Annual Webcaster Wake-Up Call! SoundExchange Reports and Payments Due Soon

Plus ça change, plus c’est la même chose - If you’re a webcaster, you’ve got until February 2 to wrap up your annual SoundExchange homework. 

Sigh. Every year brings us another year closer to death. It sure feels that way as we do our Webcaster Wake-Up Call for 2015 – the last year for the rates and terms set in the Webcasting III decision. (The rates and terms that will govern for the next five-year term, i.e., 2016-2020, will be set by the Copyright Royalty Board in the Webcasting IV proceeding it cranked up last year and is still pending.)

Since these rates and terms have been in existence for almost five years, I’m running out of ways to cleverly remind those engaged in non-interactive webcasting about their filing and payment obligations because, well, nothing has changed.

But even if the underlying substance hasn’t changed, I can still spiff it up with a new presentation, one that might help readers navigate the SoundExchange trails a bit more easily. So as we say an early goodbye to Webcasting III (though we didn’t think so, we may yet miss you!) and look forward (or not) to whatever the CRB may do to us in Webcasting IV, here’s a chart that provides about as stripped down a reminder as you can get of the various SoundExchange options.

Before you test-drive the chart, though, keep a couple of things in mind:

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FHH Lawyer Gets Ink, Yet Again!

Demonstrating that “mostly retired” clearly doesn’t mean “completely inactive”, our colleague Mitchell Lazarus has published yet another article in IEEE Spectrum magazine. (Regular readers will recall that articles by Mitchell have graced the pages of IEEE Spectrum several times over the last few years.) Called “Radar Everywhere,” Mitchell’s latest opus addresses the accelerating proliferation of radar uses and the need for regulators to keep up with that proliferation. IEEE, of course, is a widely respected association of electrical engineers. IEEE Spectrum is its flagship magazine (and website), keeping the association’s more than 400,000 members informed about major trends and developments in technology, engineering, and science. If you’re not already an IEEE Spectrum reader, you can find Mitchell’s article here.

Five in a Row! FHH Again Tops in Repping Media Deals

According to SNL Kagan, recognized as one of the preeminent sources of financial analysis in the media business, in 2014 Fletcher, Heald and Hildreth served as legal adviser in more media/entertainment/new media transactions than any other law firm – by a long shot again. Hey, isn’t this the same post we put up last year … and the year before … and the year before that … AND the year before that? Yes, indeed. And again, the total number of transactions that brought FHH back to the top of the charts for the fifth year in a row – 139 (a solid 24% uptick from 2013’s 112) – was more than twice the number of the First Runner Up.

Through the worst of some very rugged economic times, our clients continued to thrive and remain active on the transactions front. And now, as the dark clouds of the Great Recession seem to be parting at last, our clients have continued to call on us to provide guidance and counsel in structuring their deals and navigating them through the regulatory process.

As we have in past years, we congratulate our clients for their successes, we thank them for the confidence they have placed in us, and we look forward to providing the same quality representation to clients, old and new, that we have been providing for more than 75 years.

The Bigger They Come ...: Size Still Matters to M&A Regulators

But increase in antitrust review thresholds is the smallest inflation adjustment in years.

Another annual ritual is upon us: the Federal Trade Commission has announced the dollar value thresholds that will trigger automatic federal review of mergers and acquisitions for the next year or so. And it’s good news (sort of) for readers who keep Hart-Scott-Rodino checklists at the ready, because they won’t have to update much this year. That’s because the 2015 annual adjustment is the smallest we have seen in years – barely noticeable at one-half of one percent, well down from the annual 3%-7% leaps we had seen in recent years.

The FCC has the option of choosing to review, or not to review many, if not most, communications-related transactions in detail before issuing an approval. But under federal antitrust law, the Department of Justice and the Federal Trade Commission must review transactions that cross certain dollar amount thresholds. So if you’re considering a merger or acquisition, bear in mind that the administration will automatically be sending at least two agencies to take a closer look at transactions where either:

  • the total value of the transaction exceeds $305,100,000; or
  • the total value of the transaction exceeds $76.3 million and one party to the deal has total assets of at least $15.3 million (or, if a manufacturer, has $15.3 million in annual net sales) and the other party has net sales or total assets of at least $152.5 million

The new thresholds are set to take effect as of February 20, 2015.

