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Last week, Congress passed the Twenty-First Century Communications and Video Accessibility Act of 2010 (the “Act”) which, among other things, reinstates the FCC’s former Video Description rules for television broadcasters, extends closed captioning of video programming to the Internet, and requires the FCC to examine methods of increasing the accessibility of emergency information. The President signed the bill today, October 8, 2010.

The Act is designed to update the Communications Act to account for the many new technologies available in today’s marketplace and to assure that they are accessible to persons with hearing or vision impairment. The Act outlines a decade-long timetable for the submission of various reports by a new advisory committee to the FCC, and then by the FCC to Congress, and the implementation of further regulations based on the findings of those reports. When fully implemented, the Act will require that specific amounts of digital television programming contain video descriptions, that certain video programming distributed via the Internet contain closed captions, and that consumer electronics devices contain features to promote accessibility and be hearing aid compatible. We have summarized the Act’s requirements in three phases below.

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The FCC has opened a rulemaking proposing reforms to its broadband health care initiatives for rural and tribal areas. The FCC’s Notice of Proposed Rulemaking originally released in July was published in the Federal Register today, which establishes the deadline for submitting Comments and Reply Comments in the proceeding. Comments in response to the Notice of Proposed Rulemaking are due on September 8, 2010. Reply Comments are due on September 23, 2010.

Chief among the proposals contained in the Notice of Proposed Rulemaking are:

• Creating a health infrastructure program that would support up to 85% of the construction costs of new regional and statewide broadband networks serving public and non-profit health care providers where broadband is currently unavailable or insufficient;
• Creating a health care broadband services program that would subsidize 50% of the monthly recurring costs of access to broadband services for eligible public or non-profit rural health care providers; and
• Expanding the class of health care providers eligible to receive these funds to include skilled nursing facilities, renal dialysis centers and facilities, and certain off-site administrative offices and data storage centers that perform support functions for health care providers.

We discussed the details of this Notice of Proposed Rulemaking in a recent Client Advisory. Health care providers, as well as rural and tribal communities interested in improving their broadband access for local health care services, should get involved in this proceeding. It is important to provide the FCC with real world examples of the needs and problems faced in providing modern health care services in your community so that those needs are taken into account as the FCC attempts to craft its rural health care initiative.

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The press is buzzing with news, leaked late yesterday and announced today in a document entitled The Third Way: A Narrowly Tailored Broadband Framework, that FCC Chairman Genachowski is proposing to reclassify the transmission component of broadband Internet access as a “telecommunications service” subject to FCC regulation. As almost everyone in the telecom world knows, the US Court of Appeals recently found that the FCC does not have direct jurisdiction to impose “network neutrality” rules as long as it classifies broadband as just an “information service.”

With the Chairman’s support, three of the five FCC Commissioners now favor reclassifying broadband as a telecommunications service, a first step towards adopting network neutrality rules.

For broadcasters, the net effect of net neutrality rules isn’t as easy to assess as it may at first seem. As producers and distributors of broadband and mobile services, net neutrality rules should assure broadcasters that their content will not be blocked or unfairly degraded by broadband network operators. Broadcasters that provide mobile news apps and operate rich media web sites have the same general interest in nondiscriminatory network access as do Internet behemoths like Google, Amazon and eBay.

On the other hand, broadband providers have argued convincingly that their networks are extremely expensive to build and that they must have flexibility to manage Internet traffic on their networks to assure a good quality of service to their subscribers. If the FCC limits broadband operators’ ability to manage traffic, those operators may have to upgrade their infrastructure, raising costs to web publishers and end users alike.

Mobile network operators assert that network neutrality rules could have proportionally greater adverse effects on them. Mobile network capacity is generally more costly and less robust than that of copper and fiber networks. If network neutrality rules increase the load on mobile networks and limit the ability of network operators to manage that traffic, their arguments that they need more spectrum to meet growing demand may be more convincing.

