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

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 draft Notice of Inquiry to explore how the FCC can support industry efforts to develop new Positioning, Navigation, and Timing (PNT) technologies, including the Broadcast Positioning System (BPS) provided by TV stations operating with the ATSC 3.0 transmission standard.  PNT data is crucial to national security, public safety, and economic stability as it supports government and military operations and commercial activities.  Currently, the satellite-based Global Positioning System (GPS) is the primary source of PNT data in the United States, but the FCC seeks to develop complementary and alternative technologies to ensure continuity and resilience in critical operations in case GPS signals are disrupted or degraded.  Along with other technologies noted in the NOI, the FCC seeks comment on whether BPS can complement or replace GPS, using ATSC 3.0 to deliver PNT data that is not as vulnerable to intentional interference as GPS.  The FCC will vote on the draft NOI at its March 27 regular monthly Open Meeting.
  • The U.S. Court of Appeals for the 11th Circuit issued an Opinion that vacated the FCC’s $518,283 fine against Gray Television for violating the FCC’s Top-4 Prohibition, though agreeing that Gray had violated the rule.  The Prohibition restricts TV station licensees from acquiring the network affiliation or license of another in-market TV station when, as a result of the transaction, the licensee would hold two of the Top-4 rated TV stations in a Designated Market Area (ratings computed at the time of the agreement was executed).  The court agreed with the FCC that Gray’s acquisition of the network affiliation of another in-market station violated the rule (the court agreeing that the Gray station to which the affiliation was moved was not, at the time the agreement for the transaction was signed, already a Top-4 station as Gray had argued) and found that the rule was not content based, so there was no First Amendment issue with its enforcement.  The court, however, determined that the FCC had failed to provide Gray with an opportunity to address the FCC’s finding that the violation was “egregious” (a factor used to justify the size of the fine) and remanded the case to the FCC for further consideration.  Interestingly, two of the judges issued a concurring opinion suggesting that they would have vacated the FCC’s entire decision had Gray argued before the FCC that the Commission’s statutory authority covered the sale of broadcast licenses, but did not extend to regulating the sale of affiliations.  But, as Gray did not give the FCC the opportunity to address questions about its authority, the Court could not consider the issue on appeal.
  • Senators Rosen (D-NV), Lujan (D-NM), and Markey (D-MA) and Congresswomen Matsui (D-CA), Barragán (D-CA), and McClellan (D-VA) introduced the Broadcast Freedom and Independence Act in both the Senate and the House, which would prohibit the FCC from revoking a station’s license or taking other adverse actions against a licensee based on the broadcaster’s disseminated viewpoints.  The bill also makes a finding that, as an independent agency, the President lacks the power to remove sitting FCC Commissioners at will. 
  • Another objection was filed against the Paramount-Skydance transfer applications which propose that David Ellison acquire a controlling stake in the company and become its Chairman and CEO.  Project Rise Partners, a partnership affiliated with independent programmers interested in acquiring CBS and Paramount, asserts several public interest concerns which it claims warrant further FCC investigation, including whether the proposed transaction risks permitting anticompetitive programming bundling practices, and whether a Chinese investor in Skydance imperils national security.  Project Rise also claims that the proposed transaction may result in increased retransmission consent fees, job losses, and weakened news production resulting from Skydance’s plans to integrate artificial intelligence into news operations.  Project Rise further claims that Paramount may have allowed Skydance premature influence over Paramount, including in its newsroom and litigation decision making.  See our updates here, here, here, here, here, and here on the transaction and the comments previously filed in this proceeding.
  • The FCC announced comment deadlines for four Notices of Proposed Rulemaking proposing amendments to the TV Table of Allotments:
    • The FCC announced that comments and reply comments are due April 2 and April 7, respectively, responding to the Media Bureau’s NPRM requesting comments on a TV station’s proposed substitution of UHF channel 15 for VHF channel 11 at Price, Utah due to the inferior quality of VHF channels for digital transmissions.  The station states that if the substitution is granted, it will convert its facilities to a Distributed Transmission System to serve viewers on both sides of the mountains separating Price and Provo, Utah.
    • The FCC announced (see here, here, and here) the comment deadlines for the Media Bureau’s three NPRMs proposing to allow the petitioner’s TV stations located in Kansas, Kentucky, and Louisiana to remain on their existing channels due their inability to complete construction of new facilities by the expiration dates of their channel-change construction permits: the first NPRM proposes substituting Channel 12 for Channel 28 at Wichita, Kansas; the second NPRM proposes substituting Channel 8 for Channel 24 at Monroe, Louisiana; and the third NPRM proposes substituting Channel 12 for Channel 20 at Hazard, Kentucky.  For the Kentucky and Louisiana TV stations’ NPRMs, comments and reply comments are due April 3 and April 18, respectively.  For the Kansas TV station’s NPRM, comments and reply comments are due April 4 and April 21, respectively.

