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David Oxenford represents broadcasting and digital media companies in connection with regulatory, transactional and intellectual property issues. He has represented broadcasters and webcasters before the Federal Communications Commission, the Copyright Royalty Board, courts and other government agencies for over 30 years.

We’ve heard that some broadcasters are worried about staffing their main studios and allowing the public to visit the studios in this period where the government and health authorities have called for social distancing.  With the elimination of the main studio and studio staffing rules back in 2018 (see our articles here and here),

As Washington reacts to the coronavirus, there are certainly regulatory implications to broadcasters and other media companies.  The FCC Thursday announced that its headquarters is closed to visitors and that its employees should begin to telework.  Many FCC employees regularly took advantage of telework options before the current situation, so it can be expected that many routine application processing activities (particularly those involving electronically filed applications) should be able to proceed with relatively minimal delays.  What remains to be seen is the ability of the FCC to handle more complex matters that often involve meetings with stakeholders and among FCC staff before decisions are made.  While these too can be handled electronically and telephonically, the speed of FCC actions may well be slower than normal as technological issues are worked out and as the FCC may be called on to address telecommunications matters related to combatting the virus.

The FCC’s Audio Division, on Friday, released a Public Notice describing some special processes it will use in light of the teleworking policy.  First, college and university stations can rely on the FCC rules that exempt these stations from the FCC’s minimum operating schedule during recess periods without the need for a special temporary authority.  The current college shutdowns will be treated as recess periods.
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The FDA last week issued an update on its review of issues related to the sale and marketing of CBD products.  The guidance reiterates the kinds of warnings that we have given before (see, for instance, our articles here and here) about not advertising specific health benefits of CBD products as, except for two approved CBD-based drugs used to control seizure-related disorders, the FDA has not yet approved other medical uses of CBD products.  The FDA release provides numerous general cautions about the use of CBD products including concerns about their interactions with other drugs and the potential side-effects of their use.

The statement includes only two paragraphs devoted to marketing of CBD products.  In these paragraphs, the FDA discusses the enforcement actions it has taken (see our posts here and here) against companies that provide specific guidance on health benefits of CBD not only because of the fears of side-effects, but also because of the potential for consumers to be led to believe that CBD products should be used to treat medical conditions to the exclusion of other proven therapies.  The warnings about marketing also extended to the concerns about product labeling, including worries about products being claimed to contain CBD that do not or containing other unknown substances not listed on any label.
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Notifications about cable carriage have now gone electronic – and contact people at stations and MVPDs for notices about carriage issues are now to be provided in the FCC-hosted online public inspection file and in the Cable Operations and Licensing System (COALS).  According to an FCC Public Notice released last week, in those databases

The Radio Music License Committee yesterday told members that Global Music Rights (“GMR”), the performing rights organization that began a few years ago to collect royalties for the public performance of songs written by a select number of popular songwriters (including Bruce Springsteen, members of the Eagles, Pharrell Williams and others who have withdrawn from ASCAP and BMI) has agreed to extend its interim license for commercial radio stations until March 31, 2021. The notice says that GMR will be contacting stations that signed the previous extension (through March 31 of this year) to extend the interim license for another year on the same terms now in place. If you don’t hear from GMR by March 15, the RMLC suggests that you reach out to GMR directly (do not contact RMLC as they cannot help) to inquire about this extension.

As we have written before (see our articles here, here and here), GMR and the RMLC are in protracted litigation over whether or not the rates set by GMR should be subject to some sort of antitrust review, as are the rates set by ASCAP, BMI and even SESAC (see our article here on the SESAC rates). GMR has counterclaimed, arguing that RMLC is a “buyer’s cartel” in violation of the antitrust laws.  Earlier this year, the lawsuits were consolidated in a court in California, where litigation is ongoing (see our article here about the transfer).  In our most recent article about the litigation, we noted that the court rejected motions from each party asking that the other’s claims be dismissed.  Thus, unless there is a settlement, the case will go to trial.  The decision to extend the interim license for a year, instead of the six-month period in previous extensions, may indicate that GMR at least expects that the litigation will continue.
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A Notice of Proposed Rulemaking proposing greater coverage areas for unlicensed “white space” devices operating in the TV bands was adopted at the FCC’s open meeting last week and released earlier this week.   We have written about these white space devices before (see, for instance, our articles here and here).  These devices operate at relatively low powers in unused portions of the TV bands.  They are designed to offer wireless services, including broadband.  Advocates of these operations see them as an inexpensive way to offer broadband services to underserved areas, including parts of rural America.