Bear in mind, too, that the filing fees that parties to a deal have to pay the government for the pleasure of going through the review process have also been adjusted. (Fees are split between the FTC and the Department of Justice.) For most of 2015, parties to any deal subject to review and valued at less than $152.5 million will pay a $45,000 fee.  For deals valued at more than $152.5 million but less than $762.7 million, the review fee will be $125,000. And if you’re proposing a deal valued at more than $762.7 million, get set to fork over a tidy $280,000.

When negotiating deals, all parties would be well-advised to bear these thresholds in mind. Once those lines are crossed, the prospect of additional (and considerable) time, expense and hassle to navigate the federal review process is a virtual certainty.

ANSI C63.17-2013 Now Officially in the FCC Rulebook

Five months ago we reported that, in a bit of regulatory tidying up, the Office of Engineering and Technology had updated the FCC’s rules. The Commission had, in 2012, incorporated by reference into its rules a standard – ANSI C63.17-2006, to be precise – adopted by the American National Standards Institute (ANSI). The standard governs certain measurement procedures in the 1920-1930 MHz band, used mainly for cordless phones, backstage intercoms, and other voice-quality audio gear.

The specific version referenced in the rules had been developed by ANSI in 2006 – but, wouldn’t you know it, ANSI revised its standard in 2013. So in August, 2014, OET opted to substitute the 2013 version for the 2006 version. As it turns out, though, just because OET said so in August didn’t make it so in August. OET’s order had to be published in the Federal Register for it to take effect. Oddly, that didn’t happen … until now. The order has just been published in the Federal Register, as a result of which the 2013 version of ANSI C63.17 has taken effect as of January 21, 2015.

As we noted last summer, if you’re seriously interested, you can get yourself a copy of ANSI C63.17-2013 here … as long as you’re willing to spend $113.00 for the privilege.

Dear NFL: Would You Mind if We Registered "Scandal Bowl"?

The biggest scandal this time of the year tends to be the NFL’s heavy-handed efforts to protect trademarks, even those it doesn’t own.

It’s no secret that we here in the CommLawBlog bunker don’t fully approve of the NFL’s aggressive efforts to protect trademarks that the NFL doesn’t happen to own. Who can forget the famous “Who Dat” contretemps in 2010? And how about the NFL’s successful effort to squelch an average Joe’s (actually, an average Roy’s) attempt to register the term “Harbowl” in 2013. (Not that we’re bitter or anything, but it was CommLawBlog, not ESPN, that unearthed that particular tidbit, although you wouldn’t have known that from ESPN’s reporting.) We didn’t see a similar effort last year when somebody tried to register “Bong Bowl”, but that may have been because the applicant pulled the plug on the application before it got on the NFL’s radar.

This year, if anybody’s looking for a catchy alternative name for this year’s Super Bowl®, how about the “Scandal Bowl”? After all, it wasn’t but a few hours after the Patriots beat the Colts that ESPN began reporting that the Pats were being investigated for doctoring the game balls. (We take no credit for uncovering that particular story; credit apparently goes to Station WTHR in Indianapolis, which the ESPN report acknowledged.) Of course, it’s not like this is the first time the Pats have been charged with cheating during the Belichick era (cough, “Spygate”, cough).

And on the other side of the field will be the Seahawks, whose head coach, Pete Carroll, high-tailed it out of Southern California just before penalties were levied against the program he coached at USC.

And how particularly appropriate would “Scandal Bowl” be this year, when the NFL has been awash with serious bad press. (Concussions, anyone? Or how about Messrs. Rice or Peterson or Hernandez, among others?)

So “Scandal Bowl” might make sense like “Bong Bowl” made sense last year (when the two teams happened to be from states that legalized marijuana use.)

