On June 6, FCC application fees are going up by 8%. The new fees were published in the Federal Register yesterday, here. This Federal Register publication sets out all of the new fees. To make sure that your applications are processed on a timely basis, be sure to pay the proper higher fees, starting on June 6. The old fees have been in place since 2009 (see our report here), so remember to adjust to the new fees. The fees for the most common broadcast services are set out below:
Continue Reading FCC Application Fees Going Up By 8% – Effective June 6, 2014
Copyright Royalty Board Starts Rulemaking to Change Recordkeeping Requirements for Commercial and Noncommercial Webcasters
On Friday, the Copyright Royalty Board published in the Federal Register a proposal for changes in its recordkeeping rules – suggesting more detailed requirements for larger webcasters who are required to report the songs that they play on a “census” basis – that would be most webcasters who are required to report the songs that they play, how often they were played, and how many people listened when they were played each time. Conversely, for the smallest of webcasters, those who pay a “proxy fee” so that they do not have to report the details of how many listeners were listening to each song that was played, the questions asked by the CRB are geared to potentially expanding the universe of those who do not need to report. Comments are due on June 2, with replies due on June 16. Given the potential economic impact that these proposals could have on businesses of all sizes, anyone steaming their music on the Internet and reporting to SoundExchange should carefully consider the details of the Notice of Proposed Rulemaking and whether to submit comments in this proceeding.
The proposals to require more detailed recordkeeping originated from SoundExchange, which filed a Petition for Rulemaking asking that the CRB adopt new rules on a number of issues. The Board last comprehensively visited this topic in 2009 (see our summary here). The Board’s Notice of Proposed Recordkeeping poses a number of questions that were raised by SoundExchange, and asks for public comment. What are these proposals?
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Complaints Filed against 11 TV Stations Alleging Deficiencies in their Online Political File – Warning to Stations, Your File is Being Watched!
The Campaign Legal Center and Sunlight Foundation filed FCC complaints against 11 major market TV stations across the country alleging that these stations had inadequate online political files. The Center issued a press release about its filings, stating that these complaints “exposed widespread noncompliance with the disclosure requirements” of the law. The press release went on to say “[w]ithout this information, viewers are denied important information about the organizations and individuals seeking to influence their vote through these ads.” While the complaints ask that the FCC take appropriate action against these stations, including fines, and begin an education campaign to make sure that other stations don’t repeat these mistakes as the political file goes online for stations in smaller markets on July 1 (see our article here about the FCC’s reminder about this obligation), just how serious were the discovered deficiencies? As discussed below, many of the issues raised seem to be minor, but they put stations on high alert that their online public files will be scrutinized and must be kept up to date with the utmost care.
The complaints themselves (which are available through links in the press release) do not reveal widespread systematic violations of the FCC rules. Instead, each complaints cites a single instance where the station named in the complaint in some way evidenced some noncompliance with the rules. And many of those instances of noncompliance are quite minor. In each case, the complaints were about disclosures made about the sponsors of issue advertising. The ads were from non-candidate groups. In some cases, the ads named a specific political candidate, and alleged that they had voted the wrong way on some specific issue. Other ads urged viewers of the station to call that Congressman to tell them to vote in a particular way on some issue of importance pending in Congress. The complaints did not allege that the public file did not contain the names of the sponsors, or the amount that was spent on the ads, or the times at which the ads were to run. Instead, the allegations in many of the complaints were that, in a single instance, the public file disclosures identified the candidates who were being attacked, but not the issue on which they were attacked. Is this a violation of the rules?
Continue Reading Complaints Filed against 11 TV Stations Alleging Deficiencies in their Online Political File – Warning to Stations, Your File is Being Watched!
Copyright Royalty Board Reissues Decision on Internet Radio Royalties for 2011-2015 – Same Rates But New Analysis
Last week, the Copyright Royalty Board published in the Federal Register its decision on Internet radio royalties for 2011-2015. The question that I received many times since the publication last week is “huh, didn’t we already see that decision a long time ago?” Indeed we did – the original decision setting the rates was reached in December 2010 (which we wrote about here and here). But, as many will remember, there was also an intervening decision finding that the CRB had been unconstitutionally established. The Court remedied the unconstitutionality by changing the law’s provisions dealing with the ability of the Librarian of Congress to remove the Judges, and sent the decision back to the CRB to redo the 2010 decision. The redo is the result that was released last week. While the new decision did not change the rates for webcasters, it did contain some new analysis that presents some interesting insights into the Judge’s thought processes that may be relevant to webcasters who will be affected by the recently started proceeding to determine rates for 2016-2020. As the three Judges on the CRB have all arrived on the CRB since the 2010 decision, this rewritten decision provides some insight as to how they are approaching the new proceeding.
