With the approach of Hurricane Matthew to the coast of the southeast United States, emergency communications is a high priority for all media outlets. Emergency communications have also been a hot issue at the FCC – with 3 notices in the last week dealing with this important subject. One notice was to provide emergency contact information at the FCC which will be available 24 hours a day during the Hurricane for any assistance that the agency can provide. A second notice was a reminder of how broadcasters (particularly television broadcasters) need to make emergency information accessible. Information that is provided through spoken word must also be made available visually to the hearing impaired, and information that is presented visually must be provided aurally to those who are blind. The third notice asks for comments on the possible extension of time for the waiver of the obligation that TV broadcasters convert certain emergency information presented visually on-screen into audio on a SAP channel for those that are blind or otherwise visually impaired.

The 24-hour hotline (FCC information here) is a service that the FCC instituted many years ago during similar emergencies to help any licensed communications service to the extent possible. In some cases, the response may simply be an immediate response to a request for a temporary authorization to maintain service during the emergency. During Hurricane Katrina, I was asked by a client to talk to people manning the FCC’s emergency number about helping get a fuel truck bringing gasoline to power auxiliary generators at broadcast stations past FEMA roadblocks keeping traffic out of the worst-hit area. I don’t know if the call to the FCC did it, but the truck did get the authorization to enter the restricted area and the station was able to keep operating. So use this number if needed during the emergency. Continue Reading Emergency Communications Updates: FCC Hotline for Hurricane Matthew, Reminder on Accessibility of Emergency Warnings, and Possible Extension for Audio Conversion of Certain Visual Emergency Information

Another month has started – and it is one with regulatory dates for broadcasters. All broadcasters, commercial and noncommercial, have an obligation to complete their Quarterly Issues Programs lists and place them into their public inspection filed by October 10. For TV stations and large-market commercial radio, that means that these lists need to be in the online public file by that date (see our article here about the online public file for radio). For TV stations, the 10th also brings the obligation to submit Quarterly Children’s Television Reports on Form 398 to the FCC (as the 10th falls on a Federal holiday, you may be able to file on the 11th, but consult your legal advisor for details on that deadline).

For stations in Alaska, Florida, Hawaii, Iowa, Missouri, Oregon, Washington, American Samoa, Guam, the Mariana Islands, Puerto Rico, Saipan, and the Virgin Islands that are part of employment units with 5 or more full-time employees (30 hours a week or more), EEO public inspection file reports should have been included in their public inspection file by October 1. For Radio Station Employment Units with 11 or more full-time employees in Iowa and Missouri and Television Employment Units with five or more full-time employees in Florida, Puerto Rico, and the Virgin Islands, Mid-Term EEO Reports on FCC Form 397 should also have been filed at the FCC by October 1. See our article here on the obligation to submit Mid-Term EEO Reports. Continue Reading October Regulatory Dates for Broadcasters – Quarterly Issues Programs Lists and Children’s Television Reports, EEO Obligations, Noncommercial Biennial Ownership Reports, and Incentive Auction Comment Deadlines

In last week’s Part Two of our series on Trademark Basics, we discussed the benefits of conducting a clearance search to try to ensure that the mark you are considering adopting doesn’t infringe on the rights of anyone else. Say the results of your clearance search have come back clean and, according to your trusted legal advisor, you should be able to use your trademark without worrying about being slapped with a demand letter. Why not just use your mark and save yourself the time and money it takes to obtain a federal registration?

Quite simply, federal registration gives you many valuable benefits at an extremely low cost (the filing fee for a trademark application can be as low as $225), and it is the most cost effective way to protect your brand. Here are the top nine reasons you should take the next step and file a trademark application with the Patent and Trademark Office (PTO), along with a quick overview of the registration process. For those of you that have been following our five part series on Trademark Basics, we will divulge the 10th reason for seeking federal registration in our upcoming trademark webinar, the date for which we will be announcing soon. Continue Reading Trademark Basics, Part Three: Nine Benefits of Federally Registering Your Trademarks (and How to Register)

