The Copyright Office yesterday issued a reminder, here, that their electronic system for “designated agents” of Internet service providers – those who are to receive notice of any claimed infringing content posted on a service provider’s site – is active and all services must register in that system by December 31 for such registrations to remain valid. The previous paper filings will no longer be effective as of the end of the year. Having a current and effective registration for the receipt of take-down notices is necessary for a service to claim a safe-harbor under Section 512 of the Digital Millennium Copyright Act against claims of infringing content posted on the service by third parties.

We wrote more extensively about this new system here and here. The new system also imposed obligations on services to periodically renew and update the information that they provide. For any Internet site that hosts content posted by third-parties that could potentially be infringing on the intellectual property rights of others, registration is essential. So if you allow people outside your company to post music, video, pictures, poetry, articles or anything else that could potentially infringe on the intellectual property of others, be sure to register if you have not done so already, or update that registration if it is out of date or not yet in the Copyright Office’s electronic database.

Yesterday, the FCC adopted a Notice of Apparent Liability proposing to fine three individuals $144,344 for operating a pirate radio station in North Miami, Florida.  One individual is alleged to have programed and operated the station while the other two are a husband and wife who owned the property from which the station transmitted. The NAL details the failure of the individuals to cease operations on a permanent basis, even after the operator had been fined for prior operation of an unauthorized radio station, the operator and property owners had received numerous official notices of the illegal activity, and even after repeated visits from government officials notifying the landowners of the illegal operation and once seizing the unauthorized equipment. The FCC also suggests that, on a visit last year, the landowners may have hidden the broadcast equipment when authorities came to their house for an inspection when an unauthorized transmission was detected, the landowners did not answer the knock at their door for about 20 minutes, and when they finally came to the door, the station was no longer operating and the transmitter was gone from the backyard shack that appeared to have housed it. Given the fact that the illegal operation was repeated, and done after prior enforcement actions, the FCC deemed that the parties knew what they were doing was illegal, and thus imposed the maximum fine allowed by the Communications Act for a continuing violation of FCC rules.

This appears to be the highest fine ever issued by the FCC for pirate radio operations, and it may also be the first time that the FCC fined not only the operator of the station but also the landowner from whose property the station operated. We wrote about the FCC’s recent crackdown on pirate radio here. This decision is yet more evidence that the FCC is serious about its primary mission of policing the airwaves to make sure that they are being used as intended. The crackdown is real – pirates beware!

At its meeting yesterday, as promised, the FCC adopted a notice of proposed rulemaking to eliminate the rule that certain classes of FCC licensees maintain a paper copy of the FCC rules. We wrote about the draft NPRM here, which the FCC substantially adopted. Under current rules, licensees of LPTV, TV and FM translator, and TV and FM booster stations (but not full-power stations) are required to maintain paper copies of FCC rules applicable to those services. Doing away with this rule would be the FCC’s first step in its Modernization of Media Regulation initiative. We wrote about FCC Chairman Pai’s promise to move to eliminate a rule each month as part of this initiative. We look forward to seeing what is next.

With no hurricane or other emergency seemingly threatening the United States tomorrow, the FEMA and the FCC announced yesterday that the Nationwide EAS test is being conducted as planned tomorrow, September 27. We wrote about that test here and here. Stations, except those in hurricane-affected areas who have been given more time to file reports on the results of the EAS test at their stations (see the FCC public notice here allowing stations in these areas to file when the ETRS Form 3 is due in November), need to file their ETRS Form 2 reports on the results of the test at their stations by the end of the day, Eastern Time, tomorrow. See the FCC Public Notice about the reporting requirements for the test here.

The week before last, we summarized an FCC draft order to relax rules on proofs of performance for AM stations – lessening the number of monitoring points needed in traditional partial proofs of performance, and relaxing a number of previous-imposed limitations on the use of Method of Moments proofs (see our post here for more details). While this decision, part of the FCC’s AM revitalization efforts, was slated for consideration at the full FCC meeting this week, instead it was adopted on circulation, the final version of the order available here. Most of the new rules will become effective at a later date after approval by the Office of Management and Budget under the Paperwork Reduction Act.