I just checked the USPTO and, so far at least, it looks like no one has tried to register “Scandalbowl” or any other combination of “Scandal” and Bowl” as a trademark in conjunction with any goods and services. So, should you do it?

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Proposed MVPD Redefinition Out for Comment

FCC looks to open ranks of MVPDs to Internet-delivered services – a move that could save what’s left of Aereo

It looks like the universe of multichannel video programming distributors (MVPDs) is going to be expanding considerably. Previously populated by the likes of cable, MMDS and broadcast satellite operators, the MVPD universe is set to be redefined to include services “untethered” from any infrastructure-based definition … if, that is, a proposal laid out in a Notice of Proposed Rulemaking (NPRM) last month (and just published in the Federal Register) takes hold. The result should expand consumer options for video program service, and might even revivify whatever may be left of Aereo once Aereo exits the bankruptcy process. And even if Aereo doesn’t survive, we can look for new Aereo-like services.

The proposed redefinition of what it means to be an MVPD is part of the Commission’s overall effort to encourage innovation and serve the “pro-consumer values embodied in MVPD regulation”. It’s also one more reflection of the FCC’s embrace of the technology transition – from old-fashioned, relatively inefficient analog service to digital, Internet protocol (IP) delivery – that is sweeping virtually all aspects of U.S. communications.

The Communications Act defines MVPD as a person (or entity) who “makes available for purchase, by subscribers or customers, multiple channels of video programming.” The Act cites some examples – “cable operator, a multichannel multipoint distribution service, a direct broadcast satellite service, or a television receive-only satellite program distributor” – but makes clear that those are not the only possible MVPDs. So the FCC appears to have some latitude when it comes to filling in the blanks Congress left.

And that’s what it’s now trying to do.

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Update: Start-Date for Certain Mandatory ECFS Filings Set

Last month we reported on the FCC’s expansion of the use of its ECFS (short for “Electronic Comment Filing System”) online filing system to permit – and, in five cases, require – certain non-docketed materials to be filed through ECFS. For the five types of filing that must be filed through ECFS, the dates by which that requirement is to take effect had not yet been fixed as of our last report.

For two of those types, we were able to calculate the effective date to be January 12 and, sure enough, the Commission has since confirmed the correctness of our calculatio: January 12 is indeed the date as of which Section 224 pole attachment complaints and formal Section 208 complaints must be filed through ECFS.

And thanks to a notice published in the Federal Register, we know the effective date as of which the remaining three types of filings will have to be filed electronically. .

The following types of filings will have to be submitted electronically as of February 12, 2015 :

  • Network change notifications by incumbent local exchange carriers
  • Domestic Section 214 transfer-of-control applications
  • Domestic Section 214 discontinuance applications

Once accepted through ECFS, each such notice or application will be assigned its own ECFS docket number, so related follow-on submissions should be filed through the conventional, docket-number-based ECFS interface.

FHH Internet Counsel Kathy Kleiman Featured in Preview of 2015 ICANN Issues

Our readers are (or should be) familiar with FHH’s Internet Counsel, Kathy Kleiman, who has provided considerable insight into the sometimes arcane world of the Internet Corporation for Assigned Names and Numbers (ICANN) over the last couple of years. We view her as an Internet maven, and now we have further evidence of her maven-ness.

Bloomberg BNA, the well-known and highly respected source of legal, tax, regulatory and business information for professionals, publishes the Electronic Commerce & Law Report (ECLR), a useful resource for those who want to keep up with developments in the e-commerce marketplace. Recently ECLR Legal Editor Joseph Wright offered readers his “Top 15 Items to Watch in ICANN in 2015”. Bloomberg BNA has kindly permitted us to provide readers a link to that article. Why? Not only because of the article’s detailed preview of important issues, but also because Kathy is quoted throughout the piece. They even gave her a pull-quote:

(Bloomberg BNA requested that we provide the following acknowledgement, and we’re of course happy to oblige: “Reproduced with permission from Electronic Commerce & Law Report, 20 ECLR 5 (Jan. 7, 2015). Copyright 2015 by The Bureau of National Affairs, Inc. (800-372-1033)”.)

