The repacking of the TV band following the incentive auction is reaching its end – but perhaps not as quickly as anticipated.  Yesterday, the FCC issued “Guidance” to stations in Phase 9 of the repacking indicating that they can request extensions so that their deadline for implementing any repacking obligation would be the same as that for stations in Phase 10 – the final stage of the repacking.  Phase 9 of the transition began on March 14, 2020 and is scheduled to end on May 1, 2020. Because of the inherent delays in deliveries and construction because of the COVID-19 pandemic, and because station staff members who may be restricting themselves to their homes may not be available to help implement changes, any station scheduled to complete its transition in phase 9 that believes it may be unable to meet the May 1, 2020 deadline will be granted a waiver of the phase 9 deadline and reassignment to phase 10, which begins on May 2, 2020, and ends on July 3, 2020.

Any station needing such an extension must file that request as an STA in the FCC’s LMS database and send a copy to two FCC staff members who will be processing such requests (their email addresses are in the Guidance document).  Stations able to complete the transition in the original time frame can do so, but they must not cause issues for any station requesting a delay until Phase 10.  We’ll watch to see if there will be further disruptions to the process as the coronavirus issues play out over the next few months.

We’ve heard that some broadcasters are worried about staffing their main studios and allowing the public to visit the studios in this period where the government and health authorities have called for social distancing.  With the elimination of the main studio and studio staffing rules back in 2018 (see our articles here and here), this should not be an issue.  Broadcast stations are no longer required to maintain any physical studio facilities in their service areas.  If they do decide to have a local studio, they are no longer required to maintain any level of studio staffing.  So, just as long as the station can monitor their technical operations, originate and pass through EAS, and respond to anyone who calls the local telephone number maintained by the station, the station need not be open to the public during the current health crisis.  Obviously, stations must maintain the public file which is now online – as the public can view it from anywhere.  No physical access to the public file is necessary (except in limited instances when the FCC online platform is down, when the political file must still be made available).

We covered some considerations about other issues that may be of concern if a broadcaster does not maintain local studios in our 2018 article here.  There may be other staffing requirements associated with special situations so always consult your counsel for more details.  So pay attention to the little details, but do not worry if you plan to close your front door to the public during this time of social distancing as the FCC no longer requires that the door be opened during normal business hours as had been required prior to 2018.

As Washington reacts to the coronavirus, there are certainly regulatory implications to broadcasters and other media companies.  The FCC Thursday announced that its headquarters is closed to visitors and that its employees should begin to telework.  Many FCC employees regularly took advantage of telework options before the current situation, so it can be expected that many routine application processing activities (particularly those involving electronically filed applications) should be able to proceed with relatively minimal delays.  What remains to be seen is the ability of the FCC to handle more complex matters that often involve meetings with stakeholders and among FCC staff before decisions are made.  While these too can be handled electronically and telephonically, the speed of FCC actions may well be slower than normal as technological issues are worked out and as the FCC may be called on to address telecommunications matters related to combatting the virus.

The FCC’s Audio Division, on Friday, released a Public Notice describing some special processes it will use in light of the teleworking policy.  First, college and university stations can rely on the FCC rules that exempt these stations from the FCC’s minimum operating schedule during recess periods without the need for a special temporary authority.  The current college shutdowns will be treated as recess periods. Continue Reading Washington Reacts to the Virus – FCC Closed to Visitors and Its Employees Told to Telework; Audio Division Issues Guidance for Radio Regulatory Filings, and Copyright Office Postpones Webcasting Royalty Trial

While the NCAA has called off March Madness, promotions may still be continuing, and we certainly hope that the tournament will be back again next year.  So we figured that, as this article was already written, we might as well publish it.  Yesterday, we wrote about the history of the NCAA’s assembling of the rights to an array of trademarks associated with this month’s basketball tournament.  Today, we’ll provide some examples of the activities that bring unwanted NCAA attention to your operations. Continue Reading March Madness Trademarks:  Avoiding a Foul Call from the NCAA (2020 Update)(Part 2 – Even if the Tournament is Off)

With the NCAA Basketball Tournament about to begin (though without an audience at the games), broadcasters, publishers and other businesses need to be wary about potential claims arising from their use of terms and logos associated with the tournament, including the well-known marks March Madness®, The Big Dance®, Final Four®, Women’s Final Four®, Elite Eight,® and The Road to the Final Four® (with and without the word “The”), each of which is a federally registered trademark.  The NCAA does not own “Sweet Sixteen – someone else does – but it does have federal registrations for NCAA Sweet Sixteen® and NCAA Sweet 16®.

