CommLawCenter

Posted January 20, 2012

By Scott R. Flick

One of the curiosities of communications law is that while there are thousands of applicable rules and statutory provisions, there are a handful that the FCC likes to enforce with particular gusto. One of these is the rule regarding how on-air contests must be conducted. Over the years, many broadcasters have found this to be a "strict liability" rule, with any problem that occurs in an on-air contest being laid at the feet of the broadcaster along with the standard $4,000 fine. As a result, despite the myriad state laws governing the conduct of contests, broadcast contests tend to be some of the more carefully conducted contests out there.

The rule itself, Section 73.1216, is one of the most concise of the FCC's rules, being only two sentences long: "A licensee that broadcasts or advertises information about a contest it conducts shall fully and accurately disclose the material terms of the contest, and shall conduct the contest substantially as announced or advertised. No contest description shall be false, misleading or deceptive with respect to any material term." Significantly longer than the rule itself, however, are the three footnotes to the rule, which provide details about what must be disclosed and how. The key requirements are that the "material terms" of the contest be disclosed on-air through "a reasonable number of announcements". The typical basis for a $4,000 contest fine is that the station either fails to adequately disclose the material terms of the contest, or fails to comply with those terms in running the contest (for example, failing to award the stated prize).

What has changed since the current rule was adopted in 1976, however, is that stations increasingly have a station website with much content that is independent of their broadcast content, including online contests. While a station and its website will obviously cross-promote each other, neither is a substitute for the other, and each is a separate channel of communication with the public. As a general rule, the FCC has no jurisdiction over websites, and has not attempted to regulate contests that are not conducted on-air. While online contests are subject to numerous state and federal law requirements, they are not normally the subject of FCC proceedings.

Yesterday, however, the FCC released a decision proposing to fine a number of Clear Channel radio stations $22,000 for contest rule violations relating to a car contest conducted on the stations' websites. Both the size of the fine and the fact that it does not relate to a true on-air contest make it a noteworthy decision. In the contest, listeners were invited to submit video commercials for Chevrolet (keep in mind the stations fined were radio stations), with the contestant submitting the best commercial winning a car. The FCC received a complaint from a listener who argued that the stations involved in the contest failed to disclose the material terms of the contest on-air, failed to conduct the contest in accordance with the stated rules, and improperly awarded the prize to a friend of an employee.

While the FCC declined to find that the contest was "fixed" merely because the winner was a friend of a station employee, it did find that the stations failed to disclose the material terms of the contest on-air, and that the stations failed to conduct the contest in accordance with the rules in any event, principally because the rules were internally inconsistent. One provision in the rules stated that entries would be accepted through March 21, 2008, but another provision stated that judges would select a winner on March 10, 2008, before the stated deadline for entries had passed.

In its defense, Clear Channel argued that the FCC's rule doesn't apply, since the contest was conducted on the stations' websites, and was not a broadcast contest. In addition, it noted that the contest rules were posted on the station websites where the contest was being conducted. The FCC rejected this argument, stating that the stations had promoted the contest on-air, and that this cross-promotion made the contest a broadcast contest subject to the FCC's rule. Interestingly, it does not appear from the FCC's order that Clear Channel made the arguments that: (1) stations promote advertisers' contests all of the time and the mere fact that a contest is promoted on-air does not extend the FCC's jurisdiction to the conduct of those contests, and (2) there isn't any reason from a First Amendment standpoint for requiring a different level of disclosure from a broadcaster than any other party choosing to promote its online contest on-air.

Having concluded that its contest rule applied, the FCC found that the stations violated that rule when they failed to air announcements disclosing the material terms of the contest rules, and that they also violated the rule by failing to accurately state the deadline for entries, creating confusion among listeners. Noting that the contest was promoted on multiple stations, that Clear Channel has previously been found in violation of the contest rule on multiple occasions, and that Clear Channel has "substantial revenues", the FCC increased the base fine of $4000 to $22,000, an unusually high amount for a contest rule violation.

So what should broadcasters take away from this decision? First, that any on-air promotion of a contest makes it a "broadcast contest" unless the contest is conducted by a third party. In this regard, stations will want to be careful about co-sponsoring an advertiser's contest, since an advertised contest that otherwise fully complies with all state and federal laws can suddenly cause a problem if the FCC concludes that it is a licensee-conducted contest.

