Since the 1990s, the FCC’s Consolidated Database System (CDBS) has been used for filing broadcast applications.  In recent years, though, much of the filing activity has been migrated to the FCC’s Licensing and Management System (LMS).  While in some ways not as user-friendly as CDBS, LMS apparently has some advantages in, among other things, its searchability.  Given the migration that has already occurred for most FM and TV technical applications, ownership reports, and assignment and transfer applications, CDBS had few continuing uses.  Thus, the FCC yesterday announced that it is ending the filing of new applications in the CDBS system at the end of the day today, January 12, 2022, at 5 PM Eastern Time.  All filings that were still being made in CDBS and that cannot be submitted via LMS are now to be made by email to an email address set out in the FCC’s Public Notice: audiofilings@fcc.gov.

What is left that is not filed in LMS?  Filings that, until 5 PM ET today were made in CDBS, include the following:

  • AM Application for Construction Permit for Commercial Broadcast Station on Form 301
  • AM Application for Construction Permit for Reserved Channel Noncommercial Educational Broadcast Station on Form 340
  • AM Applications for Broadcast Station License on Form 302
  • Special Temporary Authority (STA) Engineering Requests and Extension of Engineering STA Requests for all audio service stations
  • Silent STA / Notification of Suspension/ Resumption of Operations / Extension of Silent STA Requests for all audio service stations
  • Change in official mailing address
  • AM Digital Notification on Form 335-AM
  • All-Digital AM Notification on Form 335-AM
  • FM Digital Notification on Form 335-FM
  • Amendments to pending applications previously submitted in CDBS
  • Pleadings (Petitions to Deny, Informal Objections, Oppositions, Replies, Supplements, Petitions for Reconsideration and Applications for Review) concerning applications submitted through CDBS or using the email procedures that had previously been instituted for some of the above-listed applications in recent years.

In connection with the last bullet, the FCC noted that some parties had been filing pleadings related to applications filed in CDBS in LMS (which usually contains a reference to the CDBS-filed application).  The FCC asks that pleadings filed in connection with applications submitted through CDBS be filed with the email system described above, and not through LMS.  Pleadings concerning LMS-submitted applications should, of course, be filed in LMS. Continue Reading FCC Announces End of Filings in their CDBS Database As of 5 PM Eastern Time Today! 

The FCC, at its January 27 monthly open meeting, will be voting on the adoption of two relatively minor changes to its political broadcasting rules.  While some press reports suggested that the changes would expand the FCC’s jurisdiction into online political advertising, in fact the draft of the FCC’s Report and Order released last week shows that the two rules at issue deal exclusively with over-the-air political advertising.  Moreover, as we wrote here when the proposals were first advanced for public comment, the changes to be adopted are almost ministerial clean-ups of FCC rules, having little substantive effect on the current political sales practices of most broadcasters.

These two rule changes are likely to be adopted at the end of the month by a 4-member FCC that is still evenly divided between Democrats and Republicans.  The first one deals with the showing that needs to be made by a write-in candidate to show that the candidate is “legally qualified” and thus entitled to take advantage of the FCC’s political broadcasting rules. The second change would conform the FCC’s rules to the already existing statutory provisions that require broadcasters to include, in their online public files, information about the sale of advertising time to non-candidate buyers who convey a message on a matter of national importance, i.e., a federal issue ad. Continue Reading FCC Plans to Adopt Two Minor Changes to its Political Broadcasting Rules – What is Being Changed?

