Website Issues

Subscribe to Website Issues via RSS

December is one of those months when all commercial broadcasters have at least one FCC deadline, and there are also many other filing dates of which many broadcasters need to take note.  For all commercial broadcasters, Biennial Ownership Reports are due on December 2.  Hopefully, most broadcasters have already completed this filing obligation, as FCC electronic filing systems have been known to slow as a major deadline like this comes closer.  See our article here for more on the Biennial Ownership filing requirement that applies to all commercial broadcast stations.

Noncommercial stations are not yet subject to the uniform Biennial Ownership Report deadline (though the FCC has proposed that happen in the future, see our article here, a proceeding in which a decision could come soon).  But many noncommercial stations do have ownership report deadlines on December 1, as noncommercial reports continue to be due every two years, on even anniversaries of the filing of their license renewal applications.  Noncommercial Television Stations in Colorado, Minnesota, Montana, North Dakota, and South Dakota have to file their Biennial Ownership Reports by that date.  Noncommercial AM and FM Radio Stations in Alabama, Connecticut, Georgia, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont also have the same deadline for their Biennial Ownership Reports. 
Continue Reading December Regulatory Dates for Broadcasters – Ownership and EEO Reports, Retransmission Consent and Foreign Ownership Rulemaking Comments, Incentive Auction and Accessibility Obligations

The use of photographs on websites continues to be an issue. According to trade press reports, lawsuits were filed against two broadcasters for the unauthorized use of photos on websites, though one suit was quickly dismissed as the named broadcaster in fact had purchased rights to the photos through Getty Images, a clearance house for the rights to use photographic images. But the filings of these lawsuits, along with other suits we wrote about here filed a little over a year ago, highlight the concerns that any company should have about the photos that are found on their websites. I highlighted these issues in my digital media presentation for broadcasters, which I wrote about here just two weeks ago.

Photos that are found on the Internet cannot just be copied and posted to your own website without getting permission from the copyright owner. Contrary to what some might think, unless necessary permissions are obtained, everything on the Internet is not free to exploit on your own site. I know of many broadcasters who have received demand letters from the owners of photographs that have been copied from some website and re-used on the broadcaster’s site without permission. Many have settled with the copyright holder to avoid the fate of these broadcasters who were recently sued – so take these demand letters seriously if you receive one.
Continue Reading Beware of Using Photos on Your Website – Make Sure that You Have the Rights Before You Post

What legal issues should a broadcaster be concerned about when expanding its use of digital media?  Two weeks ago, I did a presentation for the CBI National Student Electronic Media Conference on issues for college broadcasters who are using digital media.  While this presentation was made to college broadcasters, most of the issues discussed…

TV stations have in the past few years been hit with many requirements for making their programming – especially emergency information – accessible to all people within their service areas. Two deadlines loom in the very short term that stations need to remember – the requirements for converting text based emergency information aired on their stations outside of news and EAS alerts (usually crawls dealing with issues such as severe weather alerts) into speech for airing on their SAP channels, and the requirement that any clips transmitted through IP technology (e.g. to computers or through apps) must contain captions if those clips were taken from programming that was broadcast with captions.

Some trade press reports have indicated that some TV stations are still having issues with the requirement that stations take emergency information broadcast outside of news programming and not in EAS alerts, and convert that information to speech to be broadcast on the station’s SAP channel (in some cases requiring that the station activate a SAP channel if they did not already have one).  This rule is meant to cover information like weather alerts typically carried in crawls during entertainment programs.  The rule was supposed to take effect in May, but was extended until November 30 when it appeared that most TV stations were not ready to meet the original deadline.  We wrote about the requirements and the extension here and here. The extension also put on hold obligations to include school closing alerts on the SAP channel when it became clear that the time necessary to broadcast those alert on the SAP channel (and to do it twice, as required by the rules for the audio alerts on the SAP channels) would likely overwhelm the ability to carry any other information.  The extension order also extended until November 2016 the obligation to aurally describe on the SAP channel any non-textual, graphical information conveyed by the station outside of news programs (e.g. weather radar images).  But the general obligation to convert text to speech still goes into effect at the end of next month – so stations need to be ready.
Continue Reading New Accessibility Compliance Deadlines for TV Stations Coming Very Soon

The FCC yesterday agreed to modernize its contest rules, allowing broadcasters to publicize the material terms of a contest that is conducted by a station through posting those rules on an Internet website, rather than requiring that the material rules be read on the air often enough so that a listener is likely to have heard them. The FCC’s order does impose obligations that the website location be announced on the air and that the site be accessible to everyone, but the changes, once they go into effect, will be a relief to many broadcasters who have had so much trouble in recent years with the current rules requiring on-air disclosure of a contest’s material terms (see, for instance, the many fines that have been issued to broadcasters for violations of these rules, about which we wrote here, here and here).