Second, and this part is nothing new, stations and others conducting contests need to make sure that the contest rules are carefully written, consistent with law, and not confusing to potential contestants. Surprising as it is, major companies holding national contests frequently fail to accomplish this successfully, and the lawyers in our Contests & Sweepstakes practice are regularly called upon to draft or revise contest rules to avoid this problem. Given yesterday's FCC decision, broadcasters have one more reason than everyone else to make sure that their contests, online or otherwise, are carefully conducted to comply with the law.

Posted May 24, 2011

Attorneys from Pillsbury's Privacy, Data Protection & Information Use team will give an overview of web-based privay and data security requirements as well as online and mobile marketing standards during this webinar on Tuesday, May 24th from 12:00 PM-1:00 PM ET.

For more information and to register for this presentation, please click here.

Posted April 14, 2011

During this webinar on April 14, 2011 at 12:00 EDT, John Nicholson and others will discuss the ICANN gTLD process.

For additional details and to register for this event, please click here.

Posted April 13, 2011

By Paul A. Cicelski

As we all know, unsolicited spam email can be annoying and intrusive. In 2003, Congress enacted the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act to curb spam. As required by the Act, the FTC and FCC adopted rules that prohibit sending unwanted commercial messages without prior permission. Among other things, the CAN-SPAM Act makes it "unlawful for any person to initiate the transmission, to a protected computer, of a commercial electronic mail message, or a transaction or relationship message, that contains, or is accompanied by, header information that is materially false or materially misleading."

On March 28, 2011, a U.S. District Court in California held for the first time that the CAN-SPAM Act's restrictions on the transmission of unsolicited commercial e-mail extends beyond traditional e-mail to include communications to other electronic medium, including Facebook friends' walls, news feeds, and home pages. As John Nicholson of Pillsbury's Global Sourcing group describes in detail in a recent Client Alert found here, the ruling is the most expansive judicial interpretation so far regarding the types of messages that fall within the scope of the CAN-SPAM Act.

John's Client Alert is definitely worth a read for companies using social media in marketing. As John points out, companies should verify that they (and any marketing services they engage) comply with CAN-SPAM's requirements for commercial messages sent via social media platforms.

Posted April 12, 2011

By John L. Nicholson

4/12/2011
The board of the Internet Corporation for Assigned Names and Numbers (ICANN) has scheduled a June 20th meeting to approve the process for proposing new generic top-level domains (gTLDs). If this date holds, the application process will begin in late October, with new gTLDs being approved and added to the Internet starting around July 2012. As more organizations announce their plans to apply for a specific domain, the clock is ticking for other organizations who might want to apply for a TLD or who may need to react to TLDs being registered by competitors or other entities. Chief Marketing Officers, with the assistance of other senior executives, legal and external advisors, should be evaluating whether to apply, defend or do nothing, and how to prepare for the consequences of each decision.

Pillsbury, in cooperation with Architelos and CollectiveIntell, is offering a webinar on the gTLD process on April 14 titled, "New Generic Top Level Domains: Why Should You Care and What to Do Now." To register, please visit WebEx.

For additional background on the gTLD process see our March 10, 2011, alert, "New Generic Top-Level Domain Application Process Brings Business Opportunities, Issues."

As discussed previously, there are currently 21 TLDs (.com, .org, and .net being the most popular), and more than 270 country code top-level domains (ccTLDs). After years of debate, a set of policy recommendations for creating new gTLDs was adopted in October 2007. After a succession of drafts for an Applicant Guidebook for the would-be operators of new gTLDs, and unprecedented back-and-forth with representatives of various governments, ICANN has proposed the following timeline for the gTLD process:

Continue reading "Client Alert: Clock is Ticking on ICANN gTLD Process: As More Entities Seek New Domain Names, Others Should Doublecheck Their Trademarks"

Posted April 7, 2011

By John L. Nicholson

4/7/2011
On March 28, 2011, the U.S. District Court for the Northern District of California held in Facebook, Inc. v. MaxBounty, Inc.<sup>1 that messages sent by Facebook users to their Facebook friends' walls, news feeds or home pages are "electronic mail messages" under the CAN-SPAM Act. The court, in denying MaxBounty's motion to dismiss, rejected the argument that CAN-SPAM applies only to traditional e-mail messages. The ruling is the most expansive judicial interpretation to date of the types of messages falling within the purview of the CAN-SPAM Act. While the court did not address the underlying merits of the CAN-SPAM claims, companies using social media in marketing should verify that they (and any marketing services they engage) comply with CAN-SPAM's requirements for commercial messages sent via social media platforms.

