The battle over the reclamation of television spectrum for wireless broadband rages on, and some in the television industry fear that the future of over-the-air television may be sacrificed to Congressional attempts to reduce the Federal deficit. The current Congressional “Super Committee” that is attempting to find billions of dollars in spending reductions to lower the Federal deficit is reportedly considering “finding” potentially 20 billion dollars or more from the proceeds of an auction of spectrum reclaimed from television broadcasters. Various Congressional proposals have been submitted for the committee’s consideration, essentially to authorize the FCC to conduct “incentive auctions” to reclaim some TV spectrum. But, the National Association of Broadcasters and others have claimed that broadcast television service to a number of markets, particularly those in areas near the Canadian border and in urban, densely populated northeast corridor between Boston and Washington, will be particularly hard hit – imperiling the continued existence of free over-the-air service to some markets, including Detroit. In other markets, broadcasters fear there will be a lessening of the protections from interference that stations currently enjoy, or a repacking of the spectrum that will put stations on new and potentially inferior channels, without reimbursement of the costs of relocation.

The proposal for the reclamation of television spectrum was first advanced in the Commission’s Broadband Report, where the FCC committee that drafted the report suggested that as much as 120 MHz of television spectrum  be reclaimed for use for wireless broadband – 20 television channels from 32 to 51 on the TV dial.  With tablets and smartphone usage growing quickly, and the ever-increasing demands for wireless spectrum to deliver video, audio and other rich internet content, the Commission fears a spectrum shortage – especially in certain urban markets. As over-the-air viewing rates have been falling over the last two decades as more people sign up with multichannel carriers, the Report suggested that the TV band could be shrunk, with some of the spectrum being redistributed to wireless. TV stations could be incentivized to surrender their spectrum for wireless use or to share channels, an option that the proponents of reclamation claim is very feasible, as digital technologies now allow one television channel to rebroadcast multiple streams of programming.

Television broadcasters have fought back, claiming that, while the digital transition does allow for more channels in the same spectrum, they are just now rolling out new uses of that spectrum – including new programming streams and, soon, mobile video targeted to smartphones and other digital devices. An article in one newspaper  last week reviews some of the new ways for over-the-air TV viewers to get access to additional video programming to augment over-the-air programs, allowing some consumers to “cut the cord” – eliminating their multichannel video subscriptions. Some studies have suggested that such cord-cutting opportunities, combined with the recent economic turmoil, has actually increased the amount of over-the-air television viewing in the last few years, reversing or slowing the trend of decreasing broadcast TV viewership.

Continue Reading Reclaiming Over-the-Air TV Spectrum for Wireless Broadband Use – What Will the Budget Super Committee Decide?

The tenuous legal status of marijuana advertising on broadcast stations just got a little more tenuous as a Federal prosecutor in Southern California has reportedly indicated an intent to prosecute radio and TV stations, as well as newspapers and magazines, that advertise medical marijuana clinics.  As we have written before, advertising such clinics was always a legal grey area, as marijuana use and possession is still a Federal felony, even though many states have passed laws to decriminalize the use of medical marijuana.  While the Federal Department of Justice had indicated that marijuana prosecutions were a low priority for prosecution, as the number of medical marijuana clinics have mushroomed in many states, and the controls exercised over them by state authorities have been lax, some Federal prosecutors have seemingly taken action on their own (as we warned was possible in a prior article on medical marijuana advertising).  The prosecutor in Southern California has indicated an interest in going after property owners who lease space to clinics, and now seemingly has expanded her interest into going after media outlets who advertise for such clinics. 

Whether or not these prosecutions will be successful on their own may be subject to debate, but broadcasters, as Federal licensees, need to be particularly careful in their actions.  There is rumored to be at least one complaint pending at the FCC against a broadcaster who ran medical marijuana ads.  As an agency of the Federal government, whose Justice Department has said that pot is not a legal drug, the FCC would be hard-pressed to say that it is alright for a station to advertise for a marijuana clinic.  With license renewals now pending or about to be filed by all broadcast stations, the opportunities for more objections, and sanctions based on any such complaint, are many.  So, once again, we caution restraint when a broadcast station is offered the opportunity to make a few dollars from a clinics ads.  The dollars you make may be far overshadowed by the dollars you spend defending a legal action – whether it be before the FCC or before a Federal court.  So think twice!

Broadcast stations must charge political candidates the lowest unit rate that they charge any commercial advertiser for a comparable advertising spot during the 45 days before a primary and the 60 days before a general election.  Broadcasters need to remember that this applies to state and local races, as well as Federal campaigns, so those charges must be given to candidates for upcoming off-year November elections that are to be held in many states in less than a month.  As we’ve written before, while reasonable access does not apply to spots for state and local candidates, once a station decides to give these candidates access to the airwaves by selling time, most of the other political rules (lowest unit rates, equal opportunities, no censorship) apply.

With the Iowa caucus likely to take place on January 3, lowest unit rates will need to be afforded to presidential candidates by stations serving Iowa in mid-November, with stations serving New Hampshire, South Carolina, Nevada and Florida moving into a lowest unit charge window soon thereafter.  The FCC has held that candidates are entitled to lowest unit rates for caucuses as if they are primary elections.  And the rules apply to stations in neighboring states that have service into the states with early primaries and caucuses.  So many states are currently in lowest unit rate windows for local races, and others soon will be for the Presidential race.

Look for more information about the FCC’s rules in our Political Broadcasting Guide.  I’ll also be conducting a webinar summarizing the political broadcasting rules, featuring Bobby Baker, head of the FCC’s political broadcasting office, on Wednesday – sponsored by the Michigan Association of Broadcasters in cooperation with the broadcast associations of at least 10 other states.  Get ready for the political broadcasting season by viewing our webinar or one of the other refresher courses sponsored by other associations in the coming months. 

Online public files, detailed reports about virtually every program aired on a television station as to its source and whether it addressed various types of perceived community interests, and other paperwork requirements that would have required most television stations to hire a new employee just to deal with the burden, were all part of mandatory television public interest reporting requirements adopted by the FCC back in 2007 (see our articles here and here on these reports on FCC Form 355).  Similar obligations were also proposed for radio but never adopted.  The TV "enhanced disclosure" rules have never been implemented, however, and were apparently never even submitted to the Office of Management and Budget  for approval of their compliance with the Paperwork Reduction Act.  The numerous petitions for reconsideration filed against these rules are on the tentative agenda for the next FCC meeting, to be held on October 27.  Not only is the disposition of these petitions on the agenda, but a proposal for a further proceeding to look at new requirements for an online public file, to be hosted by the FCC, is to be considered at the same time.  What can broadcasters expect to happen?

In the Future of Media Report issued by the Commission earlier this year (actually renamed the Report on the Information Needs of Communities), the FCC study group recommended abolishing these 2007 rules, and terminating the proceeding looking at imposing them on radio (see our summary here).  The Report seemed to recognize that the reports were far too burdensome on licensees, and were not reasonably related to the current FCC rules on programming.  In essence, the reports required the collection of lots of information, without any regulatory purpose for the information collected.  In light of these findings, and the 4 year delay in implementing the rules already adopted, it seems safe to conclude that the 2007 rules are probably on their way out.  But the accompanying notice suggesting that the FCC will begin a new rulemaking to look at the online public inspection files, to be hosted by the FCC, raises questions about what will replace the 2007 rules.

Continue Reading TV Public Interest Obligations and Online Public Inspection File on Agenda for Next FCC Meeting

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.