The deadline for reply comments on the FCC’s Indecency policy have been extended. These replies  had been due on July 18. But a request from CBI, a collegiate broadcasters organization, asked for more time given the extensive initial comments filed in the proceeding and the fact that college broadcasters have difficulties in responding to issues over summer school holidays.  On Friday, the Commission issued a Public Notice extending the deadline for these reply comments to August 2.

We wrote about the issues addressed in this proceeding here and here. Broadcasters now have a bit more time to work on comments in this important proceeding. Many broadcast applications for station sales and license renewal have been held up by indecency complaints, many of which, under almost any new legal regime, would not amount to anything.  One would hope that, after the replies are submitted, the Commission will quickly figure out their new policies for processing such complaints, so that these delays can be a thing of the past. But, given the difficulties that the Commission has always had in laying out clear lines for its broadcast indecency rules, that may be nothing more than a hope.

Using music in commercials and other broadcast station productions can be treacherous. As we’ve written before, contrary to what some stations might think (based on the questions we often get from broadcasters around the country), a station’s ASCAP, BMI and SESAC royalties do not give them the right to use popular music in their station productions – or in their commercials. Nor do they give you rights to use music in video productions used repeatedly on a station, or on a station’s website. Hearing an award winner at the recent broadcast awards banquet at the Montana Broadcasters Association annual convention thank the music publishers that gave her permission to change the lyrics of a well-known oldie for her PSA for a local animal shelter warms a lawyer’s heart, recognizing that there are broadcasters who understand the rights issues. But from questions that I get all the time, I fear that many other broadcasters don’t.

ASCAP, BMI and SESAC are commonly known as the Performing Rights Organizations (or PROs), as they grant music users only a single right – the right to make public performances of musical compositions (or "musical works"). A musical composition is the words and music in a song – not the actual recording done by a particular singer or band. The composer and lyricist of the song have a copyright in the musical composition, though the right is usually assigned to a publishing company to administer. Each copyright in a composition gives its holder the right to exploit it in several different ways – and then user needs to get the rights to use the composition in any of these ways. The different rights include the right to publicly perform the composition (e.g. to play it before an audience or to transmit it to an audience by means of radio, the Internet or other transmission media). But the copyright holder also has the right to limit users from making reproductions of the composition (e.g. a recording of the song or any other “fixation” of the composition), distributing the composition (e.g. selling it or otherwise making it available to the public), or making a “derivative work” (taking the copyrighted work, using it, but changing it in some manner which, in the case of a musical composition, is probably most commonly done by changing the words of a song). So, for the Montana broadcaster to take a well-known song and to change the lyrics for her PSA required that the broadcaster get permission to make a derivative work (and probably to make reproductions, too, if copies of the re-recorded song were made).

Continue Reading Using Music in Radio or TV Productions – Why ASCAP, BMI and SESAC Licenses Usually Are Not Enough

July has many FCC obligations for broadcasters, both regularly scheduled and unique to 2013. There are the normal obligations, like the Quarterly Issues Programs lists, that need to be in the public file of all broadcast stations, radio and TV, commercial and noncommercial, by July 10. Quarterly Children’s television reports are also due to be submitted by TV stations by that same date. The Quarterly Issues Programs lists have traditionally been a problem area for broadcasters, and the source of numerous fines in connection with FCC inspections and license renewal applications (see, for instance, our article here). Recently, the failure to timely file Children’s Television Reports on Form 398 was the source of significant fines for a number of TV stations in connection with their renewal applications (see our article here). So, obviously, be aware of those dates. But also remember that there are a number of comments due in important FCC proceedings, including those described below, and there is also a July 24 filing deadline for long-form applications by the tentative winners in the recent FM auction and a July 22 deadline for settlement proposals in connection with mutually exclusive applications in the 2003 FM translator filing window.

In connection with comment deadline, the FCC is seeking comment on a study done by MMTC in connection with its multiple ownership proceeding about the effects of cross-ownership of broadcast and newspapers on minority ownership of broadcast stations. Those comments are due on July 22 (see our article here). Also, the reply comments on the FCC’s proceeding to clarify its indecency rules are due on July 18 (see our article here). Comments on stations’ experience with the online political file, and the readiness of smaller TV stations to start uploading documents to that file next year, are due in August, so stations should be preparing their thoughts on this proceeding (see our article here). 

