The Copyright Royalty Board yesterday published in the Federal Register the proposed rates for the public performance of musical compositions by noncommercial broadcasters for the period 2023 through 2027.  The rates reflect settlements between ASCAP, BMI, SESAC and GMR with various organizations representing noncommercial broadcasters. The Corporation for Public Broadcasting agreed to one set of rates paid to cover NPR and PBS affiliates. The NRB (the religious broadcasters’ organization) has a Noncommercial Music License Committee that agreed to another set of rates that apply to non-NPR radio stations not owned by colleges and universities, setting out rates that these noncommercial stations pay to each of these rights collection agencies. For these radio stations, the rates are based on the population served by each noncommercial station. College and university-owned stations can take advantage of a third set of rates, based primarily on the number of students in the school with which the station is affiliated.  Comments and objections, if any, to these proposed rates are due on or before February 27, 2023.

Commercial broadcasters have royalty rates that are to be paid to these performing rights organizations (or “PROs”) set not through the Copyright Royalty Board but instead through varying processes.  ASCAP and BMI are subject to antitrust consent decrees (see our articles here and here on arguments about those decrees).  The decrees provide that, if the PRO cannot reach an agreement with representatives of the commercial radio industry (usually the Radio Music License Committee – see our article on RMLC here – although commercial religious broadcasters also negotiate rates with these entities through the NRB), a US District Court judge in New York will hold a trial, acting as a “rate court” to determine the amount for reasonable rates.  ASCAP and BMI are currently negotiating with the RMLC on new rates for commercial broadcasters.  SESAC is also subject to antitrust settlements with both the RMLC and the TV Music License Committee.  If SESAC and the committees cannot reach agreements, an arbitration panel sets the rates (see our articles here and here on radio rates set as a result of this process).  After prolonged litigation with GMR to have their rates reviewed in some manner, the RMLC last year dropped its lawsuit seeking that relief and GMR now has no oversight as to the rates it charges (see our article on the GMR license that resulted).  Noncommercial broadcasting, however, under Section 118 of the Copyright Act, has its PRO obligations set by the Copyright Royalty Board and, like this year, the result is almost always a settlement between the parties (even though, theoretically, the Board could hold hearings to set the rates if the parties had not agreed to the rates). 

Continue Reading CRB Releases Proposed ASCAP, BMI, SESAC and GMR Rates for Noncommercial Broadcasters

Royalties paid for the use of music by broadcasters and digital media companies, and other issues about music rights, can be an incredibly dense subject, with nuances that can be overlooked.  I participated in a CLE webinar earlier this week, sponsored by the Federal Communications Bar Association, where we tried to demystify some of the issues in music licensing (see description here).  I moderated a panel on the Hot Topics in Music Licensing, talking about the broadcast performance royalty, the appeal of the webcasting royalty decision, issues about the proliferation of performing rights organizations seeking royalties for the public performance of musical compositions, and more theoretical issues about the entire process of clearing music for use by broadcasters and other businesses.  To highlight some of the issues, and some of the tensions in the world of music royalties, I put together the attached article.  Hopefully, it provides some context on the relationship between some of these hot topics, and gives some food for thought as to how these issues can be addressed. 

As 2023 begins, our “Hot Topics” panel will look at some of the current legal and policy issues in music licensing that may be relevant to the communications industry.  Most of the issues we will discuss are ones that have been debated, in one form or another, in copyright circles for decades.  But, as copyright can be so complicated with many stakeholders with differing interests, the chances of any final resolution to any of these issues may well be small.  This article is meant to put some of those debates in context, as many of the specific issues, in one way or another, are intertwined. 

The issue that likely will be the most contentious this year (and has been for decades) is the continuing effort of the recording industry to establish a public performance right in sound recordings that would apply to non-digital performances.  For over 25 years, recording artists and the record labels (which usually hold the copyrights to popular recordings) have had a right to a performance royalty for digital performances.  Broadcasters who stream an online simulcast of their programming, along with webcasters and others who make non-interactive digital transmissions, must pay a performance royalty, generally to SoundExchange.  The rates to be paid are set by the Copyright Royalty Board.  But in the US, over-the-air broadcasters, restaurants, bars, clubs, retail establishments, and others who publicly perform music pay only for the performance of the musical compositions (the “musical work”), not for the performance of the song as recorded by a particular artist (the “sound recording”).  That has been a point of contention for a century, almost from the moment when recorded music first appeared, but the issue has become particularly heated in the last two decades, once the sound recording public performance right was established after being mandated by copyright legislation in the late 1990s.

