Any media platform that accepts ads for political races and ballot issues in Washington State is aware of the state’s detailed rules that govern all forms of political advertising.  Digital platforms, in particular, are concerned by state rules that require the platforms to maintain and make available to the public not only the information required by some other states (and by the FCC for broadcast political ads) about the identify of sponsors, the price they have paid for their political advertising, and the issues they are addressing, but also a description of the demographics being targeted, and the total number of impressions generated by the ads.  Disclosures about other services provided to the advertiser by the platform (e.g., production or distribution services) and copies of the political ads themselves, are also required to be part of the material available for public review under Washington State law.  As we noted in our recent article on these rules and those of other states requiring disclosure of information about political advertising on digital platforms, the Washington State attorney general’s office brought an action against Meta, Facebook’s parent, for not providing to members of the public all the required information about such advertising in a timely fashion.  We noted that a King County judge had found that the company had violated the rules.  Since then, the judge imposed a fine of $24,660,000 on Meta (for 822 violations times the statutory penalty of $10,000 per violation, trebled based on a finding that the violations were intentional, repeated, by a company that should have been able to comply, and because the company refused to “acknowledge and take responsibility for its violations.”)  This is by far the largest penalty that we have heard of for violations of a state political disclosure law, and one of the few cases actually brought to court under these laws.  Meta almost immediately appealed this decision to the Washington Court of Appeals, where it remains pending.

The appeal bears watching by all digital media companies, as it is sure to raise some fascinating issues that could have far-reaching consequences for state regulation of political advertising.  In its motion for summary judgment in the Washington State proceeding, Meta raised arguments about the difficulties faced by a national company trying to comply with inconsistent and conflicting state laws in this area.  But perhaps more importantly, Meta also pointed to the Fourth Circuit Court of Appeals’ decision from 2019 throwing out Maryland’s political disclosure rules, which were similar in scope to those in Washington.  The Fourth Circuit’s decision, about which we wrote here, rejected as unconstitutional Maryland’s requirements that media outlets reveal information about their political advertising buyers, concluding that the requirements violated the media companies’ First Amendment rights, when a less restrictive means of informing the public about the identity of political speakers was available by requiring the political actors to themselves reveal the information.  We would expect that arguments about Section 230 of the Communications Decency Act (about which we wrote here and here), shielding platforms from liability for materials posted on them by others, will also be raised on appeal.  The state Court of Appeals is unlikely to be the last word in this case, as the national scope of these issues, and any conflicts with the Court of Appeals’ decision in the Maryland case, could well elevate this decision to one that establishes broader precedent for the industry.

There is but a week to go before the mid-term elections, and political ads blanket the airwaves across the country.  From discussions that I have had with many attorneys, broadcasters and other campaign observers, the ads this year have been particularly aggressive.  Some publications have even suggested that, in the waning days of the campaign, the ads may become even worse as desperate campaigns look for some last-minute claim that could turn the tide in an election.  In this rush to election day, broadcasters need to be on the alert for allegations that an attack ad from a non-candidate group is false or defamatory, because in certain instances, the ad could result in a claim against the broadcaster.

As we have written before, broadcasters (and local cable companies) are forbidden from censoring the message of a candidate (see, for instance, our articles here and here).  Section 315 of the Communications Act forbids a broadcaster or a local cable operator from censoring a candidate ad.  Because broadcasters cannot censor candidate ads, the Supreme Court has ruled that broadcasters are immune from any liability for the content of those ads.  (Note that this protection applies only to broadcasters and local cable companies – the no censorship rule does not apply to online distribution – see our articles here and here – so other considerations need to be considered when dealing with online political ads).  But some have taken that to mean that broadcasters have no fear of liability for any political ad.  As I explained in a recent interview with a Detroit television station, that is not true – broadcasters do theoretically have the potential for liability if they run an ad from a non-candidate group either knowing that ad to be false, or by continuing to run a false ad after being put on notice that the ad was false and ignoring that notice (see also this article about this distinction between candidate and non-candidate ads, and how the media’s coverage of campaigns can overlook these distinctions).  In 2020, President Trump’s campaign brought a lawsuit against a Wisconsin television station alleging that a PAC ad run on the station was false and defamatory (see our articles here and here on that suit).  In this election cycle, there are press reports of a lawsuit by Senate candidate Evan McMullin against a political party’s campaign committee and three local TV station owners for running an ad that had allegedly edited remarks by McMullin to make it seem like he said all Republicans were racist (see articles here and here).  Even Roy Moore, the defeated Senate candidate from several years ago in Alabama, successfully pursued a defamation suit against the sponsor of an ad that Moore claimed falsely accused him of improper conduct (this decision was not against a broadcaster, but instead against the ad’s sponsor, see report here).

