We recently wrote about the FCC’s request for comments on how to enforce its indecency policy, and how to deal with the backlog of hundreds of thousands of complaints pending at the FCC. The FCC has now set the dates for comments in this proceeding – with initial comments due on or before May 20
Aereo Court Decision Permits Internet Streaming of TV Programs Without Royalties – Undermining the Public Performance Right?
We’ve written extensively about copyright issues for audio services, but the big copyright decision that recently made headlines is a TV issue, though one that could have an impact on audio as well. That was the Second Circuit decision in the Aereo case – upholding a lower court decision allowing a company to retransmit over-the-air TV signals to consumers over the Internet – without any royalties to the TV broadcasters or television program producers. The decision looked at the issue of what defines a “public performance” that would require the consent of the copyright owner. The Court found that there is no public performance of television programming where the service is set up so that the programming is streamed to the viewer individually, at their demand, rather than transmitted all at once to multiple consumers – as by a cable system or a satellite television service. The decision is a controversial one – decided by a 2 to 1 vote with the dissenting judge issuing a strong dissent arguing that the Aereo service was nothing more than a “sham” designed to evade the royalty obligations or copyright permissions that would be necessary if the service were deemed a cable system or other type of multichannel video provider. What does this decision really mean for television stations, and could it have broader implications for the reuse of all sorts of broadcast content on the Internet?
The decision focused on the question of whether the Aereo service “publicly performs” the programming that it sends to its subscribers. Under the Copyright Act, a copyright owner has a bundle of rights which it has the exclusive ability to exploit. This includes the right to copy the copyrighted work, to distribute it, to make a “derivative work” (a work that uses the copyrighted material and changes it in some way – like putting new words to the melody of a copyrighted song), and the right to publicly perform it. The definition of a public performance includes any transmission or retransmission of a performance to multiple individuals at the same time or at different times. This language was added to the Copyright Act at the time of the advent of cable television, to make clear that services like cable, that take an existing performance (like that of a broadcast television station) and then further transmit it to other people (even people who could theoretically pick up the original performance) were themselves making a public performance that needed the consent of the copyright holder or a government-imposed statutory license (which allows the performance as long as the party making the performance pays the copyright holder an amount set by the government). From a cursory look, it would appear that Aereo is retransmitting the signal of the TV station to all of its customers. Why, then, did the Court rule that no public performance was involved?Continue Reading Aereo Court Decision Permits Internet Streaming of TV Programs Without Royalties – Undermining the Public Performance Right?
FCC Issues Report on Nationwide EAS Test And Refers to the Enforcement Bureau Stations That Did Not Submit the Results of the Test – Could Fines Follow?
Almost a year and a half ago, the FCC held its first ever test of the EAS system designed to alert the country in the event of a nationwide emergency. On Friday, the FCC’s Public Safety and Homeland Security Bureau issued a report on the results of the test. While there have been many articles in the trade press reporting on some of the findings of the Bureau, few have focused on one footnote indicating that many EAS participants – including some broadcasters and cable systems – never bothered to file their reports as to the results of their participation in the tests. The Bureau notes that the identity of these broadcasters will be turned over the FCC’s Enforcement Bureau for further action – potentially fines for their failures to report on the results of the test (we warned that this might be a consequence of the failure to file a report of the results of the test in our article here). Broadcasters should watch for further action from the Enforcement Bureau at some point in the future.
The Report indicated that approximately 83% of all broadcasters who reported to the FCC had received the test. However, the FCC received reports from only about 13,787 stations. According to the FCC’s tabulation of the number of broadcast stations in the US, as released in another FCC report last week, there are approximately 15,256 radio stations and 1781 TV stations in the United States. This could mean that there are a substantial number of broadcast stations that did not report the results of the nationwide test. The Commission apparently did not try to determine if the results achieved by those nonresponsive stations were different than the results of those who reported to the FCC. One might assume that these stations, which somehow missed all the warnings about the need to file with the FCC the results of the tests, probably also missed instructions about how to comply with the EAS rules and thus were probably less likely to have fully operating EAS systems. So there is concern that the report may even understate the shortcomings of the nationwide test.Continue Reading FCC Issues Report on Nationwide EAS Test And Refers to the Enforcement Bureau Stations That Did Not Submit the Results of the Test – Could Fines Follow?
FCC Imposes Freeze on Television Station Technical Improvements – Preparing for Repacking the TV Spectrum to Allow for Spectrum Auctions
With broadcasters making their way to the NAB Convention in Las Vegas, the FCC on Friday provided one topic for conversation among TV broadcasters – issuing a Public Notice imposing a freeze – effective immediately – on the filing of any technical application by any licensee or permittee of a full power TV station or a Class A station if that application which would increase their protected service area. The freeze was imposed, in the words of the FCC, in order to “facilitate analysis of repacking methodologies and to assure that the objectives of the broadcast television incentive auction are not frustrated.” In other words, the FCC wants a stable TV database from which it can begin the process of repacking TV stations into a smaller portion of the TV spectrum to facilitate the auction of parts of the TV spectrum recaptured after an incentive auction for wireless broadband purposes.
