The FCC yesterday issued a Public Notice announcing that it will in fact be opening a window for the filing of applications for new reserved-band noncommercial FM stations (those stations operating in the portion of the FM band below 92.1 FM, which is reserved for noncommercial educational broadcasters). We anticipated that this window was coming
This Week in Regulation for Broadcasters: October 10, 2020 to October 16, 2020
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 set the comment dates for its proposal for changing the cost to file various broadcast applications. The new
More FCC Consent Decrees for Political File Violations – Issues to Watch in the Last Weeks of the Election
As the campaign enters its final weeks, the FCC has begun to send out the next round of proposed consent decrees to radio broadcasters unable to certify in their license renewal applications, because of perceived deficiencies in their political file, that that every document was placed into their FCC-hosted online public inspection file on a timely basis (see, for instance, this decree released yesterday). The certification of public file compliance is required of every applicant for license renewal. As with any other certification, a licensee must review its records and truthfully answer the application’s question, either certifying that it has complied with all of the public file obligations or disclosing any deficiencies. As we wrote last year, in cases of substantial noncompliance, the FCC has fined stations that essentially ignored the public file rules. But, until recently, in cases where a station had made a good faith effort to comply but had some minor deficiencies in the public file (as is natural over an eight-year renewal period), the FCC has generally been granting renewals, acknowledging that minor violations do not signal that a broadcaster is not operating in the public interest. However, in August, the Commission initiated a new policy for stations that reported deficiencies in the political portion of the public inspection file, sending draft consent decrees to virtually all stations unable to certify full public file compliance because of any political file issue.
These consent decrees were modeled on the ones that were sent in July to six large radio broadcast groups as a result of an earlier FCC review of their political files (see our article here on those consent decrees, which also provides a review of a broadcaster’s political file obligations). The difference is, of course, that the July decrees went to large radio groups for what the FCC described as hundreds of violations at many radio stations. The new renewal-driven consent decrees were sent to all stations that did not certify political file compliance, even to stations that had only a handful of political advertising sales if those stations determined that they could not certify that all required documents went into the file in a timely fashion. While the decrees carry no monetary fine, they do require that the signing station enter into a compliance program – appointing a compliance officer, having a written compliance plan, reporting any violations to the FCC as they occur, and providing a report to the FCC at the end of each calendar year for two years cataloging all political sales and when the required documents went into the political file.
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Music in Podcasts – As Podcasts Shut Down Following Infringement Notices, Looking at the Required Music Rights
The use of music has long been an issue for those looking to provide music-oriented podcasts to the public. As we have written before (see, for example, our articles here and here), clearing rights to use music in podcasts is not as simple as signing up with ASCAP, BMI and SESAC (or even adding GMR or SoundExchange to the mix). These organizations simply cover public performance rights for music when, as our prior articles make clear, podcasts require additional rights to use music in ways not fully covered by the licenses that are offered by these organizations. The rights to the use both the underlying musical composition and the actual recording of that composition by a band or singer must be obtained on an individual basis from the copyright holders. That can often mean a search for both the publisher and record company who usually own those copyright in the musical composition and the sound recording, respectively. This can often be a difficult search, especially if there are multiple songwriters of a composition (and hence multiple publishing companies which likely own the copyrights) or where the rights to the songs have been assigned over time from their original owners. Plus, as we have written before, there is no easily accessible universal database yet in existence that provides up-to-date and complete records of who owns those copyrights. All this combines to make the clearance of music for use in podcasts an arduous process – and almost prohibitive for any small podcaster who wants to use more than one or two pieces of music in connection with their show.
In an article in the radio industry newsletter Inside Radio this week, it appears that at least two music-oriented podcasts have attracted the attention of the music industry, receiving demands from the RIAA which has led to their ceasing of operations. It appears that these cases demonstrate both the difficulty of clearing music for podcasts, and perhaps that, as podcasting is growing in attention, the legal issues associated with the use of music in those podcasts is coming to the forefront of the attention of the music industry.
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This Week in Regulation for Broadcasters: October 3, 2020 to October 9, 2020
Here are some of the regulatory and legal actions and 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 released the agenda and items to be considered at its October 27 Open Meeting.
FCC Announces Plans to Authorize All-Digital AM Radio at October 27 Open Meeting
The FCC this week released its agenda for its October 27 open meeting. At that meeting the FCC will consider a number of issues of relevance to broadcasters, including enhanced white space use in the TV band and an expansion of the requirement for audio description of video programming. It also plans to adopt an order authorizing licensees of AM stations to voluntarily transition to all-digital AM operations. A draft order setting out the FCC’s decision and the rules that it intends to adopt for all digital AM operations was released yesterday. We wrote previously about this proceeding on all-digital AM as it has progressed through the FCC (see our articles here and here).
