At the NAB Convention last week, FCC Chairman Tom Wheeler discussed the timing of the incentive auction and how some of the remaining issues may soon be resolved. One subject of talk in a number of NAB sessions, as well as in the trade publications, has been how the repacking of broadcast television spectrum will proceed after the auction. Even FM broadcasters noted the potential for disruption of their operations as the repacking may affect shared users of broadcast towers, and given that hundreds of TV stations potentially face changing out antennas to operate on new channels in the smaller post-auction television band.

The Chairman made clear that the FCC will be announcing soon, perhaps as early as this week, the “spectrum clearing target” for the auction. In other words, the FCC will be announcing how much of the TV band it intends to try to clear for wireless broadband uses, based on how many TV stations expressed interest in potentially taking a buyout of their spectrum in their commitments filed at the end of last month. After the targets are announced, the FCC will quickly begin the reverse auction, a process where, round by round, the FCC will lower the prices offered to TV stations to abandon their spectrum until the FCC has committed to buy just the right amount of spectrum to meet its clearing targets. Then, it will turn around and repackage and resell that spectrum to wireless companies in the “forward auction.” The Chairman indicated that the clearing target may also signal the answers to many other issues. Continue Reading As Incentive Auction Draws Near, Focus Begins to Shift to TV Spectrum Repacking – and Even FM Broadcasters Take Note of Potential Issues

The “performing rights organizations” – ASCAP, BMI and SESAC – don’t get as much attention in these pages as do the royalties paid to SoundExchange for the use of “sound recordings.” The PROs collect for the public performance of the “musical work” or the musical composition – the words and music of a song. These royalties are paid anywhere that music is performed in the US – including by radio and TV stations, by retail establishments and by digital music users. The performance of the sound recording, on the other hand, is only subject to a royalty in the US when it is performed by means of a digital transmission (reproductions of sound recordings, and of musical works, are separately licensed). 2016 is a big year for broadcasters’ relations with the PROs as public performance royalty changes could be coming soon.

On the radio side of things, the commercial radio industry is for the most part represented in its negotiations with the PROs by the Radio Music License Committee (RMLC)(see our prior article on RMLC here). RMLC operates partially though payments made by stations that elected to be governed by RMLC’s prior settlements with the PROs, and partially through contributions (including volunteer efforts) from radio companies. This year will be an important one for radio, as the ASCAP and BMI agreements (which we summarized here and here) both expire. If new deals cannot be reached with these organizations, there is the potential for rate court litigation over the proper royalty amount. As broadcasters will remember, the current royalties were a return to a percentage-of-revenue model, after a period during which broadcasters had been paying a flat fee based on market size – a royalty experiment that many broadcasters thought was a failure as it resulted in increasing royalties in a period during which radio revenues did not increase. Most seem to believe that the return to the percentage of revenue is a better system, though there can always be improvements to any license. Watch for more news on these negotiations from RMLC over the coming months to see the issues that may be on the table.

SESAC is also in a new process, arrived at as a result of an antitrust consent decree following litigation brought by the RMLC (see our article here). Under this process, if an appropriate royalty cannot be negotiated, there will be an arbitration proceeding later this year to set the royalty for the next three years. Broadcasters have complained that SESAC receives more in royalties than it deserves, given the amount of music that it represents. As part of the negotiated antitrust settlement, SESAC is also supposed to provide a current database of music which it licenses – and for stations that rely on that database to try to eliminate their use of SESAC music, they cannot be sued by SESAC for not having a license until a song is listed in the database.

One new issue may be arising in the future on the PRO side of the royalty world. A new PRO, Global Music Rights, has been formed to represent the interests of certain songwriters and music publishers (music publishers are the companies that often hold the copyrights to musical compositions). This year, songs written by artists including members of the Eagles as well as John Lennon and Pete Townshend, may no longer be represented by BMI as their writers have indicated an intent to withdraw and change their representation to GMR (see BMI’s page on this subject here). While the current licenses in place with ASCAP, BMI and SESAC through this year should cover radio broadcasters during the current period, dealing with these artists in the future may be an issue – perhaps requiring the negotiation of royalties with this new PRO.

Also confusing issues is the fact that the Department of Justice is reviewing the antitrust consent decrees under which ASCAP and BMI operate. These organizations have suggested that the decrees are outdated, and prevent songwriters from getting a marketplace rate for royalties. User groups of course largely disagree with that suggestion, but many do agree that some reform of the decrees may be in the public interest, particularly lifting restrictions on these organizations that limit them to licensing just public performances to the extent that such limits are in the consent decrees (see our article here and here on some of the issues that are being discussed). SESAC is already in the business of licensing more than just public performance rights – licensing the reproduction rights to music having purchased the Harry Fox Agency that specializes in such licensing, as well as a service that licenses sound recordings. Some think that the establishment of one-stop shops for music rights may be useful for music users – provided that appropriate protections against unfair competition practices apply.

