The FCC announced a Consent Decree with a New Jersey TV station where the licensee agreed to make a $17,500 payment to the US Treasury for failing to identify “core” educational and informational programming directed to children with the required “E/I” symbol on the programming itself. This programming was, according to the consent decree, run
FCC To Hold Hearing to Determine Whether to Deny License Renewal of Radio Station that was Silent for Most of its License Term
The FCC yesterday took what some may suggest is an unprecedented action to potentially deny the license renewal of an FM broadcast station that was silent for all but one day each year during its license renewal term. According to the Hearing Designation Order, the station operated one day each year to avoid forfeiting its license pursuant to Section 312(g) of the Communications Act (a provision we have written about here and here, which provides for the automatic cancellation of the license of a broadcast station that has been silent for more than one year). The order released yesterday points to a 20 year-old case as warning broadcasters that, if they do not operate for substantial portions of a license renewal term, they are in danger of losing their license. As the FCC points out, if the station is not operating, it cannot fulfill the obligation of a licensee to serve the public interest.
The hearing scheduled by the FCC will be a “hearing” in name only. As there are unlikely to be disputed facts, the FCC has adopted a simplified process of a paper hearing. The licensee of the station will need to submit all the records of station operations during the last renewal term, if such records exist (e.g. station logs, issues-programs lists, and EAS test reports), and a written statement of no more than 25 pages setting out why the license should be renewed. That evidence, along with any comments filed by any party that wants to intervene in the case, will be reviewed by the Commissioners themselves. No oral presentation will be made, and no administrative law judge will be involved in the review of the record compiled by this station. Hearings where the FCC proposed to revoke the license of a station have in the last four decades been held before an administrative law judge, usually with live witnesses. In commenting on this new procedure, Commissioner O’Rielly notes that cases before an administrative law judge can take years to resolve, and often end up being reviewed by the Commissioners themselves anyway, so this paper hearing before the Commission will be much more efficient.
Continue Reading FCC To Hold Hearing to Determine Whether to Deny License Renewal of Radio Station that was Silent for Most of its License Term
FM Translators for AM Stations – Now that the Filing Window is Done, What’s Next?
The window for filing applications for new FM translators for Class C and D AM stations has now closed. According to a statement from FCC Chairman Pai, over 1000 AM stations took advantage of the filing window. What’s next? The FCC will take these applications and determine which of them are mutually exclusive with some other application filed during the window that ended yesterday. Those that are not in conflict with any other application filed during the window will be asked to complete the Form 349 application (so far, applicants have filed only the “tech box” setting out the basics of their technical proposal). The completed Form 349s will be processed and, barring any issues, construction permits will be granted.
The FCC will also determine which applications are mutually exclusive. At some point, it will release a list of all mutually exclusive applications, and these applicants will be able to discuss resolving their conflicts by minor technical amendments to their applications (e.g. site changes, directional antennas, changes to a new channel within 3 channels of the channel they originally proposed in the tech box application). It is important that applicants not discuss possible resolution with other broadcasters in their market at this time, as this is theoretically an auction proceeding where there are rules against “prohibited communications” that are now in effect. It might seem silly that you can’t discuss a resolution of a conflict with a competitor now when, in a few weeks, the FCC will allow it (and in fact probably encourage it). But, by applying the auction rules to this filing window, these prohibitions are in effect and are taken seriously by the FCC until the settlement window opens.
Continue Reading FM Translators for AM Stations – Now that the Filing Window is Done, What’s Next?
First Post-Incentive Auction Window Opens for Modifications By Repacked TV Stations that Can’t Build on Their Assigned Channel
Earlier this week, the FCC announced the first of its post-auction filing windows for TV stations that are forced to abandon their current channels as a result of the repacking of the TV band after the broadcast incentive auction. As a result of the shrinking of the TV band, many TV stations were required to
SESAC Royalties for Commercial Radio Slashed By More Than Half – Both SESAC and RMLC Claim Victory in Arbitration
It was announced this week that SESAC’s royalties for radio for the period starting at the beginning of 2016 through the end of 2018 have been slashed – being reduced to less than half what they were in 2015. This decision came out of an arbitration process that resulted from the settlement of an antitrust lawsuit that the Radio Music License Committee (RMLC) brought against SESAC (see our article here for a summary of the settlement). Yet, despite the significant reduction in the royalties for radio operators, both sides declared victory (see RMLC press release here and press reports on SESAC’s reaction here). Can both be right? While the decision of the arbitrators is not public so we can’t know for sure the reasoning behind the result, it might be that there is something to each of these claims.
For radio, the victory is clear. For commercial radio broadcasters, the royalties were significantly decreased, retroactive back to the beginning of 2016 year for stations that had elected to have RMLC represent them in this lawsuit. Some stations had been enticed by an offer made by SESAC at the beginning of 2016 offering stations a new SESAC license at rates 5% less than they were in 2015 (see our article here). Those stations may not qualify for the much greater royalty reduction available to the majority of commercial stations that opted into RMLC representation and are covered by the arbitration result. The new SESAC royalties will also cover the use of SESAC music on broadcaster’s streaming platforms and HD broadcasts, uses for which broadcasters had previously had to pay SESAC separately. Of course, stations still need to pay public performance royalties for musical compositions to ASCAP, BMI and, in many cases, GMR and public performance royalties for sound recordings, when streaming recorded music, to SoundExchange.
