The FCC yesterday announced a consent decree with TEGNA, the licensee of a television station in Jacksonville, Florida, which used simulated EAS tones in a promotional announcement for the Jacksonville Jaguars football team. According to the consent decree, the station ran the announcement only 4 times. It was apparently produced by the team and inserted into the station’s master control without review. It was only after the fourth airing that a management employee noted the ad, and had it pulled from the air. Even though run only 4 times, the ad nevertheless was determined to warrant the $55,000 penalty agreed to in the consent decree, and a three-year long mandatory compliance plan that applies company wide, not just to the station with the violations that were reported to the FCC. The compliance plan includes the appointment of a compliance officer, the development of a written compliance plan, and a mandatory training program for employees involved in the airing of announcements such as the one that caused the issue here. In addition, the licensee must file regular reports with the FCC over a three year period certifying that the compliance plan has been met and reporting any issues that may arise.

This ad also contained an introduction that stated: “This is an emergency broadcast transmission. This is not a test. This is an emergency broadcast transmission. This is not a test. Please remain calm. Seek shelter.” While not specifically highlighted by the FCC as being the basis of any increase in the amount of the assessed penalty, these statements were highlighted in the FCC’s News Release about this consent decree, which may indicate concerns that such statements made the ad even more confusing to TV viewers. Viewers may not have realized that the EAS tones themselves were only simulated and not actual EAS tones that trigger alerts on other broadcast stations that may have been monitoring this TV station. The FCC has repeatedly penalized stations for airing EAS tones, real or simulated, in non-emergency situations (see our posts here, here, here, here, and here about other cases where even larger fines have been imposed on broadcasters and cable programmers for improperly using EAS tones). The fear is that these tones will desensitize viewers so that, when there is a real emergency, they will not react. This decision should act as a reminder to broadcasters – don’t use EAS tones or language except where there is a real emergency.

June brings some of the normal regulatory deadlines for stations in certain states. EEO Public Inspection File Reports need to be placed in the public file (or uploaded to the FCC-hosted public file for TV and large-market radio stations) by Full-Power and Class A Television Stations and AM and FM Radio Stations in Arizona, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, Wyoming, and the District of Columbia that are part of an Employment Unit with 5 or more full-time employees. EEO Mid-Term Reports for Radio Station Employment Units must be filed by radio station employment units with 11 or more full-time employees located in Arizona, Idaho, Nevada, New Mexico, Utah, and Wyoming and Television Employment Units with five or more full-time employees in Michigan and Ohio.

There are few broadcast proceedings with comment dates in June. As we wrote here, the FCC has proposed to amend its regulatory fees for broadcasters, in particular changing the allocations of the amount owed by the radio industry to allocate a greater burden to big stations in big markets, and less to smaller stations in small markets. Initial comments are due on June 22, with replies due on July 7. Continue Reading June Regulatory Dates for Broadcasters – Comments on Reg Fees, ATSC 3.0 and Routine EEO Filings Highlight the Month

I was recently interviewed by Steve Goldstein of Amplifi Media, a firm that consults for podcast companies, on the difficulties with the use of music in podcasts. That interview has been turned into an article on Steve’s blog, here, discussing these legal issues. That article discusses the same issues that we’ve written about here several times, reminding readers that the standard music licenses that they get for the public performance of music on their radio stations or webcast channels don’t cover podcasts (see, for instance, our articles here and here). ASCAP, BMI, SESAC cover the public performance of musical compositions, while SoundExchange covers the public performance of sound recordings by noninteractive digital music services.

Podcasts, however, are not considered public performances. By their very nature, podcasts are meant to be downloaded, which implicates other rights under copyright law. These additional rights include the rights to make reproductions and distributions of the compositions and sound recordings, and to synchronize them with the words and other content of the podcast. To get these additional rights, music users typically are required to get permission from the artists and composers (or their record labels and publishers). This article should serve as yet another reminder to broadcasters that making their content available on-demand, where that content features recorded music, usually can’t be done under their standard music license agreements. Check out Steve’s article, and the other articles on this blog, for more information about this reminder.

When press reports first started to emerge that the FCC was investigating for possible indecency violations a Stephen Colbert bit from his Late Show television program suggesting that the President had engaged in certain sex acts with the Russian President, we wrote that the controversy was much ado about nothing (see our article here). We suggested that the rumors of the FCC “investigation” was simply the FCC doing what it has to do to process any complaint – just looking to see if there were any grounds to indicate that the programming in question filed violated any FCC rules. Given that the actual language used by Mr. Colbert was “bleeped” out of his show, that the show run during the FCC safe-harbor (10 PM – 6 AM) during which indecent content can be run, and as the political nature of the comment (and the way in which it was presented) made it unlikely to be seen as obscene, we did not see that the FCC could take any action in this case. According to press reports, the FCC has concluded the same thing and terminated their review of this case. This does not mean that the FCC will not take action against a broadcaster who runs indecent content if an appropriate case for action is presented (like the $325,000 fine imposed on a TV station for graphic sexual images in a 6 PM newscast, see our story here). It just means that the Colbert case simply did not present that appropriate case for FCC action.

