Nationwide EAS Test Still Set for September 28

Just a quick reminder for all EAS participants. The second-ever nationwide test of the EAS system is still set for Wednesday, September 28, 2016 at 2:20 p.m. (ET). This is a command-performance-all-hands-on-deck gig for all participants, so you should be sure that your EAS gear is ready to go and your staff has been alerted to the test.

There will be a quiz afterward … actually, not a quiz, but a report that will have to be filed – again, by all participants – through the Commission’s new ETRS (EAS Test Reporting System). If you haven’t already set up your account in ETRS and submitted Form One, shame on you. That was supposed to have been done a month ago. The post-test report is technically called Form Two. It’s supposed to be filed by 11:59 p.m. (ET) on September 28. Don’t worry – it’s not complicated.

In a public notice about the test, the Commission has also shed some light on the “secondary test date” of October 5 (at 2:20 p.m. (ET)). We mentioned that date in an earlier post after the Commission alluded to it, in passing without explanation in a footnote, in an earlier notice. According to the most recent notice, the October 5 date is a “back-up date” for the test “in case the September 28 test is cancelled due to widespread severe weather or other significant events”. So presumably, if the September 28 test happens on schedule, we need not worry about any test on October 5, but we’ll have to wait and see to be sure.

Six-Figure Fine for Failing to Focus on Former Felonies

Many FCC forms completed on a “routine” basis may need extra attention.

police-book em-1Anyone who fills in pretty much any FCC form should be familiar with the certifications required by those forms. Anyone who “signs” an FCC form (whether electronically or otherwise) must be familiar with them; more importantly, the signatory must be sure that the certification being made is accurate. Failure to do so can be a pricey mistake.

One common certification, for example, asks the licensee or applicant to verify that it hasn’t engaged in certain types of misconduct that might disqualify the licensee/applicant from holding an FCC license. For example, FCC Form 314, used for the assignment of broadcast licenses, requires the proposed buyer to certify that:

[W]ith respect to the assignee and each party to the application, no adverse finding has been made, nor has an adverse final action been taken by any court or administrative body in a civil or criminal proceeding brought under the provisions of any law related to any of the following: any felony; mass media- related antitrust or unfair competition; fraudulent statements to another governmental unit; or discrimination.

In the same vein, all FCC applications require an “Anti-Drug Abuse Act Certification,” indicating that the applicant is not “subject to denial of federal benefits pursuant to Section 5301 of the Anti-Drug Abuse Act of 1988, 21 U.S.C. Section 862.” And, of importance to the Siemens Corporation, Question 50 to Form 601, which is used for applications for wireless licenses, asks whether “the Applicant or any party to this application, or any party directly or indirectly controlling the Applicant [has] ever been convicted of a felony by any state or federal court?”

Thanks to the fine-print-legalese nature of these certifications, it can be tempting not to bother to pay much attention to them. After all, the “correct” answer (usually, “yes”) is obvious, a fact that tends to discourage careful consideration of the certification language.

Our friends at Siemens, though, have just brought us a cautionary tale, after failing to disclose on Form 601 that Siemens’ parent company, as well as a subsidiary of that parent company, had pled guilty to multiple felonies. And for this oversight, Siemens has agreed to pay the government $175,000 in a consent decree with the Enforcement Bureau.

According to the decree, the parent company, Siemens AG, pleaded guilty to violating the Foreign Corrupt Practices Act (FCPA) back in 2008, while a subsidiary of a subsidiary of Siemens AG pleaded guilty to a single federal felony charge of obstruction of justice in 2007. Despite that, Siemens Corporation kept filing Form 601s (and also a few others) certifying that no party directly or indirectly controlling it had “ever been convicted of a felony.”

Obviously, those certifications weren’t accurate, a fact that didn’t escape the attention of the Enforcement Bureau. Continue Reading

Mark Your Calendar: The Auction Date Has Been Set

The FCBA’s Annual Charity Auction, that is.

FCBA auction poster - 2016-1OK, all you current or wannabe high rollers, risk takers, deal makers, thrill seeking bargain hunters, bon vivants … and anybody else, for that matter. Get out your calendars and mark November 10, 2016 – because that’s the date of this year’s FCBA Charity Auction. It’s a Thursday, if that makes a difference. It’s also the day before Veterans Day (more about that below).

As usual, the action will be going down at The Sphinx Club at the Almas Temple (conveniently located at 1315 K Street, NW, in downtown D.C.). Doors will open at 6:00 p.m. They’re estimating last call for some time around 10:00 p.m., but let’s not forget that the next day is a Federal Holiday. Also as usual, it’s free! AND you get free tickets for a drink (plus food) just for showing up! What’s not to like?

We here in the CommLawBlog bunker don’t get out much, but the FCBA Auction is one of those Be-There-Or-Be-Square shindigs that can’t be missed. So as a service both to the Auction and to our readers, we’re providing this “Save the Date” notice.

