The Librarian of Congress today announced the appointment of a new Chief Judge for the Copyright Royalty Board.  The new Chief Judge will be Suzanne Barnett, a superior court judge of King County in Seattle, Washington.  This is the first new judge on the three-judge CRB since the judges were first appointed in January 2006, soon after Congress first created the CRB. 

The law governing the Copyright Royalty Board requires that the three judges have different experience.  One must have a background in Copyright law, a position filled by Judge William Roberts.  A second must have a background in economics.  That is the position filled by Judge Stanley C. Wisniewski.  Each Judge is appointed for a six-year term, with the terms staggered so that one seat is subject to reappointment every two years.  The Chief Judge is required to be someone with "at least five years of experience in adjudications, arbitrations, or court trials."  The press release issued by the Librarian of Congress stated that Judge Barnett "hears cases of all types and presides over both jury and non-jury trials. Barnett "has served on all the King County calendars – civil, criminal, family, and juvenile – and at all three superior court locations."  Prior to her appointment to the Bench, she was an attorney in private practice for 16 years.

Continue Reading Librarian of Congress Appoints New Chief Judge of Copyright Royalty Board

The Communications Act’s ban on noncommercial broadcast stations running political and issue advertising was struck down as unconstitutional by the US Court of Appeals for the Ninth Circuit.  While the Court upheld the prohibition on commercial advertising for products and services, the majority of the Court felt that the ban on political advertising could not be justified.  Bob Corn-Revere of Davis Wright Tremaine’s DC office, who is quite experienced in First Amendment litigation and is a frequent speaker and author on these issues, offers this summary of the constitutional issues raised by this case:

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A divided panel of the U.S. Court of Appeals for the Ninth Circuit held that Communications Act provisions that ban political and issue advertising on public broadcasting stations violate the First Amendment.  The court left intact another provision that prohibits commercial advertising on public stations.  The majority opinion in Minority Television Project, Inc. v. FCC, written by Judge Carlos Bea, reasoned that Congress lacked substantial evidence that the ban on political and issue advertising set forth in 47 U.S.C. § 399b was necessary to serve the government’s purpose of preserving the mission and quality of public broadcasting, and that the statute was not narrowly tailored.  At the same time, the court held that allowing commercial advertising would undermine the purpose of public broadcasting to provide educational and niche programming.

Synthesizing three decades of First Amendment case law, Judge Bea wrote that Congress must have substantial evidence to justify a content-based speech restriction “at the time of the statute’s enactment.”  The evidence must show “that the speech banned by a statute poses a greater threat to the government’s purported interest than the speech permitted by the statute.”  The decision principally relied on FCC v. League of Women Voters, a 1984 Supreme Court case that struck down a similar Communications Act prohibition on editorializing by public broadcast stations.  Judge Bea’s opinion also relied on a 1993 commercial speech case, Cincinnati v. Discovery Network, for “[a]dditional instruction on what narrow tailoring requires.  That case invalidated a municipal ordinance that imposed differential regulation on newsboxes, depending on whether they contained commercial or noncommercial matter.

Continue Reading Court of Appeals Strikes Down Communications Act Ban on Political and Issue Advertising on Noncommercial Broadcasting Stations – Analyzing the Issues

Broadcasters are not the only ones with FCC-regulated EEO obligations.  Cable system operators and other MVPDs have similar FCC EEO obligations, requiring wide dissemination of information about job openings and the maintenance of public file information.  In a decision released today, the FCC proposed a $11,000 fine to an MVPD for failing to widely disseminate information about all of its job openings, for failing to keep a public file with the required information about its recruitment efforts, and for not self-assessing its program in a manner in which these issues were discovered and corrected.

This MVPD had only 3 job openings in the period covered by the FCC audit that led to the proposed fine.  For two openings, the company simply relied on its website to advertise for new employees.  For the third, it used Craig’s List.  The FCC, reiterating the position that it has taken with broadcasters (see our article here), said that online recruiting and recruiting through the station’s own internal sources are not enough.  Recruiting efforts need to include other sources designed to reach all of the significant groups in the system’s area.  When working with our broadcast and MVPD clients to design an effective EEO plan, we suggest using efforts like notices to community groups, outreach to educational institutions, the use of employment agencies, and publication in a widely read local newspaper (a relic, perhaps, of 2003 when these rules were first adopted) to achieve the required broad outreach to community groups expected by the FCC.  This case serves as yet another reminder of the seriousness with which the FCC takes its EEO rules.  See our article here for more information about the FCC’s EEO obligations. 

The broadcast and music trade press brought news of a settlement between music companies and digital media services regrading digital music royalties.  Some press reports jumped to the conclusion that the decision had something to do with the royalty rates that Internet radio companies pay SoundExchange for streaming their music on the Internet.  Others expressed disappointment that it did not seem to address that issue at all.  In fact, the reason that the settlement had nothing to do with webcasting was because it was a settlement of a Copyright Royalty Board proceeding involving a totally different right – essentially the right to reproduce a the musical work, i.e. the words and music to a song – not any public performance right that is involved in Internet radio streaming.