Each year, the FCC is required by Congress to collect regulatory fees to cover the costs of its operations. All entities regulated by the FCC contribute to the amount necessary to cover the FCC’s costs – fees being allocated by the proportion of the total number of FCC employees needed to regulate a particular service. Before requiring the payment of the fees (which is usually done in September, just before the October 1 start of a new fiscal year for the government), the FCC must ask for comments on its proposed allocation of the fees among all those that it regulates. That notice (here), asking for comments on a few proposed changes, including a few changes for broadcasters, was released yesterday. Comments are due June 22 and replies on July 7.

The changes proposed for broadcasters include a reallocation of the fees imposed on stations in top markets. Last year, the FCC imposed, for both radio and TV stations in the biggest markets, higher fees through a new category of fees for stations in the very largest markets. By charging higher fees to larger stations in larger markets, the FCC believed that it could offer regulatory relief through lower fees on those least able to pay – the smaller stations in smaller markets. The FCC now proposes to further adjust the fee burden, allocating even more to stations that serve the largest populations. In yesterday’s order, the FCC offers two tables of potential fees for radio stations. Those tables are set out below. In the first, the FCC sets out proposed fees with this new allocation of the regulatory fee burden. In the second, they allocate the fees due from radio this year, using the same proportions as used last year. They ask for comments as to which better serves the public interest. Continue Reading FCC Proposes Regulatory Fees to Be Paid Later This Year – Questions about Allocation of Radio Fees, TV Satellite Stations, and Small Entity Exceptions

As expected, at its monthly open meeting yesterday, the FCC started two proceedings of particular importance to broadcasters. The first looks at the abolition of the main studio rules. The second asks for comments on all of the other rules affecting broadcasters and other media companies to see which are ripe for appeal. For the most part, the proposals as adopted mirrored the draft orders released for public review back at the end of April, which we summarized here.

The proposal to review all media rules – referred to as the Modernization of Media Regulation – will look at all media-related FCC rules with the idea of eliminating or modifying those that no longer make sense in the modern media environment. Only the multiple ownership rules, already under review in separate proceedings (see our posts here, here and here) are excluded from this review. Comment dates for proposals to change specific rules are due by July 5, with replies due August 4. The two Republican commissioners supported this proposal. Commissioner Clyburn, the FCC’s lone Democrat, dissented from the adoption of the Public Notice launching the inquiry, not necessarily because she is opposed to review of existing rules, but because she felt that the notice presupposes that the public interest can only be achieved by abolishing rules that limit industry operations. She suggests that many FCC rules remain important – including EEO rules, Biennial Ownership Reports, and certain rules governing access to cable programming. The Republican commissioners, on the other hand, point to the efficiencies that can be gained by abolishing rules that no longer make sense, or which require filings that serve no particular purpose (see Commissioner O’Rielly’s statement here). No doubt, these differing perceptions of the rules will be reflected in comments filed by various parties in this proceeding. Continue Reading FCC Officially Starts Proceedings to Abolish Main Studio Rule and Review All Other Broadcast Rules

This week SoundExchange, the non-profit rights organization that collects the royalties paid by digital music companies for the public performance in the United States of sound recordings, announced that it had acquired CMRRA (the Canadian Musical Reproduction Rights Agency, Ltd). CMRRA licenses the reproduction rights to musical works in Canada. As we have written before, musical works or musical compositions are the lyrics and music for a song, while the sound recording is the actual recording of that song by a singer, band or other performer. We have also written before about the difference between the public performance right and the right to make reproductions of songs (including “mechanical rights”), rights that arise in different contexts and usually require a different type of license before a music service can use a song in its business. Why would a company that licenses the public performances of sound recordings in the US acquire a company that licenses reproduction rights in Canada?

SoundExchange’s public notice talks about its ability to “integrate and streamline the administration and distribution of sound recording and music publishing royalties.” And it also highlights that the deal will allow it to “offer a broad and comprehensive range of services to rights holders in both sound recordings and music publishing and music users alike across North America.” While SoundExchange suggests that it is the first company to offer a comprehensive range of services in licensing both sound recordings and musical works in North America, this deal instead seems to be part of a trend where rights collectives are merging to offer such comprehensive services in licensing both public performance rights and the rights to make reproductions, for both sound recordings and musical works. Continue Reading SoundExchange Acquires CMRRA – What Does it Mean for Music Licensing?

