It seems like whenever Democrats are elected to serve as President and take control of Congress, there is talk about the revival of the Fairness Doctrine as some panacea for restoring balance and civility to political debate.  In recent weeks, we have seen many articles blaming conservative talk radio for the current divisions in the country and for the widespread belief in discredited claims about political and social topics.  This same debate arose almost exactly 12 years ago following the election of President Obama (see our articles here and here about that debate).   In coming days, we will write about a new round of legislative proposals looking to impose content moderation rules on digital media (including a Florida proposal to essentially block social media platforms from de-platforming one candidate, while allowing another candidate access, and a recent Congressional proposal removing Section 230 immunity from digital platforms for certain kinds of speech).  But, given the discussion of reviving the old Fairness Doctrine, we thought it worth taking a look back at just what that Doctrine required, the reasons for its demise, and some of the issues that would surround any attempt to bring it back.

First, it is important to understand what the Doctrine covered and what it did not.  It was a broadcast doctrine adopted in 1949, in an era that pre-dated the political talk that we now see dominating so many cable networks.  It also was different from the Equal Time Rule which is still in effect for candidate appearances on broadcast stations.  The Fairness Doctrine required that stations provide balanced coverage of all controversial issues of public importance.  The Fairness Doctrine never required “equal time” in the sense of strict equality for each side of an issue on a minute-for-minute basis.  In talk programs and news coverage, a station just had to make sure that both points of view were presented in such a way that the listener would get exposure to them.  How that was done was left to the station’s discretion, and the FCC intervened in only the most egregious cases. Continue Reading The Return of the Fairness Doctrine – What it Was and Why it Won’t Return

The FCC yesterday announced plans to hold an auction to award construction permits allowing the winners to build new radio stations. The auction notice includes 136 FM channels and, in a new wrinkle, 4 AM opportunities, for which bids will be able to be placed once the auction commences.  The list of channels to be auctioned is here – with many channels being in the state of Texas, with an assortment of others around the country. These channels are mostly those that had been included in an auction scheduled for last July which was cancelled because of COVID-19 (see our articles here and here).  In addition, a few newly available FM channels have been added to the list, as well as 4 AMs in the St. Louis area that are available because a licensee surrendered those licenses after a license renewal challenge.

The notice released yesterday asks for comments on the auction procedures to be used in awarding these channels, proposing procedures that are generally familiar to those who have participated in FM auctions in the past.  The auction is tentatively scheduled to begin on July 27. Working backward, that would mean that the initial “short-form” applications required for parties who want to participate in the auction would likely be due sometime in May.  Upfront payments equal to or greater than the minimum payments for the channels that an applicant ultimately wins in the auction will probably be due in June.  Continue Reading Want a New Radio Station? FCC Proposes Procedures for a July 2021 Auction, Lists Channels to be Sold, and Imposes a Freeze on Certain Applications

The past week was another light one for broadcast regulation at the FCC.  But here are some actions of note for broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • Two Kentucky FM translator stations filed their license renewal applications nearly four months late and now face $1,500 fines. From time to time, the FCC has announced that numerous stations failed to file their renewal applications on time during this license renewal cycle, putting at risk their authority to operate.  These cases also remind broadcasters to remember to renew their translator licenses as well as those for their primary stations.  Be sure to mark your calendar with your renewal filing deadline date (radio dates here; TV dates here) and start your preparations early.  Radio stations in Texas and TV stations in Indiana, Kentucky, and Tennessee are the next groups to file for renewal and must do so by April 1.  (W278BK Notice) (W280FH Notice)
  • TVNewsCheck published our updated high-level look at the state of play in Washington for broadcast television issues. This is a good resource to learn about new issues and to get caught up with the latest on issues that have been around for a while.  (Broadcast Law Blog)
  • We wrote about the “performance complement” and other music licensing issues while we wait for the Copyright Royalty Board to say how much webcasters(including broadcasters who simulcast their over-the-air programming on the internet) will pay for the public performance of sound recordings for 2021 through 2025.  (Broadcast Law Blog)

We are waiting on the Copyright Royalty Board to release its decision setting the royalties that webcasters (including broadcasters who simulcast their over-the-air programming on the Internet) will pay to SoundExhange for the public performance of sound recordings in the period 2021 through the end of 2025.  As we wrote here, that decision would normally have been released in December but, as the trial to establish those rates was delayed by the pandemic and held virtually over the summer, the decision on rates could come as late as this April, though once effective it will be retroactive to all streaming that has occurred since January 1 of this year.  While we await the announcement of the new rates, as I’ve recently received several questions about the rules that apply to streaming under the statutory license, I thought that I would take a quick look at the “performance complement” and other rules that apply to companies that rely on this license.