As we have written before (including the last time a similar settlement was announced), webcasters pay their royalties principally under Section 114 of the Copyright Act, which sets up a "statutory license" requiring that all copyright holders in a "sound recording" (a recording of a song by a particular artist) make their songs available for public performance to any digital music service that meets certain criteria – including principally that their service is a non-interactive one, where listeners cannot pick the particular song that they want to hear.  In exchange for this right, digital music services pay a fee set by the Copyright Royalty Board.  These fees cover liabilities for music use in a process where a service generates a product that goes from the service to many people, much like radio does in the traditional world, without making any sort of lasting digital copy that would be akin, in the physical world, to a CD or record.  The settlement that was just announced deals with rights that like those paid, in the physical world, by a record company to a music publisher for using a musical composition in a record or CD that the record company is recording with a particular artist, not with the public performance right.

Continue Reading Music Royalty Settlement Announced on Mechanical Royalties – Not A Decision on Webcasting Rates

Three broadcast items are tentatively scheduled for the next FCC meeting, to be held on April 27, according to the tentative agenda released today.  In one expected action, though perhaps moving more quickly than many thought possible, the FCC has indicated that it will adopt an Order in its proceeding requiring TV broadcasters to place and maintain their public files on the Internet.  A second broadcast item will adopt rules for channel sharing by TV broadcasters as part of the plan for incentive auctions to entice TV broadcasters to give up some of their spectrum for wireless broadband use.  Finally, the FCC proposes to adopt a NPRM on whether to amend current policies so as to permit noncommercial broadcasters from interrupting their regular programming to raise funds for organizations other than the station itself.

The first item is to determine whether to require that the broadcasters maintain an Online Public Inspection File, is a controversial issue about which we wrote last week. The proposal for the online file grew out of the FCC’s Future of Media Report (renamed the Report on the Information Needs of Communities when it was released last year, see our summary here).  In that same report, it was suggested that the FCC relax rules applicable to noncommercial broadcasters that limit their on-air fundraising for third-parties, if that fundraising interrupts the normal course of programming.  The Future of Media Report suggests that this restriction be relaxed so that noncommercial broadcasters be able to do block programming from time to time to raise funds for other noncommercial entities

Continue Reading On the Schedule for the April 27 FCC Meeting: Television Public Interest Obligations, TV Channel Sharing and Third-Party Fundraising by Noncommercial Broadcasters

Determining how much interference to full-power FM stations is acceptable from LPFM stations is perhaps, in the long run, one of the most important issues discussed in the FCC’s two orders released two weeks ago clarifying the rules for LPFM stations.  The FCC’s proposals on this issue, and several others, has now been published in the Federal Register, asking for public comments by May 7, with reply comments due May 21.   As we detailed when we wrote about the proposals that have now been published in the Federal Register, while the FCC did away with strict mileage limitations on third-adjacent channel spacings between LPFM stations and full-power FMs as required by the Local Community Radio Act ("LCRA"), it did not totally eliminate all interference requirements.  Instead, it proposed a two-tier system requiring more remediation efforts by LPFMs that operate at less than what had been the required spacings, and lesser interference for stations that did observe the old mileage separations.  The May 7 comment deadline also applies to comments on the FCC’s proposals for second-adjacent channel waivers of the required spacings between LPFMs and full-power FM stations, and on changes to the service rules for LPFMs – including allowing them to operate at powers as high as 250 watts ERP in rural areas.

The ruling eliminating the third-adjacent channel spacing rule as required by the LCRA was published in the Federal Register yesterday, meaning that the rule becomes effective on June 4, but practically that should mean little until the FCC addresses the interference-complaint resolution issues addressed in the Further NPRM.  The abolition of the third adjacent channel spacing rules did leave in place one limitation, that LPFM stations cannot cause more interference than they can under present rules for stations that offer reading services for the blind. 

The Further NPRM also addresses second adjacent channel interference, proposing very strict rules that require an LPFM to cease operations if it creates any interference to a regularly used FM signal – even outside of the full-power station’s protected service contours.  This is essentially the FM translator interference requirement – which has, in the past, caused many translators to cease operations or change their technical facilities to protect full-power stations.  Further details on this proposal are available in our summary of the order.  That summary, however, did not address the proposed changes in the LPFM service rules, which we address below.

Continue Reading May 7 Deadline Set for Comments on Proposed Rules on Interference to Full-Power FM by LPFM Stations, and on LPFM Service Rules (Including Proposal for 250 Watt LPFM Stations)

Communications towers that are not lit as required often bring big fines from the FCC.  In two decisions released today, the Commission followed that precedent.  In one case, the FCC proposed a fine of $17,000 to a tower owner after repeated promises to fix lights that were out did not result in any resolution of the issue after 2 years (problems which, according to the FCC decision, were first brought to the tower owner’s attention by the FCC).  The FCC’s order also said that the tower owner stated that its protocol was to examine the status of the tower lights quarterly, even though the FCC’s rules (Section 17.47(a)) require that there be a direct visual check, or a check of an authorized monitoring system, every 24 hours.  The owner was also required to report to the FCC, within 30 days, stating that that the required lights were back on or with a specific timetable for doing so. 

