The past week was another light one for broadcast regulation at the FCC.  But here are some actions of note for broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • Two Kentucky FM translator stations filed their license renewal applications nearly four months late and now face $1,500 fines. From time to time, the FCC has announced that numerous stations failed to file their renewal applications on time during this license renewal cycle, putting at risk their authority to operate.  These cases also remind broadcasters to remember to renew their translator licenses as well as those for their primary stations.  Be sure to mark your calendar with your renewal filing deadline date (radio dates here; TV dates here) and start your preparations early.  Radio stations in Texas and TV stations in Indiana, Kentucky, and Tennessee are the next groups to file for renewal and must do so by April 1.  (W278BK Notice) (W280FH Notice)
  • TVNewsCheck published our updated high-level look at the state of play in Washington for broadcast television issues. This is a good resource to learn about new issues and to get caught up with the latest on issues that have been around for a while.  (Broadcast Law Blog)
  • We wrote about the “performance complement” and other music licensing issues while we wait for the Copyright Royalty Board to say how much webcasters(including broadcasters who simulcast their over-the-air programming on the internet) will pay for the public performance of sound recordings for 2021 through 2025.  (Broadcast Law Blog)

We are waiting on the Copyright Royalty Board to release its decision setting the royalties that webcasters (including broadcasters who simulcast their over-the-air programming on the Internet) will pay to SoundExhange for the public performance of sound recordings in the period 2021 through the end of 2025.  As we wrote here, that decision would normally have been released in December but, as the trial to establish those rates was delayed by the pandemic and held virtually over the summer, the decision on rates could come as late as this April, though once effective it will be retroactive to all streaming that has occurred since January 1 of this year.  While we await the announcement of the new rates, as I’ve recently received several questions about the rules that apply to streaming under the statutory license, I thought that I would take a quick look at the “performance complement” and other rules that apply to companies that rely on this license.

Note that the rules set out below are slightly different for certain broadcasters, as the NAB in 2016 entered into agreements with Sony and Warner Music Groups to waive certain of the statutory requirements for broadcasters who stream their over-the-air signals on the Internet.  These agreements allow broadcasters to stream their normal over-the-air programming featuring music from these labels without having to observe all of the obligations set out below.  We summarized those waivers here, and hope that they will be further extended to cover the new royalty term.  Also, some big webcasters have negotiated relief from these requirements (see our article here).  But for those not subject to a waiver, let’s look at some of the rules that webcasters relying on the statutory license are to observe. Continue Reading Looking at the Performance Complement and Other Rules that Apply to Webcasting Companies Relying on the Sound Recording Statutory License

Where do all the Washington DC legal issues facing TV broadcasters stand in these early days of a new Administration? While we try on this Blog to write about many of those issues, we can’t always address everything that is happening. Every few months, my partner David O’Connor and I update a list of the legal and regulatory issues facing TV broadcasters. That list of issues is published by TVNewsCheck.  The latest version, published today, is available on their website here. It provides a summary of the status of legal and regulatory issues ranging from the adoption of the ATSC 3.0 standard at one end of the alphabet to White Spaces and Wireless Microphones on the other – with summaries of the status of the FCC’s consideration of other issues including issues such as Ownership Rule Changes, Children’s Television, C-Band Earth Station repacking, DTS, EEO, Political Advertising, Sponsorship Identification and dozens of other topics, many with links to more detailed discussions here on the Blog.

This is an easy place to go to see where, as of last week when we finished writing the article, legal matters related to TV broadcasting stand.  Of course, the status of these issues changes almost daily, so watch this Blog and other trade publications, and consult your own legal counsel, for the latest Washington news of interest to broadcasters and to you and your operations.

