What Broadcasters Need to Know About What to Expect From Washington in 20092010 Kansas Association of Broadcasters October 2009 David Oxenford 202 -973 -4256 davidoxenford@dwt. com www. broadcastlawblog. com
A New Administration – New Problems or New Possibilities? § Can’t tell the players without a scorecard – and it has not been printed yet § Chairman Genachowski only arrived this summer § Mignon Clyburn and Meredith Attwell Baker fill out the Commission, with the return of Commissioners Mc. Dowell and Copps § Chairman sets the agenda for the future § Personalities and personal agendas set the policy
Right Now – It’s All Broadband All the Time at the FCC § Good news for broadcasters? § Less Time to focus on broadcast issues § Net Neutrality § Subsidies for Broadband roll-out – facilities and encouragement for adoption § Issues about wireless spectrum could have long-term impact on TV spectrum § Remember white spaces not fully resolved § Encourage use of “wireless TV” – mobile rollout
But Congress Hasn’t Forgotten Broadcasters § Performance Royalty § LPFM 3 rd Adjacent Channel Interference Waiver § Some protections for broadcasters § Issues about translator priority – important for AM broadcasters who want FM translator § SHVURHA – issues about market modifications and distant signal § Loud commercial issues § In the wings – content issues? § Prescription drug ad limitations § Violent programs § Ads for unhealthy food
What Comes Out of This? - If I Had to Guess…. . § Some degree of localism regulation – but somewhat less than what we worried about § More diversity initiatives and EEO enforcement § More emphasis on new technologies § More concern about content issues § Probably more sympathy for copyright owners
Other Issues Facing Broadcasters § Localism and Enhanced Disclosure § Main Studio Requirements § Mandatory Community Outreach – Community Advisory Boards/Ascertainment § Mandatory Program Percentages § Music Selection Oversight § Sponsorship Identification Issues § Diversity Enforcement § Multiple Ownership § Enforcement Issues § Streaming Issues
Performance Royalty for Radio § Proposal to Force Radio to pay not only composers (ASCAP, BMI and SESAC) but also performers of music § Copyright Royalty Board would decide royalty, which based on satellite radio decision, could see the royalty as having a value as high as 20% of gross revenue § Small station provisions - $1000 per station for noncommercial stations, $5000 for commercial stations with less than $1. 25 million annual revenue, $2500 for those with between $100, 000 and $500, 000 in revenue, $500 per year for between $50, 000 and $100, 000, and $100 for less than $50, 000 § House and Senate Committees Have Approved The Bill § IT IS STILL AN ISSUE – DON’T THINK THIS IS GOING AWAY
Everyone Wants a Piece of the Action § ASCAP and BMI royalty agreements for radio end this year – and they want more, while broadcasters want to pay less § Could be a big issue § Performance Royalty Bill raises this issue § SESAC seeking separate royalties for streams and HD 2 channels § TV Issues with ASCAP, BMI and SESAC too § More litigation over other rights issues § Using music in commercials, TV productions, and in podcasts – demands for payments by copyright holders § Technical patent issues over ad-insertions and other streaming issues
Media Ownership Back in Play – and Consolidation Has Raised a Host of Issues FCC Must Examine Ownership Next Year TV Duopoly Issues TV JSAs Rural Radio Markets Newspaper-Broadcast Cross Ownership Still Unresolved § Could there be other consolidation issues? § A Series of Hearings Planned…. . remember what hearings did last time? § § §
Localism Happened – Programming Proposals § Mandatory programming percentages § Local programs § Local Music § Other requirements? § § § § News Civic Electoral Religious Addressing needs of underserved groups Voice Tracking/Prior Network Program Approvals Independent Mandatory PSAs
Community Outreach Proposals § Community Advisory Boards – Where the action is – lots of rumors that this is important § § How big? Who serves? How selected? How often do they meet? § Other proposals § General public surveys, focus groups, town hall meetings § Required participation of station management on community boards § Publicize phone number and email on-air for complaints
Main Studio and Local Programming § Remember pre-1987 requirements? § Main studio in city of license § Majority of programming from main studio § Control point manned during all hours of operation § FCC Proposal - Manned main studio during all hours of operation § Lots of comments in opposition – even the “public interest” groups said it went too far
Putting Words in Your Mouth? § The Fairness Doctrine –talked about again from time to time – though there are real philosophical and constitutional issues § Hate Speech regulation? – requested but real constitutional issues § Regulation through localism requirements?
