All posts by David Oxenford

A Presentation on Legal Issues for Podcasters – Who Owns What?

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David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP

On July 25, I spoke at Podcast Movement 2018 – a large conference of podcasters held in Philadelphia. My presentation, Legal Issues In Podcasting – What Broadcasters Need to Know, was part of the Broadcasters Meet Podcasters Track. The slides from my presentation are available here. In the presentation, I discussed copyright issues, including some of the music rights issues discussed in my articles here and here, making clear that broadcaster’s current music licenses from ASCAP, BMI, SESAC and even SoundExchange don’t provide them the rights to use music in podcasts. Instead, those rights need to be cleared directly with the holders of the copyrights in both the underlying musical compositions as well as in any sound recording of the song used in the podcast.

I also discussed how, when podcasters are delivering advertising messages, they need to make clear that the messages are sponsored. We have written about the FTC’s requirements that when someone is paid to promote a product online, they need to disclose that the promotion was sponsored. See our articles here and here. Also discussed, and covered in the slides, were issues about defamation and invasion of privacy (and how concerns like these can become more serious in a podcast than in a broadcast as a broadcast is ephemeral – once the broadcast is over, it is gone – but a podcast tends to be permanent, providing evidence of any content that may be of legal concern). I also touched on privacy and security issues. One topic not covered in the slides, but suggested to me by a podcaster at a reception earlier at the conference, was the question of who owns the podcast.

This is a topic that I have discussed before in various presentations about digital media issues for broadcasters (see, for example, the presentations linked to in my articles here and here). But it seems that it is likely to be one that comes up more and more as traditional media companies expand their digital offerings, and employ independent contractors to prepare the new podcast content, or use employees in ways that were not previously part of the scope of their employment. This may become a particular concern if a podcast takes off, and the content becomes valuable. As we wrote here, independent contractors normally own the rights to the content that they create, unless it is specifically assigned in a written agreement to the company that hired them. So if you are using contractors to create podcasts or any other content, make sure that you explicitly get the rights to that content.

Employees, on the other hand, traditionally create content for their employer – particularly where that content is part of the employee’s job description. But, where the content creation is not part of the employee’s job description, things could potentially become murky. Employers are always best advised to make clear with employees, just as they do with any contractor, who owns the content that the employee creates.

We will write more about podcasting legal issues in future posts. Podcast Movement was an exciting conference where there seemed to be much interest in the legal issues about which these creators should be thinking. There is no FCC that establishes a legal framework setting out the restrictions on the podcaster’s operations, so the law needs to be pieced together from general legal principals and those established by other agencies. More to come on these topics in future posts.

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).

There are no additional costs for the call; the advice is free as part of your MAB membership.

EAS Updates – Nationwide Test, Filing Deadline for Revised Form 1, and New Rules for Use of EAS Tones and Reporting of False Alerts

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David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP

The last month has been one where there has been lots of activity dealing with EAS. The FCC announced that it will be conducting a Nationwide EAS Test on September 20, 2018. The FCC has been conducting these Nationwide tests routinely over the last few years (see, for instance, our articles here and here on past tests). This test will include wireless carriers as well as broadcasters. To be prepared for this test, the FCC reminded EAS participants to file their updated ETRS Form One by August 27 (see our article here), and to be prepared to file the post-test Forms Two (filed on the day of the test) and Three (due by November 5) to report on the results of the test at their stations.

At its July meeting (as we briefly noted here), the FCC adopted an Order making some changes to the EAS rules, as well as asking further questions in an included Further Notice of Proposed Rulemaking. The changes included:

  • New rules allowing “live code testing” – using actual EAS alert tones in practice alerts, but only after providing lots of publicity that the tones are being used only as part of a test.
  • Allowing the use of the EAS attention signal in PSAs and other informational announcements from FEMA and other public interest organizations – but only where simulated tones developed by FEMA are used, as these simulated tones will not trigger other station’s EAS alerts, and only where the tones used are specifically identified as not being a real notice of an emergency.
  • Use of the alert tones like this have been approved in the past by the FCC, but only by use of a waiver process. The FCC actions allow for more testing and more public information without having to request FCC approval for each such use.

