With Hurricane Isaac soon to make landfall on the Gulf Coast, the FCC is issuing its usual reminders to broadcasters and other communications facilities in areas that are likely to be affected by the storm.  It has today issued two public notices.  The first Public Notice reminds video providers – particularly television stations, but other video providers as well – that they need to present visually emergency information that they may be conveying verbally on the air so that those that are hearing impaired have access to that information, and similarly that information that is provided visually (e.g. through a crawl), be also provided aurally, or at least alert tones must be used to put the visually-impaired on notice of the fact that emergency information is running on the station.  A second public notice tells communications users that they can use the FCC’s Disaster Information Reporting System ("DIRS") to notify the FCC about service outages that may be caused by the storm

The information about making emergency information accessible is one that is commonly issued by the FCC (see our stories here and here about past warnings).  The FCC reminds  video providers that emergency information must be made available to those with hearing or visual impairments.  For those who are hearing impaired, information must either be provided by closed caption, or by some other means that does not block the closed caption information.  Even where a station is exempt from captioning a story – as many are in the case of breaking news – a visual element must still be provided for all audio information given on the air about "critical details regarding the emergency and how to respond to the emergency."  So stations should do open captions or have their on-air announcers use whiteboards or other means to visually convey the emergency information that they are providing in their commentary.  In the past, big fines have followed from stations that have not provided such information visually (see our post here), and the FCC has made the complaint process easier in recent years, as highlighted by today’s Public Notice.

Continue Reading FCC Issues Reminders to Broadcasters in the Path of Hurricane Issac – Provide Visuals Of Emergency Information and Notify the FCC of Service Outages

I was fortunate enough to spend some time earlier this month in London, at the Olympics. While there, I noticed just how closely the Olympic venues were guarding against any advertising from any non-official Olympic sponsors. This article from the AP notes how even the restroom fixtures had tape covering all brand names to prevent the manufacturers from getting any Olympic tie-in. I witnessed the tape and had puzzled over it many times when in London. At Wimbledon, too, where the tennis finals were held, the drink Pimms Cup, a fixture at events there, was not available as Pimms had not shelled out to be an Olympic sponsor. Again, I can attest that we spectators had to instead drink “No 1 Fruit Cup” which, I am told, was the same beverage. The AP article talks about many other similar enforcement actions taken by Olympic committees, zealously guarding Olympic trademarks. These actions all contain a warning for broadcasters – be very careful using any Olympic trademarks, symbols or other branded content in advertising and marketing campaigns, or those of other big events where trademarks (or service marks, as trademarks are known where they apply to services as opposed to goods) limit the use of the name of the big event.

We’ve written before (here and here) how Olympic sponsors pay big bucks for the rights to sponsor the Olympics, and to get exclusivity to associate their brands with the games. Thus, the sponsors guard their territory carefully, as do the Olympic organizations whose ability to stage the games is dependent on such sponsorship. Thus, when a broadcaster is approached by a local car dealer, who wants to promote an “Olympics of Savings”, or a local gym that wants to show in its commercial its exercise facilities with the Olympic rings hanging over a bank of treadmills, don’t do it, as there could be consequences far beyond the advertising revenues that you receive. And don’t plan your own WXXX Hometown Olympic festival, as that also could bring issues from the Olympic “police.”  (see this video on one local festival that confronted this issue from Comedy Central’s the Daily Show, not the first time that Comedy Central has explained trademark law -see our reference to a Colbert Report story dealing with the same question at the Winter Olympics).  And the Olympics is not the only event over which you should have this concern.

Continue Reading The Olympic Trademark Reminder – Be Careful Using The Names of Big Events Without Permission

Radio stations are once again hearing about the Mission Abstract Data patents, as a firm representing them has been seeking a royalty for the use of the patent for certain digital music storage and retrieval systems. We’ve written about that patent before. When we last wrote on the subject, the patent was subject to review by the Patent Office, which had raised issues appearing to question the underlying validity of that patent. Since then, the Patent Office reversed itself, finding that the patent (as clarified and narrowed by the holder) was in fact valid. But that determination was itself challenged by certain companies that have interests in digital music storage systems for radio stations and, in an order released last week, the Patent Office has once again suggested that there may be issues with the patent that could undermine its validity.

