For an industry that some say is about to be made obsolete because of its digital competition, there are still many people who want a piece of the FM spectrum.   We’ve written much about the contest between LPFM and translator proponents seeking their piece of FM spectrum – a contest that we should see resolved by the FCC in the very near future. One topic that we have not written much about is "pirate radio," stations that operate illegally – without FCC authority.  This week, the FCC issued several orders, fining individuals up to $25,000 for operating pirate radio stations in various places around the country (see decisions here and here, and two other fines of $20,000 or more noted below).  Pirate radio has been and remains a big problem for many broadcasters and, despite the fines in cases like this, pirates seem to continue to crop up – especially in urban markets.

The pirate radio problem has always been with broadcasters.  In the past there was both the romance of the outlaw radio operator and concerns over the snake oil salesmen who were broadcasting from stations in Mexico, and there was a famous religious broadcaster who lost a battle with the FCC over the Fairness Doctrine in connection with a real radio station and then resumed operations from a boat off the coast of New Jersey.  But in the last 20 years pirates have been much more localized, low power operators, trying to reach audiences largely in urban areas. Despite a series of court decisions rejecting any First Amendment claim of pirates, and denying any claim that these low-power, local stations did not implicate the FCC’s power over interstate commerce regulation, pirates have never gone away.  In many ways, the FCC introduced the concept of Low Power FM stations in the 1990s as a way to provide an outlet for those who might otherwise be inclined to operate an unlicensed station.  In fact, one of the big arguments at the time of the initiation of LPFM was whether former pirate radio operators should be allowed to apply for LPFM stations.

Continue Reading Pirates, Pirates Everywhere – Fines Up to $25,000 for Unlicensed Radio Stations

With the Florida broadcast airwaves overrun with political ads in the last few days – the great majority of them attack ads – many ask why do broadcasters keep running those ads?  Of course, there are revenue considerations.  But as the attacks get nastier, and perhaps even go against the interest of the station owners themselves, why do broadcasters keep running these ads?  Often, it’s because broadcasters have to – under the applicable laws.  We’ve seen two stories this week that illustrate that point – one where Gloria Allred, the well-known attorney, has written to a number of television stations asking them to refuse graphic anti-abortion ads to be run during the Super Bowl sponsored by purported Democratic presidential candidate Randall Terry, and a second about an NBC-owned station in Florida apparently continued to run a Mitt Romney ad attacking Newt Gingrich, featuring NBC News footage of an old Tom Brokaw Nightly News report, even after NBC News asked the Romney campaign to stop using the clip.  The NBC station apparently recognized its obligations, while Ms. Allred ignored the station’s obligations under Section 315 of the Communications Act and the FCC’s political broadcasting rules. 

Broadcasters are sometimes in a sticky position with nasty political ads, as by law (Section 315 of the Communications Act) they are not allowed to censor a candidate ad.  What this means is that they cannot reject a candidate ad based on its content, with the possible limited exception of where the ad violates a Federal felony statute like the obscenity laws (though not the indecency rules, which are not felony statutes).  If the ads just violate someone’s property interests, or could give rise to some sort of civil liability (e.g. defamation), as we’ve written before, the broadcaster is immune from liability for running the ad by a candidate or his authorized campaign committee. The broadcaster is also immune from liability from a perceived copyright action like that alleged by NBC.  But that immunity arises only because the station cannot, under law, reject the ad.  So the only remedy for someone objecting to the content of a candidate’s ad is to seek a remedy against the campaign itself, not against any station that runs the campaign’s ad.  (See examples of suits against the candidates, but not the stations, in cases we wrote about here and here)  So, even if the copyright owner who objects to the use of its copyrighted content in an ad owns the TV station, it is still stuck running the ad if the candidate insists.

Similarly, in the case that Ms. Allred complained about – asking stations to pull the graphic anti-abortion ads sponsored by Randall Terry, she posed the wrong question – alleging that the ad would be offensive and inflammatory.  Stations can’t make those judgments about political ads – they have to run them even if they can be upsetting. The FCC has even been told by the Courts that it can’t allow stations to channel upsetting political ads (like those anti-abortion ads that Mr. Terry plans to run), into late night hours.  If a candidate wants to run ads in the middle of the day (or in the middle of children’s programs), a station can warn its audience that the ad may be disturbing and that it is being forced by law to run it, as long as such warnings are done in a neutral fashion, but it must run the ad in the form the candidate created it.  So what should Ms. Allred have argued about the Terry ads?