Continue Reading With A Week to Go Before the Midterm Elections, Watch for Last Minute Unfounded Attack Ads – The Potential Liability of Stations for False Claims in Ads from PACs, Parties and Other Noncandidate Groups

November lacks the usual set of deadlines for routine FCC filings, but there are nevertheless a number of regulatory dates that warrant attention.  And come the first of December, those regular filing deadlines return to the calendar.

November brings comment deadlines in at least two FCC proceedings relevant to broadcasters.  On November 7, reply comments are due with respect to the FCC’s Order and Sixth Notice of Proposed Rulemaking (on which we previously reported) to delete or revise analog rules for Low Power TV and TV translator stations that the FCC believes no longer have any practical effect or that are otherwise obsolete or irrelevant after the transition of these stations to digital operation.  November 25 is the deadline for reply comments in the FCC’s request for comment on the methodology that it uses to allocate its employees to determine annual regulatory fees (see article here).  Broadcasters have felt that their fees have increased more than their fair share – but other regulated services likely complain about their share of the fees as well.  Because the FCC allocates the fee obligation based on the number of its employees who spend time on regulatory duties regarding a particular regulated industry, this proceeding looking to allocate how employees are allotted is very important.

Another rulemaking proceeding will likely be concluded in November.  The FCC last week announced that the agenda for its November 17 regular monthly open meeting will include consideration of a Report and Order (a draft of which was released last week) that would update the FCC’s rules to identify a new publication for determining a television station’s designated market area (“DMA”) for satellite and cable carriage purposes.  Current FCC rules direct commercial TV stations to use Nielsen’s Annual Station Index and Household Estimates to determine their DMA, and stations rely on these determinations when they seek carriage on cable and satellite systems.  Nielsen, however, has replaced the Annual Station Index and Household Estimates with a monthly Local TV Station Information Report (“Local TV Report”).  The Order, if adopted as drafted, would (i) revise the FCC’s rules to eliminate references to the Annual Station Index and Household Estimates and instead direct broadcasters to the Local TV Report – specifically, the October Local TV Report published two years prior to each triennial carriage election; and (ii) conclude that the Local TV Report should be used to define “local market” in other statutory provisions and rules relating to carriage (e.g., retransmission consent, distant signals, significantly viewed, and field strength contour).  For further background regarding this proceeding, see our article here. Continue Reading November Regulatory Dates for Broadcasters – Rulemaking Comments, Political Obligations, Daylight Savings Time and More

Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.

