Just back from the shutdown, the FCC released an order denying the appeal of two LPFM advocacy groups who had appealed the denial of their petition seeking to block hundreds of new FM translators that will rebroadcast AM stations.  We wrote about prior rejections of this petition by the Media Bureau here and here.  Yesterday’s order rejected the petitioners’ application for review seeking consideration by the full Commission of the Bureau’s decisions.  The petitioner had based their claim on an allegation that new translators could put undue limits on LPFM stations changing transmitter sites.  But the petitioner never showed that any translator would specifically affect any LPFM station seeking to change site (and likely could not, as many new translators are in relatively rural areas where there are likely to be plenty of available spectrum for both translators and LPFM uses).  As there had been no specific showing of any harm created by any of the challenged translator applications, and the petitioners had not shown that they represented any LPFM adversely affected by any translator application, the petition was again rejected for lack of standing.  Given that so many AM stations are relying on these translators (and likely many have already been granted and built), this action should come as a relief to licensees who received grants of these translator applications.

With the reopening of the Federal government (at least for the moment), regulatory deadlines should begin to flow in a more normal course.  All of those January dates that we wrote about here have been extended by an FCC Public Notice released yesterday until at least Wednesday, January 30 (except for the deadlines associated with the repacking of the TV band which were unaffected by the shutdown).  So Quarterly Issues Programs lists should be added to the online public file by January 30, and Children’s Television Reports should be submitted by that date if they have not already been filed with the FCC.  Comments on the FCC’s proceeding on the Class A AM stations are also likely due on January 30 (though the FCC promised more guidance on deadlines that were affected by the shutdown – such guidance to be released today).

February will begin with a number of normal FCC EEO deadlines.  Commercial and Noncommercial Full-Power and Class A Television Stations and AM and FM Radio Stations in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma that are part of an Employment Unit with 5 or more full-time employees need to include in their public files by February 1 the Annual EEO Public Inspection File Reports.  TV stations in New Jersey and New York in Employment Units with 5 or more full-time employees also need to file their FCC Form 397 Mid-Term EEO Reports.  While the FCC appears ready to abolish that form (see our article here), it will remain in use for the rest of this year, so New Jersey and New York TV stations still need to file.  Note that the FCC considers an “employment unit” to be one or more commonly controlled stations serving the same general geographic area and sharing at least one common employee. Continue Reading February Regulatory Dates for Broadcasters – EEO Reports, Webcasting Proceeding, FCC Meeting and Other Issues

The government shutdown continues to create a confusing situation for government agencies faced with statutory obligations that are difficult to honor without a working federal bureaucracy. The FCC by law is required to hold a monthly public meeting but, when the bulk of its employees are furloughed, it is difficult to meaningfully adhere to that obligation. The FCC announced earlier this week that it would go ahead with its January 30 meeting but, if the lapse in appropriations continues through January 29, it will conduct that meeting by conference call, rather than live as is routine. If the shutdown resolves before January 29, a live meeting will be held. The meeting appears as if it will be relatively perfunctory, as it will consist of “announcements only.” The items that had been on the agenda released early this month to be discussed will in fact not be considered. For broadcasters, that means that the order abolishing the EEO Mid-Term Report (about which we wrote here) and the Notice of Proposed Rulemaking on reforms to the process used to award construction permits to noncommercial broadcasters and LPFM applicants (which we wrote about here) will be addressed at some later meeting or by circulation among the Commissioners without a meeting. Keep watching to see what develops next, and see our article here about what is and is not working at the FCC for broadcasters.

Last week, we noted that the Copyright Royalty Board had a notice on its website saying that, because of the government shutdown, it could not publish its notice soliciting petitions to participate in WEB V, the case to set webcasting royalties paid to SoundExchange by noninteractive webcasters (including broadcasters who simulcast their programming on the Internet) for the period 2021-2025 because of the government shutdown.  That notice is normally required by law to be published by January 5 and to give parties 30 days to file a petition to participate in the proceeding.  Well, it looks like the Federal Register authorities have changed their tune, as the notice seeking petitions to participate is in the Federal Register today, setting a deadline of February 4 for parties to file their petitions seeking the right to participate.

It is interesting, as the notice was dated January 4, and presumably was expected to be published much earlier.  So, while parties should have had 30 days to indicate their intent to participate, the time is now much shorter – with the petitions to participate due in just 10 days.  While late filings can be accepted in the discretion of the Copyright Royalty Judges, such late filings limit the participant’s rights.  We will see if there is any accommodation made because of the unique circumstances of this publication – but right now interested parties should be ready to file by February 4 their petitions to participate using the procedures set out in the notice – establishing their interest in the proceeding and the required $150 filing fee.

For several years, we have posted guidelines about engaging in or accepting advertising or promotions that directly or indirectly allude to the Super Bowl without a license from the NFL. It’s that time of year again, so here is an updated version of our prior posts.

