The FCC has once again started sending out email notices to broadcast stations that are not in compliance with their online public file obligations. This follows a set of notices sent in early December, where the FCC first warned specific stations that there were issues with their online public inspection files (see our article here). The new email notices seem to be sent to two classes of stations – those that have done nothing to their online public files, and those that have activated the files, but not uploaded their Quarterly Issues/Programs Lists to those files. Some of the new notices follow up on notices sent in December. Both sets of notices ask for reports to the FCC from the stations that received the notice of corrective actions that they have taken.

We have been warning of the FCC’s concern about incomplete or inactive online public files for some time, and the potential impact that noncompliance could have on license renewals, which start for radio stations in Maryland, Virginia, West Virginia, and the District of Columbia in June 2019, with pre-filing public announcements of those filings due to begin on April 1 (see our article here). The renewal obligation for radio moves across the country with stations in a few specific states filing every other month in this three-year renewal cycle (for more information see, for instance, our articles here and here). Clearly, this set of emails is a warning to stations that the FCC is watching their public files, and that compliance problems will bring issues, and probably fines, if the files are not complete by license renewal time. The emails that have been sent out do not target every station in noncompliance with the public file obligations – but instead seem to just be a sampling of those stations – so do not relax and assume compliance simply because you did not receive any contact from the FCC. Continue Reading FCC Sends More Warnings to Radio Stations that Are Not Compliant with Online Inspection Public File Obligations – Quarterly Issues/Programs Lists are the Biggest Target

In the last few weeks, the press has been buzzing with speculation that the Department of Justice is moving toward suggesting changes in the antitrust consent decrees that govern the operations of ASCAP and BMI.  Those consent decrees, which have been in place since the 1940s, among other things require that these Performing Rights Organizations treat all songwriters alike in distributions based on how often their songs are played, and that they treat all services alike with users that provide the same kind of service all paying the same rate structure.  Rates are also reviewed by a court with oversight over the decrees when the PROs and music services cannot come to a voluntary agreement to arrive at reasonable rates.  The decrees have also been read to mean that songwriters, once part of the ASCAP or BMI collective, cannot withdraw with respect to certain services and negotiate with those services themselves while still remaining part of the collective with respect to other music users (see, e.g., our articles here and here about the desires of certain publishing companies to withdraw from these PROs to negotiate directly with certain digital services while still remaining in these PROs for licensing broadcasting and retail music users).

With this talk of reform of the consent decrees, Congress, particularly the Senate Judiciary Committee under the leadership of Senator Lindsey Graham, has reportedly stepped in, telling DOJ not to move to change the consent decrees without giving Congress the chance to intervene and devise a replacement system.  In fact, under the recently passed Music Modernization Act, notice to Congress is required before the DOJ acts.  Already, both the PROs and user’s groups are staking out sides.  What are they asking for? Continue Reading ASCAP and BMI Consent Decrees Under Review – How Performing Rights Organizations, Antitrust Policy and Statutory Licenses Could Create a Controversy

March is one of those unusual months in the broadcast regulatory cycle, where there are no routine EEO public file obligations, and no quarterly filing obligations or other regularly scheduled regulatory deadlines.  That means that my tardiness in publishing this article before the start of the month did not miss anything important.  But, starting next month, there will be a whole new set of deadlines about which broadcasters need to be concerned, as April 1 is when the first pre-filing announcements for broadcast license renewals will begin, signaling the start of the 3-year long radio renewal cycle. The 3-year TV license renewal cycle will begin at the same time next year.

Radio broadcasters in Maryland, Virginia, West Virginia and the District of Columbia will be the first to file their renewal applications – and they will need to start running their “pre-filing” notices on their radio stations beginning on April 1, in anticipation of a June renewal filing (renewal applications to be filed no later than June 3, as June 1 is a Saturday).  The FCC has posted a helpful guide to the times that these notices need to run, and a model for the text of these notices, here (although the model text is now outdated, in that it does not acknowledge that stations now have online public files; the FCC has a pending proceeding to modify these public notices that one would hope would be resolved soon – see our articles here and here for details).  Stations in the Carolinas begin their pre-filing announcements two months later, with stations in other states to follow at 2-month intervals after that.  The schedule for renewals is on the FCC website here, and the pre-filing announcements begin two months before the renewal-filing deadline. Continue Reading March Regulatory Dates for Broadcasters – Preparing for License Renewal Tops the List

When is your website or app covered by the Children’s Online Privacy Protection Act (“COPPA”) and the FTC’s COPPA Rule?  Although there are gray areas under COPPA, one clear way to fall under this law is to know that you’re collecting information from children under the age of 13 online.  That’s part of what landed Musical.ly, now known as TikTok, in trouble with the FTC – including a record-setting COPPA fine of $5.7 million.  COPPA isn’t limited to the kinds of video social network apps that Musical.ly provides; broadcasters’ websites and apps may end up falling under COPPA.

