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The U.S. District Court for the District of Columbia has ruled that the Copyright Royalty Board is constitutional. The decision ends for now a long-running controversy over the legitimacy of the CRB, which sets royalty rates that webcasters pay to copyright owners– rates that webcasters see as excessively high and a threat to the industry.

The CRB is comprised of three judges appointed by the Librarian of Congress. It meets once every five years to establish the royalty rates that webcasters must pay copyright owners when using their music on the Internet. In the past, the rates set by the CRB were decried by webcasters as excessive, which ultimately led to the passage of the Webcasters Settlement Acts of 2008 and 2009. Pursuant to these statutes, several classes of webcasters, including small commercial webcasters, microcasters, and noncommercial webcasters, have been able to negotiate settlement agreements with SoundExchange, which represents the copyright holders, and agree to rates that, while still unpopular with webcasters, are nonetheless lower than those set by the CRB.

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The Federal Communications Commission recently proposed revisions to its rules as part of its stated goal to “reform and transform the agency into a model of excellence in government.” As part of its goal, the FCC has released a Second Notice of Proposed Rulemaking (“NPRM”) proposing to modify its ex parte communications rules, which govern the disclosure of communications with the commissioners and FCC staff when all parties to a proceeding are not present.

The NPRM’s proposed rule changes include the following:

  • requiring that a summary of every oral ex parte presentation be filed with the FCC, as opposed to just those presentations involving new information or arguments;
  • requiring that the filing summarize all data and arguments presented;
  • establishing a preference for electronic filing of notices of ex parte presentations; and
  • requiring faster electronic filing (within four hours) of notices of permitted ex parte presentations made during the “Sunshine Period” (the period, which typically begins a week before a public FCC meeting, during which outside communications are limited regarding items on the meeting agenda).

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Video Programming Distributors Must Notify FCC by March 22, 2010 of Certain Contact Information and Begin Compliance with Telephone Directory Listing Requirements.

Earlier this week, we advised you of a recent Commission action which could affect video programming distributors’ obligations under closed captioning complaint rules that the Commission adopted in November 2008 but which had not yet become effective. As we predicted, those Commission actions were a prelude to the rules becoming effective, which occurred with their publication today in the Federal Register. Accordingly, effective today, February 19, 2010, new timeframes governing when a video programming distributor must respond to a complaint regarding closed captioning are in effect. In addition, video programming distributors must now comply with the provisions requiring them to provide contact information for addressing closed captioning complaints to the FCC and the public.

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In response to a petition for clarification filed by DISH Network, L.L.C. (“DISH”), the FCC has issued a “limited waiver” of its requirement that video programming distributors, including television stations, publish two types of information in local telephone directories–contact information for the receipt and handling of immediate closed captioning concerns, and contact information for the receipt and handling of written closed captioning complaints.

The FCC acknowledged that its telephone directory requirement would essentially force a video programming distributor operating on a nationwide basis (like DISH) to contract with local telephone directory publishers nationwide. However, the FCC did not limit the waiver to DISH or those engaged in national program distribution. As a result, local or regional entities, including local broadcast stations, may be eligible to benefit from this waiver as well, thereby avoiding the additional costs of extensive local telephone directory listings. To take advantage of this limited waiver, however, you must not currently have “contracted for” an advertisement or other paid listing in the telephone directory.

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Comments are due by March 1, 2010 and Reply Comments are due March 30, 2010 to the FCC’s proceeding to implement national emergency alert testing at least once a year and to collect station data from such tests.

In a Second Further Notice of Proposed Rulemaking (“NPRM”) concerning updating of the nation’s Emergency Alert System (“EAS”) to meet modern security concerns, the FCC proposes to require testing of the EAS on a nationwide basis. To date, the EAS has never been used to deliver a national EAS alert. While Part 11 of the FCC’s rules requires periodic testing of state and local EAS alerts by all radio and television EAS participants, no national test of the EAS has ever been conducted, and the current rules do not require such testing. As a result, it is not known whether the system would in fact function as required should the President issue a national alert. Accordingly, the FCC proposes to require EAS participants to take part in national EAS testing, as well as continue a modified schedule of the weekly and monthly EAS already in effect.

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The FCC has released an Order amending its digital audio broadcasting (“DAB”) rules for FM stations operating digital facilities. According to the Order, the underlying purpose for the change is to “improve FM digital coverage and to eliminate regulatory impediments to FM radio’s ability to meet its full potential and deliver its promised benefits.”

The Order authorized most FM stations using an in-band on-channel (“IBOC”) DAB system to increase their digital effective radiated power (“ERP”) by 6 dB without prior FCC approval. The FCC concluded that, due to potential interference issues, super-power FM stations (those having authorized ERPs above the maximum level for their station class) are subject to different digital ERP limitations and may not increase their digital ERP without FCC approval. Under the new rules, the maximum digital ERP for super-power FM stations will be the higher of the “currently permitted -20 dBc level or 10 dB below the maximum analog power that would be authorized for the class of the super-powered FM station adjusted for the station’s antenna height above average terrain.”

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