The Ozcat Radio DJs

Gleanings from the Broadcast Law Blog

Written by jeremy on Thursday, 21 of July , 2011 at 3:47 pm

We regularly receive (a barrage of) updates from the Broadcast Law Blog Most are irrelevant to us, but many have elements that impact noncommercial broadcasting.  Here are those updates excerpted and highlighted for quickness of reading.

$12,000 Fine Demonstrates FCC Concerns About Sponsorship Identification Policies

In this most recent “payola” case, a complaint was lodged against a Texas radio station… alleging that the host of one music program was receiving compensation from a local music club, a local record store, and a manager of local bands in exchange for featuring music on the show.  The allegation contended that other local bands could not get their music played on this show without sponsoring Station events hosted by this particular personality.  The Consent Decree does not resolve the question of whether these allegations were true, but instead requires that the licensee [pay the fine], adopt procedures to make sure that Station employees are aware of the requirements of the sponsorship identification rules, and report  to the Commission on a regular basis on the actions taken by the licensee to ensure compliance with the FCC rules.

As I’ve warned broadcasters many times, it’s not the fact that you were paid to say something on the air that is a problem, it’s the lack of disclosure of the payment.  If the message that is conveyed about the product or service is not clearly a commercial message,  then you need to disclose the sponsorship. So watch your employees to make sure that, if they get something for free in exchange for any on-air mention, they need to disclose the free stuff that they got.

If your on-air DJ got free donuts from the bakery next to the station in exchange for saying on-the-air how good they were, mention that they got the donuts for free. If a TV station got a doctor from a local hospital to be an on-air commentator on health issues as part of a deal for the hospital to buy ad time, mention that the health segment of the news was sponsored.  Even if you get free tickets to a concert with the understanding that you’ll give them away on-air and promote the show – mention that the promoter gave you the tickets when you give them away. Disclose the free stuff – and avoid the need to negotiate a consent decree like that done in the recent case.

Note that these are aimed mainly at commercial stations, but the underlying principle is the same.  You can not accept anything in exchange for play or mention where you do not disclose the perk on the air and log it on the log. Otherwise it counts as both an endorsement, AND an unlogged, paid commercial on a non-commercial station. And remember, as a non-commercial station we are not allowed to advertise, so you’ll need to write it up as an in-kind donation, and follow the donor mention rules as well, and then you need to write it up and give it to Katie so she has a record of it.

It’s much simpler just not to do it.

Record Label Waivers of the Performance Complement

The agreements agree to waive the requirements that a webcaster play:

  • No more than 3 songs in a row by the same artist
  • Not more than 4 songs by same artist in a 3 hour period
  • No more than 2 songs from same CD in a row

The waivers do not allow the streaming of an entire CD.  In fact, the most restrictive of the provisions limit a broadcaster to streaming no more than half the songs from an album or CD at any time within a 3 hour period.  So the “6 album sides at 6” type of promotion may be permissible, as long as the station does not then play another song from the same CD in a proximate time period.

DJS NOTE THIS:  Under no interpretation of the rules are we allowed to play an entire album on the air.

Beware – Music Use in Podcasts, Downloads and On-Demand Streams are Not Covered By Your SoundExchange Royalties

Broadcasters beware – podcasts with music may be dangerous to your economic health.  In recent weeks, I’ve come upon more than one incident where a broadcaster was providing podcasts containing music on their website, or allowing listeners to download or stream on-demand some new, hot song.  I’ve even seen certain articles in the trade press advocating that stations do podcasts of their morning shows, or otherwise provide some sort of programming containing music on their websites in a manner in which the listener can listen over and over again to the same program or song.  Broadcasters need to know that they are asking for trouble when they provide services like podcasts, downloads and on-demand streams containing music without getting specific permission from copyright holders to do so, as these uses are not covered by the SoundExchange royalties paid for webcasting, nor (in most cases) by your ASCAP, BMI and SESAC royalties.

Another Royalty Payment for Webcasters? EMI Withdraws From ASCAP For New Media Licensing

Just as webcasters thought that they had their royalty obligations figured out, there comes news that the already complicated world of digital media royalties may well become more complicated.  Last week, EMI, which in addition to being a record label is a significant music publishing company, has reportedly decided to withdraw portions of its publishing catalog from ASCAP – which had been licensing the public performance of these songs. The withdrawal from ASCAP applies only to “New Media” licensing.

