Like "Super Bowl," "Olympics" and "NASCAR," "March Madness" is also a term that is protected by trademark law, and its unauthorized use in commercials could result in legal liability.  But the development of March Madness is a bit more interesting, and you can probably thank Brent Musburger for that.  The Illinois High School Association (IHSA) has been using the term "March Madness" to describe its state high school basketball tournament since the early 1940’s.  Broadcaster Brent Musburger went to journalism school in Chicago, then worked for both a Chicago newspaper and television station, where he almost certainly covered that basketball tournament and was well aware of the term "March Madness."  When he later began covering the NCAA basketball tournament for CBS in 1982, he naturally began referring to that tournament as "March Madness" as well.

As you know, the term caught on.  It ultimately led to a trademark infringement suit in 1996, and that led to a joint venture between IHSA and NCAA, called the March Madness Athletic Association (MMAA) which now holds all trademark rights to the term "March Madness."  In fact, they own 15 federal registrations containing that term, covering everything from the actual tournaments to broadcasting and webcasting the tournaments to mugs, T-shirts, towels, and even carbonated soft drinks.

Continue Reading Is it Madness to Say “March Madness” On the Air? – The Trademark Issue

Among the many items adopted by the Commission at last week’s open meeting was a Notice of Proposed Rule Making (NPRM) regarding retransmission consent agreements and the carriage of broadcast television stations by cable and satellite providers.  Retransmission consent has been a hot topic of late both in Washington and in the national press.  During the past year, a few carriage negotiations between broadcast television stations and cable or satellite operators have resulted in interruptions – or threats of interruptions – in the carriage of local stations.  As a result, both Congress and the public have paid increasing attention to retransmission consent negotiations, and the Commission’s NPRM is a effort to review some aspects of its rules governing the relationship between local broadcast stations and the cable and satellite providers that retransmit their signals.  A copy of the NPRM is available here. 

The NPRM is the outgrowth of a petition for rule making filed in March 2010 by cable and satellite providers, along with several public interest groups.  These groups jointly petitioned the FCC seeking significant changes to the current retransmission consent process.  Perhaps the most notably aspect of last week’s NPRM is not the changes the FCC proposes, but rather the changes it refrains from pursuing.  The Commission states in the NPRM that it does not believe that it has the authority to adopt either interim carriage mechanisms – to require the continued carriage of a station without a station owner’s consent while negotiations continue – or mandatory binding dispute resolution procedures for retransmission consent negotiations, both of which were proposed by the cable and satellite providers in their petition for rule making.  In both cases, the Commission found that it lacked the statutory authority to pursue the rule changes proposed by the petitioners. 

While it proposes to refrain from action on those two elements of the petition for rule making, the Commission does propose to review several aspects of its rules in an effort to, in its words, "protect the public from, and decrease the frequency of, retransmission consent negotiation impasses within our existing statutory authority."   To that end, the NPRM seeks input on strengthening the good faith negotiation rules, including whether it would be  per se violation of the good faith negotiation rules for a station to give a network with which it is affiliated the right to negotiate for carriage, or for a station to grant another station or station group the right to negotiate for carriage, such as when a station is party to a local marketing agreement (LMA) or joint sales agreement (JSA).  In addition, the NPRM proposes changes to the notice requirements of its carriage rules to require advance notice to consumers if there is the possibility that a station will be dropped from a providers’ programming line up.  This advance notice would allow consumers to make alternative plans if negotiations ultimately fail and a station’s signal is deleted from the lineup.

Continue Reading FCC to Take a Fresh Look at Retransmission Consent Rules Governing Carriage of Broadcast Television Stations

Yesterday, the FCC initiated a rule making proceeding to reinstate its prior video description rules with certain modifications, as required by the Twenty-First Century Communications and Video Accessibility Act of 2010 (Act). The proposed rules would require large market broadcast affiliates of the top four national networks and most cable operators and DBS providers to provide programming with audio narrated descriptions of a television program’s key visual elements beginning as soon as first quarter 2012.  Davis Wright Tremaine previously summarized the Act in our earlier advisory available here.