  • On October 26, NAB and Xperi Inc. jointly filed a Petition for Rulemaking asking the FCC to amend its rules governing in-band/on-channel (“IBOC”) digital audio broadcasting (Xperi is the parent of IBOC technology developer iBiquity).  More specifically, NAB and Xperi request that the FCC (i) adopt an updated formula to determine FM power levels for stations seeking to exceed the currently authorized FM digital Effective Radiated Power (ERP) of -14 dBc; and (ii) commence a rulemaking proceeding on this issue and the one raised in a pending 2019 petition to permit digital FM radio stations to utilize asymmetric sideband power levels without the need for separate or experimental authorization.  NAB and Xperi contend that the FCC’s current approach is problematic because it assumes symmetric rather than asymmetric digital sidebands, which eliminates a path for stations to increase power on at least one sideband to improve digital coverage.  In addition, NAB and Xperi argue that the existing formula is too restrictive, because it overstates the level of protection analog stations need.  NAB and Xperi assert that  blanket authorization of asymmetric sidebands and the adoption of a more market-based formula for assessing digital interference risk will encourage greater station adoption of the technology.  The FCC has yet to announce comment dates for the NAB/Xperi petition.
  • The Commission issued a Memorandum Opinion and Order resolving 32 groups of mutually exclusive applicants for new Noncommercial Educational (NCE) FM stations.  These applications were filed in the 2021 window for the filing of applications for new NCE stations in the FM reserved band.  This week’s decision goes through an analysis of the point system that the FCC uses to determine the preferred applicant among applications in the same geographic area that cannot all be granted without causing each other destructive interference.  The point system analysis looks at factors including the proposed coverage of the applicants, whether an applicant is local and how long it has been established, whether it is part of a statewide network, and whether the applicant has other broadcast interests.  The decision announces tentative winners in each of these groups, whose applications will now be subject to “petitions to deny” and other objections before the award of their construction permit is finalized.
  • At its October 27 regular monthly open meeting, the FCC adopted without substantive edits, its draft Notice of Proposed Rulemaking (“NPRM”) in which, as we’ve previously reported, it proposes a number of steps designed to strengthen the security of the Emergency Alert System (“EAS”) by requiring reporting to the FCC of breaches of any station’s EAS system and the adoption and yearly reporting to the FCC of security protocols to prevent unauthorized breaches.  A copy of the “as adopted” NPRM is available here.  Comments and reply comments will be due 30 days and 60 days, respectively, after the item’s publication in the Federal Register.
  • At the same open meeting, the FCC also adopted a Notice of Inquiry and Order that explores opportunities to open the 12.7-13.25 GHz (12.7 GHz) band for next-generation wireless services and extends the freeze for new or modified applications for existing users of the band.  Licensed services in the 12.7 GHz band include satellite communications and mobile TV pickup operations. Although the as-adopted item has yet to be released, a press release noting its approval can be found here, and the draft version circulated prior to the meeting can be found here (also see our article here).
  • The FCC announced that the agenda for its November 17 open meeting will include consideration of a draft Report and Order (“Draft R&O”) that, if adopted, would update the FCC’s rules to identify a new publication for determining a television station’s designated market area (“DMA”) for satellite and cable carriage purposes.  Current FCC rules direct commercial TV stations to use Nielsen’s Annual Station Index and Household Estimates to determine their DMA, and stations rely on these determinations when they seek carriage on cable and satellite systems.  Nielsen, however, has replaced the Annual Station Index and Household Estimates with a monthly Local TV Station Information Report (“Local TV Report”).  The draft R&O, if adopted, would (i) revise the FCC’s rules to eliminate references to the Annual Station Index and Household Estimates and instead direct broadcasters to the Local TV Report – specifically, the October Local TV Report published two years prior to each triennial carriage election; and (ii) conclude that the Local TV Report should be used to define “local market” in other statutory provisions and rules relating to carriage (e.g., retransmission consent, distant signals, significantly viewed, and field strength contour).  For further background regarding this proceeding, see our article here.
  • The FCC’s Media Bureau issued an Order under which it entered into a Consent Decree to resolve a student-run noncommercial FM station’s filing of its license renewal application two months late, and the station’s failure to place any issues and programs lists in its online public inspection file.  The station demonstrated that its violations were first-time paperwork violations which fell within an FCC policy of affording student-run stations with this kind of violation an opportunity to negotiate a consent decree in which the station agrees to a compliance plan and makes a voluntary contribution to the United States Treasury rather than suffering a more substantial penalty.  Under the Consent Decree, the station agreed to, among other things, make a civil penalty payment to the United States Treasury in the amount of $500 and implement a comprehensive compliance plan to ensure future compliance with its online public inspection file obligations and timely filing of renewal applications (for a similar Consent Decree between the Bureau and a second student-run NCE station, go here).

This summary of regulatory news for broadcasters comes from the attorneys at Wilkinson Barker Knauer, LLP in Washington, DC. (https://www.wbklaw.com/).

