Broadcast Law Blog

Broadcast Law Blog

Florida Supreme Court Rejects Public Performance Right in Pre-1972 Sound Recordings – What’s Next?

Posted in Broadcast Performance Royalty, Intellectual Property, Internet Radio, Music Rights

In a decision this week, the Florida Supreme Court rejected claims by Flo & Eddie (of the 1960s band the Turtles) that there was a common law public performance right in pre-1972 sound recordings in the state of Florida (the opinion is available here). The Florida court, after examining numerous avenues of argument, concluded that the establishment of such a right was a legislative task. A judicial declaration that the right existed would, in the Court’s words, “have an immediate impact on consumers beyond Florida’s borders and would affect numerous stakeholders who are not parties to this suit.” It would also upset settled expectations, as the determination that there was a right would effectively create a sound recording performance right greater than that which has ever been recognized in the US – far broader than the limited right granted under Federal law to cover digital performances of sound recordings. The Court went on to conclude that other claims raised by Flo & Eddie were similarly unavailing. The Court found that any reproductions made in the transmission process by Sirius XM (the defendant in the case) were not entitled to composition as they were transitory and made only for purposes of the transmission, not for public consumption (and as Florida law specifically permitted limited reproductions by radio broadcasters and the Court considered Sirius to fit that definition). And, as there was no violation of any rights of the plaintiffs, the use of the recordings could not constitute unfair competition or conversion.

This case reached the Florida Supreme Court when it was certified by the United State Court of Appeals which was reviewing a District Court decision reaching the same conclusion as did the Florida Supreme Court – that there was no performance right under state law for pre-1972 sound recordings (see our summary of the District Court decision here). The Supreme Court’s decision in Florida is similar to that reached by the Court of Appeals in New York (the state’s highest court), about which we wrote here, determining that there was no NY state law public performance right in pre-1972 sound recordings. As we’ve written many times, pre-1972 recordings are not governed by Federal law, which was only extended to cover reproduction rights in sound recordings in that year, leaving all pre-1972 rights in sound recordings with the states. Georgia and Illinois have reached similar decisions in slightly different cases (see our article here on the Georgia decision). In California, where a District Court found a public performance right in pre-1972 sound recordings, we are awaiting word from its Supreme Court as to whether such rights exist in that state (see our article here on the certification of this question to the California Supreme Court). Continue Reading

November FCC Meeting to be an Important One for Broadcasters – FCC Releases Draft Orders on ATSC 3.0 and Ownership Rule Revisions

Posted in Digital Television, Multiple Ownership Rules, Public Interest Obligations/Localism, Television

Yesterday, we previewed the FCC’s likely decision to significantly change its ownership rules for television owners – proposing to take actions including allowing TV duopolies in markets with fewer than 8 independent TV voices after the combination, allowing some combination of the Top 4 TV stations in certain markets, repealing the radio-TV cross-ownership rules, and repealing the newspaper-broadcast cross-ownership prohibitions. The FCC has now released the draft of the order to be considered at its meeting next month. It is available here.

Also on the tentative agenda (here) for the November meeting is the approval of the new standard for broadcast television – ATSC 3.0. The draft order would allow a voluntary transition to the new standard, with those TV stations that decide to convert being required to find a partner station in most cases so that viewers will be able to see the 3.0 station’s primary programming in the current ATSC 1.0 standard for at least 5 years. LPTV and TV translators would be exempt from this partnering obligation. The draft order is available here. We will provide more details on that draft order in the near future.

These items will be voted on by the Commission on November 16. They are controversial, so expect to see much debate on these items between now and the November meeting, and probably at the meeting itself.

Stay Tuned: Big Broadcast Ownership Rule Changes to be Unveiled Later Today

Posted in Multiple Ownership Rules, Public Interest Obligations/Localism, Television

According to the testimony given yesterday by FCC Chairman Pai at an oversight hearing before the House of Representatives Communications and Technology Subcommittee, the FCC is likely to release today a draft of its order on reconsideration of last year’s FCC decision on its Quadrennial Review of its broadcast ownership rules (the rules restricting the number of media outlets that one company can own in any geographic market). See our article here on the issues pending on reconsideration. According to Commissioner Pai’s testimony, the draft order will include provisions:

  • Eliminating the newspaper/broadcast cross-ownership rule
  • Eliminating the radio/television cross-ownership rule
  • Eliminating the 8-voices test of the local television ownership rules that limits TV duopolies to markets where there will be 8 remaining independently owned and programmed TV stations after the combination
  • Allows consideration on a case-by-case basis of combinations of TV stations that are ranked among the Top 4 stations in their market (combinations which are now prohibited)
  • Eliminating the attribution rule for television Joint Sales Agreements (JSA), meaning that stations could combine sales operations without those combinations being considered the same as common ownership
  • Establishing an incubator program to encourage minority ownership

This draft order will be considered at the FCC’s next open meeting on November 16. Watch for more details after the draft order is released.

