The FCC yesterday announced that it is setting up a consumer help desk, where operators will be standing by to answer questions about rescanning the TV spectrum to find TV stations that have changed channels due to the repacking of the TV band. Many TV stations will be changing channels due to the repacking of the TV band following the broadcast incentive auction which shrunk the number of channels dedicated to TV broadcasting as part of the TV band was repurposed for wireless communications uses. As the TV stations that were forced to change channels by the repacking make those changes, consumers receiving their TV signals over the air will need to “rescan” the TV band to make sure that their sets find all the local stations on their new channels. The help desk will be available to answer consumer questions 7 days a week, from 8 AM to 1 AM Eastern Time.
Press reports following a speech this week by the head of the Department of Justice’s Antitrust Division have many in the broadcast industry paying attention. In response to a question following a speech at a DC conference by Makan Delrahim, the chief of the DOJ’s Antitrust Division, he is reported to have said that the DOJ will be holding a workshop to assess whether online advertising should be considered in assessing the local television marketplace, and whether the facts should support a change in the Department’s assessment of mergers by considering online advertising as part of the same competitive market as local TV advertising. Why is this important?
In recent years, particularly in its review of combinations such as last year’s proposed Sinclair-Tribune merger, the DOJ has looked only at the marketplace for over-the-air television in assessing a transaction’s likely competitive impact, refusing to look at the competition for viewers and advertisers that now comes from online sources like YouTube, Facebook and the many other digital platforms competing in today’s media marketplace. Were the DOJ to conclude that digital platforms are indeed part of the same market as TV, there is a greater likelihood that transactions previously questioned on antitrust grounds could see a more favorable reception from the DOJ. This could also have an impact on radio ownership – where the FCC is just about to embark on its own review of the local radio ownership rules. Continue Reading
Yesterday, we published an article talking about an FCC public notice extending all filing deadlines that fell between January 8 and February 7 (except those dealing with auctions and other activities of the FCC unaffected by the government shutdown) to February 8. The article also mentioned that the FCC gave stations that had not been able to upload material into their public inspection files during the shutdown until February 11 to complete the upload of required public file materials – including specifically the Quarterly Issues Programs lists that should have been uploaded by January 10. This led some broadcasters to ask about public file documents that are now due to be uploaded – e.g. EEO Public Inspection File Reports due to be included in the public file by February 1 by stations in certain states (see our article here for a list of the states) – can stations wait until February 11 to upload those documents? Apparently not, we are hearing from the FCC, as the public notice about the February 11 deadline says that it applies only to documents that were to be uploaded to the public file between January 3 and January 28. So documents that are to be uploaded by February 1 would not be among those with the extended deadline. Obviously, consult your own counsel for details on all of these deadlines – but it looks like, if you have a public file deadline tomorrow – February 1 – you should meet that deadline.
Yesterday, we wrote about upcoming deadlines for broadcasters, and noted that the FCC was going to be releasing an order providing further details on the deadlines for pleadings and other documents that were due during the government shutdown. That Public Notice was released on Tuesday, and further postponed many filing deadlines which fell during the shutdown. Filings that were due at the very beginning of the shutdown, from January 3-7, will still be due today, January 30, as noted in prior FCC releases. However, for documents due January 8 and after (in fact, through February 7), the new filing deadline will now be February 8. There is also a new deadline for updates to the online public file, including the Quarterly Issues Programs lists that were due in station’s public inspection filed by January 10, which will now be due by February 11. Quarterly Children’s Television reports to be filed at the FCC would presumably be due on the 8th, with other children’s television documents (including information about compliance with advertising limits in children’s programs), which are only placed in the public file, would have the February 11 deadline. (1/31/2019 – See our update here – documents due to be uploaded to the public file on January 28 or later, after the end of the shutdown, still need to be filed on time, meaning February 1 EEO Public Inspection File Reports should be uploaded on time). Comments in proceedings such as the FCC’s proceeding on Class A AM stations will be covered by the new February 8 filing deadline. Responsive pleadings addressing any of the documents extended by this FCC order will also be extended to follow these new revised filing deadlines.
