Last week, President-elect Barack Obama delivered his first weekly radio address since he was elected President.  The broadcast made news, not only for its content, but also because it was streamed on the Internet, particularly on You Tube, but also retransmitted on many other websites.  The fact that the Internet makes such transmissions not only possible, but so easy and so widely available demonstrates one of many reasons why all the worry about the return of the Fairness Doctrine is unwarranted.  With access to so many diverse opinions not only on the radio but also through all of the new technologies, why should the government care that one radio station may not cover all sides of a controversial issue?  If one station does not put on a strongly held viewpoint on an important issue, you can bet that someone who holds that viewpoint will find some way to transmit it to others. 

The return of the Fairness Doctrine has been the great invisible monster in the room since the election – with many commentators, particularly conservative ones, worrying that the Democratic Congress will attempt to reinstate the Fairness Doctrine.  Off-hand comments such as those made by Senator Schumer on Fox News, have fueled this speculation, even though the Obama campaign has specifically rejected such a return.  The Fairness Doctrine is one grounded in scarcity of the electronic spectrum – from the fear that if one side of an issue was allowed to dominate one of the few means of communicating with the population of a community, it would effectively be able to stifle the ability of those with contrasting viewpoints to get their message out.   But, to use a phrase that is becoming increasingly popular – that thinking is so 20th Century.

Continue Reading Obama’s Radio Address is Streamed on the Internet – Demonstrating Why There Need Not Be Any Return of the Fairness Doctrine

The Webcaster Settlement Act, about which we write here, has been signed into law by President Bush, giving parties to the Internet Radio royalty dispute until February 15 to enter into a settlement and have it become effective, without the need for any public comment or any further government approvals.  Several recent articles have indicated that a settlement is close – for at least some of the webcasters.  In several recent statements, Tim Westergrin of Pandora has indicated that the webcasters in DiMA (the Digital Media Association), in their negotiations with SoundExchange and the record labels, were getting very close to results.  At a the Digital Music Conference held in Los Angeles last month, Jon Potter, the President of DiMA, seemed to echo that sentiment.  However, neither could state with absolute certainty when the deal would come, or what its terms would be, though in Westergrin’s comments at that conference, available here, he stated that webcasters probably would not be happy with the likely outcome of the settlement, implying that there would be a high rate that would be agreed to by the parties, though it would be one less than what the Copyright Royalty Board ordered (and one which would allow companies like his to survive).  However, he indicated that perhaps not all webcasters would be able to survive at the rate being discussed, and some might have to try to enter into their own agreements to fit other types of webcast operations.  In fact, the Webcasters Settlement Act is not limited to a single settlement, so various other parties who participated in the CRB proceeding – including broadcasters who stream their signals online, small commercial webcasters, and NPR and other noncommercial groups – could negotiate settlements as well, though there have not been any recent public statements that these negotiations were close to bearing fruit.

At a panel that I moderated at the CMJ Music Marathon later in October, which included a SoundExchange representative and a member of its Board, there was a suggestion that further settlements with groups other than DiMA might follow if and when the deal with the large webcasters is concluded.  This approach may make some sense as the copyright holders don’t want any deals that they cut with small webcasters or noncommercial parties that could affect their negotiations with larger webcasters, from whom the vast bulk of their revenues are derived.  Copyright holders naturally want to address the interests that will be the most lucrative.  However, this approach does put smaller parties, who are often most worried about potential liabilities and most sensitive to uncertainty, into a very uncomfortable position. As we’ve written before, the statutory license that is administered by SoundExchange was granted by Congress at least partially to make access to music possible, especially to smaller parties with little bargaining power and little ability to cut deals with thousands of copyright holders, which would be required without this license.  Yet these are the parties most in need of relief from the rates imposed by the Copyright Royalty Board, so we hope that the talks of future settlements in fact are accurate.

Continue Reading Is A Settlement on Internet Radio Royalties Near? Will All Webcasters Be Included and Will They Be Able to Afford It?

The FCC has adopted new procedures for the submission of complaints about the failure to adequately provide closed captioning of video programming carried on television stations and cable systems.  In the same order, the Commission issued clarifications about the impact of the digital transition on the obligations of stations and networks to caption programming, and asked for comments on the issue of whether television stations that have multiple streams of programming can consider each stream as a separate "channel" for purposes of determining if they are exempt from captioning obligations for channels that have less than $3 million in revenue.  Our firm has published an Advisory summarizing this Order, and the complaint process that now applies both cable systems and broadcasters.  The Davis Wright Tremaine Advisory can be found here.

The outcome of the Further Notice of Proposed Rulemaking can have a real impact on the decisions made by broadcasters and their decisions to run multicast television programming.  Some stations have used an a second or third digital channel to do various forms of local programming, some along the lines of cable access programs – with local musicians, comedians or other sorts of original programs.  Others have run local news and public affairs programs.  If the Commission were to consider all programming streams to be a single "channel" (which seems to be contrary to how the Commission has treated cable programming where all channels, even if commonly owned, are considered as different "channels"), some channels will be met by new increased costs.  While hardship exemptions can be granted to particular programs, and could conceivably be applied here, stations should seemingly not have to go to the expense and trouble to make such hardship showings (as well as the uncertainty as to whether it will ultimately be granted) if these streams making less than $3 million and fit within that explicit, existing exception definition.  Watch for the dates of comments in this proceeding. 

