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When a Broadcast Advertiser Becomes A Political Candidate, What is a Station to Do?

Delivered... David Oxenford | Scene | Tue 27 Aug 2019 4:48 am

In many states, we are in election season for local offices, which has resulted in a 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 appear in their business’ ads outside of election season, and don’t want to stop appearing in those ads during their bid for elective office. We wrote about this question in an article published two years ago and again a bit more than a year ago.  But, as the question continues to come up, 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 any “positive” way, whether it is political in nature or not, it is considered a “use” by the political candidate.  What is a “positive” use?  Basically, it is any appearance that is not negative to the candidate (i.e., it is not in an ad attacking that candidate).  To be a positive “use” by the advertising candidate, the appearance must also be 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).. “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 similarly a positive “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, as you would for any pure political buy). But that does not necessarily mean that a station needs to pull the ad from the air.

A commercial for a business is almost always 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 the comedy program or movie in which a candidate appears).  Thus, a “use” arising in a paid commercial gives rise to equal opportunities for other opposing candidates to buy time on the station. The station usually will not be required to provide free time to opposing candidates (but watch for candidate appearances in PSAs, usually by incumbents, 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 wants to avoid having to sell political ads to candidates in a particular state or local race (as state and local candidates, unlike those running for federal office, have no right to access to buy spots), 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 featuring the voice or image of the candidate would require the station to provide equal time to the opposing candidates upon request.

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 rather than lowest unit rates (though the opposing candidates do get LUR for their equal time ads run during a political window).

Note, also, that business spots that advertise a business in which the candidate’s name appears, but where the actual candidate does not appear by voice or picture, probably 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 requirements. 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.

August Regulatory Dates for Broadcasters – License Renewals, EEO, Music Consent Decree Comments, EAS Test, LPFM NPRM and More

Delivered... David Oxenford | Scene | Mon 29 Jul 2019 4:43 pm

Once upon a time, August was a quiet month in Washington, when everyone went on vacation. Sure, there are plenty of vacations that will happen this coming month, but it seems that regulatory activity no longer takes a break. For example, August 1 is the due date for the filing with the FCC of license renewals for all radio stations (including translators and LPFM stations) in North and South Carolina, and the filing of associated EEO forms for all full power radio stations in those states. With the renewal filing comes the obligation that these stations start airing, on August 1 and August 16, their post-filing announcements informing the public about the submission of the license renewal applications. Radio stations in Maryland, Virginia, West Virginia and the District of Columbia, who filed their renewals on or before June 2, also need to keep running their post-filing announcements on these same dates. Radio stations in Florida, Puerto Rico and the Virgin Islands, who are in the next license renewal group with their renewal applications to be filed by October 1, need to start broadcasting their pre-filing announcements this month, also to run on the 1st and 16th of the month. See our post here on pre-filing announcements.

Commercial and noncommercial full power and Class A Television Stations and AM and FM radio stations in California, Illinois, North Carolina, South Carolina, and Wisconsin that are part of an employment unit with five or more full-time employees must place their annual EEO public inspection file reports in their online public file. Links to those reports should also be placed on the home pages of these station’s websites, if they have a website. The effectiveness of these EEO public file reports, and the EEO programs of which they are a part, are being reviewed by the FCC in a proceeding started by a Notice of Proposed Rulemaking about which we wrote here. Comments on this notice asking for suggestions about how to make the EEO rules more effective are due August 21, with reply comments due by September 5.

August 1 is also the date for the next FCC open meeting, where the FCC will consider a rulemaking on changes to certain LPFM rules. The draft Notice of Proposed Rulemaking also proposes to phase out protections to Channel 6 TV stations from all FM stations, including LPFMs, that operate on the noncommercial portion of the FM band. The FCC thinks that TV digital operations have lessened the need for the protections to be afforded the Channel 6 TV stations from FM stations operating in the adjacent noncommercial FM band. We will write more about this proceeding assuming the FCC adopts the NPRM later this week as expected.

August 7 brings the next Nationwide Test of the EAS system. This test will concentrate on the “daisy chain” system used by broadcasters to relay alerts from one station to another across the country (see our post here). Thus, broadcasters’ performance will be under close scrutiny. Be sure that your system is working, and that you file the post-test ETRS Form 2 on August 7, reporting on whether or not your station successfully received and relayed the test message.

