This week, the lawsuit brought by the Radio Music License Committee (RMLC) against new performing rights organization GMR (Global Music Rights) for alleged violations of the antitrust laws was determined by a court in Pennsylvania to have been brought in the wrong place – and transferred to a court in California.  This case has been on hold for well over two years while this procedural question was ironed out.  Now that the case has been transferred to California, the litigation that has been on hold while the jurisdictional issue was resolved can begin – but don’t expect quick results as these complicated cases can take years to resolve.  What is involved in this case?

Back in 2016, when RMLC concluded that it was not likely to reach a negotiated royalty rate for radio’s use of the musical compositions controlled by GMR songwriters and publishers, it brought the Pennsylvania court action.  In that action, it argued that the rates that GMR wanted were an abuse of the market power that GMR was able to exercise by banding these songwriters together and offering a license to radio stations on an all-or-nothing basis (see our articles here and here for more on the initial suit).  As it had done successfully with SESAC (see our article here), and as has been the case for decades with ASCAP and BMI, RMLC had hoped to have the court declare that GMR’s unrestrained royalty demands were contrary to the antitrust laws, and that some limits should be imposed on those rates.  The RMLC suit against GMR was brought in the same Pennsylvania court in which RMLC had sued SESAC, which led to the settlement subjecting SESAC rates to arbitration if the parties could not voluntarily agree on rates (and the arbitration process ultimately resulted in significantly lower rates for commercial radio than SESAC had previously received – see our article here on the results of the arbitration). Continue Reading Music Rights Suit by Radio Music License Committee Against GMR Moved to California Courts – No End in Sight?

April, as we wrote last month, begins the start of the radio license renewal process, with stations in Maryland, Virginia, West Virginia and the District of Columbia having to run on the 1st and 16th of the month public notices of the planned filing of their license renewals at the beginning of June.  As we also noted last month, April also brings a requirement that, by the 10th of the month, stations add to their online public file Quarterly Issues Programs Lists for the prior quarter, setting out the most important issues facing their communities in the prior quarter, and the programming that they aired to address those issues.  We have written about the importance of these quarterly reports to the FCC to show how you served the public interest and the fines that can be imposed at renewal time if the lists are not properly prepared and uploaded to the online public file.  So don’t forget the obligation this obligation that applies to all full-power stations (and Class A TV stations).  We expect that the FCC will be watching (and in fact already is, as evident from some of their recent warnings to stations)!

In addition, April 1 brings the obligation for radio and television stations in Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, and Texas that are part of an Employment Unit with 5 or more full-time employees, to add to their online public inspection file their Annual EEO Public Inspection File Report.  This report documents the full-time employment openings at the station in the prior year, the recruitment sources used to fill those positions, and the non-vacancy specific outreach efforts (the menu options) that stations use to inform their community about broadcast job openings and the efforts they make to train their staffs to assume more involved roles at their stations.  TV stations in Pennsylvania and Delaware will also file with the FCC their Form 397 EEO Mid-Term Reports – likely the last mid-term reports to be filed as the FCC’s order abolishing these reports should become effective before the next such reports are due to be submitted (see our articles here and here on the FCC’s abolition of the Mid-Term Report and its continued enforcement of the EEO rules through EEO audits). Continue Reading April Regulatory Dates for Broadcasters – Radio License Renewal, Quarterly Issues Programs Lists and Children’s Television Reports, Repacking and EEO Dates, and Comments on the Quadrennial Review

It’s that time again.  If you are planning any on-air pranks on Monday for April Fools’ Day, think twice.  As we do every year about this time, we need to play our role as attorneys and ruin the fun by repeating our reminder that broadcasters need to be careful with any on-air pranks, jokes or other bits prepared especially for the day.  While a little fun is OK, remember that the FCC does have a rule against on-air hoaxes. While issues under this rule can arise at any time, broadcaster’s temptation to go over the line is probably highest on April 1.

The FCC’s rule against broadcast hoaxes, Section 73.1217, prevents stations from running any information about a “crime or catastrophe” on the air, if the broadcaster (1) knows the information to be false, (2) it is reasonably foreseeable that the broadcast of the material will cause substantial public harm and (3) public harm is in fact caused.  Public harm is defined as “direct and actual damage to property or to the health or safety of the general public, or diversion of law enforcement or other public health and safety authorities from their duties.”  Air a program that fits within this definition and causes a public harm, and expect to be fined by the FCC. Continue Reading April Fool’s Day is Monday – Don’t Let the Joke Be on You by Forgetting the FCC’s Hoax Rule

For decades, the FCC has been attempting to solve problems with AM reception – in the 90s looking to protect AMs from each other, and today trying to assist them in overcoming the effects of background “noise” coming from the proliferation of electronic devices in the environment which make AM reception, particularly in urban areas, very difficult. Even a number of car makers have announced plans to remove AM radios from new vehicles – particularly electric ones – given these stations’ susceptibility to interference from in-car electronics. Is there a solution?