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

  • The FCC this week announced that it will vote on two items of interest to broadcasters at its next Open Meeting on January 27.
    • The FCC will likely make two minor changes to its political broadcasting rules.
      • The first will add use of social media and creation of a campaign website to the factors to consider when determining if a write-in candidate has made a “substantial showing” of a bona fide campaign for office so that the candidate can be considered a “legally qualified candidate.” Legally qualified candidates are entitled to all the protections of the FCC’s political rules, including equal opportunities, lowest unit rates and, for federal candidates, reasonable access to buy advertising time on commercial broadcast stations.  In the current rules, the factors that a broadcaster is to consider in assessing if a substantial showing has been made are matters including whether the candidate is actively campaigning by making speeches and hosting rallies, if they are passing out literature and putting up yard signs, and whether they have a campaign headquarters.  Digital media activity will now be considered – though the FCC is poised to say that websites and social media will never, alone, be sufficient to show that a write-in candidate is legally qualified.
      • The same order will also update the FCC’s rules on the political file to require that stations upload to their online political file information about any request to buy federal issue advertising. Stations already are required to upload this information, as it’s mandated by the Communications Act, but the FCC rules were never updated to reflect this 20-year-old statutory requirement.  The FCC will not be making any substantive changes to the requirements, but instead will only be updating its rules to spell out what is already required by the Act.
      • The FCC’s Draft Report and Order spells out the proposed changes to be considered at the January 27 meeting. We wrote about both proposed changes when they were first announced, here.
    • The FCC plans changes to how white space devices that operate in unused portions of the TV band would receive operational information from white space databases about the use of wireless microphones in the areas where the devices operate.  The new rules would require that the devices check the databases at least once per hour, replacing a current rule that has not been enforced which requires the databases to push information about wireless microphone use whenever there is new microphone use in the area.  The FCC believes this will better protect wireless microphones (used for newsgathering and other unplanned purposes) as push notifications might not be received by all the white spaces devices (and verifying receipt of such notices might not be technically feasible).  (Draft Second Order on Reconsideration)
  • Performing rights organization Global Music Rights and the Radio Music License Committee (RMLC) announced a confidential settlement this week in their long-running dispute over the royalties that GMR can charge commercial radio stations. (Letter to Radio Broadcasters). The terms of the settlement have not been disclosed, but commercial stations represented by RMLC should have received a proposed license agreement to review. The settlement depends on enough stations agreeing to the terms of the license agreement by January 31, so don’t delay checking with your station’s counsel and advisors to see if signing the agreement makes sense for your operation.  We wrote at length about the settlement, here.
  • The FCC reported that there were about 100 fewer broadcast stations licensed at year-end 2021 than there were at the end of 2020. Decreases were seen mostly in the number of AM, commercial FM and low power FM stations.  (Station Totals as of December 31, 2021)

A conditional settlement of the long-running litigation between Global Music Rights (GMR), a relatively new performing rights organization formed to license the public performance rights to certain musical works, and the Radio Music License Committee (RMLC) was announced this week.  The terms of the agreement are confidential, so we can’t comment on the specifics of the deal.  But each commercial radio station represented by RMLC should have received a proposed license agreement from GMR.  The settlement will only be effective if an undisclosed number of radio broadcasters agree to the terms of the agreement by January 31, 2022.  For stations that do not agree by that date, or if not enough stations opt into the agreement causing the settlement to fail, the press release about the agreement says that GMR has made no commitment to extend the current interim license (about which we wrote here) beyond its current expiration date of March 31, 2022.  Thus, stations would need to otherwise negotiate an agreement with GMR, pull GMR music from their stations, or risk a lawsuit for playing the music without permission.  If your commercial radio station did not receive a communication from GMR in the last few days, and if you play any GMR music and you are not covered by an independently negotiated agreement, you should discuss with counsel whether you should reach out to GMR to see why you were not offered a license.  Similarly, if not all your stations were included in the offer you received, discuss with counsel whether to communicate with GMR.

While we cannot comment on the specifics of the deal because it remains confidential, there are some observations that can be made based on the public statement released by RMLC and GMR.  One of the first questions is why the settlement is conditioned on enough stations agreeing to it by January 31.  First, it is important to note that the agreement by RMLC to any royalty with any music rights organization does not bind all commercial broadcasters, or even RMLC’s members, to accept the deals that it has negotiated.  See, for instance, the agreements in the last few years with ASCAP, BMI and SESAC, all of which required broadcasters who wanted to be covered by the negotiated agreement to opt in by a date certain.  While a wide cross-section of broadcast companies is represented on the Board of RMLC which approved this agreement, the Board members do not bind their companies or the rest of the radio industry to accept the terms that were negotiated. Continue Reading GMR and RMLC Announce Confidential Settlement on Music Royalties for Commercial Radio Stations – Broadcasters Must Decide Whether to Opt In by January 31

As 2021 wound down, there were significant developments on SoundExchange royalties for webcasters – including broadcasters who simulcast their on-air programming through IP channels (such as on their websites and on mobile apps).  While we covered many of these matters in our weekly Sunday updates on regulatory matters of importance to broadcasters, we thought that it would be worth summarizing all of the action in one place.  Most, but not all, of these developments follow from last year’s  Copyright Royalty Board decision  raising webcasting rates for 2021-2025 (see our article here summarizing that decision).

