The FCC this week announced consent decrees with six large radio groups over problems with the political files maintained by these groups.  The consent decrees included very specific compliance plans for each company to ensure that it met all FCC political file obligations in the future.  And it suggested that the penalties were mitigated by the current economic conditions caused by the pandemic – but emphasized the importance to the FCC of the political file obligations and suggested that industry associations take steps to educate all broadcasters about their public file obligations when they run political advertising.  Based on these decisions, we thought that we would republish an updated version of an article that we ran two years ago about those political file obligations so that broadcasters can review their own files to ensure that they have in their files the documents that the FCC wants to see.

Our article from two years ago looked at the political file obligations not too long after the FCC required that all of these documents be made available online, as part of the FCC-hosted online public inspection file. The fact that this file can now be viewed by anyone anywhere across the globe has made the required documents much more visible than when they could be reviewed only by physically visiting the main studio of a broadcast station. Not only can these documents be reviewed by the FCC in Washington, DC, but they can be reviewed by candidates, their agencies, and political ad buyers across the country.  In fact, we understand that some political ad buyers have online “bots” that scan these files routinely to keep track of political ad buying across the country.  Plus, with the license renewal cycle ongoing, the FCC reviews the political file as part of their review of a commercial station’s license renewal application (where licensees need to certify as to whether they have kept their public files complete in a timely fashion). Continue Reading FCC Enters Consent Decrees with Six Big Radio Groups – Looking at What the FCC’s Political File Rules Require

Our friends at Edison Research recently released a study on music discovery highlighting the ways in which people discover new music.  Among their findings was that broadcast radio, YouTube and streaming services were among the largest sources for that discovery.  That report caused one radio trade publication to suggest that podcasts, which ranked relatively low among the places where new music is discovered, might have opportunities to grow there.  What that suggestion overlooks is one of the biggest reasons that music podcasts have not taken off – rights issues.  There still is no easy way to clear the rights to major label music – so most podcasts are limited to spoken word featuring limited, directly licensed music.

That comment made us think that we should re-run an article from earlier this year, that explained music rights in podcasts.  That article was prompted by the settlement between the Radio Music License Committee and BMI over music royalties for broadcasting.  While a press release about the settlement said that the BMI license includes the use of music in podcasts, we pointed out that radio stations should not assume that means that they can start to play popular music in their podcasts without obtaining the rights to that music directly from rightsholders.  They cannot, as BMI controls only a portion of the rights necessary to use music in podcasts and, without obtaining all of the remaining rights to that music, a podcaster using the music with only a BMI license is looking for a copyright infringement claim. Continue Reading Using Music in Podcasts – Talk to the Copyright Holders – Why You Can’t Rely on Your ASCAP, BMI, SESAC and SoundExchange Licenses

FCC rules currently prohibit radio stations in the same service (AM or FM) that have over 50% overlap of their principal community contours (the 70 dBu for FM stations and the 5 mV/m contour for AM stations) from duplicating more than 25 per cent of the total hours in their average programming week.  In preparation for the FCC’s open meeting on August 6, the FCC last week released its draft order proposing to eliminate that rule as to AM stations (as we wrote on Friday).  As the draft order looks to eliminate the rule only for AM stations while retaining that rule for FM stations, it is worth taking a deeper look at this tentative decision particularly as one of its implications is that the FCC may well be allowing AM stations to transition to all-digital operations.

The draft decision provides two reasons for eliminating the rule for AM stations.  First, it suggests that the challenging economic and competitive status of AM radio justifies the decision to allow duplication by AM stations that operate in the same area. Keeping a station operational and providing some service is preferred over letting that station go silent.  The economic condition of the AM band was determined to alone be justification for the decision to permit duplication.  But the FCC provided a second reason – one that suggests that the FCC is seriously considering the proposal (about which we wrote here and here) to allow for all-digital AM stations.  In the draft order, the FCC says that allowing AM program duplication would provide an opportunity for an AM station to go all-digital while still broadcasting its programming on another AM station in the current analog format – allowing listeners to hear the station even if they do not yet have a digital AM receiver. Continue Reading A Deeper Look at the FCC’s Proposal to Eliminate Program Duplication Rules for AM But Not FM Stations – Looking to All Digital AM? 

