Comment Dates Set on FCC Proposal to Eliminate Paper Contract Filing Requirement for Broadcasters

Posted in Broadcast Regulation

In another proceeding initiated as part of its effort to modernize the rules that apply to broadcasters, the Federal Communications Commission (FCC) is seeking comment on whether and how to update the requirement that licensees file paper copies of certain contracts and other documents with the agency within 30 days of their execution. As a result of the publication of the notice of proposed rulemaking (NPRM) in the Federal Register, comments are due on March 19, 2018, and reply comments are due on April 2, 2018.

Section 73.3613 of the FCC’s rules mandates that broadcasters file paper copies of documents related to ownership and control of a broadcast station with the FCC, and that licensees must also either place copies of, or a list of, such documents in their public inspection files. This requirement—originally adopted in the late 1930s—was intended to keep the FCC and the public informed about station ownership and control. The NPRM notes, however, that as of March 1, 2018 all broadcast stations will have transitioned to an online public file, which “enables greater public access to the contents of the files,” including documents filed under Section 73.3613.

As a result, the NPRM tentatively concludes that the FCC should eliminate the paper filing requirement for all broadcast stations, while leaving in place the obligation to include copies of, or a list of, contracts covered by Section 73.3613 in station public files. In addition, the FCC proposes to clarify that the public file must be kept updated regarding Section 73.3613 documents, and that broadcasters must provide copies to the FCC and the public within seven days of receiving a request. The NPRM seeks comment on these issues.

The FCC also asks how it might provide additional clarity under its rules concerning broadcaster documents related to ownership and control and broadcasters’ updating obligations with respect to such documents and whether, in the alternative, the agency should eliminate entirely Section 73.3613 and instead amend its public file rules to encompass broadcasters’ substantive obligations regarding ownership and control documents. Finally, the FCC asks how it should address the analogous obligations that apply to international broadcast stations—which are authorized on a seasonal basis and the transmissions of which are intended to be received outside of the United States—particularly given that these stations do not have public file obligations.

Fourth Circuit Orders New Trial in Online Copyright Liability Case

Posted in Copyright

In a highly anticipated decision for content owners and Internet service providers (ISPs), the U.S. Court of Appeals for the Fourth Circuit affirmed in part, reversed in part, and remanded for new trial a judgment of the U.S. District Court for the Eastern District of Virginia holding Cox liable for infringement of BMG’s copyrights by Cox customers.

BMG v. Cox involved the question of under what circumstances an ISP acting as a conduit for Internet traffic may be held liable for customers’ copyright infringement. Cox argued that it was entitled to a safe harbor under Section 512(a) of the Digital Millennium Copyright Act (DMCA) because it transmitted or routed material at the direction of customers without modification. To qualify for any of the Section 512 safe harbors, a service provider must demonstrate that it “adopted and reasonably implemented … a policy that provides for the termination in appropriate circumstances of subscribers … who are repeat infringers.” 17 U.S.C. § 512(i)(1)(A). Cox’s repeat infringer policy called for increasingly stringent actions in response to subsequent notices of infringement until the 13th notice, at which point the subscriber was to be suspended and considered for termination. BMG alleged that Cox failed to implement a reasonable termination policy when it failed to fully terminate customers and ignored electronically generated notices from Rightscorp, Inc. alleging Cox’s customers used BitTorrent file-sharing programs to infringe BMG’s copyrights. Continue Reading

When the Commission Says Certified Mail, It Means Certified Mail

Posted in Broadcast Regulation, MVPD Regulation

As lawyers, we frequently receive questions along the lines of, “I know the rule says [x], but what if I do [y] instead?  That’s consistent with the spirit of the rule, right?”  We now have further proof that complying with the “spirit of the rule” may not be good enough.  In a recent decision, the Commission rejected Minority Television Project Inc.’s (MTP) must carry complaint against DISH Network L.L.C. (DISH) because MTP sent its otherwise valid election request for station KMTP-TV via Priority Express Mail rather than certified mail, return receipt requested.

In a letter to DISH dated September 27, 2017, MTP timely elected mandatory carriage for the election cycle that commenced on January 1, 2018.  The letter included all of the information required by Section 76.66(d)(1) of the Commission’s rules, but was sent by Priority Express Mail.  Despite having received the letter, DISH rejected MTP’s carriage election because “pursuant to federal regulations, elections for mandatory carriage must be sent by certified mail, return receipt requested. Your letter was sent to DISH by United States Postal Service Priority Mail, and therefore is not a valid election. As such, your election is rejected based on the foregoing.”  MTP subsequently filed a must carry complaint against DISH, arguing that “Certified Mail is a lesser included service to Priority Express Mail,” and therefore is compliant with the Commission’s rules.

