Have you received a claim that some system that your station is using, such as the system for digital storage of your music library, is infringing a patent? Don’t ignore it! We understand that a number of radio stations have received these sorts of notices. There have been many recent situations where patent holders have alleged that broadcasters or digital media companies have infringed their patents. The mere fact that you bought a system from a third party vendor does not insulate you from possible infringement liability. Patent holders can seek a recovery either from a manufacturer of a system that infringes their patent, or from a user of that system. Sometimes these claims look like they can’t be real, as they appear to claim patent rights on systems that have been in use for a long time. But, if these parties file suit and you don’t defend, you may end up with liability simply because you did not defend against the claims. Some of these suits are filed with the expectation that some defendants won’t respond, or that they will settle so long as the costs of settlement are less than the costs of defending against the litigation. Talk to an attorney if you have received one of these claims to discuss your options.

When you get one of these claims, if it involves a hardware or software system that you bought from a third-party vendor, you should review your contract with the vendor to see if the vendor has agreed to defend claims about your use of their system. If so, you want to get them involved quickly, as soon as you receive a claim.  For the future, these suits highlight a provision that you should be sure is in all agreements that you sign with your vendors. Your vendors should warrant to you that their system does not infringe any patents, and that if any claim is made, the vendor will defend you against claims that are made and indemnify you for any losses that you suffer as a result of a claim against your use of their service. In today’s digital world, a little protection up front may protect you from big liability in the future. 

The end of September marks the close of the Third Quarter of 2011, which brings two quarterly filing obligations for broadcast stations.  The first obligation is that by October 10 all radio and television stations, both commercial and noncommercial, must prepare and place in their public inspection file Quarterly Issues Programs Lists reporting on the important issues facing the stations’ communities, and the programs aired in the months of July, August, and September that dealt with those issues. The failure to have a complete set of Quarterly Issues Programs lists, which were timely prepared and placed in a station’s public file, can lead to significant fines at license renewal time so all stations are urged to prepare their Quarterly Issues Programs lists in a timely fashion. See our full advisory for further details.  With the renewal cycle now in full-swing for radio stations and looming on the horizon for television stations, licensees are reminded to make sure their stations are meeting this obligation on a quarterly basis. 

Secondly, full power and Class A low power television stations are reminded that Children’s Television Programming Reports on FCC Form 398 must be prepared and filed electronically with the FCC by October 10, 2011.  While technically, the deadline for filing the Form 398 with the FCC will roll to Tuesday, October 11th (because Monday is a Federal holiday, Columbus Day), given that the Reports must also be placed in the station’s public inspection file within ten days after the end of the quarter, it would be best for stations to simply prepare and file their programming reports by October 10th to ensure they are timely. Our recent advisory is available here with all the details on the Children’s Television Programming Reports.  By Oct. 10th, commercial stations should also prepare and place in their public inspection file the necessary quarterly certifications regarding compliance with the commercial limitations in Children’s Programming. 

The FCC Form 323 is now available for filing by all commercial broadcasters.  The Form must be submitted by December 1 of this year.  In 2009, the FCC adopted the requirement for a biennial ownership report for all commercial stations, to be filed by November 1 every other year, with information accurate as of October 1.  In 2009, the new electronic form had issues, so filing deadlines were delayed until June.  This year, the FCC recently announced that the deadline would be extended until December 1, to give broadcasters more time to complete the  reports – especially the cumbersome filings required for companies that own multiple stations.  Nevertheless, the information on the reports is still supposed to be current as of October 1.  The form is now available online, and commercial broadcast licensees can file the report at any time.

The FCC Public Notice links to a series of frequently asked questions about the report.  These questions remind broadcasters that the report is to be filed by all commercial licensees (not permittees of unbuilt stations) of AM, FM, TV, LPTV and Class A TV stations.  Translators (radio and TV) are not included in the requirement.  Noncommercial stations (including LPFM stations) need not file the report on the new form or at the same time as commercial licensees.  Noncommercial licensees continue to file every other year on the anniversary date of the due date for their last license renewal (note that this means that some noncommercial stations in states with December renewals will need to file by December 1, not because they are covered by the commercial requirements discussed above, but because their filing deadline just happens to fall on that date).  Noncommercial licensees also do not use the new electronic Form 323 used by commercial licensees, but instead use Form 323E.  (See our most recent advisory to noncommercial broadcasters on their ownership obligations, here).  Whether commercial or noncommercial, remember to file your ownership reports by the required deadlines!

