Two weeks ago, we wrote about the complaints filed against 11 big-market TV stations about deficiencies in the political broadcasting paperwork in their online public file.  This week, the FCC’s Office of Political Broadcasting in its Media Bureau sent letters to all of the stations involved, asking that the stations respond to the complaints and provide details about the factual assertions that were made, by May 27.  At the same time, the FCC Chairman issued a Statement, reminding TV broadcasters of the importance of the political file, and how seriously the FCC takes any violations of its rules.

While having the FCC staff respond to complaints with requests for more information is not unusual, the speed with which the letters were sent is.  Rarely does a complaint trigger an FCC response in less than two weeks.  And rarer still is an accompanying press release from the FCC Chair talking about the importance of the subject matter of the complaint.  These actions only serve to highlight what we wrote last week – that stations need to be vigilant in reviewing their online public files – and particularly the political files – to make sure that the records are accurate and timely.  And, as stations in smaller markets need to be ready to put their political files online by July 1, they need to be prepared as well.  Continue Reading FCC Chairman Reminds TV Broadcasters of the Importance of their Online Political File Obligations as its Staff Investigates Complaints about Deficiencies

On Friday, the Copyright Office extended by one week the deadline for comments on its wide-ranging proceeding on the current music licensing regime and whether reforms are necessary or appropriate.  We wrote about the proceeding and the many questions that it raises here.  Comments are now due on May 23.  Comments can be filed on the Copyright Office website, here. 

In addition, the Copyright Office announced a series of three roundtable discussions to be held at different sites across the country – in Nashville, Los Angeles and New York.  At these roundtables, stakeholders in the music industry and interested members of the public can address the issues raised in the Inquiry.  Interested parties who want to be considered for guaranteed participation in the round table discussions need to sign up by May 20, using the form available here.  At that same link, the discussion topics for these roundtables are set out – covering the broad range of music royalty and licensing issues raised in the Inquiry.  Clearly, this is an important proceeding in which many in the music and media industries will want to participate – but it is just one of many proceedings that may affect the way that broadcasters and digital media services use music in the future. Continue Reading Copyright Office Announces One Week Extension for Comments on Music Licensing Inquiry and 3 Roundtable Discussions of the Issues – Just One of Many Proceedings Affecting Music Rights and Royalties

The Zapple Doctrine was an outgrowth of the FCC’s Fairness Doctrine.  The Zapple Doctrine required that broadcast stations that give air time to the supporters of one candidate in an election give time to the supporters of competing candidates as well. Even though the Fairness Doctrine has been defunct for years, having had various manifestations of the Doctrine declared unconstitutional either by the Courts or the FCC, Zapple apparently lived on, or at least a death certificate had never been issued (see, for instance, our articles mentioning the continued life support of the Doctrine, here and here).  Thus stations had to be concerned about giving air time to supporters of political candidates for fear of having to provide a similar amount of time to those supporting competing candidates.  Apparently, that uncertainty has now been resolved, as in two just released cases, the FCC”s Media Bureau has declared that Zapple, like the rest of the Fairness Doctrine, is dead.

The cases just decided (available here and here) both involved the recall election of Wisconsin Governor Scott Walker, where complaints were filed against the renewals of two radio stations, complaining that those stations did not provide equal opportunities to supporters of Walker’s recall opponent even though station hosts provided on-air support for Walker.  The FCC rejected those complaints, declaring:

Given the fact that the Zapple Doctrine was based on an interpretation of the fairness doctrine, which has no current legal effect, we conclude that the Zapple Doctrine similarly has no current legal effect.

So why didn’t the FCC’s equal opportunities rule, which is still in effect, apply to this situation? Continue Reading FCC Decides that it will No Longer Enforce the Zapple Doctrine – Killing the Last Remnant of the Fairness Doctrine

This week brings news that a Virginia broadcaster has brought suit to have a court declare that broadcasters who stream their signal on the Internet, but limit the reception of the signal to within 150 miles of their transmitter site, should not have to pay royalties to SoundExchange.  As we have written before, when Congress adopted the digital performance royalty for sound recordings in the late 1990s, there was an absolute exemption from the sound recording performance royalty for broadcast transmissions, embodied in Section 114(d)(1)(A).  That exemption is not limited by the 150 mile rule.  However, there is another section of the law, Section 114(d)(1)(B), that also exempted from royalty payments retransmissions of broadcast transmissions.  The law exempted from the 150 mile limit those retransmissions done by other broadcast stations.  Thus, FM translators, for instance, can rebroadcast their primary station beyond the 150 mile rule without triggering a sound recording performance royalty.  So what was the section on the 150 mile zone for retransmissions intended to cover?

