It was news earlier this week when a company that promotes poker was sued by one of the major record labels and publishing companies for the use of music in podcasts without permission. As we have written before (see, for instance, our articles here and here), the use of music in podcasts requires a license from the copyright holder of both the musical composition and the recorded performance of the music (usually, for popular music, a publishing company and a record label). In this case, one of the first we’ve seen against a podcaster for infringement of a copyright holder’s music rights (though we have heard of other situations where cease and desist letters were sent to podcasters, or where demand letters from copyright holders resulted in negotiated settlements), Universal Music alleges that the podcast company used its music and refused to negotiate a license despite repeated attempts by the music company to get the podcaster to do so. Thus, the lawsuit was filed.

As we have pointed out before, a broadcaster or other media company that has performance licenses from ASCAP, BMI, SESAC and even GMR does not get the right to podcast music – nor do the SoundExchange royalty payments cover podcasts. These organizations all collect for the public performance of music. While podcasts may require a performance license (see our article here about how Alexa and other smart speakers are making the need for such licenses more apparent as more and more podcast listening is occurring through streaming rather than downloads), they also require rights to reproduction and distribution of the copyrighted songs and the right to make derivative works – all rights given to copyright owners under the Copyright Act. These rights are not covered by the public performance licenses which only give the rights to make performances to the public. What is the difference between these rights? Continue Reading Podcaster Sued for Copyright Infringement for Using Music without Permission – Remember ASCAP, BMI and SESAC Licenses Don’t Cover All the Rights Needed for Podcasting

A topic not much discussed among broadcasters, but one that should be paramount in the future planning of all broadcast companies, is insuring the security of their stations and the safety of their employees.  This is an issue on which all broadcasters should be focusing.  Last month, the Wisconsin Broadcasters Association for the second time featured a panel at one of its conventions dealing with this topic.  While many might think that security issues won’t arise at their stations, in fact it can be an issue at any station in any market.  Listening to the stories told by the participants on these panels, and in later discussions with audience members at the two WBA conferences where the panel has now been featured, and judging from news reports, the topic is clearly one that all broadcasters should be considering.  Video of the panel held last month is available here.

While the panel was premised on protecting journalists who often are the highest profile “faces” of a TV station, from the discussion it was clear that the need for security planning is one that applies not just to TV stations with news operations, but even to radio stations and other media outlets that can, for one reason or another, be targeted by someone with a grudge against the outlet or one of its personalities.  We have seen high profile incidents like the shooting of the Roanoke TV journalists or the employees of an Annapolis newspaper, and we have seen just in the last few weeks pipe bombs sent to news organizations and threats against cable TV hosts.  But, as discussed at the WBA panel, there have been many less publicized incidents.  Two of the panelists discussed their experiences, one a shooting at a small community-run radio station and the second an intruder making threats and smashing station property in broad daylight at a small market TV station.  These incidents, beyond simply raising questions of employee safety, raise both practical and legal issues for all broadcasters. Continue Reading The Importance of Assessing the Safety and Security of Broadcast Stations and Their Personnel

As we have written before, the next license renewal cycle begins on June 1, 2019, with radio stations in Maryland, Virginia, West Virginia and the District of Columbia submitting their applications. Radio renewals proceed in with applications every other month from a state or group of states (the schedule is available on the FCC website here). TV renewals begin a year later – in the same state-by-state order. Earlier this month, I conducted a webinar for several state broadcast associations to help stations in those states start to look at their operations to avoid issues that might otherwise come up in with their license renewals. Slides from that presentation are available here.

With license renewals coming up, stations should be insuring that they are ready. As we recently wrote, that includes making sure that the station’s online public file is active and has all of the required information. Particularly important are the collection of Quarterly Issues Programs reports that date back to the grant of your last renewal, as these lists demonstrate how your station has served the public interest, addressing the needs and issues facing its community (see our article here). Annual EEO Public Inspection file reports should also be in the file for stations that are part of employment units with 5 or more full-time employees, dating back to the last renewal. Stations should also be reviewing all of their other operations in preparation for renewal, to make sure that they are ready for the upcoming filing window for their stations. Assuring yourself that the station has all the licenses it needs for its technical operations, and that there are no problems with matters such as RF radiation at their tower site, are issues that should not be left for the last minute. So check out the slides from the presentation, talk to your own consultants and attorneys about other issues that may come up in the renewal process, and look for more guidance from the FCC which will undoubtedly be coming soon as the first filing date approaches.

