We’ve written many times about the perils of posting a photo on your website without getting permission from the photo’s owner (see, for instance, our articles here and here).  Copyright protects photos, even when they are shared on the Internet.  Just by posting a photo to some website does not mean that the owner has given up its copyright protections – and just because you can easily right-click on the image and paste it on your website doesn’t mean it is legal to do so. If you copy a photo for use on your site without permission, you should not be surprised to see a copyright infringement claim seeking damages – potentially big damages.  To avoid issues, many website owners look for ways to get permission to use photos, signing up for subscriptions from stock photo services or, often when trying to save money, relying on photos made available through some “creative commons” license.  However, relying on the creative commons license can be perilous.  One example is a recent US District Court ruling on a motion for summary judgment of a copyright lawsuit brought by a photographer when his photos of Willie Nelson and Carlos Santana appeared on a news website to illustrate articles on the musicians.  Anyone with a website should read this decision, as it addresses in detail not only the issues with these creative commons licenses, but also many of the other legal issues that arise in lawsuits about the unauthorized use of photos.

In this case, a local news website had used photos that were freely available on a creative commons site and were widely circulated on other sites.  But when they were posted to the defendant’s site, there was allegedly no attribution of the photos to the photographer and no link to the photographer’s own site, which were preconditions to the creative commons license.  Because the defendant did not follow the terms of license, the court found that the license was not effective.  The fact that these photos were otherwise widely available on the Internet similarly provided no defense to the infringement claim.  Relying on a creative commons license without scrupulous attention to any license requirements can lead to legal actions like the one brought here. In fact, the decision suggested that this was not the first lawsuit brought by this photographer, and as we’ve seen in past cases, there is no shortage of other photographers ready to make claims against those who use their work without an effective license. Continue Reading Using Photos on Your Website – Court Decision Highlights Problems with a Creative Commons License and Other Copyright Issues

Last week, we wrote about two dissenting opinions in a Supreme Court decision that highlight the debate that is underway on the principles that govern defamation liability in the United States.  While we are reviewing Supreme Court decisions that could have an impact on broadcasters, including on political advertising, we thought that we should highlight another decision of the Supreme Court, a case called Americans For Prosperity Foundation v. Bonta, Attorney General of California, that could have an even more direct effect on the political advertising disclosure obligations of broadcasters.  In that case, the Court struck down a California requirement that charities operating in California reveal to the state their major donors.  Even though the state was supposed to keep this information confidential, the Court felt that the potential for disclosure of the contributors to groups dealing with controversial issues could chill their willingness to donate to the charitable groups, due to fears of repercussions should their donations become public (thus, in effect, creating a restraint on their First Amendment right to free association).  But could this decision have a wider impact on First Amendment rights and potentially affect disclosure obligations about contributions used for political advertising?

At least one commentator, George Will, seemed to think so.  In a column that he wrote last week, he suggests that supporters of the DISCLOSE Act (we wrote about a similar bill introduced 5 years ago here) should be worried  about its constitutionality in light of this Supreme Court decision.  If creating fears about the repercussions of donations to charitable organizations is seen as constitutionally suspect, a court could draw a similar conclusion about donations to political speech organizations.  The Supreme Court’s decision does acknowledge that the government could justify narrowly tailored disclosure obligations that advanced an important government interest, and the Court has, in the past, upheld disclosure obligations for contributors to political campaigns.  But would today’s Court see things the same way?  Would it make distinctions between disclosures of donations directly to campaigns (which have been upheld in the past where they could be seen as being linked to an attempt to buy influence with a candidate) versus  donations to third-party organizations that may engage in political speech, including support or opposition to candidates, which the Court might view  as the donors exercise of its free speech rights (as were the political expenditures by corporations in the Citizen’s United case – see our articles here and here)?  Time will tell how the ramifications of the Court’s decision will play out. Continue Reading Could a Supreme Court Decision Affect Disclosure Obligations on Political Advertising?

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.