As is seemingly the case every month, July has important regulatory deadlines for broadcasters. Don’t overlook those dates that may apply to you!

The second EEO audit of 2013 was announced by the FCC on Friday– hitting about 240 radio stations being audited this time around (the list of stations to be audited is attached to the FCC Public Notice). The Commission has pledged to audit 5% of all broadcast stations and cable systems each year to assure their compliance with the Commission’s EEO rules – requiring wide dissemination of information about job openings and non-vacancy specific supplemental efforts to educate their communities about job opportunities in the media industry. The form audit letter was also released by the FCC and attached to the Public Notice. Responses from the audited stations are due to be filed at the FCC by August 12. Licensees should review the list of affected stations carefully, as we have noted several typos in this list where the geographic location of the station listed does not match the call letters and FCC Facility Identification Number that is provided. So a quick review by city and state may not catch stations that are listed on the target list. 

While the FCC, in its last audit, slightly revised the audit request to cut down on the burden of compliance (by eliminating the need to produce a copy of every notice sent out to fill every job, allowing instead the filing of a representative copy of a job opening notice and a list of the sources to which it was sent), these audits still require substantial work. And if any station in your cluster is on the list, all stations in that "station employment group" (a group of commonly owned stations serving the same area with at least one common employee) must respond. But, if a cluster has been audited in the last two years, the FCC may allow you to avoid responding to this audit – but you have to request that "pass" from the FCC. If a station that is being audited is involved in an LMA or similar agreement with another broadcaster, the audit may also require that the broker provide employment information as well as the licensee.

All stations should review the audit letter as it provides a good outline of the documents that stations should be retaining to demonstrate their compliance with the FCC’s EEO rules. For more information about compliance with the EEO rules, see our post about an EEO webinar in which I participated, held by the FCC in early 2012 to explain its EEO rules. You may also want to review the last set of fines for EEO violations, about which we wrote here.

It has been almost a year since the FCC adopted rules for an online public inspection file for television stations. This week, the Commission released a Public Notice requesting comments on how the rules are performing – specifically focusing on the online political file. While the Commission’s rules currently require only that the affiliates of the top four networks, in the Top 50 markets, maintain their political files online, the Commission plans to expand that requirement to all television stations in July 2014. But first, it is asking for comments as to how the rules are working so far, whether changes are needed, and perhaps even whether additional information should be required for inclusion in the online political files of TV stations. Comments are also sought on a Petition for Reconsideration filed by various television broadcasters suggesting a different way of complying with the online political file requirements. 

Specific questions on which comments are requested include the following:

  • Have stations encountered particular obstacles in connection with posting documents to the political file?
  • Has online posting become easier over time as station personnel have become more familiar with the process?
  • Are there other steps the FCC could take to make the database more user-friendly?
  • Are smaller stations prepared to use the online file for their political files starting next year? If not, what needs to be done to help them prepare?

The FCC also asks the public, including political candidates and their representatives, to comment on whether they found it easy to access information in the file, whether improvements could be made, and whether the ability to view the file online has been beneficial.  What have interested groups said about the online political file since it was adopted? 

Continue Reading FCC Seeks Comments on Online Political File for TV Stations – Should Obligations Be Changed or Expanded?

In at least 7 decisions released last week, the FCC fined TV stations between $3000 and $18,000 for failure to timely file Form 398 Children’s Television Reports – reporting on the programming broadcast by the stations to address the educational and informational needs of children. In these cases, the fines were not for failing to file the reports at all, but instead for the failure to timely file the reports. All but one of the cases involved Class A television stations, which, as we’ve written before, are being subject to very strict scrutiny as the FCC looks to find some willing to give up their protected status before the upcoming incentive auctions (Class A stations being protected from being bumped off the air by new users – but subject to all the rules applicable to full power stations). In each of the cases involving Class A stations, the FCC has offered to forget the fines for noncompliance, if the station gives up its Class A status and becomes an LPTV station, which has no protections.  If the station gives up its protected status, it will have no rights to receive compensation if it gives up its channel in the incentive auction, or if it is forced to change channels in the repacking of TV channels after that auction. 