Here are some of the FCC regulatory and legal actions of the last week—and congressional action in the coming 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.

  • The Media Bureau reminded broadcasters that July 13, 2021—the hard deadline for LPTV stations and TV translators to transition to digital—is one year away. Stations that have not yet constructed a digital facility must cease analog television operations no later than July 13, 2021 and remain silent until construction is completed.  The Public Notice details the steps stations must take if they may not meet the deadline due to delays with obtaining zoning or other approvals, inability to obtain equipment, financial hardship, the need to modify their current permits for digital operations, and similar constraints.  (Public Notice)  (Broadcast Law Blog)
  • The FCC issued a reminder that cable and satellite TV operators must, after July 31, 2020, deliver certain notices to TV stations by email. This rule change syncs with the FCC’s requirement that TV broadcasters post to their public files, by July 31, 2020, an email address to receive notices from cable and satellite operators relating to carriage matters including must-carry and retransmission consent elections.  (Public Notice)  (Report and Order)  (Broadcast Law Blog)
  • Clarifications and rule changes regarding Next Generation TV (ATSC 3.0), that were released in June, become effective on August 17. The FCC provided additional guidance on waivers (“No Viable Local Simulcasting Partner” and “’Reasonable Efforts’ to Preserve Service”) of the local simulcasting rules to broadcasters deploying Next Gen TV, declined to allow the use of vacant broadcast channels for Next Gen TV deployment, and clarified that the “significantly viewed” status of a Next Gen TV station will not change if it moves its ATSC 1.0 simulcast channel to a host facility.  (Federal Register)  (Broadcast Law Blog)
  • The Media Bureau set aside a grant of consent to assign an FM license and remanded the assignment application to the Bureau for further proceedings after learning more about the proposed assignor’s criminal conviction. This is a good reminder that the FCC can—and will—consider even non-FCC-related wrongdoing when evaluating applications, and generally it will not allow a person with character issues to profit from the sale of a broadcast station.  (Order)
  • Eighteen radio stations in Indiana, Kentucky, and Tennessee were warned that their licenses will expire if they do not file license renewal applications by midnight on August 1, 2020. Stations in these three states were required to file applications for license renewal by April 1, 2020 for terms expiring on August 1, 2020, and these stations did not meet the required deadline.  This is a good reminder to check the date that your license renewal application is due and remember to timely file that application.  (Public Notice)
  • Two “Broadcast Internet” items were published in the Federal Register.
    • The first item, a declaratory ruling, makes clear that television spectrum leased for datacasting does not trigger FCC multiple ownership issues. (Declaratory Ruling)
    • The second item, a Notice of Proposed Rulemaking, seeks comment generally on the industry’s ideas for potential uses of the datacasting potential of ATSC 3.0, what the FCC has termed the Broadcast Internet, and what regulatory barriers exist to deployment of new services. Comments and reply comments are due by August 17 and August 31 respectively.  (NPRM)(Broadcast Law Blog on Broadcast Internet)
  • Chairman Ajit Pai announced the items the Commission will consider at its August 6 Open Meeting. Two items relevant to broadcasters made it to the agenda.(Blog)  (Tentative Agenda and Draft Items)
    • The Commission will vote on an order to eliminate the radio duplication rule for AM stations, while retaining the rule for FM stations. The Chairman notes that the realities of the marketplace and technical challenges faced by AM broadcasters point to elimination of the rule. The current rule prohibits a radio station in one service (either AM or FM) from duplicating more than 25% of the weekly programming of another station in the same service, if there is more than 50% overlap of the principal community contour of either of the stations. We wrote about this proposal here.  (draft Report and Order)
    • The second item to be voted is an attempt to clear what many might consider “regulatory underbrush” by eliminating a rule that requires a broadcaster who owns a unique tower site to share that site with competing local stations. The Commission believes there has never been a case where there was never a case where this rule was used as there was never a showing that a site was unique and, as no broadcast licensees submitted comments during the rulemaking, it plans to abolish the rule.  (draft Report and Order)
  • We wrote on the blog about some issues that businesses of many stripes should consider as more of normal life shifts online, namely music licensing and unlicensed use of spectrum. Music license holders need to review carefully the licenses they hold to be sure that the new activities they are involved in due to the pandemic, including conducting business and other public gatherings on ZOOM and similar platforms, are covered by the rights they hold.  Similarly, businesses that have shifted to serving customers outdoors need to be mindful of their spectrum use (particularly regarding unlicensed low power FM broadcasts) and not run afoul of the FCC’s permitted uses.  You may wish to share our blog post with your advertisers and clients that are dealing with the concerns we discuss in the article.  (Broadcast Law Blog)
  • The FCC took a victory lap now that the 39-month post-incentive auction repacking of the television band has come to a close. In Chairman Ajit Pai’s remarks before the American Consumer Institute Center for Citizen Research and in a news release, the FCC touted the success of the repack and thanked the broadcast and wireless industries, the tower crews, the equipment manufacturers, the radio frequency engineers, and the Commission staff that made the repack possible.  Chairman Pai acknowledged the difficulties encountered—and overcome—along the way and how all parties pulled together to accomplish what was once seen as a task tied to an impossible-to-meet deadline.  (News Release)  (Remarks)  (Broadcast Law Blog)
  • Broadcasters planning to provide on-the-ground coverage of the upcoming national political conventions in Charlotte, NC, Jacksonville, FL, and Milwaukee, WI, and the 2021 Presidential Inauguration in Washington, DC must coordinate their frequency and spectrum use with Louis Libin, the newly-named special frequency coordinator and RF spectrum manager for these events. The FCC established a single point of contact for Broadcast Auxiliary System operations coordination to manage spectrum congestion and alleviate harmful interference.  Libin can be reached at (516) 374-6400 and louislibin@broad-comm.com.  (Public Notice)