By December 1, 2008, all commercial and noncommercial digital television (DTV) stations must electronically file an FCC Form 317 with the Commission reporting on whether the station has provided any ancillary and supplementary services during the twelve-month period ending on September 30, 2008. 

Under the Commission’s Rules, in addition to providing free over-the-air broadcast television, DTV stations are permitted to offer services of any nature, consistent with the public interest, convenience, and necessity, on an ancillary or supplementary basis.  Some examples of the kinds of services that may be provided include computer software distribution, data transmissions, teletext, interactive materials, aural messages, paging services, audio signals, and subscription video.  Unlike in years past, this year all DTV stations — regardless of whether the station holds a DTV license or is operating pursuant to Special Temporary Authority (STA), program test authority (PTA), or some other authority — must file a Form 317 reporting whether it provided such services and generated any income.  If the station did provide such ancillary services, then the FCC wants to know about it.  More importantly, if the station generated revenue from the provision of such services, the FCC wants its 5% cut of the gross revenues derived from such service.  The Form 317 is very brief, soliciting information about the license and the types of services provided, if any, and must be filed electronically through the CDBS filing system.  

At the FCC meeting held on Election Day, the Commission approved the operation of "white spaces" devices in the TV spectrum.  These would be mobile, unlicensed devices that would operate on TV channels that are not used in a particular location.  Many Internet users have hailed the expansion of wireless Internet opportunities that they believe that this decision will bring.  While the FCC promised that these devices would protect television operations and other current uses of the TV Band, many other groups have reacted to the decision far more skeptically.  All in all, we have probably not heard the end of this debate.

The full text of the FCC Order has not yet been released but, from the Public Notice summarizing the action (which came late in the day, after a several hour delay in the start of the FCC meeting), the FCC appears to have made some concessions to the broadcasters who were objecting that the tests of the white spaces devices were not able to adequately sense the presence of television signals in a way that would protect those stations.  So, to protect television signals, the FCC ordered that, in addition to sensing the existence of television signals, the white spaces devices would also have to have geo-location abilities, which would check the location of the device and compare it to a database of television stations and prevent the device from operating on channels that the database shows to be occupied.  Even with this capacity, organizations representing television stations do not believe that this compromise is sufficient to protect those stations.

Continue Reading FCC Approves White Spaces Devices in TV Band – While Some Hail a Boon to Wireless Internet, Others Say Not So Fast

On Monday’s edition of Morning Joe on MSNBC, host Joe Scarborough, while recounting a story about Obama Chief of Staff designate Rahm Emanuel, dropped the "F-bomb" – seemingly without even realizing that he did it.  He genuinely looked shocked after being told that he had not used the euphemisms that we’re using here, and apologized profusely, apologies that were even posted on the MSNBC website later in the day.  While the cast joked about the FCC fines that would be imposed, and discussed the legal ramifications about this incident, none seemed to recognize that cable – even basic cable – has not been subject to the same indecency regulation as over-the-air television, even though most basic cable networks generally observe the same standards observed by broadcasters to avoid offending their audiences (and perhaps inviting new attempts to regulate their operations.

Cases have generally held that cable, being a pay medium invited into the household, and with filtering technologies that allow particular channels to be blocked, does not have the same intrusive nature as the broadcast medium which comes in free to any house with a TV set and an antenna.  And, until recently when the V-Chip was introduced, over-the-air television did not have the same ability to block access to adult content.  It is interesting that this incident occurs only one week after the Supreme Court held its oral argument on the fleeting expletive case deciding if the inadvertent, unscripted use of a profanity should be subject to a fine.  If nothing else, this incident shows that mistakes happen even in the most unexpected places – who would expect that the host of a morning television program would slip up and let fly with an improper word?  This incident, and the cases before the Supreme Court, do not involve intentional, repeated use of profanity, like the George Carlin routine about which we wrote here, but instead just a fleeting isolated use of one of those "bad" words.  The FCC simply cannot demand perfection from its licensees without demanding perfection from society at large, which is clearly beyond the FCC’s jurisdiction. 

Continue Reading Joe Scarborough Drops the F-Word On Morning Joe – Lucky it Was on Cable

With Barack Obama’s historic victory just sinking in, all over Washington (and no doubt elsewhere in the country), the speculation begins as to what the new administration will mean to various sectors of the economy (though, in truth, that speculation has been going on for months).  What will his administration mean for broadcasters?  Will the Obama administration mean more regulation?  Will the fairness doctrine make a return?  What other issues will highlight his agenda?  Or will the administration be a transformational one – looking at issues far beyond traditional regulatory matters to a broader communications policy that will look to make the communications sector one that will help to drive the economy?  Some guesses, and some hopes, follow.