Continue Reading  An Overview of the Hot Policy Topics in Music Licensing

Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.

  • The Federal Trade Commission’s proposal to ban noncompete clauses in employment agreements was published in the Federal Register, setting a comment deadline of March 20, 2023.  The proposal is a broad one, proposing to prohibit any agreement that has the same effect as a noncompete agreement, including broad nondisclosure agreements that would preclude a worker from working in their field at a new company, or contract clauses that require an employee to repay a company for training costs if the employee leaves the company.  The proposed rule would apply not just to employees of a company, but also to independent contractors, interns, and others performing work for a company. 
  • The FCC’s Media Bureau issued a Public Notice announcing that the comment dates for the FCC’s 2022 Quadrennial Review of the broadcast ownership rules were set by the publication of the announcement of the review in the Federal Register.  As we reported last week when the Federal Register publication occurred, comments are due March 3, 2023, with reply comments due by March 20, 2023.  For more about the issues in this proceeding, see our article here on our Broadcast Law Blog. 
  • The Media Bureau granted an application for a construction permit for a new noncommercial education (NCE) FM station at Spencer, Iowa, providing a new wrinkle in the policies for processing mutually exclusive applications in noncommercial FM filing windows.  The Bureau allowed the Spencer applicant to file a technical amendment to eliminate its application’s mutual exclusivity with all of the other mutually exclusive applications, rendering its application grantable.  The new wrinkle was that the amendment was filed after one of the other applicants in the group of mutually exclusive applications had already been tentatively selected by the Bureau for a grant following a comparative analysis.  The Bureau found that granting the amended Spencer application would not violate the FCC’s policy of granting only one application per mutually exclusive group as there was nothing in the FCC’s rules or its NCE FM processing procedures that prohibits an applicant from filing a technical amendment to eliminate its mutual exclusivities before, or after, the Bureau or the FCC conducts a comparative analysis. The Bureau did find that a second amendment to increase power to take advantage of the dismissal of another application that was not selected as the comparative winner was improper as, in prior cases, the FCC has not allowed applicants to take advantage of the involuntary dismissal of other conflicting applications in an MX group.
  • The Bureau also issued a Memorandum Opinion and Order and Notice of Apparent Liability for Forfeiture in which it proposes to fine a low power television (“LPTV”) station $6,500 and issue it a two-year license renewal for failing to timely file an application for a license to cover the construction of facilities authorized by its digital construction permit, and thereby engaging in unauthorized operation for over two years after its construction permit expired.  License applications certifying to the FCC that the new facilities were constructed according to the specifications in the construction permit must be filed when construction is complete.  As applicants before the FCC are responsible for ensuring that their actions are consistent with FCC rules, the Bureau did not excuse the violations even though the station claimed that its failure to timely file for a license to cover was inadvertent and its actions (or lack thereof) were taken at the advice of its engineering consultant.  Although the FCC’s policies establish a base fine amount of $3,000 for the failure to file a required form, and a base fine amount of $10,000 for construction and operation without a valid authorization, the Bureau reduced the proposed fine to $6,500 because the station was an LPTV station and thus providing a secondary service.  The short-term renewal was issued to give the FCC the opportunity to sooner review the licensee’s future performance not only because of the failure to timely file the license application, but also because the Bureau found the licensee was slow to respond to FCC requests for information and often inaccurate in its FCC filings.
  • The FCC issued its Sixth Report on Ownership of Broadcast Stations, based on FCC Form 323 and Form 323-E ownership data as of October 1, 2021.  This report provides a detailed review of the ownership interests in commercial and noncommercial broadcast stations (specifically full power television, Class A television, low power television, AM radio and FM radio) by gender, race, and ethnicity. 
  • The FCC released a Public Notice announcing that it will host a symposium on “Expanding Digital and Media Ownership Opportunities for Women and Minorities” on Tuesday, February 7.  The FCC states that the symposium will feature panels discussing the competitive challenges facing minorities in media and tech, best practices for cultivating the next generation of diverse media leaders, and tax and other incentives to support diverse owners.  Symposium participants will include media companies, entrepreneurs, research and thought leaders, advertising and marketing experts, and media/tech training program representatives. 

Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.

  • On Tuesday, January 17, the Public Notice that initiates the 2022 quadrennial review of the FCC’s media ownership rules is to be published in the Federal Register.  As a reminder, the Public Notice seeks comment on (i) the Local Radio Ownership, Local Television Ownership, and Dual Network Rules; (ii) the public interest impact of the FCC’s media ownership rules, including changing market conditions; and (iii) the effects of the media ownership rules on the ownership of broadcast stations by minorities and women.  The Federal Register publication sets the comment dates for the proceeding.  Comments and reply comments will be due March 3 and March 20, respectively.   For more background on this proceeding, see our article here.
  • The Commission also released a study of Television Station Ownership Diversity conducted by an FCC staff economist.  The information provided in that study may be referenced by the FCC in its evaluation of the ownership rules.  The study found that, in the last ten years, there has been a decrease in the number of female-, Asian-, and American Indian/Alaska Native-owned stations and an increase in Black/African-American- and Hispanic/Latino-owned stations.  It found that most minority-owned station were in smaller markets, but that there was no disparity in their advertising sales compared to stations owned by white men in the same markets.  It also found, perhaps unsurprisingly, that most of the biggest billing, large market stations were held by public company with few attributable owners given the broad ownership of such companies. 
  • The FCC’s Media Bureau continues to make UHF-for-VHF channel substitutions to facilitate better technical service in local markets.  This past week the FCC substituted Channel 36 for Channel 10 at Norwell, Massachusetts, and Channel 30 for Channel 5 at Memphis, Tennessee.  In the Memphis case, the Commission found that, although there was some predicted loss of service by the channel change, the loss area was already well covered by other broadcast stations, and the licensee had also purchased LPTV stations to provide its programming to the vast majority of the loss area.  The FCC also proposed a noncommercial VHF-for-VHF substitution at Roanoke, Virginia, i.e. noncommercial Channel 13 for noncommercial Channel 3, on the theory that allowing the requesting station to move to a high-VHF channel would address viewer complaints about the quality of the station’s signal and thus improve the viewability of the station’s PBS programming.  While the Bureau noted that the proposal would cause over 64,000 persons to lose access to the station’s signal, it states that only 94 of those viewers would lose all access to all PBS programming as other PBS stations service most of the loss area. 
  • The FCC released a Public Notice providing the total number of broadcast stations licensed as of December 31, 2022. That notice continues to show a drop in the number of AM stations compared with the Public Notice released 6 months ago, with a smaller increase in the number of FM stations.  Compared to 6 months ago, there are slightly more commercial UHF stations, but slightly fewer commercial VHF stations. 
  • On our Broadcast Law Blog, we published an article linking to our Broadcasters’ Regulatory Calendar, setting out many of the routine regulatory dates that broadcasters should keep in mind in 2023. These include routine public file uploads of Quarterly Issues Programs Lists and EEO Public File Reports, as well as matters less routine, like the December 1 deadline for Biennial Ownership Reports and this year’s must-carry/retransmission consent elections.

2023 has begun – and everyone is speculating as to what the New Year will bring.  Last week, we published an article looking at some of the regulatory issues that the FCC will potentially deal with this year.  But some regulatory dates are already on the calendar, and broadcasters need to be aware of the obligations that they impose.  So, each year, at about this time, we put together a look at the regulatory dates ahead for broadcasters.  This year is no different – and we offer for your review our Broadcasters’ Regulatory Calendar for 2023.  While this calendar should not be viewed as an exhaustive list of every regulatory date that your station will face, it highlights many of the most important dates for broadcasters in the coming year – including dates for EEO Public Inspection File Reports, Quarterly Issues Programs lists, children’s television obligations, annual fee obligations, retransmission consent/must-carry elections, the Biennial Ownership Report due later this year, and much more.

There seem to be fewer dates highlighted than on last year’s calendar.  That’s because there are two sets of deadlines that are not as significant this year.  With the license renewal cycle almost at its end, the calendar just contains information about license renewals for the 4 states (New York, New Jersey, Pennsylvania, and Delaware) whose television stations have license renewal applications due in the last two renewal cycles (February 1 deadlines for New York and New Jersey TV stations, and April 1 for stations in the other two states). 

Continue Reading Broadcasters’ Calendar – A Look Ahead to the Regulatory Dates for 2023

Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.

