The FCC’s Media Bureau issued a Public Notice today seeking comment on a petition for declaratory ruling urging the Commission to prohibit stations’ use of the Last-In-First-Out (or “LIFO”) method of selling preemptible advertising time to political candidates or, if not prohibited, to require that stations using the LIFO method always give political candidates preemption priority over commercial advertisers. Comments are due March 2, 2015, and replies are due March 17, 2015.
As college basketball play-off season and the Super Bowl approach, we thought it a good time to remind broadcasters about the trademark issues that often crop up in contests this time of year. Contests related to March Madness and the Super Bowl are popular, but the use of the proper names of these sporting events related to contests and promotions can pose problems for unwary broadcasters.
“March Madness” and the “Super Bowl” are both trademarked terms, registered to the National Collegiate Athletic Association (NCAA) and National Football League (NFL), respectively. The NCAA and NFL guard their trademarks fiercely, and have shown little hesitation in prosecuting individuals and businesses that use the trademarks without permission. The reason for such an aggressive stance is that the NCAA and NFL ask corporate sponsors to cough up large sums of money for the right to use the trademarked terms in advertising, and therefore don’t want non-sponsors using the terms to promote their businesses for free. As a result, anytime a broadcaster (or other business) uses the terms March Madness or Super Bowl for a promotional or commercial purpose, or suggests an affiliation with either event for which it hasn’t paid, the possibility of a lawsuit exists. Continue Reading
The FCC’s Enforcement Bureau and broadcaster Univision have entered into a Consent Decree under which Univision will pay a $20,000 civil penalty for broadcasting five instances of a “simulated” EAS tone as part of a radio broadcast.
The Consent Decree indicates that on January 28, 2014, the hosts of a Spanish-language radio show in New York played what is described as “a sound effect containing a ‘simulated’ version of the EAS Header and End of Message Codes several times during a comedy sketch.” The sound effect contained the recorded EAS tones from an EAS test that the station had broadcast.
The FCC is standing behind its proposed forfeitures against Viacom and ESPN for allegedly misusing the EAS tones in a movie trailer. As we previously wrote, in March 2014, the FCC proposed almost $2 million in combined fines against Viacom, NBCUniversal, and ESPN based on allegations that these programmers repeatedly transmitted a trailer for the film “Olympus Has Fallen” that included real or simulated EAS tones or similar sounds. Viacom and ESPN challenged their respective proposed liability, while NBCUniversal voluntarily paid its proposed forfeiture.
In the Forfeiture Order, the Commission reiterated the broad scope of the laws prohibiting the transmission of EAS tones outside of an actual emergency. First, the agency determined that the plain language of both Section 325(a) of the Communications Act (prohibiting the transmission of false distress signals) and Section 11.45 of the FCC’s rules (prohibiting the transmission of the EAS tones or a simulation thereof outside of an actual emergency) provided adequate notice that they extend to any person, whether or not that person is directly responsible for the transmission.
Annual EEO Public File Report
Radio and television station employment units (SEUs) located in Arkansas, Louisiana, Mississippi, Kansas, Nebraska, Oklahoma, New Jersey, and New York with five or more full-time employees must prepare by Monday, February 2, 2015 an annual EEO Public File Report (PFR). The report must be placed in the public inspection file of each station in the SEU. For full-power and Class A television stations, this means the PFR must be uploaded to the station’s online public inspection file hosted by the FCC. The PFR must also be posted on the website belonging to each station in the SEU.
The PFR should summarize the SEU’s recruitment activity from February 1, 2014 through January 31, 2015, including full-time positions filled, the recruitment sources used to advertise those job openings, and the total number of interviewees and hires produced by each recruitment source. The PFR must also include a summary of the SEU’s recruitment initiatives.
Certain broadcast license renewal applications are due on February 2, 2015. The license renewal process includes the filing of an FCC Form 396 Broadcast EEO Program Report, as described below: Continue Reading
Broadcasters streaming music on the Internet have until February 2, 2015, according to SoundExchange, to pay the $500 annual minimum fee per station or channel due to SoundExchange. The statutory license fee is paid to SoundExchange for the right to publicly perform sound recordings on the Internet and is in addition to fees paid to ASCAP, BMI and SESAC that compensate the copyright holder of the musical composition and cover the right to publicly perform the musical work.
The $500 minimum payment does not relieve broadcasters of the duty to pay fees that accrue in excess of the minimum. The fee for each “performance” (the streaming of one sound recording to one listener) payable by commercial broadcasters is $0.0025 in 2015 (up from $0.0023 in 2014). The minimum is credited against the first $500 in per performance fees owed. Noncommercial broadcasters are subject to separate payment obligations.