The Commission sided with DISH, reasoning that Section 76.66(d)(1)(ii) of its rules “provides one specific mailing method for carriage elections: certified mail, return receipt requested. The provision does not indicate that this is a suggested method, or a preferred method…. Because KMTP failed to send its carriage election by the method required under our rules, we must deny its complaint.”  The Commission acknowledged that the reason for specifying certified mail, return receipt requested in its rules was to “ensure that the broadcast stations are able to demonstrate that they submitted their elections by the required deadline, and that the satellite carrier received them.”  The fact that Priority Mail provides the same assurances, however, was not enough to sway the Commission in favor of MTP.

President Trump’s “S&!%hole” Remark Shines New Light on FCC’s Ambiguous Policy on Profanity/Indecency

Posted in Broadcast Regulation, First Amendment

The Reporter's NotebookBroadcasters found themselves facing a conundrum on Thursday when President Trump, in a meeting with Congressional leaders about immigration, reportedly referred to Haiti and certain African countries as “shithole countries.”  24-hour cable networks immediately reported on the President’s comments, repeating the crass term and even including it on their lower-thirds.  Unlike their cable, newspaper, online and print brethren, however, broadcasters were forced to wrestle with the significant risk associated with the FCC’s still muddy indecency standards in relating the newsworthy incident to the public.

A quick refresher on the indecency laws applicable to broadcasters is in order.  Title 18 of the United States Code, Section 1464, prohibits the utterance of any obscene, indecent or profane language by means of radio communication.  For material to be indecent, it must “depict sexual or excretory organs or activities and be patently offensive as measured by contemporary community standards for the broadcast medium.”  The Commission’s rules prohibit the broadcast of indecent and profane material between the hours of 6 a.m. and 10 p.m.  Broadcasters violating the federal indecency laws face fines of up to $397,251 per violation or each day of a continuing violation, up to $3,666,930 for any single act or failure to act.  Newspapers, cable networks, and Internet website providers are not subject to the FCC’s indecency laws.

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FCC Media Ownership Rule Changes Effective February 7, 2018; Comments Due March 9, 2018 on Proposals to Increase Broadcast Ownership Diversity

Posted in Broadcast Attribution, Broadcast Regulation, Ownership Rules

The FCC’s Order on Reconsideration (Order) adopting sweeping changes to the media ownership rules has been published in the Federal Register. This establishes February 7, 2018 as the effective date for all but one of the rule changes adopted in the Order. As previously explained, the Order (i) eliminates the 42-year-old newspaper/broadcast cross-ownership rule; (ii) eliminates the radio/television cross-ownership rule; (iii) loosens the existing rules governing the ownership of local television stations; (iv) adopts a presumptive waiver standard for certain so-called “embedded markets” under the local radio ownership rule; and (v) reverses the FCC’s earlier decision to treat television joint sales agreements (JSAs) as conferring attributable ownership interests. The only rule change not subject to the February 7 effective date is the elimination of the requirement to file television JSAs which, although deregulatory in nature, impacts paperwork obligations and therefore requires approval of the Office of Management and Budget. Federal Register publication also triggers the deadline for filing petitions for review of the Order.

The diversity-related Notice of Proposed Rulemaking (NPRM) that was adopted with the Order has also been published in the Federal Register. The NPRM initiates a proceeding to establish an incubator program to facilitate the entry of new and diverse voices in the broadcast industry. Its publication establishes March 9, 2018 as the deadline for comments, and April 9, 2018 for the deadline for reply comments, on the NPRM. Our summary of the NPRM is appended to our summary of the Order and is available here.

If you have questions or are interested in participating in these proceedings, please contact us.

FCC Actively Enforcing Broadcast EEO Rules

Posted in Broadcast Regulation, Employment

FCCWhile the Federal Communications Commission (FCC) may be modernizing many of its rules governing broadcasters, a recent, sizable fine serves as a reminder that the agency will enforce those laws on the books. In a Notice of Apparent Liability for Forfeiture (NAL) issued earlier this week, the FCC proposed a $20,000 fine against a broadcaster for violation of its Equal Employment Opportunity (EEO) rules and would subject it to three years of special EEO reporting requirements. Given this action, broadcasters should pay particular attention to their EEO compliance programs. We are glad to assist with any questions you may have, or to discuss with you our online training options for hiring managers or others within your company.

The FCC’s recent NAL was based on the following apparent rule violations: Continue Reading

Elimination of Main Studio Rule Effective on January 8, 2018

Posted in Broadcast Regulation

On December 8, 2017, the Order eliminating the FCC’s main studio rule was published in the Federal Register. As a result, the rule change will be effective on January 8, 2018. Requirements associated with the main studio rule, such as having at least two employees (one manager and one staff) present on a full-time basis at the main studio during normal business hours, and the requirement that the main studio have program origination capability, will also be eliminated as of January 8.

