So you want to start streaming your radio station on the Internet?  Or maybe you want to start a whole new Internet radio station.  In a session at last week’s Texas Association of Broadcasters Annual Convention in Austin, Dave Oxenford talked about the legal considerations starting an Internet radio station, while Chris Dusterhoff of Bryan Broadcasting in Bryan/College Station, Texas talked about some of the technical and business issues in doing so.  A copy of Dave’s PowerPoint presentation from that session is available here.  The presentation addresses some of the issues that you need to consider, including the music royalties that will be required from most webcasting operations. 

In addition to the issues involved in streaming your signal on the Internet, broadcasters have a host of other legal issues that they should consider in connection with their digital presence.  Issues that arise with service marks and copyrights, with employment issues, social media, privacy and sponsorship disclosure were all addressed in Dave’s presentation on the Legal Issues in the Cyber Jungle.  A copy of his PowerPoint presentation is available here.  Dave also mentioned that stations with websites featuring user-generated content, to help insulate themselves from copyright infringement that might occur in the posts from their audience members, should take advantage of the registration with the Copyright Office that may provide safe harbor protection if a station follows the rules and takes down offending content when identified by a copyright holder.  The Copyright Office instructions for registration can be found here.   Additional information about use of music on the Internet can be found in Davis Wright Tremaine’s Guide to The Basics of Music Licensing in a Digital Age. 

The FCC now has sent notices to broadcast stations about their obligation to pay regulatory fees by August 31.  Last week, it issued three public notices about the fees – one simply announcing that the fees are due by that date, one setting out the procedures for filing the regulatory fees, and a third reminding all filers that they need to pay using the FCC’s on-line Fee Filer system.   The FCC’s website is operational, and broadcasters can begin the process of completing the necessary filings.  Davis Wright Tremaine has summarized all the filing obligations in an advisory on the FCC’s regulatory fee filing obligations sent out last week, and available here.  To avoid delays in processing applications, and to avoid fees and penalties, be sure to pay your fees on time.  And, as set forth in the DWT Advisory, don’t forget to figure out the fees due for your broadcast auxiliary stations (e.g. your STLs and Remote Pick-ups), as these licenses are not contained in the fee notice sent to you by the FCC.  So be prepared for the August 31 deadline. 

The FCC today upheld the cancellation of a television station’s license for being off the air for over one year.  Section 312(g) of the Communications Act instructs the Commission to cancel a license of any broadcast station that has not transmitted "broadcast signals" for over one year, unless there is a public interest reason for allowing the station to keep its license.  In this case, the television station was off the air after it lost its affiliation with a shopping network.  While searching for a way to profitably operate, the station remained silent for over a year, only coming on the air once to broadcast a test pattern for one day,  The FCC’s staff found that a test pattern did not constitute a "broadcast signal", and canceled the license several years ago (we wrote about that cancellation here).  Today’s decision denied reconsideration of the earlier conclusion, finding that the requirement for the transmission of a broadcast signal required more than a test pattern.  The decision characterized the test pattern as an "equipment test" as opposed to a "broadcast signal."  Thus, the decision upholds the cancellation of the license, and denies the station owner the opportunity to sell the station to a prospective buyer that it had located. 

The decision found that the fact that the station was having financial difficulty was an insufficient public interest reason to justify keeping the license effective after the end of the one year period.  Neither the death of a shareholder nor the location of a buyer for the station provided sufficient justification to the FCC for the preservation of the station’s license after its one year without programming.  While this decision may still be appealed to the full Commission and the courts, perhaps to clarify once and for all what the statute means by the "transmission of a broadcast signal," for now, the law appears clear – if a station is forced over the air for something near a year, resume operations with real programming.  A test pattern will not be sufficient to preserve your license.. 

The debate over the proposed performance royalty (or "performance tax") on over-the-air radio is once again front page news in all of the broadcast trade press, as radio executives who make up the NAB Radio Board reportedly are making their way to Washington, DC to decide on whether to pursue a settlement with those seeking to impose the royalty.  What’s on the table?  Reportedly a very low (perhaps 1% of revenue as reported in some of the trades) royalty for terrestrial radio, a royalty set in legislation for at least a several year period.  In exchange, broadcasters would get a break on streaming royalties and a push towards getting working FM chips into cell phones – a potentially big audience boost for radio operators.  But from all we have heard, this is not, by any means, a done deal.  What will happen?

