The FCC’s proceeding on its multiple ownership rules, adopting rules that make Joint Sales Agreements “attributable” (meaning that they “count” for multiple ownership purposes – one TV station can’t do one with another unless it can own that other station) and starting a new proceeding to review its other ownership rules, was adopted in late March. Today, notice of these decisions was published in the Federal Register, setting the effective date for the new JSA attribution rule and the date for comments in its new proceeding.  The new JSA rule is effective June 19, giving parties in JSAs two years to terminate their existing relationships (or to get FCC approval through a public interest waiver for a continuation of the JSA).  Comments on the broader ownership proceeding are due on July 7 with replies on August 4.

We wrote about the FCC’s decision in this matter here, and on some of the issues up for comment in the new Quadrennial ownership proceeding here.  The new proceeding will again look at broadcast-newspaper cross-ownership – starting from a presumption that the newspaper-radio ownership ban might be able to be lifted, while the TV-newspaper ban is still in the public interest.  Attribution of TV shared services agreements is also on the table, as are various other ownership rules and clarifications.  We will try to write in more detail about some of these issues in the near future but, for now, start thinking of comments that you might want to submit before the July 7 deadline.  The proceeding is sure to generate some fireworks!

In today’s Federal Register, the FCC is published its new rule on prohibiting the joint negotiation of retransmission consent agreements by stations that are not commonly owned.  According to the notice, “it is a violation of the duty to negotiate retransmission consent in good faith for a television broadcast station that is ranked among the top four stations as measured by audience share to negotiate retransmission consent jointly with another such station, if the stations are not commonly owned and serve the same geographic market.”  We wrote about this proceeding here.  Based on today’s publication, the rule will be effective on June 18. The federal register publication rule is available here.

The National Association of Broadcasters on Monday asked the US Court of Appeals for the District of Columbia to overturn the interim processing policy statement adopted by the FCC’s Media Bureau requiring that the FCC scrutinize every new Shared Services Agreement.  As we wrote last month, the FCC has decided that television Joint Sales Agreements should not be permitted unless the stations involved could be commonly owned.  It also commenced a new rulemaking proceeding to review its multiple ownership rules, including specifically Shared Services Agreements.  The rulemaking notice indicates that the FCC thinks that Shared Services Agreements should be limited, but it is asking for public comment as to what kind of sharing is in the public interest, and which should be prohibited.  Any restrictions on SSAs are but a proposed FCC action, and not any sort of final rule.  Nevertheless, the FCC’s Media Bureau, two weeks before the decision starting the rulemaking proceeding on SSAs, instituted an Interim Policy, effectively requiring a case-by-case analysis of all new agreements that involve sharing arrangements.  It is that interim policy that the NAB is challenging.

What the NAB is saying is that this policy effectively creates new law without the Commission making any decisions in the rulemaking proceeding – effectively prejudging that proceeding even before the public comments have been received.  And the policy does in fact change what had been permitted in the past, as many SSAs had been approved in various FCC proceedings.  Even the standards applied to the evaluation of whether or not such agreements are in the public interest change established FCC policy, e.g. suggesting that any involvement in the financing of one station by another, including the guarantee of a loan, would be impermissible – contrary to explicit decisions by the FCC that loan guarantees were not an ownership attribution issue.  Similarly, options and other potential future ownership rights, under the interim processing guidelines, give rise to a suggestion that the deal is not in the public interest – contrary to FCC decisions made after notice and comment rulemaking proceedings on the multiple ownership attribution policies – that contingent future ownership rights did not give rise to attribution for multiple ownership purposes unless such future interest rights were exercised.  Continue Reading NAB Files Court Challenge to FCC’s Shared Services Agreement Interim Policy

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!