The Notice of Proposed Rule Making (NPRM) takes the first step toward restoring the video description regulations that the FCC previously adopted in 2000, but which were subsequently vacated by the U.S.  Court of Appeals for the D.C. Circuit. Now with explicit Congressional authorization, the FCC seeks to restore the video description rules by Oct. 8, 2011, as required by the Act. The FCC proposes a quick implementation, with the video description and pass-through rules beginning Jan. 1, 2012. The most significant elements of the reinstated video description rules are: 

  • Broadcast affiliates of the top four national networks—ABC, CBS, Fox, and NBC—located in the top 25 television markets must provide 50 hours per calendar quarter of prime time and/or children’s programming with video descriptions.
  • The top five national nonbroadcast networks must provide 50 hours per calendar quarter of prime time and/or children’s programming with video descriptions. The proposed rule would be applied to multichannel video programming distributors (MVPDs), including cable operators and DBS providers with 50,000 or more subscribers, and presumably then be applied to the top five networks through affiliation agreements.
  • “Live” and “near live” programming is exempt from the rules.
  • In order to count toward the requirement, the programming must not have been aired previously with video descriptions, on that particular broadcast station or MVPD channel, more than once.
  • All broadcast stations, regardless of market size or affiliation, and all MVPDs, regardless of the number of subscribers they serve, must “pass through” video description when such descriptions are provided and when the station or program distributor has the technical capability to do so.

In addition to proposing to reinstate the rules previously adopted by the FCC, the item asks many practical implementation questions about refreshing market rankings, applicability of the rules to low power television, and what constitutes the “technical capability” to pass through video descriptions. In particular, the FCC seeks to refresh the list of the top 25 DMAs, as well as update the top five national nonbroadcast networks subject to the rule. In determining the top five nonbroadcast networks, the FCC proposes to exclude from the top five any nonbroadcast network that does not provide, on average, at least 50 hours per quarter of prime time non-exempt programming, i.e., programming that is not live or near-live. The NPRM specifically seeks comment from any network that believes it should be excluded from the top five covered networks because it does not offer enough pre-recorded prime time or children’s programming.

Continue Reading FCC Initiates Rule Making to Reinstate Video Description Regulations for Television Programming

As our colleague Brian Hurh wrote recently on our sister blog, the www.broadbandlawadvisor.com, a federal district court last week granted a preliminary injunction prohibiting the mere retransmission of broadcast television programs over the Internet, without more.  The order is not only important for its confirmation of a 2008 Copyright Office decision rejecting Internet retransmission of video programming under Section 111 of the Copyright Act, it also reaffirms the “quid pro quo” of compulsory licensing – that one cannot merely retransmit programs over the Internet (or any other medium, for that matter) without acquiescing to federal regulation.  See WPIX, Inc. et al v. ivi, Inc., Case No. 1:10-cv-07415-NRB (S.D.N.Y., Feb. 22, 2011).

The order stems from a preliminary injunction sought by national broadcasting networks and local stations, Major League Baseball and several motion picture studios against a single defendant, ivi, Inc.  ivi’s business consisted of capturing over-the-air broadcast programming in several major markets and retransmitting it over the Internet to ivi subscribers across the country.  

The central issue was whether ivi could lawfully retransmit such programming over the Internet pursuant to a “compulsory license” under Section 111 of the of the Copyright Act (17 U.S.C. § 111).  In a brief but informative history of Section 111, the Court explained that the compulsory license was created to allow the then-nascent cable industry to retransmit over-the-air programming to subscribers in exchange for a statutory license fee paid to the Copyright Office.  That bargain, however, also required cable operators to willingly submit to the FCC’s jurisdiction.  According to the record, ivi refused to adhere to this bargain, instead arguing that its Internet video service was outside the purview of the FCC because it was transmitted over the Internet.  The Court flatly rejected this argument, holding that ivi not only was not a cable system eligible for a license, it could not both benefit from a compulsory license while at the same time avoid obligations under federal law.

In essence, the Court’s decision reinforces the notion that there is, and has always been, a balance between the development of new video technologies and respecting the copyrights of content owners.  Cable operators accomplished this through the Section 111 compulsory license; the Internet has yet to discover a balance of its own. 