The draft order on all-digital AM contains a discussion as to whether the Commission should put limits on the ability of AM licensees to transition so as to not take away service from existing listeners who do not have digital AM radios. The conclusion set out in the draft order is that there should not be restrictions on the ability of licensees to convert to all-digital operations. The FCC noted that as long as there are a substantial number of listeners without digital AM receivers, some AM licensees will have an economic incentive to continue to broadcast an analog signal. Thus, these analog listeners will not be left without service. The FCC also noted that its recent order abolishing the prohibition on radio stations duplicating the programming of commonly-owned stations serving the same area (see our articles here and here) would allow one owner to put the same programming on two AMs in the same area – one providing a digital program stream while the other continued analog operations. Thus, the FCC’s tentative decision is that there is no need to restrain stations from making the conversion.
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Supreme Court to Hear Appeal of Third Circuit Rejection of FCC Changes to Broadcast Ownership Rules
The 2017 deregulatory changes to the FCC’s ownership rules have been on hold since December 2019, when the decision of the US Court of Appeals for the Third Circuit, overturning those rule changes, became effective (see our post here). The court’s decision has put any broadcast ownership changes on hold (including potential changes in the radio ownership rules which were not part of the 2017 FCC decision) while the FCC contemplated how to deal with the fallout from the Third Circuit’s decision. The potential for another way forward arose last week when the Supreme Court decided to hear the appeal of the Third Circuit decision – granting a petition for “cert” (a petition asking the Court to hear the appeal) – the announcement of that grant coming out on Friday.
As we wrote here, the Third Circuit rejected the FCC’s 2017 ownership rule changes, finding that the FCC had done an inadequate job of assessing how prior ownership relaxations had affected the ability of minorities and other potential new entrants to break into the ranks of broadcast ownership. Despite arguments from the FCC that it had already analyzed the impact of changes on new entrants and taken steps to mitigate any adverse impact, the Court seemed to be directing the FCC to do a more searching analysis of the historical impact of the relaxation of ownership restrictions on new entrants. Because this analysis would affect any ownership rule change, including those proposed for radio (see our article here), the decision effectively froze further FCC consideration of all broadcast ownership rule changes.
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This Week in Regulation for Broadcasters: September 26, 2020 to October 2, 2020
Here are some of the regulatory developments and legal actions 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 U.S. Supreme Court decided to consider the appeals by the FCC and industry groups of the
A Video Summary of the Rules on Lowest Unit Rates and Other Political Broadcasting Resources
Back in August, we highlighted some of the many issues in computing lowest unit charges (or “lowest unit rates”) for political candidates which are in effect during the window for the November elections that went into effect on September 4. In this last month before the election, as political advertising ramps up and each party fights over those few undecided viewers, we wanted to bring to your attention a video that I did for the Indiana Broadcasters Association discussing the various issues that arise in determining lowest unit rates. That video summarizes many of the issues that we wrote about back in August and is available here:
At the end of this article, we provide links to other videos produced by the Indiana Broadcasters discussing other political broadcasting issues, and to other articles that we have written on other political broadcasting issues.
As we wrote back in August, lowest unit charges (or “Lowest Unit Rates”) guarantee that, in the 45 days before a primary and the 60 days before a general election, legally qualified candidates get the lowest rate for a spot that is then running on the station within any class of advertising time running in any particular daypart. Candidates also get the benefit of all volume discounts without having to buy in volume – i.e., the candidate gets the same rate for buying one spot as your most favored advertiser gets for buying hundreds of spots of the same class. But there are many other aspects to the lowest unit rates, and stations need to be sure that they get these rules right.
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October Regulatory Dates for Broadcasters: License Renewals, EEO Reports, Carriage Elections, Quarterly Issues/Programs Lists and More
In many parts of the country, the air is turning crisp, the leaves are changing color, and kids are back in school (in some form), making it the perfect time to get caught up with regulatory dates and deadlines coming in October. This is an unusual month where there are several routine regulatory deadlines – renewals, EEO filings, Quarterly Issues Programs Lists, and the must-carry/retransmission consent deadline, but no significant broadcast rulemaking comment deadlines, perhaps as we are nearing the end of the current administration which might not be around to finish any proceeding started now.
The routine deadlines include those for radio stations in Iowa and Missouri and TV stations in Florida, Puerto Rico, and the U.S. Virgin Islands who should be putting the finishing touches on their license renewal applications, to be filed on or before October 1, along with the accompanying EEO program report. Stations should also have their post-filing announcements ready and scheduled to begin airing on October 1. Those announcements continue through December 16. Stations are no longer required to air pre-filing announcements. The schedule for post-filing announcements and sample announcement language is here for radio stations and here for TV stations.
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