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Indian E-music – The right mix of Indian Vibes… » David Oxenford


Washington Legal Issues for TV Broadcasters – Where Things Stand

Delivered... David Oxenford | Scene | Fri 15 Feb 2019 5:59 pm

Where do all the Washington DC legal issues facing TV broadcasters stand? While we try on this Blog to write about many of those issues, we can’t always address everything that is happening. Every few months, my partner David O’Connor and I update a list of the legal and regulatory issues facing TV broadcasters. That list of issues is published by TVNewsCheck and the latest version, published today, is available on their website, here. It provides a summary of the status of legal and regulatory issues ranging from the adoption of the ATSC 3.0 standard at one end of the alphabet to White Spaces and Wireless Microphones on the other – with summaries of other issues including Ownership Rule Changes, Children’s Television, Media Regulation Modernization, EEO Compliance, Political Advertising, Sponsorship Identification and dozens of other topics, many with links to more detailed discussions here on the Blog. Of course, the status of these issues changes almost daily, so watch this Blog and other trade publications, and consult your own legal counsel, for the latest Washington news of interest to broadcasters.

FCC Adopts Order to Eliminate the EEO Mid-Term Report and Starts Rulemaking Proceeding to Review Proceedings on Grants of New Noncommercial and LPFM Stations

Delivered... David Oxenford | Scene | Fri 15 Feb 2019 5:56 pm

The FCC at its meeting yesterday adopted the two broadcast items that it was expected to consider (see our article on the agenda here) – one agreeing to eliminate the FCC Form 397 EEO Mid-Term Report and a second starting a proceeding to reexamine certain aspects of the criteria used to select the applications to be granted for new Noncommercial Educational radio and television and LPFM stations. We wrote about the draft order to abolish the Form 397 here, and the draft Notice of Proposed Rulemaking on the noncommercial criteria here. We will post the final orders in these proceedings here when the FCC releases them – quite possibly later today.

The elimination of the Form 397 does not become effective immediately as it still needs to be published in the Federal Register and undergo Paperwork Reduction Act review. So TV stations in the northeast, who are due to file their mid-term reports in the coming months, will continue to have this obligation. The change will have no practical effect for more than 4 years, until the first mid-term after the upcoming license renewal cycle hits in June 2023 (see our article here on the start of the radio license renewal cycle in June 2019). The elimination of this report also does not have any substantive effect on the obligations of full-power broadcasters who are part of employment units with 5 or more full-time employees to widely dissemination information about their job openings and to engage in community outreach efforts (even if they have no job openings) to educate the public about employment opportunities in broadcasting and to train existing employees for more advanced positions. So this really is just the elimination of a paperwork burden.

The noncommercial proceeding will look at a number of the filing requirements for new noncommercial stations, and will review some of the requirements that limit the transferability of new noncommercial station and LPFMs. Comments in that proceeding will be due 60 days after this item is published in the Federal Register.

Elimination of Requirement for Broadcasters to File Contracts and Agreements with the FCC Becomes Effective

Delivered... David Oxenford | Scene | Thu 14 Feb 2019 5:57 pm

Back in October, the FCC eliminated the requirement that broadcasters file contracts and organizational documents with the Commission. See our post here for more details. That change became effective on January 22, 2019, as noted in an FCC Public Notice released earlier this week. This change was part of the Modernization of Media Regulation initiative, and was another change made possible by the online public file. As documents related to control of a broadcaster (including stock pledges, options and similar documents) and the organizational documents of any company that owns a broadcast licensee either need to be included in the public file, or specified on a list made available in the public file and made available on request within 7 days, the FCC no longer saw any need for those same documents to be submitted to the FCC. One more filing requirement eliminated – but don’t forget to include these documents (or at least a list of them) in the public inspection file.