As the next broadcast license renewal cycle is about to begin in June (see our post here about that process), the last renewal cycle still has not ended despite the fact that the last renewal application due in that cycle was to have been submitted almost 5 years ago. At the NAB State Leadership Conference held in Washington, DC yesterday, FCC Commissioner Robert McDowell provided statistics about the hundreds of renewals still pending – principally due to indecency complaints against the stations. The FCC will not grant a license renewal application when there is an indecency complaint pending, as the grant of the renewal could preclude the FCC from taking action against the licensee on the complaints filed before the renewal grant. But with indecency enforcement in a holding pattern pending the final resolution of the pending court cases challenging the FCC’s renewal policy (with no immediate end in sight to the uncertainty that surrounds that policy), these renewals are still in limbo. The Commissioner did, however, provide some good news on the indecency front, noting that the Enforcement Bureau had started weeding through all of the pending complaints, dismissing those that were clearly without merit.

The dismissal of indecency complaints that were without merit is a seemingly small, but nevertheless significant, step in weeding out the backlog of renewal applications. The Enforcement Bureau has traditionally not looked deeply into the merits of each of the pending indecency complaints while the Court challenges to the policy were pending, presumably to avoid a waste of resources were the standards to change based on the Court review. But that avoided weeding out some clearly meritless complaints – ones that complained of content that was broadcast during the 10 PM to 6 AM indecency safe harbor, or complaints that were focused on issues that were not prohibited under the FCC’s policy and precedent – such as complaints that really centered on violence, or ones that dealt with innuendo rather than the use of prohibited words or the depiction of prohibited body parts. Up until now, except when there was a sale of a station pending, there was no pressing reason for the FCC to dispose of the complaints. Stations continued to operate, and the pending complaints had little day to day impact.  But, with the renewal cycle soon to begin again, the resolution of these issues takes on some urgency.

Continue Reading As License Renewal Cycle Approaches – Dealing With Last Cycle’s Applications Held Up By Indecency Complaints

At the FCC meeting next week, the Commission will be considering an item dealing with radio stations that serve rural areas, and the ability of licensees to make technical modifications to those stations that would change the communities which they serve.  While, as we wrote last week, most of the attention of broadcasters has centered on the television issues to be considered at the meeting as the Commission is to begin an inquiry on the retransmission consent process.  The rural radio issue poses real concerns for radio operators – especially those contemplating a move of a radio station from a community outside of a metropolitan area to one in a metro.  In the name of protecting service to rural areas, the Commission may well restrict minority groups, specialty programmers, and other new entrants from bringing new services to metropolitan areas – permanently entrenching those companies who currently have major market stations as the only competition in those markets.  A proposal to protect service to rural areas may well have the impact of decreasing diversity in large markets.

In virtually every large market, there is little or no potential to add new channels for FM service both because of interference protections that need to be accorded to stations in the market and because of protections to stations outside of the market but close enough to be short-spaced to any potential station in the metro area.  In some cases, creative engineering has found ways for some of these non-metro stations to be moved into the metropolitan area, or at least close enough to provide some service to those markets.  "Move-in stations" have allowed new entrants, some with specialized programming, to provide service to large cities – when such entrants could never afford the price of an existing in-market station, even if one was for sale.  Even "rim shots", those move-ins that don’t provide full coverage of a metro area, may be very worthwhile for groups with unique formats (religion, Spanish language, and other targeted programming) trying to reach a small audience that is not otherwise going to get service in such markets.   

Continue Reading Restrictions on Moving Radio Stations From Rural to Urban Areas May Be Coming – What’s The Potential Impact?

Public performances, synch and master use licensing, sound recordings, musical compositions – what are all these terms, and how does a digital media company make sense of them and figure out where to go get permission to use music in their business?  These issues were discussed in a webinar that I did with my partner Rob Driscoll from our firm’s New York office for the Texas Association of Broadcasters.  The slides for that presentation are available here.  A revised and updated version of our memo on the Basics of Music Licensing in the Digital Media, giving more information on many of the subjects discussed in the presentation, has also just been published, and is available here. 