August 9 is the date for filing comments on the Department of Justice’s inquiry into whether changes should be made in the antitrust consent decrees that govern the operations of ASCAP and BMI. We wrote about that proceeding here. It is important to broadcasters because the consent decrees require these performing rights organizations to treat all broadcasters in the same manner, and to impose rates that are reasonable (and provide for court review if ASCAP or BMI cannot come to an agreement with broadcast groups as to whether their rates are reasonable). This is an important proceeding that could have significant financial ramifications on the broadcast industry.

Parts of the FCC’s new FM translator interference resolution process, including allowing translators to change to any available channel to resolve an interference complaint, will take effect on August 13. Other portions of the new rules (including the requirement that complaints about interference come from inside a full-power station’s 45 dbu contour and setting out the minimum number of complaints needed to sustain an interference complaint, require prior approval from the Office of Management and Budget before they can take effect.

Later in the month, we would also expect that the FCC will release its final decision on annual regulatory fees to be paid by broadcasters and all other FCC-regulated entities. As we wrote last month, the fees that the FCC initially proposed are being challenged by broadcasters as the proposed radio fees would increase significantly this year without evident explanation. This year TV regulatory fees are moving to a population coverage-based fee, instead of one based on the DMA in which the station operates. That has resulted in some stations’ proposed fees – especially some VHF stations in major markets – to significantly increase. We will be looking for this fee decision soon, as the fees need to be paid in September, before the October 1 start of the next government fiscal year.

As always, these are just some highlights of the regulatory issues that broadcasters will be looking at this month. Check with your own counsel or legal adviser to make sure that we have not omitted any dates that could be important to your operations this month.

DOJ Starts Review of BMI and ASCAP Consent Decrees – Exploring the Background of the Issues

Delivered... David Oxenford | Scene | Thu 6 Jun 2019 3:54 pm

The Department of Justice’s Antitrust Division yesterday announced that it was starting a review of the ASCAP and BMI antitrust consent decrees that govern the United States’ two largest performing rights organizations for musical compositions (referred to as the “musical work”). The DOJ’s announcement of the initiation of the examination of the consent decrees poses a series of questions to which it invites interested parties – including users, songwriters, publishers and other interested parties – to file comments on the decrees, detailing which provisions are good and bad and, more broadly, whether there is a continuing need for the decrees at all. Comments are due on July 10.

This re-examination of the decrees has been rumored for many months. Back in March, we wrote about those rumors and the role that Congress may play in adopting replacement rules should the DOJ decide to fundamentally change the current provisions of the consent decrees. The DOJ itself just recently looked at the consent decrees, starting a review only 5 years ago with questions very similar to those it posed yesterday (see our post here on the initiation of the last review 5 years ago). That review ended with the DOJ deciding that only one issue needed attention, whether the decrees permitted “fractional licensing” of a song. We wrote about that complex issue here. That issue deals with whether, when a PRO gives a user a license to play a song, that user can perform the song without permission from other PROs when the song was co-written by songwriters who are members of different PROs. The DOJ suggested that permission from one PRO gave the user rights to the entire song, an interpretation of the decrees that was ultimately rejected by the rate courts reviewing the decrees (see our article here).   So, effectively, the multi-year review of the consent decrees that was just concluded led nowhere. But apparently the DOJ feels that it is time to do it all again. To fully understand the questions being asked, let’s look at what the consent decrees are, and why they are in place.

Because ASCAP and BMI together account for over 80% of musical compositions that are publicly performed by various music services, and tie all of the compositions that they represent in one blanket license sold to music users, they have, for almost 80 years, been subject to antitrust consent decrees. By tying the sale of these diverse musical compositions into one “take it or leave it” license – a license that virtually all music users cannot do without – these organizations have substantial market power. Thus, these consent decrees were put in place to guarantee that these PROs dealt fairly with both music users who buy the licenses to use the musical works, and with the songwriters and publishers whose music they license.