Continue Reading Why Broadcasters Have To Air Political Attack Ads Even If They Don’t Want To

ASCAP and the Radio Music Licensing Committee have reached a settlement on the amount that radio stations will pay to ASCAP for the use of music for the period through the end of 2016. The agreement was approved last week by the US District Court in the Southern District of New York acting as a “rate court” to consider those fees. We reported that a settlement had been reached in early December, and now we’ve seen the actual documents and can provide some details of this agreement between the commercial radio broadcast industry and ASCAP. It should result in significant savings for broadcasters from rates that they had been paying prior to January 1, 2010.

As we wrote in 2010 when RMLC and ASCAP were first trying to reach a deal on new rates, the biggest problem with the old rates was the payment structure. Rather than making ASCAP a partner of the broadcaster by cutting them in for a percentage of the broadcaster’s revenue, under the deal that ended in 2009, ASCAP was to receive a set fee each year from the broadcast industry.  That set fee was divided among all commercial radio stations not based on station revenues, but instead based on the market size and technical coverage of each station. So all similarly powered stations in a market paid the same ASCAP fee, whether they were big revenue producers or not.  And the agreement was entered into during a period where radio broadcasters thought that revenues would be ever-increasing, so that set fee to be paid to ASCAP increased each year. As the economy and broadcast revenues fell during the later years of the deal, while the set fee kept increasing,broadcasters were paying an ever-increasing percentage of their revenues to ASCAP – far more than would have been paid had the industry stuck to a percentage of revenue formula.

Well, the experiment is over, as the new deal returns to a traditional percentage of revenue deal. Music radio pays ASCAP 1.7% of “revenues subject to fee from radio broadcasting." Essentially, that is all the revenue that a station receives from advertising and promotions, less a 12% deduction (presumably to cover commissions and costs of collection). Barter revenues, and payments made to networks (as opposed to the stations themselves), are excluded from the gross revenue calculation. All revenues from HD programming (including any amounts received for brokered programming) is also included (at least for the time being – subject to reevaluation should HD revenues account for 25% of radio revenues by 2015). New Media revenues, if the arise exclusively from streaming your station on the Internet, are also included in this gross revenue calculation.

Continue Reading Details of the ASCAP Settlement with the Radio Industry – What Will Your Station Pay?

With the recent publication in the Federal Register, several new Commission rules and policies regarding communications towers and migratory birds are now on the books, however, they are not yet effective as the collection of information still requires OMB approval.  The Commission’s new rules are an outgrowth of a decision from the Court of Appeals in 2008 in which the court found the FCC’s tower registration procedures to be inadequate.  In its Order on Remand released December 9, 2011, the Commission revised its rules governing the review and registration of proposed broadcast and communications towers to provide greater opportunity for comment by the public and interested parties. In addition, while this Order does not resolve the ongoing FCC rule making regarding the impact of towers on migratory birds it does adopt interim policies regarding certain tower proposals.  The Commission’s new rules require the following:

