With the NCAA Basketball Tournament about to begin (though without an audience at the games), broadcasters, publishers and other businesses need to be wary about potential claims arising from their use of terms and logos associated with the tournament, including the well-known marks March Madness®, The Big Dance®, Final Four®, Women’s Final Four®, Elite Eight,® and The Road to the Final Four® (with and without the word “The”), each of which is a federally registered trademark.  The NCAA does not own “Sweet Sixteen – someone else does – but it does have federal registrations for NCAA Sweet Sixteen® and NCAA Sweet 16®.

The NCAA also has federal registrations for some lesser known marks, including March Mayhem®, March Is On®, Midnight Madness®, Selection Sunday®, 68 Teams, One Dream®, And Then There Were Four®, and NCAA Fast Break®.  The NCAA has a pending application to register March to the Madness as well.

Some of these marks are used to promote the basketball tournament or the coverage of the tournament, while others are used on merchandise, such as t-shirts.  The NCAA also uses (or licenses) variations on these marks without seeking registration, but it can claim common law rights in those marks, e.g., March Madness Live, March Madness Music Festival and Final Four Fan Fest.

Although the NCAA may use the federal registration symbol (®) with any of its federally registered marks, it is not obligated to do so.  Thus, it should not be assumed that the lack of the symbol means that the NCAA is not claiming trademark rights. Continue Reading March Madness Trademarks: Avoiding a Foul Call from the NCAA (2020 Update – Part 1)

The FDA last week issued an update on its review of issues related to the sale and marketing of CBD products.  The guidance reiterates the kinds of warnings that we have given before (see, for instance, our articles here and here) about not advertising specific health benefits of CBD products as, except for two approved CBD-based drugs used to control seizure-related disorders, the FDA has not yet approved other medical uses of CBD products.  The FDA release provides numerous general cautions about the use of CBD products including concerns about their interactions with other drugs and the potential side-effects of their use.

The statement includes only two paragraphs devoted to marketing of CBD products.  In these paragraphs, the FDA discusses the enforcement actions it has taken (see our posts here and here) against companies that provide specific guidance on health benefits of CBD not only because of the fears of side-effects, but also because of the potential for consumers to be led to believe that CBD products should be used to treat medical conditions to the exclusion of other proven therapies.  The warnings about marketing also extended to the concerns about product labeling, including worries about products being claimed to contain CBD that do not or containing other unknown substances not listed on any label. Continue Reading The FDA Issues New Guidance on CBD – Still Leaving Many Questions for Broadcasters and Advertisers

Notifications about cable carriage have now gone electronic – and contact people at stations and MVPDs for notices about carriage issues are now to be provided in the FCC-hosted online public inspection file and in the Cable Operations and Licensing System (COALS).  According to an FCC Public Notice released last week, in those databases there is now a Carriage Election Notification Point of Contact – a place in online public file where full power TV stations and DBS providers are required to upload both an email address and phone number for purposes of carriage-related inquiries.  Cable operators are required to upload the same information to COALS.   This contact information must be uploaded no later than July 31, 2020 and must be kept up-to-date thereafter.  In fact, when logging into the online public file system to upload information to the public file, TV licensees are now seeing a reminder to provide this information.  These contacts 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 an FCC Report and Order adopted last year, stations upload their elections to their public file every three years on the normal election cycle and specifically notify MVPDs of their must carry/retransmission consent election only if that election changed from the prior cycle (see our article here).

Thus far, the Commission has not created any online public file requirement for qualified low-power (certain rural LPTV stations that qualify for must-carry on local cable systems) and non-commercial educational translator stations. Instead, carriage-related inquiries will be directed to the “contact e-mail” address and phone number these stations should have already provided under the “facilities tab” in the Commission’s Licensing and Management System (LMS) database.  Last week, the FCC issued a Report and Order clarifying those obligations for qualified LPTV stations and non-commercial educational translators requiring that they provide current contact information in LMS by July 31, 2020, update that information when it changes, and use email to make their carriage elections by the October 1, 2020 election deadline date.

Be aware of these new requirements, upload the required information by the July 31 deadline, and use electronic notices for the elections due by October 1.

