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

In the last few weeks, both on the radio and TV side of the broadcasting house, significant actions have been taken to potentially expand the use of zoned broadcasting to allow broadcasters to better target their audience with programming and advertisements.  For TV, that is the proposed increase in use of distributed transmission systems, about which we will write in another article.  For radio, a petition for rulemaking has been filed by a company called GeoBroadcast Solutions, proposing to use FM boosters to be able to provide such targeted programming within an FM station’s service area.  The FCC last week issued a public notice asking for initial comments on the proposal – and those comments are due by May 4.

The FM zonecasting petition calls for a change in Commission rules that currently require FM boosters to simulcast 100% of the programming from their primary station.  The proposed change in the rules would instead say that FM boosters would have to substantially duplicate the programming of the primary station but would allow commercials, news reports or other short content to be dropped into the programming on a booster that would be different than that programming on the main station. The proposal suggests that this would allow more targeted advertising within a market as well as more targeted news and information (including emergency information) within the market. Continue Reading FCC Asked to Consider “Zonecasting” for FM Stations – Initial Comments Due May 4

The FCC announced two actions yesterday providing broadcasters targeted relief during the heart of this pandemic.  In a Public Notice released yesterday, the FCC announced that it will waive its rules to allow the preemption of children’s educational and informational programs during the month of April to allow TV stations to air live or near-live coverage of community events, including religious services.  The Notice seemed to be particularly geared to allow stations to broadcast Easter and Passover services in the coming days.  In this time of social distancing, the FCC said that this programming would benefit the public interest by providing the opportunity for people to experience religious services and other events without endangering the public by attendance at such events.  The community-events programs covered by this exception needs to be live or same-day taped coverage of local events.  This limited waiver applies only for the month of April.

The FCC released another Public Notice yesterday, relieving radio stations in Ohio and Michigan of the obligation to run their license renewal pre-filing announcements.  The FCC wanted to relieve the administrative burden on stations as well as to clear more time for commercials or COVID-related PSAs.  Radio stations in these states do need not run the pre-filing announcements now scheduled for April 16, May 1 and May 16.  The FCC notes, however, that stations do still need to run the post-filing renewal announcements that are scheduled to begin on June 1.  This ruling at this point applies only to stations in the June 1 filing window and has not been extended to any subsequent window.  These two actions by the FCC add to previous actions we cataloged here to try to make the regulatory burdens on broadcasters at least somewhat lighter during the current trying time.

The FCC last week released its tentative agenda for its April 23 open meeting.  For broadcasters, that meeting will include consideration of the adoption of a Notice of Proposed Rulemaking (draft NPRM here) looking to broaden obligations for the audio description of television programming (referred to as the Video Description proceeding) – which we will write about in more detail later.  The agenda also includes a Report and Order modifying rules relating to Low Power FM stations, which also addresses the protection of TV channel 6 stations by FM stations (full-power or LPFM) operating in the portion of the FM band reserved for use by noncommercial stations.  The FCC’s draft order in this proceeding is here.  We initially wrote here about these FCC’s proposals when the Notice of Proposed Rulemaking in the proceeding was adopted last year. Today, we will look at how the FCC has tentatively decided to resolve some of the issues.

One of the most controversial issues was the proposal to allow LPFM stations to operate with a directional antenna.  While some directional operations had been approved by waiver in the past, there was some fear that allowing these antennas more broadly could create the potential for more interference to full-power stations.  As a directional antenna requires greater care in installation and maintenance to ensure that it works as designed, some feared that LPFM operators, usually community groups often without a broadcast background or substantial resources, would not be able to properly operate such facilities.  The FCC has tentatively decided to allow use of directional antenna by LPFM stations. However, it will require LPFM stations installing such antennas to conduct proof of performance measurements to assure that the antenna is operating as designed.  The cost of such antennas, the limited situations in which such antennas will be needed (principally when protecting translators and in border areas), and the additional cost of the proof of performance should, in the FCC’s opinion, help to limit their use to entities that can afford to maintain them properly. Continue Reading FCC April Meeting to Consider LPFM and Video Captioning – Looking at the LPFM Proposed Order (Including Interference Protections for TV Channel 6)

In the last three weeks, we have written about actions that the FCC has taken to help broadcasters through the current crisis caused by the COVID-19 virus.  The FCC appears to realize that the business of broadcasting in the current crisis is vastly different than it was just a month ago.  The FCC has provided relief on TV newsgathering and news sharing arrangements,  issued a determination that no charge spots unrelated to an existing advertising schedule do not affect lowest unit rates, granted liberal extensions to stations in Phase 9 of the TV repacking, deferred the filing of Quarterly Issues Programs Lists and the Annual Children’s Television Reports to July 10, and recognized that college-owned stations that are silent when students are no longer on campus do not need an STA to remain silent.  In a webinar I conducted for a number of state broadcast associations last Thursday, I summarized these developments and talked about other FCC rules and policies that broadcasters need to continue to observe during the current crisis.  That webinar is available on the website of the Indiana Broadcasters Association which hosted the session and can be viewed here.

