Internet & Online Category
Posted April 17, 2014
Oral arguments before the Supreme Court are less than a week away in the Aereo case, and broadcasters are feeling pretty good about their chances. With the Department of Justice, Professor Nimmer (who, along with his father, quite literally wrote the book on copyright), and a host of other luminaries filing in support of the broadcasters' position, the storyline looks a lot like broadcasters have portrayed it from the beginning: that this is a simple case of copyright infringement hidden behind a veil of modern technological obfuscation.
Sensing that such a storyline is fatal to its prospects, Aereo has responded by casting this case as an attack on consumers' use of the cloud, and has attracted some allies based on that storyline. However, it is a pretty thin storyline, as few think that the country's highest court is so careless as to draft a broadcast retransmission rights decision that accidentally destroys the world of cloud computing. The two are not tough to distinguish, and even if the Court secretly disliked cloud computing, it hardly needs to opine on the copyright implications of cloud computing to decide the Aereo question.
Still, lower courts have disagreed on these issues, and only a fool enters the Supreme Court certain that the court will rule in his favor. There are many moving parts, and if a case were easy to decide, it would not have made it to the Supreme Court. That is why both sides will be anxiously watching the oral arguments for hints as to where the various justices stand on the matter.
As of today, however, broadcasters have one less reason to sweat about the outcome. The Court announced yesterday that Justice Alito, who had previously recused himself from the case, is now able to participate. This is a significant development for broadcasters. Because the 2nd Circuit decision being appealed was in Aereo's favor, Alito's earlier recusal meant that the case would be heard by the remaining eight justices. That created the risk of a 4-4 tie, which would leave the adverse 2nd Circuit decision in place.
In that scenario, broadcasters would need to win 5 of the 8 possible votes in order to overturn the lower court decision. That can be a tall order, and impossible if it turns out that four justices are firmly on the Aereo side of the fence. With Alito no longer recused, broadcasters now have an additional avenue for scoring that fifth vote. In other words, it's easier to attract 5 votes out of 9 than it is to get 5 votes out of 8. That means broadcasters are unlikely to find themselves losing on a tie vote, and if the rest of the court should split 4-4, Alito's entry into the fray effectively gives broadcasters a free throw opportunity at the buzzer to score his vote and break that tie. Now broadcasters just need to convert on that opportunity.
Posted March 17, 2014
Commercial and noncommercial webcasters and those simulcasting radio programming over the Internet must by this date submit the Monthly Report of Use and Monthly Usage Statement of Account forms to SoundExchange for the month ending January 31, 2014.
Posted February 14, 2014
Commercial and noncommercial webcasters and those simulcasting radio programming over the Internet must by this date submit the Monthly Report of Use and Monthly Usage Statement of Account forms to SoundExchange for the month ending December 31, 2013.
Posted January 31, 2014
By this date, most commercial and noncommercial webcasters and those simulcasting radio programming over the Internet must submit the Minimum Fee Statement of Account Form and the annual copyright royalty fee to SoundExchange. January 31 is also the date by which certain webcasters and simulcasters are eligible to make elections affecting their royalty rates and reporting requirements for the upcoming year. If your radio broadcast station is simulcast or rebroadcast over the Internet, we encourage you to consult qualified counsel with regard to your obligations.
Posted December 26, 2013
As I have noted on several occasions in the past, the FCC requires that certain video programming delivered online by television stations be captioned if that programming previously aired on television with captions (for a quick refresher you can view my posts "FCC Seeks Greater Clarity on IP Video Captioning Rules", "Second Online Captioning Deadline Arrives March 30", and "First Online Video Closed Captioning Deadline Is Here").
All video programming that appeared on television with captions after April 30, 2012, is considered "covered Internet Protocol (IP) video" and is required to be captioned when shown online. In January of 2012, the FCC released an Order exempting "video clips" and outtakes while requiring that television stations display captioning for prerecorded full-length programming delivered via IP if the programming had aired on television with captions. Where a captioned TV program is streamed on the Internet in segments, it must be captioned if substantial portions of the entire program are shown via those segments.
However, in the latest turn, the FCC is now asking for updated information regarding whether it should remove the "video clip" exemption. It is seeking public comment on the issue, with comments due on January 27, 2014, and reply comments due on February 26, 2014. The FCC's Public Notice asks commenters to answer a number of questions regarding the current state of captioning of IP-delivered video clips, including:
- What portion of IP-delivered video clips generally, and of IP-delivered news clips specifically, are captioned?
