Early this year, we provided our look into the crystal ball to see what was on the FCC’s agenda for broadcasters in the coming year. Yesterday, the FCC published in the Federal Register its own list – its Semiannual Regulatory Agenda – listing an inventory of the matters at the FCC awaiting Commission action. The
This Week in Regulation for Broadcasters: February 13 to February 18, 2023
- The US Court of Appeals for the District of Columbia Circuit held an oral argument on the appeals of three
$504,000 Proposed Fine for Improper Use of EAS Tones – How Little Things Can Add Up to Big FCC Penalties
The recent $504,000 fine proposed to be levied on Fox for the use of simulated EAS tones in an NFL football promotion (see FCC’s Notice of Apparent Liability here) is obviously a message to broadcasters to remember that EAS tones can only be used for real alerts or authorized tests of the system – and not in any advertising, programming or promotions. This is consistent with past big fines for improper use of these simulated EAS tones (see, for instance, the cases we wrote about here, here, and here). This aspect of the Fox case – don’t use EAS tones except for real EAS purposes – has been well noted. What has received less attention are the small details that went into this big proposed fine.
The most obvious of these details was the short duration of the EAS tones that led to the violation itself – the use was only 3 seconds long. The Commission found that even a 3 second use of EAS tones was sufficient to confuse the public about a possible emergency or to contribute to possible desensitization of the public to the importance of these tones. But this is not the first situation where the FCC has imposed a very large fine for a violation that occurred only very briefly – one of the most obvious situations being a $325,000 indecency fine for a 3 second image of sexual organs in a corner of a TV screen when a station broadcast a screenshot of the homepage of an adult website to illustrate a news story about a former adult film star who became a local first responder (see our summary of that case, here). Both in the recent EAS case and in the case of the indecency violation, the issues were not caught in the production of the on-air segments or in any pre-broadcast review of the programming before it was broadcast. Both cases serve as a reminder that stations need to not take anything for granted in their pre-broadcast review of programming segments, reinforcing the need to carefully inspect everything that goes out over the air, as even 3 second violations can lead to fines that exceed $100,000 per second.
Continue Reading $504,000 Proposed Fine for Improper Use of EAS Tones – How Little Things Can Add Up to Big FCC PenaltiesThis Week in Regulation for Broadcasters: February 6 to February 12, 2023
- The Senate Commerce Committee announced that it will hold a hearing on February 14 on the long-delayed nomination of Gigi
This Week in Regulation for Broadcasters: January 30, 2023 to February 5, 2023
- The American Music Fairness Act, proposing to enact a sound recording performance royalty for over-the-air broadcasters, was introduced in
5 Questions on the FCC’s EEO Obligations for Broadcasters
The Indiana Broadcasters Association recently asked me five questions to highlight the requirements of the FCC’s EEO rules. As these questions are applicable to all broadcasters, we are posting my response here. My answers are below.
Beyond the general requirement that all broadcasters (and all other businesses) avoid discrimination in hiring, promotion, and all other
February Regulatory Dates for Broadcasters – Renewal Applications, EEO Reports, Quarterly Issues Programs Lists, Children’s Programming Reports, Copyright Fees for Webcasters, ETRS Form One, and More
There are normally a host of regulatory obligations at the beginning of February, but because of technical issues with the FCC’s online public file and LMS systems, many February 1 dates, as well as some January regulatory deadlines, have been extended to late February.
Due to technical problems that affected FCC filings throughout the month of January, the FCC last week issued a Public Notice extending the deadlines for all filings in the FCC’s LMS or online public file systems that were due in late January and early February. The new deadline for these filings is February 28, 2023. This new deadline applies to TV license renewal applications (including the associated Equal Employment Opportunity Report (Form 2100, Schedule 396)) for television stations, LPTV stations, TV translators and Class A stations in New York and New Jersey (which had been due February 1); Annual Children’s Programming Reports (which had been due on January 30); and EEO Public File Reports for broadcast employment units with 5 or more full-time employees in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma (reports that normally would have had to have been uploaded to a station’s public file by February 1). Quarterly Issues Programs lists for all broadcast stations had been due to be uploaded to the public file by January 10, but that date was initially extended until January 31, and the deadline has now been further extended to February 28 by last week’s Public Notice. Note that the Public Notice is broad, stating that any public file document due to be uploaded or any FCC application to be filed through LMS must be filed by February 28. Notwithstanding the extension, licensees should not wait until the last minute to upload documents, as the intermittent problems that have plagued the systems could persist for some time and make meeting even the extended deadline problematic, especially if you wait for the last minute to try to file. For more details about the extension and about other technical issues with the FCC’s filing systems, see the article we recently published on this subject.