According to the notice, the Media Bureau will no longer accept the following types of applications:
· Modification applications (and amendments to pending modification applications) by full power and Class A television broadcast licensees and permittees for changes to existing service areas that would increase a full power station’s noise-limited contour, or a Class A station’s protected contour, in one or more directions beyond the area resulting from the station’s present parameters as represented in its authorizations (licenses and/or construction permits).
· Class A displacement applications that would increase a station’s protected contour. (However, the Bureau will continue to accept Class A minor change applications to implement the digital transition (flash cut and digital companion channel) subject to current rule limitations.
The Notice states that the Bureau will consider requests for waivers of the freeze, on a case-by-case basis “when a modification application is necessary or otherwise in the public interest for technical or other reasons to maintain quality service to the public, such as when zoning restrictions preclude tower construction at a particular site or when unforeseen events, such as extreme weather events or other extraordinary circumstances, require relocation to a new tower site.” So, if your tower collapses and you need to move to a different site, a waiver may be possible, but improvements for the sake of improving a station’s signal will most likely be prohibited by the freeze.Continue Reading FCC Imposes Freeze on Television Station Technical Improvements – Preparing for Repacking the TV Spectrum to Allow for Spectrum Auctions
FCC Processing of Translator Applications from 2003 Moves Ahead – Window for Opting Out of Noncommercial Status to Participate in the Auction
Another radio topic sure to be discussed at the NAB convention this week is the ongoing story of the thousands of FM applications translators still pending at the FCC from the 2003 FM translator window. While this has been a topic at many of the NAB Conventions in the last 10 years, it looks like the end is near. On Tuesday, the FCC adopted yet another order in the processing of these translators, allowing applicants who specified that they were noncommercial operators to amend their applications in a window from April 8 to April 17 to specify commercial operations. That is important to such applicants as, soon after these applications were filed back in 2003, the FCC adopted a policy that said that applicants who elect noncommercial processing could not participate in an auction – and that they would be dismissed if they were mutually exclusive with commercial applicants. Not allowing these applicants the opportunity to amend (as the FCC has done in several other auctions from this period), would mean that the applicants would be dismissed for a defect that had not been announced at the time of their filing.
This is but one more step in the ongoing attempts to complete the processing of these applications so as to permit a new LPFM window later in the year. This will probably mean that thousands of new FM translators will be granted in the coming months – providing opportunities for the expansion of broadcasters’ signals, either in the traditional way of filling in holes in the coverage of FM broadcast stations, or by allowing for the retransmission of AM and FM-HD signals. This should prompt many discussions at the NAB Convention as broadcasters look at the opportunities that these new translator stations will present.Continue Reading FCC Processing of Translator Applications from 2003 Moves Ahead – Window for Opting Out of Noncommercial Status to Participate in the Auction
FCC Seeks Comments on Its Indecency Policy – How Should the Commission Enforce Its Policies After Last Year’s Supreme Court Ruling?
The FCC’s indecency policy has been in limbo since last year’s Supreme Court decision determining that the Commission’s fines on broadcasters for fleeting expletives had not been adequately explained before being imposed. On Monday, the FCC took a step to clarifying that policy by asking for public comments on what it should do now. Should it formally adopt the policy that bans even fleeting expletives, and explain that policy to broadcasters to meet the issues that the Supreme Court raised? Or should it go back to the policy that had been in place before – the decision in the Pacifica case (known more popularly as the "seven dirty words" case, about which we wrote here) – where there had to be repetitive or deliberate use of expletives before the FCC would act. Comments will be due 30 days after this notice is published in the Federal Register, and replies 30 days after that.
The Commission stated that the public could comment on other aspects of its indecency enforcement as well, without specifying any specific areas of inquiry. One issue that would seem to be foremost in the FCC’s inquiry, but one which was not mentioned at all, is the constitutionality of the policy and its enforcement. This was an issue that was twice teed up to the Supreme Court, and both times that Court managed to avoid the issue by deciding cases before it on procedural "due process" grounds – essentially that the FCC had not given sufficient warning before adopting fines or that the FCC otherwise had not followed its own procedures when it changed its policies to a stricter enforcement standard. As the Court never finally resolved the constitutionality issue, it may well be back before the Court again – especially were the FCC to decide to pursue the stricter standard applied by the last Commission.Continue Reading FCC Seeks Comments on Its Indecency Policy – How Should the Commission Enforce Its Policies After Last Year’s Supreme Court Ruling?
Why the Differing Perceptions of the Value of Music by Digital Music Services and Copyright Holders Make Royalty Decisions So Hard
With the National Association of Broadcasters big convention coming up next week in Las Vegas, this week we’ll look at a couple of the issues that will likely be discussed when the industry gathers for its annual reunion. On Sunday, before most of the NAB Show begins, the Radio and Internet Newsletter (RAIN) will be holding its RAIN Summit West, where I will be moderating a panel called The Song Plays On – which will focus on the music royalties paid by Internet Radio and other digital music services. We’ll not focus on what the current royalties are, but instead to try to explore what they could be in the future. This is really one of the most difficult issues in the industry, as the two sides (and really there are many more than two sides to this issue) come at the issue from far different perspectives. We will try to bridge those differences and explore where there might be common ground for music users and copyright holders to come together to arrive at mutually beneficial solutions to this thorny issue.