When these new rules go into effect (after approval by the Office and Management and Budget after a Paperwork Reduction Act review – an exercise that the FCC must go through for all new rules with any paperwork requirements even though it would seem to be a formality here where the rules clearly work to reduce the burden on broadcasters), a broadcaster will be able to satisfy the requirement to disclose the material rules of a contest either by continuing the old practice of reading the material rules on the air, or by posting those rules to an accessible website, and publicizing the Internet location of those rules on the air. The website hosting the rules can either be the station website or some other site, but the rules state that the site must be available to everyone who visits it without having to register to use the site or to pay any sort of fee to access the site. The on-air announcement about the website does not need to give the exact URL of the page on which the rules can be found, as long as the announcement is specific enough so that a listener will be able to find the rules (e.g. by saying something like “go to the K-100 website, k100.com, and click on the ‘contest’ tab”). The FCC also makes clear that, if a station is sending its audience to the station’s homepage to find the contest rules, that there should be a tab, link or other clearly identified location on the homepage to make clear where listeners should go to find the contest rules.
Continue Reading FCC Revises Broadcast Contest Rules – Allows Disclosure of Material Rules on the Internet

The US House of Representatives has been looking at potential reform of the Copyright Act for some time, holding a number of hearings before the Committee here in Washington DC (see, for instance, our article here about one of those hearings). Yesterday, the Committee announced that it is taking its examination on the road, conducting a “listening tour” of the country, starting with a roundtable on music issues to be held in Nashville on September 22. The Committee’s announcement of the listening tour (available here), says that future dates and locations (and presumably topics) will be announced at a later date.   The announcement states:

America’s copyright industries – movies, television programming, music, books, video games and computer software – and technology sector are vitally important to our national economy.  The House Judiciary Committee’s copyright review is focused on determining whether our copyright laws are still working in the digital age to reward creativity and innovation in order to ensure these crucial industries can thrive.

So what are some of the issues that are likely to be considered? On the music side, there are many issues, including questions about the disparity between the payments from digital media companies made to songwriters as opposed to sound recording rights holders (see our article here), the amounts of the royalties themselves (with digital media companies finding many royalties to be too high to allow for a profitable operation while rights holders argue that they are too low to compensate creators for the decrease in the sale of music in a physical form – see our article on how the one-to-one nature of the digital performance complicates the discussion of the value of music when compared with analog performances), issues as to whether broadcasters should pay a performance royalty for sound recordings, and the question of pre-1972 sound recordings (see our last article on pre-1972 sound recordings, here). Many of these issues were addressed by the Copyright Office in its report on reform of the copyright laws as they relate to music (see our summary here). Some of the songwriter issues are also being considered by the Department of Justice in its review of the antitrust consent decrees governing ASCAP and BMI (see our article here).
Continue Reading House Judiciary Committee Begins Nationwide Listening Tour on Copyright Reform – First Roundtable on September 22 in Nashville Focusing on Music Issues

In an article posted on the FCC’s blog yesterday, FCC Chairman Tom Wheeler listed four actions that would soon be coming out of the FCC to address broadcast issues. For TV, these include looking at what constitutes “good faith negotiations” in the retransmission consent context, and whether to do away with the FCC’s network nonduplication protection rule. For radio, the long-delayed AM revitalization docket will apparently soon be considered by the FCC. And, finally, the FCC may modernize the contest rules for all broadcasters by allowing more online disclosure of contest rules. What are these proceedings all about?

