Discussion of FCC, copyright, advertising and other legal issues of importance to radio and television broadcasters and other media companies
Principal Editor: David O’Connor
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.
The…
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.
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This has obviously been a most unusual year. So, on this Giving Tuesday (and it is also near my birthday, perhaps contributing to the desire to do something different), I thought that I would depart from our usual coverage of legal and policy issues and talk about something else – broadcasters giving back. Broadcasters have long been known for their service to their communities, service celebrated in a statement by soon-to-depart Chairman Pai and in a tweet from Commissioner Rosenworcel (a potential replacement for the chairman in a new administration) on commercial radio’s 100th anniversary last month. And while broadcasters are always giving back to their communities and should be celebrated for that, those of us who make our living in some aspect of the industry should recognize that there are plenty of ways for us to give back as well – both to those in the industry who are not as fortunate as some of the familiar success stories we hear, and to those who need assistance in obtaining education and training to enter the media industry we so appreciate.
During this year, those of us who have remained healthy and employed are truly blessed. While it may be a cliché, you don’t realize what you have until it is gone. We should all be thankful for jobs, friends and good fortune, and I urge readers who can to give back where possible. In the broadcast industry itself, there are many groups doing good work. One in particular that I think bears mention is the Broadcasters Foundation of America, which provides relief to broadcasters and former broadcasters who have, for one reason or another, fallen on hard times – whether that be for health reasons or because of some other disaster that has affected their lives. The Foundation deserves your consideration. More about the Foundation and its service, and ways to contribute, can be found at their website, here.
Continue Reading Broadcasters and Giving Tuesday
The FCC announced on Friday that it will be hosting a symposium on the state of the broadcast industry on November 21. On that day, there will be a panel in the morning on the state of the radio industry and one in the afternoon on television. The Public Notice released Friday lists a diverse group of panelists, but says little beyond the fact that the forum will be occurring. What could be behind the Commission’s decision to host this session?
The FCC is working on its Quadrennial Review of its ownership rules (see our articles here and here). There were many who expected that review to be completed either late this year or early next, with relaxation of the radio ownership rules thought to be one of the possible outcomes. Of course, quick action may have been derailed by the decision of the Third Circuit Court of the Appeals to vacate and remand the Commission’s 2017 ownership order. The court’s decision unwinds the FCC’s 2017 order which included abolition of the broadcast newspaper cross-ownership rule and the rule that limited one owner from owning two TV stations in the same market unless there were 8 independent television operators in that market – see our article here on the 2017 decision and our article here on the Third Circuit’s decision. The basis of the Third Circuit decision was that the FCC did not have sufficient information to assess the impact of its rule changes on minority ownership and other potential new entrants into broadcast ownership. If the FCC did not have enough information to justify the 2017 decisions, many believe any further changes in its rules are on hold until the FCC can either satisfy the court’s desire for more information on minority ownership or until there is a successful appeal of that decision. Even though FCC changes to its ownership rules may be in abeyance, the November 21 forum can shed light on the current state of the industry and why changes in ownership rules may be justified.
Continue Reading FCC To Hold Symposium on Radio and TV Industry – What Does it Mean for Broadcast Regulation?
In many states, we are in election season for local offices, which has resulted in a question that has come up repeatedly in the last few weeks about local candidates – usually running for state or municipal offices – who appear in advertisements for local businesses that they own or manage. Often times, these individuals will appear in their business’ ads outside of election season, and don’t want to stop appearing in those ads during their bid for elective office. We wrote about this question in an article published two years ago and again a bit more than a year ago. But, as the question continues to come up, it is worth revisiting the subject. What is a station to do when a local advertiser decides to run for office?
While we have many times written about what happens when a broadcast station’s on-air employee runs for office (see, for instance, our articles here, here and here), we have addressed the question less often about the advertiser who is also a candidate. If a candidate’s recognizable voice or, for TV, image appears on a broadcast station in any “positive” way, whether it is political in nature or not, it is considered a “use” by the political candidate. What is a “positive” use? Basically, it is any appearance that is not negative to the candidate (i.e., it is not in an ad attacking that candidate). To be a positive “use” by the advertising candidate, the appearance must also be outside of an exempt program (in other words, outside of a news or news interview program which, as we wrote here, is a very broad category of programming exempt from the equal time rules).. “Uses” can arise well outside the political sphere, so Arnold Schwarzenegger movies were pulled from TV when he was running for office, as were any re-runs of The Apprentice and The Celebrity Apprentice featuring Donald Trump. An appearance by a candidate in a commercial for his or her local business is similarly a positive “use” which needs to be included in a station’s political file (providing all the information about the sponsor, schedule and price of the ad, as you would for any pure political buy). But that does not necessarily mean that a station needs to pull the ad from the air.
Continue Reading When a Broadcast Advertiser Becomes A Political Candidate, What is a Station to Do?