- Has the availability of captioned versions of such clips been increasing?
- What is the quality of the captioning on IP-delivered video clips?
- Should the FCC require captioning of IP-delivered video clips?
- How are the positions of commenters consistent with the 21st Century Communications and Video Accessibility Act (CVAA), its legislative history, and the intent of Congress to provide video programming access to people with disabilities?
- What are the potential costs and benefits of requiring captioning of IP-delivered video clips?
- How have consumers been affected by the absence of closed captioning on IP-delivered video clips, particularly news clips?
- To the extent that some entities have already captioned these clips, what technical challenges, if any, had to be addressed? How does the captioning of IP-delivered video clips differ from the captioning of full-length IP-delivered video programming?
- What are the differences between captioning live or near-live IP-delivered video clips, such as news clips, and prerecorded IP-delivered video clips?
- If the FCC imposes closed captioning obligations on IP-delivered video clips, should the requirements apply to all video clips, or only to a subset of such clips?
- If only to a subset, what subsets would be most appropriate and what would be the rationale for excluding others?
The FCC also asks for comment on any additional issues relevant to its determination of whether closed captioning of IP-delivered video clips should be required.
TV stations have been making greater use of their websites over the last few years to deliver video programming, and that use is only likely to increase in the years ahead as TV stations expand their use of mobile applications to reach viewers. As a result, the FCC's new proceeding raises important issues that will affect stations' video streaming, online marketing, and bottom line. As the saying goes, you're not entitled to complain about an elected official if you didn't bother to vote, and broadcasters need to speak up now if they want to avoid having to complain later about any complex or burdensome online captioning requirements that might be adopted in this proceeding.
Posted August 15, 2013
The FCC has released a Report and Order which includes its final determinations as to how much each FCC licensee will have to pay in Annual Regulatory Fees for fiscal year 2013 (FY 2013), and in some cases how the FCC will calculate Annual Regulatory Fees beginning in FY 2014. The FCC collects Annual Regulatory Fees to offset the cost of its non-application processing functions, such as conducting rulemaking proceedings.
The FCC adopted many of its proposals without material changes. Some of the more notably proposals include:
- Eliminating the fee disparity between UHF and VHF television stations beginning in FY 2014, which is not a particularly surprising development given the FCC's recently renewed interest in eliminating the UHF discount for purposes of calculating compliance with the FCC's ownership limits;
- Imposing on Internet Protocol TV (IPTV) providers the same regulatory fees as cable providers beginning in FY 2014. In adopting this proposal, the Commission specifically noted that it was not stating that IPTV providers are cable television providers, which is an issue pending before the Commission in another proceeding;
- Using more current (FY 2012) Full Time Employees (FTE) data instead of FY 1998 FTE data to assess the costs of providing regulatory services, which resulted in some significant shifts in the allocation of regulatory fees among the FCC's Bureaus. In particular, the portion of regulatory fees allocated to the Wireline Competition Bureau decreased 6.89% and that of all other Bureaus increased, with the Media Bureau's portion of the regulatory fees increasing 3.49%; and
- Imposing a maximum annual regulatory rate increase of 7.5% for each type of license, which is essentially the rate increase for all commercial UHF and VHF television stations and all radio stations. A chart reflecting the FY 2013 fees for the various types of licenses affecting broadcast stations is provided here.
The Annual Regulatory Fees will be due in "middle of September" according to the FCC. The FCC will soon release a Public Notice announcing the precise payment window for submitting the fees. As has been the case for the past few years, the FCC no longer mails a hard copy of regulatory fee assessments to broadcast stations. Instead, stations must make an online filing using the FCC's Fee Filer system, reporting the types and fee amounts they are obligated to pay. After submitting that information, stations may pay their fees electronically or by separately submitting payment to the FCC's Lockbox. However, beginning October 1, 2013, i.e. FY 2014, the FCC will no longer accept paper and check filings for payment of Annual Regulatory Fees.
Posted July 12, 2013
Last month, the FCC released an Order on Reconsideration and Further Notice of Proposed Rulemaking that clarified a number of aspects of the FCC's complex closed captioning requirements for video programming delivered using Internet Protocol (IP) and the devices used by consumers to view it. In the FCC's words, the Order and Further Notice was issued to "affirm, modify, and clarify certain decisions" made by the Commission last year implementing closed captioning requirements for video programming distributed via IP.