At the FCC’s open meeting last week, the Commission adopted new policies for assessing and computing foreign ownership of broadcast companies – particularly such ownership in public companies. The Commission’s Report and Order on this matter is dense reading, dealing with how companies assess compliance with the rules which limit foreign ownership to 20% of a broadcast licensee and 25% of a holding company unless there is a finding by the FCC that the public interest is not harmed by a greater foreign ownership interest. The rules adopted last week were principally an outgrowth of the petition for declaratory ruling filed by Pandora which sought FCC approval, in connection with its acquisition of a radio station, for foreign ownership of greater than 25%. Pandora did not file such a petition because its foreign ownership exceeded that percentage, but instead because, based on the FCC methodology in use at the time, Pandora could not prove that it was in compliance (see our summary of the Pandora petition here). The new rules adopted last week essentially reverse the presumption to which Pandora had to comply – rather than assuming that there was a compliance issue because a company cannot prove that its foreign ownership was less than 25%, the FCC will now conclude that there is an issue only where a company, based on knowledge either that it has or should have, actually knows that there it has a foreign ownership compliance problem.

The order requires that public companies regularly take steps to assess their owners to determine if there are potential foreign ownership issues. A public company should know who certain shareholders are, either because they are insiders (e.g. officers and directors) or because they are otherwise known to the company (e.g. through proxy fights, shareholder lawsuits or because they are in some way doing business with the company). Other shareholders can be determined through an array of filings made at the SEC – including filings made when a shareholder exceeds holdings of 5% of the stock of a company, and other filings made by companies that manage more than $100 million in assets who are required to report on their stockholdings. In addition, there are other public sources of information about funds and other investment companies that buy the stock of broadcast companies, from prospectuses to Internet news stories. Public broadcast companies need to monitor all of these sources of information to see whether they potentially have a problem with foreign ownership. The FCC did not require that these companies take other measures that had been used in the past or suggested in the Notice of Proposed Rulemaking in this proceeding (about which we wrote here). Continue Reading FCC Updates Foreign Ownership Compliance Policies for Broadcast Companies

Bars and Restaurants, to make their businesses more attractive to customers, often feature music or video, often broadcast radio or TV.  We wrote about the issues for businesses that play the radio on their premises here.  This week, Landslide, the magazine of the American Bar Association’s Intellectual Property Division, published an article that I wrote with Rachel Wolkowitz of our law firm, further exploring the rights issues – both for audio and video.  The article, “Don’t Ruin a Perfect Evening: Get the Appropriate Licenses for Radio and TV in Restaurants and Bars,” is available here.  So, if you are operating a business venture that wants to use audio or video to entertain its customers, take a look at this article for some of the issues that you should be considering.

In last week’s article beginning this series on Trademark Basics, we gave an overview of trademark basics and discussed why building up a strong trademark portfolio should be an important part of any media company’s overall business strategy.  This week, we will discuss why identifying marks that you may use must be a key feature of your branding strategy.  The reason is simple – you don’t want to invest thousands of dollars in a mark – building websites and social media campaigns around it, promoting it on air, creating bumper stickers, calendars, t-shirts, and other swag – only to get slapped with a demand letter from someone claiming that it owns the rights to that mark.  That user can potentially force you to cease using the mark on air and online, destroy all physical materials that use the mark, and pay damages for your infringing use of the mark.  This development could blow a station’s marketing budget in the blink of an eye.  Thankfully, this scenario is avoidable by doing some advance sleuthing before committing to a mark.  So, what steps can you take to stay out of legal hot water?

There is a common misconception that, once you register a trademark at the federal level, you are “protected” against any claims of infringement.  As a result, many companies skip the sleuthing and simply file a federal trademark application when they adopt a new mark.  This is a very dangerous practice that could potentially cost you in the end because the application might be rejected by the Trademark Office or opposed by someone with prior rights in the mark.  Indeed, even if a mark is federally registered, someone with prior rights has five years in which to challenge your use or registration of the mark.  In order to minimize these possibilities, it is critical that, before you settle on a new mark, you conduct a trademark search.  Running a search will allow you to see what, if any, other parties may have rights in marks identical or similar to your proposed mark.  What does this entail, exactly? Continue Reading Trademark Basics, Part Two:  How Trademark Searches Can Keep You Out Of Legal Hot Water

At last week’s Radio Show, Commissioner Pai presented remarks, talking about the pending regulatory ideas that can help radio broadcasters. After discussing the benefits of the recent rule changes that have made translators available for AM stations, and other AM improvement proposals that are on the table, he turned to FM. In his discussion of FM, he applauded efforts to include an activated FM chip in mobile phones. Then, he turned to a proposal first put out for FCC comments two years ago – the idea that the FCC look at the potential of the creation of a new class of FM stations – the Class C4 FM radio station.

