The FCC on Monday released a Public Notice announcing that its next test of the Emergency Alert System (EAS) is scheduled for August 7 with a back-up date of August 21 (back-up dates being provided in the event that there are severe weather situations or other emergencies in early August which could increase the potential for public confusion on the originally scheduled date). This test will, unlike the last test we wrote about here, rely solely on the broadcast-based daisy chain where the test is initiated on certain broadcast primary stations, then rebroadcast by stations that monitor those primary stations, who then pass on the test to other stations that monitor these secondary stations and so on down the line to all the EAS participants. This test will not use the Internet-based IPAWS system used in other recent tests.

Thus, in the run-up to the August test, broadcasters should be sure that their EAS receivers are in working order and are tuned to receive the correct stations that they should be monitoring in order to receive alerts. Check your state EAS plan to make sure you know what stations you are to monitor. Make sure that you have been receiving and logging (in your station log) weekly and monthly tests as required by the FCC rules. If you have not been receiving these tests, that likely indicates problems either with your receivers or with the stations that you are monitoring – so find out the reasons for missing tests now and take any corrective actions (as you are required to by the rules). Check out all of your other EAS equipment to make sure that everything is working properly and prepare for the other paperwork obligations that arise because of the upcoming test. Continue Reading Next EAS Test Scheduled for August 7 – Updated ETRS Forms Due July 3

The 2020 presidential elections already loom large, with one of the over 20 Democratic candidates for the Presidential nomination seemingly appearing on whatever TV talk show you tune into on your TV set. With the first debate among these candidates scheduled for late June, it seems like we have a real election already underway – and it is time for broadcasters to start thinking about their political broadcasting obligations under FCC rules and the Communications Act, and beginning to make plans for compliance with those rules.

Stations in Iowa and other early primary states have already been receiving buys from Presidential candidates, PACs, and other third-party groups. That spending is sure to increase in the latter part of the year as these early primaries and caucuses are scheduled early in 2020. What should stations in Iowa and in other states be thinking about now to get ready for the 2020 elections?

We have written about some of the issues that broadcasters should already be considering in our Political Broadcasting Guide (which we plan to update shortly). Obviously, one of the primary issues is lowest unit rates – as those rates become effective 45 days before the primaries (or before any caucus which is open to members of the general public). Thus, the lowest unit charge windows for Presidential campaigns will start for the political contests in Iowa and New Hampshire in December, and roll across the country early next year as the other primaries and caucuses draw near. In addition to our Political Broadcasting Guide, we wrote about other issues you should be considering in determining your lowest unit rates here. Continue Reading Political Broadcasting Issues to Consider Now for the 2020 Election Campaign

The license renewal cycle, about which we have been warning broadcasters for at least the last year (see, for instance, our posts here, here and here), is now upon us. June 3 is the filing deadline for license renewals for radio stations in Maryland, DC, Virginia and West Virginia. Radio stations (including FM translators and LPFMs) licensed to any community in any of those states should be filing their renewal applications in the FCC’s Licensing and Management System (LMS) by Monday’s deadline. The new FCC forms, as we wrote here, have been available since early May, so the renewal and the accompanying EEO program report should either be on file or ready to be filed in LMS by the June 3 filing deadline. These stations should also be running their post–filing license renewal announcements on the 1st and 16th of June, July and August. Radio stations in the next renewal group, in North and South Carolina, should begin their license renewal pre-filing announcements on June 1st and 16th as well, informing the public about the upcoming filing of their renewals due on August 1. See this article on pre-filing announcements for more information.

In addition, broadcasters in Arizona, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, Wyoming, and the District of Columbia that are part of an Employment Unit with 5 or more full-time employees should also be preparing to add to their online public inspection file their Annual EEO Public File Report. This report is due to be added to their online public files by June 1. A link to this report should also be placed on the station’s website, if it has a website. Continue Reading June Regulatory Dates for Broadcasters – License Renewal, EEO Reports, Reg Fee Comments, Ownership Appeal Argument and More

Effective yesterday, May 28, the FCC is accepting applications for television stations to begin to convert to the next generation TV transmission standard – ATSC 3.0 or “NexGen TV.” Last week, the Commission issued a Public Notice announcing that the form (FCC Form 2100) necessary for stations to apply to transition to the new standard is now available for both full-power (Schedule B to Form 2100), low power (Schedule D) and Class A TV stations (Schedule F). Only stations currently sharing channels as part of a Commission-approved channel sharing agreement following the FCC’s incentive auction are not able to apply for the transition at this point, as the FCC Form needs further revisions to its forms to accommodate applications for the transition by these stations. Those forms are expected later this year. In the interim, sharing stations can move forward with 3.0 operations by seeking Special Temporary Authority.

