CommLawBlog : Broadcast & Communications Lawyers & Attorneys : Fletcher Heald & Hildreth Law Firm : Telecommunications, FCC Regulation, Communications Act

Comments, objections, due by May 25, 2012

If you’re a noncommercial educational (NCE, a/k/a “public”) broadcaster, heads up. The Copyright Royalty Board (CRB) has issued proposed rates and terms for the use of various copyrighted works by public broadcasters from January 1, 2013 through December 31, 2017. You’ve got 30 days – to May 25, 2012 – to sift through the complex series of rate schedules the CRB has put on the table.

So just what’s on the table? The rates that NCE broadcasters will have to pay to copyright holders (through those holders’ agents, including ASCAP, BMI and SESAC) for the right to broadcast, during 2013-2017, the underlying music and lyrics in all those copyright holders’ songs. (Technically, the CRB proposal also covers the use of pictorial, graphic and sculptural works, but those tend to have less impact on broadcasters.) For the CRB’s purposes, the universe of NCE broadcasters encompasses all entities treated as NCE licensees by the FCC, including educational institutions and large scale public radio and TV licensees.

The proposed rates are the product of an arcane ratemaking process that began on January 5, 2011. First, the CRB invited potentially interested parties to, in effect, sign up to participate. Who showed up? The usual suspects. For the copyright holders, there were: ASCAP; BMI; SESAC; the National Music Publishers Association and the Harry Fox Agency; and the Church Music Publishers’ Association. Broadcasters on board included: the Educational Media Foundation; NPR/PBS/CPB; the National Religious Broadcasters Noncommercial Music License Committee; the Catholic Radio Association; and the American Council on Education. 

The CRB then turned all the players loose for a three-month negotiation period. The goal was to see if the parties could come to agreement on the rates to be applied to the various subsets of noncommercial broadcasting.  Some specific agreements were reached between specific public broadcasting entities and specific copyright owners (or their representatives). Those were not, and will not be published, in the Federal Register, as their reach is limited to the particular parties to the various agreements.

The more generally applicable agreements are submitted to the CRB for its approval.

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 One monopoly sues another -- for antitrust violations!  Is this a great country or what?  The Swami weighs in.

In some confrontations, it’s tough to say who to root for. Godzilla vs. Mothra, for instance. Or Duke vs. UNC. Or Liverpool vs. Manchester City.   (For the record, I’m going with (1) Godzilla, (2) UNC and (3) a draw with a number of red cards and several non-career threatening injuries thrown in for good measure.)

And now we have SiriusXM vs. SoundExchange.

SiriusXM – the monopolistic satellite radio provider that many radio broadcasters view as an archenemy – has sued SoundExchange – the monopolistic digital music licensing agency that many radio broadcasters view as an archenemy. SiriusXM’s claim is that SoundExchange (along with a co-defendant, the American Association of Independent Music (A2IM)) has engaged in antitrust violations and tortious interference with prospective economic advantage.

(The notion that SiriusXM, an entity created by the merger of the only two satellite radio providers, would complain that somebody else is violating the antitrust laws is rich with irony. But I digress.)

It’s still way too early for me, the Swami, to try to predict how this suit might eventually end up. But I don’t think it’s too early to imagine who the overall winners and losers might be as this litigation plays out. We’ll get to that in a minute.

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Another day, another way to move video to the Internet . . . and another set of lawsuits.

Welcome to the latest bout in the Alternate Video Delivery System Smackdown Series. In this corner, the upstart challenger, Aereo (formerly known as Bamboom Labs, Inc.); in that corner, pretty much every major broadcast network.

Aereo is the latest innovator seeking to bring video content from one source (in Aereo’s case, over-the-air broadcasting) to subscribers in some alternate fashion – a fashion that ideally makes it attractive enough to cause consumers to fork over $12/month to Aereo. Aereo plans to deliver a full (or at least nearly full) array of over-the-air broadcast programming to you through the Internet. That, of course, means that you would be able to access that programming through whatever Internet-accessible device you might choose – tablet, smartphone, desktop, big screen TV in your living room, etc. The programming could be streamed as it is being broadcast, or it could be accessed on a delayed basis, just like shows you might otherwise save on a DVR.

And that’s Aereo’s angle: as Aereo sees things, its service “enables consumers to access broadcast television via a remote antenna and DVR”. Actually, make that “cloud DVR”, a term Aereo slips into its on-line response to the two lawsuits brought against it by the major TV networks.

What exactly is a “cloud DVR”? It’s a quasi-imaginary device – actually, a combination of devices – that affords the user the ability to access streamed or recorded content from broadcast stations through the Internet. A crucial element of the technology is a teeny-weeny antenna – about the size of a dime (see illustration, above, taken from the Aereo website) – that Aereo uses to receive OTA broadcasts. When you subscribe to Aereo, you are assigned one such antenna – it’s yours and (supposedly) nobody else’s. It’s hooked to “massive amounts of storage and super-fast Internet connections”. You are then given an “elegant interface” with which to “control your antenna”. You can pick a channel to watch or you can tell it to record for later viewing.