This issue was raised back in the early days of webcasting, when questions were raised as to whether simulcasting of broadcast transmissions were covered by the 150 mile rule.  There was some thought that it was in the early days of Internet radio.  In the first webcasting decision (the one conducted by a Copyright Arbitration Panel – or CARP, before the Copyright Royalty Board came into existence), evidence was cited that Yahoo! Music, growing out of Mark Cuban’s Braodcast.com which built its business on the retransmission of broadcast station’s over-the-air signals, had set up its royalty structure negotiated with the record labels to take into account that broadcast simulcasts would be exempt.  But the Librarian of Congress issued a ruling rejecting that premise for a number of reasons.  See the decision here.  These included that, because Internet retransmissions of broadcast signals could not be geographically limited, they could not be encompassed within the 150 mile exception of 114(d)(1)(B).  The Librarian read the exception as encompassing only retransmissions that could be limited to being wholly within the 150 mile zone.  The Librarian also looked at Section 112, and did not find a similar exception in that section which grants a statutory license for the ephemeral copies made in certain transmissions, and thought that such an exemption would be necessary for the retransmission of broadcast signals on the Internet. (We have discussed ephemeral rights before, see e.g. here and here). There the issue sat until the case filed last week. Continue Reading Broadcaster Asks Court to Declare that Internet Simulcasts of Radio Station Exempt From SoundExchange Royalties If Geo-Limited to a 150 Mile Zone

On June 6, FCC application fees are going up by 8%.  The new fees were published in the Federal Register yesterday, here.  This Federal Register publication sets out all of the new fees.  To make sure that your applications are processed on a timely basis, be sure to pay the proper higher fees, starting on June 6. The old fees have been in place since 2009 (see our report here), so remember to adjust to the new fees.  The fees for the most common broadcast services are set out below: Continue Reading FCC Application Fees Going Up By 8% – Effective June 6, 2014

On Friday, the Copyright Royalty Board published in the Federal Register a proposal for changes in its recordkeeping rules – suggesting more detailed requirements for larger webcasters who are required to report the songs that they play on a “census” basis – that would be most webcasters who are required to report the songs that they play, how often they were played, and how many people listened when they were played each time.  Conversely, for the smallest of webcasters, those who pay a “proxy fee” so that they do not have to report the details of how many listeners were listening to each song that was played, the questions asked by the CRB are geared to potentially expanding the universe of those who do not need to report.  Comments are due on June 2, with replies due on June 16.  Given the potential economic impact that these proposals could have on businesses of all sizes, anyone steaming their music on the Internet and reporting to SoundExchange should carefully consider the details of the Notice of Proposed Rulemaking and whether to submit comments in this proceeding.

The proposals to require more detailed recordkeeping originated from SoundExchange, which filed a Petition for Rulemaking asking that the CRB adopt new rules on a number of issues.  The Board last comprehensively visited this topic in 2009 (see our summary here).  The Board’s Notice of Proposed Recordkeeping poses a number of questions that were raised by SoundExchange, and asks for public comment.  What are these proposals? Continue Reading Copyright Royalty Board Starts Rulemaking to Change Recordkeeping Requirements for Commercial and Noncommercial Webcasters

The Campaign Legal Center and Sunlight Foundation filed FCC complaints against 11 major market TV stations across the country alleging that these stations had inadequate online political files.  The Center issued a press release about its filings, stating that these complaints “exposed widespread noncompliance with the disclosure requirements” of the law.  The press release went on to say “[w]ithout this information, viewers are denied important information about the organizations and individuals seeking to influence their vote through these ads.”  While the complaints ask that the FCC take appropriate action against these stations, including fines, and begin an education campaign to make sure that other stations don’t repeat these mistakes as the political file goes online for stations in smaller markets on July 1 (see our article here about the FCC’s reminder about this obligation), just how serious were the discovered deficiencies?  As discussed below, many of the issues raised seem to be minor, but they put stations on high alert that their online public files will be scrutinized and must be kept up to date with the utmost care. 

The complaints themselves (which are available through links in the press release) do not reveal widespread systematic violations of the FCC rules.  Instead, each complaints cites a single instance where the station named in the complaint in some way evidenced some noncompliance with the rules. And many of those instances of noncompliance are quite minor.  In each case, the complaints were about disclosures made about the sponsors of issue advertising.  The ads were from non-candidate groups.  In some cases, the ads named a specific political candidate, and alleged that they had voted the wrong way on some specific issue.  Other ads urged viewers of the station to call that Congressman to tell them to vote in a particular way on some issue of importance pending in Congress.  The complaints did not allege that the public file did not contain the names of the sponsors, or the amount that was spent on the ads, or the times at which the ads were to run.  Instead, the allegations in many of the complaints were that, in a single instance, the public file disclosures identified the candidates who were being attacked, but not the issue on which they were attacked.  Is this a violation of the rules? Continue Reading Complaints Filed against 11 TV Stations Alleging Deficiencies in their Online Political File – Warning to Stations, Your File is Being Watched!

