The responses by the major record labels to Commissioner O’Rielly’s inquiry into allegations of payola practices (see our article here) were published last week while we were all distracted with pandemic issues.  While the responses (available here on the Commissioner’s twitter feed) were perhaps not surprising – saying that the record labels do not engage in any on-air pay-for-play practices where the payment is not disclosed – they nevertheless highlight some practices that should be observed at every radio station.  As I have said in many seminars to broadcasters around the country when talking about FCC sponsorship identification requirements, if you get free stuff in exchange for promoting any product or service on the air, disclose that you got that free stuff. As made clear in these responses, when the record companies give free concert tickets or similar merchandise to a radio station for an on-air giveaway to promote a concert or the release of new music by one of their artists, they agree with the station to reveal on the air that the record company provided the ticket or merchandise that is being given away.

The responses also indicate that these record companies do not provide musical artists to play at station events with any agreement – explicit or implicit – that the station will play those artists more frequently because of their appearance.  While that might happen naturally, it also might not (if, for instance, the band is one of many acts participating at some station-sponsored festival).  The record companies state that their contracts with stations for such events make clear that there is no agreement that any artist appearance is tied to additional airplay for that artist. Continue Reading Record Companies Respond to FCC Commissioner on Payola – What Should Broadcasters Learn from the Responses?

Taking a station off the air is often the last resort of a broadcast company in desperate financial times.  While Payroll Protection Act loans have helped many small broadcasters avoid that action even in light of the dramatic decrease in broadcast advertising revenue in the last two months, and some relief may come in areas of the country looking at some reopening of business in the coming weeks, we have still heard of some stations that just can’t manage continued operations in this period of turmoil – either for financial or operational reasons caused by the current health crisis.  If this action is in the cards for your station because of the pandemic or for any other reason including technical failures, do not forget about the FCC requirements for taking a station silent.

When a broadcast station goes silent, it must notify the FCC of that status within 10 days of going off the air.  If the situation will continue for a longer period, a request for Special Temporary Authority providing the reasons for going off the air must be filed within 30 days of going silent.  These STAs are granted for no more than 6 months at a time, so that date should be noted for the filing of any extension that may be needed.  But be careful, as if a station is silent for a full year, Section 312(g) of the Communications Act provides that the license will be cancelled unless the FCC makes an affirmative finding that there are special public interest reasons for not taking that action (a finding made in very rare cases).  When stations resume operations, they must notify the FCC that they are back on the air.  But to be considered back on the air, there must be programming – running a test pattern is insufficient (see the case we wrote about here).  Even with authority to remain silent, there are risks. Continue Reading Broadcast Stations Going Silent – What You Need to Do

During most months, FCC procedures, rules and regulations, with their mostly predictable schedules and deadlines, give broadcasters a feeling of routine.  In this time of stay-at-home orders, social distancing measures, and face-mask wearing, even FCC deadlines cannot provide the semblance of normality we are all looking for.  In fact, May is one of those months where there are no regularly scheduled regulatory filings (e.g., no renewals, EEO reports, fee filings, or scheduled public file disclosures).  Nevertheless, as always, there are a number of important regulatory dates—and changes in some dates—for May of which broadcasters should be aware.

The radio license renewal process continues its march across the country, and the renewal cycle for television begins with the required filing by June 1 of license renewals by full-power TV, Class A TV, TV translator, and LPTV stations in DC, Maryland, Virginia, and West Virginia.  Those stations should be working on their renewals in May, looking to file them on or before the June 1 deadline.  See our article here on the FCC’s recent announcement of the procedures for filing TV renewal applications. Continue Reading May Regulatory Dates for Broadcasters – License Renewal Preparations, FCC Meeting, and Comments on the Communications Marketplace, Significant Viewing and FM Zonecasting

Trying to stay on top of regulatory developments for broadcasters is difficult even in normal times.  There are always day-to-day obligations that distract from a focus on legal and regulatory questions – and there are so many developments almost every week that we can’t always write about everything that may have occurred.  So we thought that we would introduce a new feature – each weekend providing a list of some of the regulatory actions of importance to broadcasters that occurred in the prior week, with links to where you can go to find more information as to how these actions may affect your operations.

