Yesterday brought news that a Federal Magistrate issued a ruling (a 42 page order discussing fine points of law) deciding that the antitrust lawsuit brought by RMLC against GMR should not be tried in the Pennsylvania court where the suit was brought. As we wrote here, RMLC (the group that represents many commercial radio operators in music licensing matters) had argued that GMR (a relatively new organization representing songwriters in licensing music use as do ASCAP, BMI and SESAC) was acting in violation of the antitrust rules by trying to license music from a number of songwriters at prices well in excess of the amount that corresponded to these artists’ share of radio airplay. GMR seemingly retaliated by suing RMLC in a Los Angeles court, arguing that RMLC itself violates the antitrust laws by functioning as a buyer’s cartel unifying music licensing buyers against these songwriters (see our article here). Since these dueling suits were filed, the parties have been fighting over where this case should be heard.

RMLC had brought their case in Pennsylvania both because a number of RMLC members operate in Pennsylvania and because RMLC had obtained a favorable result in that court in similar litigation against SESAC, leading to the arbitration process that substantially decreased the rates that the commercial radio industry pays to that organization (see our article here). GMR sued in California as it is headquartered there, and presumably thought that it might get a bit of a “home court advantage” by trying a case in a state a bit more disposed toward content creators. So what does the decision yesterday mean? Continue Reading Magistrate Rules RMLC Suit Against GMR Should Not Be Litigated in Pennsylvania – What Does that Mean for Radio Companies?

For many years, the FCC’s Audio Division has allowed the rebroadcast of FM multicast HD signals on FM translators. Recognizing that HD receivers are still not widely available, the analog FM translator makes these digital subchannels widely available. See our post here from 2010 about a case where the FCC approved such rebroadcasts. Yesterday, the Audio Division released another decision dismissing objections against an FM translator license application, where the petitioner argued that the translator licensee, using two translators at the same location to rebroadcast different HD channels, was violating the FCC rule that prohibits two translators serving substantially the same area from rebroadcasting the same programming. The decision concluded that the rule prohibited the rebroadcast of the same “signal” or “programming” in the same area on two different translators, but permitted translators that rebroadcast different HD channels of the same station, as long as those channels had different programming.

So the common practice of rebroadcasting HD signals on FM translators has been blessed once again – at least for now. In the decision, the following statement was made:

the Commission has not yet adopted specific rules governing the technical details of rebroadcasting digital subchannels over FM translators. In 2007, the Commission stated that a fuller record was needed before promulgating specific rules regarding “use of FM translators and boosters to rebroadcast multiplexed audio streams.” Pending further Commission action on this matter, we rely on existing rules and precedent to dispose of the subject Applications and Petitions

This implies that the Commission could, at some point, change its current practice and adopt limits on the use of translators to rebroadcast HD subchannels. We have no reason to believe that any change in policy is imminent, but thought that we should pass along this warning that the rules on this practice have never been set in stone so anyone contemplating such operations needs to carefully weigh any risks.

While the end of the year is just about upon us, that does not mean that broadcasters can ignore the regulatory world and celebrate the holidays all through December. In fact, this will be a busy regulatory month, as witnessed by the list of issues that we wrote about yesterday to be considered at the FCC meeting on December 14. But, in addition to those issues, there are plenty of other deadlines to keep any broadcaster busy.