The Radio Music License Committee yesterday told members that Global Music Rights (“GMR”), the performing rights organization that began a few years ago to collect royalties for the public performance of songs written by a select number of popular songwriters (including Bruce Springsteen, members of the Eagles, Pharrell Williams and others who have withdrawn from ASCAP and BMI) has agreed to extend its interim license for commercial radio stations until March 31, 2021. The notice says that GMR will be contacting stations that signed the previous extension (through March 31 of this year) to extend the interim license for another year on the same terms now in place. If you don’t hear from GMR by March 15, the RMLC suggests that you reach out to GMR directly (do not contact RMLC as they cannot help) to inquire about this extension.

As we have written before (see our articles here, here and here), GMR and the RMLC are in protracted litigation over whether or not the rates set by GMR should be subject to some sort of antitrust review, as are the rates set by ASCAP, BMI and even SESAC (see our article here on the SESAC rates). GMR has counterclaimed, arguing that RMLC is a “buyer’s cartel” in violation of the antitrust laws.  Earlier this year, the lawsuits were consolidated in a court in California, where litigation is ongoing (see our article here about the transfer).  In our most recent article about the litigation, we noted that the court rejected motions from each party asking that the other’s claims be dismissed.  Thus, unless there is a settlement, the case will go to trial.  The decision to extend the interim license for a year, instead of the six-month period in previous extensions, may indicate that GMR at least expects that the litigation will continue. Continue Reading Another Interim License Extension Offered by GMR to Radio Broadcasters – This Time for a Full Year – An Indication of the Status of the Litigation With RMLC? 

A Notice of Proposed Rulemaking proposing greater coverage areas for unlicensed “white space” devices operating in the TV bands was adopted at the FCC’s open meeting last week and released earlier this week.   We have written about these white space devices before (see, for instance, our articles here and here).  These devices operate at relatively low powers in unused portions of the TV bands.  They are designed to offer wireless services, including broadband.  Advocates of these operations see them as an inexpensive way to offer broadband services to underserved areas, including parts of rural America.

The concern of course with these devices is that if their use is not managed correctly, their operations could interfere with existing TV operators (including LPTVs, TV translators, broadcast auxiliary services, and wireless microphones).  Thus far, operations have been limited to power levels of 10 watts or less from antenna heights that did not exceed 250 meters height above average terrain.  The advocates for these devices, including Microsoft, have argued that these low power levels make it difficult to serve rural areas given their small coverage area.  NAB, on behalf of broadcasters, and advocates for wireless microphone operators, have urged caution in any increase in the coverage of these operations if they could possibly cause interference to existing users of the spectrum.  After significant discussion and compromise between the NAB and Microsoft, the NPRM adopted last week tries to strike a balance between these positions. Continue Reading FCC Adopts Notice of Proposed Rulemaking Looking to Allow Higher Power and Greater Height for Unlicensed White Space Devices Operating in the TV Bands

The FCC yesterday released a Public Notice calling for public comment on the state of the communications marketplace so that it can prepare a report to Congress – a report that is required every even-numbered year.  The Notice calls for comments on the state of competition in various sectors of the communications industry – including for audio and video.  The inclusion of audio in this report is relatively new – being included for the first time two years ago (see our article here).  Comments in this proceeding are due on April 13, with replies due May 13.

The Audio Competition Report prepared two years ago was very important in informing the FCC as to the state of competition in that segment of the market.  Comments filed with the Commission on the report were incorporated in the record of the FCC’s Quadrennial Review Notice of Proposed Rulemaking which entertained the possibility of changes in the ownership rules for broadcast radio in light of the substantial competition that comes from digital audio sources (see our article here on the Quadrennial Review NPRM).  Whether this year’s report will be as crucial is unknown, as the Third Circuit Court of Appeals decision on the FCC’s 2017 ownership rule changes have, for now, put all broadcast ownership changes on hold while the FCC (and the Department of Justice) decide whether to appeal that case to the Supreme Court or to attempt to answer the Third Circuit’s concerns that the FCC had not sufficiently addressed the impact of changes in its ownership rules on minority ownership (see our articles here and here).  While these decisions are being made, it appears that all ownership changes are on hold. Continue Reading FCC Seeks Comments on the State of the Communications Marketplace – Including for Audio and Video

As the calendar flips to March, many of us have put our trust in Punxsutawney Phil’s weather forecasting expertise that an early spring is coming.  A surer place to put our trust, however, is in the guarantee that there are always some regulatory dates about which broadcasters should be aware.  While March is a month without with many of the regularly scheduled deadlines for renewals, EEO public file reports or Quarterly Issues Programs lists, there are still plenty of regulatory dates about which you should take notice.