The FCC last week released a Public Notice describing the process for the filing of applications for replacement channels for LPTV stations and TV translators that are displaced by the incentive auction.  As the repacking of the TV band following the incentive auction will require LPTV and TV translator stations now operating on channels above 37 to move to a new channel below that channel, and as others will be displaced by full-power stations being moved from high channels to channels below 37 (or simply being rearranged on their channels to make room for some of the stations being repacked into the smaller TV band), this displacement window will be necessary for these LPTV/TV translator stations to continue to operate. The Public Notice sets out that the FCC will open a displacement window after full-power stations that were repacked as a result of the incentive auction have had their own windows when they can request alternative channels or increased facilities, as set out in the FCC’s auction Closing Notice (see that notice here).  The FCC estimates that the LPTV/TV Translator window will likely be announced 7 or 8 months after last month’s Closing Notice in the auction – meaning that it is likely to be announced at the end of this year.  As the announcement of the window will give LPTV and translator stations 60 days to prepare applications, and the window itself will last 30 days, it looks like we are looking at displacement applications being due late in the first quarter of 2018.

In addition to displaced LPTV stations and displaced TV translators, full-power TV stations that lost coverage areas because of the repacking will be able to file in this displacement window for a new class of translators.  In fact, these new translators will receive a preference over displacement applications for LPTV stations and TV translators if both happen to file for the same channel.  The FCC will, however, provide mutually exclusive applicants filed during the window an opportunity to move to a different channel to resolve any conflict. Continue Reading FCC Details Window for LPTV Stations and TV Translators Displaced by the Incentive Auction to Seek New Channels

The Copyright Office last year announced changes to its system for registering designated agents for receiving take-down notices that are sent by copyright owners when they believe that user-generated content posted on a website is infringing on the copyright owner’s content (see our article here). The new system makes these registrations electronic, and requires all services seeking protection under Section 512 of the Copyright Act (the “safe harbor” for user-generated content) to register in the new system by December 31, 2017. Last week, the Copyright Office announced certain minor changes to the information required of the companies registering their designated agents in this new system (see Federal Register notice here).

The new changes make it easier for smaller companies to register in the new system. Initially, the system had required a user to establish an account with the Copyright Office before registering the designated agent. That account registration, while not public, did require the submission of information including the physical address of a contact person, and a secondary contact person for the company. Recognizing that many small website owners who might register for the sale harbor (e.g. a blogger running his or her own blog) might not have a secondary contact person for their website operations, the Copyright Office made the secondary contact optional. The office also eliminated the need to register a title for the contact person and the physical address for that person. Presumably, that address is no longer necessary as most contacts would be done through email or by phone – data fields that are still required. Why register in this system? Continue Reading Copyright Office Makes Changes to Registration of Designated Agents for Take-Down Notices for User Generated Content – Reminder of December 1 Deadline to Register in New Electronic System

In the Federal Register last week was a notice that SoundExchange intends to audit the royalty payments of Pandora for its Internet radio service. As we wrote at the beginning of the year, SoundExchange routinely decides to audit representative companies in various segments of the digital music industry. In January, for instance, they issued notices of audits for a number of broadcasters, pure webcasters, and other digital music services (see our post here about the audit notices released in January). These audit notices are usually released at the beginning of the year though, from time to time, we’ve seen SoundExchange decide later in the year to audit a particular service (see our article here).

What is involved in an audit? We wrote about the royalty audit process here. SoundExchange issues notice of an audit, and that notice must be published in the Federal Register. SoundExchange selects an auditor who, under the rules of the Copyright Royalty Board, must be a CPA. The auditor reviews the books and records of the service and issues a report, to which the service can respond. Neither the audit report nor the response are filed with the government or otherwise made public. The results of the audit are provided to SoundExchange for any appropriate action they may take. Under the audit rules, if a service has underpaid SoundExchange by more than 10%, in addition to any late fees it owes, it also has to pick up the cost of the audit. This audit notice reminds all digital music services to accurately measure their audiences and properly report to SoundExchange, as it is always possible that their royalty payments can be reviewed. As this notice makes clear, just because they were not targeted in January does not mean that they will not be reviewed at some other point during the year. Continue Reading Copyright Royalty Board Announces Additional Webcaster Audit by SoundExchange – Reminder to Carefully Maintain Your Royalty Records as They Can be Reviewed at Any Time