Yesterday’s New York Times featured an article on radio’s increasing use of Internet video to promote their on-air programs, to extend their brand, and to increase the connection with their listeners.  This is another manifestation of the theme we wrote about earlier this week in connection with this year’s RAB Convention, where the emphasis was on radio broadcasters maximizing and leveraging their digital assets.  But, in doing so, stations must be alert for the legal issues that this extension can raise.

For instance, we have written before about the concerns about using copyrighted music in video productions without permission from the record company or other copyright holder in the musical performance.  Stations should not make their own music videos without securing authority from a copyright owner of the song that they are featuring (from both the artist and the composer).  If stations are asking listeners to post their own video on the station’s website – like a local YouTube – the station must be prepared to take down any video using copyrighted material if the station is asked by the copyright holder.  And the station should adopt Terms of Use for its site, warning users not to post copyrighted material without permission.  The station should also not encourage the use of copyrighted material without permission – for example, it should not give prizes to the producers of the best music video for the website unless it has obtained permission for the use of the particular song or songs that are to be used by contestants.

Remember, the Internet magnifies all sorts of intellectual property issues by making it possible for copyright and trademark owners to monitor infringement far beyond the coverage contours of the broadcast station. 

The FCC today released a Public Notice announcing that it had sent EEO audit letters to approximately 150 radio and television stations around the country.  The Public Notice contains a list of the stations being audited.  In its Order adopting the current EEO rules, the FCC promised to audit about 5% of all stations each year.  Thus, expect more audits as the year progresses.

As we wrote last week, the FCC recently fined a number of stations for violations of the EEO Rules discovered either as a result of audits or in the license renewal process.  Today, fines of $5000 each were issued to two stations which had not conducted broad outreach for 40% of their job openings (the stations had recruited for only 6 of 10 job vacancies reported in their renewal applications).  This decision is significant as it is one of the first times that the FCC has fined a station for something other than an almost complete failure to recruit or do the necessary paperwork.  Here, the stations had relied solely on word of mouth recruiting for 4 of 10 positions, causing the FCC to find its efforts inadequate.

Clearly, the FCC is getting very serious about enforcement of its EEO policies.  For a complete outline of the FCC’s EEO requirements, read our EEO advisory, here.

Two recent FCC cases set confusing and perhaps dangerous precedents for the use of Low Power FM stations.  In one case, the FCC allowed a pirate operator that they had shut down for an illegal operation to then resume operations under Special Temporary Authority (apparently following Congressional intervention).  In another case, where protests were lodged about the sale and probable format change of a noncommercial station, the FCC directed the opening of a special filing window for an LPFM in that community to provide a replacement service.  While the motivation of the FCC in each case may have been laudable, do these cases establish expectations on the part of other similarly situated parties that cannot be met in future cases?

According to a news article, the FCC, at the urging of Senator Harry Reid, the Senate Majority Leader, authorized a pirate radio station to continue operations under Special Temporary Authority until the next low power FM application window opens.  After first shutting the station down for operating without a license, the FCC then permitted the station to resume operations to provide a local service to a small Nevada community.  According to the article, the expectation is that the operator would file for a permanent license once the FCC opens a window for filing applications for new Low Power FM stations.  While service to the Nevada community may be laudable, doesn’t this decision encourage others to start pirate stations in unserved communities, and then ask that their service be permitted to continue under temporary authority if the FCC finds them and shuts them down?  And even if the FCC would allow such operations, these process puts the parties operating at risk, as they may continue to operate stations, and then they may face a competing applicant during the next LPFM window.  Under the FCC’s policies for picking between mutually exclusive applicants, the established party could still end up not being the preferred applicant, and would have to shut the station down – taking away a service that the STA has allowed to become even more established in the community. 

Continue Reading Fun With Low Power FM

I’ve just returned from this year’s Radio Advertising Bureau convention in Dallas.  In reflecting on the convention, and in discussing it with many who were in attendance, the consensus was that this was not your Father’s RAB convention.  I was surprised by how little discussion there was of traditional radio at the conference.  The sessions weren’t the typical ones about how to make the most money from selling your cluster of radio stations in combination, or how to compete against the newspaper or the Yellow Pages, or how to get the most out of your sales staff.  Instead, virtually every session talked about leveraging your digital assets.  There were discussions of using your website, streaming, podcasts, text messaging, and  audio on cell phones to increase the financial performance of broadcast stations.  There were discussions of HD Radio and some of the opportunities that service might offer if and when it starts getting consumer acceptance.  All in all, it seemed as if radio (or at least those planning the convention sessions) had received the message that the industry needs to take advantage of its ability to drive traffic to new technologies, and drive that traffic to new media sources that stations themselves create. 