By the time the decision declaring the unconstitutionality of the “old” CRB was reached, the only party left fighting the decision was Intercollegiate Broadcasting Systems, a group of college broadcasters. All of the commercial broadcasters had either settled their royalty disputes, or dropped out of the proceeding (see our summary of the rates entered into by parties as part of the Webcasters Settlement Acts). Thus, no commercial webcasters participated in the remanded proceeding before the CRB. The CRB noted the lack of any challenge to the commercial rates, and given that they were not challenged, and that they fell in a zone of reasonableness, they were adopted. But, in determining that the rates were in the zone of reasonableness, the CRB did not just pay lip service to reviewing the prior decision, but it instead did a full review of that decision. And, some of the discussion that they offered may arise again in the new proceeding.
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FCC Extends Comment Deadlines on Proceedings on Multilingual Emergency Information and Network Nonduplication/Syndicated Exclusivity Repeal, and Announces Incentive Auction Rules are on the Agenda for May 15 Meeting
Some quick items to update some of our recent articles. The FCC has granted extensions of time to comment in two rulemaking proceedings, and released its tentative agenda for its next open meeting where it will adopt an initial order in the incentive auction proceeding. That’s the proceeding that we most recently wrote about
Equal Opportunities Issues that Arise When a Broadcast On-Air Personality Runs for Political Office
It’s political season, and somewhere, some on-air broadcast air personality is making the decision that they really want to change careers – and run for political office. We’ve written about what a broadcaster needs to do when that decision is made by one of their personalities, but I guess not every broadcaster reads this blog, as a story in the Salem (Oregon) Statesman Journal from last week shows that there is still some confusion about what the rule provides. So it is time for a little refresher on the issues that arise when an on-air personality runs for political office.
We wrote about the issue last year, when a Chicago-area on-air talk show host decided to run for local office. Then, we noted that the requirement that a station provide equal opportunities to a candidate who is opposing the on-air personality kicks in as soon as you have a legally qualified candidate – one who has filed the necessary paperwork to run for an office. The application of the equal opportunities rule (or “equal time” as some refer to it) is not limited to the 45 days before a primary or the 60 days before a general election (those windows apply only to the application of the lowest unit charges that have to be made available to candidates), and equal opportunites applies to state and local as well as Federal candidates. Once a candidate is qualified, even outside of the “political window”, equal opportunities apply.
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Supreme Court Hears Oral Argument in the Aereo Case – A Summary of the Issues and a Prediction
The Supreme Court heard the oral arguments in the Aereo case yesterday, it has received all the briefs, and now we all just wait for a decision – to probably be released late in June before the Court’s summer recess. The transcript of yesterday’s oral argument has been released and is available here. It makes for interesting reading, as the questions from the Court seemed to be dubious of Aereo’s claims that it can retransmit the signal of a broadcast television station over the Internet, to the public for a fee, without the consent of or any payment to the stations. While dubious about the Aereo service, the Court was also concerned about the potential impact of any decision against Aereo on cloud services and even on other distributors of media content. Lots of issues came up during the course of the argument, and it will be very interesting to see how the Court resolves these in its final decision. Keep reading, and I’ll make my prediction.
While Court arguments can never be relied on to predict the decision, they can at least provide insight into the questions that the Justices are considering. One question that recurred throughout the argument was raised by Justice Sotomayor in the first question that was asked – why wasn’t Aereo a cable system under Copyright law, as it retransmits television programming to consumers for a fee? Counsel for both parties contended that it was not a cable system, though neither gave an entirely satisfactory reason for that position. The definition of a cable system in Section 111 of the Copyright Act, which governs the compulsory license granted to cable systems to retransmit over-the-air TV stations and all of the content that they broadcast, defines a “cable system” as:
a facility…that in whole or in part receives signals transmitted or broadcast by one or more television stations licensed by the Federal Communications Commission, and makes secondary transmissions of such signals by wires, cables, microwave or other communications channels to subscribing members of the public who pay for such service.
As the Justices said, this sure looks like what Aereo is doing. As we have written before, the FCC is looking at whether an IP based video-programming service should be classified as a cable system. It might well have been easier for the attorney representing the broadcasters to concede that Aereo was very much like a cable system, as if it was so classified, it would have proved the argument that they broadcasters were trying to make – that its retransmission of television programming was a public performance that required the permission of the broadcaster.
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FCC Gives a Peek at Some Details for the Incentive Auction – What’s Up for TV Stations?
The incentive auction by which the FCC will try to get some television stations to surrender their spectrum so that it can be sold to wireless broadband users is moving forward. A vote on the general rules to implement the auction and to repack the television band are expected to be held at the Commission’s May 15 meeting. We are now beginning to get a look at what the FCC is thinking, based on a post on the FCC’s blog on Friday by Chairman Wheeler, and a fact sheet released later that day (which does not appear to be available on the FCC website). While not terribly detailed, the documents at least show that the Commission is planning a quick transition – looking for the repacking to be complete within 39 months from the end of the incentive auction – and perhaps sooner for some stations.