The FCC yesterday released a Public Notice (linked here) announcing that it will open the post-Incentive Auction “second filing window” on Tuesday, October 3, 2017.  In this window, any repacked TV station, including stations that changed from UHF to VHF during the incentive auction and repacked Class A stations, can file an amendment to its initial construction permit application (if still pending), or a modification to its construction permit (if granted) to seek an alternate channel or expanded facilities from those specified in the April 13, 2017 Closing and Channel Reassignment Public Notice.   This follows the first window (about which we wrote here) which allowed certain stations that could not construct on their assigned channels to seek new ones, and it precedes a future window for displaced LPTV and TV translators to seek new channels (see our articles here and here).

This window gives TV stations an opportunity to apply for a greater coverage area if such an upgrade is possible without creating interference to any other station.  The window will close at 11:59 pm EDT on Thursday, November 2, 2017.  Repacked stations should now be consulting with their engineers about their options in order to meet the filing deadline. Continue Reading FCC Announces Second Filing Window for Upgrades and New Channels for Repacked TV Stations – October 3 through November 2

It seems like about this time as we begin to near the end of the year that broadcasters contemplate their future. And it seems like that brings many to contemplate moving from behind the microphone to being in front of it – by running for public office. Perhaps because next year will likely be a very active one with Congressional elections and elections in many states, I have had a number of calls from broadcasters in the last few weeks asking what they should do with the on-air employee who is contemplating making that move by jumping into politics. We have written about this issue many times before, including coverage of when well-known local or national personalities have contemplated runs for office – see our stories here, here and here. In 2010, we wrote an article that provided a discussion of this issue, which remains valid today, and which I edited and reposted in 2016 here. An updated version of that article is below.

Having an on-air employee who runs for political office – whether it is a federal, state or local office – does give rise for equal opportunities for competing candidates whenever that employee’s recognizable voice or picture appears on the air, even if the personality never mentions his or her candidacy on the air, and even if they appear in what is otherwise an exempt program (e.g. a newscaster who runs for office triggers equal time when he delivers the news even though a candidate’s appearance as a subject of that news program would be exempt). Stations need to take precautions to avoid the potential for owing significant amounts of free time to competing candidates, where those candidates can present any political message – if they request it within 7 days of the personality’s appearance on the air. Continue Reading What to Do With the On-Air Employee Who Becomes a Candidate for Elective Office?

The FCC yesterday issued a Public Notice (available here) reminding all TV stations (including Class A TV stations) that are changing channels as a result of the TV incentive auction, including those receiving compensation from auction payments for moving from UHF to VHF channels, that they must file their first quarterly Transition Progress Report no later than October 10, 2017.  The reports should be filed on FCC Form 2100 – Schedule 387, which is now available by logging in to the FCC’s Licensing and Management System (https://enterpriseefiling.fcc.gov/dataentry/login.html).  The Transition Progress Report form just became available in LMS this week.

Additional reports will be due on the 10th of the month following the end of each calendar quarter, with additional reports due closer to the station’s Phase Assignment and after completing the transition.

Last week, the FCC released a draft of an order to simplify the proofing of AM stations. This order will be considered at the FCC’s September 26 meeting. While the proposals to be adopted are part of the AM Revitalization proceeding, even the Commission recognizes that these are not fundamental changes in the way that stations operate, but instead technical changes that can, hopefully, save some AM stations some money. The FCC also noted that it was removing proposals for changes in the AM main studio rules from the AM Revitalization proceeding as these changes are already being considered in the proceeding proposing to entirely eliminate the main studio rules (see our post here).

