Shutdown Any Unauthorized Use of Trademarks

While many outside the nation’s capital were engrossed in this weekend’s football games, those inside the beltway were engrossed in their own local sport: politics (especially because D.C.’s team – who shall remain nameless even as that name may be trademarked – hasn’t played for the Lombardi trophy in 28 years). Specifically, “Shutdown” was THE topic of conversation (and we weren’t talking about how the Eagles defense shutdown Keenum to Diggs).

As I often do when writing these posts, I started thinking about how current events might tie into the upcoming final game of the professional football season to be played on Feb. 4. You know, the one they call the “Super Bowl.” In past years, I’ve reported on unsuccessful attempts to trademark a number of different terms, most prominently “Harbowl” and “The Bong Bowl.”

Of course, these didn’t fail so much because the marks weren’t sufficiently distinctive (as opposed to being “descriptive” – an almost always fatal characteristic for any mark). Nor did they fail because they were likely to be confused with the NFL’s registered trademark in “Super Bowl.” After all, the applicants for both “Harbowl” and “The Bong Bowl” were only seeking to put those terms on various items of clothing (hats, shirts, jackets, etc.). Objectively speaking, the “bowl” could have referred to anything, not necessarily a football game. If those terms are likely to be confused with “Super Bowl,” where would it end?

Indeed, neither application was even rejected by the U.S. Patent and Trademark Office (USPTO); both were abandoned by the applicant. It’s unclear exactly why Joel Rogers abandoned the “The Bong Bowl,” but we know that Roy Fox abandoned his application for “Harbowl” under pressure from the NFL.

So what if the government’s fiscal impasse had continued through Feb. 4 and I applied to register “Shutdown Bowl”? To my knowledge no one is using “Shutdown Bowl” as a trademark in any way. There are no such applications on file with the USPTO. But would it fly now? Could I really trademark “Shutdown Bowl”?

Continue Reading

New Media Ownership Rules Take Effect Feb. 7

Photo courtesy of the Chris Brown using the Creative Commons Licence.

The FCC’s final Order on Reconsideration in its media ownership proceeding was published in the Federal Register on Jan. 8. This latest step in the long-running saga of the FCC’s attempts to reform its media ownership rules relaxes many media ownership rules.

Absent Court intervention or Commission reconsideration, those changes will take effect on Feb. 7.

The Order on Reconsideration eliminates the following: the newspaper/broadcast cross-ownership rule, the radio/television cross-ownership rule, the attribution rule for television joint sales agreements, and the “eight-voices” test for local television ownership. It also implements a waiver process that could allow ownership of two of the top-four rated television stations in a given market. To review the implications of these changes in detail, read up on our past blog post from FHH attorney Dan Kirkpatrick.

As we noted back in December, publication of the Order on Reconsideration in the Federal Register will likely trigger challenges by public interest groups opposed to the new relaxed media ownership regulations. Other opponents of the rule changes could include cable system owners, who have long-opposed increased consolidation in local television markets.

Parties opposed to the rule changes now have two potential approaches. One would be to ask the Commission itself to reconsider the decision by filing a Petition for Reconsideration, which would be due no later than Feb. 7. The second approach would be to ask a U.S. Court of Appeals to overturn the Commission’s decision. Any such appeal must be filed by no later than March 9. Under the Communications Act, various parties may have the standing to file that appeal in any one of the U.S. Courts of Appeals.

However, a party must have filed its appeal no later than Thursday, Jan. 18 to ensure that that the appeal would be heard in the appellate court of that party’s choice. That’s because of the somewhat arcane procedures of the Judicial Panel on Multidistrict Litigation (JPML). Through this process, if appeals are filed in multiple circuits, as had been the case for a number of the FCC’s previous media ownership orders, the JPML holds a lottery to determine which court will hear the appeal.  Appeals must be filed by no later than 10 days after Federal Register publication in order to qualify for that lottery.