  • This week all but ends analog television operations in the US. The FCC’s Media Bureau reminded all low power television and television translator stations that their digital transition must take place by Tuesday, July 13, 2021.  By that date, LPTV and translator stations must terminate all analog television operations.  All permittees and licensees with a July 13, 2021 expiration date on their digital construction permits must complete construction of their new facilities by that date or their license or permit will be automatically cancelled unless they have received an extension from the FCC giving them more time to construct these digital facilities.  If your operations are affected by the transition deadline, read the Public Notice for more details.  (Public Notice)
  • Revised fees for broadcast applications will take effect July 15. As we noted in early January when the fees were adopted, they were adjusted to reflect the FCC’s estimation of the amount of legal, engineering, and supervisory resources spent on reviewing an application.  One of the changes was that FM translator minor modifications will now, for the first time, require a fee.  (Public Notice)
  • The FCC proposed a fine of $518,283 to Gray Television for allegedly violating the FCC’s rule that prohibits ownership of two top-four TV stations in a market. Gray was already the licensee of the NBC affiliate in Anchorage when it purchased the CBS affiliation agreement from another station and moved that affiliation to another Gray station, which resulted in the company owning two of the top-four stations in the Anchorage market.  The Commission went through a detailed analysis of its 2016 rulemaking that clarified its rules on combinations of Top 4 stations to justify its conclusion that the transaction in this case was prohibited. The amount of the proposed fine is an indication of the seriousness with which the FCC regards violations of its ownership rules.  (Notice of Apparent Liability for Forfeiture)
  • An auction of LPTV construction permits in 17 markets is on the horizon. A Public Notice released on Friday asked for comments on the rules that will govern the auction to be held among mutually exclusive applicants for these 17 channels.  These applicants had not been able to resolve their conflicts when previously given the chance by the Commission (though the Notice indicates that there will be another potential for settlements before the auction).  The applications that will be involved in this auction were initially filed in 2009.  (Public Notice)(List of channels and mutually exclusive applicants).
  • Wireless microphone company Shure has asked the FCC to reconsider its 2020 decision to expand white space device use in portions of the TV band (channels 2-35). Shure takes issue with an FCC decision on white space devices that Shure contends will limit opportunities for wireless microphones and suggests that the relaxed rules on these white space devices apply only in rural areas with less spectrum congestion.  Comments will be due within 15 days of publication of this week’s Public Notice of the filing of this petition in the Federal Register, but interested parties can read the petition now and start developing their comments.  (Public Notice)
  • The Media Bureau gave notice that the licenses of eleven Texas radio stations that did not timely file a license renewal application will be cancelled on August 1 if they do not file a renewal by that date. In recent months, the FCC fined stations that had, like these stations, filed late renewals only after an FCC reminder that they had missed the license renewal filing deadline in their state.  This notice serves to remind radio stations in California and TV stations in Illinois and Wisconsin that they should be preparing now to file their license renewal applications on or before August 2.  We wrote more about preparing for license renewal, here.  (Public Notice)
  • Prompted by dissenting opinions released this month by two Supreme Court Justices, last week we wrote on our Broadcast Law Blog about a growing debate on changes to the law governing liability for defamation of public figures, and the impact that any change would have on broadcasters in connection with their news and political sales operations. (Blog)

Next week, keep an eye out for an action by the FCC at its regular monthly Open Meeting on July 13 when it is scheduled to consider whether to seek public comment on proposals to change or delete several technical rules governing radio station operations.  The proposed changes are detailed in the FCC’s draft of the proposal, here.  The meeting will be streamed, here.

For well over 50 years, the Supreme Court’s New York Times v. Sullivan decision has governed the principles applied by the courts when assessing any claim of defamation.  That standard requires that, to find a statement about a public figure to be defamatory, not only does the statement need to be false, but it also needs to have been conveyed with “actual malice.” The Sullivan decision generally defines actual malice as writing or publishing an incorrect harmful statement knowing that the statement was false, or with reckless disregard as to whether the statement was true or not.  See our articles here and here, on this standard.  Because of this standard, the vast majority of defamation cases against public figures cannot be sustained, as it can rarely be proven that a defendant knew or should have known that a statement about a public figure was untrue.