Since the prize list for Auction 2016 is still in development, it’s too soon to preview all the goodies up for grabs. We do hear, though, that this year you’ll be able to bid on dinner for two in the company of Washington Post restaurant critic Tom Sietsema, a James Beard Award winner. Sign us up!

The Veterans Day Eve scheduling of this year’s Auction is not a coincidence. Proceeds from the auction will go to both the FCBA Foundation and Miriam’s Kitchen, a D.C. institution for more than 30 years which is dedicated to ending chronic homelessness in Washington, D.C., with a specific focus on ending homelessness for veterans in the Nation’s Capital by the end of THIS year.

Not going to be in D.C. on November 10? No problem – there’s going to be an online auction, too.

(BTW – If you’ve got something to contribute to be auctioned – and you know that you probably do – they want to hear from you. Contact Starsha Valentine at the FCBA. Her email is starsha@fcba.org, or you can give her a shout at 202-293-4000. You’ll also need to complete an Auction Donation Form, but Starsha can totally hook you up with that, or you can download it here.)

FCC Lightens USPS Load

In migration to cloud-based platform, FCC stops mailing some ULS, ASR notices.

mail box-1If you’re a frequent flyer in the FCC’s Universal Licensing System (ULS) or Antenna Structure Registration (ASR) system, don’t panic if you notice a sudden drop-off in hard-copy letters from the FCC. The FCC is moving both systems to a cloud-based platform and, in preparation, it’s cleaning house before packing up for the move.

Historically, ULS and ASR system have generated a total of 33 different types of automated paper notices which the FCC then sends through the U.S. mail. These notices generally inform applicants and licensees about things like the status of their applications or licenses. Needless to say, much of the same information can also be found in public notices or online in the ULS or ASR systems. In other words, reliance on snail mail dead tree notices is largely redundant.

So, as of September 23, the Commission won’t be sending out as many notices. Of the 33 types of notices historically sent, 15 have been abandoned, leaving a mere 18 types (15 in ULS, three in ASR). Lists of the notices being terminated and those being retained can be found here.

The 18 types of notices still being sent out include, among others, notices that require a response and notices about approaching deadlines that require action by the applicant, licensee or registrant. Of the 18 notices retained, more will be migrated to the cloud platform eventually, including notices about things you will probably really want to know about, like application dismissal letters. It’s unclear whether the FCC will continue to reach out to applicants as to such matters, or expect us to go digging through ULS.

The only kind of notice not slated for eventual migration are license cancellations in ULS, although even those will be eliminated in “services as they are deployed in the new wireless licensing system”. In the latter cases, the Commission promises unspecified “electronic safeguards” to help prevent licensees from inadvertently cancelling a license.

So going forward, you can expect fewer of those envelopes with the blue return address. But the ones you do get will probably not be good news.

ASNE “Legal Hotline” Features FHH’s Kevin Goldberg

News Editors’ website highlights post addressing permissible media use of “user-generated” photo/video content obtained from social media and other Internet sources.

I’m fortunate to represent a number of press-related trade associations. As part of my work for them, I provide a “Legal Hotline” service through which association members get to ask me questions without incurring massive legal fees. Of course, the responses I provide don’t constitute “legal advice” because I represent the association, not its individual members, so the member asking me the question is not my client and can’t rely on anything I say as “legal advice”. Still, I like to think that the member ends up with a clearer idea of what his or her legal rights and obligations are and how he or she probably ought to proceed – even if the answer happens to be “it’s really time to spend money on a lawyer”.

The Hotline is a two-way street. While it gives members the chance to clear up questions, it gives me useful insight into the types of “hot button” issues clients and others are currently interested in. Once a particular question gets asked enough, I recognize that I may be able to save everyone time and energy by addressing the question in a general answer that gets posted to the association’s website.

Which is just what happened recently with respect to questions related to the use of “user-generated” content. By that I’m referring to photos and videos created by members of the local community and then shared with media outlets, both directly and through the outlets’ social media sites. A number of questions came in to me from members of the American Society of News Editors, meaning they arose in the context of a daily news site (in this case, an actual newspaper) – but my response should be at least as interesting, if not more so, to FHH’s radio and TV clients who are increasingly posting and reposting, via social media and the web, photos and videos submitted by audience members. (Some TV stations are also using such content in their over-the-air broadcasts.)

So I thought it would be useful to CommLawBlog readers to point them in the direction of my response on the ASNE website.