MaxBounty is an advertising and marketing company that uses a network of content-producing publishers to drive traffic to its customers' websites. MaxBounty acts as an intermediary between its network of publishers (advertisement content creators) and its customers (third-party advertisers).

Continue reading "Client Alert--The CAN-SPAM Act Applies to Social Media Messaging, Rules Federal Court in California"

Posted April 5, 2011

By John K. Hane

Ever since Time Warner Cable released an app that allows users to watch two or three dozen cable channels on iPads we've been barraged by press reports of litigation and plans of other multichannel providers to launch similar services. Cablevision has announced it's launching a similar app that lets subscribers watch their entire channel lineup on an iPad.

Suddenly cable and satellite companies are rushing to review their programming and retransmission deals to figure out what rights they have obtained, while programmers frantically review distribution agreements to see what rights they may have given away. We can find a few lessons about retransmission consent agreements in the App Flap, but let's save those for another day.

What this really comes down to is whether the iPad apps qualify as "cable system" distribution, Internet distribution, or something else. Most programmers (and a few careful broadcasters) specifically carve out Internet distribution when signing carriage agreements - existing deals cover distribution for in-home viewing over cable and DBS systems. Internet distribution rights are negotiated separately, if at all. But many broadcasters who signed MSO form retrans agreements may have given away a lot more than they intended to.

Continue reading "The iPad App Flap - What's the Big Deal?"

Posted March 10, 2011

By John L. Nicholson

3/10/2011
Beginning later this year, ICANN is expected to accept applications for new generic domain suffixes for industries, interests and communities, such as ".bank," ".movie" or ".music." In addition to the generic terms, this round also includes the potential for various geographic tags that are not country codes (e.g., ".nyc" or ".andes"), brands (".pillsbury") as well as non-Latin characters (e.g., "中 and 国"). ICANN is expecting to approve between 200 and 500 new gTLDs in this round and to have new application rounds approximately every two years.

For organizations considering applying for a gTLD, the process will be expensive. The initial application fee is $185,000 and ICANN also requires the provision of a bond or irrevocable line of credit equal to the operating costs to keep a domain in service for three years. Estimates of the operating costs for the first few years could be several hundred thousand dollars or more, depending on the scale of use of the domain and the services offered. (Note, the bond/line of credit would likely be for a smaller amount, as it would only have to cover the most basic domain-name services.) It will only make sense if there is a clear "business plan" for use of the domain to advance short-term or long-term goals of the brand, industry, profession, or field represented.

Continue reading "Client Alert: New Generic Top-Level Domain Application Process Brings Business Opportunities, Issues"

Posted March 4, 2011

By Lauren Lynch Flick and Cydney Tune

On February 22, 2011, US District Court Judge Naomi Reice Buchwald of the Southern District of New York issued a 59-page decision enjoining ivi TV, Inc. from streaming the programming of various network-affiliated television stations on the Internet without their permission. The judge's opinion articulates a basic principle of copyright law -- that the creator of the content holds a bundle of rights which, with very few exceptions, it alone controls. Therefore, even in this age of proliferating distribution platforms, the fact that the copyright owner has made its content available via a number of different technologies does not diminish its ability to control whether and how to make it available on a new platform. The case will likely yield more examination of this issue, as ivi TV has sought a stay of the injunction.

Background
ivi TV began Internet streaming of the signals of several network affiliated television stations located in Seattle and New York in September 2010, and thereafter announced plans to add stations from Chicago, Los Angeles and San Francisco in the future. It offered subscribers located throughout the United States the ability to receive these television signals via an Internet connection for a monthly fee. Subscribers downloaded a player, chose the signals to watch, and the signals were delivered in an encrypted form. In anticipation of the content owners' lawsuit, ivi TV sought a Declaratory Ruling from a US District Court in Seattle that the company was not infringing the copyrights in the programming, but the court dismissed that case as an anticipatory filing. A consortium of television stations, the producers of programming shown on the stations, and Major League Baseball later commenced a lawsuit for copyright infringement in New York, seeking an injunction to prevent any further retransmissions of their content by ivi TV.