While the decrees are complex with many intricate details, and the two have provisions that are slightly different, perhaps the overriding consideration in each is that they treat similarly situated parties alike. The consent decrees require that ASCAP and BMI make available licenses on the same terms to all similarly situated music users.   They also require that the PROs treat all songwriters in the same way. So whether you are a small AM station in the middle of Wyoming or a monster FM in New York City, the formula used to calculate the rates that apply to commercial radio stations are the same. Similarly, ASCAP and BMI pay all songwriters at the same rate for performances of their music – they can’t offer some famous composer a higher rate than they offer the writer of a single obscure song (of course, the popular writer will be paid more as his or her song will be used more than the obscure song – but the rates at which payment will be made will be the same).   For music users, the decrees also set up a rate court process where, if the PRO cannot agree with users as to an appropriate license for a particular use of music, a US District Court will act as a “rate court” and conduct a judicial proceeding to decide a fair rate for the use of the music (see our article here about the current rate court proceeding between RMLC on behalf of the commercial radio industry and BMI).

With that background, let’s look at the questions posed. The DOJ asks questions including:

  • Do the Consent Decrees continue to serve important competitive purposes today? What provisions could be changed and how would those changes improve competition?
  • Are the differences between the two consent decrees important for competition?
  • Would termination of the Consent Decrees serve the public interest?
  • If termination would be in the public interest, should there be a sunset period and what rules would provide for an efficient transition?
  • Are there differences between ASCAP/BMI and PROs that are not subject to the Consent Decrees that adversely affect competition?
  • Are existing antitrust statutes and applicable caselaw sufficient to protect competition in the absence of the Consent Decrees?

Small users in particular should carefully consider this review. While, in the absence of consent decrees, big users might have the resources and marketplace clout to be able to negotiate their own music licenses (though, as set out below, that is not guaranteed), smaller users would find that process to be much more difficult. As we wrote back in March, there are no definitive databases that exist to determine who owns what songs (though one is promised by the recent Music Modernization Act) – and with fractional licensing there may be several permissions needed to simply play one song. For any music user that uses many songs – whether that user is a radio station, a webcaster, some sort on-demand music service, or a retail outlet or bar or restaurant that plays music for its customers – there are thousand or potentially millions of permissions that they would need to obtain. Small companies are not likely to have the resources or the knowledge to even find out who to negotiate with for the use of particular songs, and even if the PROs still exist in some less-regulated format, will these small services be able to effectively negotiate the necessary licenses? Now, they can rely on the resources of the bigger companies to negotiate fair rates that will apply to the entire industry. But if the PROs are no longer required to provide the same licenses to all users, will these small users be treated fairly? There is no apparent answer to the question of who is going to be able to fairly and equally provide that service currently provided by ASCAP and BMI under the current consent decrees.

With unregulated collectives, there are always concerns about anticompetitive behavior. The radio and TV music licensing committees both took SESAC, a privately-owned performing rights organization not subject to a consent decree, to court alleging anticompetitive behavior. Both ended up with private settlements imposing a rate-review processes that in many ways mimics the review provided under the consent decrees (see our article here on radio’s final result from the SESAC rate-setting, and here on the TV settlement). A similar process is now underway trying to bring GMR under such a rule process as the radio industry alleges that GMR is seeking rates that are not competitively based given its aggregation of certain must-have songwriters (see our articles here, here and here on the GMR litigation). Why would the DOJ look to be undoing rules on the two biggest PROs, while courts have imposed similar rules on smaller PROs?

The inefficiencies of the unregulated direct negotiation process are evident from the on-demand music services.   Until the passage of the Music Modernization Act, these services had to negotiate with rights holders for all of the rights needed to provide music to their customers. That process, even with these large services with lots of resources to devote to music licensing issues, ended up resulting in lawsuits against companies by artists and their representatives claiming that they were not paid for the use of their music. The complexity of the licensing process led to the adoption of the Music Modernization Act which hopes to make that process easier through a legislatively-designed and government regulated (through the Copyright Royalty Board) process (see our articles here and here). So, while the Music Modernization Act makes what was the complex world of mechanical rights licensing easier, deregulating the PROs has the potential to make public performance space more complex (as we suggested here).

There are many issues to consider in this review of the consent decrees. We will no doubt be writing about other issues in coming weeks. But all music users should carefully be watching these proceedings, and should take the opportunity to let the DOJ know how the decrees affect the way that they do business, and what would happen if the decrees were to be fundamentally altered as a result of this review.

