As we have noted, a proceeding before the Copyright Royalty Board to set the rates to be paid to SoundExchange for the public performance of music by a non-interactive commercial webcasting service for 2026-2030 started last year, and is scheduled to be completed by the end of 2025.  SoundExchange and one of the major webcasting parties remaining in the case, the NAB, this week filed with the Copyright Royalty Board a proposed settlement of the current litigation over the royalty rates to be paid to performers and copyright holders (usually the record companies).  These are the royalties that commercial broadcasters pay to SoundExchange for streaming music online, including through mobile apps and to smart speakers.  The current rate is $.0025 per Performance (a performance is every time a song is heard by one listener – so, for example, if a station has 10 listeners during an hour and they each hear 10 songs, that is 100 Performances).  And, under the settlement, the rates will be going up, effective January 1, 2026.

The rates proposed in the settlement are as follows:

2026: $0.0028 per Performance;

2027: $0.0029 per Performance;

2028: $0.0030 per Performance;

2029: $0.0031 per Performance; and

2030: $0.0032 per Performance

The CRB case is currently set to go to trial on April 28, a week’s extension having just been granted, perhaps because of this week’s resignation of the Chief Judge of the CRB and the appointment of an interim judge (that announcement is on the CRB’s homepage).  The NAB had been advocating for substantially lower rates for broadcast simulcasts given their total lack of interactivity.  The argument is that simulcast streams, which simply rebroadcast the programming of a commercial broadcast station and are not influenced by “likes” or a user’s favorite songs or artists, should be charged less than those offered by services that allow some degree of user customization, tailoring the stream provided to the user based on their preferences, while still remaining a noninteractive service (see our articles here and here on the difference between noninteractive streams that pay SoundExchange at the rates set by the CRB and those offered by interactive services that must negotiate agreements with the record companies to play their songs).  See our article here on the Court decision upholding the 2021-2025 royalties which rejected a similar argument by the NAB. By settling, it appears that the NAB opted for certainty in establishing rates modestly higher in each of the next five years rather than incurring the substantial cost of litigating over what the rates should be and the uncertainty that comes with any litigation – as SoundExchange was asking for rates substantially higher than those set out in the settlement. 

Continue Reading Settlement Between NAB and SoundExchange on Webcasting Royalty Rates for 2026-2030 – Rates are Going Up for Broadcast Simulcasts

The NAB last week submitted a letter asking the FCC to quickly repeal the 39% cap on national ownership of television stations.  This cap precludes the ownership by one company or individual of an attributable interest in television stations capable of reaching more than 39% of the television households in the United States.  The rule has been in place since 2004.  When adopted, over-the-air television was still analog, so the cap included a UHF discount as, at the time, UHF stations were deemed inferior to those that transmitted on VHF channels.  While the transition to digital reversed that relationship as UHF is now seen as preferable, the discount remains, counting UHF stations as reaching only half the households reached by VHF stations.  So, were an owner to have exclusively UHF stations, it could theoretically own stations reaching 78% of TV households.

Yet even 78% is not 100%, and any cable or satellite channel, or even any broadcast program provider like a network or syndicator, and any online video provider, has no limit to the number of households that it can be theoretically reach.  The NAB argues that this is fundamentally unfair and impedes competition in today’s video marketplace.  While some might argue that most of these other services are not free, requiring a subscription to an MVPD or a connection to the internet, practically speaking, in today’s world, many of these competitive channels have as much practical reach as do local broadcast TV stations.  Only the delivery method is different.

Continue Reading NAB Requests the End of the 39% Cap on Nationwide Television Station Ownership – Looking at the Issues

Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.