ATSC 3.0 promises to allow broadcasters to transmit more information through their 6 MHz channel – allowing for additional subchannels of programming or more data transmission capabilities that could be sold to those needing to transmit digital information to the wide areas served by TV stations. The transmission standard is far more mobile-friendly than the current standard and also allows for transmissions in an IP format compatible with so many other digital devices receiving information from Internet sources. But the standard is not backward compatible – meaning that to receive the new television signals consumers will need new TV sets with ATSC 3.0 receivers, or converters to provide the signal to existing TV sets. Thus, to ensure that consumers will not lose access to the over-the-air television signals they now receive, the FCC requires that stations converting to the new standard must also simulcast their primary video signal on a station in their market that continues to operate in the current ATSC 1.0 standard. Low power TV stations do not have this simulcasting obligation, meaning they can convert to 3.0 operations and leave the 1.0 standard behind. Continue Reading FCC Starts Accepting ATSC 3.0 Applications – The Next Generation of TV Transmission

Recently, the Radio Music License Committee sent out a memo to broadcasters about a July 8, 2019 SoundExchange payment deadline for pre-1972 sound recordings.  As with everything in copyright law, the issues surrounding pre-1972 sound recordings are complicated, and the RMLC notice, while seemingly straightforward, still resulted in our receiving lots of questions.  These questions may have been compounded because of notices sent to broadcasters back in April about another filing deadline concerning these recordings which caused much consternation for what was, for most broadcasters, a matter of little concern.  For most broadcasters, neither of these dates are of particular concern unless the broadcaster has been identifying pre-1972 sound recordings and not paying SoundExchange royalties when those songs are streamed, and we understand that most broadcasters have in fact been paying SoundExchange for these recordings.  But let’s try to explain what is going on in a little more detail.

First, let’s look at the basics.  Sound recordings (the recording of a particular band or singer performing a song) were originally not covered by federal copyright law.  The law provided protections for “musical works” (i.e. the musical composition, the words and musical notes of the song), but the mere recording of that work was initially not seen as a creative work.  It was thought of more as a mechanical rendering of the real creative work – the underlying song.  So when recordings came to have real value in the first half of the last century, recording artists had to rely on state laws to prevent other people from making and distributing copies of their recordings. Laws against what we would refer to as bootlegging or pirating of recordings were passed in most states, and lawsuits against bootleggers would be brought under these state laws.  It was not until 1972 that Congress, through an amendment to the Copyright Act, recognized that the recordings were themselves creative works entitled to copyright protection.  But that amendment did not fully make all pre-existing recordings subject to the Copyright Act, instead leaving most sound recordings first recorded in the United States prior to the adoption of the amendment to the Act in February 1972 subject to state laws until 2067. Continue Reading Pre-1972 Sound Recordings and the July 8 SoundExchange Filing Deadline

Perhaps some of the most controversial areas in broadcast advertising are those surrounding the advertising of cannabis products. While many states claim to have legalized marijuana, either for medical or recreational purposes, the Federal government still considers its possession and distribution a felony, and has specific laws that criminalize the use of radio frequencies, the Internet, and publications to promote its use. At the same time, the Federal government has recently decriminalized the possession of various hemp-based products with less than .3% THC (the psychoactive ingredient in marijuana) in the 2018 Farm Act. This has led to an explosion in the sale of CBD products – even though the production of such products is, for the most part, to only be conducted after either the adoption of state laws approved by the US Department of Agriculture or under Federal rules that the USDA is supposed to approve – none of which has happened yet. With all these issues outstanding, I was recently asked to talk about the advertising issues surrounding these products before a continuing legal education seminar sponsored by the New York State Bar Association. The slides from my presentation are available here.

As we have advised broadcasters before, because they are Federal licensees, and marijuana is still a federally prohibited substance, there is substantial risk in running any advertising for products supposedly “legal” in the state in which they are being used. These ads are particularly of concern during the license renewal cycle that begins next month, as objections from anti-marijuana activists could put this issue directly before the FCC. Even though states may have adopted rules governing advertising for these products, the federal law still poses great risks for broadcast licensees – just as it does for other federally-regulated entities. That is one of the reasons that federally-chartered and insured banks have stayed away from taking deposits from marijuana-related businesses (a bill is presently pending in Congress to allow banks to take deposits, but its prospects are uncertain). Continue Reading Looking at “Legal” Marijuana and CBD Advertising – A Presentation on the Issues

Last week, the US Department of Health and Human Services (HHS) adopted a new rule mandating, at some point later this year after Paperwork Reduction Act approval, that prescription drug advertising on TV contain certain price information. Specifically, HHS will require TV ads for prescription drugs covered by Medicare or Medicaid to include the list price for a month’s supply or for the usual course of therapy, if that price is $35 or more. While some advertising groups argue that this requirement is an unconstitutional infringement on free speech (see this article from the ANA – the Association of National Advertisers), assuming that the rule goes into effect as planned, what effect will the rule have on TV?