We wrote just a few weeks ago about a proposed settlement and why it might or might not be a good idea, and received many comments on our post.  As was clear from the comments, many are not sure why a settlement of any sort makes sense at this point, when the NAB has so far bottled up the royalty in Congress, and where the next Congress is, at least in the eyes of many, going to be far more Republican and, in some people’s eyes, a lot less likely to impose the royalty.  Proponents of a settlement respond that the royalty is not necessarily a partisan issue, with Republicans such as Senator Hatch of Utah, Congressman Issa of California, and many members of the Tennessee delegation taking strong positions in favor of the royalty.  So, just because there is a change in Congress (if it in fact occurs) does not necessarily mean that the current Performance Rights Act or some other version of the royalty proposal would be dead.  Moreover, as we wrote in our recent post, there still is the remainder of the current Congress to get through, including the "lame duck" session after the election, when Congressmen who may no longer have jobs will be voting on much legislation, including many big budget bills in which a performance royalty rider can get hidden. 

Continue Reading NAB Board Comes to DC to Discuss Radio Performance Royalties – Is There a Deal in the Works?

Congress last week adopted a bill important to all US media companies that produce content that can be received overseas.  This would include anyone with content on their website (including user generated content) that could potentially give rise to a legal judgment overseas.  As explained in detail in Davis Wright Tremaine’s memo on the act – the Securing the Protection of our Enduring and Established Constitutional Heritage Act (“SPEECH Act”) – companies and individuals were bringing lawsuits, many in London, against publications from the United States, finding liability for speech that would be protected by First Amendment principles here.  Other US companies were facing liability for user generated content posted on their website that would be protected under Section 230 of the Communications Decency Act from libel actions in the United States.  This practice was caused "libel tourism", as people would go in search of the country where their case would be strongest – knowing that US law would not sustain their claims.  These cases often resulted in liability even if the US publisher had only minimal distribution in the foreign country where the case was brought.  Before this legislation, when parties were successful in foreign litigation, they could enforce their foreign judgments in US Courts against US citizens or companies, and the US parties would have no defense, as US courts would normally not re-try a final decision from a foreign court.  This legislation gives US Courts, before a foreign judgment involving speech matters can be enforced in the US, the authority to review the judgment to make sure it would have been permissible under US law.  Read the DWT memo, here, for more information about this important legislation. 

The FCC has issued another in a series of Notice of Proposed Rule Makings aimed at implementing changes to the satellite television rules brought about by the recently enacted Satellite Television Extension and Localism Act of 2010 or "STELA".  In particular, by its NPRM issued last week, the Commission proposes a predictive model to provide presumptive determinations as to whether a household is considered unserved by a local network-affiliated digital station.  The model proposed is a point-to-point predictive model that will allow parties to determine whether a particular location has the ability to receive an over-the-air digital television broadcast signal at the intensity level necessary for service.  The predictive model proposed by the Commission is based on the current model used for predicting reception of analog signals, which uses Longley-Rice to predict signal propagation. 

In proposing this predictive model, the Commission tentatively concludes that the current standard for an outdoor antenna should continue be used in predicting digital television signal strengths at individual locations.  Although STELA revised the definition of an "unserved" household by changing the previous statutory reference to a "conventional, stationary outdoor rooftop antenna" to refer simply to the use of an "antenna" (as we mentioned in our earlier blog), the Commission’s recent NPRM finds that the Act’s specification of the DTV standard incorporated in the FCC’s rules implies the use of an outdoor antenna to receive service.  Therefore, the predictive model the Commission proposes in its NPRM for determining reception of over-the-air digital television signals will continue to include the outdoor antenna standard (with some adjustments for height).  That said, and as the Commission itself notes, given that both of the satellite television providers are moving towards providing local-into-local service in most markets, the need for making determinations as to which households are "unserved" (and hence eligible to receive distant signals), is diminishing, although there are still a number of markets where such local-into-local service has yet to be implemented. 

Although STELA also narrowed the unserved standard to focus just on the reception of signals from an in-market affiliate (rather than simply any affiliate) and to address the notion of multicast digital streams, these changes do not impact the Commission’s adoption of a predictive model, and thus were not explicitly addressed by the NPRM.  However, the Commission does include a Further Notice of Proposed Rule Making to address issues regarding on-site measurements in the event that a subscriber requests an on-site signal strength test following application of the predictive model.  Here again, the Commission proposes to limit measurements to outdoor antennas.  Comments on the Commission’s proposed rule changes will be due 20 days after publication of the NPRM in the Federal Register, which, as of this writing, has not yet occurred. 

