This Week in Regulation for Broadcasters: June 5, 2021 to June 11, 2021

Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.

  • The Copyright Royalty Board (CRB) released its long-awaited decision on streaming royalties for 2021-2025, finding that the rates applicable to both broadcasters that simulcast their over-the-air signals on the internet and other non-interactive webcasters will go up. The per performance (per song, per listener) royalty rate increases to $.0021 for non-subscription streams, up from the current $.0018.  In another change, the minimum per-channel fee is going up to $1,000 for each channel that is streamed (from $500).  For each entity that is relying on this compulsory license, their maximum aggregate per-channel minimum fee is $100,000 (up from $50,000).  That means that, each January, a company relying on this license will have to pay $1,000 per channel that they stream up to the maximum $100,000.   These yearly up-front payments will be credited against actual usage fees, which are paid monthly.  Nonprofit webcasters will be subject to the same minimum per-channel fees.  However, a webcaster that is a nonprofit entity is permitted to stream on any channel up to 159,140 aggregate tuning hours per month for the yearly $1,000 minimum.  That permits a nonprofit webcaster to average approximately 200 simultaneous listeners on a channel before having to pay for streaming at the commercial per performance rate.  Webcasters who are affiliated with the Corporation for Public Broadcasting are not subject to these fees, as CPB has negotiated a separate blanket license that covers its affiliates.  Payments under these new rates will likely be retroactive to January 1 of this year.  (Rate Determination)   Look for more details on this decision on the Broadcast Law Blog on Monday.
  • Broadcasters can mark August 11 in pen on their calendars as the date of the next National EAS Test. After cancellation of last year’s test due to the pandemic, an FCC public notice this week confirmed the date and provided more details.  The test will be held on August 11, 2021, at 2:20 p.m. EDT, with a backup date of August 25, 2021.  Broadcasters are reminded to renew their information in the EAS Test Reporting System (ETRS) by July 6, 2021.  To test alerting capabilities in the event of a widespread internet failure, the test will be distributed to broadcast stations through the over-the-air “daisy chain” rather than through internet-based IPAWS.  Following the test, on August 11 or 12, stations must file in ETRS “day of test” information reporting on the success of the test at their station.  (Public Notice)
  • The last remnants of analog television will disappear in a month. The Media Bureau reminded analog low power TV and TV translator stations that they have until July 13, 2021 to complete their transition to digital operations.  Stations that have failed to either complete the transition to digital or to receive an extension to build their digital facilities will have their license cancelled.  (Public Notice).  The Media Bureau also released a list of LPTV and translator stations that have not applied for a digital construction permit.  Be sure to check the list for translators that may rebroadcast your station and, if one is on the list, apply immediately for a digital construction permit (a link to the list of those stations is provided in the Public Notice)
  • In one instance, the FCC decided to continue to allow a low power TV station on channel 6 to transmit an audio analog signal, even after next month’s LPTVs transition to digital, while the Commission continues its work on the rulemaking that would determine the fate of so-called Franken FMs (for more on the rulemaking, see our blog post here). In an action this week, the Video Division agreed to allow an LPTV to continue transmitting an analog audio signal as long as the station would also broadcast a digital ATSC 3.0 video and audio signal.  The station was given temporary authority to operate like this for six months, but the grant included numerous conditions including the requirement to file reports on any interference to other licensed users and any interference between the station’s video and audio services that in any way limits the coverage of its video signal.  The FCC also prohibited sale or technical modification of the station during the term of the STA. (Grant Letter).  Other operators of Franken FMs may want to pursue similar relief if they have not done so already.
  • In news about a broadcast competitor, Rep. Jerry Nadler (D-NY) and Rep. Hank Johnson (D-GA) sent a joint letter to Spotify requesting information about the promotional music royalty rates it offers where, in exchange for lowered royalties, songs would be played more frequently. The congressmen ask whether these promotional royalty rates set up a “race to the bottom” forcing lower royalties on artists, resulting in economic losses to these artists. Congressman Nadler chairs the House Judiciary Committee, which oversees music licensing issues and Congressman Johnson chairs the House Subcommittee on Courts, Intellectual Property, and the Internet.  Read more about the issues raised by this letter on our blog, here.

Courtesy Broadcast Law Blog