The concern of course with these devices is that if their use is not managed correctly, their operations could interfere with existing TV operators (including LPTVs, TV translators, broadcast auxiliary services, and wireless microphones).  Thus far, operations have been limited to power levels of 10 watts or less from antenna heights that did not exceed 250 meters height above average terrain.  The advocates for these devices, including Microsoft, have argued that these low power levels make it difficult to serve rural areas given their small coverage area.  NAB, on behalf of broadcasters, and advocates for wireless microphone operators, have urged caution in any increase in the coverage of these operations if they could possibly cause interference to existing users of the spectrum.  After significant discussion and compromise between the NAB and Microsoft, the NPRM adopted last week tries to strike a balance between these positions.
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The FCC yesterday released a Public Notice calling for public comment on the state of the communications marketplace so that it can prepare a report to Congress – a report that is required every even-numbered year.  The Notice calls for comments on the state of competition in various sectors of the communications industry – including for audio and video.  The inclusion of audio in this report is relatively new – being included for the first time two years ago (see our article here).  Comments in this proceeding are due on April 13, with replies due May 13.

The Audio Competition Report prepared two years ago was very important in informing the FCC as to the state of competition in that segment of the market.  Comments filed with the Commission on the report were incorporated in the record of the FCC’s Quadrennial Review Notice of Proposed Rulemaking which entertained the possibility of changes in the ownership rules for broadcast radio in light of the substantial competition that comes from digital audio sources (see our article here on the Quadrennial Review NPRM).  Whether this year’s report will be as crucial is unknown, as the Third Circuit Court of Appeals decision on the FCC’s 2017 ownership rule changes have, for now, put all broadcast ownership changes on hold while the FCC (and the Department of Justice) decide whether to appeal that case to the Supreme Court or to attempt to answer the Third Circuit’s concerns that the FCC had not sufficiently addressed the impact of changes in its ownership rules on minority ownership (see our articles here and here).  While these decisions are being made, it appears that all ownership changes are on hold.
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As the calendar flips to March, many of us have put our trust in Punxsutawney Phil’s weather forecasting expertise that an early spring is coming.  A surer place to put our trust, however, is in the guarantee that there are always some regulatory dates about which broadcasters should be aware.  While March is a month without with many of the regularly scheduled deadlines for renewals, EEO public file reports or Quarterly Issues Programs lists, there are still plenty of regulatory dates about which you should take notice.

The closest we come in March to a broadly applicable FCC filing deadline is the requirement that, by March 30, 2020 television broadcasters must complete and submit through LMS the FCC’s new Form 2100, Schedule H documenting their compliance with the requirements under the children’s television (KidVid) rules to broadcast educational and informational programming directed to children.  This report will document that programming from September 16, 2019 (when the new KidVid rules went into effect) to December 31, 2019.  The March 30 date is a transitional date as the FCC moves away from the old quarterly children’s television reports to ones that will be filed annually – in future years by the end of January.  This year, however, the FCC took time to develop the form for the new annual report and to explain how it should be used, thus the extra time to file.  Once filed, TV broadcasters won’t file another children’s television report until early 2021 reporting on compliance for all of 2020.  For more on the transition to the new KidVid obligations, read our articles here, here, and here.  To learn how to work with the new form, watch the FCC’s archived instructional webinar here.
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In a decision released this week, the FCC reiterated a policy of being very tough on petitions to add communities to television markets to change the stations that are considered to be part of the market for cable and satellite carriage purposes.  This strict compliance policy was set out in another case decided

Global Music Rights, the relatively new performing rights organization that signed a number of composers of popular songs away from ASCAP and BMI in order to seek higher music royalties for the public performance of their works on radio stations and other media platforms (see our articles here and here), lost one round in its litigation with the Radio Music License Committee in RMLC’s attempt to bring GMR under some sort of rate review under the antitrust laws.  RMLC has alleged that GMR, by combining multiple artists in a single essentially take-it-or-leave-it package, is able to charge rates well above what any artists could receive on its own, thus violating the antitrust laws (see our articles here and here).  This is a theory like the one which lead to an arbitration with SESAC dramatically lowering royalty rates the radio industry pays to that organization (see our articles here and here).  In a decision released Friday, the Judge presiding over RMLC’s case rejected GMR’s arguments that the suit should be dismissed without a trial.   The Judge, in a short three-page opinion, said that viewed in their most favorable light to RMLC (which is the standard used in deciding on such motions), the facts alleged by RMLC were enough to support the claims it made in the lawsuit, so the case will go to trial.

But this is not necessarily a great victory, as the Judge notes that it remains to be seen whether, when the full facts are introduced at the trial and challenged by GMR, these facts will in fact be enough to sustain the claims of RMLC.  A similar finding was made in GMR’s countersuit – arguing that RMLC formed an illegal buyer’s cartel in violation of the antitrust laws by trying to negotiate royalty rates for most commercial radio operators (see our article here on that countersuit).  The Court rejected RMLC’s argument that the GMR suit should be dismissed, finding that there were enough facts raised to potentially support GMR’s claims, though also warning that it remained to be seen if, once the facts were presented and challenged at trial, whether they indeed would sustain GMR’s claims.
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