Articles Posted in Radio

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August 2009
The volatile combination of broadcast employees concerned about their income and job security, and cash-strapped businesses looking for cheap and effective ways to promote themselves in difficult economic times, creates an unusually fertile ground for payola and plugola violations. Complicating matters are state efforts to prohibit “payola” activities that are legal under federal payola law. Even being accused of payola can be devastating to a broadcaster, and stations must be extremely diligent in uncovering and preventing payola and plugola violations.

Payola is the undisclosed acceptance of, or agreement to accept, anything of value in return for on-air promotion of a product or service. It is forbidden by Sections 317 and 507 of the Communications Act of 1934, and by Sections 73.1212 (broadcast) and 76.1615 (cable) of the FCC’s Rules. Its sibling, Plugola, occurs when someone responsible for program selection promotes on-air a venture in which he or she has a financial interest without disclosing that interest to the station licensee and to the public. A payola or plugola violation by an employee usually results in the employer violating the FCC’s sponsorship identification rule as well.

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Recent Settlements and Court Rulings Bring Clarity to Royalty Landscape
8/18/2009
The long-running battle over royalties owed by webcasters–companies that broadcast music over the Internet–took several significant leaps towards conclusion last month with important developments both inside and outside of the courtroom. Spurred by the Webcaster Settlement Act of 2009, signed by President Obama on June 30, SoundExchange and webcasters entered into a total of five Congressionally blessed settlement agreements that are open to other webcasters and are binding on all copyright owners and performers. Additionally, decisions were announced in two appellate cases. Set forth below are sum­maries of the key terms and important deadlines.

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July 2009
As we recently reported, the FCC has altered the schedule for the filing of Biennial Ownership Reports by commercial broadcast stations. Those Reports must now be filed by November 1, 2009 and by the same date every two years thereafter. However, the staggered schedule for the filing of Biennial Ownership Reports for noncommercial educational broadcast stations remains unchanged for the time being, subject to a pending Further NPRM. For noncommercial radio stations in California, North Carolina and South Carolina and noncommercial television stations in Illinois and Wisconsin, the reports are due August 1, 2009.

Noncommercial educational radio stations licensed to communities in California, North Carolina or South Carolina and noncommercial educational television stations licensed to communities in Illinois or Wisconsin must file their Biennial Ownership Reports by August 1, 2009.
As discussed in a Client Advisory sent earlier this month, the FCC released an Order on May 29, 2009, suspending the biennial ownership reporting requirement for licensees of commercial radio and television broadcast stations that would otherwise have been required to file their reports by June 1, August 1 or October 1, 2009. Accordingly, all commercial radio and television stations must submit biennial ownership reports by November 1 every other year, starting in 2009.

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July 2009
The FCC has altered the schedule for the filing of Biennial Ownership Reports by commercial broadcast stations. August 1, 2009 is no longer the deadline for commercial radio stations in California, North Carolina, and South Carolina, or for commercial television stations in Illinois and Wisconsin to file their biennial ownership reports. Those Reports must now be filed by November 1, 2009 and by the same date every two years thereafter, by all radio and television sta­tions nationwide.

As previously reported, the FCC released an Order on May 29, 2009, suspending the biennial ownership reporting requirement for licensees of commercial radio and television broadcast stations that would other­wise have been required to file their reports by June 1, August 1 or October 1, 2009.

Accordingly, commercial radio stations licensed to communities in California, North Carolina and South Carolina and commercial television stations licensed to communities in Illinois or Wisconsin need not file their Biennial Ownership Reports by August 1. They will, however, have to file their reports by November 1, 2009, as will the licensees of all other commercial, full-power AM, FM, TV, LPTV and Class A television stations licensed to communities in any State or Territory of the United States.

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7/16/2009
As the sources of content available to the public proliferate, attracting and retaining an audience grows more challenging. A common strategy is to use provocative or “attention-getting” on-air elements to increase station awareness among media-saturated listeners and viewers. However, stations must be mindful of the numerous legal restrictions on content, particularly given that illegal on-air content can garner fines as high as $325,000 per violation. In addition, certain types of illegal on-air content can subject a broadcaster to civil and criminal liability, as well as loss of its license.