Last week, the Copyright Royalty Board published in the Federal Register its decision on Internet radio royalties for 2011-2015.  The question that I received many times since the publication last week is “huh, didn’t we already see that decision a long time ago?”  Indeed we did – the original decision setting the rates was reached in December 2010 (which we wrote about here and here).  But, as many will remember, there was also an intervening decision finding that the CRB had been unconstitutionally established.  The Court remedied the unconstitutionality by changing the law’s provisions dealing with the ability of the Librarian of Congress to remove the Judges, and sent the decision back to the CRB to redo the 2010 decision.  The redo is the result that was released last week.  While the new decision did not change the rates for webcasters, it did contain some new analysis that presents some interesting insights into the Judge’s thought processes that may be relevant to webcasters who will be affected by the recently started proceeding to determine rates for 2016-2020.  As the three Judges on the CRB have all arrived on the CRB since the 2010 decision, this rewritten decision provides some insight as to how they are approaching the new proceeding. 

By the time the decision declaring the unconstitutionality of the “old” CRB was reached, the only party left fighting the decision was Intercollegiate Broadcasting Systems, a group of college broadcasters.  All of the commercial broadcasters had either settled their royalty disputes, or dropped out of the proceeding (see our summary of the rates entered into by parties as part of the Webcasters Settlement Acts).  Thus, no commercial webcasters participated in the remanded proceeding before the CRB.  The CRB noted the lack of any challenge to the commercial rates, and given that they were not challenged, and that they fell in a zone of reasonableness, they were adopted.  But, in determining that the rates were in the zone of reasonableness, the CRB did not just pay lip service to reviewing the prior decision, but it instead did a full review of that decision.  And, some of the discussion that they offered may arise again in the new proceeding. Continue Reading Copyright Royalty Board Reissues Decision on Internet Radio Royalties for 2011-2015 – Same Rates But New Analysis

Some quick items to update some of our recent articles.  The FCC has granted extensions of time to comment in two rulemaking proceedings, and released its tentative agenda for its next open meeting where it will adopt an initial order in the incentive auction proceeding.  That’s the proceeding that we most recently wrote about here by which the FCC will begin the process of paying TV stations to surrender their licenses so that the spectrum can be repurposed for wireless broadband purposes.  The FCC’s tentative agenda indicates that the Commission is sticking firm to its plans to adopt some basic rules for the incentive auction at its May 15 meeting.  Apparently, other issues – including the details of the auction bidding procedures, the specifics of spectrum repacking for stations that keep their frequencies, the treatment of secondary services (LPTV and TV translators) and other issues – will be covered by later orders.

As for the extensions, the FCC has granted requests for extensions of time for public comment in two different FCC proceedings.  In the proceeding on the potential abolition of the network nonduplication and syndicated exclusivity protections (about which we wrote here), which proposes to get rid of the FCC rules that allow local TV stations to force cable and satellite television companies to delete programming from distant TV stations that duplicates the programming that the local station carries, the FCC agreed to extend the comment deadline to June 26, and the Reply Comment Deadline to July 24. The request was made by the NAB, which needed time to hire experts to study the impact of these rules.  The FCC also extended the deadline for comments in the proceeding to require local broadcast stations to come up with ways to broadcast emergency information in the language of any significant population in the their service area that did not speak English (which we wrote about here).  The FCC issued a public notice extending the comment deadline to May 28, and the deadline for reply comments until June 12.  The extension was granted following the request of MMTC (Minority Media Telecommunications Council), which was the proponent of the rule change.   New dates to get in your two cents on these important proceedings.

It’s political season, and somewhere, some on-air broadcast air personality is making the decision that they really want to change careers – and run for political office.  We’ve written about what a broadcaster needs to do when that decision is made by one of their personalities, but I guess not every broadcaster reads this blog, as a story in the Salem (Oregon) Statesman Journal from last week shows that there is still some confusion about what the rule provides.  So it is time for a little refresher on the issues that arise when an on-air personality runs for political office. 

We wrote about the issue last year, when a Chicago-area on-air talk show host decided to run for local office.  Then, we noted that the requirement that a station provide equal opportunities to a candidate who is opposing the on-air personality kicks in as soon as you have a legally qualified candidate – one who has filed the necessary paperwork to run for an office. The application of the equal opportunities rule (or “equal time” as some refer to it) is not limited to the 45 days before a primary or the 60 days before a general election (those windows apply only to the application of the lowest unit charges that have to be made available to candidates), and equal opportunites applies to state and local as well as Federal candidates. Once a candidate is qualified, even outside of the “political window”, equal opportunities apply.  Continue Reading Equal Opportunities Issues that Arise When a Broadcast On-Air Personality Runs for Political Office