And, next week, be aware that this activity is taking place on Capitol Hill:

  • The Senate Commerce Committee on July 22 will vote on Commissioner Michael O’Rielly’s nomination to another five-year term at the FCC. Should the nomination be voted favorably by the committee, the Commissioner’s nomination moves on to consideration by the full Senate.  (Executive Session)

 

Broadcast TV stations have until July 31, 2020 to upload to their public file a phone number and email address to be used for receiving signal carriage notices and questions.  This information must be kept current and will be used in the must-carry and retransmission consent carriage election statements that must be uploaded by stations to their online public files by October 1 of this year for the 2021-2023 cycle.  Under new FCC rules adopted last year, stations now upload their must-carry/retransmission consent elections to their public file every three years within the normal election cycle.  A similar obligation is placed on MVPDs (cable and satellite TV providers) to upload their contact information for carriage election purposes to the Cable Operations and Licensing System by July 31.  The FCC issued a Public Notice this week reminding cable operators of this requirement.  Broadcasters need to notify MVPDs of their must-carry/retransmission consent election only if that election changed from the prior cycle (see our article here). Don’t miss these important deadlines.

The FCC earlier this week released its agenda for its August 6 open meeting.  That agenda includes two items of relevance to broadcasters.  First, it proposes to eliminate the rule that prohibits two commonly-owned AM stations (including stations that are under common control or covered by a Time Brokerage or Local Marketing Agreement) that serve the same area from duplicating more than 25% of their programming.  In January, we wrote about the commencement of this proceeding here.  The FCC’s draft of the order to be considered at their August meeting is here.  It proposes only to eliminate the rule for AM while retaining the nonduplication prohibition for FM stations.  We will write more about that draft order next week.

