We recently wrote about the FCC’s new rules requiring the captioning of television video retransmitted on the Internet.  Those rules have now been published in the Federal Register, which sets the effective dates for the implementation of those rules.  The rules become effective on April 30, which means that any video that is broadcast on TV on or after that date, that has captions when broadcast, must also have such captions when transmitted online at any time after September 30 (giving parties some time to work out technical issues with online captioning).  Further details about this deadline, and the deadlines for captioning other video that is distributed online, is available in our Advisory on the Online Captioning Compliance Deadlines, here. 

With April Fool’s Day only a few days away, we need to repeat our annual reminder that broadcasters need to be careful with any on-air pranks, jokes or other jokes prepared especially for the day.  While a little fun is OK, remember that the FCC does have a rule against on-air hoaxes – and, of any day in the year, April 1 is the day that the broadcaster is most at risk.  The FCC’s rule against broadcast hoaxes, Section 73.1217 of the Commission’s Rules, prevents stations from running any information about a "crime or catastrophe" on the air, if the broadcaster (1) knows the information to be false, (2) it is reasonably foreseeable that the broadcast of the material will cause substantial public harm and (3) public harm is in fact caused.  Public harm is defined as "direct and actual damage to property or to the health or safety of the general public, or diversion of law enforcement or other public health and safety authorities from their duties."  Air a program deemed a hoax, and expect to be fined by the FCC.

This rule was adopted in the early 1990s after several incidents that were well-publicized in the broadcast industry, including one case where the on-air personalities at a station claimed that there was someone at the station who had taken them hostage, and another case where a station broadcast bulletins that announced that a local trash dump had exploded like a volcano, and was spewing burning trash around the local neighborhood.  In both cases, first responders were notified about the non-existent emergencies, actually responded to the notices that listeners called in, and were prevented from doing their duties responding to real emergencies.  In light of these sorts of incidents, the FCC adopted its prohibition against broadcast hoaxes.  But, as we’ve reminded broadcasters before, the FCC hoax rule is not the only reason to be wary on April 1. 

Continue Reading April Fools Gags on Air? Play It Safe, and Remember the FCC’s Hoax Rule

SiriusXM announced that is has filed a legal action, including antitrust claims, against SoundExchange and A2IM (the American Association of Independent Music – the association of independent record labels), charging, according to a press release, these two organizations "with unlawfully interfering in SiriusXM’s efforts to secure, through a competitive market, copyrights critical to its business. The complaint contends that the conduct violates federal antitrust, as well as New York state law." The claim is essentially that these defendants conspired to prevent SiriusXM from negotiating direct licenses with musicians, licenses that could take music out of the royalty scheme administered by the Copyright Royalty Board, where royalties are paid to SoundExchange.  We wrote about the attempts by SiriusXM to negotiate such direct licenses, and the opposition of music groups to these agreements, last year. 

Why would SoundExchange and A2IM oppose direct music licensing?  One reason is that music licenses that are directly negotiated between music users and rights holders are traditionally the best evidence of the value of music.  In recent rate court cases involving performing rights organizations, direct licenses formed crucial evidence of the value of music rights.  In cases dealing with ASCAP and BMI royalties for "business establishment" or "background music" services, evidence of direct licenses at rates significantly lower than previously established resulted in court decisions dropping rates by as much as two-thirds from the rates that ASCAP and BMI had previously been charging.  Were SiriusXM to be successful in its suit, and if it is in fact able to negotiate direct music licenses for substantial catalogs of music at rates lower than what it has paid under previous rate decisions, it would presumably introduce such evidence in proceedings before the Copyright Royalty Board (which is now in the process of setting the rates for the public performance of sound recordings by SiriusXM over its satellite service for the next 5 years), and argue that these direct deals are the best evidence of what a willing buyer and willing seller would agree to in a competitive marketplace. While the rates set by the CRB for SiriusXM are not like Internet radio rates and established solely based on a willing buyer, willing seller test, the question of marketplace rates is still a very important component to any CRB decision setting those rates (see our article here on the rates that SiriusXM currently pays to SoundExchange and the standard used to set such rates). 

