The FCC yesterday issued a Public Notice reminding all TV broadcasters (full-power, LPTV, translator and Class A stations, both commercial and noncommercial, if they have digital operations) that they must, by December 1, file a report as to whether or not they provide ancillary and supplementary services through their broadcast spectrum. If they do provide such services, they must pay a fee of 5% of gross revenues received by the TV station for such services. Ancillary and supplemental services do not include non-subscription video channels delivered directly to the public, but would include any other services proved over the station’s spectrum from which the station receives compensation, including “computer software distribution, data transmissions, teletext, interactive materials, aural messages, paging services, or audio signals, [and] subscription video.” All stations must file the report – even if they don’t receive any such revenue (as they must state that fact on the report).

The Public Notice also noted that the report needs to be filed on FCC Form 2100 Schedule G, using the FCC’s new “Licensing and Management System” electronic filing system (LMS). This previously had been filed on FCC Form 317. Stations that owe a fee must also submit a Form 159. Filing details are in the notice. Don’t forget the filing and the fee if required – as the FCC warns appropriate sanctions will be taken against stations that don’t file or file late.

The protection of brands, slogans, positioning statements and program titles must be a high priority of any electronic media company. These assets establish the identity of any broadcaster, webcaster or other media company.  Media companies need to protect these assets through the rights accorded by trademark law.  We have been running a series of articles on trademark law – including our five part series on the Basics of Trademarks (Part 5, which links to the other 4, is here). Next Tuesday, at 1 PM Eastern Time, Kelly Donohue and Mitch Stabbe of our trademark group are presenting a free webinar to further explain the importance of protecting all of your branding materials, and the legal issues that need to be considered by any company in looking to promote and protect these important identifiers of your products and services. You can sign up for this webinar by clicking here. This link will lead you to the sign-up page and provide further information about the webinar.

I’ve seen many broadcasters spend much time and money to develop some new positioning statement or on-air slogan, only to find out that some other company already has a trademark on the brand that they developed, effectively rendering all of their time and money wasted. Even program titles and DJ air names can be protected by trademark law. In fact, some companies produce significant revenue licensing their protected marks to others, and others protect station identities through trademark law. While state employment laws may limit noncompete agreements, the impact of the departure of a station DJ may be minimized if the station owns the name that the DJ has used on the air. Clearly, it is important that your company understand both how to protect and exploit its trademarks and its other promotional and branding assets. So join us for this important webinar next Tuesday.

Early this week, in some of the legal journals that circulate in Washington, there was much speculation as to potential appointees to various government positions after the election. For positions such as the chairman of the FCC, many of these publications listed familiar DC names as likely appointees if, as expected by most pundits, Hillary Clinton was elected president. On the Trump side of the leger, speculation was much vaguer, as few had any real insight into how his administration would implement the broad but, in many cases, imprecise policies that Mr. Trump expounded during the election. Given the results of last night, those speculations are sure to ramp up as everyone tries to guess what will happen with broadcast policy in a Trump administration.

At this point, we can only speculate as to what that election will mean for broadcast policy – particularly at the FCC. One would certainly expect a lessening of the regulatory burden on broadcasters – as lessening burdensome regulations on businesses was a clear plank of the Trump agenda. The make-up of the FCC will likely facilitate such changes, as Republicans will no longer be in the minority at the FCC. A third Republican will join Commissioners Pai and O’Rielly on the FCC. These two Republicans dissented on many issues of importance to broadcasters – including the recently concluded Quadrennial Review of the Ownership Rules. Thus, a third Republican vote could have changed the decisions on many issues. Continue Reading Looking at the Last Night’s Election Results and the Future of Washington Policy For Broadcasters

With Election Day finally upon us, we wait in anticipation (and with a fair amount of nail biting) as the fate of our country is decided. But that doesn’t mean there isn’t room for some trademark fun, looking at how law and trademarks can collide. But first, a reminder — don’t forget to dial into our upcoming Trademark Basics webinar, Tuesday, November 15th at 1pm Eastern Time for a live overview of the many issues we have discussed in the last few weeks. Register here today!

And now, back to the law. Even seasoned politicians can get into trademark trouble when crafting their campaign branding strategies. We’ve summarized three somewhat amusing cases below as an Election Day stress reliever!

  • One Quacky Dispute. Tim Hagan, a former candidate for the for governor of Ohio, ran a campaign against incumbent Governor Robert Taft riffing off of the famed “AFLAC DUCK” commercials, in which a white duck repeatedly quacks the AFLAC insurance company’s name in a distinctive, nasal tone. Hagan’s internet commercials included a crudely animated character made up of Governor Taft’s head sitting on the body of a white cartoon duck, with the duck quacking “TaftQuack” several times during each commercial. Hagan broadcast these commercials on his website, www.taftquack.com. The insurance company thought it was no quacking matter and filed a lawsuit in an Ohio district court. The court ultimately determined that the use of this character or the AFLAC marks did not constitute trademark infringement because the ads constituted core political speech warranting First Amendment protection.

