According to a recent article from the Des Moines Register, a station in Iowa recently fired two employees who, during what they thought was a break in programming, got into a heated, profanity-laden exchange which, luck would have it, ended up on the air as their mikes were live. Fearing an FCC fine, the
The FCC today issued two fines to stations who violated the FCC’s rule against airing phone calls for which permission had not been received before the call was either taped for broadcast or aired live. We’ve written about other fines for the violation of this rule, Section 73.1206, many times (see here, here, and here). What was interesting about the new cases is that they made clear that a station needs to get permission to record or broadcast the phone call even before the person at the other end of the line says "hello."
In one case, the station was broadcasting using a tape delay. The station placed a call to a local restaurant and, when the person at the other end of the line said hello, the station DJ informed the restaurant employee that he was being broadcast and asked if that was OK. The person responded "yep." But he changed his mind later in the call. The station claimed that, had the person not given permission, the tape delay would have allowed the call to be dumped but, as permission was given, the station continued to run with the conversation on the air. The FCC found that insufficient, as permission had not been received prior to the person saying hello. The second case was much more straightforward – a wake up call by the station to a randomly selected phone number. While the station immediately informed the person who answered the phone that the call was on the air – that did not happen until the recipient of the call had already said hello. In the first case, the fine was $6000 – in the second, $3200.
While all the details are not out yet, the trade press has been filled with announcements this evening reporting that SoundExchange and the National Association of Broadcasters have reached a deal on Internet Radio Royalties. This deal will apparently settle the royalty dispute between broadcasters and SoundExchange for royalties covering 2006-2010 which arose from the 2007 Copyright Royalty Board decision, as well as the upcoming proceeding for the royalties for 2011-2015. According to the press reports, the royalties are slightly reduced from those decided by the CRB for the remainder of the current period, and continue to rise for the period 2011-2015 until they reach $.0025 per performance in 2015. According to the press release issued by the parties, there was also an agreement between the NAB and the four major labels that would waive the limits on the use of music by broadcasters that are imposed by the Digital Millennium Copyright Act.
These limits, referred to as the performance complement, set out requirements on how many songs from the same artist or same CD can be played within given time periods which, if not observed, can disqualify a webcast from qualifying for the statutory license. If a webcaster cannot rely on the statutory license, it would have to negotiate with each copyright holder for the rights to use the music that it plays. The performance complement imposed requirements including:
- No preannouncing when a song will play
- No more than 3 songs in a row by the same artist
- Not more than 4 songs by same artist in a 3 hour period
- No more than 2 songs from same CD in a row
- Identify song, artist and CD title in writing on the website as the song is being played
It will be interesting to see the details of this agreement setting out what aspects of these rules are being waived.
With February 17 only two days away – when all television stations had planned to be terminating their analog service until Congress passed the extension of the conversion deadline until June 12 – many stations are still planning to convert to fully digital operations on that date. In the last few days, we have seen a flurry of FCC orders about the conversion – including one issued late Friday night modifying requirements that had previously been announced, including the requirement that stations providing analog nightlight service provide emergency information in Spanish. As stations complained that they did not have the ability to translate their emergency information into Spanish, the FCC dropped the requirement (though still requiring information about the DTV transition to be broadcast in English and Spanish, probably assuming that Spanish-language PSAs providing the necessary information can be obtained from the NAB or other broadcast groups). That order also officially extended all digital construction permits that would have otherwise expired on February 17, and extended the conditions that are on many of the permits prohibiting digital operations on their final digital channels until the new transition deadline – unless these stations get explicit permission from the FCC to transition early by showing that they will not cause any interference to other stations when they operate on their new digital channels.
The Commission also has been publishing lists of the stations that had intended to go all-digital by February 17 despite the extension. First, the Commission released a Public Notice of all stations that had initially indicated that they would go silent, with a market-by-market analysis of which stations would go all-digital on February 17 (marked in red) and which would continue in analog. After analyzing that list, the Commission issued another Public Notice, with a list of stations that could not go all-digital without submitting certifications that they would meet certain consumer education requirements after the transition – including having at least one commercial station in a market continuing to broadcast a nightlight service that not only included information about the digital transition, but also news and emergency information, for at least 60 days. the certifications also required having a local call center for those who have questions about the transition, having a walk-in center where people can come for assistance with their digital converters, and otherwise taking steps to publicize the transition. Stations either needed to make these certifications, provide another public interest reason why they had to terminate analog operations on February 17, or agree to continue their analog operations.