The CRB’s decision was published in the Federal Register in October 2021.  As of that date, all webcasters, if they had not already been doing so, should be paying the higher royalties ($.0021 per song per listener in 2021 for nonsubscription streams).    SoundExchange has appealed the CRB’s decision (presumably to argue the rates should have been set even higher), as have the NAB and the National Religious Broadcasters Noncommercial Music License Committee.  These appeals are pending and likely will be briefed and argued sometime in 2022.  If you have not trued up your payments (the increase in royalties was retroactive to January 1, 2021), consult your legal advisor as to the effect that these appeals may have on your responsibility for that true-up. Continue Reading A Look at Developments in SoundExchange Webcasting Royalties (Including for Broadcast Simulcasts) From the End of 2021

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

  • The FCC released the results of the August 11 Nationwide EAS Test, finding that, compared to the 2019 test (the 2020 test was cancelled due to the pandemic), this year’s test message reached more EAS participants (89.3% in 2021 vs. 82.5% in 2019) and it was retransmitted successfully more than it was two years ago (87.1% in 2021 vs. 79.8% in 2019).  However, the FCC received reports on the test from only 75.3% of participants, down from 78.6% in 2019.  79.9% of radio broadcasters filed their reports, and only 67.9% of TV stations – with LPFM and LPTV stations representing many of the non-reporting stations.  The FCC noted that ensuring, for future tests, increased compliance with the mandatory reporting requirement will be a priority. (Nationwide EAS Test Report).
  • The date for filing comments on the FCC’s proposal to change the rules for proofing of FM directional antennas was pushed back. Comments are now due by January 20, with reply comments due by February 4.  This proceeding seeks comments on proposals to allow the patterns for directional FM antennas to be verified by computer modeling as opposed to real-world testing.  (Public Notice)
  • Senators Roy Blunt and Ron Wyden introduced the Low Power Protection Act, a bill to open a new window during which LPTV stations that originate at least 3 hours of local programming could qualify for Class A status, meaning that they would be protected from being bumped off their channels by future applications by full-power stations (and these stations would have to be protected if the spectrum allocated to TV was further reduced at some future time, as it was as a result of the Incentive Auction). The bill, as proposed, would only allow new Class A stations in DMAs with 95,000 television households or fewer – approximately DMA 175 and below.  (Press Release)   The bill has not been introduced in the House of Representatives, and will need substantial Congressional consideration before becoming law.
  • The licensee of several Kansas radio stations entered into a consent decree with the Media Bureau because a number of its stations were silent for long periods of time without receiving special temporary authority from the FCC. The FCC requires Commission notification if a station is silent for 10 days, and an STA must be requested when a station is silent for 30 days.  The licensee will pay a $7000 fine and the stations will receive a 1-year license renewal term, instead of the typical 8-year term.  (Order and Consent Decree).
    • In another decision released last week, the FCC proposed to fine another broadcaster $17,500 for not timely requesting an STA when its AM and associated FM translator went silent, plus its failure to amend its pending license renewal application to report that the stations were silent for several months while the renewal was pending – even though the renewal specifically asks if the station whose renewal is sought is silent. The licensee had also failed to complete and timely upload multiple Quarterly Issues Programs lists to its public file (Order and Notice of Apparent Liability)
  • The Media Bureau entered into a consent decree with a radio licensee requiring a $5000 fine because of several violations, including the licensee’s failure to maintain station logs, its failure to upload (or timely upload) certain documents to its online public file, and because its FM translator stayed on the air for extensive periods of time when its primary AM station was not operating, a violation of the rules that prohibit translators from operating when their primary stations are not operating during their authorized hours. This is a reminder to pay close attention to your operations and be sure that you are complying with all applicable FCC rules.  (Order and Consent Decree)
  • The FCC proposed to delete 7 vacant FM channels that were included in the last two FM auctions but received no bids in either auction. The channels proposed for deletion are ones in Snowflake, AZ; Millerton, OK; Powers, OR; Mount Enterprise, TX; Paint Rock, TX; Hardwick, VT; and Meeteetse, WY.  Comments on the proposed deletions are due February 14, with reply comments due March 1.  If no party expresses an interest in operating a station on these channels, or files a counterproposal to move the channels elsewhere, they will be deleted.  (Notice of Proposed Rulemaking)
  • The FCC cancelled Auction 111 after the only mutually exclusive applicants entered into a settlement agreement. The auction was to be a closed auction of LPTV and TV translator construction permits for applicants who submitted mutually exclusive applications either during a 2009 filing window for new LPTV stations or in a 2018 window for stations displaced by the Incentive Auction.  With no mutually exclusive applications to be resolved by competitive bidding, there is no longer a need for an auction.  (Public Notice)
  • The FCC announced its annual calculation of the increase to account for inflation in fines whose amounts are set by the Communications Act. The announced increases include fines for broadcast indecency.  For 2022, indecency fines can be as high as $445,445 for each violation or for each day of a continuing violation, except that the amount assessed for any continuing violation shall not exceed a total of $4,111,796. (FCC Order)