These cases all stem from the FCC review of the license renewal of the station. With the obligation to file a Form 398 only two weeks away – the quarterly report being due on July 10 – TV stations, especially stations that have not yet filed their renewals, need to pay attention now to make sure that they don’t miss the upcoming deadline.  With public files now online, the FCC late-filing becomes more visible, and with the television renewal cycle in full swing, many TV stations are either now or soon to be under the scrutiny of the FCC. So meeting these obligations becomes important – as the failures can be costly. And, as set forth below, any time that there are multiple late filings – late by more than 10 days (which the FCC note that it might excuse as de minimis) – a fine is likely.

Continue Reading FCC Fines of Up to $18,000 Proposed for 7 TV Stations For Failure To Timely File Children’s Television Reports – The Big Renewal Issue for TV Stations?

In one week this month, Apple announced that it will get into Internet Radio, and Pandora, the biggest player in that space, announced that it will be buying a traditional, over-the-air radio station. What do these two big announcements say about the state of music royalties for digital music services? Apple’s struggles to get its service launched were well chronicled, as it was working to get an agreement for its new service from the record labels. What was less reported was its simultaneous negotiations with the music publishing community. Pandora’s radio station purchase, on the other hand, was admittedly a simple deal to take advantage of a blanket license available to all similarly situated companies owning radio stations. We’ll explain why these two deals were so different, and what impact the deals may have on other digital music services below.

The Apple deal is one negotiated with the copyright holders for the simple reason that the service that it is offering appears to be an interactive one, unlikely to be completely covered by any statutory (compulsory) or other blanket license. As we’ve written before, a statutory or compulsory license is one where the copyright holder, by law, cannot refuse to make available his or her copyrighted work. But, in return, the copyright holder receives a royalty set by the government – in the US, usually the Copyright Royalty Board. In the music world, the two most common compulsory licenses are the ones that allow webcasters and other digital music services to publicly perform sound recordings (the royalties paid by webcasters, satellite radio and digital cable radio companies to the record companies and artists), and the royalty that allows users (including record companies) to make reproductions of musical compositions in connection with the making of a sound recording, downloads, ringtones, and probably on-demand streaming services. This royalty is commonly referred to as the mechanical royalty, and is paid to songwriters and composers or their publishing companies. To qualify for these compulsory licenses, a company must follow certain rules. If they don’t, then they have to negotiate directly for the licenses from the copyright holder – which appears to be what Apple did.

Continue Reading Apple Announces an Internet Radio Offering and Pandora Buys a “Real” Radio Station – What Does It Mean for Music Royalties?

Sometimes, even though you have FCC authority for your operations, you can still run into issues that can cause you to have that authority pulled out from under your operations. In three cases decided this week, the FCC’s Audio Division interpreted a number of its procedural rules – in two cases leading to the cancellation of FM translator licenses and the silencing of operating translator stations. In one case, the FCC decided that a licensed and operating FM translator had been licensed in error, as it actually created interference to an existing full-power FM station in a populated area, even though the translator application had initially claimed that it would not. In the second case, a translator was forced to cease operations because of interference from a new full-power station. When it did not resume operations within a one-year period, the FCC found that its license was automatically forfeited because of the year’s silence – even though the station had resumed operations in the construction period specified in a construction permit authorizing the translator to operate on a new frequency. These cases make clear how important the FCC’s procedural rules can be – actually leading to what are effectively life or death decisions for the license of a broadcast station.

In the first case, a translator licensee had a construction permit application granted to move to a new transmitter site. After the permit was granted, the licensee of a full-power station filed a Petition for Reconsideration of the grant, arguing that the translator would in fact create interference in populated areas served by its station. Despite the protest, the permittee constructed the translator at the new site, started operations and filed a license to cover the new construction – which was granted by the FCC. In reviewing the evidence filed by the petitioner, the FCC determined that there would in fact be interference caused to the full-power station in inhabited areas, contrary to what had been claimed in the translator’s CP application.  Based on that finding, the FCC revoked the license and underlying CP for the translator. The FCC made clear that a permittee who constructs a station when there is an objection to the underlying CP does so at its own risk. Where, as here, the underlying objection is found to have merit, the mere fact that the permittee had the right to build the station does not give him any grounds to argue that the station should be permitted to continue to operate – rejecting claims by the translator operator that, as there were no complaints of real interference caused by its operation, it should be permitted to continue to operate. Where the translator had prohibited contour overlap with the protected full-power station, and where it was shown that the area in which that overlap occurred was populated (shown by a USGS Topographic map that showed structures in the area), the operation was not permitted to continue.