Noncommercial radio broadcasters have their own royalty proceeding that is ongoing as their PRO royalties are set not by a rate court in New York, but instead by the Copyright Royalty Board under Section 118 of the Copyright Act. A proceeding to set these royalties was started earlier this year (see our article here), and the parties to the case have been set (see the list of the parties who have filed to participate here). The parties to the proceeding are currently in a “negotiation period” to see if a settlement can be reached on the royalties to be paid by noncommercial broadcasters for their over-the-air broadcasting. If no settlement is reached, written exhibits setting out the proposed rates of each party will be filed later this year with written testimony to support the claims, with a trial to be held next year, and a decision due before the end of 2017, when the current royalties expire.

All in all, for the entire radio industry, this will be a very busy year dealing with these organizations. Watch what happens, pay attention to communications from the RMLC and other organizations representing broadcasters, and participate where appropriate to help establish fair royalties going forward.

Can expenses incurred by a TV station now in making moves to prepare for the post-incentive auction repacking of the TV spectrum be reimbursed if that station in fact is forced to move after the auction?  In a clarification “Declaratory Ruling” released on Monday, the FCC said that they can – in an aim designed to expedite the post-transition repacking of the broadcast spectrum.  The TV spectrum, after the auction, will be consolidated into fewer channels, as part of the TV band will be cleared of broadcast stations so that it can be sold to wireless broadband users.  The Commission noted that one party asking for the clarification said that work could begin now on modifying tower structures so that they can be prepared for the mounting of new antenna for stations that have to change channels.

Of course, the FCC noted that the reimbursement can only go to the stations that are actually repacked.  If a station is instead bought out entirely, or if it is left on its current channel, these pre-auction preparatory actions will not be reimbursed.  While the FCC did not mention it, we note that, in making any such moves, stations should remember the rules that prohibit communications about auction plans by broadcasters (this auction’s version of the auction anti-collusion rule).  So discussions involving any stations that filed their initial applications to participate in the auction back in January may well want to refrain from these kinds of conversations to the extent that they involve other stations, or parties that could convey information to other stations involved in the auction, as those conversations might be of concern under these rules limiting communications about auction matters (see our article here about these prohibitions).

On the eve of this year’s NAB Show in Las Vegas, the FCC has been asked to approve the next generation of TV transmission – ATSC 3.0.  A broad coalition – broadcasters through the NAB and APTS (the public television association), technology manufacturers (through CTA – the Consumer Technology Association formerly the Consumer Electronics Association), emergency communications advocates (through the AWARN Alliance, which includes broadcasters) and ATSC (the TV technology standards association) have requested that the Commission approve this new technology for use by TV stations on a voluntary basis.  The petition (available here) asks that the FCC approval be granted expeditiously, no doubt so that roll-out could be timed with the repacking of the TV band that will be required following the broadcast incentive auction that is now underway.

The requested changes to the FCC rules are minimal – asking only that TV stations be able to adopt and use the new transmission standard, that stations using the standard be treated as TV stations for must-carry purposes (and providing for prior notice to MVPDs when the conversion is about to occur on a TV station), and to provide for TV stations who decide to convert to be able to continue to broadcast in the current DTV standard.  That continuation of service would be provided by allowing a station that converts to the new standard to simulcast one program stream on another TV station that is operating using the current DTV standard in the same market, as existing TV sets will not be able to decode the new transmission standard.  Here are some questions that we had when reading the Petition and answers to the extent that we can discern them from the filings made so far. Continue Reading Petition Asking FCC to Approve Next Generation of Over-the-Air Television, ATSC 3.0 – What is Being Requested?

Can the name of a state be trademarked so that no one else can use it in a particular line of business? Last week, in connection with the denial of the trademark application filed by the producers of the podcast SERIAL, we wrote about the difficulty of trademarking brands that are descriptive of the product that they promote. What could be more descriptive than the name of a place where the product originates? Yet on Sunday, the NY Times ran a front page story about a legal moonshiner in Kentucky who is being sued by the University of Kentucky for using the name KENTUCKY MIST on shirts and hats to promote his craft moonshine. The University claimed that it owns the trademark for the word “Kentucky” when used on clothing. Can they really do that? Does a media company need to worry about branding a program featuring the name of the geographic location in which they operate?