Note that the rules set out below are slightly different for certain broadcasters, as the NAB in 2016 entered into agreements with Sony and Warner Music Groups to waive certain of the statutory requirements for broadcasters who stream their over-the-air signals on the Internet.  These agreements allow broadcasters to stream their normal over-the-air programming featuring music from these labels without having to observe all of the obligations set out below.  We summarized those waivers here, and hope that they will be further extended to cover the new royalty term.  Also, some big webcasters have negotiated relief from these requirements (see our article here).  But for those not subject to a waiver, let’s look at some of the rules that webcasters relying on the statutory license are to observe. Continue Reading Looking at the Performance Complement and Other Rules that Apply to Webcasting Companies Relying on the Sound Recording Statutory License

Where do all the Washington DC legal issues facing TV broadcasters stand in these early days of a new Administration? While we try on this Blog to write about many of those issues, we can’t always address everything that is happening. Every few months, my partner David O’Connor and I update a list of the legal and regulatory issues facing TV broadcasters. That list of issues is published by TVNewsCheck.  The latest version, published today, is available on their website here. It provides a summary of the status of legal and regulatory issues ranging from the adoption of the ATSC 3.0 standard at one end of the alphabet to White Spaces and Wireless Microphones on the other – with summaries of the status of the FCC’s consideration of other issues including issues such as Ownership Rule Changes, Children’s Television, C-Band Earth Station repacking, DTS, EEO, Political Advertising, Sponsorship Identification and dozens of other topics, many with links to more detailed discussions here on the Blog.

This is an easy place to go to see where, as of last week when we finished writing the article, legal matters related to TV broadcasting stand.  Of course, the status of these issues changes almost daily, so watch this Blog and other trade publications, and consult your own legal counsel, for the latest Washington news of interest to broadcasters and to you and your operations.

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

  • Often when a new administration takes over and a new Chairperson is installed at the FCC, some of the agency’s non-routine work slows down as the new Chair and her staff look to align the bureaus and offices with their priorities. The last week under Acting Chairwoman Jessica Rosenworcel has been no exception to this, with few public releases coming out of the Media Bureau.  But the FCC’s routine work, like license renewals, EEO filings, and comment deadlines, continues and our monthly feature on broadcast regulatory dates and deadlines highlights some of these upcoming obligations.
  • With the Super Bowl next Sunday, if you are planning any advertising or promotions tied to the game, we published an article by our law partner Mitch Stabbe on how broadcasters and advertisers can steer clear of the NFL’s aggressive efforts to protect its Super Bowl trademarks and other intellectual property rights. (Broadcast Law Blog)
  • Parties interested in the future of copyright law and the Copyright Office should note that Sen. Thom Tillis (R-NC) has drafted legislation on various copyright topics and is accepting comments on the legislation through March 5th. The legislation seeks changes to the Copyright Act which would, among other things, lessen protections that online services have from infringement claims about user-generated content, as well as changing the organization and authority of the Copyright Office.  Legislators do not often release draft legislation this far in advance and ask for public input, so, as these changes would affect all media companies, be sure to take advantage of the open process and send in your ideas.  We wrote about the draft legislation, here.

During the holidays, we did not get a chance to mention the draft legislation circulated by Senator Thom Tillis (R-NC) proposing changes in the Copyright Act, including the provisions of the Digital Millennium Copyright Act that created Section 512 of the Act – the safe harbor for user-generated content.  The legislation also proposes other changes in the law, including changing the structure of the Copyright Office by making it an Executive Branch agency with substantive rulemaking authority, as part of the Commerce Department.  The legislation (a full copy is available here and a summary can be found here) was not formally introduced in the waning days of the last Congress.  Instead, Senator Tillis released it for public comment with the intent that the draft would be refined based on those comments before being formally introduced for legislative consideration.  The Senator is seeking comments by March 5, 2021 from all interested parties to determine how the proposals would affect their interests.  Press releases from his office indicate that he is seeking input from a broad array of interests, from the creative community to the tech companies that use copyrighted content to consumers who may find that the platforms they use might police content differently if there are changes in the law.

