At its meeting last week, the FCC adopted a Report and Order creating an incubator program to incentivize existing broadcasters to assist new entrants to get into broadcast ownership. The FCC in its order last year relaxing TV local ownership rules and abolishing the newspaper-broadcast cross-ownership rule had agreed to adopt an incubator program (see our articles here and here). In fact, the US Court of Appeals for the Third Circuit, which is reviewing the FCC’s ownership order, stayed the processing of that appeal to await the rules on the incubator program (see our article here), as the Court has previously indicated that considerations of how changes in the ownership rules affect new entrants is part of its analysis of the justification for such changes. What rules did the FCC adopt?

The FCC will encourage an existing broadcaster who successfully incubates a new entrant into broadcasting by giving them a “presumptive waiver” of the ownership rules. To understand what this means requires looking at several questions including (1) what services does the existing broadcaster have to provide to qualify for the credit; (2) which new entrants qualify for incubation; (3) what is a successful incubation; and (4) what does the presumptive waiver provide to the broadcaster providing the incubation services. Let’s look at each of these questions. Continue Reading FCC Adopts Incubator Program To Assist New Radio Owners – What Does it Provide?

Last week, I spoke at Podcast Movement 2018 – a large conference of podcasters held in Philadelphia. My presentation, Legal Issues In Podcasting – What Broadcasters Need to Know, was part of the Broadcasters Meet Podcasters Track. The slides from my presentation are available here. In the presentation, I discussed copyright issues, including some of the music rights issues discussed in my articles here and here, making clear that broadcaster’s current music licenses from ASCAP, BMI, SESAC and even SoundExchange don’t provide them the rights to use music in podcasts. Instead, those rights need to be cleared directly with the holders of the copyrights in both the underlying musical compositions as well as in any sound recording of the song used in the podcast.

I also discussed how, when podcasters are delivering advertising messages, they need to make clear that the messages are sponsored. We have written about the FTC’s requirements that when someone is paid to promote a product online, they need to disclose that the promotion was sponsored. See our articles here and here. Also discussed, and covered in the slides, were issues about defamation and invasion of privacy (and how concerns like these can become more serious in a podcast than in a broadcast as a broadcast is ephemeral – once the broadcast is over, it is gone – but a podcast tends to be permanent, providing evidence of any content that may be of legal concern). I also touched on privacy and security issues. One topic not covered in the slides, but suggested to me by a podcaster at a reception earlier at the conference, was the question of who owns the podcast. Continue Reading A Presentation on Legal Issues for Podcasters – Who Owns What?

The last month has been one where there has been lots of activity dealing with EAS. The FCC announced that it will be conducting a Nationwide EAS Test on September 20, 2018. The FCC has been conducting these Nationwide tests routinely over the last few years (see, for instance, our articles here and here on past tests). This test will include wireless carriers as well as broadcasters. To be prepared for this test, the FCC reminded EAS participants to file their updated ETRS Form One by August 27 (see our article here), and to be prepared to file the post-test Forms Two (filed on the day of the test) and Three (due by November 5) to report on the results of the test at their stations.

At its July meeting (as we briefly noted here), the FCC adopted an Order making some changes to the EAS rules, as well as asking further questions in an included Further Notice of Proposed Rulemaking. The changes included:

  • New rules allowing “live code testing” – using actual EAS alert tones in practice alerts, but only after providing lots of publicity that the tones are being used only as part of a test
  • Allowing the use of the EAS attention signal in PSAs and other informational announcements from FEMA and other public interest organizations – but only where simulated tones developed by FEMA are used, as these simulated tones will not trigger other station’s EAS alerts, and only where the tones used are specifically identified as not being a real notice of an emergency.

Use of the alert tones like this have been approved in the past by the FCC, but only by use of a waiver process. The FCC actions allow for more testing and more public information without having to request FCC approval for each such use. Continue Reading EAS Updates – Nationwide Test, Filing Deadline for Revised Form 1, and New Rules for Use of EAS Tones and Reporting of False Alerts

It may be time for summer vacations, but the FCC seemingly never rests, so there are a number of important dates of which broadcasters need to take note. By August 1, EEO Annual Public File Reports are due to added to the public files of Commercial and Noncommercial Full-Power and Class A Television Stations and AM and FM Radio Stations in California, Illinois, North Carolina, South Carolina, and Wisconsin, if those stations are part of an Employment Unit with five or more full-time employees. TV stations in California have the added requirement that they submit an EEO Mid-Term Report with the FCC by that same date. While the FCC last year simplified EEO recruiting, it still enforces the EEO rules, as evidenced by an admonition that was issued to a TV station at the end of last week, and the fines imposed on radio stations late last year. So don’t forget these obligations (especially as the enforcement of these rules will soon be handled by the FCC’s Enforcement Bureau, rather than the Media Bureau, suggesting that there will be more enforcement of those rules – see our article here).

