The processing of the FM translator applications left over from the 2003 translator window marches on. The FCC today announced the window for long form applications for all the translator applications that are no longer mutually exclusive with other applicants. The FCC has asked for long-form applications for these 1239 applications (filed on Form 349 and providing more detailed legal and technical information about the applicant and its proposed operation) to be filed by August 30. The FCC Public Notice about this filing deadline is here. The list of applications that are identified as singletons are here.

Many of these applications are those that filed technical amendments in the recent settlement window eliminating mutual exclusivity with other applications. There are 1239 such applications that could be granted as a result of this action, on top of the applications already identified as "singletons" before the settlement window (see our article here), and perhaps others still subject to FCC processing. The remaining applications, who were not able to resolve mutual exclusivity with other applicants, will end up in an auction at some point in the future. 

In the long-forms, the applicant may make minor changes to its technical facilities that were specified in the tech box on the original application. However, these changes, if made in a market that the FCC deemed spectrum-limited for purposes of LPFM availability, must contain a "preclusion study" showing that they will not impact LPFM opportunities in their markets. Any changes are also secondary to any application filed in the upcoming LPFM window.

Continue Reading Over 1000 New FM Translators Almost Ready for Grant – Long Form Applications Due August 30, Changes Secondary to LPFM Applicants

How do you advertise a business that sells tobacco products and has the word “cigarette” in its name? Apparently, you don’t, at least not on radio and TV stations – based on the teachings of the Public Notice released by the FCC this week, entering into a consent decree with a broadcaster. In exchange for dismissing its investigation of the broadcaster, the broadcaster agreed to voluntarily contribute $15,000 to the US Treasury and adopt a compliance program to monitor the sponsorship identification of commercial messages broadcast on its station. What was the problem? The station tried to avoid the name of a local business that wanted to advertise on the station – The Cigarette Outlet. The station was apparently aware of the prohibition in the FCC rules and in US criminal statutes against promoting the sale of cigarettes on the broadcast airwaves. So it did not want to say the name of the business on the air, as you can’t promote cigarettes. But, it wanted to advertise the other products sold by the business (while cigarettes and smokeless tobacco cannot be advertised on the air, subject to certain limitations, other tobacco products can be promoted). So, in the ads, the station talked about the products sold at the store, and gave its address, phone number and directions to its one and only location. The licensee argued that this should have been enough to identify the sponsor of the ads – as the whole purpose of the sponsorship identification rule (Section 73.1212) is to inform the public about who the true sponsor of an ad is. Here, argued the licensee, there could be no question who the sponsor was – but they just could not say the name on the radio because of the statutory prohibition against cigarette ads.  In the consent decree entered into by the broadcaster, the FCC’s Enforcement Bureau simply said in response to the licensee’s arguments: “The Bureau disagrees with this assertion.” 

No explanation was provided as to why the Bureau disagreed. The FCC’s sponsorship identification rule, Section 73.1212, provides that the true sponsor of an ad for which the station receives consideration must be disclosed in the ad, with certain very limited exception. The rule does provide that, where an ad is for a product or service, the trade name of the product or service can be sufficient identification, and the station need not broadcast the name of the manufacturer, vendor or service provider itself. Yet, in this case, the ad for the products sold by the Cigarette Outlet, and the description of the services that they provided (the sale of the products advertised), was apparently not enough to meet the sponsorship identification rules, at least in the eyes of the FCC’s Enforcement Bureau. So that only conclusion that seemingly can be drawn from this decision is that, if a business has the word “cigarette” in its name, a station is on very dangerous ground trying to advertise any of the products available in the store. Based on this decision, proceed with caution in airing similar ads. 

Fines of $20,000 for violations of the obligations to prepare and file Children’s Television Reports have been flowing out from the FCC as it works its way through license renewal applications filed by television stations over the last year. We wrote about a number of these fines here, when the first wave of fines was issued by the FCC, mostly dealing with Class A TV stations. In the last two weeks, the fines have continued, with a few targeting full power television stations, and many others hitting Class A stations. In several cases, the fines reached $20,000, and included fines not only for the failure to file the reports with the FCC on a timely basis, but also the late placement of the reports into the station’s public file, and the failure to report the deficiencies in compliance on the license renewal forms. There were new cases involving Class A television stations and, as with the last batch of these cases, the Commission made clear that the licensees could give up their Class A status to avoid the proposed fines – not mentioning that, if they did so, they would also be giving up their status as primary station licensees, meaning that they would be secondary to any new full power TV construction (for a new station or a modification of an existing station) and would also lose any protection that they otherwise would have in the repacking of the television band in the upcoming incentive auctions that will sell part of the current TV spectrum to wireless users for wireless broadband uses.

The cases decided in the last two weeks include a $20,000 proposed fine to a full-power station in Louisiana that did not timely file 18 Form 398 Reports during the license term ($17,000 for the late filings and $3000 for not reporting the late filings in the renewal application). In another case involving a proposed $20,000 fine, a Georgia Class A station had failed to timely file 20 Form 398 Reports, and also did not complete 15 Quarterly Issues Programs Lists and place those reports in its public file on a timely basis. With the online public file, compliance with the Quarterly Issues Programs list requirement can be monitored by the FCC, even though such reports are not filed at the FCC. A third $20,000 fine was given to a Class A station that was late with 25 children’s television reports, and failed to identify the failures on the renewal, even though the FCC had inquired about the status of 7 of those reports before the renewal was submitted, and the licensee had admitted its failures to comply with the rules. $10,000 of the fine was attributed to the late-filed public file documents, $7000 to the late-filing of the Form 398s, and $3000 to the failure to admit the violations in the license renewal. 

Continue Reading More Big FCC Fines for Children’s Television Violations

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?