Continue Reading Sirius XM Brings Law Suit Against SoundExchange Alleging Collusion to Stop Direct Licensing of Music – Impact on Royalties?

The FCC has extended to April 17 the date by which Reply Comments must be filed in the Commission’s multiple ownership proceeding.  Comments were to have been filed by April 3, but several public interest groups requested more time to respond to comments filed in the proceeding by media industry groups and also to see whether the Supreme Court decided to review the decision of the Third Circuit Court of Appeals decision overturning the FCC’s 2007 revisions to its ownership rules (we summarized the Third Circuit decision here).  The groups requesting the extension expect that, by April 13, the Supreme Court will decide whether or not to hear appeals of the Third Circuit decision filed by media companies and the NAB.  While the groups asked for a 30 day extension, the Commission only granted two weeks, to April 17.

This proceeding is examining all of the FCC’s ownership rules, and specifically proposes abolition of the radio-television cross-ownership rule and liberalization of the rules limiting the common ownership of broadcast stations and daily newspapers.  The FCC has also indicated that it is looking closely at television shared services agreements, and at circumstances in which waivers of other local ownership rules might be appropriate.  For more information about the specific proposals advanced by the FCC, see our summary of this proceeding here. 

In part one of our report on the FCC’s recent actions on LPFM issues, we wrote about the FCC decisions about what to do with pending FM translator applications that may have an impact on LPFM availability. In this part two, we discuss the Commission’s separate order addressing the provisions of the Local Community Radio Act eliminating third-adjacent channel spacing restrictions between LPFM stations and full-power stations and otherwise modifying the interference protection standards that apply to these stations.  In a third part of this series, to be published soon, we will report on the proposals for changes in the LPFM service rules.

The impetus driving Congress in its adoption of the Local Community Radio Act ("LCRA") was the desire of LP FM advocates for the elimination of all third-adjacent channel protections between LPFMs and full-power FM stations. While the statutory changes mean that LPFM stations do not need to be spaced at any particular distance from third-adjacent channel FM stations, the changes do not completely eliminate all interference protections afforded to full-power stations. In fact, the LCRA sets up a very extensive scheme where LPFM stations must work to resolve any interference that is created to adjacent channel full-power station. The Commission set forth its reading of the statutory requirements, summarized below, and asked for public comment on that interpretation.

Continue Reading FCC Clarifies Rules for LPFM – Part 2 – Interference to Full Power FM Stations

The status of LPFM stations has been up in the air almost since they were first created over a decade ago, as the FCC has been slow to open a window for filing applications for new stations while controversies about interference with full-power FM stations and FM translators, and other issues, were being hashed out. This past week, the FCC issued two orders interpreting the Local Community Radio Act ("LCRA") passed by Congress in late 2010 (which we summarized here), and clarifying other issues affecting the service.  This article will discuss the first of the two orders – attempting to resolve the priorities between LPFM stations and the thousands of applications for new FM translators still remaining to be processed from the FCC’s 2003 FM translator window. Subsequent articles will discuss the second order (which also contains a Notice of Proposed Rulemaking asking for public comment on several proposals).  That order and NPRM addresses the interference protections between LPFM and full-power FM stations, the elimination of third-adjacent channel protections, and proposes some changes in LPFM rules, including proposals to allow LPFM stations to operate with up to 250 watts ERP in smaller markets, and even to operate FM translator stations of their own.