We here in the CommLawBlog bunker are pleased about this recognition of the talent in our midst. We invite readers seeking guidance in ICANN matters to contact her to see if they may be able to take advantage of her expertise.

Top Ten Nonbroadcast Video Networks? The Winners Are ...

Video description rules bring FCC into the ratings game ... every three years

When you’re trying to track down the national rankings of video programming networks, you may not think to check with the FCC – but, thanks to the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA), that’s the first place you should look. Every three years, at least.

As long-time readers may recall, back in 2011 the Commission, pursuant to Congress’s direction in the CVAA, adopted extensive video description rules applicable to broadcasters and multichannel video programming distributors (MVPDs). As to the latter, the rules require that MVPDs with more than 50,000 subscribers must provide 50 hours per calendar quarter of video-described prime time or children’s television on the five most popular cable channels.

Popularity in this context is determined based on (take a deep breath) an average of the national audience share during prime time of nonbroadcast networks that reach 50 percent or more of MVPD households and have at least 50 hours per quarter of prime time programming that is not live or near-live or otherwise exempt under the video description rules. (The relevant Nielsen ratings period this time around was September 30, 2013-September 28, 2014; the relevant stats were Nielsen’s “live +7 day” ratings, i.e., the ones that include incremental viewing that takes place during the seven days following a telecast.)

While the calculation of Top Five nets could presumably be performed annually (or even more often), the Commission chose to update its list only every three years. The first three-year term has screamed by since the 2011 adoption of the rules. And as promised, the Media Bureau has now announced the Top Five nonbroadcast video networks that will trigger MVPD video-description obligations until July 1, 2018. (Actually, it announced the Top Ten, presumably to provide for alternates should they be needed.)

The lucky networks:

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FCC Updates Equipment Certification Rules

TCBs will be taking care of business as OET exits equipment certification role and FCC modernizes equipment authorization processes.

The FCC lab is finally getting out of the equipment certification business. After nearly two years of deliberation, the FCC has adopted new rules modifying its equipment certification procedures. Most notably, it is handing over responsibility for all equipment certification grants to Telecommunications Certification Bodies (TCBs), which currently process more than 98% of grants anyway. Otherwise the FCC’s overall equipment authorization process, of which certification is a component, will continue largely as it has in the past, albeit with some important changes.

Most devices that radiate radiofrequency energy, either intentionally or unintentionally, must be tested for compliance prior to marketing in the United States. (Important distinction: the equipment authorization process relates only to the performance of the equipment itself. The goal is to assure that RF devices used in the U.S. comply with applicable FCC-imposed standards – typically power, bandwidth, modulation, out-of-band emissions, RF human exposure limits and, for wireless handsets, hearing aid compatibility. The equipment authorization process does not entail spectrum licensing that may be necessary for the operation of transmitters.)

Under the FCC’s rules, there are three types of equipment authorization. The authorization type required for a particular piece of equipment is set in the FCC rules, determined by (a) the likelihood that that equipment will cause harmful interference and (b) the “significance of the effects of such interference”. The three types of authorization are:

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Comment Deadlines Set in IP Transition Proceeding

Early last month we reported that the FCC is seeking input on various ways in which the transition from the legacy copper network to Internet protocol (IP) technology will affect consumers and competitive providers. If you’re planning on tossing in your two cents’ worth, you now know the deadlines by which you’ll have to do so, because the FCC’s Notice of Proposed Rulemaking has now made it into the Federal Register: comments are due by February 5, 2015, and replies by March 9. Comments are replies may be filed through the FCC’s ECFS online filing system; refer to Proceeding Nos. 14-174, 13-5, 05-25, RM-11358 and RM-10593 (use the “Add another proceeding” button to get them all in).