Continue Reading SESAC Royalties for Commercial Radio Slashed By More Than Half – Both SESAC and RMLC Claim Victory in Arbitration
August Regulatory Dates for Broadcasters – EEO, Translators, Media Regulation Modernization, EAS, Incentive Auction and More
It’s almost August, and despite it being vacation time for many, there are still regulatory dates that must be addressed by the broadcast industry. Routine filing dates this coming month include the need for EEO Public Inspection File Reports to be included in station’s public inspection files (either the online files for all TV stations and those radio stations that have already converted, or in the paper files for those radio groups that have not yet made the switch) for stations that are part of employment units with five or more full-time employees in California, Illinois, North Carolina, South Carolina, and Wisconsin. Links to these reports must also be included on the home page of any stations in such employment units, whether or not the station’s complete public file is available online. For more about station’s ongoing EEO obligations see our article here. EEO Mid-Term Reports are due to be file with the FCC on August 1 by Radio Station Employment Units with 11 or more full-time employees in California and Television Employment Units with five or more full-time employees in Illinois and Wisconsin. For more on these Mid-Term reports, see our article here.
August also brings the date for Reply Comments in the Modernization of Media Regulation proceeding (see our articles here and here). Reply comments in that proceeding looking to amend or repeal broadcast regulations that no longer make sense in the modern media environment are due by August 4. Many media companies are also watching the Restoring Internet Freedom proceeding, looking at what some people refer to as the Open Internet or Net Neutrality issues, where reply comments are due August 16.
Continue Reading August Regulatory Dates for Broadcasters – EEO, Translators, Media Regulation Modernization, EAS, Incentive Auction and More
More Details on FCC’s Upcoming Nationwide EAS Test Including August 28 Deadline to Update Information in ETRS Reporting System
We wrote earlier this week about the upcoming EAS Nationwide Test and the need for broadcasters to make sure that their EAS equipment is operating in compliance with all FCC rules. The FCC itself has now released its own Public Notice detailing the many things that broadcasters need to check at their facilities before the
CLASSICS Act Introduced to Provide Pre-1972 Sound Recording Public Performance Clarity – What Issues Does It Leave Unresolved?
The CLASSICS (Compensating Legacy Artists for their Songs, Service and Important Contributions to Society) Act was introduced in Congress last week to try to clear up some of the ongoing disputes over the public performance rights of pre-1972 sound recordings. Through litigation, certain copyright holders (including, most notably, Flo and Eddie of the 1960’s band The Turtles) have been seeking compensation from digital and analog music services for the public performance of pre-1972 sound recordings. These sound recordings are not covered by Federal law. As the obligation to pay SoundExchange only applies to recordings covered by Federal law, some digital services were not paying for the performance of these songs. The artists that have brought suit have contended that state laws did create an obligation to pay for the public performance of these recordings, even though there were no specific statutory provisions establishing those rights. Thus far, New York, Florida, Georgia and Illinois have found there to be no right of compensation under state laws (though some of these cases are on appeal). By contrast, California found that there was a right for compensation, though that case, too, is on appeal.
The CLASSICS Act looks to resolve these issues by pre-empting state lawsuits and establishing that services cannot play these recordings without either getting a direct license from the copyright holder to do so, or by paying SoundExchange royalties under the statutory license at the fees set by the Copyright Royalty Board. If a digital music service pays SoundExchange royalties and obeys the rules that apply to such royalties, it is not infringing on the rights of the copyright holder. It can also directly license these rights, but must pay half the license fee to SoundExchange to be distributed to the artists who performed on the recording (in the same manner that half the fees paid under the statutory license are distributed to the artists).
Continue Reading CLASSICS Act Introduced to Provide Pre-1972 Sound Recording Public Performance Clarity – What Issues Does It Leave Unresolved?
Proposed $66,000 Fine Reminds Broadcasters to Prepare for September Nationwide EAS Test
FEMA (the Federal Emergency Management Agency) has notified the FCC that it will be conducting the next nationwide test of the EAS system on September 27, 2017 (with a back-up date of October 4, 2017 – in the event potential real emergencies make the earlier date one that could cause confusion). The FCC has updated
Incentive Auction Developments – Payments to TV Stations Giving Up Their Spectrum Announced and Bill Introduced to Provide More Funds for Repacking Reimbursement for TV, Radio and LPTV Stations
Earlier this week, we wrote about some of the upcoming dates for broadcasters in the TV incentive auction process – particularly those dealing with the repacking process. Developments continue, with the FCC yesterday issuing a Public Notice announcing that stations that relinquished their spectrum in the incentive auction will be receiving their payouts from the