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 National Association of Broadcasters filed a Petition for Rulemaking asking the FCC to require that full-power television stations complete the transition to the new ATSC 3.0 transmission standard in two phases.  In the first phase, TV stations in the top 55 markets would have a transition deadline of February 2028.  TV stations in remaining markets would need to transition by February 2030.  The NAB asks for several rule changes to assist with the transition, including requiring that new TV sets sold after February 2028 be capable of receiving ATSC 3.0, and updating the MVPD carriage rules to reflect the mandatory transition dates proposed.  The NAB also proposes that the FCC eliminate the “substantially similar” requirement (requiring that stations’ ATSC 3.0 principal broadcast stream replicate their ATSC 1.0 broadcast) earlier than the current July 17, 2027 sunset date.
  • FCC Chairman Carr sent iHeartMedia’s CEO a letter requesting information on how the company will comply with federal payola requirements in connection with its upcoming iHeartCountry Festival ’25 on May 3 in Austin, Texas.  As we discussed here and here, the FCC has renewed its attention to broadcaster’s compliance with federal payola requirements, especially when broadcasters coerce musicians to play “free radio shows” (including “listener appreciation shows” or “charitable concert events”) in exchange for more airplay on stations or by threatening them with less airtime if they don’t participate.  Citing the FCC’s recent Enforcement Advisory about such events, Carr specifically asks iHeart to disclose whether it is forcing musicians to make this choice.  The letter also requests information on the company’s payola and sponsorship identification policies and how iHeart will implement them for the music festival, and on the compensation of the artists playing at the festival and how that compensation compares to what the artists receive for similar performances.
  • At its February Open Meeting, the FCC adopted a Notice of Proposed Rulemaking proposing a review of its rules implementing the Commercial Advertisement Loudness Mitigation Act of 2010 (CALM Act) and a Notice of Inquiry regarding expanding use of the upper C-Band (3.98-4.2 GHz), which is currently used by many broadcasters for their earth stations. 
    • The Calm Act NPRM seeks comments on whether the FCC should update or change its regulations that are intended to protect viewers from excessively loud TV commercials.  In the NPRM, the FCC seeks comment on the extent to which loud commercials are still problematic and, if so, how the rules should be modified to address these concerns. The Commission notes that many of its recent complaints suggest that loud commercials are also a problem with streaming platforms and asks for confirmation of those concerns and comments on whether the FCC has authority to regulate streaming providers.  It also asks if consumers experience issues with understanding the dialog in streamed programming if such problems particularly affect those with disabilities.  The NPRM notes no regulations are now being proposed for streaming providers – such rules would be considered in a subsequent NPRM, as noted in Commissioner Starks’ statement about his concerns over the FCC’s potential lack of authority to regulate streaming platforms. 
    • The C-Band NOI requests comment on whether incumbent band users, including broadcasters’ earth stations, have other alternatives for operating their services, including repacking in-band, relocating out of the band, or sunsetting operations in favor of alternative distribution technologies.  Chairman Carr issued a statement noting the rapid deployment of new uses in the portions of the C-Band already repurposed from satellite to wireless users, and the need for more spectrum for wireless.  He did note, however, that the interests of incumbent band stakeholders must be considered.  Comments and reply comments responding to the NOI are due April 29 and May 29, respectively. 
  • The FCC also released a Further Notice of Proposed Rulemaking proposing to modify how annual FCC regulatory fees are assessed on space and earth stations.  For earth stations, the FCC seeks comment on expanding regulatory fees to non-operational earth stations (those which have a construction permit but are not yet licensed) and creating additional earth station fee categories beyond the current single fee category of transmit/receive and transmit-only earth stations to include, for example, VSAT, mobile-satellite earth stations, and fixed earth stations.  Comments and reply comments responding to the FNPRM are due March 27 and April 11, respectively.
  • The FCC announced two proposed fines against pirate radio operators. 
    • The FCC proposed a $325,322 fine against a Miami, Florida pirate radio operator based on FCC field agent observations of unauthorized operations on four separate days in 2024 and 2025 and the operator’s history of pirate radio offenses dating back to 2018, including a prior $120,000 fine. 
    • The FCC also proposed a $60,000 fine against another Miami, Florida pirate radio operator based on FCC field agent observations of unauthorized operations on three separate days in 2024 and 2025, also noting Facebook posts of the owner of the property from which the pirate was operating promoting the station and showing the owner broadcasting, captioned with language including “the hottest old school jams right here on 89.1 fm.” 
  • The FCC’s Media Bureau took three actions regarding proposed revisions to the TV and FM Tables of Allotments:
    • The FCC announced that comments and reply comments are due March 17 and March 31, respectively, responding to the Media Bureau’s NPRM seeking comment on a noncommercial TV station’s proposed 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 UHF channel superiority for transmitting digital TV signals.
    • The Media Bureau released three NPRMs proposing modifications to the TV Table of Allotments to allow the petitioner TV stations located in Kansas, Kentucky, and Louisiana to remain on their existing channels due their inability to complete construction of new facilities by the expiration dates of their channel-change construction permits: the first NPRM proposes to substitute Channel 12 for Channel 28 at Wichita, Kansas; the second NPRM proposes to substitute Channel 8 for Channel 24 at Monroe, Louisiana; and the third NPRM proposes to substitute Channel 12 for Channel 20 at Hazard, Kentucky. 
    • The Media Bureau also granted a petition proposing to amend the FM Table of Allotments by allotting Channel 260C0 at Ethete, Wyoming as a Tribal Allotment.  The Bureau found that Ethete, as a census-designated place located on the Wind River Indian Reservation, was a community for allotment purposes.  The Bureau also found that allotting this channel as a Tribal Allotment served the public interest by providing vital radio service to the Reservation and enabling petitioner, the Northern Arapaho Tribal government, to set its own communications priorities and goals.  The FCC will announce in the future the opening of a filing window for qualifying applicants to file construction permit applications for a new FM station on this allotment. 
  • The Media Bureau published in the Federal Register a notice of radio stations proposing city of license changes.  Interested parties have until April 25, 2025 to comment on the following proposed station moves: WAPC, from Opp, AL, to Clanton, AL; KSPA, from Ontario, CA, to Colton, CA; WOAM, from Peoria, IL, to Tremont, IL; KQSA, from Batesville, TX, to Pearsall, TX; And KRIX, from Port Isabel, TX, to Los Fresnos, TX.
  • The Media Bureau also dismissed two LPFM construction permit applications due to the applicants’ failure to meet the FCC’s LPFM eligibility requirements.  The Bureau dismissed an Arizona LPFM construction permit application for applicant’s failure to meet the FCC’s LPFM localism requirement because the applicant’s headquarters and all of its directors’ residences were located more than 20 miles from the proposed station’s transmitter site (the limit for LPFM applicants outside of the top 50 urban markets).  The Bureau also dismissed a Florida LPFM construction permit application because the applicant failed to demonstrate its eligibility to hold an LPFM license as either an incorporated nonprofit entity or any other recognized nonprofit entity under Florida state law.   