The first order attempts to resolve the issues about the FM translator applications that have been pending since 2003.  LPFM advocates contend that the thousands of applications that remain to be processed will foreclose LPFM opportunities, particularly in larger markets, by using up all available spectrum.  The translator applicants, on the other hand, have contended that translators provide an important service – expanding the reach of noncommercial stations and now allowing new outlets to more readily make available to the public the signals of AM stations and FM HD streams.  The order sets out markets where the FCC has found that spectrum is indeed limited for LPFM opportunities, where translator applications will be dismissed to provide opportunities for a certain base level of  LPFM service.  The order does not fully adopt the system proposed in the FCC’s July NPRM in this matter (see our summaries here and here)  which would have required the blanket dismissals of all translator applications in spectrum limited markets.  Instead, it provides opportunities for some translators to be processed even in these markets with limited LPFM opportunities, where it can be shown that these translators do not in fact block such opportunities. This is detailed below, as are the rules that the FCC has adopted which set local and national limits on the number of applications from the 2003 window that one applicant can continue to process and some changes in the rules regarding FM translator use by AM stations.

Continue Reading FCC Clarifies Rules for LPFM – Part 1 – What to Do With FM Translator Applications From the 2003 Filing Window, and Using Translators for the Rebroadcasting of AM Stations

The Commission’s Fifth Report and Order on the Emergency Alert System (EAS) has now been published in the Federal Register, establishing the effective date of the rules as April 23rd.  We previously issued an Advisory, available here, summarizing the Order, which was adopted in January of this year.  This Fifth Report and Order did not impose new obligations on EAS Participants, but rather specified in detail how EAS Participants should implement the new Common Alerting Protocol (CAP) standards.  In a nutshell, the Order states the manner in which EAS Participants—which include radio and television broadcast stations, cable systems, wireline video systems, wireless cable systems, direct broadcast satellite (DBS) service providers, and satellite digital audio radio service (SDARS) providers—must be able to receive alert messages formatted in the CAP. In particular, all EAS Participants are required to be able to receive CAP-formatted EAS alerts no later than June 30, 2012. CAP is an Internet-based system that allows for more robust messaging, including audio and video alerts, and links to other sources of information about emergency information, instead of the simple text-based alert codes that come from the current system.

With today’s publication in the Federal Register, the rules will become effective on April 23rd (30 days from today), which is also the deadline for filing Petitions for Reconsideration.  Some parties have already raised concerns about the Commission’s Order, in particular with the prohibition on the use of text-to-speech conversion technology on CAP receiving devices.  And if fact, it looks like FEMA has already filed a Petition seeking reconsideration of that very issue.  Specifically, FEMA’s Petition "recommends that the Commission reconsider the statement in CFR 47 § 11.56(a)(2) regarding exceptions to the ECIG Guidelines and delete the reference to ‘using text-to-speech technology’. While not explicitly endorsing or mandating use of text-to-speech technology this would allow use of text-to-speech technology to be a marketplace decision driven by the resources of local alerting officials and EAS Participants…"  Interested parties have until April 23rd to prepare and file petitions with the FCC seeking clarification or revision of the rules and policies established by the Order. 

As we wrote about last year around this time, MARCH MADNESS is a term that is protected by trademark law.  It is owned by the March Madness Athletic Association (MMAA), a joint venture between the NCAA and the Illinois High School Athletic Association (IHSA).   The IHSA was actually first to begin using this mark to describe its high school basketball tournament in the 1940s. 

Brent Musburger brought MARCH MADNESS to public attention in using that term to describe the NCAA college basketball tournament, during which many hearts are broken each year….if you are lucky enough to have a team that made it this far. (Northwestern came this close to its first NCAA appearance.)

Normally, this would be a case of so-called "reverse confusion," in which the junior user of a mark (here, the NCAA) is so much bigger than the senior user of the mark (the IHSA) that the public thinks the mark belongs to the junior user.  In the typical reverse confusion case, the senior user can stop the junior user from using the mark.  But that did not happen here.  Why? 