Do you allow the posting of content created by third parties on your website (e.g. videos, audio files, or even written comments)?  Do you run any on-line service where you collect information provided by third parties (whether that be a dating service, auction site or other classified service)?  If you do, you probably know that you are safe from copyright claims for infringing content that is posted by those who are not your employees or agents if you follow certain steps.  We have written about these steps to give you the "safe harbor" from copyright liability for "user-generated content" before.  The steps include requirements that you not encourage or profit from the infringing content, that you have terms of use for your service that forbid users from posting infringing content, and that you take down infringing content when you receive notice from copyright holders that it has been uploaded to your site or service by a third party.  To take advantage of this safe harbor from liability, services are required to register with the Copyright Office the name of someone in their company who can be served with "take-down notices" from copyright owners.  The process of registration is now proposed to be changed in a Notice of Proposed Rulemaking just issued by the Copyright Office.  Comments on this notice can be filed through November 28. Replies are due by December 27.

The safe harbor was created by the Digital Millennium Copyright Act, adopted in 1998.  Since that time, the registration of agents to receive take-down notices has been governed by interim rules.  Services register by sending a paper form and a filing fee to the Copyright Office, and that information is manually entered by the Copyright Office into a list that is available on the Copyright Office website.  From experience, the time from the filing of such a registration to its appearance on the Copyright Office’s website can take several weeks or more.  The Copyright Office, in its Notice, states that it has done some informal checks on the information in its database of registered agents, and found that the list contains duplicate registrations, registrations for companies or sites that are no longer in operation (services are supposed to tell the Office when they stop their operations), and many outdated addresses (services are supposed to update their agents as employees change, but apparently they sometimes forget).  The NPRM proposes to move to an electronic registration system, which will automatically request a verification of the registered information on a regular basis.  In making this proposal, the Copyright Office asks for public comment on a number of issues.

Continue Reading Claiming Safe Harbor Protection for User Generated Content – Copyright Office Proposes Changes to Registration of Agent for Service of Take Down Notices

The dates for comments on the FCC proposed rules for the captioning of Internet Video have been set.  Comments are due on October 18 with replies due on October 28.  An associated Federal Register publication also notes that comments can be filed with the Office of Management and Budget about the compliance of the information collection requirements contained in the proposed rules with the Paperwork Reduction Act. OMB comments can be submitted through November 28.  As we wrote last week, this proceeding is of importance to television stations and cable operators, as the rules will initially apply to video that has already been captioned to meet some other FCC rule, and is later repurposed for the Internet.  It is also important to all operators of websites that distribute such video programming.  A more detailed summary of the proposals in this proceeding is available in our Davis Wright Tremaine advisory on the NPRM.  The full text of the FCC proposals is available here.

This proceeding is on an extremely fast track, as Congress has charged the FCC with adopting rules by January to implement the statutory obligations set out in the Twenty-First Century Communications and Video Accessibility Act of 2010.  Already, groups representing the hearing impaired as well as certain Internet video aggregators have visited the Commission to lobby for their particular positions on the proposals.  Those representing the hearing impaired community have been very active in this proceeding, as well as in connection with the filing of objections to television stations who do not meet their obligations to provide video accessibility through captions or other written information during over-the-air programming providing emergency information (see our note here on an FCC reminder on that subject).  TV stations and other video providers need to be similarly active in explaining to the FCC what can and cannot be done technologically in a cost-effective manner to meet the needs of these citizens.  The just announced comment deadline provides video producers with that opportunity. 

