Second Circuit Gives Belated Valentine’s Day Gift to Music Licensees by Ruling for Sirius XM Regarding Its Use of Pre-72 Sound Recordings

turtle-siriusXM-3We previously told you about the Christmas gift that New York’s highest state court had given to licensees that play “oldies” recordings by finding that the owners of those recordings had no right to demand payment when the recordings were publicly performed in New York.  That ruling came in one of many lawsuits that Flo & Eddie – a company owned by two members of The Turtles (of “Happy Together” fame) – had filed against Sirius XM Radio challenging Sirius XM’s use of sound recordings created before February 15, 1972.

[Recall that February 15, 1972 is a magic date because sound recordings fixed on or after that date are protected by federal copyright law.  Sound recordings fixed before that date are protected – if at all – under the widely varying state copyright laws, with state-law protection expiring on February 15, 2067.]

The Second Circuit has now followed suit by giving licensees a belated Valentine’s Day gift – it has found for Sirius XM on each of Flo & Eddie’s claims, which ends Flo & Eddie’s New York lawsuit. Continue Reading

Incentive Auction: Carrier Bidding Gets Specific

FHH has been following the FCC’s broadcast incentive auction, see the latest stories here and here. Now the auction moves to the next stage — where wireless participants will bid on specific spectrum blocks. This next step, which the Commission calls “assignment phase bidding” begins on March 6th.

The 600 MHz band plan is designed to provide both large and small bidders a fair opportunity to acquire spectrum; it consists of paired uplink and downlink bands offered in 5+5 megahertz blocks across 416 market areas called Partial Economic Areas [“PEAs”].

Bidders that won at least one generic block of paired spectrum in one PEA in the clock phase of the forward auction can take part in the assignment phase, according to the Public Notice  released this week by the Incentive Auction Task Force and the Wireless Telecommunications Bureau. Eligible companies can download their bidding options, which correspond with their earlier bids, from the agency’s website on February 21st.  The FCC will send bidders a link so they can log in to the assignment phase bidding system for a preview period. That way, they can also see the sequence and timing rounds for all PEAs, and decide what specific bidding rounds they want to participate in.

All the spectrum blocks are Category 1, which means they have minimal or no impairments under the band plan associated with the 84 megahertz clearing target, so the FCC can assign every winning bidder contiguous blocks of frequency-specific licenses.

The FCC is giving wireless bidders time to figure out the auction quirks. There will be a practice bidding round on February 22 and a mock auction on February 28. In the meantime, the agency has put together an online bidding tutorial; find that under the “Education” section of the Auction 1002 website: (www.fcc.gov/auctions/1002.)

The first round of bidding begins on March 6th, and is scheduled to end by March 30th. The news means a notice concerning what stations broadcasters sold and how much money they will receive will come out of the Commission in early April — before the NAB show later that month.

 

 

 

Better Legal Protection for Emails?—My Fault That It’s Needed

A bill moving through Congress would require a warrant to access the contents of an email, even an email more than six months old.

Wait—what?

You read that right. Today’s law says the police need a warrant to read your newer emails. But as soon as one has been on the server for 180 days, they can use alternative procedures. There’s no need for a judge to find probable cause. 

Who would ever write such a stupid law?

Uh, that was me. Quoting the father of Star Trek’s Mr. Spock, when asked why he, a hyper-rational Vulcan, had married a human woman: “At the time, it seemed the logical thing to do.”

Here’s what happened.

The current law, the one I worked on, was enacted in 1986. There was, as yet, no public Internet. Specifications for the World Wide Web did not appear until 1989, and the first successful browser came in 1993. In the mid-1980s, though, businesses were transmitting fast-increasing amounts of data. When modems over voice lines became inadequate, AT&T and its long-distance competitors built packet-switching networks to move more data more quickly. Continue Reading

.RADIO Domain Names Available Soon, But Many Unanswered Questions about Availability

After many years of preparation, the roll-out of .RADIO domain names will finally be underway shortly. The news has potential for broadcasters worldwide (for example, you could have Nashvillehits.radio as your URL.) Yet there are many unanswered questions about how .RADIO domain names will be allocated and what happens when multiple parties want the same name. This article provides an overview of the history of the .RADIO ownership disputes, new dates recently announced by the European Broadcasting Union (EBU), and questions that the EBU still needs to answer about the .RADIO domain name roll-out ahead.