LPFM and Traditional Broadcasters – A Complicated Relationship § LPFM may provide an outlet for new programming § Supposed to be a secondary service § But proposals to make it more primary – could preempt and displace translators, could block FM upgrades § House Committee approved proposals to eliminate restrictions on 3 rd Adjacent channel protections – but some protections for broadcasters § Will slow any expansion of FM translators for AM stations
Other Localism Issues – SHVERA Again, FM Move-Ins, HD Radio § SHVERA Reauthorization raises new issues – like importation of out-of-market stations § In-state station request to ignore market boundaries § Import where no retransmission deal § Import where there are white areas § Limits on FM Move-Ins from Rural into Urban Areas § Do Rural Stations Need Protections § How about suburban stations? § HD Radio Power Increases
Diversity Initiatives – Shaking Up Broadcast Ownership § New Ownership Report Filing – was planned for November 2009 – now delayed § To Collect Information on Minority Ownership § May apply to Noncommercial and LPTV § Review of preferences for new owners – perhaps more emphasis on minority and female ownership § Other diversity initiatives – tax certificates, certain ownership waivers
A Modest Proposal § DTV provides opportunities for more spectrum for radio § Channel 6 is adjacent to the NCE portion of FM band § Proposals to take Channels 5 and 6 and make them FM channels § Proposals to immediately assign top part of that band to LPFM – 87. 9, 87. 7, 87. 5 § Other proposals to move AM to the band give more spectrum to NCE stations
Enforcement Issues § Technical issues – EAS, Tower Lights, Tower Fencing, Technical compliance with license § Current Main Studio requirements § Commercial sponsorship issues – embedded advertising § Noncommercial sponsorship issues § Contests – Disclose the rules and follow them § EEO rules – big fines lately § Current public file and Quarterly Programs Issues list requirements
Who Pays For What You Say (1) § Commercial stations – identify your sponsors § If you get something in exchange for mentioning donor on the air, disclose it to the audience § Be careful in tying news features to advertising buys § Payola still an issue § Watch for free pre-produced spots on controversial issues – VNR issues § Responsible for syndicators too
Who Pays for What You Say (2) § Noncommercial underwriting announcements § No call to action § No qualitative statements § No price information § Limited length § Just the facts about the sponsor § Be careful about promotions, remotes, live appearances § No immunity for violations in programs produced by others
Streaming Royalties – Broadcaster Settlement New Royalties for Broadcasters – Per Song Per Listener § § § § § 2006. . . . . $0. 0008 2007. . . . . 0. 0011 2008. . . . . 0. 0014 2009. . . . . 0. 0015 2010. . . . . 0. 0016 2011. . . . . 0. 0017 2012. . . . . 0. 0020 2013. . . . . 0. 0022 2014. . . . . 0. 0023 2015. . . . . 0. 0025
Broadcaster Settlement on Streaming Fees § Minimum $500 per channel § Must provide “census reporting”- all songs played and how many times they played § Exceptions allows ATH reports for up to 20% of programs now, down to 8% in 2015 – just provide playlists and number of hours streamed § Small broadcasters – 27, 777 ATH per year – pay $600 a year and no reporting obligations § No bills sent to you - you must seek out forms and reports, and make payments to Sound. Exchange § Noncommercial stations get 159, 125 hours per month for $500 a year, except for CPB stations – CPB pays
Internet Radio – What’s It Mean? § At 2009 rates, assuming 12 songs an hour – about 2 cents per listener hour § By 2015 – 3 cents per listener hour § About $13 monthly if you average 1 listener, 24 -7 § $21. 60 monthly for 1 average listener in 2015
More than Enough to Keep You Busy! (and me too)
What Broadcasters Need to Know About What’s Up in Washington David Oxenford 202 -973 -4256 davidoxenford@dwt. com www. broadcastlawblog. com
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