While this development appears promising for broadcasters concerned about the patent, broadcasters need to take this news with a grain of salt.  The Patent Office letter is at best preliminary, and the patent owner can file comments addressing the concerns raised by the Patent Office in the next 60 days, and then the challengers to the patent can reply 60 days after that. As we have seen in the past, a preliminary indication from the Patent Office that the patent may not be valid does not always withstand scrutiny when the final evaluation is completed, after presentations from both sides are received.  So what is a broadcaster to do? 

 

Continue Reading The Latest on Radio’s Digital Music Storage Patent Issue

Radio broadcasters have been receiving invoices from the Radio Music License Committee (“RMLC”), and many are asking whether the invoice is “real.”  Some stations seem concerned that they are being asked to pay some fee that they really don’t owe. The truth is that this is one bill that most commercial stations in fact do owe, and it is a bill that they should actually be happy to pay. RMLC is the committee that represented radio broadcasters in the recent negotiations with ASCAP and BMI, leading to new agreements covering the royalties to be paid to these organizations through 2016. We wrote about the ASCAP agreement, here. The BMI agreement was announced recently, and we’ll try to get a summary of that agreement up on the blog sometime soon. These settlement agreements significantly reduced the amount of royalties that the radio industry as a whole pays to ASCAP and BMI for the public performance of musical compositions on over-the-air radio (and in connection with their digital uses of music as well).   As part of these settlement agreements, the Court overseeing the antitrust consent decrees with ASCAP and BMI, which had to approve the settlements, approved the fees to RMLC as well. 

Under the terms of the Court approval, all stations that either elected to be represented by RMLC in the negotiations (see our article on that election here), or those who elect to be covered by the settlement by signing an agreement with ASCAP and BMI under the terms that RMLC negotiated, are required to pay the fee to RMLC.  The fee funds RMLC operations in the future, and pays for the cost of the litigation and negotiations that led to the settlements.

Continue Reading What is the RMLC, And Why Should a Radio Station Pay Their Bill?

Two big fines for the broadcast of telephone conversations without first getting consent of the person at the other end of the phone were released by the FCC today, and each raises a number of interesting issues. Section 73.1206 of the FCC’s rules prohibits the broadcast, or recording for purposes of broadcast, of telephone calls without first getting the consent of the person on the other end of the phone. In the first case released this week, a broadcaster was fined $25,000 for the broadcast of two phone calls on two commonly-owned stations. In the second case, the same broadcaster was fined $16,000 for a violation of the rule at a different station. These cases are very interesting in that they address and reject many defenses to the fines that were raised by the broadcaster.

The $25,000 fine came in the follow up to a Notice of Apparent Liability which we wrote about here. In this case, a station was accused of airing two calls in a program called “You Fell For It.” A complaint alleged that the station called individuals and put them on the air without notice. The licensee first attempted to defend against the claim on the grounds that the person who complained was not one of the people who was called and put on the air without consent. The FCC found that this was not necessary – any listener to the station could complain about a violation of the rules. The FCC found that this rule is not one where the only complaint can come from the individual harmed by being put on the air – though the FCC does not present any policy basis of why the rule should be enforced if the individuals who are apparently being protected (individuals who want to preserve their privacy by not going on the air) do not complain about the station’s conduct.

Continue Reading FCC Fines of $25,000 and $16,000 for Airing Phone Calls Without Prior Consent

Having broadcast all of the material rules of a station’s contest was not enough to avoid a $10,000 fine for having misleading rules – when there were errors in the contest deadlines posted on a station’s website and in emails sent to contest participants. In an FCC Notice of Apparent Liability proposing a fine for a North Carolina FM station, the Commission also upped the fine from the usual $4000 base fine for a contest violation to $10,000, because the corporate parent of the licensee had been hit with two other fines for contest violations (one in 2009 and one almost two decades ago, in 1994) and as the company had very significant revenues in the past year.

The contest was called “Carolina Cuties”, where contestants posted pictures of their babies on the station’s website, the winning picture to be selected by a vote of station listeners.   The station’s on-air announcements properly stated that the voting could continue through September 5 of last year, with the winner announced on September 6. But, on the website, during a week at the end of August, it was stated that the winner would be selected on September 4.  This was later updated to say that the voting deadline was September 4, but correctly stating that the prize would be awarded on the 6th.   An email to contestants also used the September 4 voting deadline date. Votes were in fact taken through September 5, as announced on the air. Nevertheless, as the website and emails stated that the voting deadline was September 4, the Commission determined that the station contest was not conducted “substantially as announced or advertised,” and proposed to levy the fine.