Quick Background

In 2012, the EBU applied to the Internet Corporation for Assigned Names and Numbers (ICANN)  for the rights to operate .RADIO (ICANN manages the Domain Name System and assigns Generic Top Level Domains, such as .RADIO, by contract). Three other applicants for .RADIO sought .RADIO: large top level domain name registries Afilias and Donuts, as well as George Bundy’s BRS Media (well known for its management of.FM and .AM). It took four years of fighting but, on May, 18, 2016, EBU won when its competitors withdrew their objections against the EBU’s .RADIO application.

The main reason that the EBU won (or “prevailed in the contention set,” per ICANN lingo) is because it was the only registry to apply for .RADIO as a “Community-based” Top Level Domain. This is a special category of applications created by ICANN to allow representatives of well-known, well-contained communities to offer domain names designed to closely serve those communities. In its application to ICANN, the EBU promised to make .RADIO into “a platform through which radio broadcasters and other radio industry stakeholders worldwide will collaborate to promote audio content distribution and community-wide services, promoting quality and competition in the public interest, for the benefit of listeners and Internet users.”

The EBU promised to serve not only its own European members, but the worldwide broadcasting community. In fact, the EBU submitted its application with the support of worldwide broadcasting organizations, including NABA (North American Broadcasters Association).

New Information

The EBU recently issued a new webpage laying out its plans for .RADIO domain name launch. There are three key issues of note to interested broadcasters (and others who might be eligible for .RADIO):

Registrants — Who will be allowed to register a domain name in .RADIO?

The EBU writes that it will accept certain categories of radio use for .RADIO domain name registration, specifically:

  • “Radio broadcasting stations”
  • “Unions of Broadcasters,” such as the EBU itself
  • “Internet radios”
  • “Radio Amateurs”
  • “Radio professionals (journalists, radio hosts, DJs, …)” and
  • “Radio-related companies selling radio goods and services.”

Thus, all U.S. broadcasters licensed by the FCC (and others involved in the radio industry, including individuals) will be eligible to submit their call signs to EBU for a .RADIO domain name.   BUT NOTE: this does not mean U.S. broadcasters will receive these domain names (as per the discussion below)

When will the .RADIO domain names be available?

The .RADIO domain names will actually be made available in two stages: (1) a planned “pre-launch period” exclusively for radio stations and (2) a second stage for other eligible parties.

The EBU plans a special “Pre-Launch” period from May 3 to July 5, 2017, though ICANN approval for this proposal is still pending. During this pre-launch period, registration will be by a special process.  Rather than use the tried and true “first-come, first-served” method we see in .COM and so many other generic top level domains,. the EBU will try to balance various interests around the world and allocate domain names to “Official Radio Operators”. As the EBU (vaguely) explains: “The .radio team will seek to optimize domain name allocation to solve contentious issues and prioritize existing radio services. The pre-launch is exclusively reserved for radio stations.”

This .RADIO Pre-Launch allocation process could raise serious problems for U.S. broadcasters. If the call sign allocation pattern of other countries is the same (or similar), multiple stations around the world may want the same domain name, e.g., WXYZ.RADIO. To whom will the EBU register the domain name?  We asked EBU representatives whether other counties have similar call sign allocation patterns, and what will happen when two broadcasters in two different countries with two different licenses seek the same domain name? No answers have been forthcoming. We will continue to ask, investigate and provide insight and answers.  Radio stations interested in participating in the pre-launch should be prepared for anything and should consider consulting an attorney with experience in ICANN matters.

The EBU is planning to have a second part of the pre-launch rollout from Augsut 20 to November 1, 2017.   Domain name registrations will be open to: unions of broadcasters, Internet radio, radio amateurs, professionals and companies and trademark owners (the latter being a specially protected group under ICANN rules.)

We will share additional details on both phases as the plans become approved and clarified.

How much will .RADIO domain names cost?

While domain names in the “new generic top level domains” of .MEDIA, .PHOTO, .CAR and .FLOWERS are generally higher than the original generic top level domains (.COM, .ORG and .NET), domain names in .RADIO will be higher still. EBU’s website states that “for companies, we expect typical prices between 200€ and 250€ per domain each year.” That’s $213 to $267 a year.

CommLawBlog will continue to monitor the roll-out of .RADIO domain name and seek answers to important questions U.S. broadcasters will need to know. Please don’t hesitate to contact us with any questions.

