In the last few weeks, I’ve twice had the occasion to summarize the legal issues facing broadcasters, and it amazes me at how many issue there are and, how quickly the issues are changing. On April 12, I did an update on these issue to the Oklahoma Association of Broadcasters at their annual convention – the PowerPoint slides
FCC Retracts Text-to-Speech Prohibition from New EAS Rules
The conversion of EAS alerts from text to speech by broadcast stations and cable systems, through systems contained in the stations and systems EAS equipment, was prohibited in the FCC’s Fifth Report and Order (summarized here) implementing the rules for the technology for the Common Alerting Protocol – the Internet-based alert system that must be
Librarian of Congress Appoints New Chief Judge of Copyright Royalty Board
The Librarian of Congress today announced the appointment of a new Chief Judge for the Copyright Royalty Board. The new Chief Judge will be Suzanne Barnett, a superior court judge of King County in Seattle, Washington. This is the first new judge on the three-judge CRB since the judges were first appointed in January 2006, soon after Congress first created the CRB.
The law governing the Copyright Royalty Board requires that the three judges have different experience. One must have a background in Copyright law, a position filled by Judge William Roberts. A second must have a background in economics. That is the position filled by Judge Stanley C. Wisniewski. Each Judge is appointed for a six-year term, with the terms staggered so that one seat is subject to reappointment every two years. The Chief Judge is required to be someone with "at least five years of experience in adjudications, arbitrations, or court trials." The press release issued by the Librarian of Congress stated that Judge Barnett "hears cases of all types and presides over both jury and non-jury trials. Barnett "has served on all the King County calendars – civil, criminal, family, and juvenile – and at all three superior court locations." Prior to her appointment to the Bench, she was an attorney in private practice for 16 years.Continue Reading Librarian of Congress Appoints New Chief Judge of Copyright Royalty Board
Court of Appeals Strikes Down Communications Act Ban on Political and Issue Advertising on Noncommercial Broadcasting Stations – Analyzing the Issues
The Communications Act’s ban on noncommercial broadcast stations running political and issue advertising was struck down as unconstitutional by the US Court of Appeals for the Ninth Circuit. While the Court upheld the prohibition on commercial advertising for products and services, the majority of the Court felt that the ban on political advertising could not be justified. Bob Corn-Revere of Davis Wright Tremaine’s DC office, who is quite experienced in First Amendment litigation and is a frequent speaker and author on these issues, offers this summary of the constitutional issues raised by this case:
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A divided panel of the U.S. Court of Appeals for the Ninth Circuit held that Communications Act provisions that ban political and issue advertising on public broadcasting stations violate the First Amendment. The court left intact another provision that prohibits commercial advertising on public stations. The majority opinion in Minority Television Project, Inc. v. FCC, written by Judge Carlos Bea, reasoned that Congress lacked substantial evidence that the ban on political and issue advertising set forth in 47 U.S.C. § 399b was necessary to serve the government’s purpose of preserving the mission and quality of public broadcasting, and that the statute was not narrowly tailored. At the same time, the court held that allowing commercial advertising would undermine the purpose of public broadcasting to provide educational and niche programming.
Synthesizing three decades of First Amendment case law, Judge Bea wrote that Congress must have substantial evidence to justify a content-based speech restriction “at the time of the statute’s enactment.” The evidence must show “that the speech banned by a statute poses a greater threat to the government’s purported interest than the speech permitted by the statute.” The decision principally relied on FCC v. League of Women Voters, a 1984 Supreme Court case that struck down a similar Communications Act prohibition on editorializing by public broadcast stations. Judge Bea’s opinion also relied on a 1993 commercial speech case, Cincinnati v. Discovery Network, for “[a]dditional instruction on what narrow tailoring requires. That case invalidated a municipal ordinance that imposed differential regulation on newsboxes, depending on whether they contained commercial or noncommercial matter.Continue Reading Court of Appeals Strikes Down Communications Act Ban on Political and Issue Advertising on Noncommercial Broadcasting Stations – Analyzing the Issues
$11,000 FCC Fine to MVPD for EEO Rule Violations
Broadcasters are not the only ones with FCC-regulated EEO obligations. Cable system operators and other MVPDs have similar FCC EEO obligations, requiring wide dissemination of information about job openings and the maintenance of public file information. In a decision released today, the FCC proposed a $11,000 fine to an MVPD for failing to widely disseminate information
Music Royalty Settlement Announced on Mechanical Royalties – Not A Decision on Webcasting Rates
The broadcast and music trade press brought news of a settlement between music companies and digital media services regrading digital music royalties. Some press reports jumped to the conclusion that the decision had something to do with the royalty rates that Internet radio companies pay SoundExchange for streaming their music on the Internet. Others expressed disappointment that it did not seem to address that issue at all. In fact, the reason that the settlement had nothing to do with webcasting was because it was a settlement of a Copyright Royalty Board proceeding involving a totally different right – essentially the right to reproduce a the musical work, i.e. the words and music to a song – not any public performance right that is involved in Internet radio streaming.