Based on public court records as of Jan.19, it appears that only one appeal of the media ownership was filed, this by Prometheus Radio Project and Media Mobilizing Project. It was filed in the United States Court of Appeals for the Third Circuit, which has been hearing appeals of the Commission’s media ownership orders for more than ten years. It would appear, therefore, that this appeal will also be heard in the Third Circuit. While that was the likely outcome in any event, the fact that no other appeals were filed by the JPML deadline at least will allow all parties to avoid the disputes over the venue that arose in earlier media ownership appeals. It is worth remembering, though, that other parties still have until March 9 to file additional appeals; all of those will simply be consolidated into the Third Circuit.

In addition to adopting a number of changes to the media ownership rules, the Order also sought comment on how the FCC should structure an incubator program to support diversity in media ownership. The incubator program would promote new entry and ownership diversity by helping to “address barriers to station ownership.” However, the FCC has not settled on any details for this program and thus has sought public comment to assist its efforts. Comments on that proposal will now be due by March 9.

This is only the first wave of potential changes to media ownership to come in 2018, as this year marks not only the end of the 2014 quadrennial review process, but also the beginning of the 2018 quadrennial review. As we have previously reported, the Commission is also reviewing the national ownership cap on television station ownership. Suffice to say, it is likely that more changes to the media ownership rules are on the horizon.

Stay tuned to CommLawBlog for updates.

To Bridge the Digital Divide or Not…That Is the Question as the FCC Cuts Back Its Lifeline Program

Since Chairman Pai took over the leadership of the FCC, he has emphasized that one of his main goals has been to “close the digital divide and bring the benefits of the Internet age to all Americans.” So it comes as no surprise that the FCC has taken several measures recently to overhaul the Lifeline program under the tagline “Bridging the Digital Divide for Low-Income Consumers.” These measures include approving a Fourth Report and Order, Order on Reconsideration, Memorandum Opinion and Order, a Notice of Proposed Rulemaking, and a Notice of Inquiry. The November changes to the Lifeline Program were mainly cutbacks; reducing available subsidies, as well as limiting eligible participants and carriers.

The Lifeline program was established in 1985 to provide discounts on phone service to certain U.S. households to assure that they had access to vital communication services, despite low-income levels. The program was expanded in 2016 to include broadband access. Additionally, in 2016, the FCC revamped the Lifeline program with changes such as including more carriers and simplifying the certification process for eligible telecommunications carriers (ETCs) to participate in the program (you can read more about the changes here).

Over the years, the Lifeline program has received criticism concerning its effectiveness (which you can read about in previous blog posts here). This past summer, a report published by the Government Accountability Office provided statistics discovering that over one million Lifeline subscribers were not eligible to participate in the program. Chairman Pai used this report to emphasize the decision to cut back the Lifeline program, saying that, “the reforms that we implement and propose today seek to accomplish two important objectives: 1) curtail the waste, fraud, and abuse that continue to plague the Lifeline program and 2) make Lifeline more effective at bridging the digital divide on behalf of low-income Americans.”

The question, however, is whether these changes will achieve these goals or if the cutbacks will be more detrimental to those once eligible subscribers who will no longer be able to benefit from the Lifeline program. The conflicting views of the Commissioners come as no surprise with Commissioners O’Reilly and Carr supporting these measures, while Commissioners Rosenworcel and Clyburn oppose. To express her disagreement Commissioner Clyburn stated that, “This proposal does nothing to make the lives of those who qualify better, and no amount of Orwellian doublespeak in the docket’s title will suggest otherwise. Make no mistake: this is will the Widen the Digital and Opportunity Divide item.”

Below are more details on each measure.

Continue Reading

NOW AVAILABLE: 2018 Political Broadcast Webinar

On the eve of the 2018 mid-term elections, broadcasters will soon have to navigate the FCC’s rules on political broadcasting. To assist with this, Fletcher, Heald & Hildreth’s Dan Kirkpatrick, Frank Montero, and Scott Johnson, were joined by the FCC’s Bobby Baker and Gary Schonman to present, in collaboration with the Colorado Broadcasters Association, a webinar on the FCC’s political broadcasting rules. 

If you were unable to log in to watch the webinar live or you if you want to watch it again, you can now view it here on our Youtube page! Or you can watch it right now on our page below.

You can also download and print the presentation in PDF form!

The webinar covers:
• Lowest Unit Rate calculation
• Equal opportunities.
• Issue ads from PACs
• Record keeping
• and more!