Copyright Royalty Board Announces Changes in Judges

Delivered... David Oxenford | Scene | Thu 14 Feb 2019 5:51 pm

With the Copyright Royalty Board now in the early stages of the next proceeding to consider webcasting royalties (see our article here) as well as other proceedings including the distribution of cable and satellite television royalties to TV programmers (see these CRB notices), the Chief Judge of the CRB, Suzanne Barnett, announced her retirement earlier this month. The Librarian of Congress has announced that Copyright Royalty Judge Jesse Feder has been elevated to the Chief Judge’s position. That position requires experience in the administration of judicial proceedings – and presumably his experience on the CRB qualified him for the Chief Judge’s position. His old position will be filled, at least temporarily, by Richard Strasser, who currently serves as legal counsel to the CRB and has, in the past, served as an interim Copyright Royalty Judge. This second position on the Board requires someone experienced in copyright legal issues – again something that Mr. Strasser has from his experience at the CRB. His position is temporary, so it is possible that a new Judge could be appointed for this slot at some point in the future. The third position on the Board, which requires someone experienced in economic issues, continues to be held by Judge David R. Strickler. So, for the time being, these three judges will consider the cases pending before the CRB.

FEC Seeks Comment on Proposal for Change in TV Political Disclosures

Delivered... David Oxenford | Scene | Tue 12 Feb 2019 3:05 pm

We usually think of the FCC as the agency that sets the details of the broadcast disclosure obligations for political candidate’s TV ads. But the Federal Election Commission has its own rules for political advertising that are binding on the candidates, rather than on the stations. But because these ads run on broadcast stations, stations need to pay attention to them to avoid getting caught up in arguments about whether candidate ads are legal, and because the FEC rules often get adopted by the FCC. For these reasons, broadcasters need to pay attention to an entry in today’s Federal Register, where the FEC gives notice of its receipt of a Petition for Rulemaking proposing changes to the textual disclosures made in TV political ads.

Right now, the written disclosures of the sponsor of political ads need to run at 4% of vertical picture height for not less than 4 seconds – the same requirement reflected in both the FEC and FCC rules. The proposal on which the FEC seeks comment suggests that the screen height requirements in the current rules are outdated in the digital television world. According to the Petition, current industry guidelines for a normal disclaimer size is 22 pixels (approximately 2% of the vertical picture height) using HD resolution. Thus, the Petition suggests that 2% be adopted as the standard for political disclosures when shown on high definition digital television transmissions, with the 4% obligation being retained for standard definition broadcasts. After receiving comments, the FEC will decide whether to commence a formal rulemaking proceeding. Comments on this proposal are due on or before Monday, April 15, 2019.

Elimination of Requirement that Broadcasters Post Their Licenses Becomes Effective

Delivered... David Oxenford | Scene | Fri 8 Feb 2019 5:51 pm

As we wrote here, at the FCC’s December meeting, the FCC was scheduled to adopt an order eliminating the requirement that broadcasters post a physical copy of their licenses and other instruments of authorization at their control points or transmitter sites. In fact, the Commission adopted that order before the meeting, and it today published the order in the Federal Register, meaning that it is effective as of today. This order was adopted as part of the FCC’s Modernization of Media Regulation initiative. As a station’s licenses are now generally available online, the FCC stated that they saw no reason to require that they be posted at station locations not normally accessible to the public. So there is now one less regulatory requirement for broadcasters to worry about.

Important Dates for Broadcasters in 2019 – A Broadcaster’s Calendar

Delivered... David Oxenford | Scene | Wed 6 Feb 2019 5:33 pm

While the shutdown of the Federal government delayed FCC activities in January, with the government back in business (hopefully for the long term), we have put together a Calendar of Important Dates for Broadcasters for 2019, available here. The calendar highlights normal regulatory dates like those for Annual EEO Public Inspection File Reports, Quarterly Issues Programs Lists, Quarterly Children’s Television Reports, and Biennial Ownership Reports, it also includes dates relevant to the repacking of the TV spectrum and, something that we have not seen in the last 5 years, dates relevant to the radio license renewal cycle that begins this year. We also have the December start dates for the lowest unit rate windows for the Iowa Caucuses and New Hampshire primary. While this is not a comprehensive list of all regulatory dates that a broadcaster can expect, and while there can be some changes in these dates as the year goes on, it does provide a start keeping you on top of your regulatory burdens. Obviously, consult your own counsel for dates that affect your own station.