Broadcasters will continue to be required to maintain a local or toll-free phone number that will allow local residents to contact the station. Stations that have not yet fully converted to the online public file are required to maintain portions of the public file that are not part of the online public file at a publicly accessible location within the station’s community of license. Stations with existing main studio rule waivers that permit them to maintain their public files at a location outside their community of license will be “grandfathered” and allowed to retain their public files at that location until completion of the station’s transition to the online public file. If a member of the public inquires, stations must promptly provide information regarding the location of the file within one business day of such request.

Comments Due December 29 on Proposals to Modernize Broadcast Ancillary/Supplementary Services Reporting and Local Public Notice Requirements

Posted in Broadcast Regulation

The FCC’s Notice of Proposed Rulemaking (NPRM) seeking comment on whether to modernize the requirements that broadcasters report annually on their provision of digital television (DTV) ancillary or supplementary services and provide local public notice of the filing of certain applications has been published in the Federal Register. As the FCC has announced, this sets deadlines of December 29, 2017 for comments and January 16, 2018 for reply comments. These proposals are a part of the FCC’s Media Modernization initiative, initially launched in May 2017.

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FCC Authorizes Voluntary Transition to ATSC 3.0

Posted in Broadcast Regulation, Broadcast Technology

On November 20, 2017, the Federal Communications Commission released a Report & Order (Order) authorizing television broadcasters to use the Next Gen TV standard (a/k/a ATSC 3.0) on a voluntary, market-driven basis. The Order also includes a Further Notice of Proposed Rulemaking (FNPRM) that seeks further comment on three specific issues related to the ATSC 3.0 rules adopted in the companion Order. Comments are due 60 days after publication of the FNPRM in the Federal Register, and replies are due 30 days thereafter. The Next Gen TV rules adopted by the Order will become effective 30 days after Federal Register publication, except for a handful of rules that contain new or modified information collection requirements that require OMB approval. These few rules will become effective after OMB approval is obtained. The key points of the Order and FNPRM are summarized below.

Voluntary Use

The Order authorizes television broadcasters to transmit using the ATSC 3.0 transmission standard on a voluntary, market-driven basis. Accordingly, broadcasters are permitted, but not required, to transmit Next Gen TV signals provided they comply with all FCC rules applicable to such signals. Broadcasters could, therefore, opt to continue transmitting their signals solely in the currently authorized ATSC 1.0 transmission standard.

Local Simulcasting

The Order requires broadcasters choosing to implement Next Gen TV operations to air a local simulcast of the primary video programming stream of their ATSC 3.0 channel in the current ATSC 1.0 format. Next Gen TV broadcasters must partner with another station (i.e., a “host” station) in their local market to either (1) air an ATSC 3.0 channel at the host’s facility, while using their original facility to continue to provide an ATSC 1.0 simulcast channel, or (2) air an ATSC 1.0 simulcast channel at the host’s facility, while converting their original facility to the ATSC 3.0 standard in order to provide a 3.0 channel. The local simulcasting requirement only applies to the primary video programming stream aired by Next Gen TV broadcasters on their ATSC 3.0 channels. Broadcasters will have discretion to select the primary stream for purposes of local simulcasting, but the Order notes the FCC’s belief that broadcasters will elect the programming stream that contains network programming for network affiliates or the station’s most popular programming for non-network stations. Continue Reading

FTC Issues Enforcement Policy Statement Clarifying Verifiable Parental Consent Requirement for Audio Files

Posted in FTC

On October 20, 2017, the Federal Trade Commission issued an Enforcement Policy Statement regarding the applicability of the Children’s Online Privacy Protection Act (COPPA) to the collection and use of children’s voice recordings, such as those collected when a child uses an internet-enabled device to perform a search via voice commands.  The Enforcement Statement clarifies that verifiable parental consent is not required for certain such recordings.

The FTC’s COPPA rule requires, among other things, operators of commercial websites or online services directed to children to provide notice of their information practices to parents and to obtain verifiable parental consent before collecting a child’s personal information. As originally promulgated, the rule defined “personal information” to include data such as name, address, and social security number.  In 2013, the FTC amended its COPPA rule to add audio files containing a child’s voice to the definition of personal information.  Thus, covered operators must provide notice and obtain verifiable parental consent before “collecting” a child’s voice recording.  (A covered operator is deemed to have “collected” personal information when it requests, prompts, or encourages a child to submit such information online.) Continue Reading