Continue Reading $10,000 FCC Fine for Failure to Follow Contest Rules – On-Air Rules Were Right, But Online Rules Were Wrong

 The Online Public File for television stations is now a reality. While appeals of the imposition of the rules remain pending, both the FCC and the US Court of Appeals denied stays of the August 2 effective date for the new requirements, so full-power and Class A television stations should now be complying with the new obligations to maintain their public files online. The Online Public File is hosted by the FCC, and uses the FCC’s newly created system for uploading, storing and accessing the documents. So far, the system seems to be functioning with a minimum of problems, though one or two glitches have been reported here and there.

Documents that stations file with the FCC are supposed to be uploaded to the Online Public File automatically by the FCC, so individual stations do not need to worry about importing them into the new system. We have heard that this may not have occurred in every instance, so stations should check their files to be sure that the proper uploading has in fact occurred. Other documents will need to be uploaded by the stations themselves, and stations will also be responsible for maintaining and monitoring the file, and deleting documents when their retention is no longer required.

Just what are the requirements for the new online public file? The FCC has put out its own Frequently Asked Questions, available here. There are many other questions that will no doubt arise over time.  We have tried to do our own summary of the obligations as we know them in the answers to common questions that we are getting about the obligations under the new rules.  Those questions and answers are set out below.

Continue Reading Questions and Answers About the TV Online Public Inspection File

FCC Annual Regulatory Fees are due to be submitted to the FCC by 11:59 PM on September 13, 2012, according to a series of public notices issued by the FCC.  The FCC’s Public Notice providing the instructions for broadcaster’s fees is available here. As set forth in that notice, the Commission will no longer be mailing a reminder to broadcasters about these fees, so stations need to remember their obligations on their own.  The FCC’s website, www.fccfees.com , will provide information about the fee filing process and the amounts that stations owe.  The amount of the obligations are based on the class of the station and the population within the station’s coverage area. 

Fees are computed as of October 1, 2011, the start of the FCC’s last fiscal year.  For stations that have in the last year received upgraded their facilities, or built out new construction permits for new stations, the fees are still paid based on the status of the station as of October 1, 2011.  Stations pay fees not only for their main licenses, but also for boosters, translators and auxiliary stations (e.g. STLs).  Parties who have financial hardship or other reasons that they cannot pay the fees can ask for a waiver.  Another public notice sets out the standards for a waiver showing. 

Continue Reading FCC Sets Deadline for Annual Regulatory Fees – September 13, 2012

About 6 years ago, I started the Broadcast Law Blog, with a colleague now at the FCC, while at the law firm of Davis Wright Tremaine LLP.  I want to thank that firm for the support that they gave to me and the Blog, which has allowed its readership to grow to heights that I hardly could have imagined when it was started.  Recently, I made a change in law firms, moving to Wilkinson Barker Knauer LLP.  Davis Wright has been kind enough to allow the Blog to follow me, so this is the first of many posts to come at the new firm.  Look for new articles on legal developments for broadcast and digital media issues from me and my new colleagues at Wilkinson Barker.

All of the old articles that I wrote will continue to be available in the archives on the Blog.  Some of the old articles written by other attorneys at Davis Wright will be removed from the site in the very near future, but in most cases I hope to provide links to articles on related topics in their place.  In the coming weeks, I’ll also be trying to catch up with the many legal developments that took place in the last two months – including questions that have been raised by the effective date of the online public file for television stations, a number of music licensing actions and decisions including a decision on the constitutionality of the Copyright Royalty Board and decisions that could impact various rights and interests of music publishers and music users, a decision by the FCC on noncommercial LMAs, and a number of interesting fines and enforcement actions that have come out of the Commission.

So we thank you for your past readership and support of the Blog, and hope that you will continue to follow us in the future.  And look for information from us in other places as well.  If you haven’t already done so, check out the mobile version of the Blog so that you can read current articles on the go.  Follow me on Twitter for updates on articles on the Blog and other related legal issues, and watch for a Facebook page (coming soon) with many similar posts.  Certainly let us know if you have questions or comments, post them here or contact me directly.  And, if you’re even looking for a lawyer to assist on the issues that we write about, let us know!