FCC Seeks Comments on Video Description Marketplace for Report to Congress

Delivered... David Oxenford | Scene | Tue 5 Feb 2019 6:26 pm

Commercial television broadcast stations that are affiliated with one of the top four commercial television broadcast networks (ABC, CBS, Fox, and NBC) and are located in the top 60 television markets are required to provide 50 hours per calendar quarter of video-described prime time or children’s programming, and to provide an additional 37.5 hours of video-described programming per calendar quarter at any time between 6 a.m. and midnight. Other network affiliated stations outside the Top 60 markets must pass through any video-described programming provided by their network. Video description provides an explanation of the action in a TV program that is not evident from the dialog, so that those with visual disabilities can understand what is happening in a TV program. Video description was mandated by Congress, and the FCC yesterday issued a Public Notice asking for comment on this requirement for a report to Congress.

Specifically, the FCC is asking parties to comment on the following questions:

  • The types of described video programming that are available to consumers;
  • Consumer use of such programming;
  • The costs to program owners, providers, and distributors of creating such programming;
  • The potential costs to program owners, providers, and distributors in designated market areas outside of the top 60 of creating such programming;
  • The benefits to consumers of such programming;
  • The amount of such programming currently available; and
  • The need for additional described programming in designated market areas outside the top 60

Comments are due by April 1, and reply comments should be filed by May 1.

FCC Seeks Comments on Video Description Marketplace for Report to Congress

Delivered... David Oxenford | Scene | Tue 5 Feb 2019 6:26 pm

Commercial television broadcast stations that are affiliated with one of the top four commercial television broadcast networks (ABC, CBS, Fox, and NBC) and are located in the top 60 television markets are required to provide 50 hours per calendar quarter of video-described prime time or children’s programming, and to provide an additional 37.5 hours of video-described programming per calendar quarter at any time between 6 a.m. and midnight. Other network affiliated stations outside the Top 60 markets must pass through any video-described programming provided by their network. Video description provides an explanation of the action in a TV program that is not evident from the dialog, so that those with visual disabilities can understand what is happening in a TV program. Video description was mandated by Congress, and the FCC yesterday issued a Public Notice asking for comment on this requirement for a report to Congress.

Specifically, the FCC is asking parties to comment on the following questions:

  • The types of described video programming that are available to consumers;
  • Consumer use of such programming;
  • The costs to program owners, providers, and distributors of creating such programming;
  • The potential costs to program owners, providers, and distributors in designated market areas outside of the top 60 of creating such programming;
  • The benefits to consumers of such programming;
  • The amount of such programming currently available; and
  • The need for additional described programming in designated market areas outside the top 60

Comments are due by April 1, and reply comments should be filed by May 1.

FCC Sets Up Re-Scan Help Desk for Consumers Dealing With TV Repacking

Delivered... David Oxenford | Scene | Tue 5 Feb 2019 6:20 pm

The FCC yesterday announced that it is setting up a consumer help desk, where operators will be standing by to answer questions about rescanning the TV spectrum to find TV stations that have changed channels due to the repacking of the TV band. Many TV stations will be changing channels due to the repacking of the TV band following the broadcast incentive auction which shrunk the number of channels dedicated to TV broadcasting as part of the TV band was repurposed for wireless communications uses. As the TV stations that were forced to change channels by the repacking make those changes, consumers receiving their TV signals over the air will need to “rescan” the TV band to make sure that their sets find all the local stations on their new channels. The help desk will be available to answer consumer questions 7 days a week, from 8 AM to 1 AM Eastern Time.

DOJ Reportedly to Review Impact of Digital Advertising on Broadcast Merger Review

Delivered... David Oxenford | Scene | Thu 31 Jan 2019 4:35 pm

Press reports following a speech this week by the head of the Department of Justice’s Antitrust Division have many in the broadcast industry paying attention. In response to a question following a speech at a DC conference by Makan Delrahim, the chief of the DOJ’s Antitrust Division, he is reported to have said that the DOJ will be holding a workshop to assess whether online advertising should be considered in assessing the local television marketplace, and whether the facts should support a change in the Department’s assessment of mergers by considering online advertising as part of the same competitive market as local TV advertising. Why is this important?