At the same time, the FCC announced that it would move the date of its February meeting up one week – the be held on February 14. The agenda for that February meeting is here – addressing all the issues that had been teed up for the January meeting. The January 30 meeting (now scheduled to begin at 12:30 pm ET) will end up being comprised of nothing more than announcements. For broadcasters, as we wrote yesterday, the FCC will likely abolish the need for filing the FCC Form 397 EEO mid-term report at its February 14 meeting. The FCC will also vote on a Notice of Proposed Rulemaking looking at the process for issuing new construction permits to noncommercial broadcast stations and LPFMs. Presumably, the February 14 date was to insure that the meeting would occur before the next potential shutdown, which could occur on February 15 if no budget deal is reached. So, for now, broadcasters have some more time to file documents that were delayed by this year’s first government shutdown.
Updated; 1/30/2019, 10:10 AM to note the different deadline for public file updates.
Just back from the shutdown, the FCC released an order denying the appeal of two LPFM advocacy groups who had appealed the denial of their petition seeking to block hundreds of new FM translators that will rebroadcast AM stations. We wrote about prior rejections of this petition by the Media Bureau here and here. Yesterday’s order rejected the petitioners’ application for review seeking consideration by the full Commission of the Bureau’s decisions. The petitioner had based their claim on an allegation that new translators could put undue limits on LPFM stations changing transmitter sites. But the petitioner never showed that any translator would specifically affect any LPFM station seeking to change site (and likely could not, as many new translators are in relatively rural areas where there are likely to be plenty of available spectrum for both translators and LPFM uses). As there had been no specific showing of any harm created by any of the challenged translator applications, and the petitioners had not shown that they represented any LPFM adversely affected by any translator application, the petition was again rejected for lack of standing. Given that so many AM stations are relying on these translators (and likely many have already been granted and built), this action should come as a relief to licensees who received grants of these translator applications.
With the reopening of the Federal government (at least for the moment), regulatory deadlines should begin to flow in a more normal course. All of those January dates that we wrote about here have been extended by an FCC Public Notice released yesterday until at least Wednesday, January 30 (except for the deadlines associated with the repacking of the TV band which were unaffected by the shutdown). So Quarterly Issues Programs lists should be added to the online public file by January 30, and Children’s Television Reports should be submitted by that date if they have not already been filed with the FCC. Comments on the FCC’s proceeding on the Class A AM stations are also likely due on January 30 (though the FCC promised more guidance on deadlines that were affected by the shutdown – such guidance to be released today).
February will begin with a number of normal FCC EEO deadlines. Commercial and Noncommercial Full-Power and Class A Television Stations and AM and FM Radio Stations in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma that are part of an Employment Unit with 5 or more full-time employees need to include in their public files by February 1 the Annual EEO Public Inspection File Reports. TV stations in New Jersey and New York in Employment Units with 5 or more full-time employees also need to file their FCC Form 397 Mid-Term EEO Reports. While the FCC appears ready to abolish that form (see our article here), it will remain in use for the rest of this year, so New Jersey and New York TV stations still need to file. Note that the FCC considers an “employment unit” to be one or more commonly controlled stations serving the same general geographic area and sharing at least one common employee. Continue Reading
The government shutdown continues to create a confusing situation for government agencies faced with statutory obligations that are difficult to honor without a working federal bureaucracy. The FCC by law is required to hold a monthly public meeting but, when the bulk of its employees are furloughed, it is difficult to meaningfully adhere to that obligation. The FCC announced earlier this week that it would go ahead with its January 30 meeting but, if the lapse in appropriations continues through January 29, it will conduct that meeting by conference call, rather than live as is routine. If the shutdown resolves before January 29, a live meeting will be held. The meeting appears as if it will be relatively perfunctory, as it will consist of “announcements only.” The items that had been on the agenda released early this month to be discussed will in fact not be considered. For broadcasters, that means that the order abolishing the EEO Mid-Term Report (about which we wrote here) and the Notice of Proposed Rulemaking on reforms to the process used to award construction permits to noncommercial broadcasters and LPFM applicants (which we wrote about here) will be addressed at some later meeting or by circulation among the Commissioners without a meeting. Keep watching to see what develops next, and see our article here about what is and is not working at the FCC for broadcasters.