Continue Reading FCC Begins Proceedings to Implement Changes to Satellite Television Rules as a Result of STELA

In 2006, the FAA proposed requiring that many communications users seek FAA No Hazard Determinations not only before they make changes in the height of a tower, but also prior to frequency or power changes.  The FAA sought to review applications to determine if proposals would create any interference to frequencies used by the by aircraft and by the FAA for air navigation purposes. This review would be in addition to any review that the FCC made of interference considerations.  Many communications companies and engineering firms argued that this second layer of frequency review was unnecessary; and certain engineering groups contended that the FAA’s interference programs were not accurate – finding interference where none existed.  After over 4 years of consideration,the FAA has now decided that most of the frequency blocks that it was considering did not really pose a threat to air navigation, with one exception.  The FAA determined that interference problems do arise from FM operations, and thus the FAA did not dismiss their proposal to require its approval of FM changes – even where no tower height changes are planned.

The FAA, however, apparently will not be making this decision alone.  Instead, that FAA is coordinating with the FCC and NTIA (an Administration in the Commerce Department that coordinates between various government agencies that use spectrum) to adopt policies that will govern the potential for interference from FM stations to FAA operations.   The FAA’s Notice says that more information about what is to be proposed for FM stations should be forthcoming soon.  This can be a real issue for FM stations, especially ones proposing significant power increases or frequency changes in congested metropolitan areas with numerous public, private and military airfields in the vicinity. 

Continue Reading FAA Working On Proposals to Require FAA Coordination For FM Changes Even Where There is No Change in Tower Height – Rejects That Requirement for Other Services

The FCC’s Annual Regulatory Fee web site, available at  www.fccfees.com, is now active and indicates that the Reg Fees are due by 11:59 PM EDT on August 31, 2010.  A further public notice, which will include detailed instructions on how to access the FCC’s Fee Filer database and remit the payment of the fees, should be forth coming from the Commission, likely by the end of the week.  But in the meantime stations can plug their call signs into this "look-up" database and confirm the amounts owed for each facility.  Once the FCC’s full public notice is released we will have more details and will post a further advisory on paying the fees, but for now it appears that deadline for this year’s Regulatory Fees has been set for August 31st.  Stations should plan their payments accordingly and be sure to avoid the automatic 25% penalty for late payment for any fees paid after midnight on August 31st.

The FCC today announced a $1,000,000 Consent Decree with Univision Radio to settle payola investigations underway at both the FCC and the Department of Justice.  Payola, or "pay for play" as it is called in the FCC Press Release issued today, is a violation of FCC rules and Federal criminal law, which both prohibit the broadcast of program content for which payment was received without disclosing the receipt of that consideration.  The payment of money to programming employees in exchange for the playing of certain music on the radio has been the situation where pay-for-play has received the most publicity.  Where payment is made for playing a song, without acknowledging to the public that the station’s decision to play the music was based on payments and not on the station’s determination of the merit of the music being played, then a violation exists.  In many cases, it is station employees who receive the payment, sometime unknown to station management.  But where the station has not taken sufficient steps to guard against pay-for-play situations by its employees, the licensee can still face penalties.  The Consent Decree sets out specific steps for Univision to take to make sure that the situations alleged to have occurred at the company’s stations don’t reoccur in the future.

The Consent Decree is virtually identical to the $12.5 million in settlements reached three years ago with four of the country’s largest radio broadcast companies.  At that time, we published an advisory that explored each of the provisions of the Consent Decree and the obligations that it imposed on the broadcasters that were involved – and suggested that all stations use it as a Guide to their operations to insure that they, too, don’t find themselves facing a similar situation in the future.  As payola seems to run in cycles, check out our Guide and make sure that you are taking steps to insure compliance with the FCC rules and policies on payola.

While it’s summer in Washington and things should slow down, the discussion of the need for wireless spectrum for broadband, and the related question of whether to reclaim television spectrum for that use, continues unabated.  This week, the FCC released a new report finding that between 14 and 24 million Americans have no access to broadband, and finding that a disproportionate number of those people are in rural areas.  While this report to Congress is meant as a factual report on the status of broadband deployment, and not a document that details solutions to the lack of access, both the statement about the report from FCC Chairman Julius Genachowski and the FCC Press Release summarizing the report, suggest that one way to address this shortcoming is to encourage the deployment of wireless broadband.

While the FCC did not, in these documents specifically mention the TV spectrum as a source for that wireless capacity, as we have written before, the FCC’s Broadband Plan looks to the television spectrum for the majority of the spectrum that they hope to reclaim for broadband use.   Joining the FCC’s call for more spectrum was an even higher power.  The White House recently issued a Presidential Memorandum supporting the idea that the FCC free up 500 mhz of spectrum for wireless broadband purposes.  While the Memorandum tasked government agencies with finding ways to free spectrum that they are using to meet this perceived need, it also made clear that the government would look to meet part of the need by reclaiming spectrum from non-governmental users.  And they are not the only ones getting into the Act. 

Continue Reading FCC Wants More Wireless Broadband from TV Spectrum – Congress and the White House Get In on the Action