The second broadcast item on the agenda is the adoption of an order abolishing the rule that required that broadcasters make available to competitors any unique transmitter site.  We wrote about the initiation of this proceeding here.  The draft of the order to be considered at the August meeting is here.  We will also summarize that draft order in more detail next week.  Chairman Pai wrote about these two items in his usual pre-meeting blog post, here.  Watch for developments on these two issues in the coming weeks.

Tuesday marked the end of the TV repacking following the TV incentive auction – shrinking the TV band by moving all TV stations to channels below what used to be Channel 37 (with a few exceptions for stations given a couple of extra months due to last minute COVID-19 delays, as discussed in the FCC decision here).  The FCC announced the end of the transition in a Press Release, and Chairman Pai delivered remarks on an American Consumer Institute webcast, thanking his staff for making the transition happen.  Remarkably, in the 15-year life of this blog, this is the second time that we have written about the shrinking of the TV band – the first following the transition of television from analog to digital over a decade ago (see, for instance the articles here and here from the 2009 digital transition).

That transition to digital is not complete, as we were reminded by another Public Notice released by the FCC on Monday.  This Public Notice emphasized to LPTV and TV translator operators, some of whom still have not transitioned to digital operations, that they have one more year to do so.  By the end of the day on July 13, 2021, all LPTV and TV translator stations need to be operating in digital or they need to cease operations.  The Public Notice reminds these operators who have construction permits for new digital facilities to extend those permits if they expire without construction completion before next year’s transition deadline – and alerts these operators to file by May 1, 2021 any last-minute modifications of the technical facilities specified in construction permits authorizing their digital transition.  Filing by May 1 gives the FCC sufficient time to process these applications so that any changes can be implemented by the July 13 deadline. Continue Reading The Evolution of TV – The End of the Repack, a One-Year Reminder to the End of Analog LPTV, and the Start of the ATSC 3.0 Roll-Out

As business adapts to the pandemic so, too, do legal issues.  A couple have come to my attention in recent weeks that I thought bear passing on.  One deals with copyright concerns, the other with FCC matters about use of unlicensed FM transmitters.  Both arise as businesses adapt the way in which they deal with their customers – including how media companies deal with their audiences.

The copyright issues deal with music licensing matters.  Broadcasters are used to having performance licenses that allow them to broadcast music over the air and stream it on the Internet.  Venues for live music have similar licenses, as do hotels and meeting halls where conventions and other meetings take place – often involving the use of music.  But, as people are no longer frequenting these locations, businesses try to recreate their usual ambiance in an online environment using Zoom, Facebook Live, or one of the many other digital platforms that now exist.  If that ambiance includes music or other copyrighted materials, be sure that you have the rights to use those copyrighted materials in the new environment in which your business is operating. Continue Reading Random Issues to Consider as Media Businesses Adapt to the New World of the Virus – Music Uses on Zoom and Other Platforms, Unlicensed FM Transmitters

Pirate radio operators continue to be a problem – particularly in major metropolitan areas.  The week before last, the FCC resolved two long-pending cases against pirate operators through negotiated settlements.  In one case, the FCC last year initially proposed a fine of $151,005 for the illegal operation.  After examining the operator’s finances, the Bureau agreed to a $4,000 fine now, with a penalty of $75,000 should the operator violate the law again (see this decision against an operator called Radio Concorde).  In the second case, the FCC had proposed a $453,015 fine last year, but agreed to take $5,000 now, with penalty of $225,000 if the operator violates the terms of the consent decree (see the decision dealing with operator Radio TeleBoston).  Last year, we wrote here about the much larger fines initially proposed for these two operators.

