In a decision last week, the FCC fined a radio station $4000 for broadcasting the message from someone’s telephone answering machine without permission. The FCC’s rules forbid the broadcast of a telephone call without permission (and the recording of a phone call for broadcast without permission). So, a station violates the rule when a caller says
A Tale of Two Indecency Decisions – FCC Issues Fines for Married by America and NYPD Blue
This week, after a long period when we saw little in the way of indecency enforcement by the FCC, the Commission issued two orders compelling payment of fines for television programs broadcast in 2003. The Commission issued a Notice of Apparent Liability (an order proposing a fine) only a few weeks ago asking ABC affiliates to respond to a potential indecency violation in connection with an NYPD Blue episode run in February 2003 (see our description of the proposed fines here and here). Only a week after the submission of arguments against the proposed fine made by the cited affiliates in a 75 page response to the Notice of Apparent Liability, the FCC issued its order rejecting the arguments against the fines – an unheard of speed in issuing a decision. Each station involved was fined $27,500. Then, later in the week, the FCC issued an Order which fined a number of Fox affiliates $7000 each for perceived indecency violations in an episode of the Married By America reality television program, also broadcast in 2003 – following up on a Notice of Apparent Liability issued over two years ago by the FCC. In one case, an incredibly quick action resulting in a large fine against many stations – in another a smaller fine against far fewer stations. Why the differences?
The reason for fines coming now was that, in both cases, the 5 year statute of limitations was coming to an end and, if the Commission did not quickly act, it would be precluded from doing so. In both cases, the Commission determined that it would fine only stations against which complaints were filed. In the case of Married by America, the Commission had sent a notice of Apparent Liability to 169 stations, but ended up fining only 13 against which actual complaints had been filed. In contrast, the Commission fined 45 stations for the NYPD Blue episode, even though the "complaints" were in many cases filed months after the program aired on the stations, and even though many of the "complaints" did not even allege that the local viewer had actually seen the program for which the fine was issued. Instead, many of the complaints were apparently initiated by an on-line campaign urging that the people write the FCC to complain about the program – even if they hadn’t necessarily seen it. In its decision, the Commission concluded that the fines were appropriate – even without specific allegations that the program was watched by the people who complained.Continue Reading A Tale of Two Indecency Decisions – FCC Issues Fines for Married by America and NYPD Blue
FCC Cases on Blanketing Interference – The Responsibility of Broadcasters to their Neighbors
In two recent cases, the FCC discussed the issue of "blanketing interference," the interference that can be caused by a broadcaster to electronic devices that are located in homes and businesses near to the station’s transmitter site. In the first case, the FCC rejected a license renewal challenge finding that there was no
Website Privacy Policies – Make Sure You Do What You Say You Are Going to Do
As more and more broadcasters create and use websites (and, to some extent, are required to post more information on those sites by the FCC, see our post here), they should be cautious about the legal liabilities that arise from these sites. For instance, as websites are used to gather personal information for listener’s clubs
Further Summary of the Digital Television Transition Process Published
On the last day of 2007, the FCC released its Third Periodic Review of the Digital Television rules and policies, providing the rules and procedures that TV stations must follow in their final transition from analog to digital operations. This transition leads up to the February 17 deadline when all television stations must cease analog broadcasting and operate full-time in
FCC Issues Text of Its Multiple Ownership Decision – New Combinations for Newspapers and TV, No Ownership Changes for Radio
The FCC this week released the full text of its decision on the revision of the multiple ownership rules that it adopted at its December 18 meeting. While the text goes into great detail on the decision to relax the newspaper-television cross ownership restrictions (causing the ruling to be condemned by consolidation critics), the order is very brief in addressing the numerous other issues with the multiple ownership rules that were raised in this proceeding. Television broadcasters sought greater opportunities to consolidate in local markets, and radio broadcasters requested reconsideration or clarification of various aspects of the Commission’s 2003 decision adopting Arbitron market definitions as the basis of the determining how many radio stations are in a particular market. These requests were all rejected, some summarily. Will these parties who were denied relief from the FCC protest as loudly as the critics of the decision with respect to the relaxation of the TV-newspaper cross ownership limits?
