New European Privacy Laws Going Into Effect Mean ALL Companies Need to Review their Data Collection

Our websites are global, our e-commerce offerings reach customers around the world, our Internet radio broadcasts elicit responses from listeners around the globe and our consultants often hail from London to New Delhi.

Whether people pay us, whether we pay them, or whether we just correspond with people interested in our products, services and programs, we often exchange personal data that includes email addresses, phone numbers, and physical addresses. This personal data is increasingly protected by regulations around the world, especially when it is collected online. Nowhere is this regulation more stringent than in Europe.

In just six months, new European privacy regulations, called the General Data Protection Rules (GDPR) will take effect, with large new fines and a strong European Union (EU) commitment to enforcement. This new law fundamentally increases protection of personal data and its reach extends far beyond the borders of the EU. Companies all over the world are preparing for the change. Are you?

This blog post provides an overview of the new GDPR, suggests steps which companies might take to better understand and stay on the right side of these rules (including by “self-certifying” your company’s compliance) and provides some U.S.-based resources in the form of the websites of the Department of Commerce and U.S. Better Business Bureau. For those who collect personal data from citizens in EU countries, the time to act is now.

EU Data Protection Law in a Nutshell

Europe has a different type of protection for personal data then the U.S. For instance, U.S.-based data privacy laws are sectoral: we protect an individual’s health data, financial data and even individual movie rentals. Due to the abusive use of personal data collected before and during WWII, European countries have taken a much harder line than the U.S. when it comes to private collection of personal data. As one of the first laws of the then-new European Union, the Data Protection Directive was passed in 1995 and created a comprehensive data protection law for Europe. All personal data of European individuals is broadly protected and controlled over that data, which rests with the individual and includes: (1) a right to review the data, and correct as appropriate, and (2) a right to consent to “secondary uses” of the data, including whether or not the data may be shared or sold to third parties for purposes unrelated to the original purchase or service.

In 2016, European lawmakers went one giant step further. The EU created a stronger set of data privacy laws designed to further harmonize the data protection laws of the region and better correlate them to 21st century technologies. Now this law, the GDPR, is shaking up the way companies around the world collect, process, retain, share and delete personal data collected from European citizens. Every company working with data flows from Europe should be closely reviewing their data policies, procedures and processing to see if their compliance is required.

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Effective Date of Main Studio Rule Elimination Announced

Photo by John Hult via the Creative Commons License

Effective Jan. 8, 2018, AM, FM, and television broadcast stations will no longer be required to maintain a main studio. The Commission voted back in October to eliminate the Main Studio Rule based on findings that the cost of maintaining a main studio outweighed the benefits. The Order was published in the Federal Register on Dec. 8, and will take effect 30 days after publication (since that date would fall on a Sunday, the revision is effective Monday, Jan. 8, 2018).

We wrote about the implications of the repeal of the main studio rule back in October, following that month’s FCC Open Meeting.

As outlined in the Order adopted by the Commission and published in the Federal Register, “We affirm the tentative conclusion … that technological innovations have rendered local studios unnecessary as a means for viewers and listeners to communicate with or access their local stations and to carry out the other traditional functions that they have served.”

The main studio rule repeal also encompasses staffing requirements associated with the main studio. Previously, it was required that main studios be staffed with a “meaningful management and staff presence” in order to execute the station’s operations.

Now, as of Jan. 8, 2018 broadcast stations will no longer be required to staff or maintain a main studio.  As a reminder, however, they will need to maintain a local or toll-free telephone number and, until their local public inspection file is entirely moved online, must maintain a hard-copy file at an accessible location in their community of license.

Upcoming FCC Broadcasting and Telecommunications Deadlines for January-February 2018

It’s never too early to get a jump start on upcoming deadlines as the New Year approaches. Below is a list of upcoming FCC deadlines to keep on your radar.

Note our list is not comprehensive. Other proceedings may apply to you. Please do not hesitate to contact FHH if you have any questions. 

Photo by Sonja Langford on Unsplash

January 10, 2018 – 

Repack Transition Progress Report – All full-power and Class A television stations repacked as a result of the incentive auction must file a report in LMS to detail their progress toward completion of the transition.

Children’s Television Programming Reports – For all commercial television and Class A television stations, the fourth quarter 2017 children’s television programming reports must be filed electronically with the Commission.  These reports then should be automatically included in the online public inspection file, but we would recommend checking, as the FCC bases its initial judgments of filing compliance on the contents and dates shown in the online public file.  Please note that as has been the case for some time now, the required use of the Licensing and Management System for the children’s reports means that the licensee FRN and password are necessary to log in; therefore, you should have that information at hand before you start the process.

