Last week was a busy one for the FCC, with decisions or proposals on a number of issues that can affect broadcasters, including changes to the EAS rules and proposals for the expansion of video description – the requirements that TV stations carry a certain amount of programming that is accompanied by audio descriptions to explain the visual action to TV station viewers who are blind or otherwise visually impaired. Today, we’ll look at the proposals for expanding the required amount of “video description” required by TV stations.

Under current FCC rules, television stations affiliated with ABC, CBS, Fox and NBC and which are located in the Top 60 US TV markets must carry a minimum of 50 hours of video programming per quarter that is described by accompanying audio descriptions of the on-air visual action. These descriptions are usually broadcast on the station’s secondary audio programming (“SAP”) channel, often used for foreign language translations of programming. These SAP channels are also used for the required audio transmission of video alert warnings that occur outside of news programs (see our article about that requirement for emergency information, like video crawls during entertainment programming, to be translated into audio and broadcast on these SAP channels, here and here). Qualifying programming must either be in prime time or programming addressed to children. The rules also require that TV stations in all markets pass through network programming with such audio descriptions if those stations are technically able to do so. The FCC notes that, given the requirement for emergency information on SAP channels, all TV stations should now have that ability to pass through network programming with audio description of the video programming. The FCC now proposes to further expand the obligations of TV broadcasters to do audio descriptions of video programming that they air. Continue Reading FCC Proposes Expansion of Requirements for TV Stations and MVPDs to Provide Audio Description of Video Programming

The changes in the FCC’s rules for Biennial Ownership Reports on FCC Form 323 were today published in the Federal Register. That publication starts the 30 day clock for petitions for reconsideration or requests for appeal of that decision. We summarized the changes in the requirements here – changes that include putting noncommercial stations on the same schedule as commercial stations (filing on December 1 of odd-numbered years) and requiring that all licensees obtain, for every person or entity with an attributable interest, an FCC Registration Number (an “FRN”). To get an FRN, the licensee must either submit the Social Security number (“SSN”) of the person with an attributable interest (or the Taxpayer ID number if the interest holder is not an individual) or the last four digits of the SSN plus other identifying information (their full name, residence address and date of birth). The requirement for an FRN has triggered concern among many broadcasters, particularly those where licenses are held by a college or university.

Why? Some licensees fear that, even though the personal information necessary to get an FRN will not be made public, the submission of that information to the FCC may still somehow compromise the security or privacy of individuals with attributable interests. While the FCC assured licensees in its order that these concerns are overblown as the Commission says that it maintains information with a high level of security, there are still doubters. Nevertheless, the FCC has required that the FRN be obtained for all attributable interest holders, and threatened to take enforcement action against interest holders who refuse to comply. The FCC also identified for whom the information needs to be provided. Continue Reading Appeal Date Set for Changes in FCC Rules for Biennial Ownership Reports – Why Many College and University Licensees are Concerned

April brings the whole panoply of routine regulatory dates – from the need to prepare EEO Public File and Noncommercial Ownership Reports in some states, to Quarterly Issues Programs lists for all full-power broadcast stations and Quarterly Children’s Television Programming Reports for all TV stations.  So let’s look at some of the specific dates that broadcasters need to remember this coming month.

On the first of the month, EEO Public Inspection File Reports should be placed in the Public Inspection files of all stations in employment units with five or more full-time employees in the following states: Delaware, Indiana, Kentucky, Pennsylvania, Tennessee and Texas.  In addition, EEO Mid-Term Reports on FCC Form 397 need to be submitted to the FCC by radio stations that are part of employment units of 11 or more full-time employees in Kentucky, Tennessee and Indiana.  For more on the EEO Mid Term Report, see our article here. Continue Reading April Regulatory Dates for Broadcasters – Quarterly Issues Programs Lists and Children’s Television Reports and Much More

In a Notice of Apparent Liability released yesterday, the FCC proposed to fine a TV station $20,000 for being late in the filing of 4 years of Quarterly Children’s Television Programming Reports (FCC Form 398). While the penalty is consistent with the size of penalties that the FCC has been imposing for similar violations in recent years (see our article here), the means by which the FCC apparently discovered the violation is what perhaps makes this case most interesting. The FCC states that it discovered the issues as follows: “a Commission review of the Station’s online public file (e-pif) revealed that the Station did not file its Children’s Television Programming Reports for sixteen (16) quarters in a timely manner.” So they are saying that it was not in reviewing the FCC records of the filing of the Form 398s that tipped them off to the late filings, but instead the violations were brought to their attention as the reports were never were automatically uploaded to the station’s online public file (as FCC filings that are to be included in the public file are automatically uploaded to that online file maintained as maintained by the FCC – see our summary of the FCC public file rules for TV here).