On our Broadcast Law Blog, we provided our regular monthly look ahead at the important regulatory dates for broadcasters in March and early April. 

While there are only a few regulatory deadlines scheduled for broadcasters this March, with more coming in April, as has occurred so many times in the last few years, we need to remind you that even the FCC deadlines in late March and early April could be postponed if there is a federal government shutdown, as the federal government is funded only through March 14.  As we have discussed here with respect to previous potential shutdowns, the FCC and other government agencies may have to cease all but critical functions if they do not have any residual funds to continue operations during a shutdown.  Thus, some deadlines could shift if this new administration follows the precedent for shutdowns followed in the past.

Before any potential shutdown, comments are due March 7 responding to the reinstated Center for American Rights’ complaint against a CBS-owned TV station alleging news distortion in its broadcast of a “60 Minutes” interview with Vice President Kamala Harris.  CAR’s compliant was originally dismissed as one of the FCC’s last major actions under former Chairwoman Jessica Rosenworcel, but was reinstated one week later under FCC Chairman Carr further investigation (see our discussion here, here, and here).  At the FCC’s request, CBS provided the FCC with an unedited transcript and video of the 60 Minutes interview.  The FCC also released additional video of the interview that was posted on YouTube.  The FCC stated that it wanted to open the proceeding to public participation given the value of transparency and the degree of public interest in the matter.  Reply comments are due March 24. 

Continue Reading March 2025 Regulatory Updates for Broadcasters – Daylight Savings Time, Comment Deadlines, FCC Ownership Rules in Court, 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.