The closest we come in March to a broadly applicable FCC filing deadline is the requirement that, by March 30, 2020 television broadcasters must complete and submit through LMS the FCC’s new Form 2100, Schedule H documenting their compliance with the requirements under the children’s television (KidVid) rules to broadcast educational and informational programming directed to children.  This report will document that programming from September 16, 2019 (when the new KidVid rules went into effect) to December 31, 2019.  The March 30 date is a transitional date as the FCC moves away from the old quarterly children’s television reports to ones that will be filed annually – in future years by the end of January.  This year, however, the FCC took time to develop the form for the new annual report and to explain how it should be used, thus the extra time to file.  Once filed, TV broadcasters won’t file another children’s television report until early 2021 reporting on compliance for all of 2020.  For more on the transition to the new KidVid obligations, read our articles here, here, and here.  To learn how to work with the new form, watch the FCC’s archived instructional webinar here. Continue Reading March Regulatory Dates for Broadcasters—Children’s Television Reports, Lowest Unit Rate Windows, EEO Audit Responses, AM Revitalization Comments, License Renewal Preparation and More

In a decision released this week, the FCC reiterated a policy of being very tough on petitions to add communities to television markets to change the stations that are considered to be part of the market for cable and satellite carriage purposes.  This strict compliance policy was set out in another case decided last year.  The Commission will dismiss a request for a market modification if all the evidentiary requirements set out by the FCC are not met in the initial filing.  While these requests can be refiled at a later date with the missing information, such a dismissal will delay the processing of any request.

Cable market modifications of the type addressed in this filing have become more common in recent years, at least partially because of a change in the Communications Act enacted by Congress in 2014 (see our article here). In that change, Congress said that , among the statutory factors that must be considered in defining television markets, the FCC must examine whether the communities that are proposed to be added would promote access to in-state television stations.  Prior to the adoption of the revised statute, Congress was concerned that there were too many communities that were included in Nielsen markets where the programming originated from stations located in another state, at one point asking that the FCC study the issue (see our article here).  In these instances, some in Congress believed that residents were deprived of public service and news information as to events and issues in their own state.

Congress set out the following factors to be considered in any analysis of a market modification:

  • whether the station, or other stations located in the same area—(a) have been historically carried on the cable system or systems within such community; and (b) have been historically carried on the satellite carrier or carriers serving such community;
  • whether the television station provides coverage or other local service to such community;
  • whether modifying the local market of the television station would promote consumers’ access to television broadcast station signals that originate in their State of residence;
  • whether any other television station that is eligible to be carried by a satellite carrier in such community in fulfillment of the requirements of this section provides news coverage of issues of concern to such community or provides carriage or coverage of sporting and other events of interest to the community; and
  • evidence of viewing patterns in households that subscribe and do not subscribe to the services offered by multichannel video programming distributors within the areas served by such multichannel video programming distributors in such community.

To address these factors, the FCC requires very specific evidence, set out in seven categories.  Unless evidence is provided as to each of the following matters (or a waiver is sought with a showing as to why it is not possible to provide such evidence), under these recent precedents, the request will be denied.  The evidentiary showings required are:

  • A map or maps illustrating the relevant community locations and geographic features, station transmitter sites, cable system headend or satellite carrier local receive facility locations, terrain features that would affect station reception, mileage between the community and the television station transmitter site, transportation routes and any other evidence contributing to the scope of the market;
  • Noise-limited service contour maps delineating the station’s technical service area and showing the location of the cable system headends or satellite carrier local receive facilities and communities in relation to the service areas;
  • Available data on shopping and labor patterns in the local market;
  • Television station programming information derived from station logs or the local edition of the television guide;
  • Cable system or satellite carrier channel line-up cards or other exhibits establishing historic carriage, such as television guide listings;
  • Published audience data for the relevant station showing its average all day audience (i.e., the reported audience averaged over Sunday-Saturday, 7 a.m.-1 a.m., or an equivalent time period) for both multichannel video programming distributor (MVPD) and non-MVPD households or other specific audience information, such as station advertising and sales data or viewer contribution records; and
  • If applicable, a statement that the station is licensed to a community within the same state as the relevant community.