Just a reminder to broadcast stations in certain states of several upcoming October obligations.  First up, October 3rd is the deadline for Radio Stations in Florida, Puerto Rico, and the U.S. Virgin Islands to file their FCC Form 303-S license renewal applications seeking a renewal of their broadcast licenses.  (See our earlier license renewal advisory here.)  Accordingly, radio stations in those state/territories will also need to begin their License Renewal Post-Filing Announcements on October 1st to inform their communities of the renewal filing.  Please note, October presents a strange situation in that the deadline for filing the renewal application is not until October 3rd (because Oct. 1 is a weekend, the filing deadline rolls to Monday the 3rd), but the FCC’s rules dictate that the first post-filing announcement occur on Oct. 1st.  Stations that have already filed by Saturday Oct. 1st won’t have an issue, but for those stations waiting until Monday to file their Form 303-S, they will need to nonetheless air the first post-filing announcement (referring to the Oct. 3rd renewal filing) on Oct. 1st.  Specific language for the announcements can be found on the Commission’s website here, and the post-filing announcements continue on Oct. 16, Nov. 1, Nov. 16, Dec. 1, and Dec. 16.

Second, the next batch of radio license renewals — which will be filing their renewals on December 1st — is Georgia and Alabama, which means that Radio Stations licensed to those states, must begin their License Renewal Pre-Filing Announcements on October 1.  The precise language of the pre-filing announcements—which is again dictated by the FCC’s Rules—can be found here. The pre-filing announcements for these stations continue on Oct. 16, Nov. 1, and Nov. 16. 

Third, by Oct. 1, Radio and Television Station Employment Units (SEUs) in Alaska, American Samoa, Florida, Guam, Hawaii, Iowa, Mariana Islands, Missouri, Oregon, Puerto Rico, the U.S. Virgin Islands and Washington (*whew*) must prepare and place in their public inspection file their Annual EEO Public File Report.  Stations that have websites must also post the Report on their website.  The Annual EEO Public File Report summarizes the station’s or the SEU’s EEO activities during the previous 12 months, and provides information about the recruitment and outreach that the station conducted in the past year.  A copy of our recent reminder advisory with more information can be found here.  In addition, Radio Stations in Florida, Puerto Rico, and the U.S. Virgin Islands will also be filing an FCC Form 396 EEO Report by October 3 in connection with their license renewal filing.

Finally, Oct. 3rd is the deadline for Noncommercial Radio Stations in Alaska, American Samoa, Florida, Guam, Hawaii, Mariana Islands, Oregon, Puerto Rico, Virgin Islands, and Washington, and Noncommercial Television Stations in Iowa and Missouri to prepare and file an FCC Form 323 Biennial Ownership Report with the FCC.  Please note, this filing date applies only to noncommercial radio and TV stations in the states noted above. The FCC has revised its rules regarding the reporting of ownership interests for commercial broadcast stations, as well as revised the commercial Ownership Report—Form 323. Accordingly, commercial stations now file biennial ownership reports on one unified filing date, which will be later this year.  A copy of our recent reminder to noncommercial stations about the Oct. 3 requirement can be found here.

Putting TV or cable programming onto the Internet may soon not be as easy as it once was, as the FCC has just issued its Notice of Proposed Rulemaking on the captioning requirements for online video.  The proposals advanced by the Commission are summarized in our firm’s Advisory on the subject, here.  These rules are proposed pursuant to a Congressional mandate that requires captioning of television programming that has already been captioned pursuant to an FCC rule, when that programming is later shown on the Internet.  This obligation was adopted as part of the 21st Century Communications and Video Accessibility Act ("CVAA") which, among other things, looks to make Internet video programming accessible to the hearing impaired.  Programming that has run on TV stations or cable systems, and is later delivered through the Internet, will apparently be under the captioning obligations, subject to any exceptions adopted by the FCC in this proceeding.  The legislation requires that rules be adopted in January, and that implemention begin 6 months thereafter. Thus, there is a very quick comment period – with comments due 20 days after the NPRM is published in the Federal Register, and replies 10 days later.