  • In an effort to exert more control over independent federal agencies, including the FCC, President Trump signed an Executive Order directing independent agencies to submit “significant regulatory actions” to the Office of Information and Regulatory Affairs (OIRA) for review before any action is published in the Federal Register.  “Significant regulatory actions” include actions which have an annual effect on the economy of $100 million or more, adversely affect the economy or an economic sector, interfere or conflict with other federal agency actions, or raise new legal or policy issues.  The Order directs independent agency heads to coordinate policymaking with the White House, to set a strategic plan approved by the Office of Management and Budget (OMB), and to have their performance evaluated by the OMB.  The Order also states that the President and the Attorney General’s legal interpretations are controlling on the executive branch, and that no employee of an independent agency can provide any interpretation of law that contravenes the President or Attorney General’s position unless approved by the President or Attorney General.
  • The Federal Trade Commission issued a request for public comment regarding “technology platform censorship.”  The FTC request seeks information on how technology platforms (including social media sites and many other internet-based services) may have engaged in unfair or deceptive trade practices (which the FTC regulates) by, among other things, “shadow banning” or deemphasizing content based on a user’s speech or affiliations, and by regulating content in ways contrary to the platform’s public representations.  The request for comment asks that users provide information on how they were harmed by any such practices and on factors that may have contributed to platform’s decisions to act as it did.  In the FTC press release about the request for comments, FTC Chairman Andrew Ferguson stated that the inquiry will help the FTC understand “how these firms may have violated the law by silencing and intimidating Americans for speaking their minds.”  Comments are due May 21. 
  • The US Court of Appeals for the DC Circuit has scheduled an oral argument for April 7 on the NAB’s challenge to the FCC decision requiring broadcasters to investigate whether issue advertisers and others who buy spots that are not for commercial products or services are representatives of foreign governments. We summarized the FCC decision now on appeal on our Broadcast Law Blog, here.  As is the case with many other upcoming court arguments on appeals of decisions made by the last administration at the FCC, there is interest as to how the FCC will defend this appeal as Chairman Carr, as a commissioner, opposed the expansion of the rule to cover spot advertising, agreeing with arguments that the decision was done without sufficient notice that the expansion was being considered. 
  • The Media and Democracy Project filed an Application for Review with the FCC of the Media Bureau’s dismissal of MDP’s petition to deny filed against the Fox’s Philadelphia station license renewal application.  As we discussed here, MDP argued in its petition that the station’s renewal should be denied principally because cable channel Fox News aired false statements regarding Dominion Voting Systems following the 2020 Presidential Election.  But in one of the last major actions of the FCC under former Chairwoman Rosenworcel, the Bureau dismissed MDP’s petition for reasons including that it provided no evidence that the station aired false information regarding Dominion.  MDP argues that the Bureau misapplied the law and FCC precedent and urges the FCC to conduct an evidentiary hearing regarding Fox’s false statements.  The Bureau, under FCC Chairman Carr, reinstated complaints against TV stations owned by the ABC, NBC, and CBS broadcast networks for aspects of their coverage of the 2024 presidential campaign, but did not reinstate MDP’s complaint against the Fox-owned TV station (see our discussion here).
  • The Center for American Rights filed a letter in the Paramount-Skydance merger proceeding urging the FCC to examine the company’s DEI efforts in its review of the company’s transfer applications, which propose that David Ellison acquire a controlling stake in the company and become its Chairman and CEO.  Noting Chairman Carr’s recent letter announcing an investigation of DEI initiatives (which we noted last week here), CAR argues that the FCC should scrutinize Paramount’s DEI initiatives because they may be “institutionalized illegal racial discrimination” that raise questions regarding the company’s fitness to hold FCC licenses.  CAR further argues that even if Paramount’s DEI practices are legal, they should be viewed as public interest violations – particularly where DEI-informed programming decisions fail to deliver “patriotic, family friendly, and faith-inspired” programming that conflicts with some viewer preferences.  See our updates here, here, here, here, and here on the transaction and the comments previously filed in this proceeding.
  • The Media Bureau entered into a Consent Decree with a Puerto Rico LPTV station to resolve its investigation into the station’s unauthorized operations.  The Bureau found that the station began operating on Channel 14 without submitting evidence that its operations would not interfere with land mobile facilities.  The station’s construction permit required that coordination with land mobile operators occur before the station could begin operating with program test authority (authority to conduct on-air programming of the station’s facilities while its license application is pending).  The Bureau found that the station engaged in unauthorized operations for over three years until it submitted an acceptable showing that there was no interference to land mobile facilities.  The Consent Decree requires that the station pay a civil penalty of $4,500 and enter into a compliance plan to ensure that future FCC rule violations do not occur.

On our Broadcast Law Blog, we discussed the process by which SoundExchange can audit any webcaster who streams its programming online to assess compliance with the statutory music licenses provided by Sections 112 and 114 of the Copyright Act.  Our article was prompted by recent announcements by the Copyright Royal Board’s that SoundExchange is auditing the compliance of five radio companies.

The Copyright Royalty Board this week published notice in the Federal Register that SoundExchange is auditing two broadcast companies who are streaming their signals online to assess compliance with the statutory music licenses provided by Sections 112 and 114 of the Copyright Act for the public performance of sound recordings and ephemeral copies made in the digital transmission process by commercial webcasters. A notice was published last month indicating an audit of five other broadcast companies.  Notices of audits are annual events.  But, as the number of broadcasters selected for audits this year is higher than in past years, we thought that we should republish some of the observations that we have made in the past about these audits. 

SoundExchange may conduct an audit of any licensee operating under the statutory licenses for which it collects royalties.  Such audits cover the prior three calendar years in order to verify that the correct royalty payments have been made (the notice issued this week audits the named broadcasters for 2022-2024, while the audits announced last month were filed in late 2024 and are for the years 2021-2023). The decision to audit a company is not necessarily any indication that SoundExchange considers something amiss with that company’s royalty payments – instead SoundExchange audits a cross-section of services each year (see our past articles about audits covering the spectrum of digital music companies who have been subject to these audits – here, here, here, here and here).  

Continue Reading Copyright Royalty Board Announces SoundExchange Audits of Broadcast Companies Streaming Their Signals – How Do These Audits Work?