If you need assistance with political broadcasting issues, you can contact Dan at kirkpatrick@fhhlaw.com, Frank at montero@fhhlaw.com or Scott at sjohnson@fhhlaw.com.

 

Eighth in a Row! FHH Again Tops List of Transactions Ranking

CommLawBlog is happy to say that Fletcher Heald & Hildreth has, once again, served as lead legal advisor on more transactions than any other law firm, according to S&P Global’s Media and Entertainment and New Media category.

This is the EIGHTH (yup! You read that right!) year in a row that we have received this ranking, yet this honor isn’t less sweet. In 2017, FHH was counsel to 106 transactions, nearly double the number of any other law firm.

We’ve provided comprehensive legal services for media, technology, and telecommunications since our doors opened in 1936 and it’s because of our attorney’s skills and abilities that our clients continue to turn to us for their transactional needs. We thank our clients and our extensive CommLawBlog readership for their continued confidence in us as we keep this streak going because, despite what television may have taught you in the 1970s and early 80’s, Eight is not Enough…

Announcing a New Member to our CommLaw Blog Team: Mark Lipp

Fletcher, Heald & Hildreth and CommLawBlog are happy to welcome well-known broadcast attorney Mark Lipp to our broadcast and media practice. Mark joins FHH as a member effective as of Jan. 15.

Mark is well-known for representing broadcast stations in a variety of FCC issues including enforcement, renewals, auctions, litigation, and transactions. He also advises industry groups, associations, and regulatory committees in FCC proceedings. Mark received the Extraordinary Service Award from the Multicultural Media, Telecom and Internet Council and he has been listed among the Best Lawyers in America directory for Communications Law from 2010-2018.

Mark served as a Division Chief in the FCC’s Mass Media Bureau and has worked with several firms. He was the co-chair of the Federal Communications Bar Association’s Mass Media Practice Committee and is an active member of both the American Bar Association and the Association of Federal Communications Consulting Engineers.

“We are absolutely delighted to have Mark joining our firm,” said Frank Montero, Co-Managing Member of Fletcher Heald & Hildreth. “He brings a depth and knowledge of FCC broadcast spectrum policy and rules that has always placed him at the cutting-edge of initiatives to reshape the country’s broadcasting industry and federal policies. His reputation is widely known and he therefore joins FHH’s long-standing leadership role of service to the broadcasting, media, and telecommunications industries.”

“I am very pleased to join such an outstanding firm in order to continue my career,” said Mark. “I look forward to contributing to the firm’s success and elite standing in the telecommunications industry.”

Please join us in welcoming Mark.

 

Second Translator Window Opens Jan. 25; Freeze Goes Into Effect Today

The window for Class A and B AM stations (and certain Class C and D AM stations) to apply for new cross-service FM translators will open at 12:01 a.m. Eastern Time on Thursday, Jan. 25, 2018, and close at 5:59 p.m. Eastern Time (not at 11:59 p.m.) on Jan. 31, 2018. This will be the last of the “AM Revitalization” filing windows.

Also between today, Jan. 18, 2018, and the close of the filing window on Jan. 31, 2018, no FM translator minor change applications, LPFM minor change applications, or FM booster construction permit applications may be filed. The Media Bureau will dismiss any such applications submitted during this temporary freeze.

Details regarding the FM translator filing window can be found in a lengthy Public Notice released Dec. 4, 2017 (DA 17-1168). The FM translator filing window is in essence an FCC auction. Indeed, it has been designated as “FCC Auction 100.” That means, as explained below, most of the FCC’s auction rules will apply to the process.

Here’s a brief summary of the FCC’s requirements and restrictions relevant to this filing window.

  1. Eligibility and Scope

The only AM stations that may apply for a new FM translator during the upcoming window are those that were not listed as a primary station in any FM translator application filed during: 1) the 2016 modification windows (i.e., the windows that allowed an applicant to move an FM translator up to 250 miles in order to be used to rebroadcast an AM station); or 2) the 2017 window that was open to any Class C and D AM station that had not filed a modification window application. Eligible applicants may propose only one cross-service FM translator for each primary AM station to be rebroadcast. But an AM station that acquired one or more FM translators other than through the 2016 modification windows or the 2017 new application window may file in this window.