FCC Approves Repeal of Main Studio Rules and Starts Proceeding to Examine Broadcast Public Notices and Filing of TV Ancillary and Supplementary Revenue Reports

Posted in AM Radio, FM Radio, General FCC, Public Interest Obligations/Localism, Television

At the FCC meeting yesterday, the FCC repealed, on a 3 to 2 vote, the main studio and studio staffing requirements for TV and radio broadcasters. The final order, here, was substantially unchanged from the draft we described when it was released last month. Broadcasters need no longer have a main studio or even locate employees in their service areas, but must continue to serve the needs of their community, reflect that service in quarterly issues programs lists, and maintain a toll-free number that will allow local residents to contact the station. Stations that have not completely converted to the online public file must also maintain a local paper file until the online conversion is complete. The changes for the most part become effective 30 days after they are published in the Federal Register.

The FCC, as part of its Media Modernization Initiative, also started a proceeding to abolish the requirement that TV stations with no ancillary and supplementary revenue (revenue from the digital transmission of non-broadcast services) file an FCC report on that revenue. As only about 15 stations had such revenue, to make the thousands of other TV stations to file reports to simply say that they have no such revenue made little sense. The Commission instructed its Media Bureau to consider suspending the requirement for stations with no revenue to file those reports on December 1. The Notice of Proposed Rulemaking is available here. We wrote about the draft Notice of Proposed Rulemaking here, which also addresses a second issue which will also be considered by the Commission. Continue Reading

FCC Announces That It Will Lift Filing Freeze on TV Station Modification Applications before LPTV/TV Translator Displacement Window

Posted in Incentive Auctions/Broadband Report, Low Power Television/Class A TV, Television

For well over four years, television stations have not been able to file applications to upgrade their technical facilities as the FCC froze such applications as it wanted to preserve a stable database of TV facilities while it conducted the Incentive Auction and implemented the repacking of the TV band. For TV stations affected by the repacking, the FCC has opened two windows allowing repacked stations to change and maximize their technical facilities on their new channels, the second of which will end on November 2 (see our article here). It was generally expected that the next window to open would be one for the filing by LPTV and TV translator stations displaced by the repacking of full-power stations to find new channels on which they could operate. However, the FCC was approached by LPTV and translator advocates who worried that these stations would file their displacement applications, get construction permits and start to construct new facilities on new channels, only to again be displaced when the FCC lifted its freeze on the filing of applications for new facilities by full-power stations not affected by the repacking. They feared that the four years of pent up demand would cause a flood of applications by full-power stations, some of which might displace LPTVs and TV translators on their new displacement channels. To relieve some of that pent up demand by full-power and Class A stations not affected by the repacking, before the LPTV/translator displacement window, the FCC’s Media Bureau yesterday issued a Public Notice announcing that it will temporarily lift the freeze to allow applications by full-power and Class A TV stations that were not affected by the repacking.

The Public Notice does not specify the date for this lifting of the freeze. Instead, that date will be announced in another public notice specifying the limited period during which the freeze will be lifted.  Applications filed after the lifting of the freeze will apparently be processed in the same way as normal minor change applications, on a first-come, first-serve basis. The lifting of the freeze will also allow the FCC to process construction permit applications filed by TV stations before the imposition of the freeze in April 2013 – applications that have been sitting at the FCC since that time. Continue Reading

FCC Political Broadcasting Rules for Write-In Candidates

Posted in Advertising Issues, Political Broadcasting

In these last few weeks before the many municipal elections that will be occurring in November in states across the country, I have recently received several questions about a broadcaster’s legal obligations toward write-in candidates who want to run advertising on a radio or television station. Under FCC precedent, all legally qualified candidates (including those running for state and local offices, see our article here) must be provided lowest unit rates, equal opportunities to purchase advertising time matching purchases by their opponents and, when they do buy time, the no censorship rules apply to their ads. For Federal candidates, they also have a right of reasonable access. But is a write-in candidate a “legally qualified candidate?” 

In most cases, the question as to whether a candidate is legally qualified is relatively easy.  The station looks at whether the person has the requisite qualifications for the office that they are seeking (age, residency, citizenship, not a felon, etc.), and then looks to see whether they have qualified for a place on the ballot for the upcoming election or primary.  In most cases, qualifying for a place on the ballot is a function of filing certain papers with a state or local election authority, in some places after having received a certain number of signatures on a petition supporting the candidacy.  Once the local election authority receives the papers (and does whatever evaluation may be required to determine if the filer is qualified for a place on the ballot), a person is legally qualified and entitled to all the FCC political broadcasting rights of a candidate: equal opportunities, no censorship, reasonable access if they are Federal candidates, and lowest unit rates during the limited LUC windows (45 days before a primary and 60 days before a general election).  But, for write-in candidates, there are different rules that are applied, as there is no election authority to certify that the requisite papers have been filed for a place on the ballot.  Instead, in these situations, a person claiming to be a candidate must make a “substantial showing” that he or she is a bona fide candidate – that he has been doing all the things that a candidate for election would do. What does that mean? Continue Reading

