Over-the-top video systems, using the Internet to transmit over-the-air TV signals to consumers, are back in the news. Last week, a US District Court Judge in the Central District of California, in a case involving FilmOnX, an Aereo-like service that had been involved in many of the court decisions that had preceded the Supreme Court’s Aereo decision, suggested that such platforms can get that public performance right through the statutory license provided by Section 111 of the Copyright Act – the same section of the Act that allows cable systems to retransmit broadcast signals without getting permission from every copyright holder of every program broadcast on those stations. Just last year, we were writing about the Supreme Court decision in the Aereo case, where the Court determined that a company could not use an Internet-based platform to stream the signals of over-the-air television stations within their own markets without first getting public performance rights from the stations themselves. The new decision raises the potential of a new way for these Internet services to try to get the rights to rebroadcast TV signals.

The FilmOn decision was on a motion for summary decision, and is a very tentative decision – the Judge recognizing that he was weighing in on a very sensitive subject, going where both the FCC and the Copyright Office have thus far feared to tread, and disagreeing with the Second Circuit Court of Appeals that had held the opposite several years ago in the Ivi decision. The FilmOn decision is a preliminary one – subject to further argument before the Judge at the end of the month. Even if adopted as written, the judge recognized the potential impact of his decision, and the fact that it contradicted Ivi and other decisions. Thus, the decision stated that its effect would be stayed pending an immediate appeal to the Ninth Circuit Court of Appeals. So, even if finalized, we have not seen the last of this argument yet. Continue Reading A Compulsory License for Internet TV Platforms to Retransmit Broadcast TV? One US District Court Considering FilmOnX Seems to Think So

On Friday, the FCC announced a consent decree for violations of the requirements that TV stations provide at least three weekly hours of CORE programming addressing the educational and informational needs of children. The operator of eight TV and Class A TV stations in the southeast US agreed to make a $90,000 “voluntary contribution” to the Federal government and to adopt new practices to insure future compliance with the CORE programming requirements. The FCC had held up the license renewals of many of its stations as the licensee had claimed reruns of one-time programs as fulfilling the CORE requirements. As explained in the FCC’s Order, the FCC does not consider such programming to meet the requirements of the children’s television rules.

Under the rules, the FCC has the following requirements for CORE programming meeting the educational and informational (“E/I” in the language used by the FCC) needs of children:

(1) serving the E/I needs of children ages 16 and under is a significant purpose of the programming;

(2) the program is to be aired between the hours of 7:00 a.m. and 10:00 p.m.;

(3) the program is a regularly-scheduled weekly program;

(4) the program must be at least 30 minutes in length;

(5) the program is identified as being specifically designed to educate and inform children through the on-screen display of the E/I symbol throughout the program;

(6) the educational objective and the target child audience are specified in writing in the licensee’s Children’s Television Programming Report; and

(7) the licensee must provide instructions for listing the program as E/I, including an indication of the age group for which the program is intended, to publishers of TV program guides.

In this case, the licensee was deemed to have violated criteria number 3 above – as its programming was not “regularly scheduled.” Continue Reading $90,000 Payment to FCC by TV Owner for Claiming Reruns of One-Time Programs as Meeting “CORE” Children’s Educational and Informational Programming Requirement

It looks like the dates for the FCC incentive auction (where some broadcasters will sell their spectrum to the FCC to be repackaged and resold to wireless companies for wireless broadband purposes) are becoming clear.  After this week’s delay of the consideration of the incentive auction items (see our article here), the drafts of the FCC orders that were not considered at yesterday’s meeting have now appeared on the list that the FCC maintains of items that are circulating among the Commissioners for consideration.  The list includes the following entry with a March 29 auction start date (the June 25 date being the date that the item was first circulated to the Commissioners, “WTB” referring to the FCC’s Wireless Telecommunications Bureau that wrote the order) :

06/25/2015 WTB Broadcast Incentive Auction to Begin March 29, 2016; Procedures for Competitive Bidding in Auction 1000, Including Initial Clearing Target Determination, Qualifying to Bid, and Bidding in Auctions 1001 (Reverse) and 1002 (Forward)

So, for the first time, we have a date attached to the start of the incentive auction. If the incentive auction does in fact go forward as set out in this document in March of next year, the preliminary filings by broadcasters and wireless companies expressing intent to participate in the auction could be due late this year or very early next year, though obviously we don’t know those dates yet.

One cautionary note, this notice with the March 29 date refers merely to an item being circulated – it could be voted down or modified before it becomes final.  This date, as well as detailed procedures for the auction, will become more definitive after the FCC meeting on August 6.  But this notice certainly gives us a look at where the FCC is heading in their incentive auction planning. A deadline focuses the mind – and this date, even if preliminary, should focus all TV broadcasters on their plans for the incentive auction.

Jonathan Cohen of my office and I will be doing a webinar for the Michigan Association of Broadcasters, which will be made available through several other state broadcast associations, in August (it was to be on August 4 but will likely be postponed until after the FCC’s August meeting).  Contact your state association for information as to whether or not they will be participating in the webinar and for registration information.

The FCC issued a public notice seeking comment on a Petition for Rulemaking filed by cable operator Mediacom asking for the FCC to require TV stations, in their license renewal applications, to certify that the licensee will not block any multichannel video programming distributor (i.e. cable or satellite TV) from carrying the signal of the station at the end of a retransmission consent agreement unless the station is accessible over-the-air or by Internet streams to at least 90% of the homes in the market served by the MVPD. Comments on this Petition are due by August 14. This is an initial Petition for Rulemaking (which can be viewed here), so these comments will inform the FCC as to whether to further pursue the proposals made in the Petition through a formal Notice of Proposed Rulemaking which would be needed before a rule change.