Continue Reading MARCH MADNESS: An Unusual Case of Reverse Confusion

Yesterday, the FCC issued fines totaling $52,000 against four Class A television stations for belatedly filing their FCC Form 398 Children’s Television Programming Reports. The stations, each of which had missed at least a couple of years’ worth of Children’s Reports, were also fined for failing to timely place the reports in their public inspection files.  (If the Reports were not prepared and filed on time, then they similarly weren’t placed in the file at the right time).  The forfeitures all have essentially the same set of facts as this one.  The Commission had previously notified the licensees that their stations were missing Form 398 Reports and offered the “opportunity” for the station to avoid the issue by simply voluntarily reverting to a secondary LPTV station. While this would have potentially avoided the issue of the missing Children’s Television Reports, it would have left the stations as secondary facilities and without the primary status protection afforded to Class A television stations and full power TV stations. Such protection is critically important in light of the recent grant of authority for incentive auctions, as only Class A and full power TV stations are allowed to participate in the auction and are explicitly protected in the legislation. (See our earlier discussion regarding the incentive auction authority here.) LPTV stations, which did not receive such protection in the statute, are simply secondary services meaning that they can be moved or modified as the Commission sees fit. That authority will likely come in handy if and when it comes time for the FCC to repack the television spectrum, as it will have greater flexibility in moving or changing protections for LPTV stations.

Rather than accepting the chance to revert to low power status, the stations in these cases corrected their oversight and filed the missing Form 398 reports.  Despite responding to the Commisison’s earlier letters and following up to file the missing reports, however, the FCC nonetheless issued the hefty forfeitures. Recently, we wrote about a number of “Show Cause Orders" issued by the FCC directing 16 Class A television stations to respond and demonstrate why the stations shouldn’t be downgraded to LPTV status (see our earlier post here). The stations subject to those Show Cause orders apparently failed to respond to the FCC’s letter about missing children’s reports.  With yesterday’s forfeiture, it appears there is no good choice for a station that overlooked the obligation to file the children’s reports, and these fines serve as an important reminder of the obligations of Class A television stations. 

As we noted in our post last week, all Class A licensees would be well advised to review their FCC compliance efforts to avoid falling victim to the FCC’s spectrum clearance process.  The FCC has stated clearly that Class A licensees are required to comply with many full power TV requirements, including the need to maintain a main studio and a public inspection file, to comply with children’s programming requirements, political programming requirements, station identification requirements and Emergency Alert System rules. Failure to comply with any of these requirements could result in loss of Class A status.  While the fines issues yesterday are hefty, losing the station’s Class A primary status could be even more costly. 

The long-brewing debate between Low Power FM advocates and FM translator applicants is on the FCC’s tentative agenda for its March open meeting, to be held on March 21.  The FCC’s agenda includes two items.  The first deals with the priorities between the potential spectrum available for LPFM stations and the pending applications for FM translators left to be processed from the 2003 FM translator window.  This follows up on the FCC’s Notice of Proposed Rulemaking issued in July, proposing to process all of the translator applications pending in certain markets, while dismissing all of the applications remaining in other markets where it appears that spectrum available for LPFM is very limited, and where the grant of translator applications would block LPFM opportunities.

The second item deals with the future processing of LPFM applications in light of the passage of the Local Community Radio Act (summarized here).  The LCRA, among other things, lifted the prohibition against predicted third-adjacent channel interference from LPFM stations to full-power FM stations, and also provided for waivers of second adjacent channel interference in instances where the new LPFM would not create any actual interference to other FM users.  Where interference would be created, there would be a strict policy, like that which applies to translators, that the LPFM would have to cease operations if there were any interference to a regular user of an FM station – even outside of the station’s protected contour.  The second item to be addressed by the Commission will give details on how they plan to implement the requirements of the LCRA. 

The adoption of these two items will clear the way for a new window for LPFM applications – perhaps later this year.  In anticipation of that window, an LPFM advocacy group recently issued a press release indicating that they expected 10,000 new LPFM applications to be filed in an upcoming FM window.  Is that number realistic?   Who knows, though we’d be surprised if there was really that much pent up demand, especially given the ownership limits on LPFM applications, essentially limiting most parties to one application.  But if anything even approaching that number of applications is filed, look for potential problems in the FM band.

Continue Reading FCC Prepares to Resolve the Conflicts Between LPFM and FM Translators – Could 10,000 Low Power FM Applications Be On the Way to the FM Band?