Discussion of FCC, copyright, advertising and other legal issues of importance to radio and television broadcasters and other media companies
Principal Editor: David O’Connor
Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.
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Global Music Rights (GMR) has sued three radio groups for allegedly playing GMR catalog songs but not paying the associated public performance royalties to GMR. As we have written many times, GMR is a performing rights organization (a “PRO”) representing what they term in the complaints filed against these companies “an elite roster of just over 100 songwriters.” The complaints specifically note that the songwriters include Bruce Springsteen, Bruno Mars, Drake, Pharrell Williams, John Lennon, and The Eagles. The full list of songwriters and songs represented by GMR is available on their website here. As these songwriters are no longer represented by ASCAP, BMI or SESAC, for a company to publicly perform any of these songwriters’ music, they either need a license from GMR or they need to directly license the music from the songwriters or their agents (or fit into one of the limited exemptions that we wrote about here, exceptions that would typically not cover commercial radio broadcasting).
The lawsuits seek $150,000 for each copyrighted work that was allegedly infringed – the maximum set out by the Copyright Act for “statutory damages,” i.e., damages that can be collected even without providing evidence of actual harm caused by the alleged copyright infringement. The allegations against one of the companies suggest that the company played over 100 GMR compositions more than 20,000 times without obtaining a license. While courts have discretion to order far lower statutory damages than those being sought here, even the threat of such damages has been enough to put many of the original file-sharing music sites out of business. Of course, in this case, these damages are being sought not from some company that provides unauthorized, unlimited downloads of copyrighted music, but from radio companies that presumably are already paying other performing rights organizations for the use of music.
Continue Reading Lawsuits Filed Against Three Radio Companies Alleging That They are Playing Global Music Rights Songwriters Without a License – Background for the GMR Claims
March is one of those months where no regularly scheduled FCC deadlines fall. But there are still plenty of other deadlines and dates of importance to broadcasters that fall during this month, from comment dates in rulemaking proceedings, to the start of an auction for new TV stations and the completion of the reimbursement cycle for certain stations involved in the TV repack, to deadlines for radio stations to sign up for the GMR license agreement, and even, with daylight savings time upon us, the time for certain AM stations to adjust their operating parameters.
Let’s start with the rulemaking proceedings. On March 11, comments are due on an FCC Notice of Proposed Rulemaking that seeks to enhance visual EAS messages to assist people who are deaf or hard of hearing. Reply comments on the NPRM are due by March 28. The same Federal Register notice that set these comment dates also references an associated Notice of Inquiry that asks for suggestions on how to improve the current EAS daisy chain architecture to better deliver alerts. Comments and reply comments on the NOI are due by April 11 and May 10, respectively.
Interested parties that want to reply to comments submitted on the FCC’s Second Further Notice of Proposed Rulemaking in the ATSC 3.0 (Next Gen TV) proceeding must have those reply comments in by March 14. In that proceeding, the FCC proposes to allow Next Gen TV stations to include within their license certain of their multicast streams that are aired on “host” stations during a transitional period. Under the FCC’s proposals that are designed to clear up which entity is responsible for legal and regulatory compliance, such multicast streams will be part of the originating station’s license, not that of the “host” station. See the Federal Register notice, here, and read the comments submitted to the docket, here.
Continue Reading March Regulatory Dates for Broadcasters: EAS and Next Gen TV Rulemaking Comments, Incentive Auction Reimbursements, TV Auction, GMR Licensing Deadline, and More
In a press release issued today, the Radio Music License Committee (RMLC) and performing rights organization Global Music Rights (GMR) announced that enough commercial radio stations signed the GMR licensing agreement to allow the settlement of the RMLC/GMR litigation to become effective. As we wrote when the settlement was announced early last month,…
Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.
…
Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.
…
The Radio Music License Committee and SESAC yesterday announced an extension of the terms of the royalty agreement that is currently in place between the commercial radio industry and this performing rights organization. As we wrote here, the agreement under which radio broadcasters have been paying for the last three years was arrived at after an arbitration process following the settlement of an antitrust proceeding, and resulted in a dramatic reduction in the amount of the royalties paid to SESAC prior to that litigation. The antitrust settlement calls for arbitration every three years if RMLC and SESAC cannot voluntarily arrive at new royalties. The initial three-year period expired at the end of the 2018. The parties have been negotiating a deal that covers the period starting from January 1, 2019, and the new deal that they arrived at runs for four years through December 31, 2022. The new blanket agreement is available on the RMLC website here and with instructions from SESAC here. It principally carries forward the deal terms of the prior agreement.
