The FCC’s Media Bureau yesterday released a Public Notice asking for comment on a proposal to extend the construction deadline until September 1, 2015 for any construction permit for a digital LPTV station or a TV translator that will expire before that date.  September 1, 2015 is the deadline for all TV translators and LPTV stations to convert to digital or to cease operations.  See our article here on the obligations for LPTV and TV translators to convert to digital by September of next year.  Comments on the proposal for the blanket extension of the construction deadline for these stations are due August 14, with replied due on August 29.

The Commission once before denied a blanket extension of the construction deadlines for all such construction permits (see our article here).  But given how close the impending deadline now is, and the uncertainties over the ability of any new LPTV or TV translator to continue to operate after the incentive auctions (and the uncertainty over just what those auctions will require), the Bureau has asked for comments on this extension deadline.  Interested parties should prepare their comments on this matter by the August deadline.  Obviously, a quick decision will be necessary to be meaningful given the impending deadline for digital conversion – just over a year away.

The FCC on Friday voted to extend its rule about captioning TV video repurposed to the Internet so as to cover not only full television programs, but also clips of those programs.  While the rules already require that TV programming that is captioned when broadcast to be captioned when retransmitted in full over the Internet, the new rules, to be phased in as described below, require that clips of TV programs that were broadcast with captions also be captioned when repurposed for online use.  In addition to adopting the rules for phasing in this new requirement, the Commission also asked several questions in a Further Notice of Proposed Rulemaking, asking some technical questions about the rules that it already adopted, and also whether to expand the requirements to other services and to programming that mixes both programming excepted from TV and programming that is original to the Internet.   

While the full text of the FCC’s decision has not yet been released, from the discussion at the FCC meeting and from its Public Notice about the rules, the outlines of the newly imposed obligations seem fairly clear.  The rules adopted for video clips, and the timeline for the implementation of these rules, are as follows: 

  • January 1, 2016 – captioning for “straight lift” clips, which are defined as a single excerpt of a program that had been captioned when first shown on TV, with the same video and audio as had been broadcast.
  • January 1, 2017 – captioning for video montages – which are collections of clips from different broadcasts, where all had been captioned when broadcast.  
  • July 1, 2017 – captioning for clips of time-sensitive (i.e., live or near-live) programming.  There will be a “grace period” between TV airing and required online captioning of 12 hours for live programming and eight hours for near-live programming.  (The staff confirmed during the post-meeting press conference that once the grace period expires, the posted clip must be captioned; if an earlier, non-captioned version was posted, it must be replaced.)

The Commission discussed that there would be some potential for waivers of these rules for small market stations, but the details of the standards that would apply were not detailed.  Also, there are some limitations on the obligations for posting of video clips that do not apply to the captioning obligations for full-length programs.  Those limitations are discussed below.  Continue Reading FCC Adopts New Obligations to Caption Online Video Clips of TV Programs

The Supreme Court decision in the Aereo case seemed to be the end of the line for the service that was retransmitting television stations signals without consent, as it found that the broadcasters were entitled to an injunction to force Aereo to cease the public performance of their signals without consent.  In fact, Aereo itself seemed to think so too, shutting off its service soon after the decision.  But in a move that was surprising to some, Aereo has apparently not thrown in the towel, and it is now back in Court with a two-pronged argument as to why its service is still viable (see its letter to the Court here).  First, it argues that, as the Supreme Court seemed to think that Aereo acted like a cable system and should be treated in the same manner as a cable system for purposes of determining whether its retransmission of a television stations signal was a public performance, it might as well be treated like a cable system for all purposes, and thus it should be entitled to carry the signals of TV stations pursuant to the statutory license granted to cable systems by Section 111 of the Copyright Act.  Second, it argues that, even if it does not qualify for treatment as a cable system, it should nevertheless be able to retransmit television signals – just not in real time, as the Aereo contends that the Court decision only prevented simultaneous and near simultaneous retransmissions of the television stations’ signals.  Offering once again a fearless prediction – I doubt these arguments will help Aereo any more than did their arguments before the Supreme Court.