The proceeding asks about who should be covered by the rules, and what exemptions to the requirements should be adopted.  For instance, it asks whether the exemptions that apply to TV captioning (including exemptions for small channels with less than $3 million in annual revenue) should be carried over to the Internet.  The report also asks what devices should be covered by the regulations that will be adopted.  Will these rules apply to smartphone and tablets, as well as to standard computer screens?  It also asks a number of technical questions about how the captioning should be implemented, though the FCC does not propose any single captioning standard.  These are all important issues for a requirement that may soon become a reality for traditional video providers looking to put their content online.  Thus, review our advisory and the NPRM itself, and comment by the deadline that will soon be set.  Obviously, where the FCC comes out on these questions may significantly impact the development  of online video, and could set a precedent for a further expansion of the captioning obligations in the future.  Watch this proceeding as it develops in coming months. 

Just a reminder that by October 1, Television stations must once again make their triennial carriage elections.  By that date, TV stations must notify the local cable systems and satellite carriers in their market in writing as to whether the station intends to be carried pursuant to must-carry or a retransmission consent agreement for the next three-year term, which runs from Jan. 1, 2012 through Dec. 31, 2014.  Accordingly, before Oct.1, stations must send a written election notice to the cable systems and satellite providers in their market via certified mail, return receipt requested.  The election letter should indicate the station’s call letters, channel, community of license, DMA assignment, and contact information, in addition to answering the basic question of whether the station would like to elect carriage pursuant to must-carry or else negotiate a retransmission consent agreement.  In addition, those stations electing carriage pursuant to must-carry should also indicate the channel on which they wish to be carried (i.e., the over the air channel, the cable channel on which it has been carried historically, or some other mutually agreeable channel).  And be sure to keep copies of the election letters sent out.  Copies of all the election letters must be maintained in the station’s public inspection files. 

If your station programs to children under the age of 13 or maintains a website or online presence directed to children under age 13, you should be aware of new rules proposed by the Federal Trade Commission (FTC) that will affect both the types of information you are allowed to collect from children and the manner in which it is collected.  The proposed rules, summarized here, would modify the Children’s Online Privacy Protection Rule enacted by the FTC to enforce the Children’s Online Privacy Protection Act (COPPA) enacted by Congress in 2000.

COPPA requires parental consent whenever personal information is collected from children under the age of 13.  The proposed rules, which would be the first changes made by the FTC since COPPA was enacted, are intended to reflect the recent popularity of social networking, smartphones and the availability of geolocation information.

Stations that have websites or apps dedicated to youth sports leagues or other children’s activities could well be subject to these requirements, summarized in our recent Client Advisory available here.  Interested parties may file comments on the new rules by November 28, 2011.

The FCC today announced that it is extending the deadline for participants to comply with the new EAS CAP (Common Alerting Protocol) rules until June 30, 2012.  The deadline had previously been set for just two weeks from now, September 30th; however, in light of the fact that the FCC had yet to finalize all of the new EAS CAP rules, it decided to extend the deadline until next June.  Thus, according to today’s Order, available here, EAS participants will be required to be able to receive CAP-formatted EAS alerts no later than June 30, 2012.  Such an extension had been widely supported by EAS participants and commenters in the current EAS CAP rule making proceeding.  The FCC expects to adopt the CAP-based revisions to its Emergency Alert System rules in a subsequent order, and it expects those new rules to be out sufficiently in advance of the June 30, 2012 deadline in order to allow EAS participants ample time to come into compliance with those new rules. 

In addition, the Commission’s Order urges EAS participants that have purchased or are considering purchasing any type of EAS equipment to verify with the manufacturer or vendor that the equipment fully complies with the FCC rules.  As the FCC has yet to rule on many issues related to the use of intermediary devices — i.e., devices that connect in some fashion with previously certified EAS equipment to allow receipt of CAP-formatted alerts — including whether such intermediary equipment must be certified under the FCC’s rules or whether they fully satisfy the new CAP requirements, it is not clear whether such intermediary devices will ultimately satisfy all elements of the Commission’s new EAS CAP rules.  So until the FCC issues its subsequent Report and Order addressing such issues, buyer beware.  See our earlier postings here for more information about the new EAS CAP rules.