First, it should be emphasized that, in most administrations, the President has very little to do with the shaping of FCC policy beyond his appointment of the Commissioners who run the agency.  As we have seen with the current FCC, the appointment of the FCC Chairman can be the defining moment in establishing a President’s communications policy.  The appointment of Kevin Martin has certainly shaped FCC policy toward broadcasters in a way that would never have been expected in a Republican administration, with regulatory requirements and proposals that one could not have imagined 4 years ago from the Bush White House.  To see issues like localism, program content requirements and LPFM become such a large part of the FCC agenda can be directly attributed to the personality and agenda of the Chairman, rather than to the President.  But, perhaps, an Obama administration will be different.

Continue Reading The Promise of an Obama Administration for Broadcast and Communications Regulation

The FCC Equal Time rule (or more properly the "equal opportunities" doctrine) requires that, when a broadcast stations gives one candidate airtime outside of an "exempt program" (essentially news or news interview programs, see our explanation here), it must give the opposing candidate equal time if that opposing candidate requests the time within 7 days of the first candidate’s use.  Cable systems are also subject the requirement for local origination programming, and many have surmised that, faced with the proper case, the FCC would determine that cable networks are also likely to be covered by the doctrine.  While the FCC has extended the concept of an exempt program to cover all sorts of interview format programs, allowing Oprah, The View, Leno and Letterman and the Daily Show to have candidates on the air without the fear of equal time obligations, the rule still theoretically applies to scripted programming.  Yet in this election, we have seen candidates appear on scripted programs repeatedly, seemingly without fear of the equal time obligations.  Early in the election season, cable networks ran Law and Order with Fred Thompson without any equal time claims being made.  All through the election, candidates seem to have made themselves at home on Saturday Night Live, culminating with Senator McCain’s appearances on the SNL programs on Saturday Night and the SNL special run on election eve.  Yet through it all, stations have not seemed reluctant to run these programs, and candidates have not seemed to show any interest in requesting any equal time that may be due to them.  This seems to raise the question as to whether there remains any vitality to the equal opportunities doctrine.

This is not just a case of candidates deciding not to appear on a program that they don’t like because they don’t want to appear in a program with that particular format, as the equal time rules free the candidates from format restrictions.  Thus, had Senator Obama sought equal time for McCain’s appearances on SNL, he would have been entitled to an amount of time equal to the amount of time that McCain appeared on camera, and Obama could have used that time for any purpose that he wanted, including a straight campaign pitch.  He would not have had to appear in an SNL skit just to get that time.

Continue Reading Does McCain on Saturday Night Live Signal the End of Equal Time?

A Canadian radio station has apparently pulled off an amazing stunt that would have prompted an FCC fine if it had been done by a US radio station – calling Vice Presidential nominee Sarah Palin and engaging her in an on-air conversation under the premise that she was talking to French President Nicholas Sarkozy.  A recording of the purported conversation can be found here.  Had this been done in the US, the radio station would have been fined by the FCC as, under US law, you cannot air a telephone conversation on a broadcast station without first getting the permission of the person at the other end of the line – even if the person just says "hello" before being informed that they are on the air, and even if they are a public official.

The FCC rules were made clear in a recent decision of the FCC, fining a station $4000 for failing to inform two people who worked for a local airport that they were on the air when a station called to ask about certain policies concerning taxis at the airport.  The station argued that the people being interviewed were public officials and that the conversation was newsworthy, but the FCC denied that argument finding that there was no exception in the required notice provisions of Section 73.1206 of the FCC rules for conversations with public officials.  No matter who you are calling, they must give permission before their voice is placed on the air.  The Commission also indicated that even putting the receptionist on the air when she said "hello" and said that she would connect the call to the person that the station’s on-air host was trying to reach would have been a violation had the receptionist complained and confirmed that no consent had been given to the airing of her voice.  Thus, the FCC rules are clear – you must get permission to air a call before the person at the other end of the line even says hello.  Thus, surprise calls are out in the US, so stations can’t have as much fun or break news in the way that this Canadian station did. 

In two races for the US Senate, candidates have filed defamation lawsuits against their opponents charging that attack ads go over the line from political argument to actionable falsehoods.  However these suits ultimately play out, they demonstrate the premise that we’ve written about before, that broadcast stations are prohibited by FCC rules and the Communications Act from censoring the content of a candidate’s ad, and because they cannot censor the content of a candidate’s ad (or refuse to run a candidate’s ad because of the content of that ad), stations are immune from liability that might otherwise arise from that content.  But the candidates being attacked can sue their opponents for the contents of those ads, and that is just what has happened in the North Carolina and Minnesota Senate races.

In North Carolina, according to press reports, Democratic candidate Kay Hagan has filed suit against the campaign of Elizabeth Dole for a commercial that accused Hagan of being associated with a group called Godless Americans – an ad ending with a woman’s voice that some interpreted as being that of Hagan (when it was in fact not) saying "there is no God."  In Minnesota, Senator Norm Coleman has reportedly filed a lawsuit against Al Franken’s campaign claiming that Franken campaign ads improperly claimed that Coleman was rated one of the four most corrupt Senators and that he was getting an improperly financed apartment in Washington DC. 

Continue Reading Senate Candidates File Lawsuits For Defamation in TV Commercials – But Not Against the TV Stations