Obviously, this petition raises controversial issues. Mediacom asserts that it is looking after the interests of consumers in being able to access television programming – and not losing that access during retransmission consent negotiations. Broadcasters, on the other hand, feel that the ability to remove their signal from an MVPD is their most effective bargaining chip in retransmission consent negotiations. Broadcasters will no doubt argue that they have the rights to their programming and, if the MVPD will not agree to terms for its carriage, the MVPD should no longer have the right to carry the programming. Continue Reading FCC Asks for Comments on Petition for Rulemaking that Would Tie TV License Renewals to Restrictions on Blackouts after the Expiration of Retransmission Consent Agreements

The FCC was today supposed to be considering the adoption of a public notice that would specify the detailed procedures to be used in the incentive auction (see our articles here and here).  In the incentive auction, the FCC will buy the spectrum used by a number of TV stations, repack the remaining TV stations into a more compact TV band, and then resell the vacated spectrum to wireless companies for wireless broadband and other wireless uses.  However, yesterday, it was announced that the consideration of these matters would be delayed until the FCC’s August 6 meeting.

The details of the auction are incredibly complicated. In recent weeks, a number of proposals have been raised about the use of the “duplex gap” between the wireless frequencies to be used for the upload and the download of wireless communications, specifically including debates about whether TV stations that do not sell out in the auction, and don’t fit into the repacked TV band in congested markets, could end up in this band. If TV stations end up in the duplex gap, it would displace unlicensed spectrum users, including wireless microphone users, that were initially to use the spectrum and it could potentially create consumer reception issues for any TV stations that end up in this spectrum removed from the adjacent TV stations, where the spectrum would be used for TV in only a limited number of markets. Continue Reading FCC Delays Consideration of TV Incentive Auction Procedures

In the last month, the FCC has released two decisions dealing with efforts by holders of expiring FM construction permits to retain the rights to construct the technical facilities authorized by that permit beyond the expiration date of the permit. In one case, the FCC announced a policy that, from now on, the construction of temporary facilities will be insufficient to warrant the grant of a license application for a new station. In another case, the FCC decided that a station that had an expiring construction permit for modified facilities to upgrade its station from a Class C1 to a Class C0 station, which had twice expired before and been replaced by a new CP each time, was subject to a competing applications filed the day after the expiration of the most recent CP. It is clear from these cases that the FCC’s Audio Division is taking a hard line on the three year deadline on the construction of new facilities for FM stations, and is reluctant to preserve expiring permits, especially if the permit blocks opportunities for the use of the frequency elsewhere.

The first case involved a permittee of a new station who, immediately before the expiration of the three years that it was given by its construction permit to build the station, turned it on and filed a license application that was quickly granted by the FCC. About 10 days later, the new licensee requested authority to go silent while it sought approval of its construction plans for a permanent facility. The station remained silent for almost a year, before recommencing temporary operations from a different transmitter site pursuant to an STA. When the licensee filed for the renewal of its license and another application to move to a different transmitter site and to change city of license, a competitor objected, arguing that the licensee had misrepresented facts to the FCC about whether its station was ready for its initial operations from its original site and contending that the original license should never have been granted. Continue Reading FCC Takes Hard Line on Efforts to Keep Alive Expiring Construction Permits for Both New FM Stations and Modifications of Existing Stations

Each quarter, my partner David O’Connor and I update a list of the legal and regulatory issues facing TV broadcasters. That list of issues is published by TVNewsCheck and is available on their website, here. Our latest update was published today, and provides a summary of the status of legal and regulatory issues ranging from the adoption of the ATSC 3.0 standard at one end of the alphabet to White Spaces and Wireless Microphones on the other – with summaries of other issues including JSAs, the Incentive Auction, EEO compliance, and Sponsorship Identification, along with dozens of other topics, many with links to our more detailed discussions here on the Blog. So if you are wondering what legal and regulatory issues TV broadcasters should be considering this summer, or are looking for the current status of any proceeding potentially impacting TV broadcasters, check out our most recent updated summary, here.

Twice this morning, I was faced with the question of whether a business needs a license to play a radio or TV station on their premises, once in a story in one of the broadcast trade publications (see the article here, in the You Can’t Make This Up column toward the bottom of the article) about a gas station that thought that they got around paying ASCAP, BMI and SESAC fees by using “6 or 7” consumer radios around the station. After I saw that article, I thought that it was worth writing this article, as the difference between 6 and 7 radios could make a real difference as to whether the business needs to pay music royalties.

Broadcasters need to be careful about urging their clients to play their stations at their business locations. There are very specific rules, and if the rules are not followed, liability can result. But, as detailed below, there are some exceptions to the obligation of commercial establishments to pay ASCAP, BMI and SESAC that apply specifically to establishments that play only FCC-licensed radio or TV stations. But the details of the exceptions must be observed or there can be issues. All of the performing rights organizations have contractors who travel the country, checking out retailers, bars, restaurants, and other commercial establishments to make sure that they are following the rules. There are periodically press reports about these rights organizations seeking royalties (sometimes through legal actions) from coffee shops, nightclubs, and even farmers markets that publically perform music without signing license deals. So these commercial establishments need to know the rules about music use to avoid becoming a target. As set forth below, the rules are very specific, and broadcasters can actually benefit from the exceptions as, in the limited circumstances set out in the Copyright Act, businesses can play music from FCC licensed outlets without a license, but music from other sources could present an issue. But be careful, as there are very specific rules – and the difference between 6 and 7 radios could be a real issue. Continue Reading Does a Local Business Need Licenses from ASCAP, BMI and SESAC to Play My Radio or TV Station on Their Premises?