In three recent cases, the FCC revisited the issue of broadcast contest rules – fining stations for not following the rules that they set out for on-air contests, and reiterating that the full rules of any contest need to be aired on the station (see our previous post on this issue here). The most recent case also made clear that a broadcast station’s contests that may be primarily conducted on its web site are still subject to the FCC’s rules if any mention of the contest is made on the broadcast station. Thus, even though the contest itself may be conducted on the website, with entries being made there and prizes being first announced on the site, if the station uses its broadcast signal to direct people to the site to participate in the contest or otherwise promote it, the broadcaster must announce all of the rules on the air.
In one case, a listener called a station with what she believed to be the correct answer to a question that needed to be answered to win a prize. The listener gave the answer, only to be asked a second unexpected question that she did not answer correctly. The next day, she heard another listener call in, answer the original question in the same way that she did – and win the prize without ever even being asked the second question. When the first listener complained, station employees agreed that the second question was not part of the rules, but did nothing to correct their mistake until after the listener filed her complaint with the FCC. The Commission fined the station $4000 for failing to follow the contest rules and for failing to fully publicize all of the material terms of the contest on the air.
Last week, we wrote about how the Fairness Doctrine was applied before it was declared unconstitutional by the FCC in the late 1980s. When we wrote that entry, it seemed as if the whole battle over whether or not it would be reinstated was a tempest in a teapot. Conservative commentators were fretting over the re-imposition, while liberals were complaining that the conservatives were making up issues. But what a difference a week makes.
Perhaps it is the verbal jousting that is going on between the political parties over the influence of Rush Limbaugh that has reignited the talk of the return of the Doctrine, but this week it has surprisingly been back on the front burner – in force. Senator Debbie Stabenow from Michigan said on a radio show that the positions taken by talk radio were unfair and unbalanced and that “fairness” shouldn’t be too much to ask (listen to her on-air remarks) . When prompted by the host as to whether there would be Congressional hearings or legislation, the Senator said that it would certainly be something that Congress would consider.
With the extension of the DTV transition deadline now passed by Congress, it’s the FCC’s turn to implement the extension and set the way in which television stations will deal with the new June 12 date for the termination of analog television. To start to implement that extension, the FCC today issued a public notice setting out the procedures to be followed by stations in dealing with the new deadline. The Public Notice allows stations that want to do so to go ahead and terminate their digital service on February 17 despite the extension, but they must file with the FCC a notice of that election by midnight on Monday, February 9. The Notice also sets out the requirement for these stations to run a significant number of announcements between now and February 17, including an increasing number of crawls in the final week before the termination date, all to tell viewers that these stations really will be turning off their analog signals on February 17 as they have been saying that they will for the last few years.
If stations do not turn off their signals on February 17, they must keep operating in analog until at least March 14, and can only terminate after giving the FCC at least 30 days prior notice. Education efforts about the new deadline date will also need to continue through the new deadline, and will need to be amended to reflect that deadline. A Davis Wright Tremaine Advisory on these requirements will be published soon – but the Public Notice provides much of the necessary information that stations need to know right now.
The battle over the broadcast performance royalty has begun anew, with the introduction of legislation to impose a performance royalty for the use of sound recordings on broadcast stations. This royalty would be in addition to the royalties paid to ASCAP, BMI and SESAC (which go to compensate composers of music), as this royalty would be paid to the performers of the music (and the copyright holders in the recorded performance – usually the record companies). The statement released by the sponsors of the bill cites numerous reasons for its adoption – including the facts that most other countries have such a royalty, that satellite and Internet radio have to pay the royalty, and that it will support musicians who otherwise do not get compensated for the use of their copyrighted material. The NAB has countered with a letter from its CEO David Rehr, arguing that musicians do in fact get compensation through the promotional value that they get from the exposure of their music on broadcast stations. The 50 state broadcast associations also sent a resolution to Congress, taking issue with the premises of the sponsors – citing the differences in the broadcast systems of the US and that of other countries where there is a performance royalty, and arguing that broadcasting is different from the digital services who have a greater potential for substitution for the purchase of music. What does this bill provide?