According to the FTC’s complaint, Musical.ly knew that it was collecting information from children under 13 (COPPA doesn’t apply to anyone else) for several reasons.  For instance, press articles described the popularity of Musical.ly among under-13 users, the company received hundreds of complaints from parents trying to close their kids’ accounts, and the company itself provided guidance to parents regarding their children’s usage of the app.  Continue Reading FTC Obtains Record $5.7 Million Fine for Children’s Privacy Protection Act Violation

The PIRATE Act, imposing Federal penalties on pirate radio station operators, was passed last week by the US House of Representatives and referred to the US Senate for consideration. We wrote about versions of this bill introduced in prior Congressional sessions here and here. This bill, among other things, would impose penalties of up to $100,000 a day for violations of the Act, up to a total maximum fine of $2 million. It also imposes on the FCC the obligation to report annually to Congress on its activities to crack down on pirate radio, including its efforts to coordinate with the US Attorney’s office and other government officials to seize the equipment of illegal operators of pirate stations. The House passage of this legislation was lauded by Commissioner O’Rielly at the NAB’s recent Leadership Conference in Washington DC, as he has been an aggressive advocate of stronger action against pirate operators.

The Act places particular emphasis on markets identified as being among the top 5 for such illegal broadcasts – requiring the FCC to assign appropriate enforcement officials to those markets at least one a year to do sweeps to locate pirate stations. It also gives the FCC the ability to immediately issue a Notice of Apparent Liability (proposing a fine) without first having to give notice to the pirate radio operator that they are acting illegally. It also requires that the FCC maintain a searchable database of reports of pirate radio operations. While the bill says that penalties can be imposed on “any person who willfully and knowingly does or causes or suffers to be done any pirate radio broadcasting,” which is a broad definition, it does not specifically identify landlords and advertisers as being subject to action, as some past proposals have. The FCC itself has been fining landlords in recent cases (for example, in the case we wrote about here), so perhaps it is now viewed that this provision is not required. In any event, the bill now goes to the Senate for its consideration.

The FCC this week launched an inquiry into whether the TV Parental Guidelines and the organization that oversees these ratings provide accurate information to viewers as to which TV programs are appropriate for children. The FCC released a Public Notice to initiate the inquiry at the direction of Congress in the recently passed Consolidated Appropriations Bill – the Bill which ended the threat of a second government shutdown. That Bill contained a number of provisions directing various government agencies to take specific actions, including a direction to the FCC to provide a report to Congress in 90 days on the “extent to which the rating system matches the video content that is being shown” and whether the TV Parental Guidelines Oversight Monitoring Board (which oversees the ratings system) has the ability to address public concerns about the ratings. With the report due to be submitted to Congress by May 15, the FCC has asked for public comment on an expedited basis, with comments due March 12, and replies due just a week later on March 19.

The Board was established by a voluntary industry initiative approved by the FCC following a Congressional mandate for V-Chip technology in the Telecommunications Act of 1996. For the V-Chip to work, programs have to be rated. The ratings that resulted are familiar to most TV viewers and range from TV-Y programming appropriate for all children to TV-MA, appropriate only for mature audiences. Programs are also rated for Violence (“V”), Fantasy Violence in programming for older children (“FV”), Sexual Content (“S”), Suggestive Dialogue (“D”) and Strong Language (“L”). These ratings are applied to most TV and cable programming except news, sports, and ads. Based on the claims by interest groups that the ratings do not accurately describe the programming, Congress issued this directive to the FCC. What questions does the FCC ask in its request for comments from the public? Continue Reading Do TV Program Ratings Do a Good Job Telling Families Which Programs are Appropriate for Kids to Watch? Congress Wants to Know, So the FCC is Asking

The Notice of Proposed Rulemaking in the next Quadrennial Review of the FCC’s ownership rules was adopted in December and was published today in the Federal Register, starting the 60 day period for public comments. Comments on the NPRM will be due on April 29 with reply comments due on May 29. The FCC is looking at numerous issues, including one issue, the rules setting out the limits on the number of radio stations that one company can own in a market, that has not been reviewed in depth in recent Quadrennial Reviews. On the TV side, the FCC is again looking at local TV ownership (specifically combinations of Top 4 stations in a market and shared services agreements) and also at the dual network rule restricting common ownership of two of the Top 4 TV networks. In addition, the FCC is reviewing additional ideas on how to increase diversity in broadcast ownership. Today, let’s look at the FCC’s questions on the local radio ownership rules.

