February 1 is the deadline by which broadcast stations in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma must place into their Public Inspection files their Annual EEO Public Inspection File Report. The report must also be available on these stations’ websites, if they have such sites. The Annual EEO Public Inspection File Report
The nuts and bolts of legal issues for broadcasters were highlighted in two sessions in which I participated at last week’s joint convention of the Oregon and Washington State Broadcasters Associations, held in Stephenson, Washington, on the Columbia River that divides the two states. Initially, I conducted a seminar for broadcasters providing a refresher on their…
Dave Oxenford this week conducted a seminar on legal issues facing broadcasters in their digital media efforts. The seminar was organized by the Michigan Association of Broadcasters, and originated before a group of broadcasters in Lansing, but was webcast live to broadcasters in ten other states. Dave addressed a variety of legal issues for broadcasters in connection with their website operations and other digital media platforms. These issues included a discussion of service marks and copyrights, employment matters, music on websites, the use of social media, privacy, and sponsorship disclosure. The slides used in the Lansing presentation are available here. During the seminar, Dave also mentioned that stations with websites featuring user-generated content, to help insulate themselves from copyright infringement that might occur in the content posted to their website by their audience, should take advantage of the registration with the Copyright Office that may provide safe harbor protection if a station follows the rules and takes down offending content when identified by a copyright holder. The Copyright Office instructions for registration can be found here.
One of the most common issues that arise with radio station websites is the streaming of their programming. In August, Dave gave a presentation to the Texas Association of Broadcasters providing a step-by-step guide to streaming issues, with a summary of the royalty rates paid by different types of streaming companies. That summary to Internet Radio issues is available here. Additional information about use of music on the Internet can be found in Davis Wright Tremaine’s Guide to The Basics of Music Licensing in a Digital Age. Dave also presented this seminar at the Connecticut Broadcasters Association’s Annual Convention in Hartford on October 14.
Last week, the FCC’s Media Bureau granted waivers of the requirement that television tuners be capable of receiving both analog and digital television transmissions, but only with respect to tuners meant for mobile use. The FCC justified the waivers of the All Channel Receiver Act given the technological constraints that an analog reception chip would put on mobile receivers meant for the reception of the Mobile/Handheld Digital Television Standard (A/153) signals. This signal is being tested now to allow television broadcasters to provide mobile programming in addition to their current over-the-air broadcast signals – a service planned for commercial roll out at the end of the year. These waivers, granted in response to requests by Dell and LG Electronics, not only signal the seriousness with which this new service is being regarded, but also provide evidence of the coming end of analog television, now used solely by LPTV stations.
In considering the waiver, the Commission recognized that the only television stations that would be affected by the lack of an analog tuner were LPTV stations, and no such stations opposed the waiver request. As one of the waiver proponents noted, analog television signals were not meant for mobile reception, and thus the lack of such a receiver in a mobile device was no big loss. Moreover, the FCC noted that the digital conversion of LPTV stations has already begun, in that it no longer accepts applications for new analog LPTV stations. The Commission reiterated that it will soon set a date for the final conversion of the last analog LPTV stations to digital. Thus, the failure to receive analog would be, at most, a temporary issue.
The FCC today released a Notice of Proposed Rulemaking asking for public comment on its proposed Regulatory Fees for 2010. These fees are paid annually by most commercial entities that are regulated by the FCC for the privilege of being regulated. Noncommercial broadcasters are exempt from the annual regulatory fees. Collectively, the FCC is proposing to collect over $335 million in fees this year from licensees across the various regulated services. The fees are normally paid in September, and the specific deadline for the payment of this year’s fees will be set by a future Order after the FCC has received comments on, and formally adopted, this proposed fee schedule. The FCC has set a short time for comments, with initial Comments on the proposed fees due by May 4, 2010, and Reply Comments due on May 11, 2010.
As in the past, the Regulatory Fees for broadcast stations are generally based on the Class of Service and the population covered by a station. For the most part, the fees proposed for 2010 for broadcast stations are not much different from the 2009 rates, with the fees for a few categories of television stations actually going down slightly. Additionally, there is no change in the fee proposed for LPTV, Class A, and television translator stations. The full list of proposed fees across the various categories of broadcast stations is provided below. A few things to note with respect to the fees with respect to digital television stations. The NPRM proposes to collect annual regulatory fees from all digital full-service television stations, including any that may have been operating pursuant to Special Temporary Authority (rather than a license) on October 1, 2009. With respect to low power and Class A television stations, the FCC has proposed that if a station is operating both an analog and a paired digital signal, then only a single regulatory fee will be assessed for the analog facility and no fee would be required for the digital companion channel.
