The FCC appears poised to decide what to do with its proposals for an online public inspection file for radio stations, and for cable and satellite TV systems. The FCC’s list of “Items on Circulation” (orders that have been written and are being considered for approval by the FCC Commissioners) indicates that the decision
January Regulatory Dates for Broadcasters – Quarterly Issues Programs Lists and Children’s Television Reports, Incentive Auction, FM Translators for AM Stations, Webcasting Fees, LUR Windows and More
While January starts off with some regulatory deadlines that apply to all broadcasters – Quarterly Issues Programs lists must be placed in a station’s public file by the 10th of January – there are many other dates that come due this month, dates to which broadcasters need to pay careful attention. For TV stations, they need to file at the FCC by January 11 (as the 10th is a Sunday) Children’s Television Reports, listing all of the programming that they broadcast in the previous quarter addressing the educational and informational needs of children. Records showing a TV station’s compliance with the commercial limits in children’s television should also be placed in the station’s public file. As we have written, missing Quarterly Issues Programs lists (see our articles here and here) and Children’s Television Reports (and even late Children’s Television Reports) provided the basis for most of the fines during the last renewal cycle (see, for instance, our article here) – even for missing reports from early in the renewal cycle and, for the Children’s Reports, even where the reports were filed (repeatedly) only a few days late. So it is important to meet the obligations imposed by these regular filing deadlines.
Starting on the first day of this new year, there are a host of other obligations and deadlines that arise. On January 1, TV stations need to be captioning clips of video programming that they make available on their websites or in their mobile apps, if those clips came from programming that was captioned when shown on TV. For more on that obligation, see our article on the new online captioning requirements here.
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Webcasting Royalty Decision Developments – Revised Rates and Terms from the CRB, Issues about Performance Complement and Small Webcasters
The actions and reactions in response to the Copyright Royalty Board’s decision from two weeks ago continue to roll in as the ramifications of the decision sink in. In the days before Christmas, two announcements were made that warrant note. One was a decision of the CRB itself, correcting the rates and terms that it released just the week before – with some sighs of relief being heard from certain high school and university stations. The other was the realization that there were many issues covered by Webcaster Settlement Act agreements from 2009 that were not reflected in the CRB decision and may have impact on significant portions of the webcasting industry.
First, the correction. On Christmas Eve, the CRB issued a revised version of the rates and terms that will apply in 2016 (you can find the revision here). It appears that there were some formatting errors that were corrected, and a number of definitions that had been included in the initial release were deleted – apparently as they referred to terms that were no longer used in the current royalty rates. For instance, a number of definitions relating to “broadcasters” and “broadcaster webcasting” were excluded. These were no longer necessary as broadcasters are not treated any differently than other commercial webcasters under the new royalties. One place where the deletion of a definition resulted in a substantive change was what appeared to be an unintentional inclusion in the initial release of the definition of an “educational webcaster.” The definition seemingly applied only to those webcasters that received CPB funding and transmitted solely noncommercial radio programs from a terrestrial radio station. That definition would have excluded many webcasters affiliated with schools but without an FCC license from a settlement agreement entered into by the Collegiate Broadcasting Association and SoundExchange – a settlement meant to cover school webcasters providing for a $500 a year royalty for streaming of less than 159,140 aggregate tuning hours per month (and record-keeping relief for many webcasters covered by that arrangement). That “educational webcaster” definition was excluded in the revision released last week – leaving the CBI settlement in place covering webcasters affiliated with educational institutions, to the relief of many educational webcasters.
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Court of Appeals Rules that Prohibition Against Federal Registration of Disparaging Trademarks is Unconstitutional Restriction of Free Speech
A recent Court of Appeals decision that could have an impact on the Washington Redskins trademark dispute about their team name, is covered in the following article by my law partner, Mitchell Stabbe, who specializes in trademark law. He writes about a case where the Court determined that a trademark rule that has led to the denial or rejection of trademarks deemed to be disparaging was an unconstitutional infringement on Free Speech. This is the first of what we hope will be many articles on this blog from Mitch and his team of trademark specialists:
In a decision that could have a significant impact on the well-publicized dispute over the REDSKINS trademark, the US Court of Appeals for the Federal Circuit recently ruled that the prohibition against federal registration of disparaging trademarks violates the First Amendment and is unconstitutional. The case involved an appeal from the denial by the Patent and Trademark Office (“PTO”) of an application by Simon Shaio Tam to register the mark THE SLANTS for an Asian-American band, which selected the name in order to make a statement about racial and cultural issues. The PTO had found that, regardless of intent, the likely meaning of phrase THE SLANTS may be disparaging to a substantial composite of persons of Asian descent.