The original IP captioning rules were adopted in January 2012 in response to the 21st Century Communications and Video Accessibility Act (CVAA). The Order on Reconsideration and Further Notice has now been published in the Federal Register, and the rules adopted in the Order are set to take effect on August 1, 2013. For those who would like a refresher on the CVAA and the IP requirements, you can find my previous posts on the subject here and here.
In the Further Notice adopted simultaneously with the Order, the Commission asked for comment on imposing "closed captioning synchronization requirements for covered apparatus, and on how DVD and Blu-ray players can fulfill the closed captioning requirements of the statute." Based on the publication of the Further Notice in the Federal Register, comments on the Further Notice are now due on September 3, 2013, and reply comments are due September 30, 2013.
The bulk of the Order is largely a response to three Petitions for Reconsideration filed in connection with last year's Report and Order, which adopted rules governing the closed captioning requirements for owners, providers, and distributors of IP-delivered video programming, as well as the closed captioning capabilities of devices used by consumers to view video programming. The Petitions were filed by the Consumer Electronics Association, TV Guardian, and a coalition of consumer groups, respectively.
Highlights of the FCC's Order and Further Notice include:
- Refusing to limit covered devices to those intentionally designed to play back video programming, but clarifying the rule and issuing two class-based waivers in response to requests by the Consumer Electronics Association (CEA) to exclude equipment such as digital cameras and baby monitors;
- Clarifying that the January 1, 2014, deadline for devices to be equipped to display closed captioned video programming applies to the date of manufacture of the apparatus, and "not to the date of importation, shipment, or sale";
- Reaffirming its decision to allow video programming providers and distributors to select either the rendering or pass through of captions to end users; and
- Delaying a final decision regarding whether video clips (i.e., "excerpts of full length programming") should be included within the scope of covered programming until more information is collected as part of another public notice that the FCC plans to issue within the next six months.
The CEA had requested that the FCC narrow the applicability of the closed captioning equipment requirements to cover only those devices intended by the manufacturer to receive, play back, or record IP video programming, rather than broadly applying the rules to any device with a video player.
In response, the FCC revised its definition of "apparatus" to make clear that "video players" requiring captioning capability include only those that display "video programming transmitted with sound." The FCC declined to limit the requirement to only those devices intentionally designed to play back video programming, but clarified its rule and issued two class-based waivers excluding from the requirement equipment such as still digital cameras and baby monitors, which play back consumer generated images and not IP "video programming" as defined by the CVAA.
The following two classes of "apparatus" qualify for the waiver:
(i) devices that are primarily designed to capture and display still and/or moving images consisting of consumer-generated media, or of other images that are not video programming as defined under the CVAA and our rules, and that have limited capability to display video programming transmitted simultaneously with sound ... and (ii) devices that are primarily designed to display still images and that have limited capability to display video programming transmitted simultaneously with sound.
The FCC also decided to delay the January 1, 2014 compliance deadline for DVD players that do not render or pass through closed captions. According to the Commission, that extension was granted to give the FCC more time to collect data regarding additional costs that might be imposed by adding IP captioning functionality to low-cost devices like DVD and Blu-ray players. The extension does not apply to other removable media players or to DVD players that already have the ability to caption.
Regarding the TV Guardian Petition, the FCC denied the Petition, which had requested that the Commission prohibit video programming providers and distributors from rendering captions where passing through captions is "technically feasible", determining that the request was inconsistent with the language of the CVAA. The FCC also noted that the consumer electronics industry "coalesced around the use of HDMI, which permits the use of rendered captions but does not pass through closed captions, meaning that it only conveys captions when they have been decoded and mixed into the video stream."
The FCC deferred a decision on the main thrust of the third Petition, filed by a number of consumer groups, which questioned why IP video captioning requirements only apply to "full-length programming" that appears on TV with captions and is then distributed via IP to end users substantially in its entirety. The coalition of consumer groups urged the FCC to expand the captioning requirement to also cover "video clips" containing less than a full-length program. The FCC is keeping the record open on this issue until more information is gathered on the captioning of video clips, including the difficulty of doing so, and the degree to which such captioning already occurs voluntarily.
Finally, in the Further Notice, the FCC asked for "further information necessary to determine whether the Commission should impose synchronization requirements on device manufacturers." What the FCC is asking for here is additional information to determine whether to "require apparatus manufacturers to ensure that their apparatus synchronize the appearance of closed captions with the display of the corresponding video." In the Report and Order, the FCC had declined to impose synchronization requirements on manufacturers, instead placing the obligation on video programming distributors and providers.