The FCC also adopted a requirement for stations to notify the FCC when they broadcast a false EAS alert – requiring that notification be provided within 24 hours of becoming aware of such a broadcast. Right now, only a simple email to the FCC Ops Center will be required, but the Further Notice asks whether a more detailed reporting system should be created, allowing for the reporting of false alerts not just by the EAS participants, but also by the public and other interested organizations.

The order also adopted certain technical validation requirements for EAS systems, requiring new codes in the EAS test messages limiting the period in which those messages are valid, to avoid having outdated emergency messages popping up on stations after the emergency is over. Other technical changes dealing with the authentication of EAS alerts are postponed while the industry works out appropriate protocols for that authentication.

Watch for the effective dates of the requirements to notify the FCC of false EAS tests, and look for updates to your EAS receivers to include the new validation limiter (to become effective within a year). And be sure to file the required ETRS Form One by the August 27 deadline, and be ready for this year’s national test of the EAS system.

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).

There are no additional costs for the call; the advice is free as part of your MAB membership.

Moving FCC EEO Enforcement from the Media to the Enforcement Bureau – What Does It Mean?

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David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP

On July 24, The FCC adopted an order moving broadcast EEO enforcement from the FCC’s Media Bureau to its Enforcement Bureau. The change will be effective later, after certain procedural approvals are obtained and after notice is published in the Federal Register. As EEO enforcement is primarily aimed at broadcasters and cable companies, and has been part of the Media Bureau responsibilities since the Bureau existed, why was this change made and what does it mean?

The FCC makes clear in its order that the reason for the move is that the Enforcement Bureau is for better enforcement of the EEO rules. Specifically, the FCC said this about the transfer of authority from the Media Bureau to the Enforcement Bureau:

“The Enforcement Bureau’s staff has extensive experience conducting investigations and pursuing enforcement in a wide range of areas. They therefore are well positioned to provide assistance and guidance with EEO review, audit, and enforcement work. Further, the Enforcement Bureau has expertise in, and maintains tools and databases to aid with, the tracking of statutory deadlines, including those relevant to EEO audits and investigations, that the Media Bureau does not.”

Thus, broadcasters need to be ready for more rigorous enforcement of the EEO rules.

As is evident from recent FCC decisions fining broadcasters for EEO rule violations, while EEO compliance is somewhat simpler since last year’s decision allowing broadcasters to rely solely on online recruitment sources for their wide dissemination of information about job openings, the rules are still being enforced. While EEO enforcement can arise through complaints or FCC investigations, it is much more common for it to come up in three ways: (1) through EEO audits, (2) in connection with license renewal (which will begin its three-year cycle again next year), and, (3) to a lesser extent, through EEO model programs filed with applications for new stations and in connection with assignments and transfers. As two of those three sources of EEO enforcement are tied to Media Bureau applications, there will have to be cross-Bureau cooperation now in assessing the applications where these issues arise.

We will see how this all plays out in the future. But, for now, watch for the notices on the effective date of this change, and be sure to make sure that your EEO program complies with the FCC’s requirements as there is now a new cop on the beat.

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).

There are no additional costs for the call; the advice is free as part of your MAB membership.

ATSC 3.0, Next Gen TV, Inches Closer to Reality with FCC Simulcasting Rules Becoming Effective

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David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP

This week, the approval of the Office of Management and Budget of FCC rules imposing new paperwork burdens relating to simulcasting of a TV station’s primary signal on a host station when it converts to the new ATSC 3.0 next generation TV transmission system was announced in the Federal Register. The primary rules for ATSC 3.0 were adopted last year, and became effective in March 2018 (see our post here). But the rules requiring an FCC application before commencing the simulcast of the primary signal on the host station as well as over the new ATSC 3.0 signal, the notifications necessary to TV viewers and MVPDs, and other filing obligations required OMB approval under the Paperwork Reduction Act before they could become effective, and that approval has now been obtained. But this does not mean that Next Gen TV stations will be popping up everywhere immediately.