  • On the eve of its national convention in Las Vegas, the National Association of Broadcasters filed a letter with the FCC requesting that it eliminate the national television ownership cap, which prohibits any broadcaster from having ownership interests in TV stations with a combined audience reach of more than 39% of the total US TV households.  However, the audience of a UHF TV station (now the dominant mode of transmission) is discounted by 50% in computing a station’s audience reach, a remnant of analog transmission when UHF signals were inferior to those of VHF stations.  The NAB states that the outdated cap prevents broadcasters from competing with digital platforms for audiences and advertising revenues and harms the public’s access to free, over-the-air TV service, asserting that there is no longer any reason to retain the cap and urging its quick elimination. As we wrote on our Broadcast Law Blog when this issue was last considered, unlike the local broadcast ownership rules which are explicitly subject to FCC modification through the Quadrennial Review process, the 39% cap was imposed by Congress and there are questions as to the FCC’s authority to relax the limit on its own, though the NAB’s letter asserts that the FCC does have such authority.   
  • The NAB also filed a petition for rulemaking requesting that the FCC amend its EAS rules to permit EAS participants to use software-based EAS encoder/decoder devices instead of those that are purely hardware-based.  Current FCC rules are read to require all EAS encoder/decoder devices to be hardware-based, precluding internet-delivered updates to the operating system when necessary to provide new codes and other functionality.  As one of the two companies providing EAS encoder/decoder hardware has announced its intent to leave the business, there are concerns as to how currently deployed equipment can be maintained.  The NAB argues that updating the FCC’s EAS rules to permit voluntary use of a software-based approach would enhance EAS’ reliability and security without compromising its effectiveness, and that this change could be easily deployed to operate on many legacy EAS devices.  The FCC announced that comments responding to the NAB’s petition are due May 2.
  • On the FCC Blog, Chairman Carr published his preview of the issues to be considered at the FCC’s April regular monthly open meeting, announcing that, among other issues, the FCC would be proposing rules to spell out its procedures for dealing with foreign ownership of communications facilities.  Currently, the FCC deals with foreign ownership issues based on policy statements (see, for instance, our articles here and here on past policy changes dealing with foreign ownership interests in broadcast stations).  Chairman Carr states that rules would make these policies easier to understand and interpret.  Look for specifics in the coming week as the FCC is expected to release a draft of the Notice of Proposed Rulemaking to be considered at the April meeting. 
  • Congressman Frank Pallone, Jr. (D-NJ), Ranking Member of the House Energy and Commerce Committee; Congresswoman Doris Matsui (D-CA), Ranking Member of the House Energy and Commerce Subcommittee on Communications and Technology; and Congresswoman Yvette D. Clarke (D-NY), Ranking Member of the House Subcommittee on Oversight and Investigations, sent FCC Chairman Carr a letter expressing their concerns that certain recent FCC investigations of broadcasters and other media outlets appear to be politically motivated.  They argue that the FCC has weaponized the agency against the media in disregard of the agency’s statutory authority and the First Amendment, and seek information on various ongoing FCC investigations including the reinstated Center for American Rights’ news distortion complaints against ABC and CBS affiliates and an equal time complaint against an NBC affiliate (see our discussion here and here); the investigation of NPR and PBS for underwriting violations (see our discussion here); and allegations that a radio station violated its public interest obligations by discussing an ICE immigration raid.
  • The FCC released its quarterly Broadcast Station Totals.  The release shows that, compared to the same release from a year ago, there are 60 fewer AM stations and 42 fewer commercial FM stations, but 314 more noncommercial FM stations.  There were also 13 more commercial UHF TV stations but 11 fewer commercial VHF TV stations; and 2 more noncommercial UHF TV stations but 2 fewer noncommercial VHF TV stations.
  • The FCC’s Media Bureau updated both the FM and DTV Tables of Allotments.
    • The Bureau reinstated the following channels in the FM Table of Allotments as vacant due to either the cancellation of a station license for the channel or the dismissal without grant of an application for the channel from a past auction: Channel 285A at Hope, Arkansas; Channel 289C1 at Valier, Montana; Channel 241C1 at Dalhart, Texas; Channel 229A at Kermit, Texas; Channel 263A at Mount Vernon, Texas; Channel 233A at Oakwood, Texas; Channel 288C2 at O’Brien, Texas; and Channel 230C2 at Seymour, Texas.  The Bureau also deleted Channel 269A at Avenal, California and replaced it with Channel 295A, and substituted Channel 272A for vacant Channel 264A at Koloa, Hawaii because Channel 264A did not comply with the FCC’s minimum distance spacing requirements.  The FCC will in the future announce windows for broadcasters to file construction permits applications to build new stations on these vacant allotments.
    • The Bureau also granted a petition proposing the substitution of UHF channel 29 for VHF channel 13 at Monroe, Louisiana due to the inferior quality of VHF channel signals.  The petition serves as another example of the superiority of UHF channels for the transmission of digital TV signals.
  • In many recent weekly updates, we have reported on the continued processing of mutually exclusive applications from the FCC’s 2023 filing window for new LPFM stations as the FCC grapples with situations where multiple applicants filed for new facilities that cannot be simultaneously operate without causing interference to each other.  In each of the last two weeks, we noted Media Bureau actions forcing a time-sharing arrangement between mutually exclusive applicants whose total credits were the same in the points system analysis (see our articles here and here about that system) that the FCC uses to evaluate these mutually exclusive applications.  This week, the Bureau ordered another such arrangement when it granted two applications for new Texas LPFM stations tied in the point system analysis, each being allowed to operate 12 hours per day on a time-sharing basis.  In reaching this conclusion, the Bureau rejected an objection claiming that one applicant did not provide acceptable evidence of its established community presence in its proposed LPFM station’s service area to qualify for localism points under the point system analysis.  The Bureau found that the applicant adequately documented its community presence by providing its Certificate of Formation showing that it had existed for more than two years which, along with its Bylaws, also showed that its headquarters was within the 20-mile radius from its proposed transmitter site required to qualify for such credit.   