An FM translator acquired through this window will be married forever to the AM station specified as the primary station in in the applicant’s FCC Form 349 Tech Box – not just for four years as is the case of a translator relocated pursuant to a 2016 modification window application or a Mattoon waiver. A new FM translator acquired through this upcoming window (or, for that matter, the 2017 window) may only be assigned to another party in conjunction with the simultaneous assignment to the same party of the commonly-owned primary AM station that the translator rebroadcasts.

If the licensee of an eligible AM station is planning to assign the station in the near future, the FM translator application may be filed either by the current licensee or the proposed assignee. But if the assignee will be the actual applicant for the new FM translator, the assignment application also must be filed prior to the close of the filing window on Jan. 31.

An applicant may designate any available non-reserved FM channel (i.e., 92.1 MHz to 107.9 MHz) for its proposed cross-service FM translator. Accordingly, an application specifying a channel in the reserved portion of the FM band (i.e., 88.1 MHz to 91.9 MHz) will be dismissed.

i.    Cross-Service FM Translator Application Filing Instructions.In order to apply for a new cross-service FM translator, eligible applicants must file a separate FCC Form 349 Tech Box for each proposed facility, and a single FCC Form 175 for each eligible applicant. Continue Reading

FCC Grants Request by Fletcher, Heald & Hildreth to Revise Post-Auction Broadcast Transition Phase Assignments and Deadlines for Puerto Rico and U.S. Virgin Islands in Wake of Hurricane Maria

January 16, 2018 – Fletcher, Heald & Hildreth is proud to announce that, through its efforts, the FCC’s Incentive Auction Task Force and the Media Bureau division on Jan. 11, 2018 granted a request to allow for 20 broadcast TV stations in Puerto Rico and the U.S. Virgin Islands to construct post-incentive auction facilities early.

The request was spearheaded by Washington, D.C.-based telecommunications and broadcasting law firm, Fletcher, Heald & Hildreth (“FHH”) on behalf of a coalition of full-power and Class A television licensees of repacked stations in Puerto Rico and the U.S. Virgin Islands to allow the stations to transition early. This request was filed in response to the devastation caused by Hurricanes Maria and Irma in fall 2017. Chairman Ajit Pai in a statement said that this measure is an, “important step to expedite the restoration of vital communication services.” Stations can start their testing of post-auction channels at 12:01 a.m. on July 1 and must discontinue operations on these channels no later than 11:59 p.m. on Aug. 1.

The filing, made by FHH attorney Davina Sashkin, Esq. emphasized that the current conditions on the island of Puerto Rico and the U.S. Virgin Islands made the request a smart and necessary move by the Commission. As noted in the filing, “If pre-hurricane economic and infrastructure conditions, particularly in Puerto Rico were poor, now conditions are dire.” This, the filing stressed, means that there “are simply not enough resources for broadcasters to contemplate building duplicate broadcast facilities over the course of the next 20-30 months.”

The devastation to island infrastructure generally and the broadcast community specifically means that many television stations still, nearly four month after the hurricanes, are trying to rebuild. The stations were facing a Phase 3 transition, which would have required rebuilding the stations now, only to have to build new facilities in 2019. The capital demands for a double-build were simply too much for the broadcasters of the island to bear twice in such a short period of time. Therefore, the coalition requested the Commission to permit building of facilities only once on the reassignment channels to avoid costly expenses. This timing allows Puerto Rico and the U.S. Virgin Islands TV broadcasters to utilize currently available funds from federal disaster relief and low-cost government loans in combination with repack reimbursement funds to begin the process of returning stations to full operation.

“The broadcasters on the islands are working together in a collaborative way to rebuild, and they wanted to be able to maximize this opportunity to coordinate building the new television infrastructure required in the post-Auction environment,” said Sashkin. “The FCC agreed that these licensees, who have been through so much, should have the opportunity to minimize costs, maximize coordinated effort, and speed rebuilding of a vibrant, integral industry that provides news, information, and entertainment to more than three million American citizens each day.”

