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David Oxenford represents broadcasting and digital media companies in connection with regulatory, transactional and intellectual property issues. He has represented broadcasters and webcasters before the Federal Communications Commission, the Copyright Royalty Board, courts and other government agencies for over 30 years.

Global Music Rights, one of the newest performing rights organization licensing the public performance of musical compositions, has agreed to extend its interim license with commercial radio broadcasters.  That license is set to expire at the end of March (see our article here).  This interim license has been offered and extended for the last several years to allow stations to perform GMR music while GMR litigates with the Radio Music Licensing Committee over whether GMR is subject to any sort of antitrust regulation of the rates that it sets (and GMR’s countersuit over whether the RMLC itself violates the antitrust rules as a buyer’s cartel, by allegedly organizing all the buyers of GMR’s music to hold out for a specific price).  We wrote about that litigation here.  With the pandemic, the lawsuit which should have already gone to trial is likely not going to be heard until possibly next year, as discovery in the case has been postponed until later this year.

Today, the RMLC notified radio broadcasters that GMR will again extend its interim license while the litigation plays out – but GMR wants a 20% increase in the royalties that it receives.  RMLC made clear that this is not a negotiated rate – it is one that GMR has imposed with no input from RMLC.  Stations should expect to hear from GMR about the extension by March 15.  If they do not, stations interested in the extended license should reach out to GMR.  Many stations are confused by this royalty, so we thought that we would provide some background.
Continue Reading GMR Offers to Extend Its Interim License With Commercial Radio Stations – But It Wants a 20% Increase in Royalty Payments

In recent months, we have seen concerted attempts to reign in digital and social media from all along the political spectrum – from Washington, in the states and even internationally.  We thought that we would look at some of those efforts and their motivations today.  We will look at many of these issues in more detail in future articles.

Towards the end of last year, the Trump Administration sought to strip social media platforms of Section 230 protections because of their alleged bias against conservative speakers (see our articles here and here).  A similar perception seems to underlie the recently proposed Florida legislation that seems to create for social media a policy similar to the equal opportunities (or “equal time”) policy that applies to broadcasters – a social media service cannot “de-platform” a political candidate if it allows the opposing candidate access to that platform.  That proposed legislation also has announced goals of requiring clear rules for access and editing of political views on such sites.  A press release about that legislation is here, though the actual text does not yet seem to be available for review.
Continue Reading Everyone Seems to Want to Regulate Online Media – But Can They?  Setting the Stage- Looking at the Range of Regulatory Proposals

At its March 17 monthly Open Meeting, the FCC will consider a Notice of Proposed Rulemaking seeking to modify certain aspects of the Emergency Alert System used by many of those regulated by the FCC including broadcasters, cable companies, and wireless communications devices such as mobile phones.  The FCC is reviewing these issues as required by the National Defense Authorization Act, passed by Congress at the end of 2020.  As part of its mandate, Congress also asked that the FCC review whether it would be possible to require “streaming services” to become EAS participants.  A Notice of Inquiry asking that question is included with the Notice of Proposed Rulemaking, asking specific questions about the feasibility of that extension of EAS requirements.  A draft of the proposals to be considered by the FCC at the March meeting is available here (the draft is subject to change before the meeting).

The proposed changes include some that may be relevant to broadcasters.  These include the requirement that State Emergency Communications Committees meet at least yearly to review state EAS plans and certify to the FCC each year that they have in fact met.  The FCC will consider and approve all changes to state EAS plans but will no longer make those plans public on the FCC website, as there is a fear that publication of these plans could be used to subvert the emergency alerts.
Continue Reading FCC To Consider Emergency Alert System Changes and Evaluate the Ability of Streaming Services to Participate in EAS

Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • About 200 radio and television stations have been randomly selected to be audited by the FCC for their EEO compliance.

Yesterday the FCC  released another of its regular EEO audit notices (available here), asking over 200 radio and TV stations, and the station employment units with which they are associated (i.e., commonly owned stations serving the same area) , provide to the FCC (by posting the information in their online public inspection file) their  EEO Annual Public File reports for the last two years, as well as backup data showing  that the station in fact did everything that was required under the FCC rules.