 

Renewed Push for FM Class C4

What may happen to the petition to create an FM Class C4 designation under FCC Chairman Pai’s leadership? Readers may recall SSR Communications CEO Matthew Wesolowski and the Minority Media and Telecommunications Council petitioned the FCC in 2013 to add a new FM class in between Class A and Class C3. The proposed class would feature maximum ERP of 12 kW and maximum antenna height of 100 meters.

“The 12 kW Class C4 allocation would fill in the gap of the currently incompatible maximum effective radiated power relationship between FM Class A and FM Class C3,” said station owner Wesolowski, who’s also an engineer, in his petition. “Every adjacent FM ‘C Class’ allocation’s power level is 3.0 dB from the next (C3 to C2, C2 to C1, et cetera), while Class C3’s 25 kW is slightly more than 6 dB higher than Class A’s 6 kW. A 12kW authorization would be about 3.0 dB between either A or C3.”

Last fall, Commissioner Pai spoke at the NAB Radio Show about the concept, saying he thought the idea is worth considering. “An NPRM would allow us to ask the right questions, explore the advantages and disadvantages of the proposal, and receive the views of all stakeholders,” Pai said at the time, according to prepared remarks.

Recently, MMTC President Emeritus and Senior Advisor David Honig discussed the proposal in a letter to Chairman Pai and fellow Commissioners Mignon Clyburn and Michael O’Rielly. The Commission previously invited public comments on the Petition for Rulemaking (RM-11727) and Honig stated that nearly 800 Class A FMs could potentially “double their power from 6,000 watts to 12,000 watts, and allow hundreds of stations of all classes to improve their technical facilities without impacting the protected signal contours of neighboring stations.” Honig asked the Commission to issue a NPRM on the initiative, noting that “Under the current regulatory environment, many independent and minority-owned stations are and will be forever unable to upgrade their facilities,” without the C4 classification.

Given the speed at which Chairman Pai is making decisions, we should know soon what the state of this petition is. FHH can help you decide if the new allocation would affect you.

 

Incentive Auction Update: Quiet Period Partially Lifted, Channel Reassignments Coming, M&A Gold Rush Begins

After teasing that such relief was coming, the FCC has confirmed a partial waiver of the limitations on communications for reverse auction participants. In other words, broadcasters who participated in the auction, regardless of whether they were successful bidders or will remain on the air, are now free to communicate with all parties about their status.

This relief comes at a critical time when the post-auction repack transition is about to get underway. Stations are now free to discuss future plans for repacking, as well as enter negotiations for sales, acquisitions and channel shares, without threat of violating the FCC’s anti-collusion rules. The one caveat to keep in mind: forward auction participants are still forbidden from divulging their bids or bidding strategies, so broadcasters should not call up the local wireless carrier and ask (directly or indirectly) if they are bidding in the market.

The FCC also announced that it is mailing to broadcasters this week confidential letters to apprise stations that are subject to repacking, or elected to move to a VHF or lower-VHF channel, of their new channel assignments, technical parameters and the transition phase to which they will be assigned. This is being done in confidence as the official determination of channel reassignments will not be final until the Incentive Auction is complete, which will be signaled only by the release of the Auction Close and Channel Reassignment Public Notice. That notice is not expected for at least 6 weeks.

The Public Notice also provided some additional guidance for stations wondering how station sales and acquisitions will be processed while the auction is still technically pending. The Commission advises that stations may enter into agreements and file applications seeking consent to assignment, but cautioned that transactions would not be permitted to close until after the official end of the auction.

Finally, the Public Notice also reminded broadcast licensees of changes to the Commission Registration System (CORES) which is used to assign FCC Registration Numbers (FRNs). FRNs are required to do business with the FCC.  These changes will require all licensees to create a new CORES log-in and password, which they can then associate with their existing FRNs.

 

Pai Starts Rolling Back Wheeler Media, Telecom Items

fcc building-1Under new Chairman Ajit Pai, the FCC has begun rescinding decisions made in the waning days of Tom Wheeler’s Chairmanship (and one older decision). The flurry of action involving bureau decisions being reversed or rescinded includes zero ratings probes, Lifeline Broadband Provider designations, guidelines for the processing of broadcasters’ joint sales and shared services agreements, and political ad disclosure complaints.

In revoking what he called “Midnight Regulations,” Pai said: “These last-minute actions, which did not enjoy the support of the majority of Commissioners at the time they were taken, should not bind us going forward. Accordingly, they are being revoked.”

