Journalism Competition and Preservation Act

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  • Congress passed, and the President signed, a continuing resolution to extend funding for the Federal government, including the FCC, averting
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Earlier this week, we covered the broadcast issues that the FCC may be facing in 2024.  But the FCC is just one of the many branches of government that regulates the activities of broadcasters.  There are numerous federal agencies, the Courts, Congress, and even state legislatures that all are active in adopting rules, making policies, or issuing decisions that can affect the business of broadcasting and the broader media industry.  What are some of the issues we can expect to see addressed in 2024 by these authorities?

For radio, there are music rights issues galore that will be considered.  Early in the year, the Copyright Royalty Board will be initiating the proceeding to set streaming royalties for webcasters (including broadcasters who stream their programming on the Internet) for 2026-2030.  These proceedings, which occur every five years, are lengthy and include extensive discovery and a trial-like hearing to determine what royalty a “willing buyer and a willing seller” would arrive at for the noninteractive use of sound recordings transmitted through internet-based platforms.  Because of the complexity of the process, the CRB starts the proceeding early in the year before the year in which the current royalty rate expires.  So, as the current rates expire at the end of 2025, parties will need to sign up to participate in the proceeding to determine 2026-2030 rates early this year, even though the proceeding is unlikely to be resolved until late 2025 (unless there is an earlier settlement)(the CRB Notice asking for petitions to participate in the proceeding is expected to be published in the Federal Register tomorrow).  Initial stages of the litigation (including the identification of witnesses, the rate proposals, the evidence supporting those proposals, and the initial discovery) will likely take place this year. Continue Reading Gazing into the Crystal Ball at Legal and Policy Issues for Broadcasters in 2024 – Part II: What to Expect from the Courts and Agencies Other than the FCC

  • Since the February 24 hearing designation order (HDO) from the FCC’s Media Bureau referring questions about Standard General Broadcasting’s proposed
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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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Kentucky Senator Rand Paul has introduced a bill to repeal all broadcast ownership limitations including the radio and television local ownership rules (see the draft bill, the Local News and Broadcast Media Preservation Act, here, and the Senator’s press release, here).  As we have noted before (see, for instance, our article here), the FCC is currently considering changes to the radio ownership rules but the proposals, first advanced in late 2018, remain stalled in the current FCC seemingly because of its current political deadlock with two Republicans and two Democrats.  The current pending proposal at the FCC (see our summary here) is also considering allowing combinations of two of the top 4 TV stations in a market based on certain defined parameters (such combinations being allowed now only when justified based on an ill-defined case by case public interest analysis).  The Paul legislation would essentially pre-empt this review by abolishing the FCC’s ownership rules.  Of course, being introduced so late in the Congressional session with no other declared political support, the bill has little chance of becoming law in this session of Congress.

The Paul legislation is designed to allow broadcasters to compete with big tech companies that have seriously eroded the advertising and audience shares of broadcast stations over the last decade (see our article here).  According to Paul’s press release, his bill “would give local broadcasters and newspapers much-needed relief from outdated government restrictions that are currently threatening their ability to succeed in an evolving media environment.”  As the broadcast media is the only media subject to such ownership restrictions, many have argued that, for a truly level playing field in today’s media landscape, a significant relaxation of the rules is warranted.
Continue Reading Senator Rand Paul Introduces Bill to Repeal Broadcast Ownership Limits and Allow Joint Negotiations with Big Tech Companies

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.

  • Revisions to the pending Journalism Competition and Preservation Act were released to the public this week (revised draft bill

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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.

  • FCC Chairwoman Jessica Rosenworcel announced several leadership changes at the FCC. The changes include a new head of the Media

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My law firm partner, Jonathan Cohen, has been closely monitoring the developments in the regulation of social media and other big tech platforms by the current administration.  He offers these thoughts on likely areas of legislative and regulatory action in this area in the coming year. 

Many nights, the last thing I do before falling asleep is put down my phone, and the first thing I do upon waking is pick it up.  I know I’m not alone in this.  And how many times have we made an online purchase from bed?  Internet-enabled digital technologies seem to have transformed life for most Americans, changing how we conduct business, connect with each other, and receive information and entertainment.  The advent of these technologies in recent years is what former FCC Chairman Tom Wheeler, in his 2019 book From Gutenberg to Google, calls the “third major network revolution,” after the invention of movable-type printing and the innovations in travel and communications brought about by railroads and the telegraph.  This new revolution is rapidly changing our information ecosystem.

Beyond the commercial opportunities and challenges presented for tech, media, and telecom companies, as well as content creators, the societal impact of this third major network revolution is fascinating and wide-ranging, but also potentially troubling.  Illustrating the power that tech platforms exert over us, Taylor Lorenz of The New York Times recently reported on a conversation she’d had with a 10-year-old boy who was disappointed that no photos were available when he Googled himself.  The boy felt that he wasn’t a real person until his photo came up in a Google search.  Leaving aside the numerous sociological implications of the tech revolution, the tech sector is under scrutiny as never before.  Its business model of tracking users’ online actions and using the data to sell targeted advertising and feed algorithmic amplification has been described by Harvard professor emerita Shoshana Zuboff as “surveillance capitalism.”  Others call it the “attention economy.”
Continue Reading Hot Topic for 2022: Tech Regulation

Last week, the Australian Competition & Consumer Commission approved an application for Commercial Radio Australia to collectively bargain with Google and Facebook over the carriage by these tech platforms of news content from Australian radio broadcasters (press release here, application and approval here).  This approval is an outgrowth of the adoption of the Australian News Media and Digital Platforms Bargaining Code, which authorized bargaining between traditional news media outlets and tech platforms and, if the bargaining is not successful, a mandatory arbitration process to set appropriate royalties to be paid by the tech companies for the use of the news provider’s content.  These actions could be a preview of what could happen in the United States at some point in the future if pending legislation known as The Journalism Competition and Preservation Act, which we wrote about here, is adopted.

There are, of course, differences between the Australian approach and what has been proposed thus far in the United States. The US bill, while providing an antitrust exemption that would permit collective bargaining with tech companies by groups of traditional media companies, does not provide for any mandatory arbitration process for setting rates if no agreement is reached as to the rates and terms of content carriage by the tech companies.  Without providing any mandatory rate-setting process, if negotiations are not successful, the most significant bargaining chip in the US would be for the local media companies to withhold consent to the use of their content by the tech platforms.  It is interesting to note that, in the application by the Australian broadcasters’ organization for a waiver from their competition (antitrust) laws to allow the collective bargaining, the broadcasters disavowed any boycott of the tech platforms, which presumably would be unnecessary with mandatory arbitration waiting if a voluntary agreement cannot be reached.  In the US, a threat to pull content off tech platforms could become more important, though perhaps more difficult to achieve because of antitrust laws (which may allow collective bargaining but may not permit collective boycotts) and other US laws and policies.
Continue Reading Could Australian Decision Giving Broadcasters the Right to Collectively Bargain with Tech Companies Be a Preview of Things to Come in the US?