On our Broadcast Law Blog, we published an article looking at some of the FCC rules and policies that may be identified as worthy of modification or deletion in the FCC’s Delete, Delete, Delete proceeding, and reminded broadcasters to submit their ideas to the FCC by the April 11 comment deadline. 

A few weeks ago, FCC Chairman Carr announced the beginning of the “Delete, Delete, Delete” proceeding at the FCC – looking at “alleviating unnecessary regulatory burdens” on the companies that it regulates, across all industries, to unleash companies to innovate, invest, and expand.  Comments are due April 11 and replies April 28.  With less than a week to go before comments are filed in this latest attempt to lessen the regulatory burden on broadcasters, we thought that we would look at some of the issues that may come up in this proceeding, and some of the policies that stubbornly remain on the books but should be addressed.

Broadcasters are expected to advance many ideas.  But, before considering some of the issues likely to be addressed, it is important to put this proceeding in context.  This is not the first time broadcasters have been asked to engage in this kind of exercise.  In the 1980s, the FCC conducted multiple proceedings to address the “regulatory underbrush,” eliminating, among other things, rules that had required specific amounts of news and public affairs programming on every station, rules mandating a specific number of PSAs, rules requiring specific program and engineering logs as official records for every station, and policies restricting advertising for certain perceived vices like parimutuel betting and fortune tellers.  In the 1990s, as a result of the 1996 Telecommunications Act, other obligations were changed (including the adoption of the current local radio ownership rules, the abolition of the ability of any party to file a competing application contending that it should get the right to operate a broadcast station every time a license renewal was filed, and extending the license renewal term from three to eight years (see our article on some of those changes, here).  Just eight years ago, FCC Chairman Pai initiated the Modernization of Media Regulation Initiative (see our article here).  That proceeding resulted in the abolition or streamlining of many FCC rules, such as the main studio rule (see our articles  here and here), some children’s television rules (see our posts here and here), and rules prohibiting same-service radio program duplication by commonly owned stations, although the prohibition on FM/FM duplication by commonly owned stations serving the same area was reinstated by the last administration, though that action remains subject to a reconsideration petition (see our articles here, here, here, and here on some of the other changes brought about by Chairman Pai’s initiative).  However, there were many other obligations left unaddressed.  There are so many rules applicable to broadcasters, and so many competitive changes in the market have  impacted the relevance of many of those rules, that no proceeding ever seems to address every issue it should.  But we expect that many rules will be addressed in this “Delete” proceeding. 

Continue Reading Less Than a Week to Go Before “Delete, Delete, Delete” Proposals on Eliminating Unnecessary FCC Regulations Are Due – What Should Be Included?

April brings a number of routine regulatory dates for broadcasters across the country, including the requirement for posting Quarterly Issues Programs Lists to full-power station’s online public inspection files.  April also brings comment deadlines in several rulemaking proceedings including one in which many broadcasters are interested – the FCC’s “Delete, Delete, Delete” proceeding looking to eliminate unnecessary broadcast regulations.  Finally, we note lowest unit rate windows that open this month, including one for primaries in the New Jersey gubernatorial race, one of the more significant “off-year” elections in 2025.  We look in more detail at some of the most significant deadlines below. 