Continue Reading Trademark Tuesday, Election Day Special – Trademark Tales from the Campaign Trail

At the end of last week, the press reported on the jury verdict finding Rolling Stone magazine to be liable for defamation for its story, later retracted, about a gang rape at the University of Virginia. The case was brought by a University administrator who was portrayed negatively, including making her sound as if she had been indifferent or dismissive of the alleged rape, which evidence later showed to be untrue. Even though the court deemed the administrator to be a “public figure,” the jury nevertheless found that there was sufficient “malice” on the part of Rolling Stone to merit the finding of liability. While this decision may well be appealed, it nevertheless is a finding of which broadcasters and other media companies need to take note, as it demonstrates that a sloppy review of the facts of a news report can lead to liability – even when reporting on public figures and important issues of wide public concern.

Under the NY Times v Sullivan Supreme Court precedent, the decision in defamation cases quite often depends on the determination of whether the person who was allegedly defamed is a public figure. The thinking of the Supreme Court in adopting the distinction between public figures and private individuals is that the public has more interest in vetting public figures, and by becoming a public figure, individuals expect that their conduct will be under scrutiny. To adopt a strict liability standard for public figures would mean that, if any mistake is made in reporting on their actions, a press outlet could find itself facing defamation liability, even if that mistake was made in good faith after reasonable reporting had been done. To avoid this strict liability, the Supreme Court decided that, if the victim is a public figure, to find liability, the jury must find not only that the statement made by the defendant was false, but also that it was made with “malice.” What does that mean? Continue Reading What Broadcasters Can Learn from the Rolling Stone Defamation Case

Earlier this year, the FCC decided not to adopt a proposal that would have required at least one broadcast station in each community to provide emergency alerts to local listeners who do not speak English. The FCC decision deciding to not mandate multilingual EAS alerts is here, and our article on the initial proposal is here. Many issues were raised as to how any mandate could be implemented as emergency alerts, by their very nature, are usually unplanned. How can a station plan a way to translate messages into different languages for an eventuality that would rarely if ever occur? How would stations within a market share such responsibilities? In how many different languages would messages need to be transmitted? Instead of adopting any mandate, the FCC instead required that State Emergency Communications Committees (SECCs) gather information about whether stations already provide multilingual alerts and any plans that they have for providing such information in the future, along with information about the demographics in their state of groups needing emergency information in languages other than English. The FCC’s requirement was published in the Federal Register this week, giving SECCs a year, until November 3, 2017, to gather this information.

After gathering the data from participants, SECCs have until May 3, 2018 to integrate this information into their state EAS plans and file those plans with the FCC. Beyond these requirements, the FCC is not requiring any specific obligations to provide multilingual EAS alert content.  EAS participants may conclude that no specific actions are warranted or feasible in their area for any number of reasons.  On the other hand, the FCC states that the mere process of examining this issue in coordination with state and local emergency authorities may lead to implementation of mechanisms that would expand access to EAS alert content. Note also that the FCC itself could later revisit the issue. In particular, there is an appeal pending at the US Court of Appeals asking that the Commission be forced to reverse its decision not to impose specific obligations on stations to provide multilingual EAS alerts. So be prepared for the inquiries from your SECC, and watch for more developments in this area.

Section 512 of the Copyright Act provides a safe harbor for Internet service providers whose systems are used to transmit content created by third parties which infringes on copyrights.  The provisions apply not only to common-carrier like services that merely transmit third-party content, but also to websites and other digital services that allow users to post material onto the service provider’s own sites – services like YouTube or Facebook whose very businesses are built on the ability of individuals to posting material on their sites.  We’ve written about the safe harbor recently (see our articles here and here).  The safe harbor requires, among other things, that the service provider not encourage the posting of infringing content on the site, but also that it take-down infringing material found on the site, and that it provide a “Designated Agent” for service of “take-down notices” – requests from copyright holders that infringing material be taken down from the site.  That agent must be identified both on the website of the service and registered with the Copyright Office.  The Copyright Office today announced rules for a new electronic system for registering such Agents.