  • Prior to the filing of an antenna structure registration for a new tower or antenna structure, members of the public must be given an opportunity to comment on the potential environmental effects of a proposal.  Thus, an applicant for a new tower that requires antenna structure registration, or a modification of a registered tower that would have a significant environmental impact, must initially submit a partially completed tower registration form (Form 854) and give local notice of the proposed tower through a local newspaper or local zoning public notice process.  After local notice has been provided, the FCC will post the partially completed registration form on its tower website for 30 days notice.  Members of the public may then file comments or to request further environmental review of the proposed tower.  The FCC staff will consider any comments received from the public to determine whether an Environmental Assessment is required for the tower. Notably, this additional period for public review and comment will be required for all towers requiring registration in the FCC’s ASR database, even if the applicant has determined that the proposed tower will not have a significant environmental impact and that a complete Environmental Assessment is not required.
  • Environmental notice will also be required if an applicant seeking to register an antenna structure changes the lighting of an existing tower to a less preferred lighting style.
  • Proposed towers that require an Environmental Assessment must file such assessments with the antenna structure registration application and the Environmental Assessment will be considered in the context of the tower registration, rather than considered with a service-specific license or permit application.  Previously, some environmental assessments were filed with the license application and considered by the FCC Bureau issuing the service license or permit (for example, by the Media Bureau as it issued a radio or television station construction permit.) 
  • Institute an interim procedural requirement that an Environmental Assessment must be filed for all proposed registered towers over 450 feet in height.  FCC staff will review the Assessment to determine whether the tower will have a significant environmental impact. This processing requirement is an interim measure pending completion of the ongoing programmatic environmental analysis of the FCC’s antenna structure registration program to determine what changes, if any, are necessary to consider the impact of towers and tower lighting on migratory birds.

Once OMB approval is received for the collection of information required by these new rules, the FCC’s Wireless Telecommunications Bureau will issue a further Public Notice establishing the date on which these new environmental notification requirements will become effective.  According to the Order, antenna structure registration applications that are pending on the effective date ordinarily will not be required to complete the new environmental notification process.  Given the new requirements for public notice and the ability for interested parties to file comments electronically through the FCC’s tower registration database, these additional procedures will add add more time to the process of proposing and building a new broadcast or communications tower.  Stations or parties interested in building new towers are advised to review the Commission’s new procedures carefully and plan on additional lead time when considering new construction.  

The FCC released a Notice of Apparent Liability proposing a $22,000 fine for a contest to win a car conducted by a cluster of five stations.  The contest (the award of a car to the entrant who produced the best commercial for the car, as voted on by website users) was conducted principally through the stations’ websites.  But the stations did promote the fact that the contest was being conducted on the air.  A disappointed contestant accused the licensee of rigging the contest by awarding the prize to a friend of a station employee for a video that was entered after the official end of the contest.  The FCC totally rejected the basis of the complaint (finding no basis for the conclusion that favoritism had been shown – especially as voting for the winner was done by website visitors, not station employees).  Nevertheless, the FCC proposed the $22,000 fine for the failure to broadcast all of the material rules of the contest on the air.  This proposed fine reinforces two principles that we have written about in previous cases:

  1. You must provide all of the material rules of the contest in on-air announcements a sufficient number of times so that a listener could be expected to hear such announcements (see our article here about what are considered the "material terms" of a contest), and
  2. The rules for a contest that is primarily conducted through a station website must still be broadcast on the air if the fact that the contest is occurring on the website is promoted over the air (see our article on a previous case reaching the same conclusion).

Here, the licensee posted the rules of the contest online, which one might think would be sufficient, as all contestants entered online, and the winner was selected through online voting.  But the FCC felt that some of the information given on the air (and in the contest rules) about entry dates was somewhat ambiguous, and decided that, once a contest by a broadcaster is mentioned on the air, all the rules must be given on the air.  As the contest was conducted by multiple stations, the fine reflects a multiple of the FCC’s standard $4000 fine for a contest rule violation. This decision seems to penalize a broadcaster for being a broadcaster, as a similar contest, had it been run by the car company instead of the station, could have been promoted and conducted in exactly the same way, and the FCC would not have penalized the station.  But according to the FCC’s interpretation of Section 73.1216 of its rule regarding station contests, a station conducting a contest on its website, but promoted on the air, needs to be careful to publicize all of the material rules on the air avoid this FCC trap for the unwary. 

One of the questions we commonly get from broadcasters and others around this time of year is whether and/or how they can use the term SUPER BOWL.  Some refer to it as a trademark while others call it a copyright.  Who is right…and how can it be used?  The term SUPER BOWL is a registered trademark owned by the National Football League. We previously discussed this issue in 2009, 2010 and 2011. 