Not surprisingly, the Commission has proposed to make the use of its electronic Fee Filer database for the submission of the annual regulatory feesmandatory again, as it was in 2009. It has also proposed that 2010 will be the last year that it will send out reminder letters to broadcast stations about the fees. Starting in 2011, the FCC is proposing to discontinue sending out media notification letters. As the payment deadline will be sometime in September, watch for an Order this Summer adopting the proposed fees, after folks have had a chance to comment.
In a recent decision, the FCC’s Enforcement Bureau ruled that a tower owner should pay a fine for a single day where the required tower lights were not operational, and where no required monitoring of the tower to discover such outage was taking place. On top of the penalty for the non-working lights, the FCC also fined the owner for the failure to report a change in ownership of the tower. The total fine in the case was $4000 (reduced from an initial fine of $13,000 because of the tower owner’s past record of compliance).
As with any FCC fine, while the fine was for one day of tower light outage, there was more to the story. The FCC inspected the tower after receiving a complaint stating that the lights were out on a day that was almost a month before the inspection – indicating that the outage may have been in place for far longer than the one day revealed by the FCC inspection. The tower owner admitted that the person who was supposed to conduct the required daily inspection of the tower lights had moved from the area in which the tower was located, and the owner did not know exactly when that occurred. The owner did not get someone new to do the inspection until after the FCC inspection. And the tower had no automatic monitoring system to determine if the lights were in fact operational. With these admissions, it seemed clear that there was the potential that there had been a problem for a long time, so perhaps the fine was not unexpected, even though the lights were fixed within hours of the FCC report of the problem, as the issue was a simple one that the tower owner blamed on a careless repair person who had recently visited the site.
Many Webcasters who have elected the the royalty rates set by many of the settlement agreements entered into pursuant to the Webcasters Settlement Act must file an election notice with SoundExchange by January 31 to continue to be covered by those settlement agreements. These agreements were entered into by groups of webcasters and SoundExchange, and allow the webcasters to pay royalties at rates lower than those rates set by the Copyright Royalty Board for 2006-2010. January 31 is an important date even for those webcasters who are covered by agreements that don’t demand an annual election, as most Internet radio operators must make annual minimum fee payments by January 31. SoundExchange does not send out reminders of these obligations, so Internet Radio operators must remember to make these filings on their own. The original election forms filed under settlement agreements signed by the NAB and by Sirius XM cover the entire settlement period from 2006-2015, so no election form must be filed each year, though minimum fee payments must still be made. Note that certain small broadcasters, who need not meet SoundExchange recordkeeping obligations, do need to file an election to certify that they still meet the standards necessary to count as a small broadcaster. The WSA settlement agreements that cover Pureplay webcasters, Small Commercial webcasters, Noncommercial Educational webcasters and other noncommercial webcasters all are entered into on a year-by-year basis. Thus, to continue to be covered, parties currently governed by these agreements need to file a Notice of Election to again be covered by these agreements by January 31 (though note that the SoundExchange website provides for filings by February 1, presumably as January 31 is a Sunday).
The election forms are available on the SoundExchange website, though they are not easy to find. The forms that must accompany the annual minimum fees are also on the SoundExchange website. Note that in some cases there are forms that cover both webcasters who paying under a particular settlement, as well as under the special provisions for small entities that are covered by these same agreements (e.g. Small Pureplay webcasters file a different form than other Pureplay Webcasters even though both are governed by the same agreement. Similarly Small Broadcasters file a form different than other broadcasters, though both are covered by the same agreement). These forms can be found at the links below. Click on the name of the category of webcasters for a link to our article that summarizes the particular settlement, the minimum fees required, and the qualifications for small webcasters under that deal (if there is such a provision):
- Broadcasters minimum fee form – here.
- Small broadcasters election form – here. Minimum fee payment form – here.
- Pureplay webcaster election form – here. Minimum fee payment form – here.
- Small pureplay election form – here. Minimum fee payment form – here.
- Small commercial webcaster election form – here. Minimum fee payment form – here.
- Microcaster election form – here. Minimum fee payment form – here.
