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With the Digital Television conversion date only eight and a half months away, the end game is beginning.  The FCC has announced that Wilmington, North Carolina will be a test market for the digital conversion, going all-digital on September 8 (or almost all digital, as the local NPR affiliate is not planning to turn off its analog signal, and one LPTV station will continue to operate in analog).  This will provide the FCC with an opportunity to determine what will really happen when the digital transition occurs in February of next year.  What will the FCC learn from this early test?  In the statement of Commissioner Copps at a recent town hall meeting held in Wilmington to address the digital conversion, some of the issues to be watched were set out.

Essentially, the Commissioner identified four different broad categories of issues that would be considered.  They are:

  • Technical issues – will the DTV signals provide adequate service to their communities?  Will the converter boxes be able to receive the signals with "rabbit ear" antennas, or will there be reception problems
  • Will consumers have received the word about the transition, or are there certain groups that will be particularly hard-hit by the transition, missing out on vital information about that transition?
  • How will various partnerships work?  The Commissioner identifies partnerships between various industry, government and community groups to distribute news about the transition, but there are also partnerships between stations and multi-channel video providers (cable and direct broadcast satellite) that need to be worked out
  • The unknown – what other issues that are not anticipated will arise?

As set forth below, many of these issues have been receiving extensive press coverage in recent weeks.Continue Reading What Will the FCC Learn from Wilmington – The Beginning of the End of the TV Digital Transition

Website operators who allow the posting of user-generated content on their sites enjoy broad immunity from legal liability.  This includes immunity from copyright violations if the site owner registers with the Copyright Office, does not encourage the copyright violations and takes down infringing content upon receiving notice from a copyright owner (see our post here for more information).  There is also broad immunity from liability for other legal violations that may occur within user-generated content.  In a recent case, involving the website Roommates.com, the US Court of Appeals determined that the immunity is broad, but not unlimited if the site is set up so as to elicit the improper conduct.  A memo from attorneys in various Davis Wright Tremaine offices, which can be found here, provides details of the Roommates.com case and its implications.

In the case, suit was filed against the company, alleging violations of the Fair Housing Act, as the site had pull-down menus which allowed users to identify their sex, sexual orientation, and whether or not they had children.  Including any of this information in a housing advertisement can lead to liability under the law.  The Court found that, if this information had been volunteered by users acting on their own, the site owner would have no liability.  But because the site had the drop-down menus that prompted the answers that were prohibited under the law, liability was found.Continue Reading Court Affirms Website Owner’s Insulation from Liability for User-Generated Content – If the Website Does Not Contribute to the Liability

The FCC today released a Public Notice stating that their DTV Consumer Education rules will go into effect on Monday, March 31, when they are published in the Federal Register. Thus, broadcast television stations need to immediately be prepared to start complying with these rules.  These rules require that broadasters pick from a set of three plans setting out very specific consumer education activities.  Under Option 1, the option which originated from the FCC, PSAs about the transition would need to start running immediately – 4 spots a day on Monday, and 8 a day on Tuesday, April 1.  We expect that most stations will follow Option 2 – the NAB plan – as it provides more flexibility. But even under the NAB plan, you will need to be running at least 16 30-second PSAs and 16 crawls, all providing information about the transition, during the coming week.  Noncommercial stations also have a third option.  For specific information on the requirements, see our memo on the requirements of the new rules, or review the full Commission order, here.

On April 10, stations will also need to file the new Form 388 for the first time.  On this form, stations will need to specify which of the Options they are selecting (an irrevocable option).  Stations will also need to detail the consumer education education efforts that they have engaged in over the previous quarter – which obviously would have been voluntary efforts prior to the effective date of the new rules on Monday.
Continue Reading FCC Rules on Consumer Education to Go Into Effect on Monday – Broadcast and Cable Systems Should Be Ready to Start Compliance Efforts Immediately

Under the compulsory license for the use of sound recordings – the license which allows Internet radio services to use all legally recorded sound recordings by paying a royalty set by the Copyright Royalty Board – the designated collection agency can, once each year, audit a licensee to assess its compliance with the royalty requirements.  Under the law, when the collective decides to audit a company, it must notify the Copyright Royalty Board, who then gives public notice of the fact that an audit is to take place.  The Copyright Royalty Board has just announced that SoundExchange has decided to audit Last.FM.  Based on a number of public statements, SoundExchange has been citing Last.FM as an example of problems with royalties – contending that Last.FM had paid royalties of only a couple of thousand dollars a year, under the Small Webcasters Settlement Act, just before selling out to CBS for over $200 million.  Given SoundExchange’s tough talk about Last.FM, this notice of an audit is not surprising.  SoundExchange’s focus on this company illustrates the difficulty of valuing music use, and the different perceptions of music users and copyright holders as to what that value should be.

