The FCC Form 355 requiring "enhanced disclosure" by television stations was a frequent topic of discussion at this week’s NAB Convention in Las Vegas.  That form will require that television broadcasters report significant, detailed information about their programming, providing very detailed reports of the percentage of programming that they devote to news, public affairs, election programming, local programming, PSAs, independently produced programs and various other program categories, as well as specifics of each program that fits into these categories (see our detailed description of the requirements here).  Obviously, all broadcasters were concerned about how they would deal with the expense and time necessary to complete the forms, and the potential for complaints about the programming that such reports will generate.  At legal sessions by the American Bar Association Forum on Communications Law and the Federal Communications Bar Association, held in connection with the NAB Convention, it became very clear to me that the obligations imposed by these new rules are obligations adopted for absolutely no reason, as the Commission has not adopted any rules mandating specific amounts of the types of programming reported on the form.  In fact, one of the Commissioner’s legal assistants confirmed that, unless and until the FCC adopts such specific programming requirements, the Commission’s staff will not need to spend any time processing these forms.  Thus, if the form goes into effect, broadcasters will be forced to keep these records, and expend significant amounts of staff time and station resources necessary to complete the forms, for essentially no purpose.

Of course, public interest advocates will argue that the forms will allow the Commission to assess the station’s operation in the public interest, and will allow the public to complain about failures of stations to serve local needs.  But, as in a recent license renewal case we wrote about here, the Commission rejected a Petition to Deny against a station based on its alleged failure to do much local public affairs programming as, without specific quantitative program requirements, the Commission cannot punish a station for not doing specific amounts of particular programming. If the Commission adheres to this precedent, it will not be able to fine stations for the information that they put on the Form 355, but only for not filing it or not completing it accurately.  Thus, unless the Commission adopts specific programming requirements, the form will be nothing more than a paperwork trap for the unwary or overburdened broadcaster.  And, as is usually the case with such obligations, the burden will fall hardest on the small broadcaster who does not the staff and resources to devote to otherwise unnecessary paperwork.

Continue Reading FCC Form 355 – A Form Without a Reason?

Just over a week ago, the FCC decided to freeze the dismissal of FM translator applications of applicants who had more than 10 applications still pending at the FCC.  As we have written, the FCC had ordered all applicants in the 2003 FM Translator filing window to dismiss all but 10 of their remaining applications.  The Commission took this action in response to the request of advocates of Low Power FM (LPFM) stations, who argued that the numerous pending translators blocked too many opportunities for new LPFM stations.  While translator applicants opposed the Commission’s action, and filed Petitions for Reconsideration of that decision and a request for stay of the deadline for selecting the applications for dismissal, the deadline for selection of the applications to be dismissed came and went.  Only after that deadline did the Commission issue a Public Notice announcing that it would not process the dismissal requests until it resolved the pending Reconsideration petitions. 

While the dismissals of applications by parties with more than 10 applications have been frozen, the processing of applications filed by other applicants will be allowed to go forward. So, presumably, unless these applications are mutually exclusive with some of the frozen applications, we will see some new translator applications processed and granted, and perhaps even settlement windows opened in cases where there are mutually exclusive applications by parties with less than 10 applications pending.  For all other applicants, either applications by those with more than 10 pending applications or applications which are mutually exclusive with such applications, they will remain pending until the Reconsideration requests are resolved.  So we should, at long last, see at least some new FM translator applications processed and granted in the near future.

Website operators who allow the posting of user-generated content on their sites enjoy broad immunity from legal liability.  This includes immunity from copyright violations if the site owner registers with the Copyright Office, does not encourage the copyright violations and takes down infringing content upon receiving notice from a copyright owner (see our post here for more information).  There is also broad immunity from liability for other legal violations that may occur within user-generated content.  In a recent case, involving the website Roommates.com, the US Court of Appeals determined that the immunity is broad, but not unlimited if the site is set up so as to elicit the improper conduct.  A memo from attorneys in various Davis Wright Tremaine offices, which can be found here, provides details of the Roommates.com case and its implications.

In the case, suit was filed against the company, alleging violations of the Fair Housing Act, as the site had pull-down menus which allowed users to identify their sex, sexual orientation, and whether or not they had children.  Including any of this information in a housing advertisement can lead to liability under the law.  The Court found that, if this information had been volunteered by users acting on their own, the site owner would have no liability.  But because the site had the drop-down menus that prompted the answers that were prohibited under the law, liability was found.

Continue Reading Court Affirms Website Owner’s Insulation from Liability for User-Generated Content – If the Website Does Not Contribute to the Liability

While US webcasters may think that they have legal issues – whether it be the Internet radio music royalties that have been such a concern (see our coverage, here) or the copyright and other liability issues that surround user-generated content on various websites (see our story here), they face nothing like new rules that were recently adopted for webcasters in China.  The new rules require government permits from two separate Chinese government agencies before webcasting operations can begin.  In addition, the rules appear to require ownership and control of webcasting operations by state-owned companies.  A memo on these new rules, prepared by attorneys from Davis Wright Tremaine’s Shanghai office, can be found here.