Bryan Broadcasting (a long-time client that I assisted with its pleading) thinks it is time that the FCC do something dramatic to give AM a long-term future. This week it filed a Petition for Rulemaking asking the FCC to allow any AM to go all-digital in its operation.  The pleading does not suggest that any AM be forced to convert to an all-digital operation – instead it proposes that stations be given the option to make that conversion whenever they want. This is not a new concept, the FCC having considered it in the past and, in its 2015 AM Revitalization Order and Further Notice of Proposed Rulemaking, discussed listed it as an issue on which they wanted comments so that they could consider such a transition at some point in the future (that discussion principally advanced in the FCC’s questions about the future use of the expanded band – see our post here on that 2015 Order).  Already, there is one AM station in Maryland operating full-time with all-digital facilities under experimental authority, and several tests have been conducted across the country on this all-digital operation.  While these tests have shown many positive results, why suggest this option for AM stations to make this digital conversion now? Continue Reading Time for All-Digital AM?  Petition for Rulemaking Asks that the FCC Allow It

In the last few months, we probably have had more questions about advertising for CBD products than any other topic. At this point, CBD products seem to be sold in nearly every state in the country, and discussions about CBD’s effectiveness seem to be staples on national and local television talk programs. Broadcasters naturally ask whether they can advertise these seemingly ubiquitous products. Unfortunately, the state of the law on CBD at the current time is particularly confusing, as discussed in this article.

First, a primer on terminology. CBD, short for cannabidiol, is a derivative of the Cannabis sativa plant. Industrial hemp is produced from portions of a strain of the same plant containing low concentrations of the psychoactive chemical known as THC, or tetrahydrocannabinol, and hemp can also be used to produce CBD. In contrast, recreational and medical cannabis, derived from the dried flowers, leaves, and stems of the female Cannabis plant (which we’ll call marijuana to distinguish it from hemp), contains higher concentrations of THC and lower concentrations of CBD. Preliminary clinical research has shown the potential benefits of using CBD to treat anxiety, cognition, movement disorders, and pain, and certainly these properties are attributed to the substance in popular culture. But is it legal? Continue Reading Advertising for CBD – Safe for Broadcasters?

In a flurry of actions in the last week, the FCC has acted to assist LPTV stations and TV translators displaced by the TV incentive auction.   It also adopted rules to assist FM stations (including FM translators and Low Power FM stations) that were adversely affected by tower work caused by the incentive auction on the towers they share with TV stations. At the FCC meeting last week, the FCC issued its Report and Order agreeing to reimburse LPTV and TV translator stations for the expenses that they incur in changing channels to accommodate the shrinking of the TV band and the repacking of primary TV stations, as long as those expenses were not reimbursed by other parties (certain wireless carriers have reportedly reimbursed some of these stations for moving quickly to vacate their old channels). FM stations will also be reimbursed for their expenses incurred by tower work by TV stations involved in the repacking that displaced the FM station’s operations. The FCC did not adopt proposals for only partial reimbursement of expenses dependent on the length of displacement (see our article here for more on what those proposals were) – good news for FMs affected by these changes.

The FCC subsequently released a catalog of the types of expenses that would be reimbursed, with estimates for the expected range of those expenses. While displaced stations can seek reimbursement for other expenses that were incurred as a direct result of the incentive auction (excluding any reimbursement for lost sales or employee time), and for expenses that proved to be greater than the FCC’s expectations, the station seeking such reimbursement will need to prove that the expenditures were reasonable and justified. As noted in the Public Notice accompanying the catalog of reimbursable expenses, the FCC will be, at a later date, announcing when eligible stations can start filing for reimbursement. So if you are expecting reimbursement, watch for that notice. Continue Reading FCC Adopts Rules for Reimbursement of LPTV, TV Translators and FMs Displaced by Incentive Auction; Releases Catalog of Reimbursable Expenses; and Lifts Filing Freeze

As we wrote here, the FCC recently adopted a Notice of Proposed Rulemaking to consider changes to its rules dealing with applications for new noncommercial educational stations and LPFM stations. The FCC plans to publish that Notice of Proposed Rulemaking in the Federal Register tomorrow, making comments due May 20, 2019, with replies due on June 18 assuming publication takes place as planned. The changes proposed are set out in our article summarizing the FCC’s NPRM when the draft was first released.   They would affect everything from requirements for the governing documents of applicants for new stations to holding periods for new stations to the length of LPFM construction permits. If you are interested in applying for a new noncommercial station at some point in the future, or in the rules that govern those that do apply, watch this proceeding very carefully.

Correction – 3/20/2019 – The post has been corrected now that Federal Register publication has occurred to give the correct comment date of May 20.  It had previously said May 19, but as that is a Sunday, comments are due the next business day. 