  • In a Public Notice released late on Friday, the FCC’s Media Bureau extended the deadline for the upload of Quarterly Issues Programs lists to the online public inspection file of full-power broadcast stations.  These reports were due to be uploaded by January 10 but, as the FCC’s online public inspection file system has been experiencing technical difficulties in the new year, the Media Bureau extended the deadline to January 31, 2023.
  • The President renominated Gig Sohn for the vacant Commissioner’s seat on the FCC (nomination contained in the list, here).  She was initially nominated in 2021, but her nomination was not approved by the Senate before the last session of Congress ended at the end December, and she thus had to be renominated.  It is unclear when the Senate will consider the nomination and whether the steps taken to consider her nomination in the prior Congress (including public hearings) will need to be repeated.
    • On our Broadcast Law Blog, we posted an article listing many of the issues that will be facing the FCC in the new year, and some of the issues that may be impacted by when the new Commissioner is approved by the Senate. 
  • The Federal Trade Commission issued a Notice of Proposed Rulemaking which would ban non-compete agreements in all employment contracts (except where related to the sale of a business)(FTC “Fact Sheet” here).  The proposed rule would apply to any agreement that has the same effect as a noncompete agreement, including broad nondisclosure agreements that would preclude a worker from working in their field at a new company, or contract clauses that require an employee to repay a company for training costs if the employee leaves the company.  The proposed rules would also require that existing contracts be amended to exclude any noncompete language, and workers would have to be informed that any noncompete language is no longer enforceable.  The proposed rule would apply not just to employees of a company, but also to independent contractors, interns, and others performing work for a company.  Comments will be due 60 days after the publication of the Notice of Proposed Rulemaking in the Federal Register. 
  • The FCC’s Public Safety and Homeland Security Bureau issued a Public Notice announcing that the EAS Test Reporting System (ETRS) is now open for the filing of ETRS Form One, with a deadline for submission of February 28, 2023.  ETRS is used to report on the results of nationwide EAS tests which assess the ability of the President to get an alert out to the full country.  ETRS Form One requests basic information about contact persons at a station, the model of EAS equipment used, and monitoring assignments under the legacy EAS system.  The Bureau explains that it is important that EAS Participants confirm that the information they enter is accurate and that they correct any past filing errors.  There was no nationwide EAS test during 2022 and, while FEMA has not announced a test date for 2023, one is expected.  See the article on our Broadcast Law Blog, here, for more information. 
  • President Biden signed the Low Power Protection Act, which directs the FCC to start a proceeding to give LPTV stations Class A status if they have provided 3 hours of local programming per week in the 90 days prior to the enactment of the legislation.  Class A status means that the stations are protected against interference from any new full-power TV station or other spectrum user.  To qualify, the LPTV station must be in a DMA with not more than 95,000 households.  That is approximately DMA 175 and smaller. 
  • The FCC’s adjustment of the maximum amount of FCC fines was published in the Federal Register this week, setting the effective date of these increase as January 15, 2023.  The FCC’s Order adjusting these penalties noted that, for most violations, after the effective date of these increases, a fine shall not exceed $59,316 for each violation or each day of a continuing violation, with a maximum total fine for any continuing violation not to exceed $593,170.  For fines involving indecency, the fines can be up to $479,945 for each violation or each day of a continuing violation, with a maximum for a continuing violation of $4,430,255 for any single act.  For violations of the rules prohibiting pirate radio operations, the fine can be as much as $115,802 per day not to exceed a total of $2,316,034. 
  • The Video Division of the Media Bureau issued a list of LPTV and TV translator stations in Alaska, Hawaii, Oregon, and Washington State that did not timely file license renewal applications by the October 3, 2022 deadline.  The licenses for these stations (and their operating authority) will expire on February 1, 2023 if no application is on file by that date. 

    Late last year, the FCC announced that it would be opening the EAS Test Reporting System (ETRS) for the filing of ETRS Form One by February 28, 2023.  This week, the FCC issued a Public Notice announcing that that system has in fact been opened, and telling broadcasters that they can now file the required information.  As made clear in the Public Notice, virtually all broadcasters need to file.  This includes LPTV (with minor exceptions) and LPFM stations.  Class D FM stations, exempt from some other FCC regulations, and silent stations also need to file.  Only FM boosters and translators, and other broadcast stations (including LPTVs) that rebroadcast 100% of the programming of a “hub station” where that hub station provides a common studio or control point for all stations, do not need to file this report as long as the “hub station” files the form.  So the requirement is very inclusive. 