Court Rejects Appeal of FCC Decision Not to Mandate Multilingual EAS Alerts – Highlighting Requirement that Broadcasters Report To Their SECC in Early November About Emergency Information to Non-English Speakers

Posted in AM Radio, Emergency Communications, FM Radio, Television

The United States Court of Appeals yesterday issued an order denying the appeal of an FCC order that rejected a requirement that multilingual EAS alerts be provided in every market.  We wrote about the FCC’s proceeding here and here. The Court upheld the FCC’s decision as reasonable, finding that the Commission did not have enough evidence to determine how such alerts should be implemented on a nationwide basis, and noting that the FCC was still reviewing whether to adopt requirements that broadcasters provide alerts in languages other than English in the future. That decision should serve as a reminder that in the FCC order rejecting the call to mandate multilingual EAS alerts in all markets, the Commission did call for broadcasters to supply more information – information that is due in early November.

In 2016, when the FCC rejected the imposition of multilingual EAS alerts, they imposed an obligation on broadcast stations to report to their State Emergency Coordinating Committees (“SECC”) information about what the stations are doing to implement multilingual EAS – including a description of any plans they have to implement such alerts in the future, and whether or not there are significant populations of non-English speaking groups in their communities that would need such alerts. We wrote about that obligation here. The one year deadline would seem to be November 3, one year after the FCC’s order was published in the Federal Register (though an FCC small-business compliance guide summarizing the obligations, released in August, available here, states on the top of page 3 that the deadline is November 6).  In any event, given the Court’s decision relying on the FCC gathering information about the provision of emergency alerts to non-English speaking communities, it is important that stations provide their SECCs by early November.  The FCC’s Small Business Compliance Guide is a good summary of what is required. Continue Reading

Update: New Advertising Disclaimers on E-Cig and Cigar Advertising Still on for 2018

Posted in Advertising Issues

Last year, the FDA adopted requirements to tag advertisements for vaping and e-cig advertising with a warning that e-cigs contain nicotine and that nicotine is an addictive chemical. These requirements were to go into effect in 2018. In the last week, I have received several questions about these rules and their effective date. According to this FDA document (see the table on Page 5), released in August, the new disclosure obligations are still set to become effective on August 10, 2018. We wrote about that effective date here, and about the adoption of the requirements, including additional health warning disclosures required for cigar advertising, here. We don’t claim to be FDA experts, so companies offering these products should consult with lawyers who are knowledgeable about the status of additional obligations imposed on manufacturers and retailers adopted by the FDA last year.

Update: Comment Dates Set on FCC Proposal to Abolish Requirement for Paper Copies of FCC Rules

Posted in FM Translators and LPFM, General FCC

The comment dates have now been set on the FCC’s proposal to abolish the requirement that licensees of certain classes of broadcast stations (including translators and auxiliary stations) maintain a paper copy of the FCC rules. We wrote about that proposal, one of the first actions of Chairman Pai under the Modernization of Media Regulation initiative, here and here. The proposal was published in the Federal Register today, setting November 13 as the deadline for comments in this proceeding, and November 27 as the deadline for reply comments. If you are interested in making your views known on this issue, file your comments before the deadlines next month.

Are You Streaming Your Radio Station? Reminder that Broadcasters Need to Pay Royalties to SoundExchange as well as ASCAP, BMI and SESAC

Posted in Broadcast Performance Royalty, Intellectual Property, Internet Radio, Music Rights

The alphabet soup of organizations that collect royalties for playing music has never been easy to keep straight, and today royalty issues sometimes seem even more daunting with new players like GMR (see our articles here, here and here) and arguments over issues like fractional licensing that only a music lawyer could love (see our articles here and here). But there are certain basics that broadcasters and other companies that are streaming need to know. Based on several questions that I received in the last few weeks, I’ve been surprised that one of the issues that still seems to be a source of confusion is the need to pay SoundExchange when streaming music online or through mobile apps. For the last 20 years, since the adoption of the Digital Millennium Copyright Act, anyone digitally transmitting noninteractive music programming must pay SoundExchange in addition to ASCAP, BMI and SESAC (and more recently GMR) for the rights to play recorded music – unless the service doing the digital transmission has directly secured the rights to play those songs from the copyright holders of the recordings – usually the record labels.  Why is there this additional payment on top of ASCAP, BMI and SESAC?

SoundExchange represents the recording artists and record labels for the royalties for the performance of the recording of a song (a “sound recording” or a “master recording”).  ASCAP, BMI, SESAC and GMR by contrast represent the songwriters who wrote the song (not the performers) and their publishing companies.  When you play music on your over-the-air radio signal, you only pay for the public performance rights to the underlying musical composition or “musical work” as it is often referred to in the music licensing world – the words and music of the song.  This money goes to the songwriters and their publishing companies (the publishing companies usually holding the copyright to the musical composition). But, in the digital world, for the last 20 years, anyone who streams music, in addition to paying the songwriters, must pay the performers who recorded the songs and the copyright holders in the sound recordings (usually the labels).  That is the royalty that SoundExchange collects. Continue Reading