The bill introduced this year are very similar to the legislation proposed last year (which we summarized here); legislation that passed the House Judiciary Committee but never made it to the full House, nor to the Senate. Some of the provisions of this year’s version include:
- Expansion of the public performance right applicable to sound recordings from digital transmissions to any transmission
- Royalties for FCC-licensed noncommercial stations would be a flat $1000 per year
- Royalties for commercial stations making less than $1.25 million in annual gross revenues would pay a flat $5000 per year. There is no definition of what constitutes "gross revenues," and how a per station revenue figure could be computed in situations where stations are parts of broadcast clusters
- Excludes royalties in connection with the use of music at religious services or assemblies and where the use of music is "incidental." Incidental uses have been defined by Copyright Royalty Board regulations as being the use of "brief" portions of songs in transitions in and out of programs, or the brief use of music in news programs, or the use in the background of a commercial where the commercial is less than 60 seconds – all where an entire sound recording is not used and where the use is less than 30 seconds long
- Allows for a per program license for stations that are primarily talk
- Establishes that the rates established for sound recordings shall not have an adverse effect on the public performance right in compositions (i.e. they can’t be used as justification for lowering the ASCAP, BMI and SESAC rates)
- Requires that 1% of any fees paid by a digital music service (such as a webcaster, or satellite radio operator) for the direct licensing of music by a copyright owner (usually the record company) be deposited with the American Federation of Musicians to be distributed to non-featured performers (background musicians), while the distribution of any fees to the featured performer be governed by the contract between the performer and record company
- Requires that any 50% of any fees paid by a radio station for direct licensing of music be paid to the agent for collection of fees (i.e. SoundExchange) for distribution in the same manner that the statutory license fees are distributed (45% to the featured performer, 2.5% to background musicians, and 2.5% to background vocalists)
The House of Representatives, after a fairly contentious debate, today passed the Bill extending the termination date for analog service by full-power TV stations, extending the Digital Television deadline until June 12. By that date, all full-power stations will need to complete the transition to digital so that, on June 13, there will be no…
As we wrote on Friday, the Senate has passed the Bill that would extend from February 17 to June 12 the deadline for full-power television stations to transition to digital operations. This leaves the House of Representatives to once again consider the matter – supposedly in committee on Tuesday and perhaps by vote of the full House as early as Wednesday. In preparation for that consideration, there have been conflicting letters released by Congressmen supporting the bill and those who are oppose. The opponents claim that the ability of TV stations to transition before the end date, an option that was important to Senate Republicans who unanamously supported the extension of the transition date, may not in reality exist. The supporters of the bill point to the over 1.85 million people who are on the waiting list for the $40 coupons to be applied against the cost of DTV converters to allow analog televisions to receive digital signals after the transition. What do these letters add to the debate?
The Republican Congressmen leading the charge against the delay of the transition suggest in their letter that the ability of TV stations to transition before an extended June 12 DTV deadline is largely illusory, as they imply that most stations cannot transition until the last day because of interference concerns. They have asked the FCC to immediately provide information about how many stations would be precluded from a transition until June 12 if the date is extended. From our experience, while there are some stations that need to delay their DTV transition until some other station has changed channels, we would be surprised if most stations are precluded from doing so. Many stations are simply going to continue on the channels on which they are currently operating their DTV transitional facilities. Thus, if they are already operating their DTV stations on their post-transition channel, by definition they are not suffering from any preclusive interference issues. And the vast majority of the remaining stations are planning to operate after the transition on their current analog channel which itself, in most cases, is free from interference as the analog operation would have in most cases precluded other stations on interfering channels from operating in too close a proximity to the area served by the station. We are aware of many stations ready to transition early even if the deadline is extended until June 12, and we would think that these stations had reviewed their situations before deciding to do so, and would have been aware of interference concerns in preparation for their February 17 changeover. In some cases they may have coordinated an early change with any station that would have presented an interference issue. Thus, we would be surprised if the FCC report prepared for these Congressmen finds a great number of stations that will be forced to wait until June 12 to do their digital conversion even if they are inclined to make the change early.