 

In speaking to many broadcast groups around the country in the last few months, I have found that many broadcasters are totally confused by the FCC’s rules requiring that they seek certifications from anyone buying programming time on their stations (or providing programming for free in exchange for that programming being broadcast on the station).  These certifications must indicate that the programmer  is not a “foreign government entity,” a term that includes any foreign government or foreign-government owned entity, an agent of a foreign government, or someone who has been paid by a foreign government to produce the program.  As we noted (see our articles here and here), the rules requiring these certifications went into effect on March 15, 2022 for any new agreements effective after that date, and September 15, 2022 for obtaining certifications from programmers who were already on the air as of March 15.  Now, the FCC has asked in a Second Notice of Proposed Rulemaking whether it should expand these obligations to identify foreign government-backed programming.  In addition, a bill has been introduced in Congress that would authorize the FCC to impose the obligation it attempted to impose on broadcasters initially – that they check databases maintained by the Department of Justice (the Foreign Agents Registration Act database) and by the FCC to confirm the accuracy of the certifications obtained from programmers as to whether or not they are agents of foreign governments (see our article here on the Court decision rejecting the requirement that broadcasters check these databases).

When I am speaking at broadcast association meetings across the country, I am almost always asked why the FCC is seeking this information.  The FCC decided that it had to act in this area when, in a couple of high-profile cases in major markets, program time was being purchased by entities that represent foreign governments – with Russian and Chinese news and information programming being of the most concern.  When these instances were highlighted by other US government agencies and through political complaints, the FCC felt that it had to act.  I don’t think that many broadcasters would have concerns if the rules were limited to situations where a foreign government is in fact buying program time or doing a time brokerage agreement, with the intent of airing its slanted news to US citizens, with such programming being required to be identified to the public as being sponsored by an entity related to a foreign government.  But the concern that many have raised is that the FCC’s requirements impose significant burdens on broadcasters and programmers even in instances where there is no doubt that companies buying time on broadcast stations are not posing any threat to US interests. Continue Reading FCC Seeks Comments on Tighter Requirements for Broadcasters to Identify Foreign Government Sponsored Programming – And A Bill Introduced in Congress – What Does It Mean for Broadcasters? 

Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.

  • On October 17, Sen. Brian Schatz (D-HI), Sen. Marsha Blackburn (R-TN), and Rep. Anna Eshoo (D-CA) introduced the Identifying Propaganda on Our Airwaves (IPA) Act, which would essentially undo the recent D.C. Circuit decision in National Association of Broadcasters v. FCC, which rejected the requirement that broadcast licensees independently check two federal databases to verify whether an airtime lessee is a “foreign governmental entity” (see our Broadcast Law Blog article on the Court’s decision here).   Specifically, the IPA Act would amend Section 317(c) of the Communications Act to provide the FCC with authority to require radio station licensees to consult “any additional source of information the Commission designates that may enable the licensee to verify whether the matter broadcast by the radio station was paid for or furnished by a foreign governmental entity.”   FCC Chairwoman Rosenworcel and Commissioner Starks both issued statements in support of the IPA,
  • The FCC’s Media Bureau issued a Notice of Proposed Rulemaking seeking comment on a proposed allotment of a new FM channel, 272A, to Dennison, Ohio as that community’s first local radio service.  Comments are due December 8 and reply comments are due December 23.  If adopted, the channel would be available in a future FM auction for those interested in the construction of a new FM station to serve Dennison.
  • In addition, the Media Bureau granted an AM station a short-term renewal of two years and proposed to issue the station a $20,000 fine for operating at variance with its authorized parameters.  Specifically, the Bureau found that in 1993 the station obtained Special Temporary Authority (STA) to decrease nighttime power from 5 kW (directional) to 1 kW (non-directional).  The station filed for and received multiple extensions of its STA, but, after it received its last extension in 1996, the Bureau warned that the station must either return to its licensed operation or file an FCC 301 application to modify its facilities.  The station nonetheless continued to operate at reduced nighttime power (which it had been doing for its entire license term) and never filed an FCC Form 301, nor did it seek a further extension of its STA until September 7, 2022.
    •  In a similar vein, the Bureau issued a two-year renewal to a daytime-only AM station and proposed to impose an $11,000 fine on a station, citing violations including the station (1) failing to obtain FCC authorization to remain silent for four months, (2) operating at variance from its authorized parameters since September 22, 2022 when an STA for reduced-power operations expired without being extended, and (3) failing to file its license renewal application by, as required, February 17, 2021 following a prior short-term renewal for inconsistent operations of the station in the prior license term.  The Bureau did, however, choose not to fine the station for its unauthorized operation after its license expired, citing mitigating factors that may have led the station to become confused as to its renewal deadline as the current licensee acquired the station after the imposition of the short-term renewal and was not notified by the FCC of the need to file that early renewal.  These two cases remind licensees to keep the FCC informed in changes in station operation and to seek approval when that operation does not conform to what is authorized by the station’s FCC license.
  • The FCC issued notices to several landowners (here and here) that there appeared to be illegal “pirate” radio operations going on from their properties, and warned that if these operations did not immediately cease, the FCC could fine the operator or the landowner as much as $2,149,551 (the inflation adjusted maximum fine authorized by the 2020 Pirate Act, which also authorized fines against landowners as well as pirate operators, legislation we wrote about here).

Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.

  • A judge in King County, Washington, released his decision finding that Facebook parent Meta intentionally violated the Washington State requirements for public access to documents concerning the sale of advertising to state political candidates.  We wrote about the Washington State rules and this case on our Broadcast Law Blog, here.  The state’s Attorney General has announced that he will seek the maximum penalty of $24.6 million for the 822 violations found by the judge.
  • The FCC’s Enforcement Bureau issued a Notice of Violation to an FM station after FCC field agents discovered that the station was operating three miles from its authorized transmitter site.  If your station needs to make technical changes to its operations, be sure to seek FCC permission for those changes, which is required in most cases before they are implemented.
  • The Media Bureau proposed to assess a fine of $1,500 each on two low power FM (LPFM) stations (see decisions here and here)  that failed to file their license renewal applications on time.  In each case, the station’s license renewal applications were filed four months late without explanation, but before its license expiration date.  The Bureau reached its conclusion notwithstanding its finding that neither violation was so “serious” as to warrant the denial of the renewal applications.
  • The FCC’s Media Bureau issued a one-year license renewal to an AM station for its failure to consistently remain on the air and its failure to timely place documents in its online public inspection file.  The station was also required to adopt a compliance plan to address the public file violation.  As to the station’s failure to stay on the air, the Bureau found that the station was assigned to the current licensee on November 16, 2019, and its license term ended on August 1, 2021. The Station was silent at the time its license was assigned, having gone silent on January 20, 2019, until January 6, 2020, and then again from November 11, 2021, to July 30, 2022 (i.e., for over 8% of its license term under the current licensee and 30% of its extended term while the renewal application was pending, warranting the short-term renewal).

Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.