Actually, the NFL owns at least eight trademark registrations containing the words SUPER BOWL, as well trademark registrations for the terms PRO BOWL and even SUPER SUNDAY.  Aside from these trademark registrations, the NFL also owns the copyright to the telecast of the game itself.  You may have heard that in past years, the NFL tried to stop Super Bowl parties shown on large TV screens.  This was an enforcement of the NFL’s copyright in the game.  Now, the NFL apparently no longer tries to stop Super Bowl parties unless the proprietor charges admission to see the game.  Again, this is a copyright issue.  But what do these rights mean for a broadcaster who wants to run a Super Bowl promotion or an advertiser who wants to run a campaign involving the Big Game?

 

Continue Reading Is Super Bowl Protected by Trademark or Copyright Law? Try Both.

Just a reminder to broadcast stations in certain states of several upcoming February obligations.  First up, February 1st is the deadline for Radio Stations in Arkansas, Louisiana, and Mississippi to file their FCC Form 303-S license renewal applications seeking a renewal of their broadcast licenses.  (See our earlier license renewal advisory for more information about the FCC’s license renewal process.)  Accordingly, radio stations in those state/territories will also need to begin their License Renewal Post-Filing Announcements on February 1st to inform their communities of the renewal filing.  Specific language for the announcements can be found on the Commission’s website here, and the post-filing announcements continue on Feb. 16, Mar. 1, Mar. 16, April 1, and April 16.

Second, the next batch of radio license renewals — which will be filing their renewals on April 2nd — is Indiana, Kentucky, and Tennessee, which means that Radio Stations licensed to those states, must begin their License Renewal Pre-Filing Announcements on February 1.  The precise language of the pre-filing announcements—which is again dictated by the FCC’s Rules—can be found here. The pre-filing announcements for these stations continue on Feb. 16, Mar. 1, and Mar. 16. 

Third, by February 1, Radio and Television Station Employment Units (SEUs) in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York and Oklahoma must prepare and place in their public inspection file their Annual EEO Public File Report.  Stations that have websites must also post the Annual Report on their website.  The Annual EEO Public File Report summarizes the station’s or the SEU’s EEO activities during the previous 12 months, and provides information about the recruitment and outreach that the station conducted in the past year.  A copy of our recent reminder advisory with more information can be found here.  In addition, Radio Stations in Arkansas, Louisiana, and Mississippi will also be filing an FCC Form 396 EEO Report by February 1 in connection with their license renewal filing.

Finally, February 1st is the deadline for Noncommercial radio stations in Arkansas, Louisiana, Mississippi, New Jersey and New York, and Noncommercial television stations in Kansas, Nebraska and Oklahoma to prepare and file an FCC Form 323-E Biennial Ownership Report with the FCC.  Please note, this filing date applies only to noncommercial radio and TV stations in the states noted above. The FCC has revised its rules regarding the reporting of ownership interests for commercial broadcast stations, as well as revised the commercial Ownership Report—Form 323. Accordingly, commercial stations now file biennial ownership reports on one unified filing date, which will next occur on Nov. 1, 2013.  A copy of our recent reminder to noncommercial stations about the February 1 filing deadline can be found here.

The FCC’ Notice of Proposed Rulemaking in its Quadrennial Review of the Multiple Ownership Rules was published in the Federal Register today, setting the deadline of March 5 for initial comments in that proceeding.  Reply comments are due on April 3.  We summarized the FCC’s tentative conclusions on changes to the ownership rules when the Commission first released its NPRM in late December.  The issues to be considered include changes to the broadcast-newspaper cross ownership restrictions, the possible elimination of rules restricting the ownership of radio and TV in the same market, the potential attribution of TV shared services agreements (i.e. potentially making a shared services agreement "count" as an ownership interest in a multiple ownership analysis), and other possible revisions to the local radio and TV ownership limitations (or exceptions that would allow for waivers of the limits in defined circumstances).  The Commission is also looking for suggestions on how these rules can be used to promote the minority ownership of broadcast stations.

As we wrote in December, this is but one more step in a long process before any new rules will be adopted.  After the filing of the comments, there are bound to be many groups informally discussing proposed changes with FCC Commissioners and staffs, and much consideration before any final rules are adopted.  Even these tentative conclusions took the FCC over a year and a half to produce from the date of the initial Notice of Inquiry in this proceeding.  Given the upcoming elections, and the potential for just about anything to become a campaign issue, a decision like this, that may contain controversial elements, will most likely be postponed until some time after election day.  And even when decided, these rules are often debated for years afterward, as this NPRM is reviewing issues that Courts have rejected from previous ownership review orders reached in 2003 and 2007.  Nevertheless, look for much more debate on these issues in the coming months. 