In the past, there seemed to be a fear about discussing these new technologies.  It was almost as if the technologies weren’t discussed, they’d go away.  But at the RAB, and at many of the conventions of the state broadcast associations that I have attended over the last year, broadcasters seemed to have decided that they need to embrace the new media.  While the old fear had been that these new media sources would cannibalize the current broadcast audience, everyone seems to now recognize that the audience is going to use these technologies no matter what – so the broadcaster might as well be the one cannibalizing its own audience.

While legal and regulatory issues do not tend to be the primary topic of discussion at the RAB Conference, as in almost any broadcast discussion, they do come up.  Here too, the discussion was digital.  For instance, in the speech by NAB President David Rehr outlining the priorities of the NAB for the year, only the effort to authorize FM translators for AM stations (which we wrote about here), was not a "digital" topic.  The other issues discussed by Mr. Rehr included pushing the FCC for final rules for digital radio, monitoring the actions of satellite radio companies XM and Sirius, and finally, the issues that arise out of the Perform Act.  The Perform Act is a copyright bill introduced in the Senate last month that would affect digital royalties for music used on the Internet, place restrictions on services promoting the promotion and sale by digital music providers of devices that disaggregate songs contained in a digital stream, and require copy protection technologies to be employed by digital music providers.  Hardly the exciting stuff that makes for an applause line in a convention speech.  While we will write more about the Perform Act in a separate posting, the major concern for broadcasters is that the sponsor, California Senator Diane Feinstein, suggested in her remarks that the performance royalty on sound recordings which now applies to satellite radio and webcasting (which we have written about many times including here), should also apply to broadcast radio.  And that is a big enough issue – one that could hit broadcasters directly in the pocketbook – that it demands the industry’s attention in every forum. 

Last week, we wrote about the potential return of the Fairness Doctrine, reminding broadcasters what the doctrine had really meant – free commercials to groups that wanted to respond to purchased ads addressing controversial issues of public importance, and few if any editorials or controversial programming that took a position on issues, as that would also have meant giving free time to those with competing views on an issue.  As we suggested, the doctrine was a restraint on the First Amendment freedoms of broadcasters which would never have been tolerated in a print medium.

This week, Broadcasting & Cable magazine editorialized against the return of the policy, citing how the Doctrine led to meaningless editorials on nothing but fluff, and stating that, no matter how bad programming on a broadcast station might be, it was better than restricting broadcaster freedoms.  Nat Hentoff in the Washington Times provides a much more detailed and compelling argument against the Fairness Doctrine, recalling days from a broadcast newsroom where controversy was forbidden, and the failure to provide fairness would result in the onslaught of armies of lawyers to answer complaints. 

We will see if Congress is reading these comments. 

When was there ever a year where there was more controversy about contests and promotions?  This week, the stories were everywhere about how Boston was shut down by the promotion for a program on the Cartoon Network.  While all the facts are not in on that case, had this been conducted by a broadcaster, the FCC might well be investigating to determine if the promotion violates the Commission’s hoax policies, which prohibit the airing of hoaxes that endanger the public by tying up emergency responders.

The FCC already seems to be investigating the contest gone wrong in Sacramento.  According to trade press reports, FCC Chairman Martin asked the Enforcement Branch of the FCC to review the contest that resulted in the death of a participant.  While the FCC may investigate any matter, what is it that they are looking for in connection with the Sacramento contest?  Certainly, the contest  was a tragic event.  And there is the possibility of civil liability from the lawsuit that was filed last week.  But not every action by a broadcaster can or should be the subject of FCC action.  The FCC has never become involved in libel or slander cases, leaving them to the jurisdiction of the civil courts.  Nor has the FCC become involved in cases of personal or property damage from accidents or injuries caused by broadcast vehicles or other equipment.  Again – those matters are left to the Courts.

 

Continue Reading The Year of the Contest Gone Wrong

The new Congress has started its oversight of the FCC, and one of the first topics to be brought up is the reintroduction of the Fairness Doctrine. Presidential candidate and head of the House of Representatives Domestic Policy Subcommittee of the House Government Reform Committee, Dennis Kucinich, was the first to call for hearings about the reintroduction of the doctrine.  Others have joined in that cry, including it in a bill introduced in the House and Senate to reform the media ownership rules. But do these perhaps well-intentioned Congressmen really remember what the Fairness Doctrine meant? Basically, bland broadcasting.

The Fairness Doctrine was, for the most part, declared unconstitutional by the FCC in the late 1980s (though some limited aspects of the policy have persisted until very recently). The Commission decision finding the Doctrine to be unconstitutional made sense, as its application clearly abridged the free speech rights of broadcasters. Basically, the Fairness Doctrine required fair and balanced coverage of all controversial issues of public importance. While that may sound like a good goal (one good enough to be adopted by Fox News), in fact it resulted in bland programming. 

Continue Reading The Fairness Doctrine – Prescription for Bland Broadcasting