Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.
Next week, I will be discussing regulatory issues for media companies with Eriq Gardner of the Hollywood Reporter (who covers legal issues on their must-read THR, Esq site) in a “Candid Conversation” hosted by Matrix Solutions (more information here, including a registration link). The sponsor of this conversation consults on media advertising matters, so the content will likely be geared toward the impact of changes on the advertising industry. While the conversation will cover structural media regulation issues, like broadcast ownership, the relationship between television and various multichannel video providers (both traditional, like cable and satellite television, and online), and similar matters, I think one of most interesting topics will be a discussion of the proposed regulation of tech platforms. In thinking about that issue (about which we have written many times, including recent articles here and here), it occurs to me that such regulation could have a huge impact on the digital and social media giants that have arisen in the modern media world.
Much has been written, particularly in recent days, about the antitrust regulation to which these tech giants may be subject – with calls for action from both the political right and left (see, for instance, this article drawing parallels between the books recently written about this subject by Amy Klobuchar and Josh Hawley). Even if such sweeping changes are not adopted, there are more targeted regulatory proposals that could have a direct impact on the advertising on these online platforms. As we have noted before, advertising on online platforms is now estimated to constitute over 50% of the local advertising sales in virtually every geographic market. Certainly, privacy regulation limiting the ability of companies to track users across various online platforms could affect such sales. Less publicized has been the impact of Section 230 reform, which in at least one bill would exempt advertising from the protections afforded companies for the online content that they host.
Continue Reading Regulation of Online Platforms and the Effect on Advertising – Including Section 230 Reforms
Everyone knows that a fundamental principle of American democracy is the First Amendment – guaranteeing many freedoms to US citizens including freedom of the press and freedom of speech. It is one of those concepts that underlies our society, but is often mentioned only in passing, and rarely considered in practice. Few people – even broadcasters and other media companies – have cause to think about First Amendment principles in their day-to-day operations. The concepts embodied by the First Amendment are almost a given – except when they are not.
In our politically polarized society, there are more and more arguments made about regulation of speech in various contexts – often made without significant consideration of those First Amendment principles. On the broadcast side, we have seen Commissioner Carr react to two cases where the FCC has seemingly been called on to regulate the speech (or anticipated speech) of broadcasters. One case involved a call to deny the sale of a broadcast station allegedly based on a perceived change in the political orientation of its programming from liberal to conservative (see the Carr statement here), and another calling for the FCC to investigate a TV station in Baltimore for allegedly being too focused on investigations into a local government official (see the Carr statement here and an NAB statement also weighing in on the controversy here). While there may well be issues in each case that go beyond the question of the proposed speech of the broadcasters involved, the issue of whether the FCC can get involved in the regulation of political positions taken by broadcasters is one that is addressed both by the Communications Act and past FCC precedent.
Continue Reading The First Amendment’s Role in Broadcast and Online Regulation
Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.
Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.
The FCC’s order adopted in late October authorizing AM stations to voluntarily convert to operations in a fully-digital mode became effective yesterday when the approval of its information-collection obligations under the Paperwork Reduction Act was announced in the Federal Register. This means that AM stations can opt for full-digital operations, which many have argued
May is somewhat lighter on broadcast regulatory dates and deadlines than some recent months, but there are still dates to note. Among other things, the FCC will begin the process of auctioning 140 construction permits for new AM and FM radio stations across the country. Also, broadcasters in several states, with an eye on the June 1 deadline, should be preparing now to file applications for license renewal or to prepare and upload to their public inspection file EEO public file reports, demonstrating their compliance with the FCC’s equal employment opportunity requirements. So let’s take a look at some of the important dates for May (and early June). As always, be sure to consult with your communications counsel on the dates and deadlines applicable to your operation.
The Auction 109 window for “short-form” applications to participate in the auction of 136 FM construction permits and 4 AM construction permits began at 12:00 p.m. Eastern Time on April 28 and will close at 6:00 p.m. Eastern Time on May 11. By that deadline, interested parties must file with the FCC their short-form applications (FCC Form 175) setting out information including their ownership and the channels on which they are interested in bidding. The auction is scheduled to begin on July 27. A freeze on the filing of FM minor modification applications remains in effect until the end of the auction filing window. This freeze was imposed to ensure that Commission staff and auction bidders have a stable database to work with during the auction. Read more about the auction and freeze, here and here.
