Incentive Auction Stage 2 to Begin September 13 – FCC Proposal to Clear 114 MHz

Given Tuesday’s declaration by the FCC that Stage 1 of the TV incentive auction did not meet its clearing target (in that enough was not bid in the forward auction to cover the amount needed to compensate television stations for surrendering their spectrum plus the costs of the auction itself), it is now on to Stage 2.  The FCC yesterday issued a new Public Notice announcing that the second stage of the reverse auction will begin on September 13, 2016.  In this second stage, the FCC will try to clear 114 MHz of spectrum, instead of the 126 MHz that was the clearing target in Stage 1.  If the auction is successful in clearing 114 MHz, that means that channels 31 and below will remain in the TV band.

Yesterday’s public notice gives other information about the procedures to be used in Stage 2, and the band plan for the forward portion of the stage.  It also announces that an online tutorial will be available for TV broadcasters who are participating in the auction beginning September 1, on the auction website.  TV stations that were provisionally winning bidders in Stage 1 (meaning that their offer to go off the air or move to a VHF channel was accepted) will be able, according to the public notice, to determine the status of that provisional acceptance starting on September 7 by logging into the auction electronic system with their SecurID tokens that they used to place bids in Stage 1. Continue Reading Incentive Auction Stage 2 to Begin September 13 – FCC Proposal to Clear 114 MHz

While most broadcasters are awaiting word of when the FCC’s annual regulatory fees will be due (an announcement that should be coming any day now as regulatory fees will be paid in September by all commercial broadcasters to offset the cost of being regulated), the FCC announced yesterday that its application fees are going up effective today.  These application fees are paid with most FCC applications – including applications for the purchase and sale of broadcast stations, applications for new and modified station technical facilities, for special temporary authority (in most cases), with license renewal applications and even with Biennial Ownership Reports (to be filed by commercial stations in December 2017).  Application fees are increased from time to time to reflect increases in the cost of living index.  The most recent application fee increase, announced in July (see this Order setting all of the new fees), will be effective today.  An application fee filing guide for media services was made available on the FCC website today.  So remember to pay the new fees when filing an application starting on the effective date, as the failure to do so may delay the processing of your new applications.

In the last few minutes, the FCC has released its order on the Quadrennial Review of its multiple ownership rules, about which we wrote last week. The decision is available here, and includes dissenting opinions from the two Republican commissioners and a concurring statement from Commissioner Clyburn. In total, the text is 199 pages long, and seemingly changes little in the current rules. We’ll have more reactions here shortly, but if you are interested in discovering the details of the Commission’s action, you have some reading ahead of you!

While this summer has perhaps not brought the big headlines in trade press about copyright issues involving broadcasters – particularly in the area of music rights – there still are many issues that are active. I addressed some of those issues in a presentation earlier this month at the Texas Association of Broadcasters Annual Convention. I did my presentation in conjunction with a representative of SoundExchange, where he covered the nuts and bolts of the obligations of broadcasters and webcasters to file royalties for the noninteractive digital performance of sound recordings (e.g. webcasting and Internet radio). While the rates for 2016-2020 are on appeal (see our articles here, here and here), these rates are effective pending appeal and webcasters need to be paying under them. In the Texas presentation, I covered some of the many other copyright issues that are on the horizon, many of which we have written about in the pages of this blog. The slides from my presentation are available here. They provide an outline of many of the pending matters.

The presentation covered the controversy about the Department of Justice decision on the ASCAP and BMI consent decrees, about which I wrote about here. That controversy continues, as the PROs seek judicial or legislative relief from the new DOJ requirement for 100 per cent licensing of split works (see my article for an explanation of what that means). In the interim, the radio industry is negotiating new royalties with both of these organizations, as the current license agreements expire at the end of this year (see our article here). Continue Reading What’s Up With Music Rights for Broadcasters and Webcasters? – A Presentation on Pending Issues

Rules regarding the processing FM applications – particularly those involving upgrade applications that require the forced change of the channel on which another station is operating – can be very complicated.   In a decision released the week before last, the FCC looked at all sorts of issues that can be raised by one of these applications – including clarifying the timing of the required reimbursement for the costs of the station that is being forced to change channels, the timing of required channel changes, and the ability of an applicant to file an upgrade while a license application is pending for initially constructed facilities of a station. For any radio operator contemplating an upgrade involving coordination of channel changes with other stations, this decision is worth a read.