It depends. Trademark law is, among other things, designed to protect consumers from confusion. When the Trademark Office is analyzing a new federal trademark application, it will look to see whether a mark is “confusingly similar” to any existing registrations or pending applications. As part of this analysis, it will analyze the similarity of the marks, the types of goods and services offered in connection with the marks, and the channels of trade used to sell or promote the goods/services. If a proposed mark is too close on these fronts to a registered mark, the Office may deny the application (or in the case of a lawsuit, a court may find merit to the infringement claim). This can happen even if the mark incorporates a descriptive term, like a geographic area. Does this mean that broadcasters are precluded from incorporating the name of their state in a program title or station tagline if there is an existing registration for that state name? Thankfully, no – but it doesn’t mean that you shouldn’t do your due diligence before adopting your mark. Below are a few tips to help you assess whether your proposed mark is at risk of getting into trademark hot water. Continue Reading Can You Trademark A State’s Name? Can Such a Trademark Affect a Broadcast Program Title or Other Product Names?

Pre-1972 sound recordings are back in the news. Yesterday, the US Court of Appeals for the Second Circuit decided to defer its consideration of an appeal of a District Court’s decision that NY law included a public performance right for pre-1972 sound recordings. The Court deferred its decision until it can get a definitive answer as to whether or not such a right exists under NY state law. To get that definitive answer, the Court of Appeals referred the question to the NY State Court of Appeals (the highest court in New York State) asking it to issue an opinion as to whether the right exists.   Reading the order referring the case to the NY state court, there are a number of interesting issues addressed, including a discussion that could help decide the ramifications for over-the-air broadcasters who play these recordings.

First, we should provide a reminder about what the case here is all about. This case was brought by Flo and Eddie, members of the 1960s band The Turtles, who alleged that Sirius XM (and Pandora in a separate case) owed them royalties for playing pre-1972 sound recordings on their music services (see our article on the filing of the suit, here). Pre-1972 sound recordings first copyrighted in the United States are not covered by Federal law (see our article here and here about a Copyright Office inquiry on whether they should be brought under Federal law). While most states have laws prohibiting the reproduction of those recordings (e.g. prohibiting bootlegging of the recordings), none has an explicit statutory grant of a public performance right such as that collected by SoundExchange for post-1972 works. Sirius XM has thus excluded performances of pre-1972 sound recordings from the royalties that it has paid to SoundExchange (with the blessing of the Copyright Royalty Board in their last proceeding, see our story here). And allegedly Pandora has done the same. In this case, Flo and Eddie argued that in fact state law did convey a public performance right in sound recordings. Many observers (including this author) suggested that this argument would not succeed given that finding that a general performance right existed would be contrary to US law, and could subject all sorts of businesses that have never paid royalties for public performances of sound recordings, from over-the-air radio stations to bars and restaurants, to a performance royalty only when they played oldies. Nevertheless, Flo and Eddie were successful with their arguments in lower Federal Courts in California and New York (see our articles here and here), but a court in Florida denied their claims, finding that there is no performance right in pre-1972 sound recordings in that state (see our article here). The Court of Appeals decision yesterday was on the appeal of the NY decision referenced above. Why did the Court of Appeals need to send this case to the NY state court system? Continue Reading Appeal of Public Performance Rights in Pre-1972 Sound Recordings Referred to NY State Court for Interpretation – What Issues Might Radio Broadcasters Be Facing?

Pirate radio is still a problem. While pirate radio was much in the news a decade ago, and was even glamorized in movies, the popular perception may be that it has disappeared. In fact, particularly in major urban areas, it is still a major issue – causing interference to licensed broadcast stations and even, at times, to non-broadcast communications facilities. The FCC yesterday upheld a previously issued $15,000 fine to an operator of an illegal station in Florida, rejecting arguments that the community service provided on the station should mitigate the fine. The FCC, from time to time, releases this sort of fine, yet these stations keep popping up. A number of Commissioners have recognized the gravity of the issue, and that recognition caused the FCC to last month issue an Enforcement Advisory, warning operators that unauthorized broadcasting is illegal, suggesting that the public turn in those who operate pirate stations, and warning those who support pirate radio (e.g. landlords and advertisers) that their support could “expose them to FCC enforcement or other legal actions.” What is the reality of this actually happening?

A few states, including New Jersey and Florida, have passed criminal statutes making pirate radio illegal, but such enforcement, in the few cases that I have dealt with in those states, has tended to be a low enforcement priority for state authorities. Most defer to the FCC, given their perceived expertise in this area. Thus, there has been a recognition that the FCC needs to do more to combat pirate radio, particularly in urban centers like New York where the problem has been particularly acute. I had the privilege of interviewing FCC Commissioner Michael O’Rielly at the Oklahoma Association of Broadcasters convention the week before last. The Commissioner has been an outspoken advocate of more pirate radio enforcement. In addition to early support for public education on the issue, including the issuance of the Enforcement Advisory, the Commissioner suggested that additional Congressional action may be necessary to give the FCC more enforcement tools to really bring pressure to bear on pirate radio operators and those who support them. What tools are needed? Continue Reading Combatting Pirate Radio – What Can the FCC Do?