Continue Reading FCC Decisions Lead to Cancellation of Two FM Translator Licenses and Silencing of Operating Stations – Interference Issues and Time Limits on Being Off Air to Blame

Low Power FM potential applicants, start your engines. The FCC has announced the long-awaited window for the filing of applications for new LPFM stations. The window will last from October 15-October 29. During this period, nonprofit organizations and governmental organizations will have the opportunity to file for new stations on any FM channel anywhere in the country – as long as they don’t interfere with existing FM or FM translator stations (or channel 6 TV stations which operate on a channel adjacent to the FM band). The FCC has done a great job in processing the remainder of the applications from the 2003 FM translator window, announcing a settlement window for applicants in that proceeding that is open through July 22, to be followed by an auction. Substantially completing the processing of those translator applications has cleared the way for the upcoming LPFM window. 

Two FCC Commissioners issued statements hailing the upcoming window and the opportunities that it will present for encouraging more diversity in the media marketplace (see statements of Acting FCC Chair Clyburn and Commissioner Pai). A number of groups that have actively championed LPFM also applauded the opening of the window, some trumpeting plans for workshops across the country to help people prepare for the filing opportunities. We hope that expectations are not being unduly raised. Particularly in larger markets, as the FCC itself has recognized, there will be only very limited opportunities for LPFM applicants, as there is very limited spectrum in those markets not already occupied by FM stations or close enough to existing stations to create interference. As the LPFM rules require that new stations protect existing FM stations from interference on co-channels and first and second adjacent channels, in large markets, there will be little room for new LPFM stations.  Groups thinking about opportunities in those markets need to be prepared to face competition for the few channels that may be available and to be realistic – as there will be many places where no channels will be available to serve a particular part of a metropolitan area.

Continue Reading As FM Translator Settlement Window Continues, the FCC Announces LPFM Window in October – Factors for an LPFM Applicant to Consider

It looks like the FCC’s long-delayed multiple ownership proceeding won’t be decided this summer. The FCC has asked for public comment on the report submitted by the Minority Media and Telecommunications Council ("MMTC") addressing the likely impact on minority ownership of broadcast stations of allowing more media cross-ownership. Moths ago, the FCC delayed the resolution of the proceeding to allow for the submission of this report (see our article here). The issue of minority ownership, and the impact of any ownership deregulation has been one of the big obstacles to any decision in this proceeding. Relaxation of the newspaper/broadcast cross-ownership prohibitions have been proposed, and one might think that the preservation of newspapers might be of paramount importance to the FCC.  In fact, the Commission has been concerned about complaints from certain “public interest” groups who fear the impact that such combinations would have on the potential for more minority ownership. So this report was commissioned by MMTC, an organization dedicated to promoting minority ownership in all media. Now that the report has been submitted, the FCC needs to wait for public comment on its findings before any decisions in the ownership proceeding are made. Comments on the report are due on July 22, and Replies can be filed through August 6.

The FCC has already delayed the ownership proceeding at least once while taking comments on minority ownership issues. See our article from December, when the FCC asked for comments on the impact of cross-ownership on the prospects for minority ownership. The call for the December comments was initiated by the release of an FCC summary of minority ownership gleaned from FCC ownership report filings. In filings made in response to the FCC’s December comment deadline, some parties suggested that the findings of the FCC data revealed that minority ownership prospects were bleak, and that cross-ownership would make them bleaker, while others suggested just the opposite. Others contended that the two questions really were not related – that there were other reasons, like the lack of access to capital, that really explained the difficulties that all potential new media entrants have.  The release of the new study is quite likely to prompt a similar response, with comments likely to present a spectrum of opinions. 

Continue Reading FCC Seeks More Comments on the Effect of Newspaper-Broadcast Cross Ownership on Minority Ownership of Broadcast Stations