These rules apply to streaming audio and video delivered to mobile and wireless devices.  The rules also require yet another permit for sites that contain news content, and require taping of programs (a proposal made by our own FCC in connection with broadcast programs to monitor for indecency) to monitor for program content that may offend government requirements.  Clearly, it’s a different system than that in place in the US – one which website operators interested in an operation in China should study carefully.  Again, details can be found in the memo prepared by the attorneys in our Shanghai office.

In a recent decision, the FCC interpreted its radio multiple ownership rules in a case involving changes in an Arbitron market.  The FCC’s rules restrict the number of radio stations that one company can own in a market based on how many stations are in that radio market.  In situations where stations are rated in an Arbitron market, the number of stations is determined by how many stations are in that Arbitron market, as determined by data compiled by the financial analysis firm BIA.  In this case, while the application to acquire the station was pending, BIA came out with its first list of stations that it considered to be in the newly created Arbitron market.  That list showed that, in the new market, the Buyer already owned more stations than allowed by the rules, so acquisition of this additional station was prohibited.  The case stands for the proposition that, while changes in Arbitron markets that allow an acquisition to take place must have been in place for two years to become effective (to prevent owners from gaming the system by making short-term changes), changes that adversely affect the ability of an owner to acquire a station become effective immediately.

According to the decision, at the time that the application in question was filed, the station to be bought was listed by BIA as being in the Manchester, New Hampshire Arbitron market.  The number of stations owned by the Buyer in Manchester was such that the acquisition of the station was permissible at the time the application was filed.  However, Arbitron announced the creation of a new Concord radio market just before the filing of the FCC application for approval of the transfer of control of the radio station.  Soon after the filing of the application, BIA released its list of stations in the new Concord market, and it included a number of the stations owned by Buyer, including the station it was proposing to acquire.  In the new Concord market, the Buyer would have too many stations to permit the acquisition of this station under the restrictions set out in the multiple ownership rules.

Continue Reading Adverse Change in Arbitron Market Blocks Radio Acquisition Under Multiple Ownership Rules

David Oxenford of DWT’s Washington DC office will speak at the 2008 Annual Conference of the Broadcast and Cable Financial Management Association in Dallas, Texas.  David will speak on a panel titled Music Licensing in a Digital Age and Other Website Issues along with a representative of BMI.  The session will be held on May 13.  A conference agenda is available here.

Update – May 15 – The PowerPoint presentation, summarizing issues for a broadcaster’s consideration in connection with its website operations, is available here. 

On April 14, David Oxenford was a speaker at the Radio and Internet Newsletter ("RAIN") annual summit, held in Las Vegas.  David spoke on music royalty issues, providing an update on the status of the royalties set last year by the Copyright Royalty Board (about which we have written extensively).  The full agenda for the Conference can be found here.

As we wrote last week, the FCC recently admonished two major broadcasters, each of which had a station group which had not complied with the FCC’s EEO rules.  In both cases, the FCC would have issued fines instead of the admonishments had it not been for renewal applications that were granted between the time of the violations and the FCC’s EEO audit that uncovered the issues.  This past week, the FCC issued another list of stations that will be audited to determine their EEO compliance.  The list of stations to be audited is here.  The FCC’s Public Notice of the audits is here.  As stated in the Notice, the FCC will audit 5% of all broadcast stations and all multi-channel video providers each year.  So expect more EEO audits in upcoming months.  To be sure that you are prepared to meet the FCC’s requirements for EEO compliance if your station is audited, see our EEO Compliance Guide, here.

David Oxenford spoke at the NAB Convention in Las Vegas on a panel titled "Coping with Copyright: From Performance Tax to Internet Streaming" dealing with dealing with Internet radio music royalties and the broadcast performance royalty.  The panel was held on April 15. Handouts included DWT’s memo "Copyright Royalty Board Releases Music Royalties for Internet Radio Streaming for 2006-2010—Clarifying the Confusion."

As we posted earlier, television stations must file an FCC Form 388 with the FCC reporting on their DTV educational efforts by April 10th.  That Form is now available on the FCC’s web page here.  However, stations should be aware of the unusual filing procedure required for this form.  This form will not be filed through CDBS, but rather will be filed through the FCC’s Electronic Comment Filing System (ECFS), which is used for submitting comments in notice and comment rule making proceedings.  The ECFS submission page is available here.   Thus, stations will need to prepare the FCC Form 388 using the  Word document available on the FCC’s web site, and then electronically submit the completed Word document into Docket Number 07-148 using ECFS.  Although the new rules were only effective for one day of the First Quarter, stations should report any voluntary DTV educational efforts undertaken during the quarter.