The licensee in this case failed to report the late-filings in its license renewal application, so the $20,000 fine actually is made up of a $17,000 fine for the late filings, and $3000 for the failure to report the violation in the renewal application. But it does suggest that having an online file makes it easier for the FCC, and for any other interested party, to see where stations fail in their paperwork obligations – as it puts all of a station’s required documents in one place. With radio stations soon to see their public files going electronic (see our articles here and here), they too will have to worry about the review of their activities. We’ve already seen FCC complaints about TV station’s alleged paperwork deficiencies in the political broadcasting portion of the online public file (see our article here). Now with this indication that the online public file is the source of concerns about Children’s Television Programming Reports, are fines based on the late filing of other documents (e.g. the Quarterly Issues Programs Lists) far behind? I have said many times when doing presentations to broadcasting groups that the online file allows any interested party, from the comfort of their own home, to view a station’s compliance with the FCC’s paperwork obligations. Interested parties can sit around in their PJs and fuzzy slippers, over their morning cup of coffee, and determine if your station has met its obligations. The online public file thus provides just one more reason for broadcasters to be careful to fully comply with paperwork obligations, as you never know who will be watching.

FilmOnX, that Aereo copycat service that seeks to deliver the signals of over-the-air television stations to consumers’ computers for a fee, has lost another round in its attempt to be recognized as a cable system. Ever since the Aereo decision of the Supreme Court (which we summarized here), finding that services like Aereo and FilmOn did involve a public performance of television programming for which they permission of program owners, FilmOn has been seeking to be declared a cable system. Why? Because cable systems have a “statutory license” under Section 111 of the Copyright Act allowing them to rebroadcast television programming without explicit permission of the copyright owners simply by paying a fee – a fee which is very small when rebroadcasting a television signal in its own television market. The decision released last week by the US District Court for the Northern District of Illinois joined courts in New York and DC (see our article about the DC court decision here) in determining that FilmOn did not qualify for that license. Only a lone court in California has thus far agreed with FilmOn’s position (see our summary here), and that decision is on appeal.

In reaching its decision, the Illinois court looked at the definition of a cable system in the Copyright Act. The Copyright Act states that a cable system is “a facility” that “receives signals transmitted or programs broadcast by one or more television broadcast stations” and “makes secondary transmission of such signals or programs by wires, cables microwave or other communications channels” to subscribers. In looking at that definition, the Court found that the FilmOn system was not a facility that made secondary transmissions (meaning a rebroadcast or retransmission of the original signal) of the television signals that it received. While it received those signals, rather than transmitting those signals to the public, as does a traditional cable system or even an unwired “wireless cable system,” FilmOn instead simply transmitted those signals to the Internet, and the Internet was the mechanism that delivered the signals to the customers. In essence, the Court adopts the requirement for a “facilities based” transmission system in order for a system to be considered a cable system for purposes of qualifying for the statutory license – meaning that it must be one that owns or controls the means of communication of the television signals to the company’s customers. As FilmOn does not own or control the Internet, it is not such a facilities-based carrier. Continue Reading Another Loss for FilmOnX in its Quest to Be Recognized as a Cable System Entitled to Rely on Statutory License to Retransmit TV Signals

With April Fools’ Day only a few days away, we need to play our role as attorneys and ruin the fun by repeating our annual reminder that broadcasters need to be careful with any on-air pranks, jokes or other bits prepared especially for the day.  While a little fun is OK, remember that the FCC does have a rule against on-air hoaxes – and, while issues can arise at any time, broadcaster’s temptation to go over the line is probably highest on April 1.  The FCC’s rule against broadcast hoaxes, Section 73.1217, prevents stations from running any information about a “crime or catastrophe” on the air, if the broadcaster (1) knows the information to be false, (2) it is reasonably foreseeable that the broadcast of the material will cause substantial public harm and (3) public harm is in fact caused.  Public harm is defined as “direct and actual damage to property or to the health or safety of the general public, or diversion of law enforcement or other public health and safety authorities from their duties.”  Air a program deemed a hoax, and expect to be fined by the FCC.

This rule was adopted in the early 1990s after several incidents that were well-publicized in the broadcast industry, including one case where the on-air personalities at a station falsely claimed that they had been taken hostage, and another case where a station broadcast bulletins reporting that a local trash dump had exploded like a volcano and was spewing burning trash.  In both cases, first responders were notified about the non-existent emergencies, actually responded to the notices that listeners called in, and were prevented from responding to real emergencies.  In light of this sort of incident, the FCC adopted its prohibition against broadcast hoaxes.  But, as we’ve reminded broadcasters before, the FCC hoax rule is not the only reason to be wary on April 1.  Continue Reading In Thinking About April Fools’ Day Pranks, Remember the FCC’s Hoax Rule and other Potential Liability