Note that in many trade press reports there have been statements that the agreement covers the public performance of SESAC music, not just on over-the-air radio but also on the streams of broadcast stations and in other “new media transmissions.” These new media transmissions, under the terms of the agreement, also include “radio-style podcasts.” As we noted in connection with RMLC’s recent license agreement with BMI, these agreements cover the public performance rights in a podcast, but that is not the only music license that you need to use music in a podcast. As podcasts are downloadable and playable on-demand, and they involve the synchronization of music and speech into a unified recorded work, the rights under Copyright law to make reproductions and likely the right to make derivative works of these recordings need to be secured. These rights need to come directly from the copyright holders in both the musical composition (the words and music of a song) and the sound recording (that song as recorded by a particular band or singer). The public performance rights from ASCAP, BMI and SESAC are insufficient by themselves to give you the rights to use music in a podcast, which is why there are so few podcasts that make extensive use of major label recorded music.
Continue Reading RMLC and SESAC Agree to Extend Current License Agreement for Commercial Radio – Music Licensing Update for Radio
Music licensing issues are always confusing. At the request of streaming service provider Live365 which hosted World Audio Day as a virtual substitute for our all getting together at last month’s cancelled NAB Convention in Las Vegas, I participated in a discussion of those issues, trying to provide the basics as to who gets paid…
The Radio Music License Committee yesterday told members that Global Music Rights (“GMR”), the performing rights organization that began a few years ago to collect royalties for the public performance of songs written by a select number of popular songwriters (including Bruce Springsteen, members of the Eagles, Pharrell Williams and others who have withdrawn from ASCAP and BMI) has agreed to extend its interim license for commercial radio stations until March 31, 2021. The notice says that GMR will be contacting stations that signed the previous extension (through March 31 of this year) to extend the interim license for another year on the same terms now in place. If you don’t hear from GMR by March 15, the RMLC suggests that you reach out to GMR directly (do not contact RMLC as they cannot help) to inquire about this extension.
As we have written before (see our articles here, here and here), GMR and the RMLC are in protracted 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). GMR has counterclaimed, arguing that RMLC is a “buyer’s cartel” in violation of the antitrust laws. Earlier this year, the lawsuits were consolidated in a court in California, where litigation is ongoing (see our article here about the transfer). In our most recent article about the litigation, we noted that the court rejected motions from each party asking that the other’s claims be dismissed. Thus, unless there is a settlement, the case will go to trial. The decision to extend the interim license for a year, instead of the six-month period in previous extensions, may indicate that GMR at least expects that the litigation will continue.
Continue Reading Another Interim License Extension Offered by GMR to Radio Broadcasters – This Time for a Full Year – An Indication of the Status of the Litigation With RMLC?
Global Music Rights, the relatively new performing rights organization that signed a number of composers of popular songs away from ASCAP and BMI in order to seek higher music royalties for the public performance of their works on radio stations and other media platforms (see our articles here and here), lost one round in its litigation with the Radio Music License Committee in RMLC’s attempt to bring GMR under some sort of rate review under the antitrust laws. RMLC has alleged that GMR, by combining multiple artists in a single essentially take-it-or-leave-it package, is able to charge rates well above what any artists could receive on its own, thus violating the antitrust laws (see our articles here and here). This is a theory like the one which lead to an arbitration with SESAC dramatically lowering royalty rates the radio industry pays to that organization (see our articles here and here). In a decision released Friday, the Judge presiding over RMLC’s case rejected GMR’s arguments that the suit should be dismissed without a trial. The Judge, in a short three-page opinion, said that viewed in their most favorable light to RMLC (which is the standard used in deciding on such motions), the facts alleged by RMLC were enough to support the claims it made in the lawsuit, so the case will go to trial.
But this is not necessarily a great victory, as the Judge notes that it remains to be seen whether, when the full facts are introduced at the trial and challenged by GMR, these facts will in fact be enough to sustain the claims of RMLC. A similar finding was made in GMR’s countersuit – arguing that RMLC formed an illegal buyer’s cartel in violation of the antitrust laws by trying to negotiate royalty rates for most commercial radio operators (see our article here on that countersuit). The Court rejected RMLC’s argument that the GMR suit should be dismissed, finding that there were enough facts raised to potentially support GMR’s claims, though also warning that it remained to be seen if, once the facts were presented and challenged at trial, whether they indeed would sustain GMR’s claims.
Continue Reading Litigation Continues as Court Rejects GMR Motion to Dismiss RMLC Lawsuit – and RMLC’s Request to Dismiss GMR Claims