The NCAA also has federal registrations for some lesser known marks, including March Mayhem®, March Is On®, Midnight Madness®, Selection Sunday®, 68 Teams, One Dream®, And Then There Were Four®, and NCAA Fast Break®.  The NCAA has a pending application to register March to the Madness as well.

Some of these marks are used to promote the basketball tournament or the coverage of the tournament, while others are used on merchandise, such as t-shirts.  The NCAA also uses (or licenses) variations on these marks without seeking registration, but it can claim common law rights in those marks, e.g., March Madness Live, March Madness Music Festival and Final Four Fan Fest.

Although the NCAA may use the federal registration symbol (®) with any of its federally registered marks, it is not obligated to do so.  Thus, it should not be assumed that the lack of the symbol means that the NCAA is not claiming trademark rights. Continue Reading March Madness Trademarks: Avoiding a Foul Call from the NCAA (2020 Update – Part 1)

The FDA last week issued an update on its review of issues related to the sale and marketing of CBD products.  The guidance reiterates the kinds of warnings that we have given before (see, for instance, our articles here and here) about not advertising specific health benefits of CBD products as, except for two approved CBD-based drugs used to control seizure-related disorders, the FDA has not yet approved other medical uses of CBD products.  The FDA release provides numerous general cautions about the use of CBD products including concerns about their interactions with other drugs and the potential side-effects of their use.

The statement includes only two paragraphs devoted to marketing of CBD products.  In these paragraphs, the FDA discusses the enforcement actions it has taken (see our posts here and here) against companies that provide specific guidance on health benefits of CBD not only because of the fears of side-effects, but also because of the potential for consumers to be led to believe that CBD products should be used to treat medical conditions to the exclusion of other proven therapies.  The warnings about marketing also extended to the concerns about product labeling, including worries about products being claimed to contain CBD that do not or containing other unknown substances not listed on any label. Continue Reading The FDA Issues New Guidance on CBD – Still Leaving Many Questions for Broadcasters and Advertisers

Notifications about cable carriage have now gone electronic – and contact people at stations and MVPDs for notices about carriage issues are now to be provided in the FCC-hosted online public inspection file and in the Cable Operations and Licensing System (COALS).  According to an FCC Public Notice released last week, in those databases there is now a Carriage Election Notification Point of Contact – a place in online public file where full power TV stations and DBS providers are required to upload both an email address and phone number for purposes of carriage-related inquiries.  Cable operators are required to upload the same information to COALS.   This contact information must be uploaded no later than July 31, 2020 and must be kept up-to-date thereafter.  In fact, when logging into the online public file system to upload information to the public file, TV licensees are now seeing a reminder to provide this information.  These contacts will be used in the must-carry and retransmission consent carriage election statements that must be uploaded by stations to their online public files by October 1 of this year for the 2021-2023 cycle.  Under an FCC Report and Order adopted last year, stations upload their elections to their public file every three years on the normal election cycle and specifically notify MVPDs of their must carry/retransmission consent election only if that election changed from the prior cycle (see our article here).

Thus far, the Commission has not created any online public file requirement for qualified low-power (certain rural LPTV stations that qualify for must-carry on local cable systems) and non-commercial educational translator stations. Instead, carriage-related inquiries will be directed to the “contact e-mail” address and phone number these stations should have already provided under the “facilities tab” in the Commission’s Licensing and Management System (LMS) database.  Last week, the FCC issued a Report and Order clarifying those obligations for qualified LPTV stations and non-commercial educational translators requiring that they provide current contact information in LMS by July 31, 2020, update that information when it changes, and use email to make their carriage elections by the October 1, 2020 election deadline date.

Be aware of these new requirements, upload the required information by the July 31 deadline, and use electronic notices for the elections due by October 1.