In the recent past, there have been calls for this standard to be revisited.  Former President Trump was a big critic of the policy, thinking that he should have a greater ability to successfully sue media outlets over his claims of “fake news.”  Earlier this year, a prominent US Court of Appeals judge suggested that the doctrine should be abolished, using his dissenting opinion (at the end of this decision) to rail against big media companies and what he perceived to be their liberal bias.  This past week, two Supreme Court justices, Thomas and Gorsuch, issued dissenting opinions arguing that the Sullivan standard should change, in a case in which the Court decided not to review a lower court’s finding that a defamation case was precluded by the application of the Sullivan standards.  Justice Thomas has made this argument before (prior case here, new dissent here), but the dissenting opinion of Justice Gorsuch was the first time that he officially went on record calling for a modification of the standard. Continue Reading Two Supreme Court Justices Try to Ignite Debate on Defamation Standards – What A Change Would Mean for Broadcasters News and Political Ad Sales

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 reminded television broadcasters of their obligation to make televised emergency information accessible to persons with disabilities. Specific reminders include that emergency information provided visually during any newscast must also be conveyed verbally, and emergency information provided in the audio portion of programming must be provided on screen visually.  In addition, emergency information provided visually (e.g., through crawls) during non-news programming must be provided aurally on a station’s secondary audio program (SAP) channel.  Examples of the types of emergencies covered by the rule include pandemics, extreme weather, discharge of toxic gases, widespread power failures, industrial explosions, civil disorders, and other actionable information arising from such conditions.  (Public Notice)  (Broadcast Law Blog)
  • Though it is mid-way through 2021, the FCC is reopening the comment period in the 2018 Quadrennial Review proceeding on media ownership. It wants to refresh the docket in which initial comments were filed in mid-2019.  The issue in the proceeding likely to have the broadest impact is the consideration of possible changes to the local radio ownership rules.  The FCC seeks, among other information, updates on developments in the marketplace since the initial comments were submitted.  In particular, parties should address the impact of digital competition, including issues of access to and use of broadband, and how it should factor into revisions of the media ownership rules.  We wrote more about the 2018 Quadrennial Review, here.  Comments will be due Monday, August 2, 2021, and reply comments will be due Monday, August 30, 2021.  (Federal Register)(Broadcast Law Blog)
  • June 30 was the effective date of the reinstatement of the 2017 FCC ownership rule changes following their being upheld by the Supreme Court’s Prometheus Radio The Newspaper/Broadcast Cross-Ownership Rule, the Radio/Television Cross-Ownership Rule, and the Television Joint Sales Agreement Attribution policy have been eliminated, as was the rule that required eight independently operated stations in a market to remain after the combination of any two TV stations in that market.  We wrote in depth about the Court’s decision, here.  (Public Notice)
  • With four months remaining in the 2021 election cycle, remember that the FCC’s political broadcasting rules apply even in odd-year elections. Federal candidates (like those running in this year’s special House elections) are entitled to reasonable access and equal opportunities once the candidates become legally qualified.  State and local candidates are not entitled to reasonable access but are entitled to both equal opportunities and lowest unit rates.  See our article here for more on these requirements.  Lowest unit charges apply during the political window that opens on July 16 for the upcoming California gubernatorial recall election to be held on September 14.  The political window opens on September 3 for the November 2 general election.  See our 2020 political broadcasting guide for more information on the political broadcasting rules and answers to common questions.
  • The FCC released the final list of bidders that qualified to participate in Auction 109, the upcoming auction of AM and FM construction permits scheduled to begin on July 27, 2021. Of the 158 applicants, 114 were deemed qualified to bid during the auction.  An upstate New York construction permit that had been offered was removed from the auction.  See the Public Notice for more auction details.  (List of Qualified Bidders)  (List of Disqualified Bidders)
  • A Federal Register notice last week reminds State Emergency Communications Committees that they have one year—by July 1, 2022—to upload to the FCC’s Alert Reporting System their state EAS plan. State EAS plans must describe state and local EAS operations and contain guidelines that must be followed to activate the EAS.  (Federal Register)
  • On the legislative front this week, Sen. Ron Wyden (D-OR) introduced a media shield bill that seeks to protect journalists from having to disclose a source’s identity unless the information is necessary to prevent an act of terrorism against the United States (and to catch the perpetrator of such an act) or to prevent other imminent violence, significant bodily harm, or death. The bill also seeks to shield journalists’ communications from being secretly obtained by the federal government.  Many states have media shield laws in place, but those laws do not reach actions by the federal government.  (PRESS Act)

For more information on upcoming regulatory dates for broadcasters in the rest of July and in early August, see our article here.  And check out the Broadcast Law Blog this week when we will address how dissenting opinions in a recent Supreme Court case could signal a broader debate on the law of defamation, which could impact broadcasters both in their news coverage and in their review of political advertising to be placed on their stations.