As I explain there, the use of user-generated content brings instant exposure to legal risk. Continue Reading

BMI Rate Court Rejects DOJ Consent Decree Interpretation

BMI strategy begins to pay dividends.

doj-ascap-bmi-3You may recall our report last August that the U.S. Department of Justice (DOJ) had closed a two-year inquiry into the ASCAP and BMI Consent Decrees by determining that no changes to the Decrees were necessary. DOJ also weighed in on a particularly controversial issue – the licensing of musical works whose copyright is owned by multiple persons where some – but not all – of those persons are members of ASCAP or BMI. DOJ concluded that the Decrees required ASCAP and BMI to grant full-work licenses for those works and barred them from licensing only the fractional copyright interests held by their members. ASCAP and BMI were none too happy with that decision and united to pursue a two-pronged strategy to overturn that determination, with ASCAP seeking legislative change and BMI turning to the federal rate court judge that oversees its operations, Judge Louis Stanton.

That strategy has begun to pay off.

In a five-and-a-half-page opinion released on September 16, Judge Stanton rejected DOJ’s Decree interpretation. He found that “[n]othing in the Consent Decree gives support to [DOJ’s] views” and that “[t]he Consent Decree neither bars fractional licensing nor requires full-work licensing.”  Judge Stanton acknowledged that the Decree defined BMI’s repertory as “‘those compositions, the right of public performance of which (BMI) has … the right to license or sublicense.’” He found, though, that the phrase was “descriptive, not prescriptive” and that “[t]he ‘right of public performance’ is left undefined as to scope or form, to be determined by processes outside the Consent Decree.” In other words, in Judge Stanton’s view, the BMI Decree simply does not speak to the issue of full-work versus fractional licensing.

Judge Stanton is the judge responsible for overseeing the operation of the BMI Consent Decree, so with the stroke of his pen, his interpretation overrides DOJ’s, for now. But the Decree fight is far from settled. Judge Stanton’s interpretation affects only the BMI Decree – it does not alter DOJ’s reading of the ASCAP Decree. DOJ may decide to ask Judge Stanton to reconsider his determination or to amend the BMI Decree to reflect the government’s views, but this may not be the most effective tactic given Judge Stanton’s ruling. Alternatively, it may even decide to appeal the BMI Decree interpretation to the Second Circuit, which could overturn it. DOJ, and perhaps affected music licensees, may also seek a contrary ruling from the ASCAP rate court judge, Denise Cote, who has not always seen eye to eye with Judge Stanton in music licensing issues. And all parties may seek legislative help to enshrine their music licensing views into law.

While no one knows where the dust will settle on the full-work versus fractional licensing issue, we do know that we have not heard the last of this fight. We’ll continue to watch the issue and will keep you posted ….

Deadline for Reg Fees Announced … Finally!

It’s official. The Commission has finally let us all know that we will have to have this year’s regulatory fees paid no later than September 27. Fee Filer is now up and running (you can get there at this link), so anyone so inclined can get a jump on things right away. But don’t forget the various caveats we mentioned here.

2016 Reg Fees Set, But Payment Deadline Yet to be Announced

On the Friday before Labor Day weekend, the Commission released the final listing of regulatory fees for 2016. Those fees will have to be paid sometime before September 30, but as of September 4, the Commission had neither announced the deadline nor opened up its Fee Filer system for acceptance of reg fees. Maybe the Commission just didn’t want its regulatees to spoil their last holiday of the summer worrying about such things.

We’ll be posting word about the deadline here as soon as it’s available. Be sure to check back. In the meantime, here are the listings of the TV and radio fees that will be payable, once the FCC opens Fee Filer. (FWIW, the fees adopted by the Commission all track reasonably closely with the fees as proposed last May.) Continue Reading

Sisyphus Re-re-re-Dux: FCC “Concludes” a Decade of Quadrennial Reviews … For Now

Supposedly wrapping up 2006, 2010 and 2014 reviews, FCC leaves most media ownership restrictions in place, adds some new burdens

As we have observed more than once (here and here, for example), the FCC’s quadrennial media ownership review process is Sisyphean in nature: even before the Commission can complete one review, the next begins, and previously completed reviews return thanks to court remands. Now, with the release of a Second Report and Order (2d R&O), the boulder has reached the top of the mountain again.

How long it will stay there this time is anybody’s guess.

In the 2d R&O the Commission has largely left in place media ownership rules that have been on the books since before 2002 (in at least one case, since 1975). It has also reinstated its 2014 decision to treat TV joint sales agreements (JSAs) as attributable ownership interests. (That requirement had been tossed by the U.S. Court of Appeals for the Third Circuit earlier this year.) And, prodded by the Third Circuit into finally resolving the question, the Commission has also re-adopted a revenue-based eligibility standard for certain relaxed ownership policies designed to promote “diversity”. In doing so, however, the FCC refrained from adopting any specifically race or gender-conscious standards.

The quadrennial review process, first mandated by Congress back in 1996, requires the Commission to review all of its media ownership rules every four years to determine if they remain “necessary in the public interest as a result of competition”. What Congress was thinking when it specified a quadrennial process is unclear – after all, pretty much nothing of that scope gets accomplished in Washington in a mere four years. Continue Reading

LexBlog