The Internet Radio Fairness Act introduced in Congress last year brought this issue into sharp focus. That Act sought to bring about a number of reforms in the way that the Copyright Royalty Board sets various music royalties – particularly the rates that apply to Internet radio stations. We wrote about the provisions of the bill dealing with Internet radio royalties soon after the bill was introduced. After that article, there was a Congressional hearing on the issue, and lots of debate before the bill died at the end of the year as the session of Congress expired. This year, the Chair of the House Judiciary Committee has promised a number of hearings on all aspects of music and audio copyright issues, though none have yet been scheduled. But the debate about IRFA last year illustrated the divide between the various sides in the music royalty debate. Continue Reading Why the Differing Perceptions of the Value of Music by Digital Music Services and Copyright Holders Make Royalty Decisions So Hard
On April Fools Day – Remember the FCC’s Hoax Rule!
It’s time for our annual April Fools Day warning – be careful with on air pranks prepared especially for the day. This year, with thetragedy caused by the Australian morning show hosts calling the nurse for the Duchess of Cambridge, broadcasters have an example of what can happen when an on-air prank goes wrong. Where
Noncommercial Radio Operator Fined $10,000 for Not Providing Immediate Access to Public File – FCC Provides A Good Primer on the Public File Rules for All Radio Broadcasters
The FCC proposed that a noncommercial broadcaster be fined $10,000 for its failure to allow a visitor unquestioned and immediate access to the public inspection files for 6 noncommercial radio stations operated from the same main studio. Though the delay in allowing access was only a few hours long, that delay, together with questions asked of the person who requested access as to his reasons for the inspections, led to the Notice of Apparent Liability issued by the FCC. In the decision, the Commission reminded all broadcasters that their obligation is to make the file available immediately upon a request made during normal business hours. The person inspecting the file cannot be asked why they want to see the file, or for their business or professional affiliation.
In this case, an individual apparently representing a competing broadcaster showed up at the station at about 10:30 in the morning. While it was disputed as to whether the individual immediately asked the receptionist to see the public file, or whether he simply asked to talk to the general manager of the station, the Commission found that both parties agreed that, when the general manager was reached by phone, the individual did ask to see the file. The general manager did not immediately tell his staff to allow inspection of the file, instead telling the visitor that the manager would return to the office at about noon, and the file could be seen then. It was that delay – putting the visitor off for a few hours- that the Commission found was sufficient to trigger the violation. In the decision, the FCC went further to make this case instructive for broadcasters by laying out some of the specifics of the obligations of a broadcaster to allow access to its public file.Continue Reading Noncommercial Radio Operator Fined $10,000 for Not Providing Immediate Access to Public File – FCC Provides A Good Primer on the Public File Rules for All Radio Broadcasters
April FCC Obligations for Broadcasters – Renewals, EEO, Quarterly Issues Programs Lists, Captioning of Live or Near-Live Online Programming, FM Translator Filings, an FM Auction and Comments on Alien Ownership
April is one of those months in which many FCC obligations are triggered for broadcasters. There are the normal obligations, like the Quarterly Issues Programs lists, that need to be in the public file of all broadcast stations, radio and TV, commercial and noncommercial, by April 10. Quarterly Children’s television reports are due to be submitted by TV stations. And there are renewal obligations for stations in many states, as well as EEO Public File Reports that are due to be placed in station’s public files and on their websites. The end of March also brings the obligation for television broadcasters to start captioning live and near-live programming that is captioned on air, and then rebroadcast on the Internet. Finally, there are comment deadlines on the FCC’s proposal to relax the foreign ownership limits, and an FM auction and continuing FM translator filing requirements.
Radio stations in Texas and television stations in Tennessee, Kentucky and Indiana have renewal applications due on April 1. The license renewal pre-filing broadcast announcements for radio stations in Arizona, Idaho, Nevada, New Mexico, Utah and Wyoming, and for TV stations in Michigan and Ohio, must begin on April 1. All of these stations will be filing their renewals by June 1. EEO Annual Public file reports for all stations (radio and TV) with five or more full-time employees, which are located in Texas, Tennessee, Kentucky, Delaware, Pennsylvania or Indiana, must be placed in their public files (which are now online for TV broadcasters) by April 1. Noncommercial radio stations in Texas, and noncommercial TV stations in Tennessee, Indiana Delaware, Pennsylvania, and Kentucky must also file their Biennial Ownership Reports by April 1. Continue Reading April FCC Obligations for Broadcasters – Renewals, EEO, Quarterly Issues Programs Lists, Captioning of Live or Near-Live Online Programming, FM Translator Filings, an FM Auction and Comments on Alien Ownership