By withdrawing from ASCAP, EMI will now license its musical compositions itself, adding one more place that webcasters will need to go to get all the rights necessary to play music on an Internet radio type of service.  In addition to royalties paid for the musical composition, webcasters also pay SoundExchange for public performance rights to the sound recordings (the song as recorded by a particular singer or band) – and by paying this one organization, they get rights to perform all sound recordings legally released in the US.   But any Internet radio operation needs both the musical composition (except for those compositions that have fallen into the public domain) and the sound recording performance rights cleared before they can legally play the music.

More Concerns About The Broadcast of Medical Marijuana Ads

In March, we cautioned broadcasters against the airing of ads for medical marijuana.  Our concerns stemmed not only from a complaint pending at the FCC, but also because, despite the widespread belief that the Federal government no longer cared about medical marijuana use and sale, the Department of Justice had only said that prosecution was no longer a priority, not that it was no longer illegal.

The DOJ appears to be backtracking on medical marijuana, now saying only that it won’t prosecute individuals who use medical marijuana, but that dispensaries, even if set up under the color of state laws, are still illegal under Federal law and subject to Federal prosecution.  Thus, broadcasters, as Federal licensees, need to exercise extreme care in advertising such dispensaries.

Broadcasters are Federal licensees.  The DOJ is now making clear that it still considers the sale of marijuana to be a Federal felony.  What Federal licensee wants to be aiding and promoting the commission of a Federal felony? This is especially true with broadcasters being in a license renewal cycle, where theirperformance can be scrutinized not only by the government, but also by anyone who has any grievance with the station.

FCC Decides to Appeal Indency Cases to Supreme Court

The FCC’s indecency rules have, in recent months, twice been declared unconstitutional by the US Court of Appeals for the Second Circuit – essentially finding that the FCC’s policies imposed unconstitutional restrictions on speech as they did not give broadcasters any way of determining what was permitted and what was prohibited After seeking several extensions of time to determine whether to seek Supreme Court review of the Court of Appeals decisions, the FCC today released its Petition for Certiorari to the high court.

This appeal deals with two cases.  First, it seeks review of the decision of the Court of Appeals throwing out the fleeting expletive admonitions given to Fox network stations for the broadcast of two Billboard Music Award shows that contained expletives, one by Cher and one by Nicole Richie.  Following the precedent set by the Golden Globes case (where Bono used the “F word”), the Commission held that the use of one of these single words, even if not used in a sexual context, were inherently indecent.  The second case covered by the Supreme Court petition was for the depiction of bare female buttocks in the program NYPD Blue – resulting in $27,500 fines on a number of ABC stations.  This decision was also overturned by the Court of Appeals.

In the last go-round at the Supreme Court, the Court of Appeals had not reached the constitutional issue.  Instead, the Court of Appeals threw out the FCC rules simply because the recent decisions were not consistent with precedent (though the Court had suggested that the rules were unconstitutional, but that suggestion was not essential to the decision).  The FCC had abandoned their policy of needing repeated use of dirty words(like in the George Carlin routine – Seven Words You Can Never Say TV – which resulted in a fine not because you can’t say these words on TV, but because the use of these words were repeated – see our post here) before they took action.  Thus, the majority of the Supreme Court justices addressed only the issue of whether the FCC was justified in changing its policies to sanction stations for a single isolated use of an expletive and to otherwise tighten its enforcement policies on indecency.  While the various concurring and dissenting opinions written by the Justices suggested that there might well be 5 Justices who felt that the FCC’s rules and policies were unconstitutional, the Court did not finally address that issue, but instead sent the cases back to the Court of Appeals to address issues including the constitutional question.

The Supreme Court does not move fast – this is not a case that we will see briefed and argued and decided before the 11 o’clock news.  The Court must first act on the Petition, and if it accepts review, schedule briefs and hold an oral argument.  So it may well be more than a year before we see a decision, which may bring some clarity as to what kind of indecency enforcement the FCC is able to do.

Updates on EAS – A Nationwide Test, and Lots of Questions About CAP Implementation Including Whether More Time is Needed

The date for a nationwide test of the Emergency Alert System (“EAS”) was announced by the FCC last week, at the same meeting at which the Future of Media report was delivered.  The first ever national test of EAS will occur at 2 PM EST on November 9, 2011.