Admittedly, their argument that they qualify as a cable system under the Copyright Act has some appeal.  In fact, as we noted in our summary of the oral argument before the Supreme Court, the Justices even asked why the company did not qualify as a cable company.  Section 111 of the Copyright Act defines a cable system as follows:

A “cable system” is a facility, located in any State, territory, trust territory, or possession of the United States, that in whole or in part receives signals transmitted or programs broadcast by one or more television broadcast stations licensed by the Federal Communications Commission, and makes secondary transmissions of such signals or programs by wires, cables, microwave, or other communications channels to subscribing members of the public who pay for such service.

That language is seemingly broad, covering not just what most of us think as a cable system (one that uses wires to transmit TV programming to the customer), as it talks expansively of “other communications channels” to deliver programming.  Of course, when satellite TV started, they were unsure of their status under this definition, and ended up getting a whole new section of the act to determine their ability to retransmit local TV signals to their subscribers.  But even if this section can be read expansively to cover Aereo, what does that get them? Continue Reading Not Dead Yet – Aereo Tries To Reinvent Itself By Arguing that it is a Cable System Entitled to Carry Television Stations Pursuant to the Statutory License

More LPFMs are on the way, and broadcasters have 30 days to file any objections to the coming new stations.  In an order just released by the FCC, the FCC applied its “point system” to select the winning applicant in groups of mutually exclusive applications filed in the recent LPFM window in Western states (as far east as Nebraska and Kansas).  Future selectees in other parts of the country will come in later public notices.  This notice starts the clock on several dates – including a 30 day petition to deny period where full-power stations can raise issues of interference and other issues against applicants, and applicants can raise issues against each other.  The notice also sets a 90 day window for LPFM applicants whose applications were under consideration in this notice to file applications to make changes in their applications – including major changes to new frequencies or different transmitter sites.

The FCC’s notice consists of three documents.  First, there is a description of the action taken by the FCC setting out how the points were awarded to applicants, the options now available to the applicants based on the point system determinations, and the deadlines for the Petitions.  Next, there is a list of the applications that were considered, highlighting the winning applicant in each group of mutually exclusive applicants (or the winning applicants if there was a tie under the point system analysis).  The third document lists all of the applicants on the list who requested waivers of the spacing requirements to full-power stations on second-adjacent channels.  Licensees of full-power stations serving areas near these proposed stations should review these applications carefully. Continue Reading FCC Applies Point System to Resolve Conflicts Between Mutually Exclusive LPFM Applications – Sets Deadlines for Petitions to Deny and Amendments to Applications

The FCC yesterday issued an order imposing a $2.25 Million fine on a set of companies that operated a system that retransmitted TV signals to households in large housing units in the Houston area.  The system had paid retransmission consent fees to the TV stations, then stopped doing so, claiming that it was changing so as to operate as a Master Antenna Television System (MATV).  MATV systems are exempt from paying retransmission consent fees under certain defined circumstances.  This exemption was adopted for apartment complexes and other large residential dwelling units to allow residents to receive over-the-air television so as to not force all of the residents to have an antenna in their own residential units, which might not be feasible or optimal for TV reception.  The problem in yesterday’s case, according to the FCC decision, was that this company did not in fact act as an MATV system, but instead continued to deliver its programming to the dwelling units by means of its fiber connection to a single headend, where TV programs were bundled with traditional cable network programming.  According to the decision, the system continued to transmit TV signals through its fiber network for as much as 208 days after the expiration of the retransmission consent agreements with the TV stations whose signals it was carrying.