To lighten the burden on stations due to the pandemic, certain requirements usually associated with these audits have been adopted.  Audited stations must provide representative copies of notices sent to employment outreach sources about each full-time vacancy as well as some documentation of the supplemental efforts that all station employment units with 5 or more full-time employees are required to perform (whether or not they had job openings in any year). These non-vacancy specific outreach efforts are designed to educate the community about broadcast employment positions and to train employees for more senior roles in broadcasting. Stations must also provide information about how they self-assessed the performance of their EEO program. Answers to certain other questions are also required.  Stations that are listed in the audit notice have until April 26, 2021 to upload this information into their online public file.
Continue Reading FCC Issues First Broadcast EEO Audit of 2021– Reviewing the Basics of the FCC’s EEO Rules

March brings springtime and, with it, a likely reprieve from the cold and extreme weather much of the country has been suffering through.  As noted below, though, March brings no reprieve from the routine regulatory dates and deadlines that fill a broadcaster’s calendar.

TV operators have until March 8 to file comments in the Copyright Office’s Notice of Inquiry looking to assess the impact of the abolition of the statutory copyright license that allowed satellite television operators to import distant network signals into TV markets where there were households arguably not being served by a local network affiliate (see our article here).
Continue Reading March Regulatory Dates for Broadcasters: Copyright, White Spaces, and Zonecasting Comments; LPTV and Translator Analog-to-Digital Extension; Emergency Alerting for Streaming Companies, and More.

At the end of last week, the FCC’s Audio Division released a letter decision denying a Class A FM station licensee (limited in power to 6 KW) a waiver that would have allowed it to upgrade its facilities to those that would be equivalent to what would be permitted if the Commission was to establish a Class C4 FM.  The Division found that granting such a waiver would prejudge the FCC’s pending proceeding looking at whether the FCC should approve Class C4 stations.  Where does that proceeding stand?

The pending proposal to create a Class C4 FM station, i.e., one operating with maximum effective radiated power of 12 kw (essentially midway between the power limits of the current Class A stations and Class C3 FMs that are limited to 25 kw), has been advocated at the FCC for several years.  Sponsors contend that it would allow Class A stations to not only solidify and expand their coverage, but also to overcome some of the building penetration issues that are alleged to occur when reception is limited inside buildings constructed of certain materials.  The proposal for this new class of FM station has not been unanimously supported by other broadcasters.
Continue Reading No Class C4 FM To Be Permitted By Waiver – Where Things Stand on Proposal for New Class of FM Stations

Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC has started planning for its next AM/FM radio auction (Auction 109) scheduled to begin on July 27.  Four

This week, the FCC designated for hearing the license renewal applications for a number of Alabama radio stations because of their owner’s conviction on felony ethics violations, stemming from misconduct while he served in the Alabama legislature.  The hearing is to determine the effect of those felony convictions on the character of the licensee to hold a broadcast license.  The Communications Act requires that a broadcast licensee (and its owners) must have the requisite character to operate the station.  Character is reviewed whenever a party seeks to acquire a broadcast license, including when they file for the renewal of that license.  In egregious circumstances, the FCC can even move to revoke the licenses held by a licensee outside of the license renewal process.  Even the sale of a license by a party without the required character qualifications may be prohibited by the FCC, as the Commission does not want to see a wrongdoer profit from the disposition of what is seen as a government asset – the FCC license.

Character has been defined by the FCC through numerous policy statements issued periodically over the last 50 years, and has been further refined by precedents established in individual cases.  This week’s case gives us the opportunity to look at what conduct the FCC considers in assessing the character of any broadcast application, and the factors that are reviewed in determining the impact of bad conduct on the ability of the applicant to hold an FCC license.
Continue Reading FCC to Hold Hearing to Determine What Felony Conviction of Station Owner Means for License Renewal – What Does the FCC Character Policy Require of Broadcast Applicants?