The FCC yesterday released a Public Notice reminding TV stations and other video programming providers including cable and satellite television providers of their obligations on making emergency information accessible for all viewers.  With a few tweaks, including emphasizing that more hurricanes and wildfires occurred in the last year, the reminder is very similar to what the FCC said last year.  Here is what we wrote about that notice, equally applicable to the one released yesterday:

The FCC provides examples of the kinds of emergencies that the rules are intended to cover – which for the first time this year includes pandemics.  Other examples of the emergencies that these obligations would apply to include “tornadoes, hurricanes, floods, tidal waves, earthquakes, icing conditions, heavy snows, widespread fires, discharge of toxic gases, widespread power failures, industrial explosions, civil disorders, school closings and changes in school bus schedules resulting from such conditions, and warnings and watches of impending changes in weather.”  The details that must be conveyed to the entire audience include “specific details regarding the areas that will be affected by the emergency, evacuation orders, detailed descriptions of areas to be evacuated, specific evacuation routes, approved shelters or the way to take shelter in one’s home, instructions on how to secure personal property, road closures, and how to obtain relief assistance.”  The obligations are intended to cover not just the area where the emergency is occurring, but also in adjacent areas that may be affected by the effects of the emergency – and the obligations extend not just to the immediate time of the emergency but also to information about dealing with its aftermath.  What do these rules require? Continue Reading FCC Publishes Annual Reminder on Accessibility Obligations for Broadcast of Emergency Information

The FCC’s Public Notice soliciting updated information in its Quadrennial Review of its broadcast ownership rules, a review begun in 2018, was published in the Federal Register today, setting the deadline for initial comments as Monday, August 2, 2021, with reply comments due Monday, August 30, 2021.  As we wrote here when the Quadrennial Review began, the principal focus of this review is on radio ownership.  But it also includes questions including whether to do away with the dual network rule prohibiting the common ownership of two of the top 4 TV networks, and whether to adopt specific criteria to govern when ownership combinations of two of the Top 4 TV stations in any market will be allowed (the review is a case-by-case review now).

The updated comments are to address changes in the marketplace since the initial comments were filed in 2019 (see our post here on the FCC’s Public Notice requesting the comments).  The 2018 proceeding was stalled while issues about the FCC’s prior review of the broadcast ownership rules – issues that challenged the weight and analysis that the FCC gave to the effect of changes to ownership rules on ownership diversity – were litigated through the courts.  That litigation ended with the Supreme Court decision earlier this year reinstating the FCC’s 2017 decision to relax certain ownership rules, including the abolition of the newspaper-broadcast cross-ownership rule and the rule that required eight independent TV operators in a market before one party could own two TV stations in that market.  Now parties who have waited along time for consideration of changes to the radio ownership rules (see our articles on some of the considerations in the possible changes to those rules here and here) will have their opportunity to file new arguments about those changes – but don’t expect any quick action on these changes, particularly without a full complement of Commissioners on the FCC.  If you have something to say on the issues, file your comments on the Quadrennial Review by the now-established August 2 deadline.

 

Last week, Congressmen Ted Deutch (D-FL) and Darrell Issa (R-CA) introduced the American Music Fairness Act ( see their Press Release for more details) which would impose a new music royalty on over-the-air radio stations.  The royalty would be payable to SoundExchange for the public performance of sound recordings.  This means that the money collected would be paid to performing artists and record labels for the use of their recording of a song.  This new royalty would be in addition to the royalties paid by radio stations to composers and publishing companies through ASCAP, BMI, SESAC and GMR, which are paid for the performance of the musical composition – the words and music to a song. The new legislation is another in a string of similar bills introduced in Congress over the last decade.  See, for instance, our articles here, here, here and here on previous attempts to impose such a royalty.

Each time this idea is introduced, it has a slightly different angle.  In an attempt to rebut arguments that this royalty would impose an unreasonable financial burden on small broadcasters, the new bill proposes relatively low flat fees on small commercial and noncommercial radio stations, while the rates applicable to all other broadcasters would be determined by the Copyright Royalty Board – the same judges who recently released their decision to increase the royalties payable to SoundExchange by webcasters, including broadcasters for their internet simulcasts.  Under the bill, the CRB would review rates every 5 years, just as they do for webcasting royalty rates. Continue Reading New Legislation to Impose Sound Recording Performance Royalty on Over-the-Air Radio – What Does It Provide and What Would the Royalty Cost?