While the request in this case was filed by a county government, requests can also come from stations that want to be carried on MVPDs in communities that are now considered to be outside of their markets, or by cable or satellite providers who want a station to be considered local so that they need not pay distant-signal copyright fees.  No matter who files the market modification request, these cases make clear that the request must be very detailed for the Commission to process it.

Some of the requested information – such as information about non-MVPD household viewing patterns – can be difficult to obtain, especially in counties where there is little over-the-air viewing.  Other information may require an archival dig into historical records to find the history of TV carriage in a market.  These cases make clear that the effort must be made, or the request will be denied.

Global Music Rights, the relatively new performing rights organization that signed a number of composers of popular songs away from ASCAP and BMI in order to seek higher music royalties for the public performance of their works on radio stations and other media platforms (see our articles here and here), lost one round in its litigation with the Radio Music License Committee in RMLC’s attempt to bring GMR under some sort of rate review under the antitrust laws.  RMLC has alleged that GMR, by combining multiple artists in a single essentially take-it-or-leave-it package, is able to charge rates well above what any artists could receive on its own, thus violating the antitrust laws (see our articles here and here).  This is a theory like the one which lead to an arbitration with SESAC dramatically lowering royalty rates the radio industry pays to that organization (see our articles here and here).  In a decision released Friday, the Judge presiding over RMLC’s case rejected GMR’s arguments that the suit should be dismissed without a trial.   The Judge, in a short three-page opinion, said that viewed in their most favorable light to RMLC (which is the standard used in deciding on such motions), the facts alleged by RMLC were enough to support the claims it made in the lawsuit, so the case will go to trial.

But this is not necessarily a great victory, as the Judge notes that it remains to be seen whether, when the full facts are introduced at the trial and challenged by GMR, these facts will in fact be enough to sustain the claims of RMLC.  A similar finding was made in GMR’s countersuit – arguing that RMLC formed an illegal buyer’s cartel in violation of the antitrust laws by trying to negotiate royalty rates for most commercial radio operators (see our article here on that countersuit).  The Court rejected RMLC’s argument that the GMR suit should be dismissed, finding that there were enough facts raised to potentially support GMR’s claims, though also warning that it remained to be seen if, once the facts were presented and challenged at trial, whether they indeed would sustain GMR’s claims. Continue Reading Litigation Continues as Court Rejects GMR Motion to Dismiss RMLC Lawsuit – and RMLC’s Request to Dismiss GMR Claims

The FCC yesterday released another of its regular EEO audit notices (available here), asking that approximately 240 radio stations and about 80 TV stations, and the station employment units (commonly owned stations serving the same area) with which they are associated, provide to the FCC (by posting the information in their online public inspection file) their last two year’s EEO Annual Public File reports, as well as backing data to show that the station in fact did everything that was required under the FCC rules. Audited stations must provide copies of notices sent to employment outreach sources about each full-time vacancy at the stations as well as documentation of the supplemental efforts that all station employment units with 5 or more full-time employees are required to perform (whether or not they had job openings in any year). These non-vacancy specific outreach efforts are designed to educate the community about broadcast employment positions and to train employees for more senior roles in broadcasting. Stations must also provide, in response to the audit, information about how they self-assessed the performance of their EEO program. Stations that are listed in the audit notice have until March 23, 2020 to upload this information into their online public file.

The FCC has promised to randomly audit 5% of all broadcast stations each year. As the response (and the audit letter itself) must be uploaded to the public file, it can be reviewed not only by the FCC, but also by anyone else with an internet connection anywhere, at any time.  The license renewal cycle which began last year adds to the importance of this audit, as a broadcaster does not want a recent compliance issue to headline the record the FCC will be reviewing with its license renewal (see our article here about the license renewal cycle). So, whether you are on the list or not, this is a good time for broadcasters to review what is required by the FCC’s EEO rules. Continue Reading FCC Issues First EEO Audit of 2020 Targeting 320 Radio and Television Stations – Reviewing the Basics of the FCC’s EEO Rules