In a second case, the FCC proposed a fine to the same company for $15,000 for perceived issues at another tower, and indicated that they thought that there might be a systematic problem with the company’s practices – ordering the company to report to the FCC on the compliance status of all of its towers.  These decisions are indicative of how seriously the FCC considers its tower lighting and monitoring rules, given their potential impact on public safety.  So remember to check your tower lights daily, report outages to the FAA when they occur, and promptly fix any problems that may exist. 

As technology changes, the definitions in the FCC rules don’t always keep up.  In a public notice released last Friday, the FCC asked for public comment on what its definition of an "MVPD" – Multichannel Video Programming Distributor – means for purposes of its program access rules. These rules limit exclusive contracts for certain programming that one would normally think of as network cable programming, in order to make that programming available to competing distribution technologies (see this discussion of the application of these rules).  Traditionally, these rules (set out in Section 76.1000-76.1004 of the FCC’s Rules) have been thought to require access to this programming by cable, satellite and other companies with their own distribution facilities (i.e. their own wires or spectrum licenses).  Now, with so much video being delivered over the Internet, companies have begun to offer cable-like services by IP-based delivery mechanisms, and they want access to that programming.  Because of these demands for program access, the FCC has asked for these comments.

The proceeding is summarized more thoroughly in our firms Advisory, available here.  As set out in the advisory, the issues on which the FCC is asking for comment could have broader implications should these IP-based systems be deemed to be MVPDs.  For television broadcasters, such a definitional change could signal the need to reexamine the rules regarding the carriage of local television stations, including whether the must-carry and retransmission consent scheme would have to be grafted onto these Internet-delivered services, a requirement that has thus far been rejected by courts and the FCC.  A reexamination of these definitions, should it occur, could have broad implications.  Comments are due on this matter on April 30, with replies due on May 30. 

While the FCC has not yet started a proceeding to set rules for the auction of television spectrum for broadband purposes, the Commission is taking steps to clear the spectrum in other ways.  Two weeks ago, we wrote about the FCC’s actions proposing to remove the Class A designation from certain LPTV stations that had not met their children’s television obligations.  Since then, the FCC has gone further – proposing to take away Class A status for stations that had been off the air for significant periods of time – even with FCC permission as, according to the FCC, they could not have met the requirement for Class A TV stations that they must provide significant local programming each week (see FCC releases here, here and here, all proposing the termination of Class A status for stations that had been off the air for much of the last two years).  Given that Class A stations are as protected in the same way as a full-power TV station from being permanently displaced by the FCC in any spectrum clearing for broadband, the loss of Class A status may well deny these stations a place on the dial after any repacking of the TV band to accommodate a spectrum auction, or they may not be able to receive any share of the proceeds from any incentive auction that would be available to a Class A station that decided to turn in its license in exchange for compensation from auction proceeds.

In another decision released this week, the FCC denied the request of a television station to move from Hagerstown Maryland to a close-in Washington DC suburb.  While part of the basis for the denial was perceived procedural issues, the FCC also specifically stated that "the Commission’s priorities no longer support such a move" of a station into a Top 10 market while it was considering the consolidation of the TV band to clear parts of it to be auctioned for broadband.  So it appears that, for the foreseeable future, there will be no move-ins of rural TV stations toward any major market.  

And don’t expect to get any slack for rule violations by a Class A TV station, as it seems clear that the FCC is looking to clear the TV band, to the extent possible, to make its job in the incentive auction easier (see this $13,000 fine for a Class A TV station that did not have all required children’s television reports in its public file).  With license renewal coming up for TV stations starting in June, TV stations, especially Class A stations, need to make sure that there houses are in order, as the FCC certainly will be looking carefully.

While rumors are flying that the FCC is rushing to adopt its proposals to require that TV stations put their public inspection files online (see our summary of the proposals here), both the FCC and public interest groups are targeting the public files of television stations – looking to copy some or all of those files.  Rumors are that the FCC inspected the public files of all television stations in at least one city – and asked for copies of the complete files to be produced at the FCC within a day or two, in some cases requiring the copying of several file cabinets worth of material very quickly.  Whether this inspection is a one-shot deal or the start of a program to audit the files of TV stations across the country is unclear.  At the same time, public interest groups have been urging their members to inspect TV station public files across the nation, to copy parts of those files, and to post the information that they collect online.  TV stations across the country need to be prepared for these inspections.

Why these actions now?  Some may think that the FCC is just conducting a random audit, while others may suggest that the demand for complete public files is just a fact-finding mission as part of its rulemaking process.  The more suspicious of broadcasters may think that this represents the FCC sending a message that the online public file is coming, and stations may find it easier to accept the online file rather than facing these demands for the instant reproduction of their entire files to be inspected at leisure in Washington. 

Continue Reading FCC and Public Interest Groups Demand Copies of TV Stations’ Public Inspection Files, As FCC Nears Decision About Requiring That The Complete File Be Posted Online