As we have written before (including the last time a similar settlement was announced), webcasters pay their royalties principally under Section 114 of the Copyright Act, which sets up a "statutory license" requiring that all copyright holders in a "sound recording" (a recording of a song by a particular artist) make their songs available for public performance to any digital music service that meets certain criteria – including principally that their service is a non-interactive one, where listeners cannot pick the particular song that they want to hear. In exchange for this right, digital music services pay a fee set by the Copyright Royalty Board. These fees cover liabilities for music use in a process where a service generates a product that goes from the service to many people, much like radio does in the traditional world, without making any sort of lasting digital copy that would be akin, in the physical world, to a CD or record. The settlement that was just announced deals with rights that like those paid, in the physical world, by a record company to a music publisher for using a musical composition in a record or CD that the record company is recording with a particular artist, not with the public performance right.Continue Reading Music Royalty Settlement Announced on Mechanical Royalties – Not A Decision on Webcasting Rates
On the Schedule for the April 27 FCC Meeting: Television Public Interest Obligations, TV Channel Sharing and Third-Party Fundraising by Noncommercial Broadcasters
Three broadcast items are tentatively scheduled for the next FCC meeting, to be held on April 27, according to the tentative agenda released today. In one expected action, though perhaps moving more quickly than many thought possible, the FCC has indicated that it will adopt an Order in its proceeding requiring TV broadcasters to place and maintain their public files on the Internet. A second broadcast item will adopt rules for channel sharing by TV broadcasters as part of the plan for incentive auctions to entice TV broadcasters to give up some of their spectrum for wireless broadband use. Finally, the FCC proposes to adopt a NPRM on whether to amend current policies so as to permit noncommercial broadcasters from interrupting their regular programming to raise funds for organizations other than the station itself.
The first item is to determine whether to require that the broadcasters maintain an Online Public Inspection File, is a controversial issue about which we wrote last week. The proposal for the online file grew out of the FCC’s Future of Media Report (renamed the Report on the Information Needs of Communities when it was released last year, see our summary here). In that same report, it was suggested that the FCC relax rules applicable to noncommercial broadcasters that limit their on-air fundraising for third-parties, if that fundraising interrupts the normal course of programming. The Future of Media Report suggests that this restriction be relaxed so that noncommercial broadcasters be able to do block programming from time to time to raise funds for other noncommercial entitiesContinue Reading On the Schedule for the April 27 FCC Meeting: Television Public Interest Obligations, TV Channel Sharing and Third-Party Fundraising by Noncommercial Broadcasters
May 7 Deadline Set for Comments on Proposed Rules on Interference to Full-Power FM by LPFM Stations, and on LPFM Service Rules (Including Proposal for 250 Watt LPFM Stations)
Determining how much interference to full-power FM stations is acceptable from LPFM stations is perhaps, in the long run, one of the most important issues discussed in the FCC’s two orders released two weeks ago clarifying the rules for LPFM stations. The FCC’s proposals on this issue, and several others, has now been published in the Federal Register, asking for public comments by May 7, with reply comments due May 21. As we detailed when we wrote about the proposals that have now been published in the Federal Register, while the FCC did away with strict mileage limitations on third-adjacent channel spacings between LPFM stations and full-power FMs as required by the Local Community Radio Act ("LCRA"), it did not totally eliminate all interference requirements. Instead, it proposed a two-tier system requiring more remediation efforts by LPFMs that operate at less than what had been the required spacings, and lesser interference for stations that did observe the old mileage separations. The May 7 comment deadline also applies to comments on the FCC’s proposals for second-adjacent channel waivers of the required spacings between LPFMs and full-power FM stations, and on changes to the service rules for LPFMs – including allowing them to operate at powers as high as 250 watts ERP in rural areas.
The ruling eliminating the third-adjacent channel spacing rule as required by the LCRA was published in the Federal Register yesterday, meaning that the rule becomes effective on June 4, but practically that should mean little until the FCC addresses the interference-complaint resolution issues addressed in the Further NPRM. The abolition of the third adjacent channel spacing rules did leave in place one limitation, that LPFM stations cannot cause more interference than they can under present rules for stations that offer reading services for the blind.
The Further NPRM also addresses second adjacent channel interference, proposing very strict rules that require an LPFM to cease operations if it creates any interference to a regularly used FM signal – even outside of the full-power station’s protected service contours. This is essentially the FM translator interference requirement – which has, in the past, caused many translators to cease operations or change their technical facilities to protect full-power stations. Further details on this proposal are available in our summary of the order. That summary, however, did not address the proposed changes in the LPFM service rules, which we address below.Continue Reading May 7 Deadline Set for Comments on Proposed Rules on Interference to Full-Power FM by LPFM Stations, and on LPFM Service Rules (Including Proposal for 250 Watt LPFM Stations)
Monitor Required Tower Lighting – FCC Proposes $17,000 Fine for Violations
Communications towers that are not lit as required often bring big fines from the FCC. In two decisions released today, the Commission followed that precedent. In one case, the FCC proposed a fine of $17,000 to a tower owner after repeated promises to fix lights that were out did not result in any resolution of the issue
Online Video Services Prompt FCC to Ask for Comments on Definition of MVPD
As technology changes, the definitions in the FCC rules don’t always keep up. In a public notice released last Friday, the FCC asked for public comment on what its definition of an "MVPD" – Multichannel Video Programming Distributor – means for purposes of its program access rules. These rules limit exclusive contracts for certain programming that