Video Looking at the Basics of the Online Public Inspection File and Quarterly Issues Programs Lists

Delivered... David Oxenford | Scene | Mon 13 May 2019 5:20 pm

Looking for a brief explanation of the online public inspection file and Quarterly Issues Programs List, and how they will be viewed in connection with the upcoming license renewal cycle – including the potential fines for violations of the rules? The Indiana Broadcasters has just released this video of me discussing those issues available here.

We have written in more depth about these issues, including our discussion of the importance of the online public file for the renewal process (here and here), the importance of Quarterly Issues Programs lists (here) and the required content of the online public file (here and here). With the license renewal filing process starting for radio stations in June (see the schedule of filing for stations, which is done on a state by state basis, here) and for TV a year later, these obligations, while basic, are very important. So if you have questions about these issues, check out these resources, and contact your own legal advisor for more information.

FCC Asks for Comments on the State of the Audio Marketplace – A Precursor to Reviewing the Radio Ownership Rules?

Delivered... David Oxenford | Scene | Tue 24 Jul 2018 3:42 pm

The FCC routinely, at the request of Congress, does a study of the Video Marketplace. That study is submitted to Congress so that Congress can use it as a factual basis for any legislative issues that may come up dealing with the TV marketplace. The FCC has not previously done this sort of routine study of the audio marketplace. However, in recent legislation, Congress included a requirement that the FCC, in the last quarter of every even numbered year, provide such a report. Yesterday, the FCC released a Public Notice asking a number of questions about the marketplace, to which they seek information to be included in the report.

The questions asked include:

  • The identification of players in the audio marketplace, and a description of their business models and competitive strategies
  • The trends in service offerings and consumer behavior
  • Whether or not there is competition between the players in the marketplace
  • Ratings, revenue and subscriber information about players in the market
  • Information about investment in the market, and the deployment of new technologies
  • Information about what is needed for entry into the market
  • Information as to who has recently entered the market, and who has exited it
  • Regulatory barriers to entry and competition in the marketplace

The FCC is looking for data from 2016 and 2017, as well as any new information that is available from this year.  What will this data be used for?

While this information is being requested for a report to Congress that may be used to craft legislation, the facts gathered for this report may well have a bearing on the FCC’s consideration of the radio ownership rules. As we wrote here, it is expected that the FCC will consider possible revisions to the radio ownership rules later this year as part of its next Quadrennial Review. The NAB, as we wrote here, has already weighed in with a proposal for a significant change in the local radio ownership rules. One of the principal issues in the debate about changes to the rules will be defining the appropriate market in which competition should be assessed. If the market is a broad one, in which all competitors for advertising dollars and listening time are assessed, ownership changes may well be justified. If radio is found to still compete only with other radio stations, then ownership rules may not be dramatically changed. This study would seem to be looking at exactly the same issues that the FCC will be considering in the Quadrennial Review.

Comments on the questions raised in this study will be due 30 days after the publication of notice of this study is published in the Federal Register. Reply comments will be due 45 days after Federal Register publication.

What Do Broadcasters and Media Companies Need to Know About the GDPR?

Delivered... Emilie de Lozier, Aaron Burstein and Joshua Bercu | Scene | Fri 15 Jun 2018 4:16 pm

By now, you have probably heard that the European Union (EU) has a new data protection law on the books, the General Data Protection Regulation (GDPR) – but what are the new rules, and how might they apply to broadcasters? Below we address these and other commonly asked questions about the GDPR.

What is the GDPR? The GDPR is a new European privacy law that, as of May 25, 2018, generally governs how organizations – including those EU-based and many that are not – collect, use, disclose, or otherwise “process” personal information. While some limited exceptions exist (e.g., businesses with fewer than 250 employees are exempt from some requirements), the GDPR imposes an array of obligations on companies subject to it.

Who does the GDPR apply to? The GDPR clearly applies to companies established in the EU that collect personal information about individuals in the EU, but it also claims a broad extraterritorial reach. Indeed, it can apply to organizations, including broadcasters, without an EU presence. For instance, it can apply to broadcasters who collect or use data to provide services like streaming TV or radio to individuals in the EU. It also can apply to broadcasters who use website cookies and other online tracking mechanisms to “monitor” individuals in the EU (e.g., profiling for behavioral advertising). That said, it remains to be seen whether regulators will enforce the GDPR against companies that for the most part are not serving EU citizens and do not have EU operations, but may occasionally and unknowingly acquire data of an individual in the EU or an EU citizen in the United States.