In recent years, particularly in its review of combinations such as last year’s proposed Sinclair-Tribune merger, the DOJ has looked only at the marketplace for over-the-air television in assessing a transaction’s likely competitive impact, refusing to look at the competition for viewers and advertisers that now comes from online sources like YouTube, Facebook and the many other digital platforms competing in today’s media marketplace. Were the DOJ to conclude that digital platforms are indeed part of the same market as TV, there is a greater likelihood that transactions previously questioned on antitrust grounds could see a more favorable reception from the DOJ. This could also have an impact on radio ownership – where the FCC is just about to embark on its own review of the local radio ownership rules.

Proponents of ownership deregulation argue that digital competition in radio, too, must be considered in the assessment of any radio ownership limits (see, for instance, our article here). If the FCC were to significantly relax its radio ownership rules, there has been concern that the DOJ could step in and stop new ownership combinations that might otherwise be allowed by any FCC rule change. Including digital advertising and online audiences in any marketplace assessment decreases the risk of the DOJ playing spoiler and stopping radio transactions that might otherwise be approved if the FCC does relax its rules as a result of the Quadrennial Review of the ownership limits. So the announcement of any DOJ review of the impact of online competitors in assessing broadcast markets is an important one that should be watched as these issues play out in coming months.

Update on Updating the Public Inspection File Post-Shutdown

Delivered... David Oxenford | Scene | Thu 31 Jan 2019 4:29 pm

Yesterday, we published an article talking about an FCC public notice extending all filing deadlines that fell between January 8 and February 7 (except those dealing with auctions and other activities of the FCC unaffected by the government shutdown) to February 8. The article also mentioned that the FCC gave stations that had not been able to upload material into their public inspection files during the shutdown until February 11 to complete the upload of required public file materials – including specifically the Quarterly Issues Programs lists that should have been uploaded by January 10. This led some broadcasters to ask about public file documents that are now due to be uploaded – e.g. EEO Public Inspection File Reports due to be included in the public file by February 1 by stations in certain states (see our article here for a list of the states) – can stations wait until February 11 to upload those documents? Apparently not, we are hearing from the FCC, as the public notice about the February 11 deadline says that it applies only to documents that were to be uploaded to the public file between January 3 and January 28. So documents that are to be uploaded by February 1 would not be among those with the extended deadline. Obviously, consult your own counsel for details on all of these deadlines – but it looks like, if you have a public file deadline tomorrow – February 1 – you should meet that deadline.

FCC Further Extends Deadlines for Filings Due During the Shutdown – Including Quarterly Issues Programs Lists – and Moves Up Monthly Meeting

Delivered... David Oxenford | Scene | Wed 30 Jan 2019 2:44 pm

Yesterday, we wrote about upcoming deadlines for broadcasters, and noted that the FCC was going to be releasing an order providing further details on the deadlines for pleadings and other documents that were due during the government shutdown.  That Public Notice was released on Tuesday, and further postponed many filing deadlines which fell during the shutdown.  Filings that were due at the very beginning of the shutdown, from January 3-7, will still be due today, January 30, as noted in prior FCC releases.  However, for documents due January 8 and after (in fact, through February 7), the new filing deadline will now be February 8.  That would include the Quarterly Issues Programs lists that were due in station’s public inspection filed by January 10, and Quarterly Children’s Television reports which were to have been filed at the FCC by January 10.  Also, comments in proceedings such as the FCC’s proceeding on Class A AM stations will be covered by this new February 8 filing deadline.  Responsive pleadings addressing any of the documents extended by this FCC order will also be extended to follow these new revised filing deadlines.

At the same time, the FCC announced that it would move the date of its February meeting up one week – the be held on February 14.  The agenda for that February meeting is here – addressing all the issues that had been teed up for the January meeting.  The January 30 meeting (now scheduled to begin at 12:30 pm ET) will end up being comprised of nothing more than announcements.  For broadcasters, as we wrote yesterday, the FCC will likely abolish the need for filing the FCC Form 397 EEO mid-term report at its February 14 meeting.  The FCC will also vote on a Notice of Proposed Rulemaking looking at the process for issuing new construction permits to noncommercial broadcast stations and LPFMs.  Presumably, the February 14 date was to insure that the meeting would occur before the next potential shutdown, which could occur on February 15 if no budget deal is reached.  So, for now, broadcasters have some more time to file documents that were delayed by this year’s first government shutdown.

