As we have advised before in both 2009 and 2010, "Super Bowl" is a registered trademark belonging to the NFL, and they will aggressively enforce their trademark rights against any station that attempts to use this term in connection with advertising or promotional matter of any kind, including ticket giveaways, if not specifically authorized by the NFL. You are free to use trademark protected terms like "Super Bowl" in news stories or noncommercial discussions about the event under a concept known as "nominative fair use," but use of trademarked terms in a commercial context crosses the line from acceptable to unacceptable use.

Although the NFL is more aggressive than many other trademark owners in enforcing its rights, these same principles apply to other registered trademarks, including "March Madness," "NASCAR" and even TV shows such as "American Idol."  Discussions among DJs or with listeners and viewers are fine, but you cannot use these terms to sell products or do station promotions without authorization from the trademark owners.

Refer to our previous posts linked to above for more guidelines on what stations can and cannot do with regard to the Super Bowl and other registered marks.

Every year, about this time, I dust off the crystal ball to offer a look at the year ahead to see what Washington has in store for broadcasters.  This year, like many in the recent past, Washington will consider issues that could fundamentally affect the broadcast industry – for both radio and TV, and affecting the growing on-line presence of broadcasters.  The FCC, Congress, and other government agencies are never afraid to provide their views on what the industry should be doing but, unlike other members of the audience, they can force broadcasters to pay attention to their views by way of new laws and regulations. And there is never a shortage of ideas from Washington as to how broadcasters should act.  Some of the issues discussed below are perennials, coming back over and over again on my yearly list (often without resolution), while others are unique to this coming year.  Issues unique to radio and TV, and those that could affect the broadcast industry generally, are addressed below.

Television Issues

Spectrum issues have been the dominant TV concerns in past years, first with the digital transition, and more recently with the "white spaces" rulemaking and the proposals advanced as part of the FCC’s Broadband Plan to reclaim part of the TV spectrum for wireless broadband uses.  These issues remain on the FCC’s agenda, as do new issues dealing with the carriage of television stations by cable and satellite television providers.  Specific issues for TV include:

Spectrum reclamation:  The initial proposals for the reclamation of part of the TV spectrum for wireless broadband were laid by the FCC’s Notice of Proposed Rulemaking released in November, looking at how the TV spectrum could be used more efficiently, and how incentive auctions encouraging some TV stations to vacate their channels could be conducted.  Congress still has to pass legislation to allow such auctions, and it will probably also mandate a spectrum inventory to determine if the reclamation of the TV spectrum is really necessary to provide for wireless broadband needs.  At the same time, some TV operators have begun to talk about television stations themselves providing broadband service with their excess spectrum.  While Congress will probably act on the auction bills this year, and there will be much debate about the details of the reallocation issue, so don’t expect final resolution of this matter in 2011.

White Spaces:  The FCC has authorized the operation of wireless devices in the television spectrum, resolving many of the concerns about interference to television operators by requiring all wireless users to protect operating TV channels in specific areas based on databases of existing users, not on spectrum sensing techniques.  But implementation issues still need to be worked out – including finding parties to compile and administer the databases to make sure that all existing spectrum users who are to be protected are registered.  Expect action on these matters this year, but no actual white spaces use until after these implementation efforts are completed.

LPTV Digital Transition:  While many members of the general public may consider the digital television transition to be complete, many Low Power TV stations and TV translators are still operating in analog.  The FCC has commenced a proceeding to require the transition of these stations to digital, suggesting that the transition be complete as early as the end of 2012.  Expect controversy on this issue.  Many LPTV stations feel that being forced incur the costs to covert to digital is premature and could imperil broadcast service, especially to rural areas and minority populations who rely on translators and LPTV stations, if spectrum repacking caused by any future repurposing of TV spectrum for broadband forces further technical changes.  These issues will be considered by the Commission this year.

Retransmission Consent Reform:  At the end of 2010, there was much controversy over retransmission consent issues, as there were instances where broadcasters and cable operators and other multichannel video programming distributors had difficult negotiations over the carriage fees to be paid to the TV stations.  FCC sources stated at the end of the year that a proceeding will be initiated to determine if the rules governing the negotiation process should be changed.  The multichannel video programming distributors and some public interest groups argue that the FCC should protect viewers who may have their TV service disappear if a TV station does not reach a deal with a MVPD, while the broadcasters argue that the ability to remove the station is the heart of the negotiation, and removing the risk of the MVPD losing the right to carry the station would negate the negotiation.  Look for this proceeding to commence early in the year but, as it will no doubt be very controversial, it may take some time to resolve.