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

  • Often when a new administration takes over and a new Chairperson is installed at the FCC, some of the agency’s non-routine work slows down as the new Chair and her staff look to align the bureaus and offices with their priorities. The last week under Acting Chairwoman Jessica Rosenworcel has been no exception to this, with few public releases coming out of the Media Bureau.  But the FCC’s routine work, like license renewals, EEO filings, and comment deadlines, continues and our monthly feature on broadcast regulatory dates and deadlines highlights some of these upcoming obligations.
  • With the Super Bowl next Sunday, if you are planning any advertising or promotions tied to the game, we published an article by our law partner Mitch Stabbe on how broadcasters and advertisers can steer clear of the NFL’s aggressive efforts to protect its Super Bowl trademarks and other intellectual property rights. (Broadcast Law Blog)
  • Parties interested in the future of copyright law and the Copyright Office should note that Sen. Thom Tillis (R-NC) has drafted legislation on various copyright topics and is accepting comments on the legislation through March 5th. The legislation seeks changes to the Copyright Act which would, among other things, lessen protections that online services have from infringement claims about user-generated content, as well as changing the organization and authority of the Copyright Office.  Legislators do not often release draft legislation this far in advance and ask for public input, so, as these changes would affect all media companies, be sure to take advantage of the open process and send in your ideas.  We wrote about the draft legislation, here.

During the holidays, we did not get a chance to mention the draft legislation circulated by Senator Thom Tillis (R-NC) proposing changes in the Copyright Act, including the provisions of the Digital Millennium Copyright Act that created Section 512 of the Act – the safe harbor for user-generated content.  The legislation also proposes other changes in the law, including changing the structure of the Copyright Office by making it an Executive Branch agency with substantive rulemaking authority, as part of the Commerce Department.  The legislation (a full copy is available here and a summary can be found here) was not formally introduced in the waning days of the last Congress.  Instead, Senator Tillis released it for public comment with the intent that the draft would be refined based on those comments before being formally introduced for legislative consideration.  The Senator is seeking comments by March 5, 2021 from all interested parties to determine how the proposals would affect their interests.  Press releases from his office indicate that he is seeking input from a broad array of interests, from the creative community to the tech companies that use copyrighted content to consumers who may find that the platforms they use might police content differently if there are changes in the law.

Reform of the DMCA safe harbor provisions has long been sought by copyright holders who feel that the insulation from liability afforded to tech companies who host content created by others has led to widespread infringement of copyrighted materials.  We wrote at length about these issues in 2016 when the Copyright Office itself reviewed questions about user-generated content (see, for instance, our articles here and here).  In many ways, the issues with Section 512 are similar to those about Section 230 of the Communications Decency Act – the extent to which big tech companies hosting user-generated content should be liable for that content and should take efforts to police content on their platforms.  Section 230 provides insulation from civil liability other than that which arises under the intellectual property laws (so it protects online hosting companies from liability for matters including defamation or invasion of privacy – see our post here), while Section 512 provides insulation from liability for intellectual property infringement.  However, the Section 512 procedures for obtaining insulation from liability are different from, and in many cases are more stringent than, those under Section 230. Continue Reading Proposal for Reform of Copyright Act Released for Public Comment – Including Changes for the Safe Harbor for User-Generated Content, the Status of the Copyright Office, and Orphan Works

With the federal government and the FCC under new management, Acting Chairwoman Jessica Rosenworcel may well take the Commission in a direction that aligns with the policies she supported during her time as a Commissioner.  It is notable that, no matter what policies she advances, the routine regulatory dates that fill up a broadcaster’s calendar are generally unchanged.  Some of the dates and deadlines which broadcasters should remember in February are discussed below.  Given the transition period that we have just been through, the number of February dates are somewhat lighter than in most months – but that is sure to pick up as everyone settles into their new roles at the FCC.