The issue of reimbursement of the costs of a forced channel change is one that comes up in numerous upgrade applications. A station that wants to upgrade its facilities can ask the FCC to change the channel of another FM station to clear room on the dial for that upgrade – and that other station can be moved on the FM dial even if it does not want to change its channel. The FCC will order the other station to change channels as long as the upgrade proponent is able to find another channel for that station which is technically feasible at that station’s current transmitter site and is fully-spaced under the FCC rules governing required mileage separations between FM stations. Unless there is a unique issue about the channel to which the forced station is being moved, there are very few objections that can be raised to one of these involuntary channel changes. However, the station that is upgrading has an obligation to reimburse the changing station for all of the costs of the forced relocation. Continue Reading FCC’s Audio Division Case Clarifies Processing Rules for FM Upgrades and Forced Channel Changes

In the few days since I posted this update on concerns about marijuana advertising, there has been much attention devoted to the subject – and none of it undermines my belief that broadcasters need to continue to be cautious in this area. Yesterday, there was an article in the Sacramento Bee newspaper, specifically addressing the topic of potential marijuana advertising on broadcast outlets in light of the current ballot proposition in California proposing to decriminalize marijuana in the state. Note that the general consensus of those interviewed in that article was that caution was still the word for broadcasters who are considering running marijuana advertising.

Others may have taken hope from the recent decision of a federal appeals court that found that criminal prosecutions of entities and individuals who were complying with state laws decriminalizing medical marijuana by the Department of Justice were barred by a rider to a federal appropriations bill. Some saw this as a broad statement that the federal government would not be enforcing its marijuana laws in any context. But if you read that court decision, it is clear that the bar on the spending of any money on prosecutions applies only to the DOJ (not to all federal agencies such as the FCC) and only to medical marijuana. Moreover, the decision practically quoted the same warning that I included in my articles on the topic – the rider does not change the underlying law declaring the sale and distribution of marijuana illegal under federal law, and that we have an election in November, and who knows what a new Congress or new administration will do in this area. So the caution light continues to burn on broadcast marijuana advertising.

In our reminder on August regulatory dates for broadcasters, we noted that broadcasters must register their stations in a new FCC filing system that will allow them to electronically report on the success of the next EAS National Test, to be conducted on September 28. The new registration system, called EAS Test Reporting System (“ETRS”), requires all stations (including LPFM stations) to register by August 26, by filling out what is referred to as Form One in that system. The FCC Public Notice announcing the new filing requirement is available here. More information about the form and a link to the Registration Page for the form are available on the FCC’s website, here. I have been told that this form can be tricky to complete, and will require reference to your state EAS plan, so don’t wait for the last day to try to get this done. The FCC has given stations until September 26 to edit their initial filings – but you need to get something on file by next Friday. Time is short, and completing the form (especially if you have multiple stations) may take some effort, so don’t delay in completing this form.

A few months ago, we wrote about pirate radio and the FCC’s efforts to stop these stations from popping up all around the country. In the last few weeks, the FCC has issued several fines to pirate radio operators – including one who shut down his operations and gave his transmitter to the FCC when they first inspected his facility, only to start up again someplace else a few weeks later (see the order proposing a $15,000 fine here). In some of the decisions (e.g. the one here proposing a $15,000 fine), the FCC references the websites and sales operations of these pirate radio operators. In light of this kind of brazen activity, we wonder how effective the threat of an FCC fine may be in curbing these operators. But the FCC does seem to be ramping up its activity in this area – as is evident from the webpage that they have created to document their efforts. In one interesting development, the FCC sent a warning letter to a property owner for a home from which a pirate radio station operated, warning that the operation was illegal – perhaps setting the stage for more aggressive actions against those who enable pirate radio operators. Watch as the FCC efforts develop in the coming months.

In the last few weeks, we’ve seen almost daily press reports of new lawsuits against media companies being sued for the use of photos on their websites without permission of the photographers. We’ve written many times about copyright issues that can arise if media companies put content on their website without getting permission of the copyright holder. Most recently, we wrote about the legal issues that can arise by taking photos or videos from Internet sites and reposting them to your own site, or using them in on-air productions. We’ve also written articles about how your ASCAP, BMI and SESAC license don’t give you rights to use music in video productions or to post online music that can be accessed in any on-demand fashion – so that such rights have to be cleared directly with copyright holders for such uses – including the use of music in podcasts. Even though these concerns exist, some copyright holders have been reluctant to sue, as litigation over these matters sometimes costs more than the likely recovery (though broadcasters, too, are concerned about litigation as the costs of defending against such a lawsuit can be very high). One idea has been kicking around for a long time – some sort of small claims court for resolving smaller copyright claims at less cost to the parties. Last month, a bill was introduced in Congress to create such a court – a new Copyright Claims Board.

The bill was sponsored by a single Congressman, and has thus far received the support of only a single co-sponsor. Given the time left in the current Congressional session, it would be unlikely to go any further this year. But with a promised examination of the Copyright Act generally on tap for the next Congress, some part, or all, of this proposal might again see the light of day next year. For a bill sponsored by a single Congressman, introduced late in the Congressional session with little time for approval, the bill is actually quite detailed, setting out a complete structure for the new court, as well as specific procedures that would be followed by any copyright owner seeking to adjudicate their claims through this new process. Continue Reading Congressional Proposal for Copyright Small Claims Court – What Does It Suggest?