February 28 is the deadline by which EAS participants must file their EAS Test Reporting System (ETRS) Form One. Filing instructions are provided in the Public Notice issued by the FCC earlier this month (see also our articles here and here). All EAS Participants – including Low Power FM stations (LPFM), Class D non-commercial educational FM stations, and EAS Participants that are silent pursuant to a grant of Special Temporary Authority – are required to register and file in ETRS, with the following exceptions: Analog and digital low power television (LPTV) stations that operate as television broadcast translator stations, FM broadcast booster stations and FM translator stations that entirely rebroadcast the programming of other local FM broadcast stations, and analog and digital broadcast stations that operate as satellites or repeaters of a hub station (or common studio or control point if there is no hub station) and rebroadcast 100 percent of the programming of the hub station (or common studio or control point) are not required to register and file in ETRS. Carefully read the Public Notice and the form to make sure that all necessary information is properly uploaded.
Continue Reading February Regulatory Dates for Broadcasters – Renewal Applications, EEO Reports, Quarterly Issues Programs Lists, Children’s Programming Reports, Copyright Fees for Webcasters, ETRS Form One, and MoreThis Week in Regulation for Broadcasters: January 23, 2023 to January 30, 2023
- The FCC issued a Public Notice extending the deadlines for all filings in the FCC’s LMS or online public file
FCC Extends End of January Deadlines for LMS and Online Public File Documents Due to Filing System Technical Issues
The FCC yesterday issued a Public Notice, extending the deadlines for all filings that were due to be made next week in the FCC’s LMS or online public file systems. The new deadline is February 28, 2023. While we don’t usually post articles on this blog on Saturday, given that there may be broadcasters around the country hunched over their computers trying to make FCC filings due next week, we thought that we would make an exception today and send this alert.
This extension gives more time to broadcasters to upload many applications and reports that are due to be filed next week. This includes license renewals that were due to be filed by February 1 by television stations, LPTV stations, TV translators, and Class A stations in New York and New Jersey. For all commercial TV stations in the country, the Annual Children’s Programming Reports which were due January 30 are now due by February 28. Quarterly Issues Programs lists for all broadcast stations, which originally were due to be uploaded to station public files by January 10 and then by January 31 per a prior FCC extension, must now be uploaded by February 28. EEO Public File Reports for broadcast employment units with 5 or more full-time employees in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma were due to be uploaded to the online public file by February 1 – and that deadline too will be extended to February 28. The Public Notice is broad, saying any public file document due to be upload or any FCC application to be filed through LMS are extended until February 28. If you have any FCC deadline coming up, check with your attorney to see if it is covered by this extension. Remember that this applies only to applications and reports to be filed through the FCC’s LMS and online public file systems.
Continue Reading FCC Extends End of January Deadlines for LMS and Online Public File Documents Due to Filing System Technical IssuesCRB Releases Proposed ASCAP, BMI, SESAC and GMR Rates for Noncommercial Broadcasters
The Copyright Royalty Board yesterday published in the Federal Register the proposed rates for the public performance of musical compositions by noncommercial broadcasters for the period 2023 through 2027. The rates reflect settlements between ASCAP, BMI, SESAC and GMR with various organizations representing noncommercial broadcasters. The Corporation for Public Broadcasting agreed to one set of rates paid to cover NPR and PBS affiliates. The NRB (the religious broadcasters’ organization) has a Noncommercial Music License Committee that agreed to another set of rates that apply to non-NPR radio stations not owned by colleges and universities, setting out rates that these noncommercial stations pay to each of these rights collection agencies. For these radio stations, the rates are based on the population served by each noncommercial station. College and university-owned stations can take advantage of a third set of rates, based primarily on the number of students in the school with which the station is affiliated. Comments and objections, if any, to these proposed rates are due on or before February 27, 2023.
Commercial broadcasters have royalty rates that are to be paid to these performing rights organizations (or “PROs”) set not through the Copyright Royalty Board but instead through varying processes. ASCAP and BMI are subject to antitrust consent decrees (see our articles here and here on arguments about those decrees). The decrees provide that, if the PRO cannot reach an agreement with representatives of the commercial radio industry (usually the Radio Music License Committee – see our article on RMLC here – although commercial religious broadcasters also negotiate rates with these entities through the NRB), a US District Court judge in New York will hold a trial, acting as a “rate court” to determine the amount for reasonable rates. ASCAP and BMI are currently negotiating with the RMLC on new rates for commercial broadcasters. SESAC is also subject to antitrust settlements with both the RMLC and the TV Music License Committee. If SESAC and the committees cannot reach agreements, an arbitration panel sets the rates (see our articles here and here on radio rates set as a result of this process). After prolonged litigation with GMR to have their rates reviewed in some manner, the RMLC last year dropped its lawsuit seeking that relief and GMR now has no oversight as to the rates it charges (see our article on the GMR license that resulted). Noncommercial broadcasting, however, under Section 118 of the Copyright Act, has its PRO obligations set by the Copyright Royalty Board and, like this year, the result is almost always a settlement between the parties (even though, theoretically, the Board could hold hearings to set the rates if the parties had not agreed to the rates).
Continue Reading CRB Releases Proposed ASCAP, BMI, SESAC and GMR Rates for Noncommercial Broadcasters