We summarized the decision with respect to the newspaper television rules here. That summary was based on the statements made at the December 18 meeting and on the press release issued that day which provided a brief summary of the Commission’s decision. The outline we provided in December was basically accurate, and there were few surprises about the newspaper-television cross ownership rules in the text. The Commission was very thorough in documenting the basis for its decision that newspapers and television stations could be commonly controlled without adversely affecting the public interest, citing a legion of studies supporting their decision, while carefully refuting the studies supplied by consolidation critics. However, the remainder of the decision, dealing with other aspects of the multiple ownership rules which the Commission refused to change, contained reasoning which was far more limited. In some cases, particularly dealing with radio issues, the reasoning was almost absent.Continue Reading FCC Issues Text of Its Multiple Ownership Decision – New Combinations for Newspapers and TV, No Ownership Changes for Radio
Copyright Royalty Board Requests Comments on Business Establishment Service Royalty Rate
Last week, the Copyright Royalty Board published an order seeking comments on a proposed settlement establishing the royalties for "Business Establishment Services." Essentially, this is the royalty paid by a service which digitally delivers music to businesses to be played in stores, restaurants, retail establishments, offices and similar establishments (sometimes referred to as "background" or "elevator" music, though it comes in many formats and flavors, and may sometime include the rebroadcast of programming produced for other digital services). The proposed settlement would essentially carry the current rates forward for the period 2009-2013. These rates require the payment of 10% of a services revenue (essentially what they are paid by the businesses for the delivery of the music) with a minimum annual payment of $10,000.
Some might wonder how a royalty of 10% royalty can be justified – and why it shouldn’t set some sort of precedent for the Internet radio services about which we have written so much here. Once again, as we’ve written before, the Digital Millennium Copyright Act sets different standards for different kinds of music use. For many consumer-oriented services (like satellite radio, digital cable radio and Internet radio), there are different standards used to determine the royalty rate. For Business Establishment Services, it’s not the standard that is different – it’s the royalty itself. Under the DMCA, there is no performance royalty paid either by the business or the service provider. Instead, under the statute, the royalty is paid only for the "ephemeral copies" – those transitory copies made in the digital transmission process. That is different than the royalty for all of the other digital services, where fees are paid for both the performance (under Section 114 of the Copyright Act) and the ephemeral copies (under Section 112).Continue Reading Copyright Royalty Board Requests Comments on Business Establishment Service Royalty Rate
The Run-Up to Super Tuesday – Rush, the Super Bowl, Union Ads and an Hour on the Hallmark Channel
In the last few days before the Super Tuesday series of presidential primaries, efforts are being made across the political spectrum to convince voters to vote for or against the remaining candidates. With Obama buying Super Bowl ads in many markets, Clinton planning a one-hour program on the Hallmark Channel the night before the primaries, Rush Limbaugh and other conservative radio host attacking McCain, and third-party interest groups and unions running ads supporting or attacking various candidates, a casual observer, looking at this media blitz, may wonder how all these efforts work under the rules and laws governing the FCC and political broadcasting.
For instance, sitting here watching the Super Bowl, I just watched a half-time ad for Barack Obama. Did the Obama campaign spring for one of those million dollar Super Bowl ads that we all read about? Probably not. It appears, according to press reports, that instead of buying a national ad in the Fox network coverage, the campaign purchased local ads in certain media markets. And with reasonable access requirements under the Communications Act and FCC rules, he could insist that his commercial get access to the program as all Federal candidates have a right of reasoanble access to all classes and dayparts of station programming. Moreover, the spot would have to be sold at lowest unit rates. While those rates are not the rates that an advertiser would pay for a spot on a typical early Sunday evening on a Fox program, they still would be as low as any other advertiser would pay for a similar ad aired during the game. In this case, by buying on local stations, at lowest unit rates, his campaign apparently made the calculation that it could afford the cost, and that the exposure made it not a bad deal.Continue Reading The Run-Up to Super Tuesday – Rush, the Super Bowl, Union Ads and an Hour on the Hallmark Channel
Broadcast Calendar for 2008 Available – Reminders on FCC Filing Deadlines, Lowest Unit Rate Windows, SoundExchange Royalty Payment Dates and More
Here we are, almost a full month into the new year, and a number of important dates for broadcasters are already upon us. As we wrote here, for instance, the payment of a minimum fee to SoundExchange by radio stations streaming their signals on the Internet is due today. Lowest unit rates are in
Reminder – Internet Radio Royalty Minimum Fee Due on January 31
Each year, Internet radio stations must pay a minimum fee to SoundExchange, and that fee is due by January 31. These minimum fees are applied against the obligations of a Internet radio service to pay royalties for the use of sound recordings on their stations. SoundExchange does not send bills, so webcasters must remember, on their