The FCC this week issued a Public Notice announcing the approval of these paperwork requirements, but indicating that it is not yet accepting applications for stations proposing to operate with the ATSC 3.0 standard. The FCC is still preparing a new form for ATSC 3.0 stations to file, and getting its LMS filing system ready to accept all of the newly required FCC filings associated with the conversion. A subsequent public notice will be released when the FCC is ready to accept ATSC 3.0 applications – at some undetermined time in the future, likely at some point in 2019. The Public Notice does offer the option for stations ready to operate with the new system to request experimental authority to do so (several such requests have been filed and granted for tests by commercial and noncommercial stations). But, until the new forms are ready, and until more ATSC 3.0-capable receivers are available to consumers, a mass conversion of stations to the new transmission standard will have to wait.

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).

There are no additional costs for the call; the advice is free as part of your MAB membership.

FCC Requires Updating By Broadcasters of EAS Test Reporting System (ETRS) Form One By August 27

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David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP

The FCC recently released a Public Notice reminding all EAS participants that they need to file ETRS Form One by August 27, 2018. This form needs to be filed by all radio and TV stations, including LPFM and LPTV stations (unless those LPTV stations simply act as a translator for another station). While the FCC has not announced another nationwide EAS test for this year, the FCC still requires that the form be updated on a yearly basis – with a separate Form One being filed for each encoder, decoder, or combined unit used by any station or cluster.

The Public Notice provides information about where to file the form, and also links to this help page on the FCC website that provides information about completing the form. These Frequently Asked Questions are also helpful. They note the information that needs to be submitted in the ETRS form, including the geographic coordinates of the station (with latitude and longitude in NAD83), and various information about the station’s “designation”, monitoring assignments and “geographic zone” – all information that should be set out in the state EAS plan for the state in which the station is located. As it may take some time to locate all of the required information to make sure that any station’s Form One is current and accurate, stations should not delay in beginning to work on this form.

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).

There are no additional costs for the call; the advice is free as part of your MAB membership.

Hey, Alexa, How Much Did You Raise My SoundExchange Royalties?

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David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP,

In the last year, the popularity of Alexa, Google Home and similar “smart speaker” devices has led to discussions at almost every broadcast conference of how radio broadcasters should embrace the technology as the new way for listeners to access radio programming in their homes. Broadcasters are urged to adopt strategies to take advantage of the technology to keep listeners listening to their radio stations through these new devices. Obviously, broadcasters want their content where the listeners are, and they have to take advantage of new platforms like the smart speaker. But in doing so, they also need to be cognizant that the technology imposes new costs on their operations – in particular increased fees payable to SoundExchange.

Never mentioned at these broadcast conferences that urge broadcasters to take advantage of these smart speakers is the fact that these speakers, when asked to play a radio station, end up playing that station’s stream, not its over-the-air signal. For the most part, these devices are not equipped with FM chips or any other technology to receive over-the-air signals. So, when you ask Alexa or Google to play your station, you are calling up a digital stream, and each digital stream gives rise to the same royalties to SoundExchange that a station pays for its webcast stream on its app or through a platform like TuneIn or the iHeartRadio. For 2018, those royalties are $.0018 per song per listener (see our article here). In other words, for each song you play, you pay SoundExchange about one-fifth of a cent for each listener who hears it. These royalties are in addition to the royalties paid to ASCAP, BMI, SESAC and, for most commercial stations, GMR.

In addition, if the station provides other content through these smart speakers, other royalty issues can arise. When a listener can ask for a certain DJ’s program at any time, the tendency for stations is to want to make it available on demand. Before doing that, stations need to get legal advice as to whether their royalties to SoundExchange cover such uses. As we have written before, podcasts and other on-demand media for the most part are not covered by these royalties. Instead, to use music in podcasts, you need to directly negotiate with the publishing company that own the rights to the underlying musical composition and the record company that owns the song as recorded by a particular artist – or find some musician who owns both the words and the recording who will give you rights to their music. The same would be true for on-demand streams delivered through a smart speaker unless the program segments are at least 3 hours long and accessible only at random points within a 3 hour loop, or if the program is at least 5 hours long and made accessible for less than 2 weeks. There are nuances in these rules that need to be observed to avoid going beyond the limits of the SoundExchange license and potentially incurring significant liability for copyright infringement.