The GDPR applies to both “controllers” and “processors” of “personal data” of EU citizens. “Personal data” is broad. It includes any information that relates to an identifiable natural person, including, for example, online identifiers and other similar information that has not always been considered personally identifiable information in the United States. Controllers and processors also are considered broadly. Generally speaking, a “controller” is a company that directly interacts with consumers (e.g., by providing a website) and collects their personal data. And a “processor” provides data processing services on behalf of a “controller,” such as, for example, cloud computing and storage.

If the GDPR applies, what do I have to do? Among other things, companies subject to the GDPR must have a “legal basis” for processing personal data. Consent offers one such basis. Consent must be “freely given, specific, informed, and unambiguous,” and it cannot be inferred, so companies must allow consumers to “opt-in.” At a high level, to ensure that consumers are informed about data practices, privacy policies and other discussions of data practices should be written in clear and plain language (not legal jargon) and state, among other things, the specific purpose or purposes for processing individuals’ data. Importantly, consent previously obtained may no longer be valid if it does not meet the GDPR’s more stringent requirements.

Is GDPR compliance really that simple? The short answer is no. Obtaining consent, or otherwise establishing another legal basis for processing personal data, is only the beginning of GDPR obligations, not the end. Other obligations relate to access, accuracy, data security, data minimization, accountability, and providing a “right to be forgotten,” just to name a few. Companies subject to the GDPR may need to establish new internal mechanisms in order to address the expanded rights available under the law and the requests that can be made. As just one example, the GDPR provides the right to receive one’s data in a “machine-readable” format and transfer it to another company entirely.

So if I have good in-house practices, I no longer need to worry? Unfortunately, not quite. Companies subject to the GDPR may require greater oversight over, and cooperation with, vendors and other partners (e.g., cloud providers that provide storage). If your vendors and partners are processing data you obtained from consumers in ways inconsistent with the law, you could be on the hook.

If the GDPR is primarily an EU law, why are U.S. companies so concerned? U.S. companies are worried for several reasons, but one that may drive much of the anxiety is the exorbitant fines available under the GDPR: Severe violations of the GDPR can result in fines up to 4% of a company’s annual global revenue or 20 million Euroswhichever is higher! The GDPR also makes it easier for individuals to bring private claims against companies in EU court and/or complain to EU data protection authorities. EU data protection authorities also present a bit of an unknown – their enforcement priorities remain to be seen, but it’s clear that at least some intend to aggressively enforce the new law.

OK, I think I understand the GDPR and how it may or may not apply to me. Is that all I really need to focus on in terms of new privacy laws? For now, maybe. But the emergence of the GDPR could have trickledown effects both home and abroad. In particular, the GDPR to date has at least started some conversations about whether the U.S. needs to respond through legislation or other modifications to its consumer privacy approach. Time will tell, but for now, stay tuned!

The GDPR framework is complex, and detailed analysis of compliance should be undertaken with counsel qualified to interpret all of its nuances. So note that this article provides only a general description of the GDPR and should not be viewed as legal advice. If you think that your operations may trigger GDPR obligations, get that legal advice to provide a full analysis of your compliance obligations.

 

12 Years of the Broadcast Law Blog – Where We Have Been and What We Are Looking at Next

Delivered... David Oxenford | Scene | Fri 1 Jun 2018 4:19 pm

In 10 days, we’ll mark the 12th anniversary of my first post welcoming readers to this Blog.  I’d like to thank all of you who read the blog, and the many of you who have had nice words to say about its contents over the years.  In the dozen years that the blog has been active, our audience has grown dramatically.  In fact, I’m amazed by all the different groups of readers – broadcasters and employees of digital media companies, attorneys and members of the financial community, journalists, regulators and many students and educators. Because of all the encouragement that I have received from readers, I keep going, hopefully providing you all with some valuable information along the way.