The rule changes in the proposed order address AM antenna proofs of performance – principally proofs that are conducted after a station has been initially constructed and licensed. The need to re-proof an AM station’s directional pattern typically occurs when additional antennas or other equipment is added to an existing AM tower, or when there are other changes that suggest to the licensee that the AM directional pattern’s values may have changed (e.g. when there is significant construction in the immediate vicinity of the tower). Most of the FCC’s planned changes deal with Method of Moments (“MoM”) modeling used to proof AM stations (see our posts here and here on the FCC’s adoption of the computerized technology used to make proofing of AM antennas easier), though one change dealt with more traditional AM proof of performance techniques.

The rule change affecting traditional proofs deals with how many radials need to be proofed when there are changes in the equipment located on the AM tower or when other changes necessitate an AM partial proof of performance. The FCC’s draft order provides that measurements only need be taken on the radials in an AM pattern that contain a monitoring point. In the current rules, additional radials adjacent to the radials containing monitoring points must be measured when the station has a pattern with fewer than four monitored radials.

For stations using MoM modeling to proof their facilities, the FCC’s draft order would make a number of changes to make the modeling process somewhat simpler. These changes would:

  • Eliminate periodic recertifications of the performance of a directional pattern for stations licensed pursuant to a MoM proof as the technology has proven its reliability and needs less verification. The new rule would require recertification only when equipment has been repaired or replaced;
  • Eliminate the requirement to conduct reference field strength measurements when relicensing a station that was licensed pursuant to a MoM proof;
  • To encourage the co-location of AM stations, eliminate the requirement for a registered surveyor’s certification of the location of towers in an AM array when existing towers in an existing AM antenna array are being used by a new station using MoM modeling;
  • Clarify that the provisions of a certain rule section will only apply when total capacitance used for MoM modeling of base region effects exceeds a particular value and only when a particular type of sampling is used; and
  • Codify the standards under which a new MoM proof of performance is needed when adding or modifying antennas or other system components above the base insulator of a tower in an AM array.

The FCC declined to allow MoM proofing for AM stations with a skirt-fed antenna, finding that the technology has not yet been reliably demonstrated for modeling the patterns of such antennas. Obviously, each of these changes is very technical, so consult your engineer to determine how they may affect your operations.

Finally, the FCC stated that it would no longer be considering any changes to the rules for AM station’s main studios as part of the AM revitalization proceeding. Instead, those changes will be part of the proceeding to abolish the main studio rules entirely. As we wrote here, FCC Chairman Pai stated in his speech at last week’s NAB Radio Show that he had reviewed the record of that proceeding, and was convinced that the main studio rule needed to be abolished. Obviously, the other Commissioners need to weigh in before any change in the rule can be adopted. Some have suggested that the main studio rule may be abolished before the end of the year, so stay tuned to watch for that action.

And watch for the FCC to adopt these proposals on AM improvements at its meeting in two weeks.

In July, we wrote about the effective date of the FCC’s new rules allowing non-CPB noncommercial stations to interrupt their normal programming to raise funds for third-party charitable and non-profit organizations (we wrote here about the decision itself), for up to 1% of their total airtime. In July, we noted that the new rules on the recordkeeping requirements about these fundraising efforts had not yet gone into effect, as they needed to be approved by the Office of Management and Budget under the Paperwork Reduction Act. Yesterday’s Federal Register announced that this approval has been received, and the paperwork rules will go into effect on November 13.

The new rules require on-air disclosures at the beginning and end of any fundraising appeal where the station tells its audience that the money is going to a third-party, not to the station. That announcement must be made at least hourly for longer fund-raising appeals. In addition, the station must maintain in its public file the following information:

  • the date, time, and duration of the fundraiser;
  • the type of fundraising activity;
  • the name of the non-profit organization benefitted by the fundraiser;
  • a brief description of the specific cause or project, if any, supported by the fundraiser; and
  • to the extent that the station participated in tallying or receiving any funds for the non-profit group, an approximation of the total funds raised