In essence, as these smart speakers grow in popularity, the business of the broadcaster providing its programming through these speakers will change. Unlike programming received over-the-air which bears no SoundExchange royalty (see our articles here and here), broadcasters growing a smart-speaker based audience need to budget to meet the costs of the sound recording performance royalty paid to SoundExchange. As the aggregate fee grow right along with the audience size, the broadcaster faces the conundrum that many pure webcasters face – that the royalties grow faster than the additional income generated from the streams as audiences increase.

Is there a solution? For talk and sports radio, there are far fewer issues as, just as long as a station has the digital rights to stream the programming that it airs, the SoundExchange royalties are generally low. But for music-intensive stations, the royalties grow and need to be dealt with. The vast majority of all digital audio services have thus far been unprofitable primarily because of royalties they have to pay. Perhaps, as broadcasters end up more and more reliant on digitally-delivered streams like those heard on Alexa and Google Home, it is time for broadcasters to consider discussions with the record labels about royalties that would perhaps include a “piece of the action” from over-the-air broadcasting in exchange for dramatically lower digital royalties at a level that would allow for a profitable operation. Something to think about next time you ask Alexa to play your favorite radio station.

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).

There are no additional costs for the call; the advice is free as part of your MAB membership.

Dealing with a Local Political Candidate Who Appears in a Spot Advertisement for a Commercial Business

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David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP,

With election season upon us again, I’ve had one question that has come up repeatedly in the last few weeks about local candidates – usually running for state or municipal offices – who appear in advertisements for local businesses that they own or manage. Often times, these individuals will routinely appear in a business’ ads outside of election season, and the candidate simply wants to continue to appear on their businesses’ ads during the election as well. We wrote about this question in an article published two years ago, and since the question has been coming up again, it is worth revisiting the subject. What is a station to do when a local advertiser decides to run for office?

While we have many times written about what happens when a broadcast station’s on-air employee runs for office (see, for instance, our articles here, here and here), we have addressed the question less often about the advertiser who is also a candidate. If a candidate’s recognizable voice or, for TV, image appears on a broadcast station in a way that is not negative (e.g. it is not in an ad attacking that candidate), outside of an exempt program (in other words, outside of a news or news interview program which, as we wrote here, is a very broad category of programming exempt from the equal time rules) that appearance is a “use” by the political candidate. “Uses” can arise well outside the political sphere, so Arnold Schwarzenegger movies were pulled from TV when he was running for office, as were any re-runs of The Apprentice and The Celebrity Apprentice featuring Donald Trump. An appearance by a candidate in a commercial for his or her local business is a “use” which needs to be included in a station’s political file (providing all the information about the sponsor, schedule and price of the ad that you would for any pure political buy). But that does not necessarily mean that a station needs to pull the ad from the air.

As a commercial for a business is usually a paid spot, where the station is receiving money to air the ad (and not an unpaid one like the appearance in an entertainment program where the station does not get paid to air its comedy program or movie in which a candidate appears), a “use” arising in a paid commercial gives rise to equal opportunities for other opposing candidates to buy time on the station. The station will not usually be required to provide free time to opposing candidates (but watch for candidate appearances in PSAs, as that might give rise to free time for opposing candidates). If the station has plenty of commercial inventory and does not mind selling spots to the opposing candidate for the lowest unit rates that apply during the political windows (45 days before a primary and 60 days before a general election) to spots purchased by a candidate’s authorized campaign committee (the opposing candidate gets lowest unit rate for a spot run in connection with his or her campaign, even if the commercial business bought the spot featuring their employee-candidate at regular commercial rates), a station may decide to continue to air the business spots with the candidate’s appearance. But if inventory is tight, or the station is not selling political ads to candidates in a particular state or local race, the station may want to tell the business that the candidate can’t appear in the business’ spots once the candidate becomes legally qualified, as the running of those spots with the candidates would require the station to provide equal time to the opposing candidates.