At this stage, no one knows how any proposed network neutrality rules would treat mobile broadband operators. However, it is plausible that aggressive network neutrality rules could increase the load on mobile networks, and mobile operators are sure to argue that they will need more spectrum to respond.

With broadcast spectrum already squarely in the sights of the same FCC that is now proposing to impose network neutrality rules, broadcasters should pay close attention to this debate.

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One of the benefits of practicing law in a multifaceted law firm is the opportunity to work with lawyers in every area of law. It is always a good learning experience, as you get to explore the often hazy areas of law that dwell at the nexus of multiple practice areas. For example, many communications facilities, and particularly towers, create both environmental and communications law issues. Over the years, we have worked on numerous matters involving RF radiation and bird strike issues at transmission tower sites. Issues like that involve multiple governmental agencies and protocols, and it is great to have a mix of lawyers with the right experience to address the various aspects of such a problem.

I therefore read with interest an Advisory published today by Pillsbury Intellectual Property lawyers Jim Gatto, Cydney Tune, and Jenna Leavitt. While not directed specifically at communications companies, it discusses an IP matter that is certainly relevant to such companies. Like most businesses, those in the communications sector use a lot of off the shelf software. However, communications companies also license a lot of specialized software (e.g., traffic systems for ad placement), and often have to hire coders to adapt the software to their specific needs or to create entirely new software for highly specialized tasks. Sometimes, such entities have new software created because they are not satisfied with what is commercially available.

As a general rule, when you hire a contractor to produce a “work for hire”, the copyright in that work remains with you rather than the contractor. However, in their Advisory with the catchy title Work Made for Hire Doctrine Does Not Generally Apply to Computer Software, the authors note that software does not fall under the types of works considered work for hire. As a result, the copyright in the software would remain with the contractor (even if the parties had agreed it would be a “work for hire”) unless proper contracts are put in place to alter that result. The Advisory goes into detail on how this works and what the implications are, but suffice it to say that many communications companies may be surprised to learn that they don’t hold the copyright in their own software.

This is not just an issue for large companies with complex computer systems and extensive programming. It applies just as readily to a small market radio station that asks a college student to design its website. Without the proper agreements in place, the copyright would remain with the student rather than the radio station. Now might be a good time to consider what software you have had contractors produce for your operation, and whether you know who actually owns it.

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The fact that you are reading this tells us that you have found your way to CommLawCenter.com, our effort to simplify the gathering of information and resources relating to the communications industry, particularly regarding its legal aspects. CommLawCenter is an effort to step outside the normal confines of law firm websites and memoranda to address breaking news more directly and quickly by bringing everything under one roof. In structuring the site, we have tried to make it as flexible as possible so that it can improve where possible and adapt where needed. As it grows, we hope that you become a part of it, contributing your thoughts and advice on its continuous refinement.

But first, a bit of background: the core of Pillsbury’s communications law practice is a group of attorneys who have practiced together for many years. Most of us began our practices at a communications law boutique named Fisher Wayland Cooper & Leader. Fisher Wayland, as it was popularly known, was founded in 1934 as one of the nation’s first communications law firms by Ben S. Fisher of the Federal Radio Commission – the predecessor agency of the FCC.

The creation of the Federal Communications Commission that same year marked a new approach by the federal government to regulating the rapidly expanding segments of the communications industry. Since that time, communications technologies have improved and multiplied at an amazing pace, with Fisher Wayland, and now Pillsbury, lawyers involved at every turn: the launch of FM radio, broadcast television, cable television, satellite distribution, cellular telephone service, space-based consumer entertainment technologies, and an explosion of Internet-based communications services in recent years. In recognition of this, USA Today once described Fisher Wayland as “among the most venerable” of communications law firms.

Times change, however, and nowhere is that more true than in the communications industry. As the industry moved toward integration and consolidation, communications law boutiques needed to provide an ever-broader array of services to these expanding clients, leading many of them to merge with large and diverse firms capable of tackling any legal issue imaginable.