As we reported last week, the FCC has adopted a Report and Order establishing rules for the closed captioning of video programming delivered via Internet protocol (i.e., IP video), as required by the 21st Century Communications and Video Accessibility Act (CVAA). DWT has now released an advisory with further details about the new rules, which is available here. The new rules govern TV stations, cable systems, broadcast and cable networks and virtually every other professional video program producer who is now, or will be in the future, making programming available online. The rules also impose new requirements on hardware (such as set-top boxes, PCs, smartphones DVD players, Blu-ray and tablets) designed to receive or play back video programming transmitted simultaneously with sound and integrated software.

With rules that are so wide-reaching, everyone involved in these businesses needs to understand what the new rules entail.  A summary of the Commission’s Order follows below, and please see our advisory for complete details about the new rules. Consistent with CVAA’s mandate, the FCC has adopted rules that:

  • Extend to all full-length video programming previously distributed on television with captions to require that captioning appears when such programming is displayed online via IP;
  • Establish a two-year transition for uncaptioned, archival IP-delivered content that is shown on TV with captions after the new rules’ effective date;
  • Require video programming owners to send caption files for covered IP video to video programming distributors and video programming providers along with the program files, or alternatively, inform the distributors–using a mechanism agreed to by the parties–that captions are not required for a particular program;
  • Require video programming distributors and video programming providers to enable the rendering or pass-through of all required captions to the end user;
  • Require captioning of covered IP video to be of at least the same quality as the captioning that the programming had when it appeared on TV;
  • Establish deadlines by which categories of covered IP video must be captioned, as follows:
    • Programming that is prerecorded and unedited for online distribution, when subject to the new requirements, must be captioned within 6 months of the rules’ effective date;
    • Programming that is aired live or “near-live” on TV, when subject to the new requirements, must be captioned within 12 months of the rules’ effective date;
    • Programming that is prerecorded and edited for online distribution, when subject to the new requirements, must be captioned within 18 months of the rules’ effective date;
  • Adopt the Society of Motion Picture and Television Engineers (SMPTE) Timed Text format (SMPTE ST 2052-1:2010: “Time Text Format (SMPTE-TT)” 2010 as a safe-harbor interchange and delivery format, but stop short of requiring all covered entities to use this standard;
  • Decline to adopt categorical exemptions other than that mandated by the CVAA (i.e., consumer generated programming. which is statutorily exempt);
  • Establish procedures by which video programming providers and video programming owners may petition for exemptions from the new requirements based on economic burden;
  • Accommodate de minimis failures to comply with the new captioning obligations;
  • Adopt procedures for complaints alleging violations of the new rules;
  • Decline to adopt specific forfeiture amounts, opting instead to penalize violations based upon the facts and circumstances of each case;
  • Permit entities to comply with the new requirements by alternate means; and
  • Impose requirements for devices subject to the closed captioning requirements.

Given the scope of the new rules, there will undoubtedly be questions and requests for clarification that arise along the way.  We wll continue to track these new rules and provide further updates on this important issue. 

This afternoon, the FCC released its long-anticipated Report and Order (R&O) setting forth the Commission’s new closed captioning rules for IP-delivered video programming, pursuant to the 21st Century Communications and Video Accessibility Act (CVAA). 

As we explained when the rules were first proposed in September, the CVAA directed the FCC to establish how and when certain IP-delivered video programming must be captioned, as well as the closed captioning capabilities for devices used to view video programming. The R&O adopts closed captioning requirements for owners, providers, and distributors of IP-delivered video programming; a safe harbor technical standard and delivery format for IP video captions; a staggered compliance schedule; complaint rules; and requirements for manufacturers of devices used to view the video programming at issue.

We are currently reviewing this comprehensive rulemaking, and will post our in-depth review next week, both here and on our DWT Advisories page.