Continue reading "Client Advisory: A Look at the Decision Enjoining ivi TV From Streaming Broadcast Content on the Internet"

Posted December 21, 2010

By Scott R. Flick

While we await release of the text of today's Net Neutrality order from the FCC, it strikes me as useful to take a step back and apply a broader perspective to what can be learned from the debate that led to it. While lawyers get a rush when they think they have come up with the perfect legal argument to support their client's cause (and we're fun at parties too!), those of us working in Washington have to concede that legal arguments are often secondary to the politics involved. Certainly, the FCC's order will not be the last word in the Net Neutrality debate, with a number of prominent members of Congress already promising a legislative rebuke, and the near certainty of the courts being called upon to assess the FCC's authority to adopt such rules.

In spite of the millions spent on lawyers and lobbyists on both sides of this issue, the result was in many ways preordained by the real champion in this debate, linguistics. Much of the battle was won when proponents summarized their position as being in favor of "Net Neutrality", a term that is sufficiently innocuous yet catchy enough to crystallize the debate as being between those who want a neutral/fair apportionment of the Internet's capabilities, and those who, well, don't. Opponents were put instantly on the defensive, trying to explain why a neutral Internet wouldn't be a good thing.

While other terms were also bandied about in the early days of the debate (like "broadband discrimination" or "traffic prioritization"), none had the simple positive ring (and alliteration) of Net Neutrality. "Internet Indifference" might have been a good candidate as well, but no one seems to have thought of it at the time.

Added to this linguistic head start is the fact that the concept itself is simply easier to explain in positive terms than in negative ones. Stories on the Washington Post's website today described Net Neutrality as a regulation that "ensures unimpeded access to any legal Web content for home Internet users" and which marks "the government's strongest move yet to ensure that Facebook updates, Google searches and Skype calls reach consumers' homes unimpeded." Based on that description, readers would be hard pressed to conclude that Net Neutrality is a bad thing, and much of the mainstream press used terms similar to the Post's in describing today's action by the FCC.

Taking the contrary position, there are two big problems with arguing that Net Neutrality is "an intrusive government interference into the management of broadband networks that will impede the evolution of new models of business on the Internet while requiring Internet innovators to first consider and navigate government regulations before implementing new Internet services." First, it doesn't exactly roll off the tongue like the Post's description of Net Neutrality. Second, it requires several additional explanations of exactly how Net Neutrality regulations would have that effect. It isn't necessarily obvious from the statement alone.

The point of this is not to debate the merits of Net Neutrality itself, but to note that taking the time to carefully craft and package a proposal before presenting it (to the FCC or any other part of the government, including Congress) frames the debate in your favor. It is not an irrefutable advantage, but claiming the linguistic high ground forces opponents to expend far more of their resources fighting their way uphill, while the proponent conserves its legal and political resources waiting at the top. Many opponents will falter before they reach the top, and those that do make it will be exhausted from the climb.

In the case of Net Neutrality, vast resources were arrayed on both sides of the debate, but the political and public popularity engendered by the phrase "Net Neutrality" and the easily understood arguments on its behalf proved to be insurmountable today. It is safe to say, however, that opponents of Net Neutrality regulations are already regrouping for their next charge in Congress and in the courts, and that today's skirmish was merely the first of many to come.

Posted October 11, 2010

By John K. Hane

In October of 1996 my boss, the chairman of a $3 billion television production and distribution empire (and one of the smartest television dealmakers I ever met) scoffed when I said that television could be delivered over the Internet. I told him to wait ten years. Well, in 2006 we had YouTube, but I doubt Bill Bevins would count that as television.

In the first ten days of October 2010:

• I spoke on the "Hot Topics" panel at the annual TPRC conference, where leading academics and policy makers discuss legal, economic, social, and technical issues on national and international information and communications policy. The hot topic this year: over-the-top (OTT) television.
• A friend called asking for advice - he'd been offered a senior executive post with a very large broadcasting company paying a great salary, and a senior position with a scrappy OTT startup, paying lots of stock and the chance to hit big. In 2010, he sees this as a tough call.
• I watched Forrest Gump in "high definition" on a 50" plasma monitor, streamed by Netflix to my son's Xbox. The quality was stunning.
• I installed my new AppleTV and watched a high definition podcast, also streamed, and several "high definition" videos on YouTube and Netflix. In several cases, the quality was very good. And the Apple TV interface is much more elegant and easier to use than our FiOS set top box.

I should have told Bill 14 years.

OTT is here. There's a lot of long tail and niche content online. It's getting easier to find and use, and if you have a fast broadband connection, the quality can be outstanding. So just what is cord cutting and how do you define OTT? And what do they mean for traditional video providers?