Commercial Compliance Certifications – For all commercial television and Class A television stations, a certification of compliance with the limits on commercials during programming for children ages 12 and under, or other evidence to substantiate compliance with those limits, must be uploaded to the online public inspection file.

Website Compliance Information – Television and Class A television station licensees must upload and retain in their online public inspection files records sufficient to substantiate a certification of compliance with the restrictions on display of website addresses during programming directed to children ages 12 and under.

Issues/Programs Lists – For all commercial and noncommercial radio, television, and Class A television stations, a listing of each station’s most significant treatment of community issues during the past quarter must be placed in the station’s public inspection file.  Radio stations in the top 50 markets and in an employment unit with five or more employees will have to place these reports in the new online public inspection file, while all other radio stations may continue to place hard copies in the paper file for the time being.  Television and Class A television stations will continue upload them to the online file.  The list should include a brief narrative describing the issues covered and the programs which provided the coverage, with information concerning the time, date, duration, and title of each program.

Class A Television Continuing Eligibility Documentation – The Commission requires that all Class A Television maintain in their online public inspection files documentation sufficient to demonstrate that the station is continuing to meet the eligibility requirements of broadcasting at least 18 hours per day and broadcasting an average of at least three hours per week of locally produced programming.  While the Commission has given no guidance as to what this documentation must include or when it must be added to the public file, we believe that a quarterly certification which states that the station continues to broadcast at least 18 hours per day, that it broadcasts on average at least three hours per week of locally produced programming, and lists the titles of such locally produced programs should be sufficient.

February 1, 2018 –

EEO Public File Reports – All radio and television stations with five (5) or more full-time employees located in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma must place EEO Public File Reports in their public inspection files. TV stations must upload the reports to the online public file. Radio stations in the top 50 markets and in an employment unit with five or more employees will have to place these reports in the online public inspection file; all other radio stations may continue to place hard copies in the paper public file for the next month. For all stations with websites, the report must be posted there as well. Per announced FCC policy, the reporting period may end ten days before the report is due, and the reporting period for the next year will begin on the following day.

EEO Mid-Term Reports – All radio stations with eleven or more full-time employees in New Jersey or New York, and all television stations with five or more full-time employees in Kansas, Nebraska, or Oklahoma must electronically file a mid-term EEO report on FCC Form 397, with the last two EEO public file reports attached.

‘Here Comes the Sun…’ Federal Magistrate Recommends that RMLC Lawsuit Against GMR be Moved to California

It was around this time last year that one of the most closely watched fights in music licensing history – if not copyright generally – went to the next level as the Radio Music License Committee (RMLC) sued Global Music Rights (GMR). The RMLC lawsuit alleges that Irving Azoff-founded newest Performing Rights Organization (PRO), was engaged in anticompetitive behavior in not agreeing to a license that would permit RMLC-represented (mainly mainstream commercial) radio stations around the country to perform musical works owned by GMR members over the air and via the Internet. This includes songs performed by, among others, Bruce Springsteen, The Beatles, Pharrell, Blake Shelton, Bruno Mars, and Taylor Swift.

The RMLC lawsuit was filed in the United States District Court for the Eastern District of Pennsylvania and assigned to The Honorable Darnell Jones. We highlighted this fact in our original post on the RMLC-GMR litigation because Judge Jones, as we wrote, is:

the same federal judge who presided over the RMLC’s litigation against SESAC that settled on favorable terms for the RMLC last year. If that litigation is any indication, radio stations may soon see some of the same competitive restraints that limit other PROs’ ability to demand supracompetitive license fees imposed on GMR as well.

GMR certainly recognized the importance of this venue as it filed its own lawsuit in its home state of California back in December 2016 alleging anti-competitive behavior on the part of the RMLC, a move that seemed as much tactical – to force the litigation west – as substantive. We noted in a post earlier this year that it seemed more likely that the California litigation would be moved to Pennsylvania than the other way around, as the United States District Court for the Central District of California stayed its proceedings in the GMR-initiated lawsuit pending the outcome of a GMR motion in Pennsylvania to move that case to the left coast. As we wrote:

the California court stated that the RMLC case had been filed first and that under the so-called “first-to-file” rule, GMR’s later lawsuit, which involved the same parties and substantially similar issues, should be decided in Pennsylvania if that suit remained active. Rather than transferring GMR’s case immediately, the court stayed the case until the Eastern District of Pennsylvania court had the opportunity to rule on GMR’s own motion to move that case to California.