So it’s just like sitting in your living room, fiddling with your cable remote, right?

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New deal sets ASCAP rates through 2016

The Radio Music License Committee (RMLC) and the American Society of Composers, Authors and Publishers (ASCAP) have announced a deal regarding the rates and terms to be paid by radio stations for the right to perform musical works through 2016. You may recall one of our earlier discussions of this topic; if you do, you're already aware that setting these rates and terms is a rather extensive process, since ASCAP (and BMI) must have its agreements approved by a United States District Court for the Southern District of New York, a condition of a consent decree which settled a lawsuit back in the 1940s.   

This particular go-round seemed pretty intense, even by RMLC-ASCAP standards. After the prior agreement expired at the end of 2009, a "bridge fee" was set as both sides began dual sets of negotiations -- first working on an interim rate that would be in place until this permanent deal was reached. 

We've heard rumors for a few weeks that the final deal was reached but, of course, nothing is final until the Southern District says it is final. The Southern District has spoken and we think broadcasters will like what they hear. 

According to a press release issued by RMLC, the broadcast industry will pay rates closer to those paid in 2009 than what they'd expect in 2012. In fact, broadcasters are getting a rebate! Part of the deal involves a $75 million credit against amounts paid in 2010 and 2011, which will be instituted in increments of $ 15 million per year (and is on top of $ 40 million in industry-wide rebates implemented when the interim rate was approved in 2010). So check your statements, there should be an immediate fee decrease of about 30% per station starting this month!

Other aspects of this deal that broadcasters will find attractive:

Those using the “blanket license”" (most stations and probably all music stations) will be especially happy to know that the calculation and reporting process will be simplified: you'll now pay a straight 1.7% of gross revenue. The icing on the cake is the ability to deduct 12% for revenue from multicasting sources and a 25% for revenue from new media.

Those using the “per program” option (mainly news and talk stations) will also pay a straight percentage of gross revenue, in this case its 0.2958% with the same deductions as above.

Finally, agreement will allow for greater innovation in terms of expanding into new media

Radio broadcasters should look for new license forms to be available within a month and should also hope that this will spur a similar resolution in the RMLC's negotiations with BMI.  They should also thank Bill Velez and the folks over at RMLC for some great representation on their behalf.

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[Blogmeister’s note: Kevin Goldberg, our resident Swami when it comes to predicting Supreme Court decisions, is also our guru (Swami? Guru? Yes, he’s that multicultural) for all things trademark. Since it’s That Time Of The Year, we asked him to re-visit the NFL’s perennial effort to control the use of the term “Super Bowl®”. The Swami initially larded his response with tons of references to Tim Tebow in a transparent attempt to attract all kinds of hits to his post. But we’re obviously above the kind of cheap ruse that would depend on repeated use of the name “Tim Tebow” to improve CommLawBlog®’s hit stats. Accordingly, we have edited out of Kevin’s post the name “Tim Tebow” (who plays for the Denver Broncos® – who aren’t even playing in the Super Bowl® this year. Everybody knows it’s the New York Giants® and the New England Patriots®, featuring Tom Brady).]

Football is a game of numbers. Here are some interesting Super Bowl®-related numbers for you:

455      The number of trademark applications that have been filed listing the “National Football League” as the applicant/owner

141      The number of federally registered trademarks owned by the “National Football League”

9          The number of trademarks containing the word “Super” that are owned by the National Football League

11        The number of international classes in which these trademarks exist

Ideally you’ve figured out by now that this post serves as our annual reminder – for the fourth year running – that the National Football League takes its trademarks very seriously. The league uses those marks to protect its exclusive right to use the term “Super Bowl®”. As the NFL®  sees it, that right extends not only to the game itself, but also to a mind-numbing range of stuff from clothing to jewelry to party invitations/napkins/decorations/posters to sporting goods to a concert series to things like . . . television broadcasting services.

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Meet the new year, same as the old year, as webcasting royalty regimen remains largely unchanged.

“Evergreen” stories – The kind of stories that recur regularly. Stories like “NFL reminds non-paying universe never to utter the words ‘super bowl’”.  You’ve seen them before.

And if you haven’t yet figured it out, you’re reading one right now.

Welcome to the annual reminder materials that have to be filed with SoundExchange under the statutory license applicable to the digital transmission of sound recordings. This applies to webcasters and streamers.

The fact that this is an evergreen, of course, doesn’t mean you should stop reading right now. Quite the contrary. An evergreen – well, at least this evergreen – comes back every year because it relates to stuff that merits attention every year. 

And the webcasting requirements are especially right for the over-and-over-and-over evergreen treatment because I know that, no matter how often I expound on the subject – here on CommLawBlog, at broadcast conferences, in e-mail outreach – there are broadcasters out there who still don’t get it. Maybe they’re unaware of the requirements, maybe they’re aware of but confused by them – or maybe they regard the requirements as something less than “real law”, despite the fact that those requirements have become more and more ingrained into the fabric of the radio industry with each passing year.

