March Regulatory Dates for Broadcasters – Including Incentive Auction Commitments, New Webcasting Royalties, and Comments on AM Revitalization and Copyright Safe Harbor for User-Generated Content

March appears to be another busy month on the FCC’s regulatory calendar.  While March is one of those months where there is not the usual assortment of EEO public file reports, quarterly issues programs lists or children’s television reports and noncommercial ownership report obligations (see our Broadcasters’ Regulatory Calendar here for some of these dates), it is a month with many other significant regulatory dates.  For instance, this month brings the scheduled start of the TV incentive auction as stations make binding commitments as top whether they will accept the FCC’s opening bids in the reverse auction.  It also brings deadlines for comments in a number of other proceedings that may affect broadcasters, including the FCC’s proceeding on AM radio revitalization and the Copyright Office’s look at the safe harbor for user-generated content.  In addition to comment periods, the lowest unit rate periods that apply during the 45 days before a Presidential primary are in effect in many states, plus March brings other deadlines including those for the first filing date for monthly SoundExchange Reports of Use under the new Internet radio royalty rates.  All make for a month where broadcasters need to watch regulatory developments very closely.

So let’s start with the incentive auction.  As we wrote just a few days ago, March 29 is the deadline for TV broadcasters to make a binding commitment to accept the FCC’s initial offer to buy their spectrum.  TV broadcasters who filed applications to participate in the Incentive Auction back in January were merely leaving the door open to their participation.  The March 29 deadline is the real legally binding commitment to surrender their spectrum at the price that the FCC has offered for their stations.  To make sure that broadcasters understand what they are doing, and how to make their commitments, as we wrote in our article, the FCC has set up an online tutorial on the system and will be holding a workshop about the process.  So if you have a TV station interested in taking advantage of the FCC’s offer to buy out your frequency, this is the month that the commitment needs to be made.

On the radio side, comments in the AM radio revitalization proceeding are due on March 21, looking at what additional steps the FCC should take to revitalize AM radio in addition to the ones that it adopted last year (including the ongoing window for the filing of applications to move FM translators up to 250 miles to rebroadcast AM radio stations – see our article here).  The FCC is looking at numerous issues, including the potential for changing interference protections for some AM stations including possibly reducing the protections for clear channel stations, changing proof of performance requirements for AM, and ending dual-band operations for those stations that received expanded band allocations.

For stations that have a web presence, the Copyright Office is looking at whether it should recommend to Congress changes in the DMCA “safe harbor” from liability that Internet services have for content over which they have no control, including user-generated content.  As we wrote here, companies that allow users to post material on web pages that they host are shielded from copyright liability for those user-generated posts if they do not encourage users to post infringing content, if they do not profit directly from such posts, adopt policies to police infringing content and if they take certain steps so that they can be notified of infringing content and, when notified, they take that content down.  Comments on the Copyright Office’s Notice of Inquiry looking at whether the “notice and takedown” system is working are due on March 21.

Also in the digital world, webcasters and other Internet radio companies (including broadcasters who are streaming their over-the-air signals) owe their first royalties for the new year on March 16.  Services are required to pay royalties within 45 days of the end of the month in which their streaming was done and to provide “reports of use” on the songs that they played.  So January streaming must be reported and paid in March.  These will be the first royalties to be paid by music services under the new rules adopted by the Copyright Royalty Board in January.   See our articles here and here about the new rates, and here about some of the issues as to small webcasters and the “performance complement” that remain with respect to those rates.

These and other proceedings may help set future obligations for broadcasters and other media companies. So consider if you want to weigh in on these important proceedings.