- Noncommercial educational webcaster election form – here. Minimum fee payment form – here.
- Other noncommercial webcaster election form – here. Minimum fee payment form – here.
- Noncommercial microcasters election form – here. Minimum fee payment form – here.
- Satellite radio (for their webcasting operations – a deal that may also fit other commercial webcasters who are not covered by other agreements) minimum fee payment form – here.
Note that there is no specific form for NPR affiliates covered under the NPR settlement, as an organization set up by the Corporation for Public Broadcasting handles all payments and SoundExchange filings. Other companies providing Internet radio services need to pay attention to these dates – and file the necessary papers and make the required payments by the upcoming deadline.
The FCC has wasted no time in pressing ahead with the discussion of whether the spectrum currently used by local broadcast television stations is being put to the greatest use and whether it should be "re-purposed" for the so-called broadband effort. This afternoon, the FCC issued a Public Notice soliciting comments by December 21st…
By December 1, 2009, all commercial and noncommercial digital television (DTV) stations must electronically file a FCC Form 317 with the Commission reporting on whether the station has provided any ancillary and supplementary services over their digital spectrum during the twelve-month period ending on September 30, 2009.
Under the Commission’s Rules, in addition to providing free over-the-air broadcast television, DTV stations are permitted to offer services of any nature, consistent with the public interest, convenience, and necessity, on an ancillary or supplementary basis. Some examples of the kinds of services that may be provided include computer software distribution, data transmissions, teletext, interactive materials, aural messages, paging services, audio signals, and subscription video.
All DTV stations — regardless of whether the station holds a DTV license or is operating pursuant to Special Temporary Authority (STA), program test authority (PTA), or some other authority — must file a Form 317 reporting whether or not it provided such services and whether it generated any income from such services. If the station did provide such ancillary services, then the FCC wants to know about it. More importantly, if the station generated revenue from the provision of those services, then the FCC wants its 5% cut of the gross revenues derived from such service. The Form 317 is very brief, soliciting information about the license and the types of services provided, if any, and must be filed electronically through the CDBS filing system.
With much of the media world celebrating the life of Walter Cronkite this weekend, we have to wonder what he would have thought about press reports that the FCC is considering the commencement of a proceeding to investigate the status of broadcast journalism – assessing its quality, determining whether the Internet and other new sources are making up for any quality that is lost, and potentially deciding to mandate specific amounts of news coverage by broadcast stations. That surprising story about a planned FCC Notice of Inquiry on the state of broadcast journalism was reported in an an online report picked up by the broadcast trade press last week. And even if that story is not true, concerns about the government’s intrusion into a broadcaster’s coverage of controversial issues arise from the recent Congressional committee action voting down a bill that would ban the FCC from reinstating the Fairness Doctrine. In what should have been a symbolic embrace of the First Amendment (symbolic as, in the last 6 weeks, four of the FCC Commissioners or Commissioners-to-be disavowed any interest in bringing back the Fairness Doctrine in their confirmation hearings ), the defeat of the bill raises questions as to whether someone has an agenda to resurrect the government’s role in assessing broadcast media coverage of controversial issues. In reading one of the many stories of the life of Cronkite (here, at page 3), we were stuck with the contrast between these actions, and the actions of Mr. Cronkite to address controversial issues – regardless of the FCC implications. One anecdote related his questioning of John Kennedy about his religion when Kennedy thought that topic off limits, even in light of the potential president’s veiled threat that, when he took office, he would be appointing the FCC who would be regulating CBS. Do we really want the FCC to have that power to assess what journalism is good, or what opinions each station must air to ensure "fairness"?
In reviewing the many FCC Fairness Doctrine claims that CBS faced in the Cronkite era, we are struck with the amount of time and money that must have been spent in defending its coverage against critics from both the right and the left. We also found one particularly relevant quote from Mr. Cronkite himself:
That brings me to what I consider the greatest threat to freedom of information: the Government licensing of broadcasting. Broadcast news today is not free. Because it is operated by an industry that is beholden to the Government for its right to exist, its freedom has been curtailed by fiat, by assumption, and by intimidation and harassment.
In the last 20 years, since Mr. Cronkite’s retirement as the CBS anchor, the FCC has steadily moved away from the role that he feared. Yet with these recent actions, one wonders if there are some in government now trying to prove Mr. Cronkite’s concerns correct.