On or before February 1, radio stations in Kansas, Nebraska, and Oklahoma and television stations in Arkansas, Louisiana, and Mississippi must file their license renewal applications through the FCC’s Licensing and Management System (LMS).  Those stations must also file with the FCC a Broadcast EEO Program Report (Form 2100, Schedule 396) and, if they are part of a station employment unit (a station or a group of commonly owned stations in the same market that share at least one employee) with 5 or more full-time employees, upload to their public file and post a link on their station website to their Annual EEO Public Inspection File report covering their hiring and employment outreach activities for the twelve months from February 1, 2020 to January 31, 2021.  TV and radio stations licensed to communities in New Jersey and New York which are part of an employment unit with 5 or more full-time employees also must upload to their public inspection file their Annual EEO Public Inspection File report by February 1. Continue Reading February Regulatory Dates for Broadcasters: License Renewals, EEO Reporting, KidVid Reports, Zonecasting Comments, FCC Open Meeting, and More

For the last five years, I have posted guidelines about engaging in or accepting advertising or promotions that directly or indirectly reference the Super Bowl without a license from the NFL.  As hard as it may be to believe, the NFL has almost made its way this season to another championship game, so here is an updated version of my prior posts.

The Super Bowl means big bucks.  It is estimated that each of the three television networks that broadcasts the Super Bowl pays the NFL over $1 billion per year for the right to broadcast NFL games through 2022, including the right to broadcast the big game on a rotating basis once every three years.  The investment seems to pay off for the networks.  Reportedly, it cost $5.6 M for a 30-second spot during last year’s Super Bowl broadcast and national advertising revenue totaled $448.7 M, not counting income from ads during any pre-game or post-game programming.  (In addition to the sums paid to have their commercials aired, some advertisers spend millions of dollars to produce an ad.)  In addition, the NFL receives hundreds of millions of dollars from licensing the use of the SUPER BOWL trademark and logo.

Given the value of the Super Bowl franchise, it is not surprising that the NFL is extremely aggressive in protecting its golden goose from anything it views as unauthorized efforts to trade off the goodwill associated with the mark or the game.  Accordingly, with the coin toss almost upon us, advertisers should take special care before publishing or engaging in advertising or other promotional activities that refer to the Super Bowl.  Broadcasters and news publishers have greater latitude than other businesses, but still need to be wary of engaging in activities that the NFL may view as trademark or copyright infringement.  (These risks also apply to other named sporting events, for example, making use of the terms “Final Four” or “March Madness” in connection with the annual NCAA Basketball Tournament.) Continue Reading Stay A Lot More Than Six Feet From The NFL’s Trademarks!  2021 Update on Super Bowl Advertising and Promotions

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

  • President Joe Biden named Jessica Rosenworcel as Acting Chair of the FCC, where she will set the agenda for the Commission until a permanent Chair is appointed (and she may be a candidate for that permanent position). The Biden administration has not said when it will name a permanent chair.  (News Release)
  • The U.S. Supreme Court heard oral argument in Federal Communications Commission, et al. v. Prometheus Radio Project, et al., the Court’s review of the FCC’s 2017 media ownership rule changes. The changes at issue include the abolition of the newspaper-broadcast cross-ownership rule and several local TV ownership restrictions.  A decision in the case is expected by early summer.  Audio of the argument and a written transcript are available, here.  In an article, here, we looked at the argument and how the Court’s decision could impact the future review of ownership issues by the Commission.
  • The FCC issued new technical rules regarding the use by TV stations of Distributed Transmission Systems (DTS) (also known as single frequency networks). The new rules expand and clarify the permissible range of “spillover” beyond a station’s protected contour.  DTS gives stations a more uniform signal strength throughout their service area which would be beneficial to new services that can be offered with the ATSC 3.0 (Next Gen TV) transmission standard.  (Report and Order)
  • A Georgia low power FM station settled an FCC investigation by acknowledging it violated the underwriting rules for noncommercial stations and agreeing to pay a $10,000 fine. The station was paid by a for-profit entity to air nine announcements that included prohibited promotional references.  (Order)
  • As we noted in last week’s summary, the Department of Justice declined to act on the ASCAP and BMI consent decrees. We took a deeper look, here, at what this means for the future of the consent decrees and the state of play in the music licensing world.