I want to thank those who have supported me in being able to bring this blog to you.  My old firm, Davis Wright Tremaine LLP helped me get this started (and graciously allowed me to take the blog with me when I moved to my current firm six years ago).  My current firm, Wilkinson Barker Knauer LLP, has also been very supportive, and I particularly want to thank several attorneys at the firm (especially David O’Connor and Kelly Donohue) who help catch, on short notice, my typos and slips in analysis for articles that I usually get around to finishing shortly before my publication deadline.  Also, a number of other attorneys at the firm including Mitch Stabbe, Aaron Burstein, Bob Kirk and Josh Bercu have contributed articles, and I hope that they will continue with their valuable contributions in the future.  Thanks, also, to my friendly competitors at the other law firms that have taken up publishing blogs on communications and media legal issues since I launched mine – you all do a great job with your own take on the issues, and you inspire me to try to keep up with you all. 

I’ve posted over 2000 articles in the last 12 years.  That works out to almost an article once every other day.  But there never seems to be any shortage of topics to write about.  In fact, what is in short supply is time – as clients and life need to come first, and blogging gets worked into the schedule when it fits.  But writing this blog has become an important part of my legal practice.  It has, I think, helped make me a better lawyer, as it has given me an incentive to keep up to date on developments in the law and in business that affect broadcasters and other media companies.  The articles, and the opportunities that the articles have opened for speaking and otherwise contributing to industry discussions, have introduced me to many people in the industry who are there pushing these developments.  Interacting with those actually in the business trenches provide even more to write about.

When we first started the blog, I don’t think that I was sure how it would turn out.  But, among the many goals that I set in my first post, was the following:

So some days, the blog may just report on FCC actions. Other days, we may link to interesting or provocative news stories that we see in the trade or popular press. But sometimes, we will tackle more fundamental issues. For instance, one of the first questions we’ll have to address is just what the broadcast industry is today. While we could limit the stories in this blog to just matters about the over-the-air broadcast industry, that narrow view would be far too limiting. Broadcasting is no longer an island unto itself. Instead, each day it becomes more and more clear that the world that traditional broadcasting inhabits is one that goes far beyond those narrow areas that the FCC has traditionally defined as a broadcast service. Thus, we will be pointing out developments and legal decisions that impact not only traditional over-the-air radio and television stations, but also those in the myriad “new media” that are now so crucial to any understanding of the broadcast industry. Media “convergence,” which has for so long been nothing more than a buzz word thrown around to make it seem like we’re thinking about the future, is finally here, and cannot be ignored in a discussion of the broadcast industry.

Looking back, that may have been an ambitious goal, but it is one that we continue to try to achieve. In fact, in the last couple of months, we published articles on the Music Modernization Act, legal issues for broadcasters in digital and social media advertising, a Supreme Court decision that may provide broadcasters with new revenue from advertising for sports betting, efforts to regulate online political advertising, and potential reform of the radio ownership rules based on the plethora of new media outlets for audio entertainment. It is clear that the initial vision of a broadcasting industry that has expanded far beyond its traditional over-the-air bounds was not just the first question that we would address, but it is one that we address every week.

And there still is an inexhaustible supply of issues that we need to follow. Of course, the current FCC is very active reforming the regulatory landscape for broadcasters, which will no doubt prompt many articles. Copyright issues are also more important than ever – look for articles in the near future on what’s next for the Music Modernization Act and on how Alexa, Google Home and other voice-activated legal assistants raise royalty considerations for program providers. Expect more coverage of changes in the broadcast ownership rules, and in many areas affecting the advertising landscape, including legal issues raised by programmatic buying (about which we have written before – see for instance here and here).

Thanks again to all our readers.  Keep reading, tell your friends about the blog, let me know if I can ever help you (I am, of course, a lawyer whose clients provide the resources to track all of these issues), and we’ll see what happens as we celebrate future anniversaries of the Broadcast Law Blog.

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

Delivered... David Oxenford | Scene | Sun 20 May 2018 4:44 am

On Monday, 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.

 

EXCLUSIVE: Tabla with a difference // Mayur Narvekar

Delivered... Blog | Scene | Tue 8 May 2018 7:21 am

Mayur Narvekar is a composer, producer, DJ, remix artist, label owner, teacher and a multi-instrumentalist at BANDISH PROJEKT.