April 1 is the deadline for radio and television station employment units in Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, and Texas with five or more full-time employees to upload their Annual EEO Public File Report to their stations’ Online Public Inspection Files.  A station employment unit is a station or cluster of commonly controlled stations serving the same general geographic area having at least one common employee.  For employment units with five or more full-time employees, the annual report covers hiring and employment outreach activities for the prior year.  A link to the uploaded report must also be included on the home page of each station’s website, if the station has a website.  Be timely getting these reports into your station’s OPIF, as even a single late report has in the past led to FCC fines (see our article here about a recent $26,000 fine for a single late EEO report).

Continue Reading April 2025 Regulatory Updates for Broadcasters – Annual EEO Public File Reports, Comment Deadlines, Quarterly Issues/Programs Lists, Political Windows, and more

Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC released a Public Notice titled “In Re: Delete, Delete, Delete,” requesting public input on what FCC rules can be eliminated or modified to alleviate unnecessary regulatory burdens.  The notice was released pursuant to President Trump’s Executive Orders (see here and here) directing federal agencies to move to reduce unnecessary regulation by April 20.  The FCC asks commenters to discuss certain factors relevant to the FCC’s review of its rules, including the costs and benefits of retaining or eliminating a rule; whether market or technological changes have made a rule obsolete; and whether a rule imposes unequal costs on large and small businesses.  Comments and reply comments are due April 11 and April 28, respectively.
  • The FCC announced that comments and reply comments are due April 10 and April 25, respectively, responding to the FCC’s Notice of Proposed Rulemaking proposing a review of its rules implementing the Commercial Advertisement Loudness Mitigation Act of 2010 (CALM Act).  The FCC seeks comment on whether loud commercials remain problematic and, if so, how its CALM Act rules should be modified.  The FCC also asks whether loud commercials are an issue on streaming platforms and whether the FCC has authority to regulate them, and whether consumers, particularly those with disabilities, have trouble understanding streamed programming dialog.  The FCC is not currently proposing CALM Act rules for streaming platforms, but instead will assess the comments and, if it decides it should act, it will do so in a subsequent NPRM.
  • The FCC’s Media Bureau granted an assignment application permitting a broadcaster to own two TV stations in the Rochester Minnesota market.  While the FCC’s Local Television Ownership Rule prohibits common ownership of two TV stations in the same market if the stations’ contours overlap and the stations are both among the Top 4 ranked stations in the market, the rule may be waived if one of the stations is deemed a “failing station.”  This means that the station has been struggling for an extended period of time in ratings and revenue.  The Bureau granted this application finding that the assigned station was a “failing station,” and that there was no likely buyer who would want to operate it as a stand-alone facility; concluding that its acquisition by another broadcaster in the market would allow the station to remain a viable voice in the market. 
  • FCC Chairman Carr sent Google/YouTube a letter regarding a complaint that YouTube TV deliberately marginalizes faith-based and family-friendly content on its platform.  Carr stated that he wanted to know whether YouTube TV has a policy discriminating against faith-based programming.  The letter also requests that the YouTube TV explain its carriage negotiation process and its view of the role of a virtual Multichannel Video Programming Distributor in the current media marketplace to help inform the FCC’s regulatory approach towards these platforms.