Note that the “no censorship” provision of the Communications Act and the lowest unit rate provisions likely do not apply to the business spots even though they contain the voice or image of a candidate. That is because these spots are not uses by the candidate or the candidate’s authorized campaign committee which are covered by the rules providing for lowest unit rates and the “no censorship” provisions of the law. As the commercial spots are not by the candidate or his or her political committee, but instead they are commercials by a business that happen to be “uses,” normal commercial rates can be applied.

Note, also, that business spots that advertise a business in which the candidate’s name appears, but where the candidate him or herself do not appear by voice or picture, do not trigger any equal opportunity issues. It is the recognizable voice or picture of the candidate that triggers the equal opportunity and public file issues. For those of us here in the DC area, we are accustomed to seeing ads for the local Volvo dealer even during election season, even though that dealership is named after a politician currently serving in Congress.

As in all areas of political broadcasting, any analysis of the implications of any on-air appearance of a candidate can be a very nuanced matter, and small changes in the facts can result in big changes in the legal conclusions that apply. So if these situations arise, consult with the station’s legal counsel before making any decision as to how to treat these kinds of ads. This article is just meant to note that there may be options for dealing with the candidate-advertiser if he or she wants to stay on their business’ spots during an election period, depending on the station’s circumstances. For more general information about the rules that apply to political broadcasting, see our Guide to Political Broadcasting, here.

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).

There are no additional costs for the call; the advice is free as part of your MAB membership.

Supreme Court Strikes Down Law against Sports Betting – But Broadcasters Need to Proceed with Caution

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David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP,

On May 14, the US Supreme Court issued an opinion striking down a Federal law (the Professional and Amateur Sports Protection Act or “PASPA”) which prohibited state legislatures from taking any action to legalize betting on sports. PASPA also contained a restriction on advertising sports betting. The state of New Jersey challenged that law, arguing that it improperly limited the authority of state legislatures to act. The Supreme Court agreed, and invalidated the entire Act, including the restriction on advertising sports betting. Some trade press articles have suggested that this signals a boom for broadcasters and other ad-supported media companies as companies rush to start advertising legal sports betting now that the prohibition is gone. While in the long run that may be true, and there may be immediate benefits to stations in certain states, there are numerous caveats for broadcasters to consider before they recognize an advertising boom from sports betting companies.

The entire decision was not based on any analysis of whether or not betting on sports is a good thing, but instead it was a decision based exclusively on a question of state’s rights. The Supreme Court determined that Congress cannot tell state legislatures what they can and cannot do. While Congress may have the authority to ban or otherwise regulate sports betting, if they wanted to regulate it, they should have done so directly. Instead, as the law prohibited state legislatures from taking action to legalize sports betting and other actions predicated on that limitation on states rights, the Supreme Court determined that this was an exercise of authority that Congress does not have – Congress can’t tell state legislatures what to do. Based on the Court’s analysis that all parts of the act were premised on this ban on state legislative actions, the entire law was struck down. That means that there is no blanket federal ban on sports betting, and it leaves each state to regulate as it may wish. For companies ready to take bets on sporting events, and media companies who want to take advertising from sports betting companies, in most cases they need to wait for the states to make decisions on how to proceed.

As the Court noted, at the time of the passage of the legislation, three states (including Nevada) already had laws allowing betting on sports. Apparently, in addition to New Jersey, several other states have already passed laws allowing sports betting if the Supreme Court permitted it. And bills are pending to legalize sports betting in many other states. But there are many states in which there is no clear law permitting sports betting. As DraftKings and FanDuel found out in recent years as they attempted to establish their fantasy sports business, in many states local authorities were ready to challenge their authority to do so under state laws banning sports betting. While some of these laws were amended to allow for fantasy games, many still prohibit straight-on sports betting. Thus, as long as there are prohibitions in state law against sports betting, media companies in those states need to be restrained in their advertising for this activity.