FCC rules require that cable systems and other MVPDs (multichannel video programming distributors) receive the consent of TV stations before retransmitting their signals.  The exception for MATV systems is a limited one. It provides that the signals of TV stations be made available to the residents of the dwelling units that are served “without charge and at the subscribers (sic) option” and that the receiving device be either owned by the subscriber or building owner, or “available for their purchase upon the termination of service.”  The Commission further faulted the service for apparently having continued to deliver TV programming to subscribers by its fiber service from its headend, even after installing master antennas at the buildings in which the subscribers lived.  Simply having the antennas available was not enough to excuse the system from the retransmission consent obligations when the actual signals were sent by fiber.  Continue Reading FCC Fines Cable System $2.25 Million for Retransmitting TV Stations Without Consent

The House of Representatives Judiciary Committee last week finished its second hearing on music licensing (written witness statements and a link to the webcast can be found here).  Congressional hearings usually are not in-depth proceedings looking to establish detailed facts as done in a hearing in a court proceeding.  Instead, they are formalized proceedings where parties get to make their canned statements setting out positions on issues.  Congressional representatives themselves make statements setting out their positions on the issues, and ask pointed questions to selected witnesses to reinforce those positions.  Minds are rarely changed, and the truly undecided are rarely illuminated on the issues.  But the hearings do serve to set out the issues that are going to be considered by the Committee in ultimately crafting legislation.  And last week’s hearing did just that – highlighting the issues likely to be considered in legislation promised by the Committee Chair, Representative Goodlatte, who promised an omnibus bill on music licensing, dubbed the “Music Bus,” to address the many issues on the table.

Note that any bill that is ultimately introduced will address many seemingly minor issues – details of process and procedure that don’t make the headlines.  But the big issues are the ones that will cause the most industry argument before the lawyers work out the details.  It’s also important to note that it is very late in the legislative calendar right now, with the Senate not putting the same emphasis on copyright issues as it the House.  With elections coming up in the Fall, and scheduled upcoming summer recess, Congress has much must-pass legislation that will fill up their legislative days before the next Congress is sworn in in January.  The start of a new Congress means that all legislation will have a fresh start.  Thus, any Omnibus bill that is introduced this year will most likely not become law, but instead will set the agenda for discussions for next year in the new Congress.  Certainly, there may be more limited bills that sponsors may try to get stuck on other legislation that must move before the end of the Congressional session, so interested parties will remain vigilant during the final days of this session of Congress.  But what are the issues that are on the table for inclusion in any Music Bus? Continue Reading The Summer of Copyright, Part 2 – The House Judiciary Committee Plans Omnibus Music Licensing Bill – The “Music Bus”

July brings a number of new regulatory dates for broadcasters – including the effective dates of two new compliance obligations for small market TV stations, as well as numerous routine regulatory filing dates.  July 10 brings one deadline for all broadcast stations – it is the date by which your Quarterly Issues Programs lists, setting out the most important issues that faced your community in the last quarter and the programs that you broadcast to address those issues, need to be placed in the physical public inspection file of radio stations, and the online public file of TV broadcasters.

Full power TV and Class A TV stations by January 10 also need to have filed with the FCC their FCC Form 398 Children’s Television Reports, addressing the educational and informational programming directed to children that they broadcast.  Also, by that same date, they need to upload to their online public files records showing compliance with the limits on commercials during programming directed to children.  And there are other new obligations for smaller TV stations that are effective this month. Continue Reading July Regulatory Dates for Broadcasters – New Captioning Obligations, Online Political File for Small TV Stations, Issues Programs List and Children’s Television Reports, and More

In November, the FCC changed its policy regarding the foreign ownership of broadcast stations.  In its decision, about which we wrote here, it agreed to entertain applications seeking “alien ownership” exceeding the 25% limit for foreign ownership of broadcast stations that had previously been in place.  In the modern communications era, with its diversity of media outlets, the Commission determined that the risk of increased foreign ownership was outweighed by the potential for new entrants into the broadcast industry, backed by new sources of capital from outside of the United States.  The FCC did not adopt any blanket rules for permitting higher levels of alien ownership, but instead agreed to consider specific requests for a declaratory ruling on a case-by-case basis to show that foreign ownership of a broadcast station in excess of 25% was not contrary to the public interest.  Despite the invitation to file such requests, as far as we know, none have been filed – until now, and that comes from what is perhaps an unexpected source – Pandora, which is best known as an Internet radio operator.