The court had a different view.

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Deregulation Picks Up Steam: New Media Ownership Rules Foreshadow a New Terrain for Broadcasters

Photo by Frank Okay on Unsplash

When Ajit Pai took over as Chairman of the FCC, it was widely expected that he would take steps to relax existing restrictions on media ownership. The last month, in particular, has seen a flurry of activity on that front. As we reported, the Chairman released at the end of October the proposed text of an Order on Reconsideration relaxing or eliminating a number of broadcast ownership rules. That Order on Reconsideration was, as expected, adopted at the FCC’s November meeting in essentially the same form as it was proposed. The Chairman days later also released a draft Notice of Proposed Rulemaking opening a separate proceeding to conduct beginning a “comprehensive review” of the national television ownership cap. That NPRM is due for a vote at the Commission’s Dec. 14 Open Meeting.

The Chairman clearly is interested in making significant changes to the media ownership landscape. What do those changes mean and what can we expect going forward? Read on to find out.

Order on Reconsideration – 2010/2014 Quadrennial Ownership Review

At its Nov. 16 meeting, the Commission, on a three-two party-line vote, adopted an Order on Reconsideration that significantly relaxed a number of media ownership rules. This Order brought an end (at least for now) to the Commission’s 2010 and 2014 quadrennial reviews of its media ownership rules.

Last September, the Commission, under former Chairman Tom Wheeler, had attempted to conclude those reviews with its own Second Report and Order. That decision, at least for the most part, left the media ownership rules unchanged. A number of parties, however, asked the Commission to reconsider that decision and, with the change in administration following last November’s elections, has now reconsidered and reversed most of the decisions made in the 2016 Order. As noted above, this Reconsideration Order was essentially the same as the version proposed by the Chairman in October, so we will just briefly address the major changes it makes to the media ownership rules when it becomes effective (more on that later).

  • Elimination of the newspaper/broadcast cross-ownership rule. Based in large part on its findings regarding the changes in the overall media landscape since this rule was adopted in 1975, the Commission found that prohibiting common ownership of newspapers and broadcast stations is no longer necessary to protect viewpoint diversity or competition — and could, in fact, harm localism. As a result, the Commission eliminated any prohibition on newspaper ownership by broadcast station owners.
  • Elimination of the radio/television cross-ownership rule. The elimination of this rule was based primarily on two related conclusions. First, the Commission found that the record showed that broadcast radio stations, which produce diminishing amounts of local news, no longer contributed to viewpoint diversity enough to justify the rule. This is particularly in light of the increasing contributions to viewpoint diversity from cable, the internet, and other “non-traditional” voices. Second, in light of the fact that the rule already allows significant cross-ownership, and there continue to exist separate television and radio local ownership caps, the Commission found that eliminating the rule would not have a significant effect on common ownership.

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Comment Deadlines Set for Proposed Changes in Ancillary/Supplementary Service Report Requirements

Photo by GotCredit using the Creative Commons License

As we reported back in October, the Commission has proposed to end the requirement that all digital television, LPTV, and TV translator stations file annual ancillary/supplementary services reports. Plus, it instead requires only stations which actually offer such ancillary/supplementary services to file the forms and report on any revenues received. While this proposal has been almost universally welcomed, the FCC still must seek comment before it changes its rules.

So, right before everyone sings Auld Lang Syne to kick off 2018, all comments on this matter are due to the FCC by Dec. 29. Reply comments will be due on January 16, 2018.

If you have questions on how to file a comment or how this might impact you, reach out to us.

FCC Fines Maker of Light Fixtures. Really.

Photo by Toshiyuki IMAI courtesy of the Creative Commons License

The FCC proposed a fine of $25,000 against a manufacturer of fluorescent lighting fixtures.

Wait a minute. Lighting fixtures? Well, sure, the FCC regulates radio transmitters. And digital devices, which produce radio waves as a by-product that can interfere with communications. But lighting fixtures? Will the bathroom plumbing be next?

In fact fluorescent fixtures are a frequent source of radio interference. We reported on three such cases a few years ago, all making trouble for 4G providers in the 700 MHz band: this order, this one, and this one. In those instances the FCC asked the occupants of premises that used the light fixtures to replace them. Although it is illegal to operate any device that causes radio interference, even a light fixture, the occupants were in no danger of fines or imprisonment if they cooperated.