The review of the radio ownership rules may well be the most fundamental issue facing the Commission in this proceeding, as no real changes have been made in those rules since they were adopted as part of the 1996 Telecommunications Act. As we wrote here, the marketplace has certainly changed since 1996 – which was at least a decade before Google and Facebook became the local advertising giants that they now are; and before Pandora, Spotify, YouTube and many other web services offered by tech giants became competitors for the audience for music entertainment. And spoken word entertainment competition was also virtually non-existent – “audiobooks” were a niche product and the concept of a “podcast” would have been totally foreign when the current rules were written. So what are some of the questions about the radio ownership rules that are being asked by the FCC? Continue Reading Countdown to Comments on Next Quadrennial Review of Media Ownership Begins – Part I, Local Radio Ownership

This week, the Radio Music License Committee issued a press release that states that Global Music Rights (“GMR”), the new performing rights organization that collects royalties for the public performance of songs written by a number of popular songwriters (including Bruce Springsteen, members of the Eagles, Pharrell Williams and others) has agreed to extend their interim license for the performance of their music by commercial radio stations until September 30, 2019. The notice says that GMR will be contacting stations that signed their previous extension (through March 30). If you don’t hear from GMR, the RMLC suggests that you reach out to them about this extension.

As we have written before (see our articles here and here), GMR and the RMLC are in 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). In the interim, there is no license to play the GMR music outside the Interim license offered to all commercial stations, or individually negotiated licenses with the company. Commercial stations that play GMR music should either have a license or should discuss carefully with counsel their potential options and liabilities if they continue to play GMR music. Do not ignore the potential liability as, under copyright law, there are substantial “statutory damages” of up to $150,000 per song for infringement. Noncommercial stations are not covered by this license being offered by GMR to RMLC members, as public performance royalties for noncommercial broadcasting are set by the Copyright Royalty Board (see our article here for more details on the royalties for noncommercial stations). Those stations should also discuss their obligations for royalties under the CRB decision with their counsel.

At its March 15 meeting, the FCC is scheduled to consider two items dealing with broadcasters, according to a blog post authored by Chairman Pai published yesterday. The first item to be considered deals with LPTV stations and TV translators, as well FM broadcasters – setting out the rules for reimbursement to be paid to these stations for costs they incurred due to the repacking of the television spectrum following the TV incentive auction. Our summary of the initial proposal released last year is available here. That proposal has been somewhat controversial particularly in its treatment of FM broadcasters where the full costs incurred by an FM due to the repacking would not be paid, particularly for stations that had to make only short-term moves. We would expect the draft order to be released later today, and will add a link here when that proposed order is released (Update, 2/22/2019 – the draft order is now available here).

The second item is far less controversial. As part of its Modernization of Media Regulation initiative, the FCC is planning on adopting rules that would allow for the sale of satellite television stations (stations that serve principally rural areas primarily by rebroadcasting some or all of another station in the market) without an extensive economic showing of the continuing need for satellite operation. Instead, when evaluating a sale, the FCC proposed to essentially assume that the need for a combined operation continues to exist unless there is a showing to the contrary demonstrating that the satellite could operate independently. See our summary of the initial proposal here. Again, the draft order to be considered at the March 15 meeting should be released later today, and we will add a link here when that order is available (Update, 2/22/2019, the draft order is now available here). Watch for consideration of these orders at the March 15 meeting.

In recent months, there have been many calls to regulate e-cigs, and potentially to regulate the marketing of all sorts of vaping products, including a call last week by an FCC Commissioner in an op-ed article in USA Today.  As we wrote several months ago, these suggestions have been based in the fear that increased promotion of vaping products have led to an increase in tobacco use among children.  While the FDA has been taking efforts to crack down on flavored vaping products to reduce their appeal to kids, the makers of e-cigs still advertise, including on radio and TV.  And those advertisements bring us frequent questions about whether the FCC has rules about advertising these products.  So far, the FCC has had no real role in regulating these products.  In fact, one wonders if it really has any authority to take action against the advertising of e-cigs without Congressional action.

So far, all the limits on e-cig advertising have been imposed by other agencies – principally, the FDA.  The FDA requires a tag on all vaping ads, stating that these products contain nicotine, which is an addictive substance (see our articles here and here for more details about that requirement).  And these ads should not claim health benefits for vaping.  Given the FDA’s concern about children, any ads should also stay out of programming with a large audience of children.  Could the FCC itself do more? Continue Reading A Call to Regulate E-Cig Advertising – What is the FCC’s Role in Regulating Advertising For the Vices?