For a summary of the some of the important regulatory dates in January and early February, review our monthly feature on our Blog that looks at dates and deadlines for month ahead.  (Broadcast Law Blog)

As the holiday season comes to an end and 2022 comes into focus, broadcasters have several dates and deadlines to keep up with in January and early February.  We have noted below some of the important dates you should be tracking.  However, as always, stay in touch with your station’s lawyers and other regulatory advisors for the dates applicable to your operations.  We wish you a happy, healthy, and successful New Year – and remembering to track important regulatory dates will help you  achieve those ends.

Let’s start with some of the annual dates that always fall in January.  By January 10, full-power radio, TV, and Class A licensees should have their quarterly issues/programs lists uploaded to their online public file.  The lists are meant to identify the issues of importance to the station’s community and the programs that the station broadcast in October, November, and December that addressed those issues.  Prepare the lists 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 post here for more on this obligation. Continue Reading January Regulatory Dates for Broadcasters: Issues/Programs Lists; Digital LPTV Deadline; Audio Description Expansion; Children’s Programming, Webcasting Royalties; NCE FM Settlement Window; and More

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

  • Music licensing organization Global Music Rights (GMR) has agreed to a three-month extension of its current interim licensing agreement. GMR and the Radio Music License Committee (RMLC), which represents commercial radio broadcasters, have been in court for years arguing over whether GMR’s royalty rates should be subject to antitrust regulation.  According to the letter announcing the extension, it appears that GMR and RMLC are seriously discussing a settlement to resolve their litigation.  We wrote more about the litigation and this extension of the interim license on our Broadcast Law Blog, here.  See the joint RMLC-GMR letter announcing the extension, which contains a link to the form used to sign up for the extension, to be completed by December 29.
  • The FCC announced that comments are due by February 11, 2022, with reply comments due by March 14, 2022, on an FCC proposal to allocate responsibility for multicast streams that are originated by one TV station and hosted by another during the ATSC 3.0 Next Gen television transition. Under the proposal, these multicast streams will be considered part of the license of the originating station, not the station that is hosting the channels.  The proposal would include not just the required ATSC 1.0 “lighthouse signals” originated by a station that has already converted to ATSC 3.0 but hosted by a station that has not converted, but also the program stream of an unconverted station hosted on a station that has converted to Next Gen TV.  (Public Notice)
  • At its last Open Meeting of 2021, the FCC adopted a Notice of Proposed Rulemaking and Notice of Inquiry that seek ways to make the visual component of EAS alerts on TV stations more accessible to viewers who are deaf or hard of hearing. As proposed, the on-screen messages that accompany alerts would be made more uniform so that they are clearer and more descriptive.  Broadcasters would also be required to check for and use the Common Alerting Protocol (CAP) version of an EAS alert, if one is available, as these IP-based alerts have more robust visual information.  The Notice of Inquiry asks for ideas on how the legacy, over-the-air “daisy chain” EAS architecture can be redesigned to deliver better visual messaging.  Comment periods on the NPRM and NOI will be set after publication in the Federal Register.  (NPRM, NOI, and News Release)
  • The FCC issued a $3,500 penalty to a licensee for failing to file a license application when it finished construction of a new FM translator. The license application tells the FCC that the station is on the air and operating and allows the FCC to confirm that it was constructed as approved by the new station’s construction permit.  By not filing the license application, the station was operating without authorization.  Work with your technical and legal advisors to be sure you are filing all of the required documentation when you put a new station on the air or modify a station already operating.  (Forfeiture Order)
  • A North Dakota TV licensee filed must-carry complaints against two local MVPDs for their refusal to carry the licensee’s TV station. The MVPDs claimed that the station was unable to deliver a good quality signal, so the station was not entitled to must carry.  The FCC rejected the MVPDs’ arguments, finding that as the station had agreed to assume all costs necessary to provide a good quality signal to the system’s headend, the systems must carry the station.  (Order)
  • Monday was the deadline to file for a place on the primary ballot for candidates for Texas elective offices to be decided in the November 2022 elections. While Texas’ primary, currently scheduled for March 1, is the earliest in the 2022 election cycle, other states will follow soon.  See our Broadcast Law Blog article here for more information on the political advertising issues that you should be considering now in preparation for the upcoming elections.
  • The Senate Commerce Committee approved the nomination of Alan Davidson to be head of the National Telecommunications and Information Administration. NTIA oversees federal government spectrum policy.  Look for Senate leadership to try to get Davidson confirmed by the full Senate by the end of the year.