Both the popular and media trade press has been full of reports in the last few weeks about musicians and other artists petitioning the Copyright Office to hold YouTube and other online services liable for infringement when the artists’ copyrighted material appears on the service (see, e.g. the articles here and here). The complaints allege that these services are slow to pull infringing content and, even when that content is pulled from a website, it reappears soon thereafter, being re-posted to those services once again. While the news reports all cite the filings of various artists or artist groups, or copyright holders like the record labels, they don’t usually note the context in which these comments were filed – a review by the Copyright Office of Section 512 of the Copyright Act which protects internet service providers from copyright liability for the actions taken by users of their services (see the Notice of Inquiry launching the review here). All of these “petitions” mentioned in the press were just comments filed in the Copyright Office proceeding, where comments were due the week before last. The Copyright Office will also be holding two roundtable discussions of the issues raised by this proceeding next month, one in California and one in New York City (see the notice announcing these roundtables here). What is at issue in this inquiry?

Section 512 was adopted to protect differing types of internet service providers from copyright liability for material that uses their services. Section 512(a) protects ISPs from liability for material that passes through their systems. That section does not seem to be particularly controversial, as no one seems to question the insulation from liability of the provider of the “pipes” through which content passes – essentially a common carrier-like function of just providing the infrastructure through which messages are conveyed. Sheltered from liability by Section 512(b) are providers of systems caching – temporary storage of material sent by third-parties on a computer system maintained by a service provider, where the provider essentially provides cloud storage to third-parties using some automated system where the provider never reviews the content. That section also does not seem particularly controversial. Where the issues really seem to arise is in the safe harbor provided in Section 512(c) which is titled “Information residing on systems or networks at the direction of users” – what is commonly called “user-generated content.” Continue Reading Copyright Office Reviews Section 512 Safe Harbor for Online User-Generated Content – The Differing Perceptions of Musicians and Other Copyright Holders and Online Service Providers on the Notice and Take-Down Process

A Washington Post article published this weekend was titled “Is there anything you can’t say on TV anymore? It’s complicated.” And, it really is. The Post article presents a very good overview on the status of the FCC’s indecency rules. What will happen with those rules has been a matter of conjecture for several years, ever since the Supreme Court threw out the fines that the FCC had imposed for fleeting expletives that had slipped out in the Golden Globes and other awards programs, a case that also had the effect of negating that other fine for a “slip,” the notorious Janet Jackson clothing malfunction during her Super Bowl performance. Other than a well-publicized $325,000 fine on a Roanoke TV station for a short but very explicit image that slipped into the corner of a news report on a porn star turned first responder (see our article here on the Roanoke case), the FCC has been largely quiet on the indecency front since it launched a post-Supreme court proceeding to determine how they should amend their rules in light of the Court’s decision (see our summary here).

As we wrote when comments were filed in that proceeding, it drew much attention, with many commenters fearing that the FCC would back away from all indecency regulation on broadcast TV. In an election year like this one, don’t expect in the near future to see any definitive answers as to what is indecent and what is not. Neither political party wants to be tagged with being pro-smut by one side of the political spectrum, or anti-First Amendment expression by the other. But the Post article raises other very interesting questions about the difference in legal treatment between cable and broadcast programming, especially when so many viewers hooked up to some cable or satellite service don’t really understand the difference between cable network programming and that from broadcast sources. Continue Reading Looking at the FCC’s Indecency Rules – Does Anyone Know What’s Prohibited and What’s Permitted?

This article was written by two new contributors to the Blog, trademark attorneys Radhika “Ronnie” Raju and Kelly Donohue.

According to the Patent and Trademark Office (PTO), the answer is “No,” as the PTO recently refused an application by the producer of the podcast to register the mark SERIAL for an ongoing audio program, finding that the mark was too “descriptive” to be registered (the decision and related documents can be found here – note it is a relatively big file). This case demonstrates the need for companies and other content creators to be creative in choosing the brands by which their works will be known, as a name that is too generic may face hurdles like this one when the creator tries to protect its brand through a federal trademark registration. Media companies all need to think carefully about program names and other brands to be sure that they can be protected – especially if they hit it big.

SERIAL is the Peabody award-winning podcast from the creators of the public radio program This American Life. The podcast, narrated by journalist Sarah Koening, is a long form story, told over the course of multiple episodes, that looks into the 1999 murder of Hae Min Lee and the resulting conviction of her former boyfriend, Adnan Masud Syed. Since its launch in October 2014, Season 1 has been downloaded in the United States over 80 million times, with episodes still being downloaded at a clip of over a 100,000 times a month. Season 2 of SERIAL just concluded last week. Media observers have called SERIAL a phenomenon which fueled the 2014 podcast renaissance. Given that it is so well-known and successful, why did the PTO refuse to register the name of this groundbreaking podcast? Continue Reading SERIAL Trademark Denied – Should One of the Most Popular Podcasts Ever Be Able to Protect Its Name?