The Super Bowl means big bucks. It is estimated that each of the three television networks that broadcasts the Super Bowl pays the NFL over $1 billion per year for the right to broadcast NFL games through 2022, including the right to broadcast the big game on a rotating basis once every three years. The investment seems to pay off for the networks. The Super Bowl broadcast alone generates hundreds of millions of dollars for the networks from advertisers. In addition to the sums paid to have their commercials aired (reported to be approximately $5 million for a 30-second spot), many advertisers spend more than $1 million to produce each ad. In addition, the NFL receives hundreds of millions of dollars from licensing the use of the SUPER BOWL trademark and logo.

Given the value of the Super Bowl franchise, it is not surprising that the NFL is extremely aggressive in protecting its golden goose from anything it views as unauthorized efforts to trade off the goodwill associated with the game. Accordingly, with the coin toss almost upon us, advertisers must take special care before publishing ads or engaging in promotional activities that refer to the Super Bowl. Broadcasters and news publishers have greater latitude than other businesses, but still need to be wary of engaging in activities that the NFL may view as trademark or copyright infringement. (These risks also apply to other named sporting events, for example, making use of the terms “Final Four” or “March Madness” in connection with the upcoming NCAA Basketball Tournament.) Continue Reading As Super Bowl Approaches, Advertisers Should Be Aware of The NFL’s Efforts to Protect Its Golden Goose – 2019 Update on Super Bowl Advertising and Promotions

Update – January 24, 2019 – the notice seeking petitions to participate has been published in the Federal Register, setting a filing deadline of February 4, 2019.  See our article here for more details.

In our summary of January regulatory issues for broadcasters, we suggested that the Copyright Royalty Board this month might start WEB V, the next proceeding to determine the rates that Internet radio stations and other webcasters pay to SoundExchange for the noninteractive public performance of sound recordings. The current royalties (see our initial article on the decision setting current royalties here, and one that provided more details here) expire at the end of 2020. A proceeding to establish the rates for 2021-2025 is a two-year long process, and would normally begin with a request from the CRB for interested parties to file petitions to participate about now. But, even though the CRB itself is not closed because of the partial government shutdown, according to a notice on the CRB website, the Federal Register (in which the notice soliciting petitions to participate would be published) is only accepting notices relating to public safety and welfare – and the CRB proceeding apparently does not fit in those criteria. So the start of the case will be delayed by this government shutdown until the Federal Register publication can be accomplished.

As we have written before, this is likely to be an interesting case – just in determining who will participate. Broadcasters who stream their signals would likely participate, especially as their digital transmissions are becoming more important to some broadcast stations (see our article here on the fact that smart speakers increase digital listening to radio stations – listening on which the SoundExchange royalties must be paid). Some of the other services that have participated in the past proceedings (including Pandora and iHeart) now offer, in addition to their noninteractive services, interactive or on-demand music services for which royalties need to be directly negotiated with the record labels (see our post here for more details on royalties for interactive services). Will they participate in the upcoming case, or have they negotiated direct deals that cover their more traditional webcasting services along with their interactive services? That remains to be seen. Small commercial webcasters, who were left out of the last proceeding (see our article here), might also be interested in participating. Noncommercial webcasters usually participate in these cases as well. But all interested parties appear to be on hold right now – along with many other industries that rely on government actions – until this shutdown is resolved.

In one of those year-end decisions that got lost in the holiday rush, in late November, the Copyright Royalty Board issued its final ruling on the rates to be paid to SoundExchange by “business establishment services” for the ephemeral copies of sound recordings when these music services transmit programming to their customers. We wrote about the CRB’s proposal to adopt these rules in May of last year, and our comments on the decision remain relevant to explaining this order. A slightly revised version of our May post follows.

While Copyright Royalty Board decisions on royalties for webcasters, Sirius XM and mechanical royalties get most of the attention, the CRB also sets rates paid by “business establishment services” for the “ephemeral copies” made in their music businesses. Business establishment services are the companies that provide music to businesses to play in retail stores, restaurants and other commercial establishments. These services have come a long way from the elevator music that once was so derided – and now set the mood in all sorts of businesses with formats as varied as the commercial businesses themselves.  While the rates paid by these services pay for music rights is a little off-topic for this blog, these rates are a bit unusual, so they are worth mentioning.  The Copyright Royalty Board in May announced a proposed settlement between the services that were participating in the CRB case and SoundExchange which will raise the rates gradually from the current 12.5% of revenue to 13.5% over the next 5 years, with a minimum annual fee of $20,000, up from $10,000. These rates, which apply to any company that does not negotiate direct royalties with the sound recording copyright holders, went into effect on January 1, 2019 and will be in place through 2023. Continue Reading Copyright Royalty Board Final Decision on Rates for Business Establishment Services

Along with the draft NPRM we wrote about yesterday to consider changes to the FCC’s rules for granting new construction permits for noncommercial stations and LPFMs, the FCC last week issued another draft order to be considered at its January 30 meeting, assuming that the partial government shutdown has been resolved and the FCC has returned to normal operations. This draft order would adopt the FCC’s proposal advanced last year (see our article here) to abolish the filing of the FCC Form 397 Mid-Term EEO Report, as that form is no longer necessary as the information gathered by the form is now largely available in every broadcasters online public file – which the FCC can review at any time. As the information is already available, the draft order concludes that it is redundant to separately file that same information in a Form 397.