A Class C4 station would fit between Class A FM stations (limited to 6 kw ERP at 100 meters antenna height above average terrain) and a Class C3 (25 kw at 100 meters). The Class C4 station would be authorized with a power of up to 12 kw ERP. According to the Commissioner’s speech, this would allow for Class A stations to upgrade their facilities to better serve their communities. We wrote about this proposal when it was first released (here), presenting more details about the technical facilities that are involved in this proposal. While some broadcasters did initially support the proposal, others were less enthusiastic about the idea. Why are there issues with this proposal? Continue Reading Commissioner Pai Proposes Looking at Class C4 FM Stations – Good for Broadcasters?

Tomorrow, September 27, is the deadline for commercial broadcasters to submit their annual regulatory fees. We wrote about those fees and this deadline here and here. Don’t forget to get them in by the deadline, as the failure to file on time will result in processing holds on any subsequent application that your station may file, plus penalties and a possible collection action from the FCC.

Also this week is the second Nationwide EAS Test, to be conducted Wednesday, September 28. Stations should have already signed up in the FCC’s ETRS system so as to be able to report on the success or failure of this test (see our post here) and also programmed their EAS receivers to recognize Nationwide EAS event code – see our post here. Form Two in ETRS, reporting on the results of the EAS test at your station, is due on September 29, the day after the test (see the FCC notice here). So be sure that you are signed up and ready to report after Wednesday’s Nationwide EAS test. A busy week for broadcasters all around – don’t overlook these deadlines!

Update, 9/27/2016 – the FCC issued a News Release yesterday about the EAS Test, and also sent an email to EAS participants specifying a suggested schedule staggered by the time zone in which a station is located for filing ETRS Form Two on September 29.  The email also urged stations not to file the required Form Three (due 45 days after the test) until after September 29, presumably to avoid overloading the filing system.  If your station did not get this email, there may be an issue in the filing of Form One which was meant to register your station for EAS test reporting purposes.

This week, I was given 15 minutes at the RAIN (Radio and Internet Newsletter) Summit in Nashville to summarize all of the legal issues that are important to digital audio companies including webcasters and podcasters.  While getting everything into a presentation that short entailed some speed talking and the briefest description of many very complicated issues, I hope that I was able to at least outline issues about which companies should be cognizant.  For folks who weren’t at RAIN, or even those who were and couldn’t keep up with the speed of the slides flashing across the screen in the conference ballroom, a copy of those slides is available here.

The presentation addressed not only music royalty issues covered in my Texas Broadcasters’ presentation last month – issues certainly important to digital media companies – but it also at least touched on numerous other issues that we have written about here from time to time, from privacy and TCPA issues, to trademarks and FTC digital sponsorship and endorsement guidelines.  Lots of issues were covered in a short time – so feel free to take a quick look at the slides for highlights of those concerns and watch for more thorough discussion of these issues as we cover them from time to time on these pages.

In today’s digital economy, trademarks are often the most valuable assets that a business owns.  For example, in 2015, Google’s trademark portfolio was estimated to be worth $76 billion, which constituted almost one third of the entire value of the company.  Microsoft clocked in at $67 billion, with Verizon close behind at almost $60 billion.  While you may not hit 11-digit figures like these intellectual property behemoths, a smart trademark strategy can put you on the right course.  This blog is the first of a five-part series that will help you understand trademarks and how they function, so that you can maximize the value of your own trademark portfolio.  We’ll run the other four articles on the next four Tuesdays (“Trademark Tuesday”) and plan to offer a free webinar covering trademark basics at the end.  So keep reading!

So, what is a trademark?  A trademark identifies products or services as coming from a particular source.  Although a trademark is usually a word, a phrase or a design, it can also consist of or incorporate features such as color, smell, taste, shape (product configuration), touch, motion and sound.  But not all trademarks are created equal.  A strong mark can preclude the use by others of somewhat similar marks for goods and services that may not be directly competitive.  In contrast, a weak mark may only be entitled to protection against the use of an identical mark for the same goods and services.  How do select a trademark that will most effectively help you build your brand? Continue Reading Trademark Basics for Media Companies, Part One: What Trademarks Are and Why They Matter