Reform of the DMCA safe harbor provisions has long been sought by copyright holders who feel that the insulation from liability afforded to tech companies who host content created by others has led to widespread infringement of copyrighted materials.  We wrote at length about these issues in 2016 when the Copyright Office itself reviewed questions about user-generated content (see, for instance, our articles here and here).  In many ways, the issues with Section 512 are similar to those about Section 230 of the Communications Decency Act – the extent to which big tech companies hosting user-generated content should be liable for that content and should take efforts to police content on their platforms.  Section 230 provides insulation from civil liability other than that which arises under the intellectual property laws (so it protects online hosting companies from liability for matters including defamation or invasion of privacy – see our post here), while Section 512 provides insulation from liability for intellectual property infringement.  However, the Section 512 procedures for obtaining insulation from liability are different from, and in many cases are more stringent than, those under Section 230. Continue Reading Proposal for Reform of Copyright Act Released for Public Comment – Including Changes for the Safe Harbor for User-Generated Content, the Status of the Copyright Office, and Orphan Works

With the federal government and the FCC under new management, Acting Chairwoman Jessica Rosenworcel may well take the Commission in a direction that aligns with the policies she supported during her time as a Commissioner.  It is notable that, no matter what policies she advances, the routine regulatory dates that fill up a broadcaster’s calendar are generally unchanged.  Some of the dates and deadlines which broadcasters should remember in February are discussed below.  Given the transition period that we have just been through, the number of February dates are somewhat lighter than in most months – but that is sure to pick up as everyone settles into their new roles at the FCC.

On or before February 1, radio stations in Kansas, Nebraska, and Oklahoma and television stations in Arkansas, Louisiana, and Mississippi must file their license renewal applications through the FCC’s Licensing and Management System (LMS).  Those stations must also file with the FCC a Broadcast EEO Program Report (Form 2100, Schedule 396) and, if they are part of a station employment unit (a station or a group of commonly owned stations in the same market that share at least one employee) with 5 or more full-time employees, upload to their public file and post a link on their station website to their Annual EEO Public Inspection File report covering their hiring and employment outreach activities for the twelve months from February 1, 2020 to January 31, 2021.  TV and radio stations licensed to communities in New Jersey and New York which are part of an employment unit with 5 or more full-time employees also must upload to their public inspection file their Annual EEO Public Inspection File report by February 1. Continue Reading February Regulatory Dates for Broadcasters: License Renewals, EEO Reporting, KidVid Reports, Zonecasting Comments, FCC Open Meeting, and More

For the last five years, I have posted guidelines about engaging in or accepting advertising or promotions that directly or indirectly reference the Super Bowl without a license from the NFL.  As hard as it may be to believe, the NFL has almost made its way this season to another championship game, so here is an updated version of my 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.  Reportedly, it cost $5.6 M for a 30-second spot during last year’s Super Bowl broadcast and national advertising revenue totaled $448.7 M, not counting income from ads during any pre-game or post-game programming.  (In addition to the sums paid to have their commercials aired, some advertisers spend millions of dollars to produce an 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 mark or the game.  Accordingly, with the coin toss almost upon us, advertisers should take special care before publishing or engaging in advertising or other 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 annual NCAA Basketball Tournament.) Continue Reading Stay A Lot More Than Six Feet From The NFL’s Trademarks!  2021 Update on Super Bowl Advertising and Promotions

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

  • President Joe Biden named Jessica Rosenworcel as Acting Chair of the FCC, where she will set the agenda for the Commission until a permanent Chair is appointed (and she may be a candidate for that permanent position). The Biden administration has not said when it will name a permanent chair.  (News Release)
  • The U.S. Supreme Court heard oral argument in Federal Communications Commission, et al. v. Prometheus Radio Project, et al., the Court’s review of the FCC’s 2017 media ownership rule changes. The changes at issue include the abolition of the newspaper-broadcast cross-ownership rule and several local TV ownership restrictions.  A decision in the case is expected by early summer.  Audio of the argument and a written transcript are available, here.  In an article, here, we looked at the argument and how the Court’s decision could impact the future review of ownership issues by the Commission.
  • The FCC issued new technical rules regarding the use by TV stations of Distributed Transmission Systems (DTS) (also known as single frequency networks). The new rules expand and clarify the permissible range of “spillover” beyond a station’s protected contour.  DTS gives stations a more uniform signal strength throughout their service area which would be beneficial to new services that can be offered with the ATSC 3.0 (Next Gen TV) transmission standard.  (Report and Order)
  • A Georgia low power FM station settled an FCC investigation by acknowledging it violated the underwriting rules for noncommercial stations and agreeing to pay a $10,000 fine. The station was paid by a for-profit entity to air nine announcements that included prohibited promotional references.  (Order)
  • As we noted in last week’s summary, the Department of Justice declined to act on the ASCAP and BMI consent decrees. We took a deeper look, here, at what this means for the future of the consent decrees and the state of play in the music licensing world.