Even in states where the concept of sports betting has been adopted, the state may still need to adopt regulations to implement the law, and licenses may need to be issued to companies who want to take advantage of the change in the law. And, in the days since the Supreme Court’s ruling, there have even been suggestions that Congress could step in and adopt some sort of legislation limiting sports betting, or that it could legislate some royalty to the sports leagues in connection with permissible betting. In short, broadcasters need to consult local counsel to carefully analyze the laws in their states in making decisions on whether or not they can take ads for sports betting.

Once permitted, there will also be questions of whether stations can take ads for legalized betting in other states. There was a Supreme Court case, Edge Broadcasting, upholding a federal law that restricts stations in a state that has no state lottery from advertising the state lottery in an adjacent state. See our post here about an FCC decision fining a station for violating this law by running an ad for an adjacent state’s lottery. But there is also a Supreme Court ruling in the Greater New Orleans case that has been considered to permit truthful advertising for legal casino gambling. How sports betting will be treated remains to be seen. Note, too, that there may well be further litigation to decide these issues.

Also, broadcasters should consider restrictions that may exist in various program contracts that can restrict specific types of advertising. As we wrote here, many sports leagues have restrictions in their contracts as to the type of ads that can be run when their games are being shown. Sports betting is likely to be included among the categories of impermissible advertising in many such contracts. Broadcasters should also consider the age of the audience for programs in which any advertising is being run to make sure that that audience is appropriate for receiving messages about legalized betting on sports.

All in all, the decision this week was a good one for media companies. But whether it will mean, in the short term, a big new source of advertising revenue for stations across the country remains to be seen.

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).

There are no additional costs for the call; the advice is free as part of your MAB membership.

License Renewal Cycle Starts in a Year – Crackdown on Silent Stations and Online Public File Signal Warnings to Broadcasters

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David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP,

Starting June 1, 2019, just over a year from now, the next broadcast license renewal cycle will begin. By that date, radio stations in DC, Maryland, Virginia and West Virginia must file their renewal applications. Every other month for the next 3 years will bring the filing of radio license renewals in another set of states. And television stations will begin their renewal cycle a year later (June 1, 2020). The FCC’s schedule for radio license renewals can be found here and here. For TV stations, the schedule of renewal filings by state is in the same – just one year later than for radio. Every eight years, broadcast stations have to seek the renewal of their licenses by the FCC by demonstrating their continuing qualifications to be a licensee, including showing that they have not had a history of FCC violations and that they have otherwise served the public interest.

We have already written several times about how, with all broadcasters – both radio and TV – now required to have an online public file, it is important for stations to make sure that those files are complete and are kept up to date on a regular basis (see our articles here, here and here). Given that the contents of the online public file can be viewed by anyone, anywhere, just by launching an Internet browser, we would expect more complaints about incomplete files, and more scrutiny by the FCC of the contents of files that rarely were subject to FCC review in the past. FCC staffers can review public file compliance from their offices or homes, and do not have to rely on the rare field inspection to discover a violation. Thus, stations should be reviewing the contents of their files now to be sure that they are ready for the scrutiny that they will receive in the upcoming renewal cycle. But that is not the only issue about which stations need to be concerned, as illustrated by a decision released by the FCC yesterday, deciding to hold an evidentiary hearing as to whether the license renewal of a broadcast station that had been silent much of the last license renewal term should be granted.

In the Hearing Designation Order released May 7, the FCC went through the history of a Wyoming radio station that had operated for only days during its last license term, and since then had each year operated for only a few days each year to avoid forfeiting its license under Section 312(g) of the Communications Act (which says that the license of a station that is off the air for more than a year is forfeited unless the FCC finds that the public interest calls for an exception – see our articles here and here). Only since last August, well past the end of the license renewal term under review, did the station come back on the air on a full-time basis. The FCC asks the station’s licensee to produce all records of how it served the public interest during the renewal term (including all logs and records of EAS tests) and otherwise provide evidence as to why its renewal should be granted.