Introduction
Familiarity with the FCC’s rules regarding on-air content is not optional for on-air talent, station programmers or station management. In most cases, editorial judgments made in advance, especially in the case of syndicated or pre-recorded programming, can prevent illegal content from reaching the air. It is therefore important that those involved in airing broadcast programming be up-to-date on the boundary lines that the FCC and the courts have drawn to distinguish legal from illegal on-air content.

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July 2009
This Broadcast Station EEO Advisory is directed to radio and television stations licensed to communities in: California, Illinois, North Carolina, South Carolina and Wisconsin, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

Introduction
August 1, 2009 is the deadline for certain broadcast stations licensed to communities in the States/Territories referenced above to place their Annual EEO Public File Report in their public inspection files and post the report on their website, if applicable.

Under the FCC’s rule that became effective as of March 10, 2003, all radio and television station employment units (“SEUs”), regardless of staff size, must afford equal employment opportunity to all qualified persons and practice nondiscrimination in employment.

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6/30/2009
In respond to the National Association of Broadcasters’ July 14, 2006 Petition for Rule Making, and after a Notice of Proposed Rule Making Proceeding released on August 15, 2007, the FCC today released a Report and Order adopting the NAB’s proposal that AM stations be allowed to use FM translators to retransmit their AM service within their AM stations’ current coverage areas. The action was taken to “permit AM broadcasters to better serve their local communities and thus promote the Commission’s bedrock goals of localism, competition and diversity in the broadcast media.”

In response to the National Association of Broadcasters’ July 14, 2006 Petition for Rule Making, and after a Notice of Proposed Rule Making Proceeding released on August 15, 2007, the FCC today released a Report and Order adopting the NAB’s proposal that AM station be allowed to use FM translators to retransmit their AM service within their AM stations’ current coverage areas. The action was taken to “permit AM broadcasters to better serve their local communities and thus promote the Commission’s bedrock goals of localism, competition and diversity in the broadcast media.”

According to the Report and Order, “AM broadcast stations will be allowed to use currently authorized FM translator stations (i.e., those now licensed or authorized in construction permits that have not expired) to rebroadcast their AM signals, provided that no portion of the 60 dBu contour of any such FM translator signal extends beyond the smaller of: (a) a 25-mile radius from the AM transmitter site; or (b) the 2 mV/m daytime contour of the AM station. In addition, AM broadcast stations with Class D facilities…will be allowed to originate programming on such FM translators during the periods when their AM station is not operating.”

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6/25/2009
Through the vehicle of a Notice of Proposed Rule Making (“NPRM”), Acting Chairman Michael J. Copps, and Commissioners Jonathan Adelstein and Robert McDowell are looking to change the way the FCC decides what communities and areas deserve new or modified commercial and noncommercial, full-power AM and FM radio stations.

Because the decisions the FCC makes as a result of the NPRM may well determine whether existing, as well as newly proposed, free, over-the-air radio stations thrive or perish, the rule making is likely to have a very significant effect on the radio broadcast industry, including its ownership and program diversity, going forward. If adopted, the FCC’s proposals would substantially reduce or eliminate the flexibility broadcasters currently have to locate or move small community and rural stations to areas where they can serve more listeners and/or listeners with different programming needs. Another effect of the NPRM could be to move more competing applications into an auction process which, in turn, may discourage filings altogether.

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On March 13, 2009, and in response to the Congressional extension of the digital transition deadline from February 17 to June 12, 2009, the FCC released an R&O which, among other things, revised the rules associated with its requirements for DTV Consumer Education Initiatives. Those significant revisions, which became effective on April 1, 2009, included additional viewer notifications regarding antennas, help/walk-in centers, rescanning activities, and service loss.

The FCC has released a draft version of its most recent FCC Form 388 which includes the rule changes. A copy of the revised FCC Form 388, which has not yet received OMB approval, is available for review on the FCC’s website at https://www.fcc.gov/Forms/Form388/388.pdf.

By July 10, 2009, all television stations are required to report on the DTV Education Initiatives undertaken in the months of April, May and June by electronically filing the revised FCC Form 388. The FCC Form 388 is also required to be placed in the station’s public inspection file by July 10, 2009 and posted by that date to the station’s website, if it has one. Details of the FCC’s DTV Consumer Education requirements can be found in our Advisory posted on our website by clicking the link below.

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6/19/2009
The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ local Public Inspection Files by July 10, 2009, reflecting programming aired during the months of April, May and June 2009.

A PDF version of this entire article can be found at 2009 Second Quarter Children’s Television Programming Documentation Advisory.