This past week’s appearance of Governor Arnold Schwarzenegger with Jay Leno on the Tonight Show raised the question of when the equal opportunities requirements of Section 315 of the Communications Act apply.   While there has been extensive press coverage of the event, seemingly asking why the Democratic candidate is not by law entitled to equal time, the policy of the Commission has been to treat most interview programs, even ones that usually concentrate on entertainment matters, as "bona fide news or news interview" programs, exempt from the equal time obligations.

While, at one time, the FCC had considered only traditional news and news interview programs (like Meet the Press or Face the Nation) to be "bona fide news or news interview programs."  But in the 1990s, the Commission began to realize that political discourse and the coverage of political races often occurred in programs much different than these traditional news programs.  To encourage this expanded coverage of the political process, the bona fide news exemption had to be extended to programs that routinely featured newsmakers, though the programs themselves might more often focus on entertainment or less serious programming.

The morning "news" programs like Today and Good Morning America were quickly recognized as bona fide news interview programs, and then talk programs like Donahue, Geraldo and Sally Jesse Raphael were later recognized to be exempt.  And, as time went on, the Commission recognized that the even programs that were far more entertainment oriented could still have serious discussions (or at least discussions relevant to their particular audiences) about political issues.  Specific exemptions were granted to the Howard Stern program, Imus in the Morning, and to Entertainment Tonight, which all, from time to time, interviewed political figures or other newsmakers about topics of interest to their audience.  And, while many of these programs filed with the FCC asking for specific declarations that the programs were indeed bona fide news interview programs and exempt from the equal time requirements, the exemption applies to any program that meets the FCC’s standards, without the need for a prior determination from the FCC that they are exempt.

 

Continue Reading Arnold and Leno – Making Law?

Google’s recent announced plans to purchase You Tube has ignited a veritable blizzard of discussion about potential copyright litigation that could result from the user-generated content that forms the backbone of the You Tube experience.  For broadcasters who have been venturing into the on-line world, this discussion highlights the cautions that they should exercise in dealing with their own websites.

The issue has been raised as so many of the videos posted on You Tube contain copyrighted material, often used without permission from the Copyright holder.  While You Tube has reached agreements with some record labels and broadcast networks for use of their copyrighted material in exchange for some revenue sharing, other rights holders have not yet reached agreements.  Discussions of the purchase and the issues raised by the use of this copyrighted material can be found in many publications, including those in the Wall Street Journal and a discussion with the Electronic Freedom Foundation’s Fred von Lohmann on SearchBlog.  These discussions focus on the defense from the Digital Millennium Copyright Act that gives bulletin board-type services exemptions from copyright liability if they do not encourage the violations, and act promptly to remove any material that they have been notified is in violation of the Copyright laws. 

Whether or not the DMCA fully protects Google, the discussion highlights the need for broadcasters to use care in their use of user-generated material on their website.  While broadcasters need not shun all user-generated content, they need to make sure that they have done their diligence.  Broadcasters should review the terms of use on their sites, making sure that they warn those who may post home-grown videos that they should not contain copyrighted material without permission of the owner.  If notified that their sites nevertheless contain copyrighted material for which no permission has been given, they should promptly take steps to remove the offending material.  And, if feasible, the broadcasters should even consider ways to identify infringing material and to remove such material.  And they should watch developments with You Tube and other similar sites.

At the FCC’s open meeting today, the Commission adopted a First Report and Order and Further Notice of Proposed Rule Making taking the first steps towards permitting "low power devices" to operate in the broadcast television spectrum.  Although the actual Order has yet to be released, the News Release issued today states that the Commission has concluded that fixed (not mobile) low power devices can be allowed to operate on vacant TV channels, and that the marketing of such devices can commence the day after the DTV transition, February 18, 2009.  At the same time, however, the News Release states that the NPRM will invite comment on the rules necessary to protect TV broadcasting and other services from harmful interference, and seek input on whether such devices should be permitted on a licensed or unlicensed basis.  Furthermore, the NPRM will solicit additional information necessary to determine whether personal or portable devices can operate in any of the TV channels without causing harmful interference. 

Continue Reading First (Baby) Steps Towards Devices in TV White Space

The Copyright Royalty Board (CRB) has just announced the required recordkeeping format for Internet webcasters streaming on the Internet. The full text of the decision can be found at http://www.loc.gov/crb/fedreg/2006/71fr59010-9.html

Basically, the requirements set forth by the CRB obligate those streaming their signals on the Internet must keep track of the music that they play for at least two weeks of every quarter, and report that music to SoundExchange in an ASCII format. The CRB found that an ASCII formatted report could be generated by Excel or Quattro Pro spread sheets. The Board’s decision also sets forth specifics as to format, headers and other details of the reported information.

SoundExchange had previously prepared model reports for recordkeeping using Excel and has been ordered by the CRB to develop one for Quattro Pro. The Excel model will presumably be modified to come into line with the CRB’s decision. A copy of SoundExchange’s model can be found at http://www.soundexchange.com/licensee/licensee_cws.html#reporting

Services have been required to keep information about the music that they play since an interim Order issued by the Copyright Office in April 2004. The new Order from the CRB contemplates that the information that has been retained by Internet services be provided using this newly mandated format.