DMA Boundary Issues:  The FCC has also begun a proceeding to look at DMA boundaries that cross state lines to see if every television viewer should be guaranteed to receive service from cable or satellite providers of a station in his or her state.  Television stations fear that this guarantee could upset traditional television markets, and could have an impact on retransmission consent negotiations in border counties.  Comments in this proceeding are due on January 24th, 2011.

Continue Reading Gazing Into the Crystal Ball – What Washington Has In Store For Broadcasters in 2011

The Second Circuit Court of Appeals today issued a Summary Order vacating the $27,500 FCC fines imposed on a number of ABC television network stations in the Central and Mountain time zones which had aired, prior to the 10 PM safe harbor, an episode of the television program NYPD Blue on which a woman’s bare buttocks were shown on screen.  We had initially written about this case when the fine was issued in 2008, here.  While this case was on appeal, the Supreme Court issued its decision on the FCC’s indecency rules in Federal Communications Commission v. Fox Television Stations, Inc, dealing with "fleeting expletives", upholding the more rigorous enforcement of the FCC’s indecency rules begun under FCC Chairman Kevin Martin as being justified under administrative law procedures, but not addressing the constitutional issue as to whether the FCC’s indecency policy could be constitutionally justified.  The Supreme Court remanded that case to the Second Circuit, which had initially thrown out the fines as being inconsistent with prior FCC precedent, for consideration of the constitutional issue.  In a decision released this past July following the remand, the Second Circuit determined that the FCC rules were unconstitutional, as they chilled the speech of broadcasters without giving broadcasters sufficient guidance as to what speech was permitted and what speech was prohibited.  Restrictions on speech which are "impermissibly vague" are constitutionally prohibited.  In today’s decision, the Court relied on its decision from July and determined that, whether the indecency claim is based on speech or nudity, the FCC rules as to what is prohibited are impermissibly vague, and therefore the Court threw out the fines.

We have likely not heard the end of the indecency story yet.  These decisions may yet end up back in the Supreme Court for consideration of the constitutional issues.  So stay tuned as these issues are sorted out. 

It’s the beginning of a new year, and each year brings numerous regulatory deadlines for radio and television broadcasters.  We’ve put together a calendar that sets out many of those dates.  You can find the calendar setting out important dates for broadcasters in 2011 here.  It sets out many important dates – including the dates for regulatory obligations including: EEO Public File Reports, Quarterly Programs Issues Lists, Children’s Television Reports, Ownership Reports (yes, a Biennial Ownership Report will again be due from all stations this year), and even dates for SoundExchange payments and reports of use for stations streaming their signals on the Internet.  This year, the normal filing deadlines are supplemented by deadlines in connection with the first sets of radio license renewals due for stations in many Mid-Atlantic and Southern states.  So check out your obligations by referring to our Broadcaster’s Calendar for 2011, and be prepared to meet your regulatory obligations. 

The FCC has issued Notices of Apparent Liability against two radio licensees for apparent EEO violations at their respective station clusters. These NALs, issued on the next to last day of the FCC’s business year, are the first to address EEO violations in a year and a half. The common thread in both NALs was the licensee’s failure to properly recruit for new hires, relying primarily on "walk-ins" or referrals in lieu of the "wide dissemination" required for information about job openings.  In one case, where the licensee failed to widely disseminate information about 28 job openings, the FCC proposed a fine of $20,000.  In the other case, where the station owner was able to document recruitment efforts for some of its openings, the FCC proposed a fine of $8000 for the six jobs where the required recruitment efforts were found lacking. 

In the first NAL, the $20,000 proposed forfeiture was based on a finding that the licensee failed to properly recruit for 28 of the 29 full-time vacancies filled over a six year period.  Instead, the licensee relied on "walk-ins" and referrals for six vacancies, and used the Internet or on-air ads for 22 vacancies.  These methods alone do not constitute sufficient dissemination of job vacancies under FCC rules.  In a post last year, we explained that the FCC does not consider Internet advertising alone to be sufficient for recruitment purposes, and questioned whether that policy is appropriate in this day and age.