On Tuesday, as has been covered in most of the broadcast trade press, the US Supreme Court held its oral argument in the Prometheus case.  In this case, the FCC and a number of media companies seek to overturn the Third Circuit’s decision that threw out the FCC’s 2017 media ownership rule changes.  As we wrote here, these changes included the abolition of the newspaper-broadcast and radio-TV cross-ownership rules, the abolition of the “rule of eight” that requires that there be eight independent TV owners in a market to allow the common ownership or control of two TV stations in a market, the allowance in some cases of the common ownership of two of the top 4 TV stations in a market, and the determination that TV joint sales agreements are not attributable.  When the Third Circuit overturned the 2017 decision, those changes were undone (see our article here).  In addition, the Third Circuit’s basis for its decision was that the FCC had done an inadequate job assessing the effect that relaxations in the media ownership rules might have had on minority ownership in the past and how diversity of ownership would likely be affected by the 2017 changes (looking for historical information the FCC claimed not to have).  As a result, all other changes in the FCC’s media ownership rules have been put on hold, including proposed changes to relax the radio ownership rules because if the Third Circuit decision is upheld, any further changes in the local ownership rules have to make that same showing.

The argument on Tuesday went like so many court arguments – there were lots of questions directed by the Justices to all parties in the case.  While there were some questions about whether the FCC had adequately justified its 2017 decision, there seemed to be many questions focused not on whether to overturn the Third Circuit decision, but instead on whether to overturn it on narrow grounds (that the FCC had justified the need for reform of its ownership rules despite any impact it might have on minority ownership and the courts should defer to the opinion of the expert agency), or whether to come out with a more sweeping ruling that says that the statute calling for Quadrennial Reviews of the FCC’s ownership rules makes competition issues the guiding factor in assessing whether or not to relax existing ownership rules, and that ownership diversity is at most a collateral or secondary consideration.  If the Court in fact decides to overturn the Third Circuit, the basis of the decision could impact future ownership proceedings.  What is next for those proceedings? Continue Reading The Supreme Court Argument on Media Ownership – What’s Next?

In 2019, the Antitrust Division of the US Department of Justice began a review of the court-administered antitrust consent decrees that have bound ASCAP and BMI since the 1940s.  We wrote about the issues in their review here.  The formal review of these decrees began as part of the DOJ’s broader review of its antitrust consent decrees covering many different industries.  The DOJ received almost a thousand comments on the questions that it asked about the ASCAP and BMI decrees.  It also held public roundtables as well as private discussions with interested parties during its review.  Last week, Makan Delrahim, the outgoing head of the Antitrust Division, presented remarks at a Vanderbilt Law School virtual event where he said that the review would be ending without any proposals for reform.  While the statement notes some of the reforms that were sought by the music industry, it also notes that music users around the country rely on the systems established under the decrees and judge them to be working well.  Mr. Delrahim’s statement says that because of the complexity of the issues and the interruptions caused by the pandemic, no reforms would be offered at this time, but it urged the DOJ to continue to review these decrees on a regular basis – at least once every five years.

This action is significant for broadcasters and other music users as it leaves in place these consent decrees that are the basis on which so many businesses use music in their day-to-day operations.  Given the volume of music they have under license, most businesses do not have an alternative to using the blanket licenses offered by these organizations.  The only alternative would be to license the music themselves which, due to the complexity of the copyright laws and the lack of transparency in music ownership, would be exceedingly difficult for a business where music is but a secondary component to their operations.  Together, ASCAP and BMI provide a license to broadcasters and other music users (including any business that performs music to the public, such as bars and restaurants, retail stores, digital music services, concert venues, hotels and so many other locations). Continue Reading DOJ Ends its Review of ASCAP and BMI Consent Decrees – For Now…What Does it Mean?