The retransmission consent proceeding grows out of Congress’ adoption of STELAR, which authorized the continued retransmission of broadcast signals by satellite television operators. As part of that legislation, which we summarized here, the FCC was directed to start a proceeding to determine whether it should adopt new rules to define what constitutes “good faith negotiation” of retransmission consent agreements. There has already been significant lobbying on this issue by both sides. Right now, good faith negotiation really has not been an area where the FCC has intervened beyond using its bully pulpit to urge parties to retransmission consent disputes to reach a deal. It is commonly recognized that failing to deal with a MVPD at all would be a violation of the good faith standard, but many MVPDs now want the FCC to become more involved, putting limits on TV channel blackouts, especially just before big televised events (like the Super Bowl or the Oscars), limiting the blackout of web-based programming to subscribers of an MVPD that is involved in a dispute, limiting the bundling of Big 4 network programs with programming from other channels provided by the TV broadcaster, and similar limits. The Chairman’s blog is short on specifics, but does suggest that, while some specific prohibitions may be suggested, the FCC would also be able to look at the totality of the circumstances to determine if a broadcaster and an MVPD were negotiating in good faith (note that these rules apply to broadcast retransmission consent negotiation, not those between MVPDs and cable channels not shown on broadcast TV).
Continue Reading FCC Chairman Details Issues Coming Soon for Broadcasters – Review of Retransmission Consent, Network Nonduplication, AM Improvements, and Contest Rules

Over-the-top video systems, using the Internet to transmit over-the-air TV signals to consumers, are back in the news. Last week, a US District Court Judge in the Central District of California, in a case involving FilmOnX, an Aereo-like service that had been involved in many of the court decisions that had preceded the Supreme Court’s Aereo decision, suggested that such platforms can get that public performance right through the statutory license provided by Section 111 of the Copyright Act – the same section of the Act that allows cable systems to retransmit broadcast signals without getting permission from every copyright holder of every program broadcast on those stations. Just last year, we were writing about the Supreme Court decision in the Aereo case, where the Court determined that a company could not use an Internet-based platform to stream the signals of over-the-air television stations within their own markets without first getting public performance rights from the stations themselves. The new decision raises the potential of a new way for these Internet services to try to get the rights to rebroadcast TV signals.

The FilmOn decision was on a motion for summary decision, and is a very tentative decision – the Judge recognizing that he was weighing in on a very sensitive subject, going where both the FCC and the Copyright Office have thus far feared to tread, and disagreeing with the Second Circuit Court of Appeals that had held the opposite several years ago in the Ivi decision. The FilmOn decision is a preliminary one – subject to further argument before the Judge at the end of the month. Even if adopted as written, the judge recognized the potential impact of his decision, and the fact that it contradicted Ivi and other decisions. Thus, the decision stated that its effect would be stayed pending an immediate appeal to the Ninth Circuit Court of Appeals. So, even if finalized, we have not seen the last of this argument yet.
Continue Reading A Compulsory License for Internet TV Platforms to Retransmit Broadcast TV? One US District Court Considering FilmOnX Seems to Think So

We have written in the past about the concerns that broadcasters face about the unauthorized use of photos on station websites. Some broadcasters have had problems when they found that photos posted on their websites were posted without permission of the copyright holder – and representatives of the copyright holder contacted the stations with demands for significant compensation. We reminded broadcasters that everything that you find on the Internet cannot be appropriated for your own uses – that copyrighted material retains copyright protections even when it is made available on the Internet. It appears that this is not an isolated problem, as the Copyright Office has just announced the commencement of a study to determine how best to protect the copyrights of photographers and those who produce other digital images. In this digital age, when photos and other images can be copied and reproduced digitally, distributed on websites and through other digital means, often stripping out any embedded information about the copyright owner, problems in copyright enforcement are common. The Copyright Office seeks information both from copyright owners and from users of such images on how to best protect copyrights, while at the same time making it possible for users to obtain clearances for photos that they want to use.

This issue for broadcasters actually cuts both ways, as broadcasters themselves create photos and other images it their news coverage, and in connection with other station activities and events. They don’t want these images exploited by competitors and other media sources without permission. So legal clarity could be a good thing, as it will not only to help broadcasters clear rights to use photos and other images online and in their over-the-air broadcasts, but it will also help them to protect the images that their employees create in the course of their broadcast employment. What does the Copyright Office ask?
Continue Reading Copyright Office Starts New Study on Enforcing Copyrights on Photos and Other Visual Images in a Digital World