On other matters, there are numerous open FCC proceedings in which broadcasters may want to participate. Comments are due on August 6 on the FCC’s rulemaking proposal to adopt simplified rules for processing complaints of interference by FM translators to full power stations. See our articles here and here for details on that proposal. Continue Reading August Regulatory Dates for Broadcasters – EEO Filings, Comments on FM Translator Interference and Class C4 Proposal, EAS Form One and More

The FCC’s Notice of Proposed Rulemaking on Children’s Television has been published in the Federal Register, setting the dates for comments on the questions that the FCC asks about changing the rules – particularly those rules dealing with educational and informational programming directed to children. Comments are due September 24, with replies due October 23. See the FCC Public Notice on these comment dates for more information. With the dates now set, it is worth reviewing the questions that the FCC asks about whether changes in the video marketplace require that the rules for educational and informational programming be changed.

The rules currently require that a television station broadcast an average of three hours per week of “core” educational and informational programming directed to children 16 and under to avoid special scrutiny by the FCC at license renewal time. Core programming must run between 7 AM and 10 PM, and must be aired at regularly scheduled times in blocks of at least half an hour. For stations that multicast, each multicast stream has an independent 3 hour per week obligation, though the required children’s programming for one multicast channel can run instead on another multicast channel (or on the station’s main channel) as long as it reaches a comparable MVPD audience. What changes are being considered? Continue Reading Comments Dates Set on FCC Rulemaking to Explore Reform of Children’s TV Rules – What Is Being Asked?

The FCC yesterday adopted an order moving broadcast EEO enforcement from the FCC’s Media Bureau to its Enforcement Bureau. The change will be effective later, after certain procedural approvals are obtained and after notice is published in the Federal Register. As EEO enforcement is primarily aimed at broadcasters and cable companies, and has been part of the Media Bureau responsibilities since the Bureau existed, why was this change made and what does it mean?

The FCC makes clear in its order that the reason for the move is that the Enforcement Bureau is for better enforcement of the EEO rules. Specifically, the FCC said this about the transfer of authority from the Media Bureau to the Enforcement Bureau:

The Enforcement Bureau’s staff has extensive experience conducting investigations and pursuing enforcement in a wide range of areas. They therefore are well positioned to provide assistance and guidance with EEO review, audit, and enforcement work. Further, the Enforcement Bureau has expertise in, and maintains tools and databases to aid with, the tracking of statutory deadlines, including those relevant to EEO audits and investigations, that the Media Bureau does not.

Thus, broadcasters need to be ready for more rigorous enforcement of the EEO rules. Continue Reading Moving FCC EEO Enforcement from the Media to the Enforcement Bureau – What Does It Mean?

The FCC routinely, at the request of Congress, does a study of the Video Marketplace. That study is submitted to Congress so that Congress can use it as a factual basis for any legislative issues that may come up dealing with the TV marketplace. The FCC has not previously done this sort of routine study of the audio marketplace. However, in recent legislation, Congress included a requirement that the FCC, in the last quarter of every even numbered year, provide such a report. Yesterday, the FCC released a Public Notice asking a number of questions about the marketplace, to which they seek information to be included in the report.

The questions asked include:

  • The identification of players in the audio marketplace, and a description of their business models and competitive strategies
  • The trends in service offerings and consumer behavior
  • Whether or not there is competition between the players in the marketplace
  • Ratings, revenue and subscriber information about players in the market
  • Information about investment in the market, and the deployment of new technologies
  • Information about what is needed for entry into the market
  • Information as to who has recently entered the market, and who has exited it
  • Regulatory barriers to entry and competition in the marketplace

The FCC is looking for data from 2016 and 2017, as well as any new information that is available from this year.  What will this data be used for? Continue Reading FCC Asks for Comments on the State of the Audio Marketplace – A Precursor to Reviewing the Radio Ownership Rules?

Next Wednesday, July 25, I will be speaking at the Podcast Movement Conference in Philadelphia, as part of the Broadcasters Meet Podcasters Track, discussing legal issues that broadcasters need to consider as they move some of their content into podcasts. One of the topics that I will be discussing will be the music royalty obligations of podcasters who use music in their programs. A month ago, we wrote about how broadcasters’ streaming royalties are affected by smart speakers like the Amazon Alexa and Google Home, as these speakers play the digital streams of a radio station’s programs where SoundExchange royalties must be paid, as opposed to the over-the-air signal of the station, where no such royalties are owed. These smart speakers may have an impact on podcasters royalties, affecting who needs to be paid in connection with the use of music in podcasts.