 

While the holidays may be upon us, there is no rest in the broadcast regulatory world. December 1 brings routine EEO public file report obligations for radio and television station employment units with 5 or more full-time employees for stations located in Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, and Vermont. Stations in those states need to upload their EEO Public Inspection file report to their online public file by December 1, reporting on their outreach efforts for employment openings at their stations in the prior year, as well as their non-vacancy specific outreach initiative (i.e. the FCC’s EEO “menu options” where broadcasters report on efforts they have taken to educate the public about broadcast employment opportunities and to train their employees to assume more important employment roles at their stations). See our post here for more on the EEO obligations.

TV stations with 5 or more employees located in any of the New England states have the additional obligation to file their FCC Mid-Term EEO Report – due on December 3 as the 1st is a Saturday. This report, filed on FCC Form 397, provides the FCC with the last two years’ Public File Reports, and a contact person at your stations to be contacted with EEO questions. While the FCC is considering elimination of these reports as most of the required information is already in a station’s online public file (where you should have all EEO public inspection file reports back to the date of the station’s last license renewal filing), the form is still required. Continue Reading December Regulatory Dates for Broadcasters – EEO Reports, December FCC Meeting and Getting Ready for New Years’ Obligations

The agenda for the FCC’s December 12 open meeting is to be released today. As has become customary, the Chairman yesterday blogged about the issues to be considered at the meeting. For broadcasters, there are two matters of interest. The first will be the initiation of the next Quadrennial Review of the FCC’s ownership rules. This will begin with a notice of proposed rulemaking teeing up the areas that the FCC will be considering in this review – including radio ownership issues and likely further clarification of the FCC’s standards for waivers allowing the combination of two of the Top 4 TV stations in any market. The draft order should be released later today, just in time for Thanksgiving reading. We will post a link here when it is available (Update, 2:30 PM EDT, the draft NPRM is available here) – and will summarize some of the highlights next week.

Also on the agenda is the Order resolving the FCC’s proposal to eliminate the requirement that broadcasters post their station authorizations at the control points of their stations. We wrote about that proposal here. When the FCC posts the draft order later today, we will provide a link (Update, the link to the draft order is here). Watch for consideration of these issues at the December meeting.

The FCC last month released a Notice of Proposed Rulemaking suggesting a lessening of the interference protections afforded to Class A AM stations – what are commonly known as the “clear channel” stations. That NPRM was published in the Federal Register today setting a deadline for filing comments on the FCC’s proposals of January 22 and a deadline for reply comments of February 19. We summarized the FCC’s proposals here.

As we wrote in our initial summary of the proposal, this proceeding is likely to be controversial, as licensees of Class A stations fear that the reduction in interference could lessen these stations’ appeal to advertisers, potentially adversely impacting some of the few remaining successful AM stations. The importance of these stations to rural residents and the transmission of EAS alerts are other public interest factors cited by these licensees. On the other side are the many local AM operators who might be able to increase power, especially at night, to provide better service to their communities. No matter which side of the debate you may fall on, make your thoughts known in the upcoming comment period.

Can retweeting or sharing someone else’s content get you into trouble? Possibly, based on news reports of a recently filed lawsuit seeking damages for defamation from a cable TV host who retweeted a twitter photo suggesting that someone has made racially derogatory comments. This case seems similar to the one about which we wrote here, where a court found a company liable for copyright violations for embedding a link to a Twitter photo on its site, when the photo was originally posted on Twitter without permission of a copyright owner. While neither of these cases are final decisions, and liability has not been determined in either case, they do point out that you need to be careful with what you post – that publicizing or actively sharing content raises issues of whether you could be liable if that promoted content has legal issues. With broadcasters and other media companies encouraging their public personalities to be active on social media, make sure that these personalities are warned to be cautious about what they post – as your media company does not want to be the “deep pocket” that someone who feels wronged by a social media posts comes after in a lawsuit.

See links to recent presentations, here and here, which identify other legal issues that can come up in your use of social media.

The FCC has for decades prohibited the “premature construction” of broadcast stations – constructing new stations or new facilities for existing stations prior to the issuance of an FCC construction permit. In recent years, fines for such activities have been rare. But, last week, the FCC issued a Notice of Apparent Liability proposing to fine an LPFM station licensee $5000 for making changes in its station without prior FCC approval of its pending construction permit application. This decision highlights that broadcasters should not jump the gun in constructing a station or a modified facility until they have a construction permit in hand, even if they do not start broadcasting from the new facilities, as they could face FCC penalties for having done so.