  • Senator Blumenthal (D-CT) sent a letter to the Acting Chiefs of the FCC’s Enforcement and Media Bureaus seeking information regarding their recent investigations that appear to target broadcasters that President Trump perceives as enemies.  Blumenthal seeks information on the following proceedings involving broadcasters: the reinstated Center for American Rights’ news distortion complaints against ABC and CBS affiliates and an equal time complaint against an NBC affiliate (see our discussion here and here); the FCC’s review of the Paramount-Skydance Media merger (see below); the investigation of Comcast/NBCUniversal’s DEI practices (see our discussion here); the investigation of NPR and PBS for underwriting violations (see our discussion here); and allegations that an Audacy-owned radio station violated its public interest obligations by discussing an ICE immigration raid.  Blumenthal states that the investigations are based on dubious legal theories, conflict with FCC policy, and may be designed to intimidate newsrooms to chill future coverage potentially critical of President Trump.
  • Comments were filed responding to CAR’s complaint against a CBS-owned TV station alleging news distortion in its broadcast of a “60 Minutes” interview with former Vice President Harris (see our discussion here).  CBS, the National Association of Broadcasters, and other commenters (including, here, here, here, and here) state that CAR’s complaint lacked evidence of CBS’ intentional news distortion.  The NAB also urges the FCC to repeal its news distortion policy for the same reasons that it repealed the Fairness Doctrine in the 1980s, including that the policy violates the First Amendment by allowing the FCC to scrutinize broadcasters’ programming and editing choices, and by discouraging broadcasters’ coverage of important issues.  CAR, the America First Policy Institute, and other commenters (including here) claim that there is sufficient evidence of news distortion for the FCC to act upon CAR’s complaint, and that doing so would restore public trust in news media. 
  • Skydance Media filed a response to Project Rise Partners’ objection to the Paramount-Skydance transfer applications, arguing that none of the arguments that we summarized in our update last week had any merit.  Skydance urges the FCC to reject Project Rise’s call for further inquiry into the transaction, which Skydance asserts was only made to buy time for separate litigation to proceed against the company.  See our previous updates here, here, here, here, here, here, and here on this proceeding.
  • The Media Bureau announced that April 11 is the deadline for all U.S.-based foreign media outlets which would be classified as “an agent of a foreign government” under the Foreign Agents Registration Act to notify the FCC of their relationship to, and whether the outlet receives any funding from, a foreign government or political party.  The FCC must report to Congress every six months on the operations of U.S.-based foreign media outlets, which the FCC will submit on or before May 9.
  • The Media Bureau released three Notices of Proposed Rulemaking proposing modifications to the TV Table of Allotments.  Two NPRMs propose allowing the petitioner’s TV stations located in Nevada and Oregon to remain on their existing channels due either to their inability to or decision not to complete construction of new facilities authorized by the expiration dates of previously granted channel-change construction permits: the first NPRM proposes substituting Channel 9 for Channel 24 at Henderson, Nevada, and the second NPRM proposes substituting Channel 21 for Channel 12 at Portland, Oregon.  The third NPRM proposes substituting UHF Channel 23 for VHF Channel 2 at Las Vegas, Nevada due to the inferior quality of VHF channels for digital transmissions. 
  • The Media Bureau and Office of Managing Director issued an Order to Pay or to Show Cause against a New Jersey AM station proposing to revoke the station’s license unless, within 60 days, the station pays its delinquent regulatory fees and interest, administrative costs, and penalties, or shows that the debts are not owed or should be waived or deferred.  The station has an unpaid regulatory fee debt totaling $18,560.26 for fiscal years 2021, 2022, 2023, and 2024.