On Friday, the FCC added to the actions that it has taken to assist broadcasters – issuing a Public Notice adopting a policy that, through June 30, commercial advertisers can donate ad time to government agencies or charities to run PSAs dealing with issues relating to COVID-19 without the station having to identify the companies donating the spots as sponsors of the PSA.  Even though the commercial sponsors paid for the time, they don’t need to associate themselves with the virus spots.  This was at the request of the Ad Council, which suggested that some advertisers had ad time that they no longer needed but were reluctant to donate it to COVID PSAs as they feared that, if they were identified as sponsors, their businesses would somehow be associated with the virus.  While it may be the unusual situation where an advertiser cancels its ad schedule and is willing to donate the advertising time for charitable uses without acknowledgement, in some cases it may give broadcasters one more way to try to convince advertisers not to totally cancel their schedules.  And it shows that the FCC is continuing to do its best to assist advertisers in this trying time.  Watch for more developments in the coming weeks.

The judge presiding over the royalty litigation between BMI and the Radio Music Licensing Committee (RMLC) approved the settlement between these parties by an order released on March 23.  At the same time, the judge approved an order keeping the specifics of the approved settlement confidential for 30 days while the settlement is being implemented – so the specific terms of the deal have not been publicly released.  We wrote here about the announcement of that settlement and the fact that it does not clear all rights to podcast music.  The litigation was over the music royalties to be paid by the commercial radio industry to BMI for the public performance of musical compositions which BMI licenses (see our article here about the initiation of this rate court proceeding).  Look for more details about that settlement later this month when the agreements are supposed to be made public (assuming no subsequent delays, given the current crisis).

The settlement of this case still leaves many other music royalty issues for the commercial radio industry.  Many of these are supposed to be resolved this year but with the upending of the economy by the pandemic and its impact on the operations of broadcasters and other organizations involved in these issues, who knows when these issues will be decided?  The issues include the resolution or arbitration of a new 3-year agreement with SESAC (see our article here on the last royalty decision on SESAC royalties) and the ongoing litigation with GMR (see our last article on this litigation here).  On top of those proceedings dealing with rights to specific musical compositions, we still have pending a broad review by the Department of Justice of the ASCAP and BMI consent decrees governing the compositions licensed by those organizations (see our articles here and here).  Plus, for the digital streaming of sound recordings, we have a Copyright Royalty Board proceeding to determine the royalty rates to be paid to SoundExchange for the years 2021-2025, which was scheduled to be decided by year’s end.  But, as we wrote here, the multi-week trial in that proceeding, which was to have started in March, has been postponed because of the COVID-19 crisis.  In this time of great uncertainty throughout the economy, these many important music royalty issues remain pending for the radio industry.

Many stations seem unsure of how to apply the recent FCC guidance  that no charge spots given to advertisers to help them through the pandemic do not need to be counted in computing a station’s Lowest Unit Charge, as long as the no-charge spots are not part of paid advertising contracts and are not otherwise considered bonus spots.  We wrote about that guidance last week when it was first released by the FCC, here.  Because this issue can get complicated quickly, we recommend that individual stations talk to their counsel about any specific application of the FCC’s Public Notice to their situation.  However, as we were involved in seeking the guidance from the FCC, what follows are some general thoughts as to issues that stations should keep in mind in applying the FCC’s decision.

To be exempt from Lowest Unit Charge calculations, any no-charge spots should not be added to any existing advertising package, nor should they be used as a direct incentive to buy a new package, e.g., no promises should be made to give 20 no-charge spots to an advertiser if they buy a paid schedule of 20 spots.  The whole idea is that these spots are gifts to the advertiser to help them through the crisis, separate and apart from any commercial advertising transaction – while at the same time building goodwill for the station and helping the station fill holes in their inventory that have resulted from cancelled advertising.  These gifts should be viewed as a temporary measure to get through the crisis.  Because these no-charge spots cannot be tied to paid packages, stations should be careful on how they promote them to advertisers.  Here are some ideas:

  • Don’t call them “bonus spots” in any communications.  Call them “goodwill spots” or “covid-19 spots” or something else, but you do not want to imply that they are a bonus associated with another package.
  • Don’t give them in strict proportion to any existing contract, e.g., don’t give an advertiser 10% of its paid schedule in “goodwill spots.”  That also makes it look too much like they are part of a paid schedule.
  • Don’t list them on the same invoice or affidavit of performance that you provide to an advertiser showing its paid spots.  There is no requirement that you provide specific documentation to advertisers of what you run, but if you do, keep it apart from the documentation of paid schedules.
  • The spots should be preemptible.  Don’t make any promises or guarantees of any specific number of spots that will be provided and remind advertisers that this situation is temporary and simply an expression of good will on your station’s part during these difficult times for everyone.  You also should not guarantee any particular audience size or reach or frequency.
  • While not required, having a unique message relating to the pandemic, or packaging multiple advertisers together in spots to promote local businesses, can help differentiate these spots from normal paid schedules that are still subject to LUC consideration.

This is a unique solution for a unique time, but one that some stations may be able to employ as a win-win for both the stations and their communities.  Talk to your counsel for more details on how to employ this kind of program without running afoul of the FCC guidance.

 

 

The FCC on  Friday released a Public Notice announcing that they are giving stations more time in which to upload their Quarterly Issues Programs lists to their online public file and to file their first Annual Children’s Television Report.  In our list of April regulatory dates for broadcasters last week, we had highlighted both of those filings.  Because of the disruption of the schedules of so many people, and the lack of access to many broadcast stations, the FCC appears to have decided that broadcasters should get more time to meet these regulatory obligations.

Quarterly Issues Programs lists are required to be uploaded to the online public inspection file of all full-power stations every quarter – and would normally be required to be in the public file by April 10.  While urging stations to upload those lists as soon as possible, the Commission has given stations until July 10 (when the next quarter’s lists will be due) to upload this quarter’s report.  So the two reports could be uploaded at the same time. Continue Reading FCC Announces Extensions of Deadlines to Upload Quarterly Issues Programs List and to File Annual Children’s Television Report

Yesterday, the FCC released two public notices reflecting its attempts to assist broadcasters coping with the COVID-19 crisis.  The first public notice deals with the attempts of several broadcasters to support their advertisers while at the same time filling advertising inventory holes that have been created by the cancellation of other advertising schedules.  Broadcasters who we represented requested that they be permitted to schedule no-charge advertising for some of their clients where those spots were not part of negotiated advertising packages, without those spots affecting lowest unit charges in the political windows (likely to be opening in many states in the coming weeks).  The FCC agreed that free spots provided to merchants that are not part of an existing commercial contract or otherwise are not provided as a bonus tied to any contract would not affect lowest unit rates.  This is a limited ruling for broadcasters to use to build up good will with advertisers, and to provide them with assistance in this time of crisis.  It is a limited, nuanced ruling that you should discuss with your counsel – but it does provide broadcasters with the opportunity to be creative in helping support their advertisers in this most unusual time.

In addition to the lowest unit rate issue, the FCC issued another public notice about TV Local Marketing Agreements and similar agreements.  In TV (as in radio), if one broadcaster programs more than 15% of the programming time of another station in their market, the station to which they provide programming becomes “attributable” for multiple ownership purposes, i.e., it counts in determining compliance with the ownership rules.  In markets where one owner cannot own an additional station, news-sharing agreements where one station provides news to another are permissible, as long as those agreements do not constitute more than 15% of the programming time of the second station.  The notice released yesterday indicated that, if the brokering station wants to expand news coverage on the brokered station during this crisis time, the FCC will be liberal in granting waivers to permit the agreement to exceed 15% of the airtime of the brokered station – though prior FCC approval is required.  The waiver will be limited to the period of time that the COVID-19 outbreak remains a national emergency.  The public notice provides email addresses to which such requests should be sent.  These two decisions provide more evidence of the welcome flexibility and relief that the FCC is providing broadcasters in helping to deal with this current crisis.

 

An auction of new FM channels was scheduled to begin in late April (see our posts here and here).  Yesterday, the FCC issued a Public Notice indefinitely delaying that auction. Apparently, the FCC needs to have staff physically present in its Washington, DC building in order to conduct an auction, and with the current teleworking situation, the auction processes cannot function.  With other wireless auctions scheduled for the latter half of the year, there was apparently no way to find time this year to conduct the auction.  Thus, the auction is postponed indefinitely.  Seemingly concluding that it was unfair to hold onto the upfront auction payments for an indeterminate time, the FCC agreed to refund those upfront payments – and the Public Notice provides instructions for securing such a refund.  As business conditions may well have changed significantly whenever the auction is rescheduled, the FCC decided to return all of the “short-form” applications that were filed and to lift all restrictions on “prohibited communications” between competing applicants.  Thus, the auction will start anew, with new applicants, at some later date, likely in 2021.