We wrote about the Copyright Office’s proposal advanced 5 years ago for the new system, and it appears that it has now become a reality.  Currently, service providers register a Designated Agent on a paper form filed with the Copyright Office, which the Copyright Office scans as a PDF file that is uploaded, individually, onto the Copyright Office’s website.  Many felt that this system was clumsy and did not provide the information necessary for the take-down system to work efficiently, as it was difficult to search and was often full of outdated information.  The new electronic system adopted by the Copyright Office and effective on December 1, is expected to remedy many of these complaints. Continue Reading Copyright Office Announces Rules for New Electronic Filing System for Service Provider’s Designated Agents for Take-Down Notices Under Section 512 Safe Harbor for User-Generated Content

November is one of those few months where there is a very light load of routine regulatory filings for broadcasters.  This is a month with no routine FCC ownership or children’s television reports.  There are no routine EEO reports for the public file, and no other FCC regularly-scheduled deadlines.

Of course, there are several other dates that broadcasters need to be aware of.  October 31 is the end of the FM translator window to move translators up to 250 miles to serve AM stations – so November 1 will likely bring lessened demand for any translator that did not find a new AM home during the window that has been open to various groups of AM stations since January. Those looking for translators to operate with FM stations may find opportunities now less expensive, but harder to move, so opportunities will be limited to stations near to areas where the translators already are located.

Once the FCC’s Broadcast Incentive Auction for television has concluded, the FCC will announce two windows for new FM translators.  These windows (the first for Class C and D AM stations only, and the second for Class A and B AM stations) will only be open to AM licensees that did not participate in the 2016 windows.  See our article here for more information.  Continue Reading November Regulatory Dates For Broadcasters – Incentive Auction, EAS, Political and More

Last week, we wrote an article which received much attention, addressing the legal issues that could come up if contests are not conducted properly. One issue that we did not anticipate was reflected in an FCC order released yesterday, designating for hearing the license renewal of the Entercom Sacramento radio station that was involved in the “Hold Your Wee For Wii” contest that led to the death of a contestant. “Designation for hearing” means that an FCC Judge will essentially conduct a trial to determine if the contest reflected so badly on the licensee that the station’s license renewal should be denied. The FCC’s order (available here) goes into great detail reciting the specific conduct that it found to be offensive – essentially setting out the case for the prosecution for the upcoming trial before the administrative law judge. It is worth reading.

This appears to be a unique case where the FCC has turned a case of negligence – usually resolved through a lawsuit in civil courts – into a violation of the general obligation of a station to operate in the public interest. There is sure to be much more to the story as the proceeding continues. But, as we warned last week, be sure to conduct your contests carefully, as this proceeding, no matter how it is decided, shows that there can be unexpected consequences from unanticipated events that occur during the course of a contest.

We’re down to the last week and a half before the election, but broadcasters can’t let up quite yet, as the last week is almost always the busiest for political advertising. Candidates, PACs and other groups try to get the last word before the voters go to the polls. Here are three issues that broadcasters should be considering in these last days before the election:

  1. Weekend Access. The FCC has said that if a station has, in the year prior to the election, made its employees available to a commercial advertiser for new orders or changes in copy, they need to make employees available for those activities to political candidates. Even if the station completely shuts down on the weekend, and no salesman ever signs a deal with an advertiser during a Saturday golf outing and no weekend employee ever agrees to change the copy on a big advertiser’s spots, the station may still need to make employees available during the last weekend before the election to allow candidates to exercise equal opportunity rights, which brings us to number 2.
  2. Practice Inventory Management. In these last days before the election, there will many demands on the commercial inventory of many stations, and stations will need to be careful in managing that inventory. Remember, all candidates have the right to buy equal time to the time bought by opposing candidates in the last 7 days. While candidates cannot sit on their equal opportunity rights until the last minute, equal opportunity buys placed in the first part of next week probably need to be accepted. Plus, you may be getting demands from candidates for new time, and requests from PACs and other political advertisers, so be sure that you have practiced wise inventory management so that there is room for all of the spots that you are obligated to run. Be particularly careful about selling a new schedule this coming week to a candidate, as the opposing candidate will need to be able to get his or her equal opportunities before Election Day – even if it means signing contracts and adding spots to the traffic system over the weekend – even if you have never in the last year been open on the weekend for a commercial advertiser.
  3. Be Prepared for Take-Down Demands. In the last days before the election, the ads are no doubt going to get nasty, and some may trigger take-down notices from candidates who are being attacked in the ads. Remember, if the attack ad is run by a candidate’s authorized campaign committee, you can’t censor the ad based on its content. That means you are legally forbidden to pull the ad even if it lies about the opponent. But ads bought by PACs and other non-candidate groups can be refused based on their content. So you need to carefully evaluate the claims made by the party demanding that the spot be pulled, as if the claims made in the spot are in fact false and defamatory, the station could have liability for continuing to run the non-candidate attack ads after receiving notice demanding that they be taken down. We wrote more about this subject here.

Soon it will all be over, and your station will be back to simply dealing with its normal commercial advertisers. But for the next 10 days, be prepared for the onslaught of political issues, and have your communications lawyer’s phone number on speed dial!