According to a joint letter posted on the Radio Music License Committee (RMLC) website, GMR and the RMLC are discussing  a settlement of their long-running litigation over the royalties that the commercial radio industry will pay for the public performance of music written by GMR composers.  We last wrote about GMR here when, earlier this year, they last extended their interim license offered to commercial radio stations, with a substantial increase in the amount that stations needed to pay to remain licensed during the litigation.  The joint letter says that the interim license will be extended for another 3 months while the parties work on this possible settlement.  Stations will not receive any direct notice about the need to extend their licenses from GMR.  Instead, stations are to go to the GMR website at https://globalmusicrights.com/interimextension to complete a form to remain licensed after the end of December.

As background, GMR is a new performing rights organization. Like ASCAP, BMI and SESAC, it represents songwriters and collects royalties from music users for the public performance of these songwriter’s compositions. GMR collects not only from radio stations, but from all music users – it has already reached out to business music services that provide the music played in retail stores, restaurants and other businesses, and no doubt has or will license other companies that make music available to the public. Most songwriters represented by GMR used to be represented by ASCAP or BMI, but these songwriters have withdrawn from ASCAP and BMI and joined GMR, allegedly to attempt to increase the amounts that they are paid for the use of the songs that they have written. For radio, these withdrawals became effective in January 2017, when the old license agreements between ASCAP and BMI and the commercial radio industry expired.  Since then, radio stations have been signing interim licenses to play GMR music. Continue Reading Another GMR Extension Offered for Commercial Radio Music Licenses – And a Possibility of a Settlement of the Litigation with the RMLC? 

The deadline for 2022 candidates in Texas to file for a place on the March 1 primary ballot was this past Monday.  Deadlines in other states will follow during the first part of 2022.  As a result, broadcast stations and cable companies in Texas are already dealing with legally qualified candidates, and the FCC political rules that attach to those candidates.  Stations in other states will follow soon.  Even before these deadlines, stations are dealing with buys from potential candidates, PACs, and other third-party groups looking to establish positions for the important 2022 elections. Spending on political advertising is sure to increase as the new year rolls around, and some suggest that it could rival that spent in 2020. What should broadcast stations be thinking about now to get ready for the 2022 elections?

We have written about some of the issues that broadcasters should already be considering in our Political Broadcasting Guide (which we plan to update shortly). Obviously, one of the primary issues is lowest unit rates, which become effective 45 days before the primaries (or before any caucus which is open to members of the general public). In Texas, those rates will begin in mid-January for the March 1 primary, and lowest unit charge (“LUC”) windows will open in other states throughout the first part of 2022.  With these rate windows soon to be upon us, stations should begin the process of determining what rates will apply during the window, as stations are no doubt now writing packages with spots that will be running during the window.  In addition to our Political Broadcasting Guide, we wrote about other issues you should be considering in determining your lowest unit rates here.  These articles provide just an outline of issues to consider in determining the rates that will apply in the window, so start conversations now with your attorney and political advertising advisors to make sure that these rates are being determined accurately and in compliance with FCC rules and policies. Continue Reading Candidate Filing Deadline for the Primaries in the Texas 2022 Elections Just Passed – What Should Your Station, No Matter Where It Is, Be Doing to Prepare for the Coming Election Advertising Deluge?