In addition, to provide information on dealing with the FCC during the pandemic, and on the many actions that the FCC has taken during the last 6 weeks – both those dealing with the current crisis and decisions made in processing its normal workload relating to broadcasting – we conducted a webinar last Tuesday on these issues.  You check out that webinar presented to broadcasters across the country, available by clicking on this link.  And here are some of the regulatory actions announced last week of importance to broadcasters that have been announced since then :

Continue Reading This Week at the FCC: April 18, 2020 to April 24, 2020

The FCC issued public notices this week on the license renewal process for both radio and television operators.  The Public Notice on television renewals was perhaps more significant, as it addressed several issues and procedures for the television renewal process which begins with the filing of renewals for stations located in Maryland, DC, Virginia and West Virginia, to be submitted to the FCC no later than June 1 of this year.  The announcement reminds licensees that the application must be filed in the LMS database (where the new form should now be available) and must be accompanied by an EEO Form 2100 Schedule 396, reporting on the station’s hiring practices for the two years prior to the filing of the renewal. The notice also emphasizes the importance of the public inspection file – particularly the documents related to political broadcasting – urging TV stations to review their online public files now prior to filing their renewal application.  See our articles here and here on fines issued last year to radio stations for deficiencies in their public files at the beginning of their renewal cycle, and our article here posted just yesterday about the FCC latest ruling about the political file obligations for all broadcast stations.

For radio, the recent Public Notice merely announces that the renewal form has been slightly revised to include a question certifying that the renewal applicant complies with the 2016 FCC multiple ownership rules.  As we wrote in December, the Third Circuit decision overturned the FCC’s 2017 revision to its ownership rules (which, among other things, had abolished the broadcast-newspaper cross-ownership rules).  As a result of the court’s decision, the FCC began to require that broadcasters include such a certification with their renewal applications.  Until now, that certification was to be added in an exhibit, as the form did not specifically request that information.  This public notice eliminates the need for the exhibit, as a question has now been added to the form regarding compliance with the ownership rules.  It is interesting that this question has been added within a week of the FCC’s filing of a request with the Supreme Court seeking to overturn the Third Circuit decision (see our article here).  But, while that petition is under consideration by the Supreme Court, the old ownership rules remain in effect.

For more on the license renewal process, see the webinar that I conducted for the Indiana Broadcasters earlier this year, available here.  While specifically addressing stations in Indiana and discussing primarily radio issues as their renewal deadline was approaching, this webinar highlights issues that all broadcasters face when preparing for their license renewals.  Of course, consult with your own attorney for advice on the renewal and specific issues that may affect your license renewal submission.

The FCC this week issued an Order reconsidering some of the issues addressed in its October 2019 orders (which we summarized here) interpreting its political advertising rules.  Those October interpretations required that broadcasters who run ads addressing federal issues must include in the political file, maintained as part of their online public file, information about all of the candidates and issues discussed in such ads, not just the most prominent issue or candidate it discusses.  The October ruling also required that stations inquire of issue advertisers (or their agencies) about the names of the chief executive officers or members of their boards of directors if the station is provided with only one name, as the rules require the disclosure of all of the officers or directors of such organizations and the FCC assumes that most of these groups have more than one officer or director.  The October rulings also warned stations against the use of acronyms in their public file where such abbreviations could be misleading to the general public when they view the political file.

The reconsideration addressed two aspects of the October ruling.  First, it made clear that the ruling applied only to federal issue ads, not to ads bought by candidates or their authorized campaign committees.  That seemed to be clear from other statements made by the FCC and its staff (see our article here) but the reconsideration makes it explicit. Continue Reading FCC Clarifies Its Ruling on Political File Obligations for Federal Issue Ads

Recently, FCC staff dismissed a request by the organization Free Press asking the FCC to investigate the broadcast of the President’s press conferences on the coronavirus and programs where commentators supported the President’s pronouncements.  In addition to an investigation, the request asked that the FCC require that broadcasters “prominently disclose when information they air is false or scientifically suspect” in relation to these press conferences and other broadcasts.   Free Press suggested that the FCC had the authority to take this action under its broad mandate to regulate in the public interest.  It also cited the FCC’s hoax rule as providing support for such an action.  As we have written before, the hoax rule is designed to prevent broadcasts that pose the risk of imminent harm to the public by potentially tying up first responders and emergency response teams for purported disasters and crimes that are not real.  FCC staff dismissed the Free Press complaint, finding that the FCC is forbidden by Section 326 of the Communications Act from censoring the speech of broadcasters or otherwise abridging their freedom of speech.  These First Amendment principles largely keep the FCC out of content regulation (with the limited exceptions of regulation in areas like indecency, obscenity and sponsorship identification where the message is not being censored, just certain means of expression).