Assessing Control of the Noncommercial Broadcaster – FCC Looks to Board of Directors

How do you determine who is control of a noncommercial broadcaster governed by a self-perpetuating Board of Directors? That question was addressed in a recent FCC decision

when evaluating control of nonprofit entities that don’t have shareholders or other owners, as do commercial enterprises, the FCC looks to the governing body of the entity that holds the FCC license to define where control lies.

College Station Fined $10,000 for Public File Violation

As an FCC Forfeiture Order issued today proves, even noncommercial educational college radio stations need to comply with FCC rules to avoid big fines.  The Commission confirmed a $10,000 forfeiture against Colby-Sawyer College in New Hampshire originally proposed in 2007.  The college argued that the forfeiture should be reduced based on the station’s noncommercial educational status, but the FCC said there is no policy justifying reduction on that basis.

We have previously noted Commission forfeitures in the range of $10,000 to $14,000 for public file violations.  Today’s decision confirms that the commercial or noncommercial status of the station is not a factor when it comes to compliance issues.  In this case, the station was missing 14 quarterly issues/programs lists from its public inspection file.

The Commission has become quite vigilant lately, issuing fines and forfeitures for numerous rule violations.  The bottom line is that all FCC rules must be followed to avoid monetary penalties, commercial ornoncommercial status notwithstanding.

What Do The FCC Main Studio Rules Require? – Recent $21,000 Fine Offers Some Clarification

The FCC has continued this week on its recent tear of fining broadcast stations and other regulated entities for violations of FCC rules – in the last week proposing fines or reaching consent decrees relating to issues including incomplete public filesEAS violations,unauthorized transfers of FM translators, and tower lighting issues, among others.  But a fine issued to a station a few weeks ago merits further review as it provides some more clarity as to what the FCC requires from a broadcast station’s “main studio.”

What do the FCC main studio rules require? Currently, all full-power broadcasters (including Class A TV stations, with the limited exception of satellite television stations and some noncommercial radio satellite stations who may operate with main studio waivers) must maintain a studio either within its city of license, or at another site either within 25 miles of its city of license or within the city-grade contour of any station licensed to the same city of license as the station.  As set out in Section 73.1125 of the FCC rules, no matter where the studio is located, local residents must be able to reach the station by a toll-free telephone call.  The rule, however, does not specifically state what must be at the main studio – those rules are either found elsewhere in the FCC rules or have been developed by caselaw.

Obviously, stations should have a public file at their main studio.  The studio is also supposed to be open and staffed during normal business hours (normally something like 9 to 5).   At least two employees must report to the main studio as their principal place of business on a daily basis, and at least one of those employees should be physically present during business hours. I like to tell clients that the studio is where these two employees have their desks with the pictures of their families, and where they sit and do their work when they are not on sales calls, or collecting the news or whatever else they may be doing.  At least one of these two employees must also be a management employee.

The main studio must also be capable of originating programming and controlling the station. Just what does that mean?  The recent case provides guidance on that issue. In that case, the licensee pointed to two locations as possible main studios.  One was the station’s transmitter site, but there were no production studios there, nor were there any people regularly there.  The second was a private home. The home did house portions of the public file, and the station’s sound board and microphone were at the house.  Why did that not qualify as a main studio?  The FCC found that there were no station employees there (presumably no one on the licensee’s payroll), the site was not open to the public and it did not have continuous program transmission capability as it only had one telephone line – presumably for the resident’s use, not for transmitting programming.  This decision seems to imply that, to qualify as a main studio, the location needs to have a means to continuously broadcast – presumably either a dedicated phone line or an STL.

In this case, the $21,000 fine was broken down $7000 for the main studio violation, $10,000 for the public file violation, and $4000 for operating post-sunset at a power higher than permitted by the station license.


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Ozcat DJs

These are the blog pages of the Ozcat DJs, thirty some-odd (some very odd ;) Vallejo volunteers as diverse as V-town itself, with interests, opinions and musical tastes to match. Ozcat Radio is a free-form station, so Ozcat’s DJs are all music directors of their own shows. Whether you’re a music lover, a fellow Vallejoan, or an artist looking for airplay, get to know the DJs who keep Ozcat on the air here.