Continue Reading FCC Imposes Fines Up to $20,000 for EEO Violations

The Local Community Radio Act has been pending in Congress, ready to be approved for many months, but held up by the Senate.  This weekend, as the Congressional term was drawing to a close, both the House and the Senate approved a bill modifying the interference standards for Low Power FM radio stations, opening the possibility that more channels will be available for LPFM use when the next window for filing new LPFM applications opens. However, this bill is substantially modified from the LPFM bill that was just passed by the House of Representatives earlier this year (see our summary of the House version of the bill). The NAB has been working with the LPFM advocates to adopt a bill with substantially more protections for full-power stations, while still allowing LPFMs to locate on channels third adjacent to full power stations. The bill passed by Congress and soon to be signed by the President makes substantial changes to the original House version, and seemingly provides many such protections. Specifically, the final legislation is different from the old bill in many ways including:

  • It does away with all the introductory language in the original House bill that contained many Congressional findings about the value of LPFM stations, language that could have been used to justify FCC actions in the future that would be unfavorable to the interests of full-power stations. 
  • It specifically forbids the FCC from amending the distance requirements between LPFM and full-power stations for first and second adjacent channel operations.  It does allow for waivers of these separations, but requires LPFMs to cease operations if complaints of interference to a full-power station are received.
  • It makes clear that LPFM stations are secondary to full power stations, both as they currently exist and as they may be modified in the future. 
  • The law specifically requires that the FCC treat LPFM and FM translators and FM boosters as being equal in status, and secondary to full-power stations (both existing and modified full-power stations) – thus seemingly ending some of the LPFM proposals that would allow LPFM stations to preempt existing FM translators.
  • For LPFMs that are located at less than the full distance from a full-power station set out by the LPFM rules, even on a third adjacent channel, the LPFM must provide the same protections that translators give to other stations under Section 74.1203, which includes the requirement that a new secondary station (like a translator or LPFM) cease operations if it interferes with the reception of any regularly used FM signal (even if the signal is outside of the existing station’s primary service contour)
  • The bill adds a provision to protect stations in certain densely populated states (principally if not exclusively New Jersey) by imposing the translator interference rules on LPFM stations (seemingly the same provision as provided for stations in other states when the LPFM is operated at less than the current spacings. 

This bill does contain some provisions that are not entirely clear, and in some cases, provisions that seem a bit contradictory. These issues will no doubt be sorted out by the FCC, and potentially by Congress itself, in the future. 

Continue Reading Bill Changing LPFM Spacings But Protecting FM Stations Passes Congress – After NAB Assures More Protections to Broadcasters

The Copyright Royalty Board today released its Determination of Rates for noninteractive webcasting services for the period from 2011-2015. These rates will form the default rates for webcasters who have not opted into one of the many voluntary agreements negotiated last year under the Webcaster Settlement Act (see our summaries of the Pureplay webcaster deal here, the Broadcasters settlement here, the Small Webcasters or "microcaster" settlement here, the noncommercial webcasters settlements here, the Sirius XM settlement here, and the CPB/NPR settlement here).  The Board set the following per performance royalty rates as the default rates for webcasters who are not terrestrial broadcasters:

  • 2011 – $.0019 per performance
  • 2012 – $.0021 per performance
  • 2013 – $.0021 per performance
  • 2014 – $.0023 per performance
  • 2015 – $.0023 per performance

Thus, the rates for this coming year will remain at the same level at which they are now set for 2010, and will increase slightly every other  year.  A performance is one song played to one listener. 

The decision also adopted default rates for noncommercial webcasters, setting those rates at the levels agreed to in a settlement between SoundExchange and certain noncommercial educational webcasters reached last year. Those rates establish a minimum fee of $500 for each individual channel offered by a noncommercial webcaster. If the listening on any channel exceeds 159,140 Aggregate Tuning Hours in any month, the webcaster would pay for such overage on a per performance basis at the following rates:

  • 2011 – $.0017 per performance 
  • 2012 – $.0020 per performance
  • 2013 – $.0022 per performance
  • 2014 – $.0023 per performance
  • 2015 – $.0025 per performance

Continue Reading Copyright Royalty Board Reaches Determination on Royalty Rates for Webcasting for 2011-2015 – For Internet Radio Operators Not Covered by Webcaster Settlement Act Agreements

In recent years, the FCC has been to aggressively enforcing a policy requiring broadcasters to announce all material rules of a contest on the air enough times for a reasonable listener to hear the announcements.  This past week, there was yet another case where this policy was enforced, resulting in a $4000 fine to a broadcaster.  While the FCC continues to enforce this policy, at least one broadcaster has reportedly decided that a fine for not having broadcast of the material rules of a contest is not justified, and is apparently ready to take the FCC on in Court in a case where the FCC tries to enforce a fine issued several years ago.

