgathering purposes, and thousands of these requests remain pending.  (If your petition is among those pending, you should monitor your petition docket for a status update from the FAA in the coming weeks.)  The new rules are intended to minimize the need for parties, including broadcasters, to seek such exemptions.
Continue Reading FAA Clears Small Drones for Takeoff: What You Need to Know

Yesterday marked the 10th anniversary of my first post welcoming readers to this Blog.  I’d like to thank all of you who read the blog, and the many of you who have had nice words to say about its contents over the years.  In the ten years that the blog has been active, our audience has grown dramatically.  In fact, I’m amazed by all the different groups of readers – broadcasters and employees of digital media companies, attorneys and members of the financial community, journalists, regulators and even students and teachers. The blog was recently profiled on Lexblog Leaders, relaying some of the stories about readers that I have discovered, and I have many more such stories.  Because of all the encouragement that I have received, I’ve keep going, hopefully providing you all with some valuable information along the way.

I want to thank those who have supported me in being able to bring this blog to you.  My old firm, Davis Wright Tremaine LLP helped me get this started (and graciously allowed me to take the blog with me when I moved to my current firm four years ago).  My new firm, Wilkinson Barker Knauer LLP, has also been very supportive, and I particularly want to thanks several attorneys at the firm (especially Rosemary Harold, David O’Connor and Kelly Donohue) who help catch, on short notice, my typos and slips in analysis for articles that I usually get around to finishing shortly before my publishing deadline.  I’ve also published a number of articles written by my colleagues, and I hope that they will continue with their valuable contributions in the future.  Thanks, also, to my friendly competitors at the other law firms that have taken up publishing blogs on communications and media legal issues since I launched mine – you all do a great job with your own take on the issues, and you inspire me to try to keep up with you all. …
Continue Reading It’s Our Anniversary – A Decade of the Broadcast Law Blog

Many are sitting around enjoying their holiday treats while listening to the Beatles on their favorite on-demand streaming service, and the press is treating this as a breakthrough – usually omitting the fact that the Beatles have been available on many streaming services for as long as there have been streaming services, namely on Internet radio.  We’ve twice written about this fact, first when the Beatles became available on iTunes, here, and then on the 50th anniversary of their invasion of America, here.  And we also recently wrote about the same legal issues which explained why Adele could withhold her new recording “25” from many streaming services, but not from Internet radio.  With the Beatles back in the headlines, for some post-Christmas holiday reading, we thought that we would reprise our 2014 article about the Beatles long absence from on-demand streaming services.  Here it is:

50 years ago the Beatles invaded America, stacking up Number 1 hit records by the dozens, and creating music that, even today, remains incredibly popular with many Americans.  But go to many of the interactive or on-demand music services, like Spotify, and search for Beatles music, and what will you find?   Mostly cover tunes by sound-alike bands rather than the original hits.  But yet, on services where you can’t designate your next song, like Pandora, you can hear the original songs.  Why the difference?
Continue Reading Big News That the Beatles Are Now Available on Streaming Services? – Actually They Have Been on Internet Radio All Along

With the Martin Luther King Day holiday just passed, it seems appropriate to review the FCC’s EEO rules, which look to promote broad access to broadcast employment opportunities.  The FCC’s EEO rules no longer seek exclusively to promote minority employment, but instead seek to have stations reach out to all groups within the area they serve to try to attract people from diverse sources into broadcasting – rather than allowing stations to simply recruit through word-of-mouth and traditional broadcast sources (e.g. referrals from consultants and friends).  We have written about the FCC audit process by which it will review the EEO performance of approximately 5% of all broadcast stations each year (see, e.g. our articles here and here) and also about recent fines for stations that did not comply with the FCC requirements in specific areas.  With EEO review also expanding this year through the filing of FCC Form 397 Mid-Term Reports by radio station clusters with 11 or more full-time employees located in certain states (see the list of states on our Broadcasters’ Regulatory Calendar), it might be good to review the basics of the FCC’s EEO requirements.

The FCC requirements, beyond forbidding any station from engaging in overt discrimination, also requires broad outreach to a station’s community to recruit for open employment positions at any station, as well as efforts to educate the community about the duties of and qualifications for  positions at broadcast stations, whether or not a station has any job openings.  These requirements apply to any station employment unit (a group of commonly-owned stations serving the same general geographic area and having one or more common employees) with 5 or more full-time (30 hours per week or more) employees.  What do the outreach rules require of stations?
Continue Reading Reminder: A Broadcaster’s FCC EEO Obligations