When I initially started to write about issues of music use in podcasts, my emphasis was on the need to secure direct licenses from performers and composers (or their record companies and publishing companies) for the rights to make reproductions and distributions of music in podcasts. When digital content is downloaded, it triggers rights under copyright law implicating the reproduction and distribution rights of copyright holders (see our article here), as opposed to their public performance rights – the rights with which broadcasters are most familiar as those are the rights that they obtain when paying Performing Rights Organizations ASCAP, BMI, SESAC and GMR in connection with their over-the-air broadcasts and those PROs plus SoundExchange in connection with noninteractive digital streaming. When podcasts were something that were downloaded, just like the purchase of a download of a song from the iTunes music store, it was the reproduction and distribution rights that were triggered, and conventional wisdom was that the PROs had no role to play in the licensing of downloaded media. As technology has changed, the analysis of what rights you need to use music in podcasts may well be changing too. The direct licensing of music for your podcast is still needed – but a public performance right may well also be necessary. Continue Reading Hey, Alexa, How Are Your Affecting My Podcasting Music Royalty Obligations?

This week, the approval of the Office of Management and Budget of FCC rules imposing new paperwork burdens relating to simulcasting of a TV station’s primary signal on a host station when it converts to the new ATSC 3.0 next generation TV transmission system was announced in the Federal Register. The primary rules for ATSC 3.0 were adopted last year, and became effective in March 2018 (see our post here). But the rules requiring an FCC application before commencing the simulcast of the primary signal on the host station as well as over the new ATSC 3.0 signal, the notifications necessary to TV viewers and MVPDs, and other filing obligations required OMB approval under the Paperwork Reduction Act before they could become effective, and that approval has now been obtained. But this does not mean that Next Gen TV stations will be popping up everywhere immediately.

The FCC this week issued a Public Notice announcing the approval of these paperwork requirements, but indicating that it is not yet accepting applications for stations proposing to operate with the ATSC 3.0 standard. The FCC is still preparing a new form for ATSC 3.0 stations to file, and getting its LMS filing system ready to accept all of the newly required FCC filings associated with the conversion. A subsequent public notice will be released when the FCC is ready to accept ATSC 3.0 applications – at some undetermined time in the future, likely at some point in 2019. The Public Notice does offer the option for stations ready to operate with the new system to request experimental authority to do so (several such requests have been filed and granted for tests by commercial and noncommercial stations). But, until the new forms are ready, and until more ATSC 3.0-capable receivers are available to consumers, a mass conversion of stations to the new transmission standard will have to wait.

In light of yesterday’s announcement that the FCC Chairman has proposed that portions of the acquisition by Sinclair Broadcast Group of the television stations owned by Tribune Media would be designated for hearing, one question that many have asked is, “What does designation for hearing mean?”  Several decades ago, the process of designating an application for hearing was a common occurrence – used by the FCC to decide between competing applicants for new broadcast (and in some cases non-broadcast) licenses, in connection with determinations of whether or not to grant the license renewal of broadcast stations where substantive petitions or competing applications were filed against such applications, or to deal with enforcement issues when there were questions about the facts of a particular situation.  The FCC had a large staff of Administrative Law Judges who heard these cases, and they were usually quite busy.  But as the staff of ALJs at the FCC has dwindled to one, and as cases referred to that Judge are increasingly infrequent, it might be worth discussing a bit about the hearing process at the FCC.

Congress established, in Sections 309 and 310(d) of the Communications Act, the manner in which the FCC is to process applications filed with it.  In cases involving applications for new stations or for the purchase and sale of stations, applications are filed providing information required by the FCC and such supplemental information as the FCC may request.  Interested parties routinely have 30 days in which to file objections to applications, in which the petitioner needs to submit detailed allegations supported by facts either in the public record or otherwise supported by statements from those with personal knowledge of the facts, arguing why an application should not be granted.  Applicants have the opportunity to respond.  In most cases, the FCC will attempt to resolve any disputes, or any questions that it has on its own, on the basis of the written materials presented in the application, the petitions, and in response to any FCC supplemental request for information.  But Section 309(e) makes clear that, if there is a “substantial and material question of fact” or if the Commission is otherwise not able to determine that an application meets the requirements of the rules, it needs to formally designate the application for hearing. Continue Reading What Does an FCC Designation for Hearing Mean?