 In past years, SoundExchange has audited a number of webcasters – usually large webcasters.  As SoundExchange must bear the cost of the audit unless a significant underpayment is discovered, it is unlikely that more than a few companies will be audited each year.  However, as SoundExchange has made such a big deal of Last.FM, with witnesses on performance royalty issues mentioning it at Congressional hearings, and representatives mentioning it on various industry conferences (including SoundExchange President John Simson’s reference to the company on a panel on which we jointly appeared at Canadian Music Week earlier this month), many expected that an audit would be forthcoming.Continue Reading SoundExchange to Audit Internet Radio Royalty Payments of Last.FM – What is the Value of Music?

Channel 6 of the television band is immediately adjacent to the lower end of the FM band.  Noncommercial FM radio stations, located at the lower end of the FM band (88.1 FM to 91.9), have the potential to interfere with television stations on that channel.  Thus, FCC rules require that noncommercial FM stations protect…

Although many TV stations are already airing PSAs and other programming designed to educate the public about the upcoming digital television transition, the FCC released an Order containing very specific requirements  for these educational initiatives.  These rules mandate public education efforts about the DTV transition by television broadcasters, multichannel video providers, and electronics manufacturers.  In addition, the new rules require that television stations file a quarterly report on a new form, FCC Form 388, with the FCC (that is also placed in the station’s public file and on its website) certifying compliance with the requirements of the rules and setting out specifics of other consumer educations efforts about the DTV transition that the station has undertaken.The requirements will become effective immediately upon publication in the Federal Register, and continue through March 31, 2009, for all full power stations who complete the transition to their full DTV facilities by February 18, 2009.

The FCC has established three options for meeting the educational initiatives requirement, two of which are available to all TV stations, and one of which is available to noncommercial stations only.  Each has very specific mandates as to how many PSAs about the digital transition are required, and how much additional content (crawls, various over-lays onto programming, long-form programs) are required to meet the obligations.  Thus, broadcasters and others subject to these rules should review the specific requirements carefully.Continue Reading FCC Announces DTV Consumer Education Requirements – Very Specific PSA Obligations Placed on Broadcasters

In recent weeks, Low Power Television stations have been the center of attention in Washington in connection with the Digital television transition.  While all full-power television stations are set to convert to digital operations less than a year from now, ceasing analog operations at the end of the day on February 17, 2009, there is no specific deadline for LPTV stations to convert to digital.  As the NTIA rolls out its coupon program for the purchase of converter boxes that will take digital signals of over-the-air television stations and convert them to analog for those who do not have digital television receivers (see our summary here), LPTV advocates noted that many converters do not pass through analog signals.  Thus, once a television is hooked up to a converter box, that television will not be able to pick up stations broadcasting in analog – so many unconverted LPTV stations after the conversion date will be denied access to television receivers.

Suggestions have been made that the converter boxes be reconfigured to pass through analog – unlikely as many of the boxes have already been manufactured and are on their way to stores (note that some converters do pass through analog signals, but a consumer needs to look for those boxes).  LPTV advocates have also asked for some form of cable must-carry during the transition process – a proposal sure to be opposed by cable system operators.  Continue Reading The Trouble With LPTV – No Plan for DTV Transition

On the last day of 2007, the FCC released its Third Periodic Review of the Digital Television rules and policies, providing the rules and procedures that TV stations must follow in their final transition from analog to digital operations.  This transition leads up to the February 17 deadline when all television stations must cease analog broadcasting and operate full-time in…

Here we are, almost a full month into the new year, and a number of important dates for broadcasters are already upon us.  As we wrote here, for instance, the payment of a minimum fee to SoundExchange by radio stations streaming their signals on the Internet is due today.  Lowest unit rates are in…

The Commission’s DTV Third Periodic Review adopting the rules and procedures for moving television stations through the end of the DTV transition was published in the Federal Register today, meaning that almost all of the new rules and forms adopted by the Order are now effective.   Now that the majority of the new rules are…