As we wrote several months ago, Pandora has sought to acquire an FM radio station that operates in the Rapid City, South Dakota radio market.  Its application to acquire the station was opposed by ASCAP, who feared that Pandora would use its status as a broadcaster to ask for broadcaster rates negotiated by the Radio Music Licensing Committee (RMLC) for the public performance of ASCAP music.  ASCAP based its opposition principally on the contention that Pandora had not proved that less than 25% of its stock was beneficially owned or controlled by foreign entities.  Despite Pandora being a company founded in the US by US citizens, headquartered and operating almost exclusively in the US, and traded on the US stock exchanges, ASCAP contended that Pandora had not established that its ownership of a broadcast station would not violate the alien ownership rules.  How could they make such an argument? Continue Reading Pandora Files First Petition for Declaratory Ruling Under FCC’s Liberalized Foreign Ownership Rules for Broadcast Stations

The FCC has extended the time for filing comments in its ownership proceeding.  While comments on the new Quadrennial Review of the ownership rules had been set to be filed by July 7 (see our article here), the Commission has now extended the deadline until August 6 at the request of the Coalition for Smaller Market Television Stations, which wanted more time to develop additional comments, particularly on the issue of shared services agreements.  Reply comments are now due September 8.  This proceeding raises many issues, including not only shared services, but also more basic questions as to whether the FCC should make any changes to the local radio and television ownership limitations, whether it should retain the broadcast-newspaper and radio-television cross-ownership limitations, and a number of more specific issues that we addressed in our article here.

The Commission also today issued its latest statistics on ownership of broadcast stations, broken down to assess ownership by gender and minority status.  Minority ownership and similar diversity issues have been a significant issue in assessing any changes in the multiple ownership rules (see, for instance, our article here about the FCC’s call in 2012 for an analysis of minority ownership in connection with its consideration of changes to the broadcast-newspaper cross-ownership prohibition).  These new statistics may well play into some of the comments filed in the ownership proceeding.  So have your comments ready by the new filing date that has just been set.

The Supreme Court decided the Aereo case (decision here) and, if I can brag a little, the decision was pretty much what we predicted here after the oral argument – a relatively narrow decision finding that there is a public performance of the broadcast television signals retransmitted by Aereo as part of their service.  The Court looked at the service, and concluded that it effectively does what a cable system does with broadcast television stations – it takes their signals off the air and transmits them to the public, and charges a fee for doing so.  The only meaningful difference with Aereo for purposes of the decision was that it did not get the broadcasters permission to retransmit their signals.  Because its performance of the television stations’ signals was not authorized, the Court concluded that the service had violated the rights of the copyright holders, and remanded the case to the lower courts to finalize decisions which will presumably stop the retransmission of station signals unless Aereo gets permission from the TV broadcasters.

The decision was a 6-3 vote of the Court, with the dissenters adopting Aereo’s position that it was not the service that was making the performance, but each individual user, and thus the performance was a private one for which no permission of the copyright holder is necessary (akin to turning on the TV and performing its programming to yourself in your living room, or singing to your family in the car).  The dissenters, led by Justice Scalia, looked at three principal reasons for their conclusions that the majority missed the boat – (1) The statutory provisions and legislative history cited by the majority did not support the decision; (2) Aereo’s technology is different from cable as it sends one signal to one individual when the individual asks for it, as opposed to a cable system which is always sending all the TV signals to its subscribers, and (3) There was no volitional conduct by Aereo to infringe on copyrights – all the conduct actually seeking any infringing content was that of the users (going so far as to suggest that, while Aereo may not have violated the public performance rights of the copyright holders, it might still be contributorily infringing on their copyrights by encouraging the infringement by users).  The majority dismissed these complaints, for many of the same reasons that we have written about before (as summarized below). Continue Reading Supreme Court Finds Aereo Infringes on Broadcasters’ Public Performance Rights – Why the Court Got it Right