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?

On Friday, the FCC issued its first EEO audit of almost 300 radio and TV stations across the country (see the model audit letter and list of stations affected here), the day after announcing its intent to abolish the Form 397 EEO Mid-Term Report (see our articles here and here).  In the Order announcing the forthcoming abolition of the Mid-Term Report, the FCC also noted its intent to being a proceeding in the next 90 days to reexamine the effectiveness of its EEO program – signaling that EEO remains a priority of the FCC and that this audit should be taken very seriously.  While the FCC each year promises to audit 5% of all full-power broadcast stations, and this audit is likely but the first of a number of EEO audits for the coming year, this upcoming review of the effectiveness of the FCC’s EEO process highlights the continued importance of EEO enforcement to the FCC.

The response to the audit must be completed by April 1.  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 anywhere, at any time, as long as they have an internet connection.  The upcoming license renewal cycle 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 upcoming license renewal cycle).  The audit requires that the broadcaster submit their last two EEO Public File Reports (which should already be in the online public file) and backing data to support all of the outreach efforts listed on those public file reports.  Broadcasters subject to the audit should carefully review the audit letter to see the details of the filing. Continue Reading FCC Starts First EEO Audit of Radio and TV Stations for 2019 – And Announces Upcoming Review of its EEO Audit and Enforcement Program

Where do all the Washington DC legal issues facing TV broadcasters stand? While we try on this Blog to write about many of those issues, we can’t always address everything that is happening. Every few months, my partner David O’Connor and I update a list of the legal and regulatory issues facing TV broadcasters. That list of issues is published by TVNewsCheck and the latest version, published today, is available on their website, here. It provides a summary of the status of legal and regulatory issues ranging from the adoption of the ATSC 3.0 standard at one end of the alphabet to White Spaces and Wireless Microphones on the other – with summaries of other issues including Ownership Rule Changes, Children’s Television, Media Regulation Modernization, EEO Compliance, Political Advertising, Sponsorship Identification and dozens of other topics, many with links to more detailed discussions here on the Blog. Of course, the status of these issues changes almost daily, so watch this Blog and other trade publications, and consult your own legal counsel, for the latest Washington news of interest to broadcasters.

The FCC at its meeting yesterday adopted the two broadcast items that it was expected to consider (see our article on the agenda here) – one agreeing to eliminate the FCC Form 397 EEO Mid-Term Report and a second starting a proceeding to reexamine certain aspects of the criteria used to select the applications to be granted for new Noncommercial Educational radio and television and LPFM stations. We wrote about the draft order to abolish the Form 397 here, and the draft Notice of Proposed Rulemaking on the noncommercial criteria here. We will post the final orders in these proceedings here when the FCC releases them – quite possibly later today (Update, 2/15/2019, 1:50 PM EST – the text of the NCE/LPFM NPRM is now available here; Update 2:30 PM EST – the text of the order that will eliminate the Form 397 is now available here).

The elimination of the Form 397 does not become effective immediately as it still needs to be published in the Federal Register and undergo Paperwork Reduction Act review. So TV stations in the northeast, who are due to file their mid-term reports in the coming months, will continue to have this obligation. The change will have no practical effect for more than 4 years, until the first mid-term after the upcoming license renewal cycle hits in June 2023 (see our article here on the start of the radio license renewal cycle in June 2019). The elimination of this report also does not have any substantive effect on the obligations of full-power broadcasters who are part of employment units with 5 or more full-time employees to widely dissemination information about their job openings and to engage in community outreach efforts (even if they have no job openings) to educate the public about employment opportunities in broadcasting and to train existing employees for more advanced positions. So this really is just the elimination of a paperwork burden. Continue Reading FCC Adopts Order to Eliminate the EEO Mid-Term Report and Starts Rulemaking Proceeding to Review Proceedings on Grants of New Noncommercial and LPFM Stations

Back in October, the FCC eliminated the requirement that broadcasters file contracts and organizational documents with the Commission. See our post here for more details. That change became effective on January 22, 2019, as noted in an FCC Public Notice released earlier this week. This change was part of the Modernization of Media Regulation initiative, and was another change made possible by the online public file. As documents related to control of a broadcaster (including stock pledges, options and similar documents) and the organizational documents of any company that owns a broadcast licensee either need to be included in the public file, or specified on a list made available in the public file and made available on request within 7 days, the FCC no longer saw any need for those same documents to be submitted to the FCC. One more filing requirement eliminated – but don’t forget to include these documents (or at least a list of them) in the public inspection file.

With the Copyright Royalty Board now in the early stages of the next proceeding to consider webcasting royalties (see our article here) as well as other proceedings including the distribution of cable and satellite television royalties to TV programmers (see these CRB notices), the Chief Judge of the CRB, Suzanne Barnett, announced her retirement earlier this month. The Librarian of Congress has announced that Copyright Royalty Judge Jesse Feder has been elevated to the Chief Judge’s position. That position requires experience in the administration of judicial proceedings – and presumably his experience on the CRB qualified him for the Chief Judge’s position. His old position will be filled, at least temporarily, by Richard Strasser, who currently serves as legal counsel to the CRB and has, in the past, served as an interim Copyright Royalty Judge. This second position on the Board requires someone experienced in copyright legal issues – again something that Mr. Strasser has from his experience at the CRB. His position is temporary, so it is possible that a new Judge could be appointed for this slot at some point in the future. The third position on the Board, which requires someone experienced in economic issues, continues to be held by Judge David R. Strickler. So, for the time being, these three judges will consider the cases pending before the CRB.

We usually think of the FCC as the agency that sets the details of the broadcast disclosure obligations for political candidate’s TV ads. But the Federal Election Commission has its own rules for political advertising that are binding on the candidates, rather than on the stations. But because these ads run on broadcast stations, stations need to pay attention to them to avoid getting caught up in arguments about whether candidate ads are legal, and because the FEC rules often get adopted by the FCC. For these reasons, broadcasters need to pay attention to an entry in today’s Federal Register, where the FEC gives notice of its receipt of a Petition for Rulemaking proposing changes to the textual disclosures made in TV political ads.

Right now, the written disclosures of the sponsor of political ads need to run at 4% of vertical picture height for not less than 4 seconds – the same requirement reflected in both the FEC and FCC rules. The proposal on which the FEC seeks comment suggests that the screen height requirements in the current rules are outdated in the digital television world. According to the Petition, current industry guidelines for a normal disclaimer size is 22 pixels (approximately 2% of the vertical picture height) using HD resolution. Thus, the Petition suggests that 2% be adopted as the standard for political disclosures when shown on high definition digital television transmissions, with the 4% obligation being retained for standard definition broadcasts. After receiving comments, the FEC will decide whether to commence a formal rulemaking proceeding. Comments on this proposal are due on or before Monday, April 15, 2019.

As we wrote here, at the FCC’s December meeting, the FCC was scheduled to adopt an order eliminating the requirement that broadcasters post a physical copy of their licenses and other instruments of authorization at their control points or transmitter sites. In fact, the Commission adopted that order before the meeting, and it today published the order in the Federal Register, meaning that it is effective as of today. This order was adopted as part of the FCC’s Modernization of Media Regulation initiative. As a station’s licenses are now generally available online, the FCC stated that they saw no reason to require that they be posted at station locations not normally accessible to the public. So there is now one less regulatory requirement for broadcasters to worry about.