We wrote here about the FCC launching a similar hearing proceeding for another station last year, and about a number of other cases where the FCC has imposed short-term renewals or other penalties on stations that had a history of long periods of silence during the license term (see our articles here and here). While the FCC’s dividing line between stations that get a short-term renewal and those that get designated for hearing and possible loss of license is not entirely clear, yesterday’s decision reinforces the warning to broadcasters who currently have silent stations that they need to get those stations operational as soon as possible so as to be able to demonstrate a record of public service during the current license term so as to justify a renewal when their applications are filed during this upcoming renewal cycle.

The renewal cycle starts next year. The time for getting into compliance is now, as last minute fixes may not solve all problems – and that last minute may already be upon or be imminent for many stations.

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).

There are no additional costs for the call; the advice is free as part of your MAB membership.

May Regulatory Dates for Broadcasters – FCC Meeting, FM Translator and LPTV Filing Windows, Political Windows and More Consideration of Music Reforms

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David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP,
BroadcastLawBlog.com

May is one of those months where there are neither deadlines for EEO Public File Reports nor for any of the quarterly filings of issues/programs lists and children’s television reports. But the lack of these routine filing deadlines does not mean that there are no dates of interest in the coming month to broadcasters and other media companies. As seemingly is the case every month, there are never times when Washington is ignoring legal issues potentially affecting the industry.

May 10 brings an FCC meeting where two items of interest to broadcasters will be considered. One is a proposal to abolish the requirement for posting licenses and other operating authorizations at a broadcaster’s control point and to eliminate the requirement that FM translators post information about the station’s licensee and a contact phone number at their transmitter sites (see our post here for more details). The second is a proposal to modify the processing of complaints about new or modified FM translators causing interference to existing stations. See our summary of that proposal here. If adopted at the May 10 meeting, these proposals will be available for public comment after they are published in the Federal Register.

The process that will lead to the issuance of construction permits to some of those new FM translators is still underway, as the window runs from May 24 through June 14 for filing settlements or engineering resolutions for mutually exclusive applications filed in the second window for AM stations to obtain authorizations for new FM translators (see our article here). Translator applications that cannot resolve their mutual exclusivity during this window will end up in an auction. Applications that were not mutually exclusive with any other application filed in this second window have until May 9 to file their “long-form” applications detailing the technical facilities that they plan to build out once their construction permit is granted (see our article here).

TV translators and Low Power TV stations also are in the middle of their own window for submitting displacement applications by those stations that either operate on TV channels above Channel 37 (which will no longer be part of the TV band after the repacking following last year’s incentive auction) or on channels subject to new interference from full-power and Class A TV stations that were repacked onto new channels. That window is now open, and TV translators and LPTV stations have until June 1 to find new channels and submit applications for those channels to the FCC. See our articles here, here, and here for more information.

Comments in another FCC rulemaking, the one looking to do away with the requirement for the filing with the FCC of the Form 397 EEO Mid-Term Report were due April 30, with replies due on May 15. The FCC suggested that this is no longer necessary, as all the information required by the Commission is already in station’s online public file. See our article here summarizing that proposal.

In May, there will also be activity at other government agencies that broadcasters and other media companies should be watching. We summarized here the Music Modernization Act passed by the House of Representatives last week. That bill is supposed to get a hearing in the Senate on or about May 16 looking toward the possible passage of that legislation by the Senate.

The Federal Election Commission, in a rulemaking that it is conducting, is looking at requiring sponsorship identification on online audio and video political ads in the same format as those found on radio and TV ads (including the “I’m John Smith and I approved this message”). Comments on proposals made in that rulemaking are due May 26. We’ll have more on that proceeding later this week. Speaking of political broadcasting, stations in many states will soon be in lowest unit rate windows, if they are not already, for primary elections occurring this summer (see our article here on your LUC obligations). Watch for those windows as they come up in your state, and remember all of the political obligations that arise not only during the window, but as soon as you have legally qualified candidates (see our article here). For more information on the FCC’s rules on political broadcasting, you can check out our Political Broadcasting Guide here.

For a month without any of the “standard” FCC obligations, there are still lots of issues for broadcasters to consider. Make sure you pay attention to any of these issues that may affect you, and to any that are unique to your own station.

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).

There are no additional costs for the call; the advice is free as part of your MAB membership.