FCC Rejects Challenge to Hundreds of FM Translator Applications

Delivered... David Oxenford | Scene | Wed 30 Jan 2019 2:37 pm

Just back from the shutdown, the FCC released an order denying the appeal of two LPFM advocacy groups who had appealed the denial of their petition seeking to block hundreds of new FM translators that will rebroadcast AM stations.  We wrote about prior rejections of this petition by the Media Bureau here and here.  Yesterday’s order rejected the petitioners’ application for review seeking consideration by the full Commission of the Bureau’s decisions.  The petitioner had based their claim on an allegation that new translators could put undue limits on LPFM stations changing transmitter sites.  But the petitioner never showed that any translator would specifically affect any LPFM station seeking to change site (and likely could not, as many new translators are in relatively rural areas where there are likely to be plenty of available spectrum for both translators and LPFM uses).  As there had been no specific showing of any harm created by any of the challenged translator applications, and the petitioners had not shown that they represented any LPFM adversely affected by any translator application, the petition was again rejected for lack of standing.  Given that so many AM stations are relying on these translators (and likely many have already been granted and built), this action should come as a relief to licensees who received grants of these translator applications.

February Regulatory Dates for Broadcasters – EEO Reports, Webcasting Proceeding, FCC Meeting and Other Issues

Delivered... David Oxenford | Scene | Tue 29 Jan 2019 4:14 pm

With the reopening of the Federal government (at least for the moment), regulatory deadlines should begin to flow in a more normal course.  All of those January dates that we wrote about here have been extended by an FCC Public Notice released yesterday until at least Wednesday, January 30 (except for the deadlines associated with the repacking of the TV band which were unaffected by the shutdown).  So Quarterly Issues Programs lists should be added to the online public file by January 30, and Children’s Television Reports should be submitted by that date if they have not already been filed with the FCC.  Comments on the FCC’s proceeding on the Class A AM stations are also likely due on January 30 (though the FCC promised more guidance on deadlines that were affected by the shutdown – such guidance to be released today).

February will begin with a number of normal FCC EEO deadlines.  Commercial and Noncommercial Full-Power and Class A Television Stations and AM and FM Radio Stations in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma that are part of an Employment Unit with 5 or more full-time employees need to include in their public files by February 1 the Annual EEO Public Inspection File Reports.  TV stations in New Jersey and New York in Employment Units with 5 or more full-time employees also need to file their FCC Form 397 Mid-Term EEO Reports.  While the FCC appears ready to abolish that form (see our article here), it will remain in use for the rest of this year, so New Jersey and New York TV stations still need to file.  Note that the FCC considers an “employment unit” to be one or more commonly controlled stations serving the same general geographic area and sharing at least one common employee.

As we wrote here, February 4 also brings the date for filing a petition to participate in the Copyright Royalty Board proceeding looking to set rates for the public performance of sound recordings by noninteractive webcasters for 2021-2025.  These are the royalties paid to SoundExchange by webcasters – including broadcasters who stream their signals on the Internet and through other digital platforms (see, for instance, our article here about how these royalties include streams played by Alexa and other smart speakers).

The FCC should also have its open meeting this month, currently scheduled for February 21.  Certainly, we can expect the broadcast items that the FCC had initially intended to include on its January agenda – the abolition of the Form 397 and a Notice of Proposed Rulemaking looking at the process for issuing new construction permits to noncommercial broadcast stations and LPFMs.

It is possible that we could also see the Federal Register publication of the FCC’s Notice of Proposed Rulemaking in its next Quadrennial Review of the FCC multiple ownership rules.  That NPRM was adopted in December (here), and addresses issues including the potential relaxation of the local radio ownership rules.  Comments will be due 60 days after publication in the Federal Register, and reply comments will be due 30 days later.

There will no doubt be other important dates both to broadcasters generally and to specific stations.  Be sure to stay in touch with your legal counsel to make sure that you do not miss any dates that may be particularly relevant to your station.

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