The blog post again reiterates the Chairman’s belief that the Incentive Auction process poses:
a once-in-a-lifetime opportunity to expand the benefits of mobile wireless coverage and competition to consumers across the Nation – particularly consumers in rural areas – offering more choices of wireless providers, lower prices, and higher quality mobile services
The post also suggests that TV stations, by agreeing to share television spectrum with another station in their market so that they can give up a channel to the auction have another “once in a lifetime” opportunity to get money from the government to pursue new business opportunities in new technologies, while still providing some broadcast service. This is much the same message that the Chairman conveyed at the NAB Convention in Las Vegas a few weeks ago. But for stations that do not take him up on his invitation to sell their spectrum, what is likely to happen?
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Activating the FM Chip in Mobile Phones – As Blackberry Steps Up, a Policy and Product Review
This blog usually covers legal and policy issues, not product reviews. And this article will at least try to relate policy decisions to a product review, but mostly it’s to share a cool new feature on my phone. To explain, I am one of those holdouts still using a Blackberry. In dealing with new media clients, I almost feel like I have to make excuses for still using a Blackberry, but as an attorney who travels frequently and writes many emails from the road, the physical keyboard really makes a difference – at least to me. I can at least say that I did upgrade to the Q10 last year – the Blackberry that has the physical keyboard, but also has a new faster operating system that relies much more on touch commands for everything but the actual typing. This week, I received what I consider a gift from Blackberry, as I’m also a big radio fan. While I listen to Internet radio and use digital music services, I also still really enjoy listening to over-the-air radio. This week, my Blackberry Q10 received an upgrade to its operating system and, with that upgrade, the phone’s FM chip was activated. Now, my ATT phone gets over-the-air radio – becoming the modern equivalent to the transistor radio – a radio in my pocket at all times. Of course, being a lawyer, the whole question of activating FM chips in mobile phones brings up policy issues, as it has been in and out of many policy arguments over the last few years.
First, a qualification must be made for international readers of this blog. The question of an active FM chip in a mobile phone is an issue in the US, but not in many other countries of the world, where FM reception on mobile phones has been standard for many years. In the US, that has not been the case. While the chips are built into most phones, they are not activated. Some suggest that the chips are not activated because the carriers want to encourage data usage through the use of online audio, but the carriers simply say that there is no consumer demand for the activation of the feature. No matter what the reason, the chip has not been activated in most US phones, and thus policy issues from time to time arise as to whether it’s activation should be mandated or encouraged by government action.
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The Text of the FCC’s Order on JSAs and Other Broadcast Ownership Issues is Released – Part One, Hidden Nuggets on TV and Radio Market Definitions
The text of the FCC’s decision on the attribution of Joint Sales Agreements for multiple ownership purposes, and the termination of the 2010 Quadrennial Review of the ownership rules and the start of the 2014 Quadrennial Review, has now been released by the FCC. In a slim 211 pages of text, plus another 24 pages of concurring and dissenting opinions, there is more than enough for broadcasters, lawyers and regulators to digest for weeks. The Order addresses in detail the matters that had already been made public – the attribution of TV JSAs, the further examination of TV shared Services Agreements, and tentative decisions to not fundamentally change any of the Commission’s other ownership rules (with the possible exception of a favorable inclination to look at elimination of the radio-newspaper cross-ownership)(see our summary here). But there are many details to be examined as to how the Commission reached the decisions that it did and the nuances of the decisions that were made (e.g. the waiver policy that would allow some JSAs to remain in place – the Commission’s decision does not provide much detail – essentially saying that they will grant waivers to deserving JSAs that serve the public interest, but providing little detailed guidance as to what would make a good waiver case, except to say that temporary or short-term waivers were better than long-term ones, and that ones where there was little sharing of other services are better than ones where there is more sharing). We will cover all of these areas in more detail over the next few days.
But there were some interesting and less expected nuggets that popped out in a first read of the Order, and have not been much covered elsewhere. For TV, these include the tentative decision to replace the TV Grade B contour with the digital Noise Limited Service Contour for determining whether an individual or entity can own two TV stations in the same market. Instead of allowing ownership where the Grade B contours do not overlap, the Commission proposes to allow that ownership where the NLSC do not overlap, and to grandfather any combinations that would be affected by this rule change. Similar small but significant issues were also raised for radio.
Continue Reading The Text of the FCC’s Order on JSAs and Other Broadcast Ownership Issues is Released – Part One, Hidden Nuggets on TV and Radio Market Definitions