Cord cutting at its extreme means a household drops MVPD service and relies on other sources of television - primarily free OTA television supplemented by long-tail OTT internet services like Netflix and Hulu. OTT means traditional television content delivered through non-traditional (generally Internet) television distribution channels. It doesn't refer to non-traditional video content (YouTube and other user generated content) regardless of distribution channel. We make this distinction because, rightly or wrongly, we consider YouTube and Vimeo to be something entirely different (and less threatening to incumbent providers) than the delivery of high resolution, full-format, traditional programming over the Internet.

Many fear OTT will lead to tens of millions of households to cut the cord. This is naturally a concern for cable and satellite providers, but many broadcasters worry too, because MVPDs won't pay broadcasters for cord cutting households. Personally, I think we are likely to see a fair amount of cord cutting in the next few years, and an even larger amount of what I call cord trimming - dropping premium services or higher tier services. In new households, broadband is essential, while pay television service is often optional. And the combination of gorgeous, over-the-air, live high definition broadcast service and increasingly compelling long tail OTT options is likely to be a better option for many households than traditional MVPD service.

But there's a silver lining for cable systems and broadcasters, and even for DBS providers.

• Cable systems may lose video subs, but demand for OTT television will drive broadband adoption into more of the 40 million households that haven't adopted it so far, and it will lead others to upgrade their connections, at higher prices. Since broadband service is generally more profitable than video services, cable profit margins could actually rise even if gross revenue shrinks.


• Broadcasters could lose retransmission consent fees from cord cutting households, but cord shrinking will affect broadcast competitors - cable networks - before broadcasters, because it's the expensive higher tiers and premium services that cord-shrinking customers drop. The broadcast and sports channels are the last to go before cord is cut altogether.


• If total MVPD penetration falls from the high eighties to the mid sixties in the next seven to ten years, as I suspect it will, tens of millions in advertising will migrate back from cable and satellite to broadcast, because reach is still important. Twelve or so years ago, with MVPD penetration in the mid 60s, broadcasters were far more profitable, even without retransmission revenue.


• Much higher broadband penetration could breathe new life into the DBS business model, which is an incredibly cost efficient way to distribute high quality linear television. With more broadband homes to sell into, DBS providers can create a hybrid satellite-OTT service that meets and in many ways exceeds what the cable operators can do with their own video services.

Posted October 8, 2010

By Lauren Lynch Flick and Scott R. Flick

Last week, Congress passed the Twenty-First Century Communications and Video Accessibility Act of 2010 (the "Act") which, among other things, reinstates the FCC's former Video Description rules for television broadcasters, extends closed captioning of video programming to the Internet, and requires the FCC to examine methods of increasing the accessibility of emergency information. The President signed the bill today, October 8, 2010.

The Act is designed to update the Communications Act to account for the many new technologies available in today's marketplace and to assure that they are accessible to persons with hearing or vision impairment. The Act outlines a decade-long timetable for the submission of various reports by a new advisory committee to the FCC, and then by the FCC to Congress, and the implementation of further regulations based on the findings of those reports. When fully implemented, the Act will require that specific amounts of digital television programming contain video descriptions, that certain video programming distributed via the Internet contain closed captions, and that consumer electronics devices contain features to promote accessibility and be hearing aid compatible. We have summarized the Act's requirements in three phases below.

Continue reading "Client Alert: President Signs the 21st Century Communications and Video Accessibility Act, Creating Wide-Ranging Video Programming Accessibility Requirements Intended to Assist Those with Disabilities"

Posted August 9, 2010

By Lauren Lynch Flick

The FCC has opened a rulemaking proposing reforms to its broadband health care initiatives for rural and tribal areas. The FCC's Notice of Proposed Rulemaking originally released in July was published in the Federal Register today, which establishes the deadline for submitting Comments and Reply Comments in the proceeding. Comments in response to the Notice of Proposed Rulemaking are due on September 8, 2010. Reply Comments are due on September 23, 2010.

Chief among the proposals contained in the Notice of Proposed Rulemaking are:

• Creating a health infrastructure program that would support up to 85% of the construction costs of new regional and statewide broadband networks serving public and non-profit health care providers where broadband is currently unavailable or insufficient;

• Creating a health care broadband services program that would subsidize 50% of the monthly recurring costs of access to broadband services for eligible public or non-profit rural health care providers; and

• Expanding the class of health care providers eligible to receive these funds to include skilled nursing facilities, renal dialysis centers and facilities, and certain off-site administrative offices and data storage centers that perform support functions for health care providers.