The agency set aside a “Zero Rating” report that had been issued under the previous administration criticizing AT&T and Verizon for allegedly favoring their own mobile video services over competitors by allowing customers to watch their video services on mobile phones without counting against monthly data caps. The FCC said that it’s closing Wireless Telecommunications Bureau investigations into AT&T Mobility, T-Mobile, and Verizon Wireless which could have eventually resulted in further sanctions or limitations for alleged Net Neutrality and 5G security rules violations. “The Bureau now sets aside and rescinds the Policy Review Report and any and all guidance, determinations, and conclusions contained therein, including the document’s draft framework. The Policy Review Report will have no legal or other effect or meaning going forward,” the agency said. Continue Reading

FCC Releases Draft Seeking Comment on ATSC 3.0 Next-Gen TV Standard

ATSC logo-1New FCC Chairman Ajit Pai has released a draft Notice of Proposed Rulemaking proposing rules that would authorize television broadcasters to use the Next Gen TV transmission standard on a voluntary basis. Chairman Pai released the NPRM to the public prior to its presumed adoption at the upcoming FCC open meeting as part of his pilot project aimed at increasing the transparency of FCC rulemaking.

This new transmission standard was developed by the Advanced Television Systems Committee (we previously wrote about the new transmission standard here), a diverse group of representatives from the media and telecommunications industry whom also developed the current television transmission standard, DTV. The new standard has accordingly been dubbed “ATSC 3.0.”

The NPRM itself stems from a Joint Petition for Rulemaking filed in April 2016. ATSC 3.0’s proponents claimed in that petition that the souped-up standard comes with ultra-high definition video, immersive audio, and content personalization. It will also supposedly improve reception on mobile devices and television receivers without outdoor antennas and come equipped with an advanced Emergency Alert System capable of waking up sleeping devices to warn consumers of imminent emergencies. Continue Reading

FCC Intends to Drop 40-Mile FM Translator Siting Cap for AMs

tower-4The FCC has sent a strong signal that at its February 23 open meeting it will adopt a proposal to ease FM translator siting restrictions for AM owners. As part of an experiment to increase transparency in the agency’s rulemaking process, new Chairman Ajit Pai, long a fan of radio, publicly released a draft decision being circulated among his fellow Commissioners.

The draft, labeled the “Second Report and Order” (2nd R&O) in the AM revitalization docket, concerns only where an FM translator used as an AM fill-in may be located. The Commission states in the document the agency has now opened and closed two filing windows in which more than 1,000 applications were granted so AM owners could acquire and move FM translators to increase their signal coverage. Because of the strong need for siting flexibility, the FCC wants to act on this proposal “expeditiously.” Action on other AM revitalization proposals will come later.

Currently an FM translator rebroadcasting an AM station must be sited so that the 60 dBμ contour of the FM translator is contained within both (a) the 2 millivolts per meter (mV/m) daytime contour of the AM and (b) a 25-mile radius centered at the AM transmitter site. Continue Reading

Under New Leadership, FCC Media Bureau Reverses January Decision on Reconsideration of NCE Ownership Reporting Requirements

fcc building-1Back in early January, the FCC’s Media Bureau released an Order denying a number of Petitions for Reconsideration of an earlier Bureau Order that had adopted new requirements regarding FCC Registration Numbers (“FRNS”) and “Restricted Use FRNs” (“RUFRNS”) used in broadcasters’ biennial ownership reports.  The Petitions had objected to application of certain new FRN and RUFRN requirements to non-commercial licensees.  As we reported at the time, the Bureau’s decision drew swift and vocal criticism from Commissioner O’Rielly and Commissioner (now Chairman) Pai, who rebuked the Bureau for adopting an Order that, due to the change in administration, no longer was supported by a majority of Commissioners.

That January Bureau Order has now been reversed. In an extremely terse Order, the Bureau (now headed by a new Acting Chief appointed by new Chairman Pai), determined that the Petitions for Reconsideration dismissed and denied by the Bureau in January should, in fact, be handled at the Commission level.  Accordingly, the Petitions have now been “returned to pending status” for full Commission consideration.

As we predicted in January, the saga of the Commission’s attempts to revise its ownership reporting requirements for non-commercial broadcasters is still unresolved. All indications, however, are that the current Commission may very well reach a different decision than did the Bureau in January and in its underlying 2016 Order.  Check back here for updates.

LexBlog