This policy stems from a fear by the FCC that if broadcasters construct facilities before they are granted construction permits, the broadcasters can try to use that construction as evidence of a hardship that they would face should the FCC deny the construction permit application, making their expenditures worthless. Rather than simply rejecting such arguments, the FCC imposes a fine on broadcasters who take a risk in constructing their facilities before the FCC issues a construction permit. The Commission noted in last week’s decision that certain pre-construction activities are permitted before the grant of a construction permit (e.g. clearing and grading a transmitter site, pouring tower footings, installing electricity to a site, or even buying, but not installing, broadcast equipment). But constructing a tower or installing an antenna before a construction permit has been issued, can lead to an FCC fine or other enforcement action. In last week’s decision, the fine is proposed even though the operator de-constructed the new facilities after a complaint alleging premature construction was filed. While it may seem harsh that the FCC does not allow broadcasters to take the risk of constructing new facilities before a construction permit is granted, this decision makes clear that the premature construction doctrine is still being enforced, so broadcasters need to beware. With winter approaching in much of the country, some broadcasters may want to get a jump on the weather and construct new facilities before the FCC grants pending permits – but beware of the consequences that can follow.

At almost every broadcast conference, there is a discussion of using Alexa, Google Home and other smart speakers and digital assistants to increase the reach of broadcast radio stations. Discussions of how to get listeners to tune in and how to monetize the listeners on these new platforms are regularly included. But rarely is there a discussion of the music royalty impact of transitioning radio listeners to these digital platforms. Given these continuing discussions about smart speakers, and the apparent lack of focus on royalty issues, I thought that it was worth re-running this article that I posted earlier this year.

In the last year, the popularity of Alexa, Google Home and similar “smart speaker” devices has led to discussions at almost every broadcast conference of how radio broadcasters should embrace the technology as the new way for listeners to access radio programming in their homes. Broadcasters are urged to adopt strategies to take advantage of the technology to keep listeners listening to their radio stations through these new devices. Obviously, broadcasters want their content where the listeners are, and they have to take advantage of new platforms like the smart speaker. But in doing so, they also need to be cognizant that the technology imposes new costs on their operations – in particular increased fees payable to SoundExchange.

Never mentioned at these broadcast conferences that urge broadcasters to take advantage of these smart speakers is the fact that these speakers, when asked to play a radio station, end up playing that station’s stream, not its over-the-air signal. For the most part, these devices are not equipped with FM chips or any other technology to receive over-the-air signals. So, when you ask Alexa or Google to play your station, you are calling up a digital stream, and each digital stream gives rise to the same royalties to SoundExchange that a station pays for its webcast stream on its app or through a platform like TuneIn or the iHeartRadio. For 2018, those royalties are $.0018 per song per listener (see our article here). In other words, for each song you play, you pay SoundExchange about one-fifth of a cent for each listener who hears it. These royalties are in addition to the royalties paid to ASCAP, BMI, SESAC and, for most commercial stations, GMR. Continue Reading Hey Alexa – Remind Me How Much You Are Increasing My SoundExchange Music Royalties

By March 1 of 2018, all radio stations were to have activated their online public file. We wrote about how that activation should be done here, and answered other questions about the online public file for radio here. Yet, from my own review, and from what I have heard from engineers who conduct reviews of broadcaster’s FCC compliance for the Alternate Broadcast Inspection Programs sponsored by state broadcast associations, there remain stations that have not yet complied with the requirement. The FCC yesterday issued a reminder to all stations that their files are supposed to be live, and said that the FCC itself will be activating the file for any station that has not already done so by November 15. If they have to activate your public file, they may note that they had to do so, and that may have consequences for license renewals that will be filed for radio starting next year.

For any stations that have not activated their file, you really need to go to that file now and make sure that it is active and that all the required material is in the file. While the FCC will be automatically uploading copies of documents that are electronically filed at the FCC, every station has certain obligations where their own employees need to upload information into the file. For instance, every full-power station needs to upload on a quarterly basis its Quarterly Issues Programs Lists. As we wrote here, these lists are particularly important as they are the only way in which a licensee reports on how it served its community. With license renewals for radio starting in June 2019, a review of the online public file will likely be part of the FCC’s review of the renewal application. Not having these lists, or not having activated the file at all, will likely lead to FCC fines. So check out your online public inspection file, make sure that it is active, and that the information is complete and accurate. Failing to do so may end up costing substantial sums should the FCC find your compliance lacking – which they now can do from the comfort of their own computer, any time of any day.