As noted, initial comments on the Further Notice are due September 3, 2013, with reply comments due on September 30, 2013. The issues raised in the proceeding are obviously complex, so those who wish to file comments should start preparing sooner rather than later.
Posted March 30, 2013
On this date, all live and near-live programming that is shown on the Internet after being shown on television must be captioned for online viewing, in accordance with the rules implementing the 21st Century Communications and Video Accessibility Act. "Live" programming is defined as programming that airs on TV "substantially simultaneously" with its performance (e.g., news and sporting events). "Near-live" programming is video programming that is performed and recorded less than 24 hours prior to the first time it aired on television (e.g., "The Late Show with David Letterman").
Posted March 25, 2013
As we have discussed at great length in the past, the FCC's rules require that certain video programming delivered online be captioned if the programming previously aired on television with captions. The rules kicked in on April 30 of last year, and all video programming that appeared on television with captions after that date is considered "covered Internet Protocol (IP) video" and will ultimately need to be captioned when being shown online.
The first step of the captioning phase-in occurred on September 30, 2012. Since that date, stations have been required to display captioning for prerecorded full-length programming delivered via IP if the programming was first aired on television with captions on or after the April 30 date noted above.
The second phase of the FCC's IP captioning rules begins March 30, 2013 (a Saturday), at which time the FCC's IP captioning rules require all live and near-live programming subject to the rules and shown on television with captions to be captioned when delivered online. The FCC's definition of "live" or "near-live" captures all programming performed simultaneously or recorded within 24 hours of its first transmission to a video programming distributor. Note that as long as they do not constitute "substantially all" of a full-length program, online video clips are currently exempt from the IP captioning rules.
As a result, the question we probably receive most often from clients about online captioning is: what exactly does the FCC mean by "substantially all" of a full-length program? It's a good question that lacks a precise answer. The FCC intentionally decided not to provide a specific threshold for the length or number of clips aired that would constitute "substantially all" of a program. According to the FCC, it did not see "any evidence that Congress sought to exclude only clips of a certain duration or percentage of the full-length program."
Parties should keep in mind, however, that the FCC will not allow them to game the system by simply "shaving" off a few minutes or brief segments of a full length program in order to avoid the IP captioning obligation. The FCC emphasized that "if there is clear evidence that an entity has developed a pattern of attempting to use video clips to evade its captioning obligations," the FCC may find that a rule violation has occurred.
There is of course more to come. The captioning requirements for "full length" and "live or near-live" programming are just the beginning of the new IP captioning obligations being implemented in the near future. The next deadline is coming up soon with the September 30, 2013 requirement that all pre-recorded programming that is edited for Internet distribution be captioned for online viewing. Also, don't forget there are separate captioning compliance deadlines for captioning of IP video programming that previously aired on television prior to the effective date of the rules, but that is shown again on television with captions after the effective date. Those phased-in captioning requirements are scheduled to take place between March 2014 and March 2016, with progressively shorter periods to caption the programming for IP video after it airs on television with captions.
As was the case with the original broadcast captioning rules, each phase-in "deadline" shrinks the amount of programming exempt from the online captioning requirement while requiring the distributor to tackle ever more complex captioning issues. IP captioning will therefore consume a growing portion of the attention of those posting broadcast video online. The big difference is that broadcast captioning was phased in over eight years (twelve years for Spanish language programming), whereas online captioning is being phased in on a much faster schedule.
Posted March 17, 2013
Commercial and noncommercial webcasters and those simulcasting radio programming over the Internet must by this date submit the Monthly Report of Use and Monthly Usage Statement of Account forms to SoundExchange for the month ending January 31, 2013.
Posted February 14, 2013
Commercial and noncommercial webcasters and those simulcasting radio programming over the Internet must by this date submit the Monthly Report of Use and Monthly Usage Statement of Account forms to SoundExchange for the month ending December 31, 2012.
Posted January 31, 2013
By this date, most commercial and noncommercial webcasters and those simulcasting radio programming over the Internet must submit the Minimum Fee Statement of Account Form and the annual $500 copyright royalty fee to SoundExchange. January 31 is also the date by which certain webcasters and simulcasters are eligible to make elections affecting their royalty rates and reporting requirements for the upcoming year. If your radio broadcast station is simulcast or rebroadcast over the Internet, we encourage you to consult qualified counsel with regard to your obligations.