While summer has started and minds wander to vacation time, there are still many regulatory obligations to which a broadcaster must pay attention in July.  To help stay focused, we have written below about some of the important dates and deadlines applicable to broadcasters in July – and a reminder of what to be ready for when the calendar rolls over to August.

The one regular deadline applicable to all full-power and Class A TV broadcasters in July is the July 10 deadline for stations to upload to their online public file their Quarterly Issues Programs lists identifying the issues of importance to their community and the programs that they broadcast in the second quarter of the year that addressed those issues.  Prepare these lists carefully and accurately, as they are your only official records of how your station is serving the public and addressing the needs and interests of your community.  You need to first list the significant issues facing the station’s community in the second quarter.  Then, for each issue identified, you should list several programs that addressed the issue in some serious way.  For each program, the description should include the issue that the program addressed, the name of the program or segment that covered the issue, the date and time the program or segment aired, the duration of the coverage of the issue, and a narrative describing how the issue was treated.  Timely uploading of these lists to the station’s online public file is especially important during the ongoing license renewal cycle when FCC staff are looking closely at public file contents.  See our article here for more on this obligation. Continue Reading July Regulatory Dates for Broadcasters: Quarterly Issues/Programs Lists, The End of Analog TV, EAS Test Registration Requirement, Radio and TV Rulemakings, 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.

  • Congressmen Ted Deutch (D-FL) and Darrell Issa (R-CA) introduced the American Music Fairness Act which would impose a royalty payable to SoundExchange on over-the-air broadcasts by radio stations. The money collected would be paid to performing artists and record labels This new royalty would be in addition to the royalties paid by radio stations to composers and publishing companies through ASCAP, BMI, SESAC and GMR. While the proposal would impose relatively low flat fees on small commercial and noncommercial stations, those reduced fees disappear if the station has revenues of more than $1.5 million or if it is co-owned with stations with revenues of $10 million or more.  Other rates would be set by the Copyright Royalty Board. (Press Release)  The NAB has already stated its opposition to the bill, but the introduction of the bill is bound to spur debate on this issue.  Watch for more details about this legislative proposal in our Broadcast Law Blog this week.
  • The FCC’s International Bureau released its most recent list of earth stations operating in the C-Band. The updated list (see a PDF version here and an Excel version here) reflects a variety of changes to earth station registrations, including address or coordinate corrections, registration/licensee name changes due to sales or other transfers, and the removal of earth stations that were reportedly inactive and unresponsive to FCC inquiries about their status.  The list also identifies earth stations for which there is an accepted election for a lump sum payment to resolve interference issues that will be created by the clearing of parts of the C Band so that it can be used for wireless communications.  There is no indication when those lump sum payments will be made.  Review the list to make sure that any earth station that you operate is included and that all of the details of its operations are correct.  (Public Notice)
  • The Media Bureau reminded broadcast licensees that Biennial Ownership Reports are due again this year. Between October 1 and December 1, stations must file a biennial ownership report that details who owns, controls, and operates their broadcast station or stations.  (Public Notice)
  • In advance of the July 13 analog transmission cutoff for low power TV and translator stations, the FCC granted a request by the State of Alaska that allows the state to continue operating 15 analog translators for a limited time—until January 10, 2022. The state made a showing that conditions unique to Alaska make it extremely challenging to construct digital facilities and that people would lose over-the-air broadcast TV if the state did not receive an extension.  All other LPTV and TV translator stations still operating in analog must be prepared to end their transmissions July 13, the deadline for the transition of all remaining analog TV stations to digital.  More details on the circumstances of the Alaska request and extension are in the Order granting the request.
  • The FCC released the items to be considered at its regular monthly open meeting to be held on July 13. Just one broadcast item made it on the agenda – a proposal to clean up a few technical rules that apply to radio stations.  If adopted, the public will have the opportunity to submit comments on proposed changes to certain radio rules that the FCC considers outdated, redundant, or unnecessary.  Read the draft notice to see if any of the proposals affect your operations.  (Draft Notice of Proposed Rulemaking)

Watch the Broadcast Law Blog early next week for our monthly round-up of important regulatory dates and deadlines for broadcasters in the coming weeks.