The recent Copyright Royalty Board decision (see my summary here) setting the rates to be paid by Internet radio operators to SoundExchange for the rights to publicly perform sound recordings (a particular recording of a song as performed by an artist or band) still raises many questions. Today, Jacobs Media Strategies published on their blog an article I wrote on the topic – discussing 5 things that broadcasters should know about music royalties. While the content of the article is, to some who are accustomed to dealing with digital music rights, very basic, there are many to whom the additional guidance can be helpful. The subject of music rights is so confusing to those who do not routinely deal with the topic – even to those who work in radio or other industries that routinely perform music and to journalists and analysts that write about the topic. Thus, repeating the basics can still be important. For those who click through from the Jacobs blog to this one, and for others interested in more information on the topics on which I wrote, I thought that I’d post some links to past articles on this blog on the subjects covered in the Jacobs article. So here are the topic headings, and links to where you can find additional information.

The new royalties set by the CRB represent a big savings for broadcasters. I wrote how the royalties represent a big savings for most broadcasters who simulcast their signals on the Internet. I provide more details about the new rates and how they compare to the old ones here. Continue Reading 5 Things Broadcasters Should Know About SoundExchange Music Royalties

The potential perils of foreclosing on a radio station were evident in a Consent Decree released by the FCC’s Media Bureau yesterday, agreeing to an $11,000 penalty to be paid to the FCC U.S. Treasury before a station could be sold by a receiver to help pay off the debts of an AM radio station owner. The fine was imposed both for an unauthorized transfer of control of the licensee of the station, and because of the failure of the receiver appointed by the Court to keep the FCC fully appraised of the status of the control of the licensee company while FCC approval for the receiver’s control of the station was still pending before the FCC. What this case really shows is that in any foreclosure on a broadcast station where there are competing creditors, an uncooperative debtor or anyone else who could possibly contest the process, anyone attempting to collect obligations owed by a broadcaster needs to proceed very carefully, keep the FCC fully informed of the entire process surrounding the exercise of the creditor’s rights, and be advised by an attorney or advisor very familiar with FCC process in addition to counsel in the local court proceedings. Plus, local counsel and FCC counsel need to work together at each stage of the process to make sure that the proper approvals are obtained from the FCC before the local court actions are implemented.

This case demonstrates, like a case we wrote about last week, the complicated interplay between the actions of local courts enforcing private actions and the FCC enforcing the Communications Act. In this case, the orders of the local courts and other authorities dealing with the receivership of station assets and the stock of the licensee company changed over time. The failure to keep the FCC appraised of those changes really led to the $11,000 fine. The receiver initially asked that he be approved to become the “assignee” of the station, as the court order appeared to indicate that he would receive the assets of the debtor’s estate. In the FCC’s eyes, an “assignment of license” is when the assets and license of a station change hands, so that a new licensee is now the operator of the station. Here, later action of the local court changed the nature of the action to one where the receiver, instead of getting the assets of the debtor, would instead be receiving its stock. Where the licensee remains the same, but a new owner takes control, as was the case here where the receiver took control of the stock of the licensee, the FCC deems that to be a “transfer of control.” That was significant to the FCC in this case. Continue Reading Broadcast Creditors Beware – $11,000 Fine Imposed for FCC Reporting Shortcomings in an AM Foreclosure Action

To help broadcasters sort out the confusing rules about political advertising, we have updated our Political Broadcasting Guide for Broadcasters (note that the URL for the updated version has not changed from prior versions, so your bookmarks should continue to work). The revised guide is much the same as the one that we published two years ago, formatted as Questions and Answers to cover many of the issues that come up for broadcasters in a political season. This guide is only that – a guide to the issues and not a definitive answer to any of the very fact-dependent legal issues that arise in election season. But we hope that this guide at least provides a starting point for the analysis of issues, so that station employees have a background to discuss these matters with ad buyers and their own attorneys.

In looking at the Guide that we prepared two years ago, really not much has changed. But there are some specific updates that should be noted. For instance, sponsorship identification seems to be a hot issue in the last two years. We wrote here about the $540,000 fine paid as part of a consent decree when a Cumulus radio station did not fully identify the sponsor of advertising on a controversial issue of public importance. We have also written here and here about issues that are currently pending at the FCC about the proper sponsorship identification tag that belongs on an ad paid for by a PAC that is funded by one individual. This is an issue to which stations should be alert. The online public file for radio is mentioned, as this will affect how radio broadcasters maintain their political file starting at some point later this year (see our article here about the online public file requirements for radio broadcasters). Also, we note the adoption by many stations of programmatic selling, and suggest that stations need to carefully review how these sales platforms may impact lowest unit rate issues. We have made some other clarifications and revisions as well. Continue Reading Updated Political Broadcasting Guide – Questions and Answers about Broadcasters’ Obligations During this Election Season