Continue Reading May Regulatory Dates: Auction Applications for AM and FM Construction Permits for New Radio Stations, New DTS Rules, License Renewals and More
Last week, the NY Times ran an interesting article, here, about how many old TV programs now available on streaming services are missing music that was featured on the original broadcast. This was because when the music rights were initially purchased, their use was limited to over-the-air broadcasts or was limited to a short period of time, with the producers never envisioning that the programs would be available through on-demand streaming services decades after they originally aired on over-the-air television. While not mentioned in the article, for many radio broadcasters one of the series most missed on streaming services is the industry favorite WKRP in Cincinnati. That series took forever to get to digital outlets, and still does not appear to be on any subscription streaming service, reportedly because of music rights issues. This article and the issues that it highlights should be a warning not just to TV producers, but also to anyone planning to use music in audio or video productions – including podcasts and online videos – that clearing music rights is essential to insure that these productions can be fully exploited not only when they are first made available, but also in the future if they are repurposed for other platforms.
We have written before (see, for example, our articles here and here) about the need to get permission from the copyright holders in both the musical work (or musical composition – the words and music to a song) and in the sound recording (or master recording – the song as recorded by a particular band or singer). Just signing up with a performing rights organization (ASCAP, BMI, SESAC or GMR) is not enough because, while podcasts may involve the public performances of the musical works that these organizations license, they do not give rights to make the permanent fixed copies of those songs, synchronized with other audio in the podcast, that can be accessed and downloaded on demand. These uses require the additional copyrights to reproduce and distribute music, and arguably to make derivative works, that can only be obtained from the copyright holder (see our article here describing why the PRO license itself does not give all rights needed to use music in podcasts). Similarly, the rights to the sound recording must also be obtained from the copyright holder in the recording – and payments to SoundExchange do not cover the on-demand music uses involved in a podcast. Thus, when the necessary rights are not obtained from the copyright holders, we have seen podcasts go silent after infringement claims are brought or threatened (see our article here).
Continue Reading Missing Music On Streamed TV Programs Highlights Rights Issues for Podcasters and Video Producers
In January, the FCC adopted new rules for Distributed Transmission Systems (DTS) for TV broadcasters (the FCC’s order is available here). Last week, the rules were published in the Federal Register, setting the effective dates of these new rules as May 24, 2021 (except as they apply to Class A TV, LPTV and TV translators, where new rules are subject to further review by the Office of Management and Budget under the Paperwork Reduction Act before they become effective). The FCC yesterday released a Public Notice confirming that effective date. The new rules for DTS will allow over-the-air TV broadcasters to provide stronger, more uniform coverage throughout their service areas, rather than having coverage strongest near to a station’s transmitter site and decreasing as the distance to the viewer increases (or as terrain obstacles intervene).
DTS, also referred to as Single Frequency Networks, allow TV stations to, instead of having one large transmitter in the center of its market area, use multiple transmitters throughout the service area to provide more consistent coverage throughout the market. The new ATSC 3.0, Next Gen television transmission standard that is being rolled out throughout the country was designed for this kind of operation. This transmission model is more akin to the operation of cellular telephone networks than to the old broadcast model. ATSC 3.0 uses a transmission system in which multiple signals on the same channel that are receivable at the same location reinforce each other. Older broadcast transmission systems face issues when trying to operate multiple transmitters on the same channel, as these transmitters can cause destructive interference in areas where their coverage overlaps, making coverage worse, not better (see, for instance, the concerns about the proposals for the use of “zonecasting” for FM stations, where arguments have been raised that multiple FM same-channel boosters rebroadcasting a primary FM station will create pockets of interference within a station’s market – see our references to such comments in articles here, here, and here). The new DTS rules allow TV broadcasters to take advantage of the new ATSC 3.0 transmission characteristics to provide uniform, strong signals throughout a station’s market, without the destructive interference.
Continue Reading Effective Date Set for New Rules on TV Distributed Transmission Systems (Single Frequency Networks) – An Assist in the Roll-Out of Next Gen TV
Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.