We discussed the details of this Notice of Proposed Rulemaking in a recent Client Advisory. Health care providers, as well as rural and tribal communities interested in improving their broadband access for local health care services, should get involved in this proceeding. It is important to provide the FCC with real world examples of the needs and problems faced in providing modern health care services in your community so that those needs are taken into account as the FCC attempts to craft its rural health care initiative.

Posted May 6, 2010

By John Hane

The press is buzzing with news, leaked late yesterday and announced today in a document entitled The Third Way: A Narrowly Tailored Broadband Framework, that FCC Chairman Genachowski is proposing to reclassify the transmission component of broadband Internet access as a "telecommunications service" subject to FCC regulation. As almost everyone in the telecom world knows, the US Court of Appeals recently found that the FCC does not have direct jurisdiction to impose "network neutrality" rules as long as it classifies broadband as just an "information service."

With the Chairman's support, three of the five FCC Commissioners now favor reclassifying broadband as a telecommunications service, a first step towards adopting network neutrality rules.

For broadcasters, the net effect of net neutrality rules isn't as easy to assess as it may at first seem. As producers and distributors of broadband and mobile services, net neutrality rules should assure broadcasters that their content will not be blocked or unfairly degraded by broadband network operators. Broadcasters that provide mobile news apps and operate rich media web sites have the same general interest in nondiscriminatory network access as do Internet behemoths like Google, Amazon and eBay.

On the other hand, broadband providers have argued convincingly that their networks are extremely expensive to build and that they must have flexibility to manage Internet traffic on their networks to assure a good quality of service to their subscribers. If the FCC limits broadband operators' ability to manage traffic, those operators may have to upgrade their infrastructure, raising costs to web publishers and end users alike.

Mobile network operators assert that network neutrality rules could have proportionally greater adverse effects on them. Mobile network capacity is generally more costly and less robust than that of copper and fiber networks. If network neutrality rules increase the load on mobile networks and limit the ability of network operators to manage that traffic, their arguments that they need more spectrum to meet growing demand may be more convincing.

At this stage, no one knows how any proposed network neutrality rules would treat mobile broadband operators. However, it is plausible that aggressive network neutrality rules could increase the load on mobile networks, and mobile operators are sure to argue that they will need more spectrum to respond.

With broadcast spectrum already squarely in the sights of the same FCC that is now proposing to impose network neutrality rules, broadcasters should pay close attention to this debate.

Posted April 28, 2010

By Scott R. Flick

One of the benefits of practicing law in a multifaceted law firm is the opportunity to work with lawyers in every area of law. It is always a good learning experience, as you get to explore the often hazy areas of law that dwell at the nexus of multiple practice areas. For example, many communications facilities, and particularly towers, create both environmental and communications law issues. Over the years, we have worked on numerous matters involving RF radiation and bird strike issues at transmission tower sites. Issues like that involve multiple governmental agencies and protocols, and it is great to have a mix of lawyers with the right experience to address the various aspects of such a problem.

I therefore read with interest an Advisory published today by Pillsbury Intellectual Property lawyers Jim Gatto, Cydney Tune, and Jenna Leavitt. While not directed specifically at communications companies, it discusses an IP matter that is certainly relevant to such companies. Like most businesses, those in the communications sector use a lot of off the shelf software. However, communications companies also license a lot of specialized software (e.g., traffic systems for ad placement), and often have to hire coders to adapt the software to their specific needs or to create entirely new software for highly specialized tasks. Sometimes, such entities have new software created because they are not satisfied with what is commercially available.

As a general rule, when you hire a contractor to produce a "work for hire", the copyright in that work remains with you rather than the contractor. However, in their Advisory with the catchy title Work Made for Hire Doctrine Does Not Generally Apply to Computer Software, the authors note that software does not fall under the types of works considered work for hire. As a result, the copyright in the software would remain with the contractor (even if the parties had agreed it would be a "work for hire") unless proper contracts are put in place to alter that result. The Advisory goes into detail on how this works and what the implications are, but suffice it to say that many communications companies may be surprised to learn that they don't hold the copyright in their own software.

This is not just an issue for large companies with complex computer systems and extensive programming. It applies just as readily to a small market radio station that asks a college student to design its website. Without the proper agreements in place, the copyright would remain with the student rather than the radio station. Now might be a good time to consider what software you have had contractors produce for your operation, and whether you know who actually owns it.