The $500 minimum payment does not relieve broadcasters of their reporting obligations to SoundExchange – which include Reports of Use (identifying the sound recordings performed) and Statements of Account (reporting broadcasters’ payment obligations). “Small Broadcasters” are provided some relief and can pay an additional $100 per station or channel to waive the obligation to submit Reports of Use. To qualify as a small broadcaster, the online listenership must be fewer than 27,777 aggregate tuning hours (“ATH”) annually, the equivalent of about 76 listeners, each listening one hour per day, or 38 listeners, each listening two hours per day. Small broadcasters must elect small broadcaster status by February 2, 2015. Noncommercial broadcasters may also be able to avoid filing some or all Reports of Use, depending on their ATH, if they are noncommercial educational webcasters or if they are paying under the noncommercial webcaster agreement negotiated pursuant to the Webcaster Settlement Act of 2009.
The current rates and terms will expire at the end of the year. A proceeding is ongoing to set rates and terms for 2016-2020. Those rates and terms will be announced by mid-December of this year.
The FCC’s Wireless Bureau today announced that it is providing parties with two additional weeks to submit their comments in response to the Auction Comment Public Notice. You can read our summary of broadcast-related issues raised in the Public Notice here.
For those keeping track, there are several auction-related items with comment deadlines in the next 30 days:
- Low Power TV/TV Translators Third Notice of Proposed Rulemaking: Comments due 1/12/2015; Replies due 1/26/2015
- Inter-Service Interference Further Notice of Proposed Rulemaking: Comments due 1/21/2015; Replies due 2/5/2015
- Competitive Bidding Rules Notice of Proposed Rulemaking: Comments due 1/23/2015 ; Replies due 2/12/2015
- Unlicensed Operations Notice of Proposed Rulemaking: Comments due 2/4/2015; Replies due 2/25/2015
- Wireless Microphones Notice of Proposed Rulemaking: Comments due 2/4/2015; Replies due 2/25/2015
On or before January 10, 2015, all radio, full power TV, and Class A TV stations are required to place in (or, in the case of TV, upload to) their public inspection file a copy of an Issues/Programs Report covering the station’s treatment of local community issues in programs broadcast on the station during the period October 1, 2014 to January 1, 2015. Public service announcements may be listed as a supplement to the report, if desired, but should not form the basis for the entire report. Similarly, the report should not consist solely of descriptions of breaking news.
The FCC does not require that stations use a certain form or format for these reports, however, based on FCC advice, we recommend that the following elements be included in the report:
- 5-10 local issues/concerns, including a general description of those issues/concerns;
- Descriptions of the programs or program segments designed to address local issues/concerns; and
- Listings of specific issue-responsive programs or segments aired during the previous quarter, including the date, time, duration and brief description of the specific topic discussed.
Children’s Television Programming Report (Form 398)
Commercial TV stations, including Class A television stations, must file, on or before January 10, 2015, a quarterly report on FCC Form 398 describing all significant children’s informational and educational programming (for children 16 years old and younger) carried in the past quarter. The FCC will automatically upload this report to your station’s online public inspection file. Continue Reading
Wasting little time after an August Public Notice, the FCC issued an NPRM today proposing to require broadcast radio stations, satellite radio operators, and cable and DBS operators to post their public inspection files to the FCC’s online database.
Today the online public file requirements apply only to broadcast television stations, however, the FCC “now believe[s] it is appropriate to commence the process of expanding the online file to other media entities in order to extend the benefits of improved public access to public inspection files and, ultimately, reduce the burden on these other entities of maintaining these files.” The Commission initially declined to require radio stations and MVPDs to maintain an online public file, citing an insufficient record and the need for phased initial implementation of the online public file process.
The Public Notice and NPRM come in response to a Petition for Rulemaking filed by the Campaign Legal Center, Common Cause, and the Sunlight Foundation to expand the online public file requirement “to cable and satellite systems.”
Critically, the NPRM asks whether to allow for phased-in compliance deadlines for broadcast radio stations. Commercial broadcast radio stations with five or more full-time employees in the top 50 Nielsen radio markets would have to comply with online public file obligations “at the same time” as satellite radio, cable, and DBS operators, while the remainder of stations would have an additional two years to comply.
For political file materials, the NPRM proposes that material added to the file before the effective date of the rules can be kept at the station’s public file and need not be posted online.
Comments and replies on the NPRM are due 30 and 60 days, respectively, after publication in the Federal Register.
The Federal Communications Commission (FCC or Commission) has released its Auction Comment Public Notice (Comment PN), which the Commission adopted by a 3-2 party-line vote at its December 11, 2014 open meeting. The Comment PN proposes certain procedures that the FCC will follow in the forthcoming broadcast incentive auction and the subsequent repacking of broadcast television spectrum. In many ways, the Comment PN is like a notice of proposed rulemaking. The Commission has offered specific proposals and is soliciting comments on those proposals. It will adopt the ultimate procedures in an Auction Procedures Public Notice. Comments are due by January 30, 2015, with reply comments due on February 27, 2015.
Below, we provide a detailed breakdown of the proposals in the Comment PN.