The week, Congressman Rick Boucher, a member of both the House of Representatives Commerce and Judiciary Committees, told an audience of broadcasters at the NAB Leadership Conference that they should accept that there will be a performance royalty for sound recordings used in their over-the-air programming and negotiate with the record companies about the amount of a such a royalty.  He suggested that broadcasters negotiate a deal on over-the-air royalties, and get a discount on Internet radio royalties.  Sound recordings are the recordings by a particular recording artist of a particular song.  These royalties would be in addition to the payments to the composers of the music that are already made by broadcasters through the royalties collected by ASCAP, BMI and SESAC.   Congressman Boucher heads the Commerce Committee subcommittee in charge of broadcast regulation, and he has been sympathetic to the concerns of Internet radio operators who have complained about the high royalty rates for the use of sound recordings.  Having the Congressman acknowledge that broadcasters needed to cut a deal demonstrated how seriously this issue is really being considered on Capitol Hill.

The NAB was quick to respond, issuing a press release, highlighting Congressional opposition to the Performance royalty (or performance tax as the NAB calls it) that has been shown by support for the Local Radio Freedom Act – an anti-performance royalty resolution that currently has over 150 Congressional supporters.  The press release also highlights the promotional benefits of radio airplay for musicians, citing many musicians who have thanked radio for launching and promoting their careers.   The controversy was also discussed in an article on Bloomberg.com.  In the article, the central issue of the whole controversy was highlighted.  If adopted, how much would the royalty be?  I was quoted on how the royalty could be very high for the industry (as we’ve written here, using past precedent, the royalty could exceed 20% of revenue for large music-intensive stations).  An RIAA spokesman responded by saying that broadcasters were being alarmists, and the royalty would be "reasonable."  But would it?


Continue Reading Congressman Boucher to NAB – Accept Performance Royalty – How Much Would It Cost?

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.


Continue Reading Countdown to February 17 – Some TV Stations Still Going All-Digital Despite the Extension of the Conversion Deadline

Earlier this week, we wrote about the apparent compromise in the Senate between Republicans and Democrats that would seemingly allow the Digital Television conversion deadline to be delayed from the current date of February 17 that stations have been warning consumers about for years, pushing that date back until June 12.  That compromise legislation passed the

In a Sunday column, George Will revisited conservative commentators’ biggest fear – the return of the Fairness Doctrine.  Will went into depth on the history of the doctrine, the growth in the number of broadcast outlets in recent years, and growth in talk programming since the doctrine was abolished, all to argue against its

The FCC this week released the details of its "White Spaces" decision, authorizing the use of both fixed and mobile unlicensed devices within the television spectrum.  In theory, these devices are supposed to be able to sense the existence of television signals so that they can operate on other frequencies and avoid creating interference.  However, as an extra safety measure, the FCC has also required that these devices connect at least once a day with a database of all other protected users of the television spectrum and, by used of geo-location technology, determine what other users are in the area where the "TVBD" (television band device) is being used and operate on frequencies which protect those other users.  Our firm has prepared a memo outlining the full decision.  The Davis Wright Tremaine memo can be found here.  When one reviews the full text of the FCC decision, it becomes pretty clear that we should not look for such devices anytime soon.

While the Commission’s order actually discussed in some detail the question of whether these devices should be permitted to operate before the end of the digital television conversion in February 2009, given the issues that still need to be resolved, this discussion really appears to be an academic one.  First, devices that meet all of the FCC requirements have to be designed and built, and type-accepted by the FCC labs.  In a recent article by Shelly Palmer in his well regarded blog on television issues, he suggests that many engineers are convinced that these devices simply will not work.  When one reviews the FCC requirements, one can see why that might be the case.


Continue Reading Details of White Spaces Decision Released – Don’t Look for Them Soon as There is Lots to Do Before Any Devices Will Be Introduced

At the FCC meeting held on Election Day, the Commission approved the operation of "white spaces" devices in the TV spectrum.  These would be mobile, unlicensed devices that would operate on TV channels that are not used in a particular location.  Many Internet users have hailed the expansion of wireless Internet opportunities that they believe that this decision will bring.  While the FCC promised that these devices would protect television operations and other current uses of the TV Band, many other groups have reacted to the decision far more skeptically.  All in all, we have probably not heard the end of this debate.

The full text of the FCC Order has not yet been released but, from the Public Notice summarizing the action (which came late in the day, after a several hour delay in the start of the FCC meeting), the FCC appears to have made some concessions to the broadcasters who were objecting that the tests of the white spaces devices were not able to adequately sense the presence of television signals in a way that would protect those stations.  So, to protect television signals, the FCC ordered that, in addition to sensing the existence of television signals, the white spaces devices would also have to have geo-location abilities, which would check the location of the device and compare it to a database of television stations and prevent the device from operating on channels that the database shows to be occupied.  Even with this capacity, organizations representing television stations do not believe that this compromise is sufficient to protect those stations.


Continue Reading FCC Approves White Spaces Devices in TV Band – While Some Hail a Boon to Wireless Internet, Others Say Not So Fast