During the presentation, we talked about the broadcaster’s royalty deal with SoundExchange for Internet radio streaming.  Details of that settlement are here.  The performance complement waivers that are associated with that agreement are detailed here.  In the presentation, we also mentioned that stations with websites featuring user-generated content may avail themselves of a safe harbor from liability if they take certain precautions.  Website operators must register with the Copyright Office the name and contact information of a person with responsibility to receive notices from copyright holders that users have posted infringing content, and to take down any content that is in fact infringing.  The Copyright Office instructions for registration can be found here.   These materials may not answer every question, but they may start you asking the right questions as you use music in connection with your digital properties.

Just two weeks after rejecting a claim that the FCC’s rule against the broadcast of a telephone conversation without permission was unconstitutional, the Commission’s Enforcement Bureau made clear that it would not hesitate to enforce that rule – and enforce it vigorously.  In a recent decision, the Commission proposed a $25,000 fine to a broadcaster who ran two different telephone conversations on the air without the prior permission of the people at the other end of the phone line.  The broadcasts were carried on three different stations, and the licensee involved in the case (Spanish Broadcasting Systems) had been fined before for violations of this rule (Section 73.1206 of the FCC’s rules), so the FCC felt that it needed to issue a fine that would make an impact – thus the significant fine that is far in excess of the fines normally seen in these kinds of cases.

Here, the violation was one of those traditional stunts with which broadcasters so often have had trouble in the past – prank calls to unsuspecting people, where the station employee pretends to be someone else until he springs the joke on the person being called – sort of a Candid Camera for radio.  While the calls were apparently made at the suggestion of some friend or acquaintance of the person being called (with personal information about the person being called so that the call was geared to the person’s real life to have maximum surprise and impact) – the fact was that the person being called had no idea that the call was being broadcast until after the prank had been played.  While it may have made for entertaining radio in some people’s eyes, it was a significant issue for the FCC resulting in this large fine.  Broadcasters obviously need to be cognizant of the prohibition on broadcasts of this type, and avoid situations where the rule could apply, as the serious fine proposed here demonstrates that the FCC does not get the joke – and is prepared to make the broadcaster pay.  Brief your on-air personnel.  Violations of the rule can be very serious. 

Last week the FCC rejected a request by a low power television broadcaster seeking an experimental license to test a technology that would allow broadcast television stations to provide broadband access.  The brief decision, available here, was issued by the FCC’s Media Bureau and rejected the request primarily on the grounds that the technology the LPTV broadcaster sought to test is inconsistent with the existing ATSC standard for transmission of digital television signals in the U.S.  This decision brought about a rebuke by a Wall Street Journal columnist, suggesting that the FCC was not fully exploring one way to rapidly deploy broadband through existing TV licensees, in fears of foregoing the revenues that would come from an auction of reclaimed television spectrum.   This issue arises while the FCC considers the digital conversion of LPTV, and the future of the television spectrum generally.

As has been well known and discussed for at least the last decade, the ATSC standard chosen for digital television broadcast service in the United States is not ideal for mobile service and is not well suited for two-way broadband service.  The current ATSC standard was designed to provide a signal to fixed locations for traditional in-home television watching.   As we have written before, in 2000, in the early days of the digital television conversion, some broadcasters suggested that the system be changed to accommodate a more robust signal allowing better mobile reception and other services that maximize the capacity of the digital channel. That proposal was rejected for fears of slowing the digital conversion, but is seemingly being revisited now. 

Continue Reading FCC Rejects Request by Low Power Television Broadcaster to Test Technology to Enable Broadband Service Over Broadcast Spectrum

FCC tower lighting and marking violations are among those treated most seriously by the FCC, given their potential for tragedy should there be an incident with an aircraft due to improper tower maintenance.  Today, in two Notices of Apparent liability, the FCC proposed fines against tower owners for such violations.  In one case, where the lights were apparently not functioning and the FAA had not been notified of the outage as required, the proposed fine is $10,000.  In that case, the FCC cited the owner for failing to observe the lighting and painting requirements, and not observing the tower to determine if the lights were operational, and not having an automatic monitoring system to check on those lights (see our post here about how the FCC allows such systems to, in many cases, substitute for routine visual monitoring).  In a second case, where the issue was only with the painting of the tower, the fine was $4000.  In either case, these fines are significant, and serve as a reminder to tower owners to observe the mandatory tower painting and lighting requirements attached to their communications tower.  Remember, FCC fines pale in comparison to potential liability if the failure to observe the marking requirements lead to some more serious incident.