Each of the previous appeals affirmed the finding that the mark is disparaging, and held that the issue of constitutionality could not be addressed because of a binding precedent issued by the Federal Circuit in 1981. That precedent could only be reversed if all of the Federal Circuit judges (as opposed to a panel of three judges, which decides most cases) ruled together. The court agreed to consider the question whether the prohibition against disparaging marks is constitutional. In a 9-3 ruling, the Federal Circuit reversed its own precedent and concluded that the statutory prohibition violates the First Amendment and is unconstitutional. The court reasoned that, by denying registration to disparaging marks, the Government was targeting speech based on the content of the message conveyed by the mark, which is almost always a violation of the First Amendment requirement that the Government make no laws abridging freedom of speech. Even though the lack of a federal registration does not limit the right to use a mark, the court ruled that denying registration would restrict freedom of speech by creating a disincentive to the adoption of disparaging trademarks because the markholders would be denied the “truly significant and financially valuable benefits” of registration. (We will address those benefits in an upcoming post.)
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Big News That the Beatles Are Now Available on Streaming Services? – Actually They Have Been on Internet Radio All Along
Many are sitting around enjoying their holiday treats while listening to the Beatles on their favorite on-demand streaming service, and the press is treating this as a breakthrough – usually omitting the fact that the Beatles have been available on many streaming services for as long as there have been streaming services, namely on Internet radio. We’ve twice written about this fact, first when the Beatles became available on iTunes, here, and then on the 50th anniversary of their invasion of America, here. And we also recently wrote about the same legal issues which explained why Adele could withhold her new recording “25” from many streaming services, but not from Internet radio. With the Beatles back in the headlines, for some post-Christmas holiday reading, we thought that we would reprise our 2014 article about the Beatles long absence from on-demand streaming services. Here it is:
50 years ago the Beatles invaded America, stacking up Number 1 hit records by the dozens, and creating music that, even today, remains incredibly popular with many Americans. But go to many of the interactive or on-demand music services, like Spotify, and search for Beatles music, and what will you find? Mostly cover tunes by sound-alike bands rather than the original hits. But yet, on services where you can’t designate your next song, like Pandora, you can hear the original songs. Why the difference?
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Window to Open January 29 for Applications to Move FM Translators Up to 250 Miles to Rebroadcast AM Stations
The FCC’s Media Bureau gave a long-awaited Christmas present to many of the country’s AM stations, releasing a Public Notice announcing the filing dates for the translator modification application filing windows for AM stations. These are the windows authorized by the Commission as part of its AM Revitalization proceeding (see our article here for more about the FCC decision to open these windows). In these windows, the FCC will allow an AM licensee to buy or arrange to program an FM translator and move it up to 250 miles to a location from which it can be used to rebroadcast an AM station. In making such a site move, the applicant can also change the translator’s channel to specify operations on any vacant frequency in the area where the AM station wants to operate that translator that will not cause interference to existing broadcasters. However, applications will only be accepted to move translators or translator construction permits in the commercial part of the FM band, 92.1 MHz (Channel 221) and above.
Initially, there will be two windows. The first window will open January 29, 2016 and close at 11:59 pm (EDT) on July 28, 2016. This window can be used by Class C and Class D AM stations to seek to move an FM translator for use by those stations.
The second window will open on July 29, 2016 and close at 5:59 pm (EDT) on October 31, 2016. Any AM station can file an application during that window.
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Understanding a Broadcaster’s Political Broadcasting Obligations Under FCC Rules – A Webinar Outlining the Requirements
While many broadcasters’ thoughts are on holiday celebrations, the political process leading to the 2016 elections marches on. Last week, Bobby Baker, the head of the FCC’s Office of Political Programming and I conducted a webinar for broadcasters in 16 states on the legal issues that need to be considered in connection with the upcoming political season. The slides from that presentation are available here.
The week before last, I wrote about some of the issues that broadcasters should already be considering in connection with the 2016 election. With Lowest Unit Charge windows either open or to open this month in Iowa and New Hampshire, and windows opening in South Carolina and Nevada in the first week in January, stations need to be paying attention to their political obligations. Even though political windows are not yet open in other states, stations in these other states nevertheless need to pay attention to their political obligations. As I explained in the webinar, those windows apply only to Lowest Unit Rates. All other political obligations, including reasonable access for Federal candidates, equal opportunities, and the no censorship provisions of the rules apply once you have legally qualified candidates – not just during political windows. See our article here and here on that subject.
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Explaining the Basics of the CRB Webcasting Royalty Decision – An Audio Discussion
Earlier today, Triton Digital’s President for Market Development John Rosso and I discussed the new webcasting royalty rates adopted last week by the Copyright Royalty Board to cover the sound recording performance royalty for 2016-2020. You can listen to that conversation discussing the basics of that decision here. John and I discuss what rights
FCC Fines Parties to an LMA $8000 Where Programmer Paid Too Many of Licensee’s Expenses
In a consent decree released earlier this week, the FCC fined the parties to a LMA for an FM radio station in Colorado $8000 because the FCC believed that the programmer paid too many of the licensee’s expenses directly. According to the decision, the programmer paid certain debts of the licensee directly, including
Grandfathered JSAs Need Not Be Broken Up For Ten Years Pursuant to Congressional Omnibus Spending Bill
As one of the many legislative changes that made their way into the Congressional Omnibus Spending Bill set to be voted out of Congress this week and signed by the President to keep the government operating for the next year, there is a provision authorizing TV stations to continue through September 30, 2025 operating with