Everything is more complicated than it seems, even fluorescent lights. They all can malfunction in ways that cause interference, but one category poses a special risk: it intentionally generates radio-frequency energy to excite the gas in the tube and create light. This puts it in a class of devices the FCC calls “Industrial, Scientific, and Medical,” or ISM for short, which use radio waves to change the properties of materials – for example, by heating them. (Microwave ovens are also ISM devices.) The FCC has set aside certain frequency bands in which ISM equipment can produce unlimited amounts of power. The FCC nonetheless regulates these devices for their emissions outside the ISM bands. The procedures are not particularly onerous: testing, labeling and record retention, but no submissions to the FCC. The entire procedure is self-administered. The FCC label indicates the device has been tested for compliance with the limits for radio-frequency emissions, which in turn means the device is unlikely to cause interference.

Apparently, though, a manufacturer of lighting fixtures called Acuity Brands, Inc. did not get the memo. The FCC received reports of interference related to the company’s products and found they lacked the required labeling. The interference itself is not a rules violation, but the missing label is. The company compounded its problems by continuing to sell unlabeled units after hearing from the FCC. The result: a proposed fine of $25,000. Acuity can request a reduction or cancellation.

Nowadays even devices that carry out the simplest functions may have the potential to cause radio interference, leading to trouble with the FCC. To avoid a fine, at the very least, manufacturers should find out whether their products require FCC procedures. Not knowing can become expensive.

I Know You Called: FCC Approves New Rules Permitting Disclosure of Blocked Caller IDs For Threatening Calls

Photo courtesy of Susanne Nilsson via the Creative Commons License

If you’re a traditional landline user who grew up prank calling friends, you’re probably familiar with the dialing code *67, which blocked the outgoing Caller ID information from being transmitted to the call recipient. But you probably didn’t know that, under one of the FCC’s privacy rules, your decision to block your Caller ID transmission also meant that the telephone companies were prohibited from disclosing that Caller ID information to just about anyone, including law enforcement.

Overtime, a rule that was put in place to protect legitimate privacy interests (for example, callers who sought to remain anonymous when seeking help with domestic abuse) has apparently been subject to increasing misuse. Threatening calls made with blocked Caller ID information that have targeted schools, religious organizations, and other entities has complicated law enforcement personnel efforts to access identifying information for the purposes of tracing and investigating those calls in a timely manner. Newly adopted FCC rules should fix that problem.

Last month, the FCC unanimously approved an Order that modifies its rules in a way that should help security and law enforcement personnel obtain quick access to blocked Caller ID information relating to threatening calls. The FCC has described the modifications in the Order as an exemption to the Caller ID privacy rules designed to promote public safety. This is also a shift from the FCC’s previous rule that generally prohibited telephone companies from revealing blocked Caller ID information.

So, what does this exemption entail? Telecommunications carriers will be required to disclose blocked Caller ID information only when law enforcement personnel request it while investigating a “threatening call.” Specifically, a “threatening call” is defined as “any call that conveys an emergency involving danger of death or serious physical injury to any person requiring disclosure without delay of information relating to the emergency.” This definition aligns with the standard set in the Electronic Communications Privacy Act (ECPA).

The new rules limit the sharing of blocked Caller ID information to law enforcement personnel and, as directed by law enforcement, others who are responsible for the safety and security of the threatened party. The FCC explained that, “we limited the disclosure of the blocked caller ID information to prevent abuse, and to protect the privacy interests of parties who may block their Caller ID for valid privacy interest, such as domestic violence victims.”

Prior to adopting the new rules, the FCC had granted limited, case-by-case waivers of the Caller ID privacy restrictions in extenuating circumstances where the requesting parties demonstrated that a waiver would serve the public interest.

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FCC Approves Voluntary ATSC 3.0 Next Gen TV Implementation

New Opportunities for Next Gen Broadcasters and Simulcast “Host” Stations, but Controversies Remain.

Photo courtesy of Flash.Pro via Flickr through the Creative Commons License

Yesterday, the FCC adopted a Report and Order authorizing television broadcasters to use the “Next Generation” broadcast television (Next Gen TV) transmission standard (also called “ATSC 3.0”) on a voluntary, market-driven basis. This Order may herald a revolutionary change in TV broadcasting, opening new business models for Next Gen broadcasters as well as for other stations that act as “hosts.”