In both cases, the FCC seemingly recognized reality in taking the small upfront payments now rather than trying to collect huge fines that likely were beyond the ability of the operators to pay.  The FCC also required the surrender of the operator’s equipment and a commitment to stay away from pirate radio for 20 years or face much larger fines.  The big fines initially imposed in these cases were set even before Congress enacted the PIRATE Act early this year.  The new law allows for fines on illegal operators of $100,000 per day, up to a maximum total fine of $2,000,000.  Even without the full effect of the PIRATE Act, these cases show the deterrent effect of these large fines.  They get an illegal operator’s attention, which can lead to the shutdown of these unauthorized stations, as happened in these cases.  With the pandemic, we worry about even more illegal uses of the broadcast spectrum – and we will write more about that issue here tomorrow.

Here are some of the regulatory and legal actions 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.

  • FCC fines against two radio stations serve as a reminder that station managers need to pay close attention to how their staff handles on-air contests. The FCC issued Notices of Apparent Liability for Forfeitures to two Texas licensees for allegedly violating the Commission’s on-air contest rules through a failure to conduct the contest substantially as announced, specifically for unreasonable delays in awarding prizes.  Both licensees were hit with several thousand dollars of fines even after settling the matter with the contest winners.  Both licensees pointed to human error as the reason for the mistakes, but as the decisions show, that is not an excuse.  (El Paso NALF)  (Mont Belvieu NALF)  (Broadcast Law Blog)
  • The FCC’s International Bureau released a preliminary list of C-Band earth stations (those that operate in the 3.7-4.2 GHz band) in the contiguous U.S. that the Bureau has reviewed and said appear to qualify as “incumbent earth stations,” which will be eligible for reimbursement for reasonable costs of changes to their facilities caused by the upcoming repacking of the C-Band.  The C-Band will be partially reallocated for use by wireless carriers, requiring changes in many existing earth stations.  All broadcasters who have registered earth stations should immediately review this list and act, if necessary – corrections must be submitted to the FCC by July 16, 2020.  Instructions for submitting corrections are found in the Public Notice.  (Public Notice)  (PDF of Preliminary List w/ Explanatory Notes)  (Xlsx of Preliminary List) (Broadcast Law Blog)
  • The U.S. Copyright Office has extended, until April 15, 2021, the deadline for the decision of the Copyright Royalty Board on rates to be paid to SoundExchange for royalties for the use of sound recordings in non-interactive audio streaming. This extension was because of the delays in the CRB’s trial due to the pandemic.  The January 1, 2021 effective date for the new rates, however, remains in place, so any decision released later in 2021 will be retroactive.  In January, webcasters and other internet radio operators (including broadcasters who stream their signals) will continue to pay the royalties currently in place, and there will be a mechanism for a true up of the amounts due once the decision on the royalties for 2021-2025 becomes effective.  (Copyright Office Extension) (Broadcast Law Blog)
  • The Audio Division updated the FM Table of Allotments to reinstate fourteen vacant FM allotments. The allotments were removed from the FM Table because a construction permit and/or license was granted, but are now vacant because of the cancellation of the associated authorizations or the dismissal of long-form auction applications.  The reinstated allotments are in California, Colorado, Iowa, Texas, and the U.S. Virgin Islands.  These channels will be available for application in an FM auction at some point in the future. (Order)
  • Citing the ongoing public health emergency and the decision to not conduct a national EAS test in 2020 (see our article here), the FCC has waived for this year the requirement that broadcasters update their information in the EAS Test Reporting System. (Order)
  • Those looking to file hand-carried documents with the FCC will have to permanently update their address book. After temporarily closing the filing window at FCC Headquarters in response to COVID-19, the Commission has now permanently closed that window and will only accept paper filings at 9050 Junction Drive, Annapolis Junction, MD 20701.  This change was made to enhance security and in conjunction with the Commission’s future move to its new headquarters.  (Public Notice) (See our article here about the FCC’s planned move).