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 US Court of Appeals for the Eighth Circuit has scheduled for March 19 the oral argument on the appeals of the NAB and various radio and television companies to the FCC’s December 2023 decision in its 2018 Quadrennial Review of the local broadcast ownership rules.  As you will recall, the 2023 decision made no substantial changes to the rules (see our Broadcast Law Blog article here).  Parties challenging the decision are arguing that the statute that requires the FCC conduct Quadrennial reviews of the ownership rules compels the FCC to make changes in the rules based on competition, and competition has certainly changed since 1996 when the current rules were adopted (see, for instance, our articles here and here), so some relaxation of the rules is necessary.  We will be looking at the extent to which the FCC defends its 2023 decision, given that Chairman Carr and Commissioner Simington both dissented from that decision.  Any full decision from the Court on the appeals likely will come months after the oral argument. 
  • In actions by the new Chairman, Carr sent a letter to Comcast and NBCUniversal informing them that the FCC’s Enforcement Bureau will investigate their DEI programs to see if they promote “invidious forms of discrimination in violation of FCC regulations and civil rights laws.”  Carr also stated that this investigation was the FCC’s first step in ensuring that every FCC-regulated company ends their DEI initiatives, citing President Trump’s Executive Order directing federal agencies to enforce civil rights laws by combatting private-sector DEI initiatives.  FCC Commissioner Starks released a statement indicating that the action gave him “grave concern,” quoting Carr’s 2023 concern about actions that give “the FCC a nearly limitless power to veto private sector decisions,” and stating that the investigation announced by the letter appeared “out of our lane and out of our reach.”
  • In reference to other actions taken by the new Chairman, Senators Markey (D-MA), Lujan (D-NM), and Peters (D-MI) sent FCC Chairman Carr a letter urging him to close the FCC’s reopened investigations of ABC, CBS, and NBC regarding aspects of their coverage of the 2024 presidential campaign (see our discussion here) and its investigations into NPR and PBS regarding their alleged violations of the FCC’s underwriting rules (see our discussion here).  The Senators state that the investigations appear to be politically motivated (noting that the FCC reopened its investigations of ABC, CBS, and NBC, but not Fox), were intended to punish and censor broadcasters based on a disagreement with their editorial choices, and threatened the freedom of the press.
  • Two bills were introduced in Congress that propose ending NPR, PBS, and the Corporation for Public Broadcasting’s federal funding due to alleged political bias in their programming.  The Defund Government-Sponsored Propaganda Act proposes to end PBS and NPR’s federal funding, and the No Propaganda Act proposes to end the Corporation for Public Broadcasting’s federal funding.
  • The FCC’s Media Bureau granted a North Dakota AM station and its FM translator’s assignment application over an informal objection based on comments made by one of Buyer’s controlling principals on social media alleging that “journalism is dead” due to its liberal bias.  The Bureau found that the objection raised no provision in law, regulation, or policy that would indicate that the principal’s social media posts were relevant to assessing the applicant’s qualifications to be a licensee.  The decision noted that “licensees have broad discretion based on their First Amendment right to free speech to choose, in good faith, the programming they believe serves the needs and interests of their communities.  Indeed, the Commission does not interfere with the programming decisions of licensees, nor does it consider issues of programming choice when reviewing an application for the assignment or transfer of a broadcast license…. the Commission will not take adverse action on an application based upon the subjective determination of a listener or group of listeners as to what constitutes ‘good’ programming.”
  • The Media Bureau entered into a Consent Decree with a group of Kansas, Missouri, and Oklahoma radio stations to resolve its investigation into a series of unauthorized transfers of control following the death of the stations’ majority owner.  The Consent Decree requires that the stations pay an $8,000 penalty and enter into a compliance plan to ensure that future violations of the FCC’s transfer of control rules do not occur. 
  • The Media Bureau made several updates to the FM Table of Allotments.  The Bureau reinstated the following channels in the FM Table of Allotments as vacant due to either the cancellation of the associated station licenses or the dismissal of winning auction applications: Channel 254C1 at Loleta, California; Channel 285A at Adamsville, Texas; Channel 276A at Fabens, Texas; Channel 227A at Pearsall, Texas; and Channel 248C1 at Basin City, Washington.  The FCC will announce in the future filing windows for broadcasters to file for permission to construct new stations on these vacant allotments.  The Bureau also removed 61 vacant allotments from the FM Table of Allotments as these channels are no longer vacant because they are now occupied by licensed FM stations.
  • The Media Bureau released a Notice of Proposed Rulemaking seeking comment on a TV station’s proposed community of license change from Silver City, New Mexico, to Truth or Consequences, New Mexico, and its proposed substitution in the TV Table of Allotments of Channel 12 at Silver City with Channel 12 at Truth or Consequences to reflect this change.  The Bureau notes that the station’s community of license change would add a first local service to Truth or Consequences, while another TV station licensed to Silver City would continue serving that community. 
  • The Media Bureau dismissed an application for a construction permit for a new Iowa LPFM station for failure to comply with the LPFM minimum power and spacing rules.  The applicant requested a waiver of the rules to allow it to amend its application to a second-adjacent channel change to resolve the short-spacing in the original application (the amendment would need a waiver as the proposed site would still be short-spaced to another station, though the applicant claimed it would cause no real interference), or alternatively to grant it a waiver of the LPFM processing rules to permit it to file a major amendment to move to a non-adjacent channel.  The Bureau found that the applicant failed to cite any unique circumstances justifying either waiver, citing reasons including that either waiver would be a broad change in the application processing policies potentially affecting many LPFM applicants that failed to file acceptable applications, and such a policy change should not be made in the context of an individual application. 