Last week, we noted that the Copyright Royalty Board had a notice on its website saying that, because of the government shutdown, it could not publish its notice soliciting petitions to participate in WEB V, the case to set webcasting royalties paid to SoundExchange by noninteractive webcasters (including broadcasters who simulcast their programming on the Internet) for the period 2021-2025 because of the government shutdown. That notice is normally required by law to be published by January 5 and to give parties 30 days to file a petition to participate in the proceeding. Well, it looks like the Federal Register authorities have changed their tune, as the notice seeking petitions to participate is in the Federal Register today, setting a deadline of February 4 for parties to file their petitions seeking the right to participate.
It is interesting, as the notice was dated January 4, and presumably was expected to be published much earlier. So, while parties should have had 30 days to indicate their intent to participate, the time is now much shorter – with the petitions to participate due in just 10 days. While late filings can be accepted in the discretion of the Copyright Royalty Judges, such late filings limit the participant’s rights. We will see if there is any accommodation made because of the unique circumstances of this publication – but right now interested parties should be ready to file by February 4 their petitions to participate using the procedures set out in the notice – establishing their interest in the proceeding and the required $150 filing fee.
For several years, we have posted guidelines about engaging in or accepting advertising or promotions that directly or indirectly allude to the Super Bowl without a license from the NFL. It’s that time of year again, so here is an updated version of our prior posts.
The Super Bowl means big bucks. It is estimated that each of the three television networks that broadcasts the Super Bowl pays the NFL over $1 billion per year for the right to broadcast NFL games through 2022, including the right to broadcast the big game on a rotating basis once every three years. The investment seems to pay off for the networks. The Super Bowl broadcast alone generates hundreds of millions of dollars for the networks from advertisers. In addition to the sums paid to have their commercials aired (reported to be approximately $5 million for a 30-second spot), many advertisers spend more than $1 million to produce each ad. In addition, the NFL receives hundreds of millions of dollars from licensing the use of the SUPER BOWL trademark and logo.
Given the value of the Super Bowl franchise, it is not surprising that the NFL is extremely aggressive in protecting its golden goose from anything it views as unauthorized efforts to trade off the goodwill associated with the game. Accordingly, with the coin toss almost upon us, advertisers must take special care before publishing ads or engaging in promotional activities that refer to the Super Bowl. Broadcasters and news publishers have greater latitude than other businesses, but still need to be wary of engaging in activities that the NFL may view as trademark or copyright infringement. (These risks also apply to other named sporting events, for example, making use of the terms “Final Four” or “March Madness” in connection with the upcoming NCAA Basketball Tournament.) Continue Reading
Update – January 24, 2019 – the notice seeking petitions to participate has been published in the Federal Register, setting a filing deadline of February 4, 2019. See our article here for more details.
In our summary of January regulatory issues for broadcasters, we suggested that the Copyright Royalty Board this month might start WEB V, the next proceeding to determine the rates that Internet radio stations and other webcasters pay to SoundExchange for the noninteractive public performance of sound recordings. The current royalties (see our initial article on the decision setting current royalties here, and one that provided more details here) expire at the end of 2020. A proceeding to establish the rates for 2021-2025 is a two-year long process, and would normally begin with a request from the CRB for interested parties to file petitions to participate about now. But, even though the CRB itself is not closed because of the partial government shutdown, according to a notice on the CRB website, the Federal Register (in which the notice soliciting petitions to participate would be published) is only accepting notices relating to public safety and welfare – and the CRB proceeding apparently does not fit in those criteria. So the start of the case will be delayed by this government shutdown until the Federal Register publication can be accomplished.
As we have written before, this is likely to be an interesting case – just in determining who will participate. Broadcasters who stream their signals would likely participate, especially as their digital transmissions are becoming more important to some broadcast stations (see our article here on the fact that smart speakers increase digital listening to radio stations – listening on which the SoundExchange royalties must be paid). Some of the other services that have participated in the past proceedings (including Pandora and iHeart) now offer, in addition to their noninteractive services, interactive or on-demand music services for which royalties need to be directly negotiated with the record labels (see our post here for more details on royalties for interactive services). Will they participate in the upcoming case, or have they negotiated direct deals that cover their more traditional webcasting services along with their interactive services? That remains to be seen. Small commercial webcasters, who were left out of the last proceeding (see our article here), might also be interested in participating. Noncommercial webcasters usually participate in these cases as well. But all interested parties appear to be on hold right now – along with many other industries that rely on government actions – until this shutdown is resolved.