From the echo of festivals across India, Mayur has resounded in International festivals like Caldestino Sweden, Lile France, Glastonbury UK, Incubate Netherlands, Fringe Scotland, Melbourne Electronic Festival Australia and being the BBC Asian Network only official touring artist from India in 2007. Mayur started dabbling in music from age 3 and was then trained in Indian classical tabla. Mayur dived head-on into the world of percussion, earning repute as a tabla player, He was the winner of all India Radio competetion in 2000 (Percussion) and was awared the promising percussionist in 2001 by Pandit Nikhil Gosh Academy. After Bandish Projekt and Bhejafry Records (Record label) the recent venture is Bandish Beat Faktory a learning module for electronic music production and education which has also been getting a global accpetance.

He has used these roots to bring his taste for strange sounds and electronic noises that brings a certain wildness and rarity in his style while his classical element keeps him grounded. Mayur‘s need for experimenting takes him to unchartered scales, His music is his journey and it is that journey he explores!

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Jasmine // Jai Paul

Delivered... Blog | Scene | Tue 8 May 2018 7:21 am

A year after BTSTU was released on to our ears; London’s Jai Paul is back to satisfy our audio craving with a new track titled ‘Jasmine’. It really is an intelligent piece of music covered in beautiful lo-fi distortions and crackling joined by guitar riffs adding that subtle element of funk grooves all the while keeping it fairly chilled out …

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FreQ Nasty – Bon Merde Remixes // High Chai Recs

Delivered... Blog | Scene | Tue 8 May 2018 7:20 am

The Fiji born, producer and breakbeat innovator, FreQ Nasty is joined by High Chai label mates. Remixing his infamous signature style of drumstep, glitch-hop, dubstep, and all things bass-heavy is Liquid Stranger and FS from the US, India’s leading DJ, B.R.E.E.D and Canada duo Knight Riderz each bringing their own elements on this heavy remix EP compiled by label head dimmSummer.

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Sound Trippin’ across India // MTV

Delivered... Blog | Scene | Tue 8 May 2018 7:20 am

Last year Babble Fish Productions brought us The DEWARISTS a fantastic journey and exploration of sound and culture. Bringing together independent Indian artists and providing the with a platform to collaborate with their unique surroundings to inspire them.

2012, there’s a new show on the screens, Intel MTV’s Sound Trippin’. A show hosted by Sneha Khanwalker, a contemporary music director, breaker of stereotypes and rising star in the music arena in India. She is boldly going into the lesser-known India, backpack and recorder in tow, in relentless pursuit of authentic sound. Why sound? Because nothing captures the essence of a location of a community better than its local sounds.

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Return of The Punk-A-Wallahs!

Delivered... Blog | Scene | Tue 8 May 2018 7:19 am

The 2012 sees the return of The Punk-a-Wallahs, but this time in a different disguise – a tag team consisting of DJ PATHAAN and ANDREW T. MACKAY of the glorious BOMBAY DUB ORCHESTRA. Expect some of the finest remixes and tunes from this pair. If you have ever heard their tracks as individuals you will know that these two will only deal with the most refined and ornate music from around the world. You will not be disappointed …

To start their sonic adventure, heres their first remix of Steadfast from No Stranger Here featuring Ursula Rucker, Shubha Mudgal and Business Class Refugees.

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MC Yogi’s New Album Pilgrimage

Delivered... Blog | Scene | Tue 8 May 2018 7:19 am

MC YOGI, spiritualist, graffiti artist and Yoga instructor will be dropping his long awaited follow up to the début, ‘Elephant Power’, on 19th June 2012. ‘Pilgrimage’ influences are all over the musical map: world beat, hip-hop, reggae, dance hall, house, and dub. Chaotic street sounds of India blast through the mixes, alongside madhouse beats, old-school turntable scratches and popping horns over which Yogi effortlessly drops his rhymes.

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EXCLUSIVE Jelly // The Talvin Singh Archives

Delivered... Blog | Scene | Tue 8 May 2018 7:18 am

A wonderful track from the Talvin Singh Archives – Jelly, produced back in 2007, its a track that features all the glorious trademarks of Talvin Singh but will a bit of wobble to it.

Expect harmoniums, electronics, ambient scapes and tablas all woven with bass and hint of dubstep!

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