December 1 is the due date for all sorts of EEO obligations. By that date, Commercial and Noncommercial Full-Power and Class A Television Stations and AM and FM Radio Stations in Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, and Vermont that are part of an Employment Unit with 5 or more full-time employees need to place their Annual EEO Public File Reports into the public file (their online public file for TV stations and large-market radio and for those other radio stations that have already converted to the online public file). In addition, EEO Mid-Term Reports on FCC Form 397 are due to be filed at the FCC on December 1 by Radio Station Employment Units with 11 or more full-time employees in Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont; and Television Employment Units with five or more full-time employees in Colorado, Minnesota, Montana, North Dakota, and South Dakota.  We wrote more about the Mid-Term EEO Report here. Continue Reading December Regulatory Dates for Broadcasters – EEO, TV and Translator Filing Windows, Ancillary Revenue Reports, Main Studio Rule Effective Date, Copyright Office Take-Down Notice Registration and More

The Copyright Royalty Board yesterday announced in the Federal Register, here, that the sound recording royalty rates paid to SoundExchange will be increasing next year.  In December 2015, when the CRB set the current royalty rates that apply from January 1, 2016 through December 31, 2020 (see our articles here and here), the CRB noted that the rates would increase based on increases in the Consumer Price Index. Last year, the Board determined that the CPI had not increased enough to merit an increase in the royalties. This year, based on the calculations set out in the Federal Register, there will in fact be an increase.

So, for all streaming in 2018, nonsubscription webcasters will pay a per performance royalty of $.0018 instead of this year’s $.0017. For subscription streams, the rate will increase to $.0023, an increase from $.0022 per performance rate. These rates apply to all noninteractive webcasters who pay the statutory royalty (see our article here for an explanation of the difference between noninteractive and interactive webcasters). Thus, the rate increase will include simulcasts of broadcasters’ over-the-air programming.  Noncommercial webcasters who exceed 159,140 aggregate monthly tuning hours (for which they pay $500 per year) will also pay at the $.0018 rate for performances above the tuning hour limit.

Note that these rates apply through the end of 2020. As the CRB proceedings take two years to arrive at new rates, the Board will be starting a new proceeding to determine royalty rates for 2021 through the end of 2025 starting in January 2019. It’s never too early to start thinking about the next proceeding now.

Last week, just before Thanksgiving, the FCC released the tentative agenda for its December meeting. From that agenda, it appears that the meeting will be an important one for broadcasters and other media companies. Already, the press has spent incredible amounts of time focusing on one item, referred to as “Restoring Internet Freedom” by the FCC, and “net neutrality” by many other observers. The FCC’s draft of the Order that they will be considering at their December meeting is available here.

The one pure broadcast item on the agenda is the Notice of Proposed Rulemaking, looking to determine if the FCC should amend the cap limiting one TV station owner to stations reaching no more than 39% of the national audience. The FCC asks a series of questions in its draft notice of proposed rulemaking, available here, including whether it has the power to change the cap, or if the power is exclusively that of Congress. The FCC promised to initiate this proceeding when it reinstated the UHF discount (see our articles here and here). In that proceeding, the FCC determined that the UHF discount should not have been abolished without a thorough examination of the national ownership cap – an examination that will be undertaken in this new proceeding if the NPRM is adopted at the December meeting. Continue Reading December FCC Meeting to be an Important One for Broadcasters and Other Media Companies

The FCC late yesterday released full texts of the decisions adopted last week to revise the broadcast ownership rules and approve the next generation television standard (ATSC 3.0). We summarized last week’s decisions, based on the press releases released after the meetings, in our article here. The full text of the ownership decision, available here, granted reconsideration of last year’s decision on the 2014 Quadrennial Review of the FCC’s rules setting out the local ownership restrictions on media companies. The full decision sets out the Commission’s reasoning for, among other things, revisiting last year’s decision by deciding to abolish the newspaper-broadcast cross-ownership rules and the radio-TV cross-ownership rules, and by loosening the restrictions on the markets where television stations can be co-owned. We can expect court challenges to this decision, and the matter may end up back before the Third Circuit Court of Appeals.

The Order approving the use of ATSC 3.0 as the next generation television transmission standard, available here, details the process for stations to voluntarily convert to the new standard while requiring that, through a form of channel sharing, they provide their primary video programming stream in the current transmission standard (ATSC 1.0) on another station in their market so that they can continue to provide service to their viewers who have not yet converted their televisions to make them capable of receiving transmissions in the new 3.0 standard.