  • On October 6, the FCC released a Second Notice of Proposed Rulemaking (Second Notice) proposing to strengthen the process for identifying foreign governmental entities that sponsor or “lease” broadcast programming.  The Second Notice was released in the wake of the D.C. Circuit’s July 2022 ruling in National Association of Broadcasters v. FCC, which rejected the requirement that broadcast licensees independently check two federal databases to verify whether an airtime lessee is a “foreign governmental entity” (see our Broadcast Law Blog article on the Court’s decision here).  While the Court decision did not change broadcasters’ obligation to obtain certifications from all buyers of program time that they are not foreign government representatives and have not been paid by foreign governments to produce the program (see our article here), the Second Notice proposes standardized language for such certifications.  It also provides interested parties an additional opportunity to comment on a long-pending petition for clarification on what constitutes leased program time, asking whether the FCC should establish a presumption that any broadcast matter that is two minutes or less in length, absent any other indicia, should be considered “advertising” that is exempt from the application of the foreign sponsorship identification rules. Comments and reply comments on the Second Notice will be due 30 and 45 days, respectively, following its publication in the Federal Register.
  • Global Music Rights (GMR) has sued three radio groups for not paying royalties for the public performance of songs written by songwriters who are now represented by GMR (see our article on the GMR lawsuit here).  GMR is a performing rights organization (a “PRO”) representing songwriters including Bruce Springsteen, Bruno Mars, Drake, Pharrell Williams, John Lennon, and The Eagles (with a full list of their songwriters available on their website here).  As these songwriters are no longer represented by ASCAP, BMI or SESAC, for a broadcaster to publicly perform any of these songwriters’ music, they generally either need a license from GMR or they need to directly license the music from the songwriters or their agents. The lawsuits seek $150,000 for each copyrighted work that was allegedly infringed – the maximum set out by the Copyright Act for “statutory damages,” i.e., damages that can be collected even without providing evidence of actual harm caused by the alleged copyright infringement. Commercial radio stations that play GMR music and have not entered into an agreement with GMR following the settlement earlier this year of its litigation with the Radio Music License Committee should enter into a license or consult with their attorneys to see if there is any way to otherwise receive permission to use GMR music.
  • On October 6, the FCC released a draft Notice of Proposed Rulemaking that, if adopted, would propose a number of steps designed to strengthen the security of the Emergency Alert System (“EAS”) and Wireless Emergency Alerts (“WEA”).  The draft NPRM is slated for consideration at the FCC’s October 27, 2022 regular monthly open meeting.  In general, the draft NPRM seeks comment on ways to strengthen the operational readiness of EAS and WEA, including, among other things, requiring EAS Participants (including broadcasters) to report to the Commission incidents of unauthorized access of its EAS equipment within 72 hours of when it knew or should have known that the incident occurred, and requiring EAS Participants to submit an annual cybersecurity certification that demonstrates how the participant identifies the cyber risks that it faces, the controls it uses to mitigate those risks, and how it ensures that these controls are applied effectively.  If the NPRM is adopted, comments and reply comments would be due 30 days and 60 days, respectively, after the NPRM is published in the Federal Register.
  • Also on October 6, the FCC released a draft Notice of Inquiry and Order that seeks information on the current use of the 12.7-13.25 GHz band (“12.7 GHz band”). Licensed services in the 12.7 GHz band include satellite communications and mobile TV pickup operations.  The draft Notice of Inquiry seeks information on how the FCC could encourage more efficient and intensive use of the band, and whether the band is suitable for mobile broadband or other expanded use.  The draft Order would extend the temporary freeze on applications in the 12.7 GHz band (see our reference to that freeze here).  If adopted at the FCC’s October 27 Open Meeting, comments and reply comments will be due 30 days and 60 days, respectively, after publication in the Federal Register.
  • The FCC’s Media Bureau (“Bureau”) issued a Notice of Apparent Liability for Forfeiture (“NAL”) proposing a fine of $13,000 against the licensee of two low power television stations, finding that the licensee apparently violated section 74.788 of the FCC’s Rules by filing its “license to cover” applications informing the FCC that it had completed construction of new facilities for the stations when that construction was completed, and for violating section 301 of the Communications Act by engaging in unauthorized operation.  Construction was apparently completed in 2018 but no license application was filed until 2022, a year after the construction permit for the new facilities expired. The Bureau was not persuaded to reduce or eliminate the fine by the licensee’s contention that it was not represented by counsel when it failed to timely file its license applications. It also found that imposition of a proposed fine is consistent with other recent FCC cases that have similar underlying facts (see, for instance, the cases we have noted in weekly updates here and here).
  • Due to damage associated with Hurricane Ian that was caused to broadcasters in South Carolina and Florida, the Media Bureau extended from October 11 to December 12, 2022 the deadline by which the impacted stations in those states must place their Quarterly Issues Programs Lists with material covering the previous calendar quarter in their public inspection file.  All other full-power stations should remember to upload Quarterly Issues Programs Lists to their public files by October 11.  Similarly, for Florida stations, the deadline to place their EEO public file report in their public inspection file is extended to December 12, 2022.