Continue Reading Copyright Royalty Board Announces Music Recordkeeping and Reporting Requirements for Internet Streaming

In a decision released Friday, the FCC’s Enforcement Bureau imposed a fine of $7000 on a station for violation of Section 73.49 of the Rules, requiring AM station towers with the potential for RF radiation at their base  to be completely enclosed within a fence or other secure enclosure.  What was notable about this decision is that the FCC rejected claims that the station should not be fined because it did not own the tower.

The Enforcement Bureau found that Section 73.49 imposed a duty on AM licensees, not on tower owners.  Thus, the duty to fence the tower is one that the licensee is responsible for meeting, even if some other party owns the tower.

The FCC noted that for all other towers, the primary duty for maintenance and repair of a tower is on the antenna structure owner, but even then the FCC imposes a secondary duty on the licensee to make sure that all legal obligations are being met.  While the FCC left for another day the issue of what would happen if a licensee did not meet that secondary duty in some case not involving an AM station, they made clear that, for AM stations, the licensee cannot delegate the responsibility for the fencing obligation.

Recently, we wrote about reports that the FCC would be creating an Obesity Task Force.  On September 27, Senator Brownback, FCC Chairman Martin, and FCC Commissioner Tate announced the formation of that task force.  The task force will examine the impact of the media and advertising on children’s health.  The press release stated:

“Given the saturation of media in our children’s lives, we need to understand how media impacts their health and behavior,” said Brownback. “I’m pleased that representatives from the public and private sector are coming together to address the rising rate of childhood obesity and its relationship to media and advertising. I hope this task force helps government, parents, and the business community define how to address childhood obesity.”

The full press release can be found here.  This will be a process that broadcasters should carefully monitor

From watching television in almost any state with a contested election, it’s clear that it’s political season again.  As the ads multiply, one of the most common tactics to disrupt an ad campaign is to write a letter to a  station saying that the ad is untrue and should be pulled.  However, when an ad is purchased by the candidate or his authorized campaign committee in connection with the campaign, and contains the voice or picture of the candidate, the circumstances in which an ad can be pulled are quite limited.  Nevertheless, the questions are rolling in. 

In one race in the Midwest, stations received complaints about a Federal candidate ad that did not contain the full disclaimer required by BCRA (the Bipartisan Campaign Reform Act, which requires the now familiar statement from Federal candidates that “I’m John Smith, and I approved this ad”). A competing candidate urged stations to pull the ad that did not contain that disclaimer. In fact, stations cannot pull the ad that does not contain the disclaimer (as long as it has the FCC mandated “paid for” or “sponsored by” language at the end of the spot). While the candidate may get into trouble with the Federal Election Commission for not having the BCRA language, and the station may deny lowest unit rate if the required language is not on a spot that mentions an opposing candidate, the spot cannot be pulled from the airwaves.

In another race in a Western state, the question was raised about the use of one of the words that the FCC has ruled to be "indecent" in almost any circumstance.  At the NAB Radio Show, the FCC’s Bobby Baker was asked if such  an ad could be channeled to the "safe harbor" periods after 10 PM.  Bobby answered that it was possible that such channeling would be permitted, but that the FCC has never addressed that question.  So, for now, the issue is unsettled until someone asks for a declaratory ruling or the issue is otherwise put before the FCC.

Continue Reading The Censorship Issue – Dealing with Objections to Candidate Ads

The NAB Radio Show held the week before last, in conjunction with the Radio and Records Convention, was notable in its attention to new media. It’s been years since the NAB has devoted so much time to new media issues (remember the Streaming at NAB sessions that were held at the radio show early in the decade?).  And the new media sessions have perhaps never been as central to the Convention. Sessions on streaming, podcasting, downloads, blogging and just generally dealing with the media competition abounded at the convention.

The emphasis on the new media was perhaps most evident and presented most starkly in a pre-convention Summit put on by Jacobs Media. There, one presenter, Gordon Borrell of Borrell Associates, Inc., talked about the reach of media and information on the Internet, and just how prevalent it has become – even in reaching fighting for local advertising dollars – perhaps the one place that over-the-air broadcasters thought was most securely their own. Mr. Borrell pointed to websites such as those run by the Cape May Herald and the Lawrence County Kansas Journal-World as ones which show the power of the Internet to contribute to or eclipse their traditional sponsoring media (he said that the Lawrence site did over a million dollars a year in on-line revenue),. Even sites with no traditional media  partner, like Hartford.com, were said to be generating hundreds of thousands of dollars in local advertising revenue. What was perhaps most surprising was his assertion that in 40% of markets, there is an on-line site that has greater advertising revenue that the most successful radio station in the market.

Another presenter, Jason Calacanis, CEO of Weblogs,  went so far as to suggest that the principal purpose of today’s radio station should be using the station to drive traffic to the station’s website before the station itself became obsolete. Videos of the Jacobs Media Summit are available on-line, here.  While many others found this view to be extreme (Jack Isquith of AOL Music, in a session on streaming held several days later, talked at one point of the “elegance” of radio’s ability to reach local mass audiences more efficiently than on-line media), the whole convention seemed to be in agreement that radio needs to concentrate on the new media and develop their web presence. 

Continue Reading Radio Show Focus on New Media