On our Broadcast Law Blog, we discussed the trademark issues that can come up in advertising or promotions tied to the upcoming NCAA basketball tournaments – including restrictions on the use of “March Madness,” “Final Four,” “Elite Eight,” and the many other NCAA trademarks (see the two-part discussion here and here). 

Yesterday, I wrote about the history of the NCAA’s assembling of the rights to an array of trademarks associated with this month’s college basketball tournaments.  Today, I will provide some examples of the activities that can bring unwanted NCAA attention to your promotions or advertising, as well as an increasingly important development that should be considered when considering whether to accept advertising.

Activities that May Result in a Demand Letter from the NCAA

The NCAA acknowledges that media entities can sell advertising that accompanies the entity’s coverage of the NCAA championships.  However, similar to my discussion in January on the use of Super Bowl trademarks (see here) and my 2024 discussion on the use of Olympics trademarks (see here), unless authorized by the NCAA, any of the following activities may result in a cease and desist demand:

  • accepting advertising that refers to the NCAA®, the NCAA Basketball Tournament, March Madness®, The Big Dance®, Final Four®, Elite Eight® or any other NCAA trademark or logo.  (The NCAA has posted a list of its trademarks here.)
    • Example: An ad from a retailer with the headline, “Buy A New Big Screen TV in Time to Watch March Madness.”  Presumably, to avoid this issue, some advertisers have used “The Big Game” or “It’s Tournament Time!”
  • local programming that uses any NCAA trademark as part of its name.
    • Example: A locally produced program previewing the tournament called “The Big Dance: Pick a Winning Bracket.”
  • selling the right to sponsor the overall coverage by a broadcaster, website or print publication of the tournament.
    • Example: During the sports segment of the local news, introducing the section of the report on tournament developments as “March Madness, brought to you by [name of advertiser].”
  • sweepstakes or giveaways that include any NCAA trademark in its name. (see here)
    • Example: “The Final Four Giveaway.”
  • sweepstakes or giveaways that offer tickets to a tournament game as a prize.
    • Example: even if the sweepstakes name is not a problem, offering game tickets as a prize will raise an objection by the NCAA due to language on the tickets prohibiting their use for such purposes.
  • events or parties that use any NCAA trademark to attract guests.
    • Example: a radio station sponsors a happy hour where fans can watch a tournament game, with any NCAA marks that are prominently placed on signage.
  • advertising that wishes or congratulates a team, or its coach or players, on success in the tournament.
    • Example: “[Advertiser name] wishes [Name of Coach] and the 2022 [Name of Team] success in the NCAA tournament!”

There is a common pitfall that is unique to the NCAA, namely, basketball: tournament brackets used by advertisers, in newspapers or other media, or office pools where participants predict the winners of each game in advance of the tournament.  The NCAA’s position (see here) is that the unauthorized placement of advertising within an NCAA bracket and corporate sponsorship of a tournament bracket is misleading and constitutes an infringement of its intellectual property rights.   Accordingly, it says that any advertising should be outside of the bracket space and should clearly indicate that the advertiser or its goods or services are not sponsored by, approved by, or otherwise associated with the NCAA or its championship tournament.

It should be noted that the NCAA also imposes strict rules about the authorized uses of its trademarks.  The NCAA’s most recent Advertising and Promotional Guidelines for authorized use of its marks are posted online (see here).

Again, importantly, none of these restrictions prevents media companies from using any of the marks in providing customary news coverage of or commentary on the tournament. Trademark law allows you to make references to trademarked terms in news or informational programming where you convey information about those trademarked activities.  But these references should not imply any association between the station (or any sponsor who does not in fact have the rights to state that they are a sponsor) and the NCAA or the tournament (e.g., don’t say that you are the March Madness station in Anytown unless you in fact have the rights from the NCAA to say that). 

Continue Reading The More Things Change, the More They Remain the Same:  Risks of Using or Accepting or Engaging in Advertising or Promotions that Use FINAL FOUR or Other NCAA Trademarks:  2025 Update – Part II

Each year, as the NCAA basketball tournaments get underway, my colleague Mitch Stabbe highlights the trademark issues that can arise from uses of the well-known words and phrases associated with the games in advertising, promotions, and other media coverage. Here is Part I of his review. Look for Part II tomorrow.

This is my tenth annual column for the Broadcast Law Blog on the subject of the potential pitfalls to broadcasters in using the NCAA’s FINAL FOUR and other trademarks or accepting advertising that use the marks.  I began last year’s post with the comment that the last few years had been filled with changes in college sports.  I also noted that the NCAA’s hard line against unauthorized uses of FINAL FOUR or its other marks had not changed.

As will be discussed below, looking back over the last ten years, it is clear that the value of the NCAA’s basketball tournament rights has, however, greatly changed, which helps explain the enduring efforts to challenge unauthorized uses of its marks.  Thus, broadcasters, publishers and other businesses need to continue to be wary about potential claims arising from their use of terms and logos associated with the tournament.

NCAA Trademarks

The NCAA owns the well-known marks March Madness®, The Big Dance®, Final Four®, Final 4®, Women’s Final Four®, Elite Eight®, Women’s Elite Eight®, Road to the Final Four® and The Read to the Final Four® (with and without the word “The”), each of which is a federally registered trademark.  The NCAA does not own “Sweet Sixteen” – someone else does.  However, the NCAA has a license to use the mark and has federal registrations for NCAA Sweet Sixteen®and NCAA Sweet 16®.

Continue Reading The More Things Change, the More They Remain the Same:  Risks of Using or Accepting or Engaging in Advertising or Promotions that Use FINAL FOUR or Other NCAA Trademarks:  2025 Update – Part I