Over the long holiday weekend, while digesting our Thanksgiving dinner, we will try to digest these orders as well to provide a more complete summary next week.

The FCC on Thursday issued a Public Notice announcing that, at the end of the day on November 27, 2017, the current versions of FCC Forms 323 and 323E will be retired. These forms will be replaced in the near future by a new version of the ownership report in the FCC’s LMS database. If you are currently working on an ownership report following the completion of a purchase of a station or other event triggering the need for such a report, you must file it on the old form by 11:59 Eastern Time on November 27, or wait until the new form is available (if that will allow you to comply with the filing deadline for your report).

As we wrote here and as highlighted in the Public Notice released on Thursday, the FCC will be conducting a workshop on November 28, available online, to review the new form. For live attendees, registration is requested by November 22. No pre-registration is required for online viewing. The new form will be available on December 1 to be used for all broadcast licensees, commercial and noncommercial, to prepare an ownership report for the Biennial Ownership Report filing deadline of March 2 (extended from December 1, see our article here).

At its meeting yesterday, as expected, the FCC approved significant changes to its broadcast ownership rules and also approved the roll out of ATSC 3.0 – the next generation television transmission standard. While any change in ownership rules is always a contentious issue, and thus the 3-2 strict party-line vote approving the ownership changes might not have been surprising, the television technology change adopted yesterday proved to be controversial as well, also being approved by a 3-2 vote.

As of the writing of this article on Friday morning, the final texts of these decisions have not been released, so the details of these actions are not available. We will write further about the decisions next week when we have had a chance to digest the final orders. But summaries of both decisions, and the texts of the Commissioner’s statements on the issues, were released late yesterday. Continue Reading FCC Approves Ownership Rule Changes and Next-Gen TV ATSC 3.0 Standard

The FCC’s Media Bureau, as a result of an FCC vote at its meeting last month to look at doing away with the requirement that all TV stations file a report by December 1 of each year detailing their revenue from ancillary and supplementary services – i.e. data and other non-broadcast services offered by the TV station through their digital transmissions – issued an Order suspending the December 1 filing requirement this year for all TV stations that have no such revenue. TV stations that have such revenue must file the report and pay to the government 5% of all of the revenue they receive from offering these non-broadcast services. As we wrote here, the FCC voted last month to start a rulemaking proceeding, as part of its proceeding to look at the Modernization of Media Regulation, to limit the filing requirement to only those stations that actually have ancillary and supplementary revenues – approximately 15 TV stations nationwide.

This FCC Form, Form 2100, Schedule G (formerly Form 317), based on this Media Bureau action, will not be required this year by stations with no ancillary and supplementary revenue while the FCC determines whether to abolish the requirement permanently. Of course, today the FCC will be acting on the proposal to adopt ATSC 3.0, a new TV transmission system which, among other benefits, will allow TV stations to increase their data transmission capabilities. So, even though initially stations that take advantage of this waiver will not have to file the report on ancillary and supplementary revenues this year, that obligation may well arise in the future if they recognize the benefits of ATSC 3.0 by offering non-broadcast services using their TV spectrum.

We wanted to remind you about two recent regulatory dates in case you have overlooked them. A number of trade press articles reminded broadcasters that yesterday was the due date for the filing of Form 3 of the ETRS reporting system, reporting on the results of this year’s Nationwide EAS tests. If you did not file, get that information on file now so that you are no later than necessary, and hope that the FCC cuts you a break on any late-filing. See our article here about that obligation.

Second, the new rules about noncommercial fundraising (about which we wrote here) went into effect yesterday, permitting noncommercial broadcasters who are unaffiliated with NPR and CPB to raise funds for nonprofit third parties for a limited amount of their broadcast time, even if such fundraisers interrupt their programming. If you are a noncommercial broadcaster, you can utilize these new rules to fundraise for charitable groups.