    ETRS Form One provides basic information about EAS participants to the FCC. The form requests basic information about contact persons at a station, the model of EAS equipment used, and monitoring assignments under the legacy EAS system.  If nothing has changed from prior Form One filings, the Public Notice says that the system provides a way to populate the form with all the information from prior filings so that it does not need to be manually re-entered (although anecdotally we have heard that even minor changes, such as a call sign change, may be problematic).  This is the first of three forms filed in connection with Nationwide EAS tests, testing the ability of the EAS system to distribute a Presidential emergency alert to the entire country.  Form Two reports on the day of the test as to whether the alert was received by a station, while Form Three is submitted after the test to provide information as to what happened during the test.

    Continue Reading FCC Announces that Broadcasters Must File EAS Test Reporting System Form One By February 28, 2023 – Almost All Broadcasters Must File

    It’s a new year, and it’s time to look ahead at what Washington may have in store for broadcasters this year.  The FCC may be slow to tackle some of the big issues on its agenda (like the completion of 2018 Quadrennial Review or any other significant partisan issue) as it still has only four Commissioners – two Democrats and two Republicans.  On controversial issues like changes to the ownership rules, there tends to be a partisan divide.  As the nomination of Gigi Sohn expired at the end of the last Congress in December, the Biden administration was faced with the question of whether to renominate her and hope that the confirmation process moves more quickly this time, or to come up with a new nominee whose credentials will be reviewed by the Senate.  It was announced this week that the administration has decided to renominate her, meaning that her confirmation process will begin anew.  How long that process takes and when the fifth commissioner is seated may well set the tone for what actions the FCC takes in broadcast regulation this year.

    Perhaps the most significant issue at the FCC facing broadcasters is the resolution of the 2018 Quadrennial Review to assess the current local ownership rules and determine if they are still in the public interest.  As we wrote last week, the FCC has already started the 2022 review, as required by Congress, even though it has not resolved the issues raised in the 2018 review.  For the radio industry, those issues include the potential relaxation of the local radio ownership rules.  As we have written, some broadcasters and the NAB have pushed the FCC to recognize that the radio industry has significantly changed since the ownership limits were adopted in the Telecommunications Act of 1996, and local radio operators need a bigger platform from which to compete with the new digital companies that compete for audience and advertising in local markets.  Other companies have been reluctant to endorse changes – but even many of them recognize that relief from the ownership limits on AM stations would be appropriate.

    Continue Reading Looking Into the Crystal Ball – What’s Coming in Broadcast Regulation in 2023 From the FCC

    Here are some of the regulatory developments of significance to broadcasters from the past two weeks, with links to where you can go to find more information as to how these actions may affect your operations.