The Form 397 requires the filing of a licensee’s last two Annual EEO Public Inspection file reports. These are documents available in the online public file. The Form 397 also requires the name of person at the station who is in charge of EEO matters. The FCC says that this information is already generally available in the public file, both through an EEO Form 396 filed with the station’s last license renewal, and through the general station contact for questions about the website. The only information that would not be readily apparent from the online public file is whether or not the station is part of a station employment unit (a station or group of commonly owned stations serving the same general service area and sharing at least one common employee) subject to a Mid-Term EEO review. Any TV station who prepares an EEO Public Inspection File Report would be subject to a Mid-Term review as the law requires such review for all TV stations with 5 or more full-time employees – the same employee threshold at which a station must prepare a EEO Public Inspection File Report. But for radio, the Public Inspection File Report must be prepared if the employment unit has 5 or more full-time employees, while a Mid-Term Report is only triggered for radio if the employment unit has 11 or more full-time employees. To inform the FCC as to whether a station is still subject to Mid-Term review, the FCC will require, when a radio station uploads its Annual EEO Public Inspection file report, that it tell the FCC whether or not it is part of an employment unit with 11 or more full-time employees. Continue Reading FCC Releases Draft Order to Abolish FCC Form 397 Mid-Term EEO Report

As we wrote on Friday, the government shutdown affects many aspects of FCC operations – and could affect the ability of the FCC to hold its regular monthly meeting, now scheduled for January 30. With the FCC likely shut down for most of this week, just before closing, the FCC released its agenda for the January 30 meeting (which would normally have been released this week – 3 weeks before the meeting). One interesting item on the agenda was a Notice of Proposed Rulemaking to change certain aspects of the criteria used to evaluate applicants for new noncommercial broadcast stations and LPFMs, and the operations of those new stations after a construction permit is issued. The draft NPRM is here. As with all draft items released with the agenda of an upcoming FCC meeting, the draft is subject to change before that meeting.

It appears that the NPRM was not prompted by any single group representing noncommercial broadcasters, but instead raises a number of issues and problems that have been raised before the FCC in comparative cases in the last decade, which use a “points system” process to determine which mutually-exclusive noncommercial applicant should have its application granted. The point system relies on paper hearings to determine which applicant has the most points, awarding applicants preferences on factors such as whether they have few other broadcast interests, whether they are local organizations, and whether they are part of state-wide networks. The NPRM also looks at the restrictions on what successful applicants can do, once they receive their construction permits to build new stations – including the length of LPFM CPs, the transferability of those CPs, and restrictions imposed on changes to certain NCE technical facilities after a CP grant. Continue Reading FCC to Examine the Process for Awarding Construction Permits for New NCE and LPFM Stations – And Some of the Rules that Apply Once a New Noncommercial CP is Awarded

We typically publish our article about upcoming regulatory dates before the beginning of each month, but this month, the looming FCC shutdown and determining its effect on filing deadlines pushed back our schedule. As we wrote on Friday, the effect of the shutdown is now becoming clear – and it has the potential to put on hold a number of the FCC deadlines, including the filing of Quarterly Children’s Television Reports due on January 10 and the uploading of Quarterly Issues Programs lists, due to be added to station’s public inspection files on January 10. The FCC-hosted public inspection file database is offline, so those Quarterly Issues Programs lists can’t be uploaded unless the budget impasse is resolved this week. Certifications as to the compliance of TV stations with the commercial limits in children’s television programs would also be added to the public file by January 10 – if it is available for use by then. While these and other dates mentioned below may be put on hold, there are deadlines that broadcasters need to pay attention to that are unaffected by the Washington budget debate.

We note that the FCC’s CDBS and LMS databases are up and operating, though most filings will be considered to be submitted the day that the FCC reopens. As the databases are up and operating, many applications can be electronically filed – so TV stations might as well timely upload their Children’s Television Reports on schedule by January 10, to avoid any slow uploading that may result from overloading of the FCC’s system as the FCC reopens. Other FCC deadlines are unaffected by the shutdown – most notably, as we wrote on Friday, those that related to the repacking of the TV band following the TV incentive auction. The FCC has money to keep its auction activities operating so staff are working to keep the repacking on track. Deadlines coming up for the repacking include a January 10th deadline for stations affected by the repacking to file their Form 387 Transition Progress Report. Auction deadlines proceed whether or not the FCC is otherwise open for business. Continue Reading January Regulatory Dates for Broadcasters – The Shutdown Does Not Put Everything on Hold