The Order requires full power TV stations voluntarily transmitting in ATSC 3.0 will still be required, however, to continue transmitting current-generation digital television (DTV) service using the ATSC 1.0 transmission standard to their viewers. This requirement to simulcast ATSC 1.0 with ATSC 3.0 is to be accomplished by stations partnering with other stations acting as “hosts” to transmit the “guest” station’s 1.0 or 3.0 format signal. Class A and low power TV (“LPTV”) stations will be allowed to “flash cut” directly to transmission in ATSC 3.0. In connection with the release of the Order, the Commission also issued a Further Notice of Proposed Rulemaking seeking comments on issues related to exceptions and waivers of the simulcast requirement, and on whether to let broadcasters use vacant TV channels to encourage use of Next Gen TV. These changes will also likely impact MVPDs and even wireless carriers. However, the Order has generated significant controversies that may not go away quickly. But let’s take a few steps back before we address all that.

First off, what is Next Gen TV? Glad you asked.

ATSC 3.0 is the new TV transmission standard developed by Advanced Television Systems Committee as “the world’s first Internet Protocol (IP)-based broadcast transmission platform.” It is designed to merge the capabilities of over-the-air (OTA) broadcasting with the broadband viewing and information delivery methods of the Internet, while using the same 6 MHz channels presently allocated for DTV service. The promise of this new TV transmission standard is the potential to enable broadcasters to provide consumers with a “more immersive and enjoyable television viewing experience” both at home and on mobile screens. Live TV transmission to mobile phones would open a potentially huge new market for TV broadcasters. Additionally, ATSC 3.0 is designed to enable delivery of “Ultra High Definition” television, with greater spatial resolution, higher dynamic range and frame rate, along with enhanced audio.

Lastly, ATSC 3.0 is also designed to allow broadcasters to geographically localize, as well as personalize, the delivery of TV programming. Geographic localization can be used to provide targeted public safety messages. But most importantly for the broadcast industry, it can provide targeted advertising, a la the Internet. Put this all together, and implementation of this next standard may not only be more revolutionary than the implementation of DTV, but it holds the promise of providing broadcasters significant new bases for revenue streams. That’s big. Notably, by requiring the simulcasting of ATSC 3.0 and 1.0 for full power stations, the Order establishes an important role for LPTV, Class A, and independent full power stations as “host” stations. This may be a temporary but multi-year economic lifeline for such stations.

A number of regulatory issues are triggered with the authorizing TV stations to commence broadcasting on the ATSC 3.0 standard.

While the text of the Order has not been released at the time this blog publication, based on the FCC’s fact sheet and draft order (released last month), here are some of the most important elements of the Order:

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One Small Step for Cell Sites: FCC Finds that Replacing Utility Poles is Unlikely to Affect Historical Properties

Photo courtesy of Adam Jones via the Creative Commons License

The Federal Communications Commission has taken a very tiny step toward eliminating unnecessary obstacles to the installation of communications facilities on existing structures without triggering historic review obligations. For the last year, the FCC has been reviewing the various regulatory obstacles that are hindering, delaying, and making more expensive the process of establishing new cell sites. The need for reform in this area is widely acknowledged to be increasingly urgent since 5G technology will require the installation of thousands, or even hundreds of thousands, of small cell locations in the next five years. Both large and small cells are currently covered by onerous environmental and historical review. These obligations require archeological excavations, extensive (and expensive) consultation with Indian tribes, and other machinations to ensure that no historical or tribal artifacts will be affected by the installation of a new communications facility on an existing telephone pole, a building, a treehouse, or other structure.

The FCC has somewhat dubiously declared that installation of communications facilities in, or on any new or existing structure (with a few exceptions), constitutes a “Federal undertaking” that triggers review obligations under historic preservation laws. It is now, to its credit, taking steps to ameliorate the significant adverse effects of subjecting virtually all communications installations to these procedures.

The FCC in a 2014 Order eliminated, or severely circumscribed, the circumstances where historic review is required for small, unobtrusive installations in or on existing structures. It then opened a wider inquiry into the entire gamut of municipal, tribal and historical obstacles to prompt cell site construction. The comment cycle in that Docket has been closed since the summer, so a decision on those matters may be out as early as the first quarter of next year. In the meantime, on Nov. 15, the Commission adopted a brief Order dealing with the low-hanging fruit of that policy review. Continue Reading

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