Once upon a time, August was a quiet month in Washington, when everyone went on vacation. Sure, there are plenty of vacations that will happen this coming month, but it seems that regulatory activity no longer takes a break. For example, August 1 is the due date for the filing with the FCC of license renewals for all radio stations (including translators and LPFM stations) in North and South Carolina, and the filing of associated EEO forms for all full power radio stations in those states. With the renewal filing comes the obligation that these stations start airing, on August 1 and August 16, their post-filing announcements informing the public about the submission of the license renewal applications. Radio stations in Maryland, Virginia, West Virginia and the District of Columbia, who filed their renewals on or before June 2, also need to keep running their post-filing announcements on these same dates. Radio stations in Florida, Puerto Rico and the Virgin Islands, who are in the next license renewal group with their renewal applications to be filed by October 1, need to start broadcasting their pre-filing announcements this month, also to run on the 1st and 16th of the month. See our post here on pre-filing announcements.
Commercial and noncommercial full power and Class A Television Stations and AM and FM radio stations in California, Illinois, North Carolina, South Carolina, and Wisconsin that are part of an employment unit with five or more full-time employees must place their annual EEO public inspection file reports in their online public file. Links to those reports should also be placed on the home pages of these station’s websites, if they have a website. The effectiveness of these EEO public file reports, and the EEO programs of which they are a part, are being reviewed by the FCC in a proceeding started by a Notice of Proposed Rulemaking about which we wrote here. Comments on this notice asking for suggestions about how to make the EEO rules more effective are due August 21, with reply comments due by September 5.
Continue Reading August Regulatory Dates for Broadcasters – License Renewals, EEO, Music Consent Decree Comments, EAS Test, LPFM NPRM and More
The Department of Justice’s Antitrust Division yesterday announced that it was starting a review of the ASCAP and BMI antitrust consent decrees that govern the United States’ two largest performing rights organizations for musical compositions (referred to as the “musical work”). The DOJ’s announcement of the initiation of the examination of the consent decrees poses a series of questions to which it invites interested parties – including users, songwriters, publishers and other interested parties – to file comments on the decrees, detailing which provisions are good and bad and, more broadly, whether there is a continuing need for the decrees at all. Comments are due on July 10.
This re-examination of the decrees has been rumored for many months. Back in March, we wrote about those rumors and the role that Congress may play in adopting replacement rules should the DOJ decide to fundamentally change the current provisions of the consent decrees. The DOJ itself just recently looked at the consent decrees, starting a review only 5 years ago with questions very similar to those it posed yesterday (see our post here on the initiation of the last review 5 years ago). That review ended with the DOJ deciding that only one issue needed attention, whether the decrees permitted “fractional licensing” of a song. We wrote about that complex issue here. That issue deals with whether, when a PRO gives a user a license to play a song, that user can perform the song without permission from other PROs when the song was co-written by songwriters who are members of different PROs. The DOJ suggested that permission from one PRO gave the user rights to the entire song, an interpretation of the decrees that was ultimately rejected by the rate courts reviewing the decrees (see our article here). So, effectively, the multi-year review of the consent decrees that was just concluded led nowhere. But apparently the DOJ feels that it is time to do it all again. To fully understand the questions being asked, let’s look at what the consent decrees are, and why they are in place.
Continue Reading DOJ Starts Review of BMI and ASCAP Consent Decrees – Exploring the Background of the Issues
Looking for a brief explanation of the online public inspection file and Quarterly Issues Programs List, and how they will be viewed in connection with the upcoming license renewal cycle – including the potential fines for violations of the rules? The Indiana Broadcasters has just released this video of me discussing those issues available…
The FCC routinely, at the request of Congress, does a study of the Video Marketplace. That study is submitted to Congress so that Congress can use it as a factual basis for any legislative issues that may come up dealing with the TV marketplace. The FCC has not previously done this sort of routine study of the audio marketplace. However, in recent legislation, Congress included a requirement that the FCC, in the last quarter of every even numbered year, provide such a report. Yesterday, the FCC released a Public Notice asking a number of questions about the marketplace, to which they seek information to be included in the report.
The questions asked include:
The FCC is looking for data from 2016 and 2017, as well as any new information that is available from this year. What will this data be used for?
Continue Reading FCC Asks for Comments on the State of the Audio Marketplace – A Precursor to Reviewing the Radio Ownership Rules?
By now, you have probably heard that the European Union (EU) has a new data protection law on the books, the General Data Protection Regulation (GDPR) – but what are the new rules, and how might they apply to broadcasters? Below we address these and other commonly asked questions about the GDPR.
What is the GDPR? The GDPR is a new European privacy law that, as of May 25, 2018, generally governs how organizations – including those EU-based and many that are not – collect, use, disclose, or otherwise “process” personal information. While some limited exceptions exist (e.g., businesses with fewer than 250 employees are exempt from some requirements), the GDPR imposes an array of obligations on companies subject to it.
Who does the GDPR apply to? The GDPR clearly applies to companies established in the EU that collect personal information about individuals in the EU, but it also claims a broad extraterritorial reach. Indeed, it can apply to organizations, including broadcasters, without an EU presence. For instance, it can apply to broadcasters who collect or use data to provide services like streaming TV or radio to individuals in the EU. It also can apply to broadcasters who use website cookies and other online tracking mechanisms to “monitor” individuals in the EU (e.g., profiling for behavioral advertising). That said, it remains to be seen whether regulators will enforce the GDPR against companies that for the most part are not serving EU citizens and do not have EU operations, but may occasionally and unknowingly acquire data of an individual in the EU or an EU citizen in the United States.
Continue Reading What Do Broadcasters and Media Companies Need to Know About the GDPR?