Global Music Rights (GMR) has sued three radio groups for allegedly playing GMR catalog songs but not paying the associated public performance royalties to GMR.  As we have written many times, GMR is a performing rights organization (a “PRO”) representing what they term in the complaints filed against these companies “an elite roster of just over 100 songwriters.” The complaints specifically note that the songwriters include Bruce Springsteen, Bruno Mars, Drake, Pharrell Williams, John Lennon, and The Eagles.  The full list of songwriters and songs represented by GMR is available on their website here.  As these songwriters are no longer represented by ASCAP, BMI or SESAC, for a company to publicly perform any of these songwriters’ music, they either need a license from GMR or they need to directly license the music from the songwriters or their agents (or fit into one of the limited exemptions that we wrote about here, exceptions that would typically not cover commercial radio broadcasting).

The lawsuits seek $150,000 for each copyrighted work that was allegedly infringed – the maximum set out by the Copyright Act for “statutory damages,” i.e., damages that can be collected even without providing evidence of actual harm caused by the alleged copyright infringement. The allegations against one of the companies suggest that the company played over 100 GMR compositions more than 20,000 times without obtaining a license.  While courts have discretion to order far lower statutory damages than those being sought here, even the threat of such damages has been enough to put many of the original file-sharing music sites out of business. Of course, in this case, these damages are being sought not from some company that provides unauthorized, unlimited downloads of copyrighted music, but from radio companies that presumably are already paying other performing rights organizations for the use of music. Continue Reading Lawsuits Filed Against Three Radio Companies Alleging That They are Playing Global Music Rights Songwriters Without a License – Background for the GMR Claims  

Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.

  • At its September 29 regular monthly open meeting, the FCC adopted a Notice of Proposed Rulemaking (NPRM) proposing to update the FCC’s technical rules for full power TV and Class A TV stations. The FCC determined that a review and update of these rules is necessary due to the digital transition, the incentive auction repack, current technology, and changes in Commission practices.  The NPRM seeks comment on, among other things, whether to eliminate rules that relate to analog operating requirements, and to similarly eliminate language in rules to remove references to digital television or DTV service (as all TV service is now digital); whether to delete outdated rules that are no longer valid given changes in other Commission-adopted policy, such as the elimination of references to the comparative hearing process to award and renew broadcast licenses which was eliminated by Congressional and FCC action over 25 years ago; and whether to make other updates to the Commission’s rules.  Comments and reply comments will be due 60 days and 75 days, respectively, after the NPRM is published in the Federal Register.
  • Also at its September 29 open meeting, the FCC adopted a Report and Order updating its Emergency Alert System, aiming to make alerts delivered over television and radio more informative and easier to understand by the public, particularly people with disabilities. The updated rules require broadcasters, cable systems, and other Emergency Alert System participants to transmit the Internet-based version of alerts when available, rather than transmitting the legacy version of alerts which often contain less information or information of lower quality.  The updated rules will also replace the technical jargon that accompanies certain alerts, including test messages, with plain language terms so that the visual and audio messages are clearer to the public.  The new rules will go into effect 30 days after the Report and Order is published in the Federal Register and provide a transition period for EAS participants to implement some of the required technical changes.
  • The FCC announced a virtual event, the “Video Programming Accessibility Forum – Emergency Information,” to be held on October 6, 2022, from 1:00 pm to 3:00 pm ET.  The forum will focus on accessibility issues surrounding emergency information in video programming, as well as advancements that may occur in the future.  The Forum will include two panels that will feature speakers representing television companies and consumer groups.  The agenda for the Forum is available here.
  • The Media Bureau issued a Memorandum Opinion and Order granting the request of an Iowa television station to determine that a Minneapolis television station was no longer “significantly viewed” in a television market that included counties in southern Minnesota and northern Iowa.  This order provided a good example of the issues that must be addressed in any petition to change the designation of a station as being significantly viewed.  That designation can be important as significantly viewed stations are not subject to the network nonduplication and syndicated exclusivity rules, meaning that cable systems in a market carrying the significantly viewed station might be duplicating the programming that is also carried by an in-market station.

Our Broadcast Law Blog last week published its monthly look ahead at the regulatory dates of importance to broadcasters coming up in October.  Also on the Blog, we published an article highlighting some of the state regulations that govern political advertising on digital and online platforms and another article looking in more detail at the significant proposed fines issued in the previous week to TV stations for running prohibited “program length commercials” in programming directed to children 12 and under.