On our Broadcast Law Blog, we discussed the FCC Enforcement Advisory released last week warning of payola concerns in coercing bands to play at station events with threats of decreased airplay, and how that advisory serves as a reminder for broadcasters about issues that can arise under the FCC’s payola and sponsorship identification policies.  We also discussed the U.S. Copyright Office’s Notice of Inquiry regarding the complicating effects on music licensing created by the proliferation of performing rights organizations, and the specific issues that music users, including broadcasters, face in dealing with the increasing number of PROs.

In the United States, performing rights in musical compositions (or “musical works” as the Copyright Act refers to them – the words and music of a song) are generally licensed by a “performing rights organization” or a “PRO.”  The U.S., unlike most countries where there is a single organization that collects these royalites, has multiple such organizations.  The recent doubling in the number of PROs triggered the Copyright Office to initiate a Notice of Inquiry last week requesting public comment on issues related to these organizations.  What are the issues that led to this inquiry? 

As set out in the Notice, in the U.S., performance rights in musical compositions have for over 80 years been licensed by three PROs – ASCAP, BMI, and SESAC.  Yet, since 2013, three new PROs have begun (GMR, PRO Music, and AllTrack).  These new PROs are not all equal. GMR has compiled a roster of songwriters who wrote many well-known songs in many different musical genres, and it has aggressively pursued royalties for the music in their repertoire – see, for instance, our articles here and here on their aggressive efforts to compel the radio industry to pay royalties.  PRO Music, while it has sought to receive licenses from various businesses, is a newer organization with music that appears to be concentrated in certain musical genres.  AllTracks is the newest of the PROs and, at this time, their licensing strategy remains to be seen. 

With at least six PROs representing composers of musical works in existence, Congress has received complaints that businesses using music have been confused by demands for royalty payments from these new organizations, accompanied by threats of lawsuits if royalties are not paid.  The Notice of Inquiry does not even note that the landscape is even more complicated, as there are additional PROs claiming rights in the underlying compositions in spoken word recordings – see our article here – and, from time to time, PROs arise that purportedly represent certain foreign-language recordings.  There is, no doubt, confusion among those who publicly perform music and need to be licensed to play that music about who they have to pay, and what these users are getting when they pay their royalties. 

Continue Reading Copyright Office Commences an Inquiry into the Proliferation of Performing Rights Organizations – Looking at the Complexity of Licensing Musical Works in the United States

When in January I offered my predictions as to the issues that the new FCC would be considering this year, payola and musical artists complaining of being coerced to play for free at radio station concerts or other events was not on the bingo card.  That changed early this past week when Tennessee Senator Marsha Blackburn sent a letter to FCC Chair Brendan Carr stating that she had received many complaints from musical artists complaining that they were being coerced to play for free at radio station events with threats that, if they did not participate, on-air play of their music would be reduced. 

The Senator’s letter suggested that this was a violation of the FCC’s payola rules that prohibit broadcasters from making programming decisions based on the receipt of anything of value for airplay without disclosing that consideration on the air.  The letter’s implication is that receipt of the artist’s concert appearance for free would constitute the consideration and, if that consideration was not disclosed when increased airplay occurred, the station would be in violation of the payola policies.  The letter suggested that the FCC take action to ensure that such coercive tactics were not used to secure  free appearances by musicians at radio station events.  In what seems like record time, the FCC’s Enforcement Bureau responded to the Senator’s letter by issuing an Enforcement Advisory about the issue.  What does that Advisory provide and what are the FCC’s policies payola and sponsorship identification?

Continue Reading FCC Enforcement Advisory Warns of Payola Concerns in Coercing Bands to Play at Broadcast Station Events with Threats of Decreased Airplay – and Reminds All Broadcasters, Radio and TV, of Sponsorship Identification Requirements

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.