    • The FCC, as required by the Communications Act, released a Public Notice announcing the start of the 2022 Quadrennial Review of the FCC’s ownership rules. The FCC is required, once every four years, to review their local ownership rules to see if they remain in the public interest. The Notice starts the review required for this year even though the 2018 review remains pending with seemingly little likelihood of any action as long as the FCC remains politically divided (currently two Republicans and two Democrats with one open seat). The Public Notice asks for interested parties to update the record gathered in the 2018 review to discuss, among other things, the current state of competition in the media marketplace and whether, given any changes in that marketplace, whether changes in the rules are required. For more on this Notice and its background, see our article on our Broadcast Law Blog.
      • The FCC also released its Marketplace Competition Report where, each year, it reports to Congress on the state of competition in all of the markets it regulates – including both the audio and video marketplaces. This report is provided to advise Congress on the state of competition in the communications marketplace so that the facts can be considered in connection with any legislation.
    • Congress passed the Low Power Protection Act, which directs the FCC to start a proceeding to give LPTV stations Class A status if they have provided 3 hours of local programming per week in the 90 days prior to the enactment of the legislation. Class A status means that the stations are protected against interference from any new full-power TV station or other spectrum user. To qualify, the LPTV station must be in a DMA with not more than 95,000 households. That is approximately DMA 175 and smaller.
    • The Commission released an Order adjusting for inflation the maximum penalties that can be assessed for a violation of FCC rules. For most violations, after the effective date of these increases, the fine shall not exceed $59,316 for each violation or each day of a continuing violation, with a maximum total fine for any continuing violation not to exceed $593,170. For fines involving indecency, the fines can be up to $479,945 for each violation or each day of a continuing violation, with a maximum for a continuing violation of $4,430,255 for any single act. For violations of the rules prohibiting pirate radio operations, the fine can be as much as $115,802 per day not to exceed a total of $2,316,034. These increased fines will be effective upon publication in the Federal Register.
    • The Audio Division of the Media Bureau issued a Letter asking an applicant seeking a city of license and transmitter site change for an existing FM station in Texas for more information as to why those changes were in the public interest. In seeking a change in the city of license of a radio station, the FCC looks at the areas and populations covered by the station currently and compares it to the areas and populations that will be served by the station after the proposed changes. Here, where the proposal would serve fewer people and move the city of license to a substantially smaller community, the Division’s letter suggested that the change was not in the public interest. This Letter provides a good example of the considerations weighed by the Division in assessing the public interest considerations in any city of license change.
    • The Audio Division also released a Letter decision upholding a prior decision rescinding the license of a FM translator that had been constructed at a site that was not authorized by its construction permit, and was operated from a mobile home park for only three months before being taken silent, violating the FCC’s policy requiring “permanent” construction of any facility used to meet a construction deadline so as to not waste the FCC’s time granting temporary facilities that will not make permanent use of the broadcast spectrum.
    • The Enforcement Bureau issued a Citation against a manufacturer of FM transmitters that could operate outside the FM band, did not have the proper connections for antennas to be used with the transmitter, and did not come with appropriate operator’s manuals. As noted in the Citation, all radio frequency devices marketed in the US must have FCC approval, which these transmitters allegedly did not when initially marketed. The Bureau asked for the company’s response and warned that it could impose fines of up to $22,021 for each such violation, and up to $165,159 for any single act or failure to act.
    • This past week, we published on our Broadcast Law Blog a summary of some of the most important regulatory dates for broadcasters in January.

    The new year brings a series of regulatory deadlines in January and a February 1 license renewal deadline that broadcasters should take note of.  As in 2022, the FCC will remain vigilant in making sure that its deadlines are met, so the following items should not be overlooked or left until the last minute.

    The one deadline applicable to almost all broadcasters is the January 10 deadline by which full power and Class A television stations and commercial and noncommercial full-power AM and FM radio stations must upload to their online public inspection files their Quarterly Issues Program lists for the fourth quarter of 2022.  The lists should identify the issues of importance to the station’s community and the programs that the station aired in October, November and December that addressed those issues.  As you finalize your lists, do so carefully and accurately, as they are the only official records of how your station is serving the public and addressing the needs and interests of its community.  See our article here for more on the importance of the Quarterly Issues Programs list obligation.

    January 10 is also the deadline by which noncommercial educational stations must upload to their public inspection files documentation of their on-air fundraising benefitting third parties from October 1, 2022 through December 31, 2022.  More specifically, this obligation applies to noncommercial educational stations not affiliated with NPR or PBS that conducted third-party on-air fundraising that interrupted their normal programming.  For more information about this requirement, see our article here.  January 10 is also the date by which Class A television stations should upload documentation of their continuing eligibility for Class A status based on their operations from October 1 through December 31, 2022. 

    Beginning January 1, television stations affiliated with the Top 4 Networks and operating in Nielsen DMAs 81 through 90 will be subject to the FCC’s audio description rules (those DMAs are Madison, WI; Waco-Temple-Bryan, TX; Harlingen-Weslaco-Brownsville-McAllen, TX; Paducah, KY-Cape Girardeau-Harrisburg, MO; Colorado Springs-Pueblo, CO; Shreveport, LA; Syracuse, NY; Champaign and Springfield-Decatur, IL; Savannah, GA; and Cedar Springs-Waterloo-Iowa City and Dubuque, IA).  Audio description makes video programming more accessible to individuals who are blind or visually impaired through “[t]he insertion of audio narrated descriptions of a television program’s key visual elements into natural pauses between the program’s dialogue.” Top 4 stations are required to provide audio description for 50 hours per calendar quarter, either during prime time or on children’s programming, and 37.5 additional hours of audio description per calendar quarter between 6 a.m. and 11:59 p.m. local time, on each programming stream on which they carry one of the top four commercial television broadcast networks. We previously reported here on the FCC’s reminder that these new markets are now subject to the audio description requirements.  