Whatever. My mission is to do what I can to lay out the annual SoundExchange filing requirements so that everybody that has to comply with them can know what to do. 

Let’s get to it.

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A new way to put the quick kibosh on cybersquatters – but it will help if you’ve registered your trademarks first

For years I’ve urged readers to register their major identifiers – corporate names, slogans, call signs, etc. – as federal trademarks. (Check out a couple of my posts dating back to 2007 and 2009 if you doubt me.) And now the time has come to beat that drum again, with the impending roll-out of a new “Uniform Rapid Suspension System” (URS) designed to make it easier to protect such marks against cybersquatters. 

Cybersquatters are folks who register Internet domain names based on recognizable trademarks or tradenames belonging to others. Their goal might be to use the familiarity of the underlying mark to attract a lot of traffic to their site, or it might be to try to sell the domain name to the owner of the trademark/tradename, usually at a ridiculously inflated price.

The Internet Corporation for Assigned Names and Numbers (ICANN) – the international body that regulates domain names, among other things – has a system in place to help rightful holders of trademarks targeted by cybersquatters. That’s the Uniform Domain Dispute Resolution Policy (UDRP),which provides initiate a reasonably quick arbitration process aimed at squelching unauthorized use the mark and transferring control of the infringing domain name to the trademark owner. (Additionally, trademark owners can also sue for infringement in federal court – if they have the time, money, patience and masochistic inclination to undertake a serious piece of litigation.)

But ICANN is reportedly on the verge of implementing the URS.

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Patent infringement lawsuit put on hold while Patent Office decides whether there were any patents to infringe

Mission Abstract Data (previously, now, and always, to us: “MAD”) has been dealt another setback. MAD is the company trying to hold pretty much the entire radio broadcast industry accountable for alleged patent infringement. Now, less than a month after the United States Patent and Trademark Office (PTO) rejected several of the claims underlying MAD’s patents (those would be Nos. 5,629,867 (the 867 patent) and 5,809,246 (the 246 patent), the U.S. District Court for the District of Delaware has granted a stay sought by radio broadcasters who are on the wrong end of MAD’s patent infringement suit. As a result, that case is now on hold pending final resolution of the PTO’s reexamination.

But broadcasters might want to hold off on the celebrations just yet.

While many figured that a stay in the Delaware infringement action would effectively resolve that litigation in favor of the defendant broadcasters (and secondarily kill off MAD’s efforts to extract licensing fees from the rest of the industry), we’re not convinced that you can read that much into the court’s opinion. Sure, it’s a blow to MAD, which could have used a victory to put further pressure on the defendants and potential licensees to settle rather than litigate.  But it’s not the slam dunk that many expected.

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PTO Office Actions threaten to gut MAD claims of patent infringement

Bad news for Mission Abstract Data (whom we’ll once again dub “MAD”). They’re the folks claiming to own two patents supposedly being infringed by almost every radio broadcaster in the country. (Unclear on the background here? Read our last two posts on the subject. We’ll wait for you.)    

In this, our third installment of “As the Patent Turns”, there’s been a major development in MAD's quest for broadcast domination. Those patents it claims to own? Turns out MAD may have spoken too quickly. 

When last we left MAD and its targets, the United States Patent and Trademark Office (PTO) had just announced that it would be reexamining the underlying patents, raising the possibility that the foundation of MAD’s whole approach is nothing but, well, nothing.

We told you to stay tuned for the next exciting installment, and now here it is.

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NLRB memo sheds light on dos and don’ts for employers

Back in March, 2010, I pointed out that employees’ use of social media can create problems for employers. Now we can thank the Acting General Counsel of the National Labor Relations Board (NLRB) for recently issuing a helpful memo summarizing 14 NLRB decisions all involving (wait for it) the use of social media in the workplace.  The memo is short on analysis, much less any attempt to tie the cases together into overarching themes. But it’s a good read anyway, allowing even someone like me (whose primary area of expertise runs to the First Amendment more than to arcane employment law issues) to get a sense of the general rules and come up with some dos and don’ts.  

The primary focus of the NLRB decisions: negative employee commentary, usually about the employer, that shows up on Twitter, Facebook or other social media for all to see. Sooner or later, everybody has a bad day at work and snaps in some way. Take Christopher Cristwell, for example. One day the 25-year-old Starbucks barista finally had it up to here with annoying customers, so he wrote a song and uploaded it to YouTube (check out his Starbucks apron; try to ignore that it’s pretty much all he has on).  It's kinda catchy. Higher ups at Starbucks didn’t think so, apparently.  It kinda got him fired.  

While this is an extreme example of an apparently disgruntled employee publicly expressing his disgruntlement, it’s clearly not unique or even rare. Blogs and social media like YouTube, Facebook and Twitter have created new venues for the employee rant. Back in the day, complaints were more confined: a couple of folks blowing off in the breakroom, or maybe an employee crying in his beer with friends, and that’s the end of it: they vented, they moved on, that was that.

But when the complaint shows up in social media, there’s a permanent, totally public record of the complaint.  Given that, employers may wonder just how far they can go to keep their employees in line and preserve the company’s image.

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