  • Payola on broadcast stations suddenly was in the news this past week.  Early in the week, Senator Marsha Blackburn (R-TN) sent Chairman Carr a letter requesting that the FCC ban radio stations from asking musicians to play “free radio shows” (including “listener appreciation shows” or “charitable concert events”) in exchange for more airplay on stations or by threatening them with less airtime if they don’t participate.  Blackburn claimed that this practice constitutes payola (payment for airtime without disclosing to the audience that the broadcast was sponsored) in violation of federal law and the FCC’s sponsorship identification rules.  Carr responded by asking the FCC’s Enforcement Bureau to examine the issue, which resulted in the Bureau quickly releasing an Enforcement Advisory warning stations and their employees that they can be fined up to $10,000, imprisoned for up to one year, or both, for compelling or accepting unreported free or reduced fee performances by musicians in exchange for more favorable airplay.  The Advisory also talked about other actions that stations should be taking to ensure that they do not face payola issues.  Stations may also be subject to FCC fines for payola violations.  Look for more on these actions on our Broadcast Law Blog early this coming week.
  • The U.S. Court of Appeals for the Fifth Circuit heard oral argument on the legal challenge to the FCC’s reinstatement of the FCC Form 395-B (a recording of the oral argument can be found here).  In February 2024, the FCC reinstated the Form 395-B, which requires that broadcasters yearly prepare a report for a station’s online public file classifying all of its employees by race, gender, and employment position (see our article here about that decision).  The decision is being challenged by several broadcasters who argue that requirement to prepare and file the form is unconstitutional for reasons including that it unlawfully pressures broadcasters to engage in race- and sex-conscious employment practices (see our discussion here and here).  At the argument, the FCC conceded (as did the DOJ the week before in a letter we noted in our last weekly update) that the inclusion in the form of a “non-binary” gender category could no longer be defended based on President Trump’s Executive Order that the federal government will recognize only two genders.  Questions were also raised at oral argument as to whether the FCC would reverse the remaining requirements imposed by the Form 395-B’s reinstatement following President Trump’s Executive Order suspending federal DEI initiatives, but the FCC nevertheless defended the FCC’s reinstatement of the form (other than the nonbinary provision).  After oral argument, the FCC filed a letter with the Court stating that the agency could not reverse the form’s reinstatement because the current FCC Commissioners were deadlocked on the issue. It is now up to the Court to decide whether the data collection requirements should be upheld (though it is also possible that, between now and when the Court rules, the reinstatement could be revisited by the FCC by ruling on pending petitions for reconsideration when a new FCC Commissioner is seated). 
  • The U.S. Copyright Office initiated a Notice of Inquiry requesting public comment on issues related to the performing rights organizations (PROs).  The Copyright Office notes that performance rights in musical compositions have for over 80 years been licensed by three PROs – ASCAP, BMI, and SESAC.  Yet, since 2013, three new PROs have begun (GMR, PRO Music, and AllTrack), and Congress has received complaints that businesses using music have been confused by demands for royalty payments from these new organizations, accompanied by threats of lawsuits if royalties are not paid.  The Copyright Office also noted the impact of “fractional licensing,” where multiple composers represented by different PROs collaborate to write a song, giving each a fractional interest in that song –requiring a music user to have rights from all of the PROs having any interest in the song in order to perform it.  The Copyright Office asked for comment on a number of issues including whether the proliferation of PROs has increased the financial and administrative costs of music users, and whether the increased number of PROs has affected the distribution of the royalties to songwriters and copyright holders. The results of the inquiry will be compiled into a report to Congress on whether any legislative action is necessary. 
  • The FCC released a draft of a Notice of Proposed Rulemaking proposing a review of the rules adopted to implement the Commercial Advertisement Loudness Mitigation Act of 2010 (CALM Act), which was intended to protect viewers from excessively loud TV commercials.  This draft will be considered at the FCC’s next regular monthly open meeting on February 27.  If the NPRM is adopted, based on thousands of viewer complaints received about the continuing loudness of TV commercials, the FCC will be seeking comment on whether the FCC should update or change its CALM Act regulations – including whether to extend the rules to cover commercials on streaming services and other online platforms. 
  • The FCC announced a public comment period on the reinstated Center for American Rights’ complaint against a CBS-owned TV station alleging news distortion in its broadcast of a “60 Minutes” interview with former Vice President Harris.  Comments and reply comments on the complaint are due March 7 and March 24, respectively.  CAR’s complaint was dismissed as one of the FCC’s last major actions under former FCC Chairwoman Rosenworcel, but was reinstated one week later under FCC Chairman Carr (see our notes of these action here and here).  In response to the FCC’s request, this week CBS provided the FCC with an unedited transcript and video of the 60 Minutes interview, which both CBS and the FCC made public.  The FCC also released additional video of the interview that was posted on YouTube.  The FCC stated that it wanted to open the proceeding to public participation given the value of transparency and the degree of public interest in the matter.  FCC Commissioner Gomez objected, stating that the FCC should end its investigation because interview’s transcript and video did not demonstrate any FCC rule violation, that further inquiry risked politicizing the FCC’s processes, and that the public statements about the process undermined trust in the Commission’s impartiality (see her statement here).  President Trump, on the other hand, demanded that CBS be stripped of its broadcast licenses due to the 60 Minutes broadcast, suggesting that it was “the biggest Broadcasting SCANDAL in History” (caps in the original Truth Social post). 