In the Free Press decision, the FCC concluded that, in covering a breaking news story like the pandemic, it would be impossible for a broadcaster to fact check every statement made in a press conference and correct any misstatements in anything approaching real time, as there is so much room for interpretation of any statement made on these ongoing matters.  It would also be impossible for the FCC to police any such mandate without trampling on First Amendment principles, as it would require the FCC to become the arbiter of the truth for many claims made on television.  The FCC declined to take on that role, and noted that the hoax rule is narrowly drawn to avoid these First Amendment issues.  That rule only punishes clearly false broadcasts that could foreseeably tie up first responders or cause substantial public harm.  It does not get the FCC involved in evaluations of the truth of political statements and policy pronouncements.  This is a position that has consistently been taken by the FCC, and one that we often see misstated in connection with demands for the take-down of issue advertising and non-candidate political attack ads. Continue Reading FCC Denies Application of Hoax Rule to Trump Press Conferences on COVID-19 – Looking at the First Amendment and the Commission’s Regulation of Political Speech

On Friday, the FCC (with the Department of Justice) and a group of interested media industry companies filed requests asking that the Supreme Court review the decision of the Third Circuit overturning the FCC’s 2017 decision on its ownership rules (the FCC petition for a writ of certiorari is available here).  The FCC’s 2017 decision abolished the newspaper/broadcast and radio/television cross-ownership rules, and made changes to the local television rule and other ownership rules (see our post here on the 2017 decision).  Last September, a three-judge panel of the Third Circuit overturned the rule changes, not necessarily disagreeing that times had changed and that the new media marketplace justified a relaxation in the ownership rules, but instead finding that the FCC had not done an adequate job in assessing the impact of the rule changes on minorities and other potential new entrants to the broadcast industry (see our article here on the court’s decision).

After the court’s decision, the FCC and the interested industry parties sought review by all of the judges on the Third Circuit of the decision made by the three-judge panel, a review that was denied last year (see our article here).  That led to the FCC’s order immediately before Christmas, reinstating the pre-2017 rules and requiring that broadcasters comply with those rules when filing new applications (see our article here). Continue Reading FCC and Industry Groups Ask for Supreme Court Review of Third Circuit Ownership Decision

This week, the FCC’s Notice of Proposed Rulemaking on Significant Viewing was published in the Federal Register, setting a comment deadline of May 14, with reply comments due by June 15.  The NPRM asks for comments as to whether the FCC should update its rules for establishing whether or not a TV station is “significantly viewed” in a market other than the one in which it is located, and whether the FCC has the statutory authority to make changes to these rules that have largely been in effect since 1972.

A determination of significantly viewed status is important for determining whether a cable system or satellite television company will carry a TV station in areas that are not part of its home market.  For FCC purposes, significantly viewed stations generally are not subject to the network nonduplication and syndicated exclusivity protections provided to home market stations – meaning that their programming that duplicates that of a local station need not be blacked out by the MVPD at the request of the local station that has the rights to such programming in that market.  For copyright purposes, if a station has significantly viewed status, the MVPD pays at the low rates applicable to a local station pays for the compulsory copyright license needed to carry all of the programming of a television station.  If the station is not significantly viewed, the much higher “distant signal” rate applies, giving the MVPD far less incentive to carry such stations. Continue Reading Comment Dates Set on Possible Revision to Rules on Significantly Viewed Television Stations for MVPD Carriage Purposes – What Is Being Asked?

In an interesting Court decision from the Southern District of New York, a judge dismissed a lawsuit brought by a photographer for the use of her photo without permission by the website Mashable.  Mashable defended against the claim by arguing that it did not need a license directly from the photographer as it had not posted her photo on its website but had instead embedded that photo using an API from Instagram.  An API allowed the photo to display on the user’s computer with content from the Mashable site, even though the photo was actually coming from Instagram.  Thus, Mashable did not itself host the photo – the photo was hosted and served by Instagram pursuant to the rights that the photographer had granted to Instagram by posting a public photo to that site.  As the Instagram Terms of Use give the company a license to make photos posted on its site available through its API, the Court found that the use of the photo by Mashable was permissible as it had a valid sublicense to use that photo from Instagram through use of the API.  As it had a valid sublicense, it did not need a license directly from the photographer.  The photographer had authorized Instagram to sublicense her photos by agreeing to Instagram’s Terms of Use and not restricting the viewing of that photo to private groups.

This Court’s decision is interesting for two reasons.  First, it seems to contradict a decision about which we wrote here that suggested that the use of an embedded photo was not enough to defeat a claim of liability where the embedded photo was posted on a site to appear to the public to be part of that site.  That other decision focused more on how content appeared to the end-user than it did on the issue of a sublicense as does this case.  Even so, it is likely that there will need to be more litigation and some higher court decisions before there is any final resolution of just how safe it is to embed content from a social media site on your website without permission of the creator of that content. Continue Reading Court Decision Dismissing Photographer’s Lawsuit Shows Breadth of Rights Granted to Social Media and Denies Infringement Claim for Instagram Embedded Photo