Put It In Writing, Part II: Call for Comments on Closing Closed Captioning Loophole

FCC seeks input on possible regulation of “video programmers”.

As we reported recently, the FCC has ratcheted up its video captioning requirements for “Video Programming Distributors” (VPDs), a universe defined as “all entities who provide video programming directly to customers’ homes, regardless of distribution technology used (i.e., broadcasters and MVPDs)”. (Note that, despite that last “regardless of distribution technology” language, captioning requirements don’t apply to programming distributed solely on the Internet if it was not previously broadcast.) The new rules specify new caption quality standards for which VPDs are technically responsible – but VPDs can avoid penalties for captioning violations that are outside their control by making certain “best efforts”.

Those “best efforts” entail trying to get a certification from each “video programmer” (the definition of which we’ll come back to in a minute) confirming either that (a) the video programmer’s programming complies with FCC captioning standards; (b) the video programmer adheres to certain FCC-defined “best practices”; or (c) the video programmer is exempt from captioning obligations (exemptions can be based on financial hardship but are becoming increasingly difficult to get).

This approach may seem a reasonable allocation of responsibilities between VPDs and video programmers. But to the extent that it does not impose on non-exempt video programmers any independent obligation either to comply with the Commission’s captioning standards or utilize Commission-defined best practices, the approach may create a loophole of sorts because it doesn’t allow the FCC to take enforcement action directly against video programmers, as opposed to VPDs.

Apparently sensing this, the Commission has issued a Second Further Notice of Proposed Rulemaking (SFNPRM) looking for ways to close that loophole.

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Live in Vegas! - FHH Net Neutrality Guru Paul Feldman Appearing at CES

If you’re planning to hit the International Consumer Electronics Show (CES) in Las Vegas next week, don’t miss FHH’s own Paul Feldman. He’ll be moderating a panel – “Net Neutrality:  Where Are We Now?” – on Monday, January 5. Time: 11:30 a.m. Place: the Las Vegas Convention Center, North Hall Upper Level, Room N256.

The panel is part of the Team Lightbulb Broadband Conference at CES. Other participants will include: Chris Riley, Senior Policy Engineer at Mozilla; Hank Hultquist, Vice President – Federal Regulatory at AT&T; and Barbara Esbin, a partner at Cinnamon Mueller and counsel for the American Cable Association.  Look for discussion about the current status of FCC policy as well as network management/business issues such as paid prioritization, consumer prioritization and peering. The format will include opportunities for each panelist to pose a question to another panelist. Expect lively exchanges among these industry experts.

Want to know more? Learn more about the Broadband Conference and register to attend at this link.

And when you get there, be sure to stop by and say hello to Paul!

Push to Expand Online Public File Obligations Moves Ahead at Warp Speed

NPRM would include broadcast radio, cable, satellite providers in FCC-maintained online system.

Back in July – that would be less than six months ago – three public interest groups asked the Commission to revise its rules to require cable TV and satellite TV (DBS) operators to maintain online public inspection files akin to the online files that conventional TV broadcasters have been required to maintain for about two years. As we reported in August, the Media Bureau wasted no time in seeking public comment on the proposal (which the Bureau expanded to include radio broadcasters and satellite radio (SDARS) operators as well) a couple of weeks after the proposal’s submission.

And now, a mere four months later, the Commission has issued a Notice of Proposed Rulemaking (NPRM) formally proposing that cable and satellite operators (both TV and radio) – and radio broadcasters – all be subject to essentially the same online public file regime to which TV licensees are already subject.

While the FCC is moving unusually fast on this, we probably shouldn’t be surprised: the shift to online public files for TV licensees has proven to be relatively uneventful, and it has yielded a bounty of data for national public interest groups eager to slice and dice trends in political advertising. (That eagerness has already led to multiple complaints – check out our posts here and here, for example – in which watchdog public interest groups have questioned stations’ compliance with the political file requirements.) With this success under its belt, the Commission presumably figures that it’s a no-brainer to bring TV’s cable, satellite and radio sibs to the online public file party, too.

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