The FCC on Friday issued a Public Notice reminding radio stations that the license renewal cycle begins in June, when all stations in Maryland, Virginia, West Virginia, and the District of Columbia are due to electronically file their license renewal applications, along with the Broadcast Equal Employment Opportunity Report on Form 396 (the 396 being required of all full-power stations, even those with fewer than 5 full-time employees). It is still unclear whether these applications will be filed using the current electronic database for radio (called CDBS), or whether the FCC will require radio stations to use the new electronic database that TV stations have been using for several years now (called LMS).

The renewal filing obligation applies to LPFMs and FM translator stations, as well as full-power stations. As we have written many times in recent months (for example here and here), after the June filing deadline for these Mid-Atlantic states, the renewal cycle moves south – with stations in the Carolinas filing by August 1. Every other month for the next 3 years, radio stations in other states will file their renewal applications. The order in which stations file is available on the FCC’s website, here. The TV renewal cycle starts one year later, beginning in June 2020. Continue Reading FCC Issues Reminder on Upcoming License Renewal Cycle: Begins with Radio in Maryland, Virginia, West Virginia, and the District of Columbia in June and Pre-Filing Public Notices on April 1

In July, we wrote about the FCC’s plan to transfer the responsibility for EEO enforcement from the Media Bureau, where it has resided, to the Enforcement Bureau which the FCC suggested would have more resources and experience to aggressively enforce the FCC’s EEO rules and policies.  That transfer was effective on Friday (see the FCC public notice here).  So expect future correspondence on EEO matters to come from the Enforcement Bureau, rather than the Media Bureau, though we expect that the people actually processing the day-to-day activities of the EEO Branch (like the recent EEO audit we wrote about here) to remain largely the same.  So, while there is a new cop in town, this shows that the FCC continues to take EEO enforcement seriously, as should you at your broadcast station.  See our article here on the basics of broadcasters EEO obligations, as updated here by the FCC’s changes in its requirements for the wide-dissemination of information about station job openings.

Alternate Title: March Madness Trademarks: It’s March Spring and You Do Not Want to Make the NCAA Mad Angry at You

As we have previously reported, the National Collegiate Athletic Association (NCAA) is very serious about taking action against anyone who may try to trade off the goodwill in its March Madness marks — even if the NCAA’s actual marks are not used. For example:

  • Readers may recall that the NCAA filed a trademark infringement action in 2017 against a company that ran online sports-themed promotions and sweepstakes under the marks “April Madness” and “Final 3.” The defendant stipulated to an order providing that it would cease using those marks at least until the end of the year, but the order did not provide for dismissal of the case. The defendant failed to file an answer to the complaint and the NCAA was granted a default judgment, after which it filed a motion requesting an award of attorneys’ fees against the defendant in the amount of $242,213.55. In May 2018, the Court awarded attorneys’ fees in the amount of $220,998.05.
  • The NCAA sued a car dealership that had registered and was using the mark “Markdown Madness” in advertising. (The case was settled.)
  • Even schools that are part of the NCAA are not immune from claims of infringement. Seven years after the Big Ten Conference started using the mark “March Is On!,” the NCAA opposed an application to have that mark federally registered. (Ultimately, the opposition was withdrawn, the mark was registered, but the registration was assigned to the NCAA.)

 

These actions illustrate the level of importance that the NCAA places on acting against the use of trademarks which seek to create an association with its annual Collegiate Basketball Tournament. Clearly, such activities continue to carry great risks. Accordingly, following is an updated version of our prior blog posts on this subject.

🏀        🏀        🏀

With the NCAA Basketball Tournament about to begin, broadcasters, publishers and other businesses need to be wary about potential claims arising from their use terms and logos associated with the tournament, including March Madness®, The Big Dance®, Final Four® or Elite Eight,® each of which is a federally registered trademark. March Mayhem® is also registered to the NCAA, which is currently seeking to register March to the Madness.

The NCAA Aggressively Defends Against Unauthorized Use of its Trademarks

The NCAA states that $844.3M of its annual revenues derives from the licensing of television and marketing rights in the Division I Men’s Basketball Tournament. Moreover, its returns from the tournament have historically grown each year. Most of this income comes from broadcast licensing fees. It also has a substantial amount of revenue from licensing March Madness® and its other marks for use by advertisers. As part of those licenses, the NCAA agrees to stop non-authorized parties from using any of the marks. Indeed, if the NCAA did not actively police the use of its marks by unauthorized companies, advertisers might not feel the need to get a license or, at least, to pay as much as they do for the license. Thus, the NCAA has a strong incentive to put on a full court press to prevent non-licensees from associating their goods and services with the NCAA tournament through unauthorized use of its trademarks. Continue Reading March Madness: Nothing but Net for Trademark Infringement Claims