    Perhaps the most important obligations this month for all commercial television stations are those dealing with Children’s Television.  Each year all commercial full-power and Class A television stations must prepare and file their annual Children’s Television Programming Report (Form 2100, Schedule H – formerly Form 398).  This Programming Report shows the programming broadcast by a station to meet its obligations to provide educational and informational programming addressing the needs of children.  For more details, see our article here on the FCC’s requirements for this programming (and the articles here and here about the FCC’s amendment to those requirements).  Schedule H must be filed at the FCC by January 30.  In addition, by January 30, each full-power and Class A TV station should upload to its online public file records documenting compliance in the prior year with the limits on the number of commercial minutes that stations can allow in children’s programming.

    January dates to consider also include a number of rulemaking comment deadlines.  The FCC has extended the comment and reply comment deadlines for its Second Notice of Proposed Rulemaking on proposals to enhance the FCC’s requirements that each broadcaster verify that any program time sold to third parties (or any pre-produced programming received for free) does not come from a “foreign government entity,” i.e., a foreign government or one of its agents.  As we wrote previously, the Second Notice seeks comment on proposals to adopt an enhanced and standardized certification that all buyers of program time on any broadcast station.  Various disclosure obligations apply if the programming does in fact come from a foreign government entity.  The Second Notice also proposes that the certifications, whether or not they indicate that the program buyer is a foreign government entity, be included in a station’s online public file, and also proposes to confirm that advertising material two minutes or less in length, is not “program time” subject to the rule.  Comments are now due on January 9, and reply comments are now due on January 24. 

    The reply comment deadline for the FCC’s Notice of Inquiry on how to optimize use of the 12.7-13.25 GHz band (which is already used by broadcasters for auxiliary purposes) and on whether the band is suitable for mobile broadband or other expanded use.  Reply comments are now due on January 10. 

    Reply comments are due by January 23 on the FCC’s Notice of Proposed Rulemaking on proposals for, among other things, strengthening the operational readiness of Emergency Alert System (“EAS”) equipment, and requiring EAS Participants to report compromises of their EAS equipment, communications systems, and services to the FCC.  This proceeding would require broadcasters to adopt security programs to insure that EAS systems are not compromised by those who might want to abuse the EAS system, and for broadcasters to yearly certify to the FCC that they have adopted such security programs.  For more details about this proceeding, see our article here.

    Lastly, broadcasters who are streaming their audio on the Internet or through digital apps need to remember that the recently announced cost of living increases in the statutory royalties to be paid in 2023 to SoundExchange are effective on January 1.  For more details about the increases recently announced by the Copyright Royalty Board, see our article here.  Although payments are not due for January streaming until 45 days after the end of the month, most webcasters do need to pay their minimum annual fees by January 31 (now $1000 per programming channel) for commercial and noncommercial streams not affiliated with a school or NPR/CPB.  Also by January 31, noncommercial educational webcasters affiliated with a school or college but not covered by deals with NPR and CPB may need to make elections about recordkeeping requirements that will apply to their stations.

    Looking ahead to February, February 1 is the deadline for license renewal applications for television stations (full power, Class A, LPTV and TV translators) licensed to communities in New York and New Jersey.  Renewal applications must be accompanied by FCC Form 2100, Schedule 396 Broadcast EEO Program Report (except for LPFMs and TV translators).  Stations filing for renewal of their license should make sure that all documents required to be uploaded to the station’s online public file are complete and were uploaded on time.  Note that your Broadcast EEO Program Report must include two years of Annual EEO Public File Reports for FCC review, unless your employment unit employs fewer than five full-time employees.  Be sure to read the instructions for the license renewal application and consult with your advisors if you have questions, especially if you have noticed any discrepancies in your online public file or political file.  Issues with the public file have already led to fines imposed on TV broadcasters during this renewal cycle.

    February 1 is also the deadline by which radio and television station employment units with five or more full-time employees licensed to communities in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York and Oklahoma must upload Annual EEO Public File Reports to station online public inspection files.  This annual report covers hiring and employment outreach activities for the prior year.  A link to the uploaded report must also be included on the home page of a station’s website, if it has a website.

    As always, this list of dates is not exhaustive and comment/reply comment deadlines can change.  Always review these dates with your legal and technical advisors, and note other dates not listed here that may be relevant to your operations.