The Radio Music License Committee yesterday told members that Global Music Rights (“GMR”), the performing rights organization that began a few years ago to collect royalties for the public performance of songs written by a select number of popular songwriters (including Bruce Springsteen, members of the Eagles, Pharrell Williams and others who have withdrawn from ASCAP and BMI) has agreed to extend its interim license for commercial radio stations until March 31, 2021. The notice says that GMR will be contacting stations that signed the previous extension (through March 31 of this year) to extend the interim license for another year on the same terms now in place. If you don’t hear from GMR by March 15, the RMLC suggests that you reach out to GMR directly (do not contact RMLC as they cannot help) to inquire about this extension.

As we have written before (see our articles here, here and here), GMR and the RMLC are in protracted litigation over whether or not the rates set by GMR should be subject to some sort of antitrust review, as are the rates set by ASCAP, BMI and even SESAC (see our article here on the SESAC rates). GMR has counterclaimed, arguing that RMLC is a “buyer’s cartel” in violation of the antitrust laws.  Earlier this year, the lawsuits were consolidated in a court in California, where litigation is ongoing (see our article here about the transfer).  In our most recent article about the litigation, we noted that the court rejected motions from each party asking that the other’s claims be dismissed.  Thus, unless there is a settlement, the case will go to trial.  The decision to extend the interim license for a year, instead of the six-month period in previous extensions, may indicate that GMR at least expects that the litigation will continue. Continue Reading Another Interim License Extension Offered by GMR to Radio Broadcasters – This Time for a Full Year – An Indication of the Status of the Litigation With RMLC? 

A Notice of Proposed Rulemaking proposing greater coverage areas for unlicensed “white space” devices operating in the TV bands was adopted at the FCC’s open meeting last week and released earlier this week.   We have written about these white space devices before (see, for instance, our articles here and here).  These devices operate at relatively low powers in unused portions of the TV bands.  They are designed to offer wireless services, including broadband.  Advocates of these operations see them as an inexpensive way to offer broadband services to underserved areas, including parts of rural America.

The concern of course with these devices is that if their use is not managed correctly, their operations could interfere with existing TV operators (including LPTVs, TV translators, broadcast auxiliary services, and wireless microphones).  Thus far, operations have been limited to power levels of 10 watts or less from antenna heights that did not exceed 250 meters height above average terrain.  The advocates for these devices, including Microsoft, have argued that these low power levels make it difficult to serve rural areas given their small coverage area.  NAB, on behalf of broadcasters, and advocates for wireless microphone operators, have urged caution in any increase in the coverage of these operations if they could possibly cause interference to existing users of the spectrum.  After significant discussion and compromise between the NAB and Microsoft, the NPRM adopted last week tries to strike a balance between these positions. Continue Reading FCC Adopts Notice of Proposed Rulemaking Looking to Allow Higher Power and Greater Height for Unlicensed White Space Devices Operating in the TV Bands

The FCC yesterday released a Public Notice calling for public comment on the state of the communications marketplace so that it can prepare a report to Congress – a report that is required every even-numbered year.  The Notice calls for comments on the state of competition in various sectors of the communications industry – including for audio and video.  The inclusion of audio in this report is relatively new – being included for the first time two years ago (see our article here).  Comments in this proceeding are due on April 13, with replies due May 13.

The Audio Competition Report prepared two years ago was very important in informing the FCC as to the state of competition in that segment of the market.  Comments filed with the Commission on the report were incorporated in the record of the FCC’s Quadrennial Review Notice of Proposed Rulemaking which entertained the possibility of changes in the ownership rules for broadcast radio in light of the substantial competition that comes from digital audio sources (see our article here on the Quadrennial Review NPRM).  Whether this year’s report will be as crucial is unknown, as the Third Circuit Court of Appeals decision on the FCC’s 2017 ownership rule changes have, for now, put all broadcast ownership changes on hold while the FCC (and the Department of Justice) decide whether to appeal that case to the Supreme Court or to attempt to answer the Third Circuit’s concerns that the FCC had not sufficiently addressed the impact of changes in its ownership rules on minority ownership (see our articles here and here).  While these decisions are being made, it appears that all ownership changes are on hold. Continue Reading FCC Seeks Comments on the State of the Communications Marketplace – Including for Audio and Video