The newest fine involved a station in Cleveland, which ran a contest called "Who Said That" where a clip of the voice of a sports figure was played on the air.  The first person to be able to identify the speaker won a prize.  Apparently, if no prize was awarded, a new prize was added each week until the voice was identified, when the winner would get all of the accumulated prizes.  In this case, the station ran an announcement about the rules regularly until the station aired a clip that was not identified for some time.   As the clip remained unidentified over the course of many weeks, and then many months, the station apparently became less rigorous about announcing the rules.  But, more importantly to the FCC, the station did not announce on the air all of the prizes that had accumulated, nor did it announce that some of the prizes had become unavailable and had been replaced over time by prizes of what the station considered to be of an equivalent value.  As the station had not announced the "extent, nature and value of the prizes," the FCC found the station to be in violation – even though the right to substitute prizes of equal value was contained in the written rules published by the station.

Continue Reading FCC Fines Another Broadcaster For Not Announcing All Rules of a Contest – While One Broadcaster Protests

In three cases released in the last week, the FCC grappled with the issue of when the amount of a fine (or a "forfeiture" as the FCC refers to it) imposed on a broadcaster for a violation of an FCC rule is too much to be sustained.  Clearly, the FCC wants a fine for a violation of its rules to be meaningful, so as to discourage bad behavior.  But in some cases, the fine could be so great as to impact the public service provided by a station – or to even put it out of business.  Thus, the FCC has adopted a test where it will look at the gross revenues of the licensee of the station to see if the licensee can pay the fine.  And these cases make clear that it is the entire gross revenue of the licensee – not just the revenue of radio operations that is considered in this analysis.  And, even for noncommercial or nonprofit broadcasters, these same tests apply.

One case very clearly demonstrates that the FCC is looking at a licensee’s full revenue – not just that revenue available to the broadcast station.  This case involved a school district  that submitted financial information about its noncommercial radio operations in an attempt to reduce a $7000 fine for a late-filed license renewal.  The FCC rejected that ground for reduction (though it did reduce the fine to $5600 based on the applicant’s prior history of compliance), saying that the entire funding of a licensee must be reviewed before a hardship reduction would be granted.  As no information about the district’s revenues was provided, no hardship reduction was in order.  In another case, the FCC looked at the revenues of the licensee (a church).  As these revenues were between $391,000 and $520,000 during a three year period, the FCC determined that a $7000 fine, approximately 1.5% of the licensee’s gross revenues, was not too much.  There, the Commission cited cases where fines of as much as 7.9% of a licensee’s revenues were not deemed excessive. Only in a nonbroadcast case, involving an individual who was found to have been operating an unlicensed radio transmitter on a government frequency was the FCC moved to decrease a proposed fine, reducing it from $10,000 to only $750 upon a finding that the individual had no current source of income from which the fine could be paid.  The moral is that, if you operate a broadcast station, violate the FCC rules and have money, the FCC is going to be looking for a piece of it.  One more reason to assess your operations and make sure that you are operating on the right side of the rules.

In a speech given last week, FCC Commissioner Michael Copps called for a new regime to review the public interest performance of broadcasters – suggesting that license renewal become a more rigorous exercise for radio and television operators.  In his address called "Getting Media Right, A Call to Action", given to the Columbia University School of Journalism, Copps specifically suggested a "Public Value Test" for broadcasters when they file their license renewals.  If the broadcaster passes the test, the broadcaster would get a renewal.  If the broadcaster did not pass – if it does not show that it has "earned" the right to "use the people’s airways" – then the licensee would get a one year probation period to prove that it should keep its license.  If it does not improve, then the license would be taken and given to "someone who will use it to serve the public interest."

So what would this Public Value Test look like?  The Commissioner suggested that the following factors would be reviewed: 

  1. A Meaningful Commitment to News and Public Affairs Programming – an increased commitment to news, local public affairs, election debates and issues oriented programming would be reviewed according to some quantitative benchmarks.
  2. Enhanced Disclosure – requiring broadcasters to provide more information about their programming performance, on the Internet, as the Commissioner believes that information in the public file is "laughable", and also requiring that the FCC review that information at renewal time
  3. Political Advertising Disclosure – requiring more information about the sponsors of political ads
  4. Reflecting Diversity – looking to increase the gender, ethnic and racial ownership of broadcast stations
  5. Community Discovery – requiring that broadcasters be required to, in some formal way, communicate with their communities to determine local programming needs and the interests of various groups within a station’s community
  6. Local and independent programming – requiring that broadcasters provide more local and independent programming instead of "homogenized music and entertainment from huge conglomerates – the Commissioner suggesting 25% of local programming being dedicated to local and independent programs.  More local PSAs too.
  7. Public Safety – requiring that all broadcasters have a plan to address emergencies and be either staffed during all hours of operation or be otherwise able to respond immediately to any local emergency.

 What’s likely to happen to these proposals?

Continue Reading FCC Commissioner Copps Calls For Stricter Broadcast Station License Renewal Standards – Could It Happen?