Chairman Ajit Pai on a recent trip to Puerto Rico said that there are no dedicated funds available to the FCC to assist broadcasters requiring the Commission to be “creative” in solving this problem. It is Sashkin’s and the coalition’s belief that granting this early transition is the type of creative solution that the FCC needs to rebuild the region’s broadcasting systems.

For information about the firm, visit www.fhhlaw.com or contact Helena Okolicsanyi at okolicsanyi@fhhlaw.com for press inquiries. A PDF version of this press release can be found here.

FCC Issues Its Largest Lump of Coal to Sinclair Broadcasting

A Proposed Fine of $13.4M for Undisclosed Sponsored Content Serves as a Warning to Other Broadcast Stations

As we closed the books on 2017, the FCC announced that it plans to fine Sinclair Broadcast Group Inc. a record $13.4M, for having not adequately disclosed sponsored content in its programming. The fine was calculated by the FCC based on over 1,700 instances – across 64 of Sinclair stations – where the FCC found Sinclair to be in violation of Section 317(a)(1) of the Communications Act, which requires identification of anyone who has paid for broadcast programming. That adds up to roughly $7,700 per violation. Guess someone was on the FCC’s naughty list.

While many might be inclined to gloss over this decision as a one-off that is only notable for the size of the fine, it can also be viewed as a clear signal that the FCC is getting tough on sponsorship identification generally and possibly elevating it higher in the Commission’s list of enforcement priorities.

With this Notice of Apparent Liability (NAL), the Commission has forcefully underscored the continued importance of the statutory requirement that all broadcast stations are transparent about who are attempting to persuade their listeners or viewers. This longstanding requirement applies to all broadcasts of any length where any compensation, in cash or in kind, has been provided to a station in exchange for a broadcast. While the amount in question is higher than prior cases, that alone shows that the FCC is taking this issue seriously.

The FCC began to look into the matter of potential undisclosed, paid content on Sinclair stations in April 2016 when it received an anonymous complaint which alleged that the cancer foundation Huntsman Cancer Institute (HC) was paying for favorable news coverage and programming on Sinclair and other stations. The content that got Sinclair in trouble was varied in length. Some ran as short news of approximately one minute in length, but Sinclair also broadcast as many as 71 full-length programs. Sinclair did not include a clear identification of any of them as being sponsored, even though Sinclair had an arrangement whereby it would receive compensation for these broadcasts. The problem is that programming that appeared to be chosen by the station on its own was not. Continue Reading

FCC Begins Process for Permitting Collocations on Twilight Towers

On Dec.14, the FCC released a Public Notice unveiling a draft Program Comment that will supposedly resolve the longstanding issues surrounding collocating equipment on so-called “Twilight Towers.”

Twilight Towers have been stuck in limbo as a result of an ambiguity in the Commission’s rules. Since 2001, the Commission has had rules in place that require licensees to evaluate whether proposed facilities would affect historic properties. However, those rules were not specifically tied to Section 106 of the National Historic Preservation Act, which governs the historic preservation review process, until 2005.

As a result of this ambiguity, Twilight Towers either lack documentation demonstrating successful completion of Section 106 review upon construction or have not undergone Section 106 review at all. Tower collocations are exempt from an individual historic review process only if the underlying tower itself underwent Section 106 review. Thus, Twilight Towers have been unable to take advantage of this historic review exemption for collocations. The FCC is also eager to make more towers available for broadband deployment, one of the larger items on Chairman Pai’s agenda.

According to the FCC, routine historic preservation review for Twilight Towers would be inept. It claims that no adverse effects have been brought to its attention in the towers’ 12 to 16 years of existence, and thus routine historic preservation review would be of little value.

While industry had urged the FCC to exempt Twilight Towers from any historic preservation review, other commenters, such as the Tribal Nations and State Historic Preservation Officers, argued that collocations may increase the adverse effects of towers and urged the FCC to implement some sort of review process. While the FCC was unwilling to provide a blanket exemption to historic preservation review, it did meet industry halfway by making clear it would not take enforcement action relating to the good faith construction and deployment of Twilight Towers, and by providing an alternative path to Section 106 exemption. Continue Reading

LexBlog