  • Chairman Carr released a statement supporting the Senate Commerce, Science, and Transportation Committee’s passage of the AM for Every Vehicle Act.  Carr stated that ensuring that AM radios remain in new vehicles, the bill will “help keep this linchpin of our emergency response system in place and also ensure that Americans can continue to access relevant news, information, and entertainment programming.”  As we discussed this week on our Blog, the bill requires that automobile manufacturers keep AM radio on the car dashboard.  This bill has much the same language as the version introduced in Congress last year – which was never passed despite broad bipartisan support.  Following this week’s committee approval, the bill now proceeds to the full Senate for a vote.  This week, Congressmen Bilirakis (R-FL) and Pallone (D-NJ) also reintroduced the bill in the House of Representatives.
  • Congresswoman Majorie Taylor Greene (R-GA), Chairwoman of the House Subcommittee on Delivering on Government Efficiency (DOGE), sent letters to NPR and PBS requesting that their CEOs testify next month before the subcommittee regarding whether Congress should stop funding the networks due to alleged political bias in their programming.  In scheduling the hearing, Greene pointed to investigatory topics including claims that NPR decided not to report on the Hunter Biden laptop story, allegations of systemic liberal bias at the network, and PBS’ reporting last month implying that Elon Musk gave a fascist salute at President Trump’s inaugural celebrations.  Greene stated her view that NPR and PBS political bias undermines public trust, and the networks’ reporting should serve the entire public since they receive federal funding.
  • The FCC’s Media Bureau entered into a Consent Decree with a San Francisco, California noncommercial TV station after finding that the station filed its license renewal application late, uploaded Quarterly/Issues Programs Lists to its Online Public Inspection File late, and incorrectly certified in its renewal application that it timely complied with its OPIF obligations.  The Consent Decree requires that the station pay a $25,000 penalty and enter into a compliance plan to ensure that future FCC rule violations do not occur. 
  • The Media Bureau and Office of Managing Director issued an Order to Pay or to Show Cause against two FM stations located in Yoakum and Halletsville, Texas proposing to revoke the stations’ licenses unless, within 60 days, the stations pay their delinquent regulatory fees and interest, administrative costs, and penalties, or show that the debts are not owed or should be waived or deferred.  The Yoakum station has an unpaid regulatory fee debt totaling $8,774.02 for fiscal years 2017, 2018, 2019, 2020, 2021, 2022, and 2024.  The Hallettsville station has an unpaid regulatory fee debt totaling $7,912.83 for fiscal years 2017, 2018, 2019, 2021, 2022, and 2024.
  • The Media Bureau released a Public Notice identifying two mutually exclusive applications (applications that cannot all be granted consistent with the FCC’s technical rules) filed in the December 2024 NCE TV filing window.  Unopposed applications were filed for eight other channels available in that window.  The two mutually exclusive applicants have until March 24, 2025 to settle their mutual exclusivity via a technical resolution or settlement agreement. 
  • The Media Bureau took three other actions on pending LPFM and NCE construction permit applications:
    • The Bureau affirmed its grant of an Indiana NCE FM construction permit application over an objection filed by a mutually exclusive applicant alleging that, in the points system analysis used to decide among mutually exclusive applications for new NCE FM stations, the FCC incorrectly denied it diversity of ownership points (a credit awarded when an applicant has interests in no other stations in the proposed station’s service area).  The Bureau found that the objector could not claim the diversity credit (and thus could not be the mutually exclusive application group’s tentative selectee) because it did not provide supporting documents required to support the claim for a preference, and because it had incorrectly certified that no party to its application had any attributable interests in any other broadcast station (when one did).  
    • The Bureau dismissed an Ohio LPFM construction permit application for applicant’s failure to obtain reasonable assurance of the availability of the site specified in the application, a defect not curable by amendment under the procedures governing the processing of applications in the LPFM window.  Due to the application’s dismissal, the Bureau granted its mutually exclusive application.
    • The Bureau also reversed its dismissal of a Texas LPFM construction permit application for failing to comply with the LPFM minimum distance separation requirements for protecting co-channel FM translators.  The Bureau rejected the applicant’s argument that it should accept its alternative spacing methodology, but it gave the applicant 30 days to amend its application to use the methodology prescribed by staff informal guidance. 

On our Broadcast Law Blog, we discussed the National Music Publishers Association’s announcement that it had sent Spotify a take-down notice asking Spotify to remove “thousands of unlicensed uses of NMPA members’ works” from Spotify-hosted podcasts, and how that action highlights the perils of music use in podcasts and reinforces the need for easy, reasonable music licensing.  We also discussed last week’s reintroduction in Congress of the American Music Fairness Act, which proposes requiring broadcasters to pay performing artists and copyright holders (usually their record companies) royalties for over-the-air broadcasting of sound recordings (in addition to the royalties paid to the PROs for the performance of musical compositions).