Why are we telling you this? Well, it was ten years ago today that Fisher Wayland merged into Shaw Pittman Potts and Trowbridge, and five years ago today that Shaw Pittman merged into Pillsbury. The result is a truly national (actually, international) firm whose lawyers remember well that it is the personal relationships (and cool technology) that make communications such a personally rewarding field in which to practice. It is therefore fitting that we are launching CommLawCenter on this anniversary. From snail mail, to fax, to email, to web distribution, to this site, our efforts to keep clients and friends informed over the past 75 years have been an ever-evolving process. CommLawCenter will allow that audience to access our content more quickly and easily than ever before. We hope you will visit us regularly, and whether you look at it as Pillsbury v.2.0 or Fisher Wayland v.4.0, that you join us at CommLawCenter as we continue to explore what the next iteration of the communications industry will look like.

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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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10/28/2009
Last week the FCC launched a Notice of Proposed Rulemaking (NPRM) proposing to adopt six “open Internet” rules that would bind all broadband access providers, including those providing mobile and satellite broadband services. If adopted, the rules could have pervasive and lasting effects in many industry sectors, including broadband, voice and video service providers, infrastructure, device, chipset and other component vendors, content publishers and distributors, software publishers, and application service providers.

The NPRM abandons the “net neutrality” moniker in favor of a new phrase, “the free and open Internet.” Nonetheless, views on every aspect of the debate remain highly polarized, driven by vast economic stakes in the outcome, disagreements about the factors that have made the Internet a success, philosophical differences about the nature of the Internet and disagreement over the role of the FCC in 21st century communications. The NPRM puts the FCC at center stage in the debate for now, but the federal courts and Congress may take prominent or even decisive roles. Some parties, notably including two of the five sitting FCC commissioners, question the FCC’s legal authority to adopt and enforce the rules it has proposed. If the federal courts agree, the FCC will have to re-tool its approach or look to Congress to expand its jurisdiction.

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Recent Settlements and Court Rulings Bring Clarity to Royalty Landscape
8/18/2009
The long-running battle over royalties owed by webcasters–companies that broadcast music over the Internet–took several significant leaps towards conclusion last month with important developments both inside and outside of the courtroom. Spurred by the Webcaster Settlement Act of 2009, signed by President Obama on June 30, SoundExchange and webcasters entered into a total of five Congressionally blessed settlement agreements that are open to other webcasters and are binding on all copyright owners and performers. Additionally, decisions were announced in two appellate cases. Set forth below are sum­maries of the key terms and important deadlines.

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3/24/2009
This Advisory is intended specifically to help guide individuals and companies, that wish to distribute recorded music over the Internet for pleasure or profit, through the maze of licenses and royalties required for such “webcasting” activities. It discusses the recent settlement agreements entered into between SoundExchange and the Corporation for Public Broadcasting (“CPB”) and the National Association of Broadcasters (“NAB”). For certain commercial radio stations considering whether to take advantage of the NAB/SoundExchange settlement, April 2, 2009 is a critical “opt-in” deadline.

Music licensing has always been a complex and controversial subject. The rise of the Internet has served to take this complexity and controversy to a whole new level. The last several years have seen a multitude of developments in online music, both in the types and successes of music-related websites and in the laws and regulations governing music copyrights.

A PDF version of this entire article can be found at Licensing and Royalty Requirements for Webcasters: Details and Deadlines.

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10/1/2008
On September 30, the U.S. Senate approved the Webcaster Settlement Act of 2008, a bill giving SoundExchange and webcasters authority to finalize an agreement on performance royalty rates. The bill amends section 114 of the Copyright Act to give SoundExchange until February 15, 2009, to reach a deal over the statutory royalties owed by Internet radio stations, and other non-interactive online music services, to performers and sound recording copyright owners (generally record labels) when their music is performed publicly by means of a digital transmission. The legislation, which was passed by the House of Representatives on September 27, is expected to be signed into law by President Bush.

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