Most importantly, the new rules do not impose obligations on TV stations themselves. Instead, the rule looks to the Lanham Act for enforcement. As noted in the HHS rulemaking order, that means that the primary means of enforcement will be by one drug manufacturer suing another for failing to meet the new guidelines under Lanham Act provisions governing false and misleading advertising. Thus, it appears that TV stations themselves will not be principally in the line of regulatory fire on this issue. But, as with any other government-mandated advertising disclosure, broadcasters should be aware of their clients’ obligations to make sure that clients are not putting themselves at risk, and be sure that in any production done for an advertiser, the ads are placed appropriately and presented against a contrasting background for sufficient duration, and in a size and font style that allows the information to be read easily. So far, the rules have not been extended to radio or online, but HHS says that they will monitor advertising to see if future additions are warranted. Obviously, check with your own counsel for more details on this new requirement – and be prepared when one more disclosure likely comes your way later this year.

 

Looking for a brief explanation of the online public inspection file and Quarterly Issues Programs List, and how they will be viewed in connection with the upcoming license renewal cycle – including the potential fines for violations of the rules? The Indiana Broadcasters has just released this video of me discussing those issues available here.

We have written in more depth about these issues, including our discussion of the importance of the online public file for the renewal process (here and here), the importance of Quarterly Issues Programs lists (here) and the required content of the online public file (here and here). With the license renewal filing process starting for radio stations in June (see the schedule of filing for stations, which is done on a state by state basis, here) and for TV a year later, these obligations, while basic, are very important. So if you have questions about these issues, check out these resources, and contact your own legal advisor for more information.

At its open meeting yesterday, the FCC largely adopted the draft order on changes to its processes for resolving complaints about interference from FM translators to existing FM stations. Its final Report and Order adopting the new rules was released after the meeting yesterday. The general guidelines that we detailed in our summary of the draft order were adopted – so that complaints will generally be considered only when they are from within a primary station’s 45 dBu contour (with a potential for consideration of complaints from outside that contour through a waiver process, where the complaining station shows that there is a significant pocket of listeners outside that contour), and only when a threshold number of bona fide listener complaints have been filed.  When a sufficient number of complaints have been filed, the FCC will ask the operator of the translator to either resolve all complaints by resolving the interference complaints of each of the complaining listeners or by working with the operator of the pre-existing station. If no resolution can be worked out, the parties to the dispute are to engage a third party consulting engineer. FCC will make the final determination whether the interference has been resolved based on information provided by the third-party engineer. If the interference is not resolved to the satisfaction of FCC staff, a translator can be ordered off the air.

The biggest change from the draft order is in the number of complaints necessary to sustain a complaint in bigger markets. In the draft order, the Commission proposed that a station with millions of people in its protected service area might need as many as 65 listener complaints to sustain an interference objection. The Order adopted yesterday changed that tentative decision and instead capped the number of listener complaints that were needed to support an interference claim at 25 for stations with over 2 million people in their protected contour. The FCC also made clear that listeners cannot be offered payment or other inducement for submitting a complaint. Finally, the Commission decided that it would resolve all complaints in 90 days unless there was a compelling reason for more time. Once the FCC has determined that an appropriate number of interference complaints have been filed, it will notify the parties of that fact, and provide intermediate deadlines for submission of a remediation plan or other benchmarks as appropriate. If nothing is resolved in 90 days, and there are no unusual circumstances warranting more time, the FCC may order the offending translator off the air at the end of that period. Continue Reading FCC Adopts New Rules on FM Translator Interference – With Some Changes

The FCC tomorrow will hold a public forum on Electronic Newsroom Technique (ENT) of captioning live TV programming tomorrow from 1 PM to 4:45 PM Eastern Time (see the agenda here). The forum will be available for viewing online (go to the FCC webpage here for information about connecting). This forum may provide a good refresher for stations still using ENT to caption live programming to make sure that they are providing the quality captioning that the FCC expects as outlined in its orders on captioning quality that went into effect on June 30, 2014.

We wrote about some of the goals of the captioning quality proceeding here. The FCC itself has released a good compliance guide, which reminds broadcasters that TV stations that are not Top 25 market affiliates of the Top 4 TV networks can still rely on ENT, but they must be sure that the captions accurately convey what is being said by those speaking during on-air live or near live programing. Specifically, the compliance guide notes these FCC requirements to insure that the ENT captions reflect what is being said on the air:

  • In-studio produced news, sports, weather, and entertainment programming will be scripted.
  • For weather interstitials where there may be multiple segments within a news program, weather information explaining the visual information on the screen and conveying forecast information will be scripted, although the scripts may not precisely track the words used on air.
  • Pre-produced programming shall be scripted (to the extent technically feasible).
  • If live interviews , live on-the scene, or breaking news segments are not scripted, stations will supplement them with crawls, textual information, or other means (to the extent technically feasible).
  • The station will provide training to all news staff on scripting for improving ENT.
  • The station will appoint an “ENT Coordinator” accountable for compliance.

Stations still relying on ENT to meet their captioning responsibilities should review tomorrow’s discussion either live or when it is archived to assure that they are meeting all their responsibilities in following these FCC rules.