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9/10/2009
On September 8, 2009, the Office of Foreign Assets Control (“OFAC”) of the Department Treasury and the Bureau of Industry and Security (“BIS”) of the Department of Commerce issued final rules in the Federal Register amending the Cuba Sanctions program and the Export Administration Regulations (“EAR”) to increase the range of telecommunications services that can be provided between the United States and Cuba and exports and re-exports of items to implement those services, as well as authorizing related payments and travel. These are included in a larger set of rule changes implementing the President’s April 13, 2009, directive to promote contact between family members and the flow of information between the two countries.

The new OFAC rule removes the policy directive requiring individual licenses for the provision of telecom­munications services and authorizes certain telecommunications services, contracts, related payments, and travel-related transactions by general licenses. Of primary importance is the addition of satellite (including radio and TV) and cellular services as covered technologies. Certain additional transactions involving third countries and related to the provision of services between Cuba and the U.S. will now be permitted but will require specific licenses.

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August 2009
The volatile combination of broadcast employees concerned about their income and job security, and cash-strapped businesses looking for cheap and effective ways to promote themselves in difficult economic times, creates an unusually fertile ground for payola and plugola violations. Complicating matters are state efforts to prohibit “payola” activities that are legal under federal payola law. Even being accused of payola can be devastating to a broadcaster, and stations must be extremely diligent in uncovering and preventing payola and plugola violations.

Payola is the undisclosed acceptance of, or agreement to accept, anything of value in return for on-air promotion of a product or service. It is forbidden by Sections 317 and 507 of the Communications Act of 1934, and by Sections 73.1212 (broadcast) and 76.1615 (cable) of the FCC’s Rules. Its sibling, Plugola, occurs when someone responsible for program selection promotes on-air a venture in which he or she has a financial interest without disclosing that interest to the station licensee and to the public. A payola or plugola violation by an employee usually results in the employer violating the FCC’s sponsorship identification rule as well.

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August 2009
In its assessment letters to regulatees, the Commission has announced that full payment of all applicable Regulatory Fees for Fiscal Year 2009 must be received no later than September 22, 2009.

On August 11, 2009, the final FY 2009 Annual Regulatory Fee Schedule was published in the Federal Register. Accordingly, the new fees are scheduled to become effective 30 days thereafter. As the date of this Advisory, the FCC has not released a Public Notice officially announcing the deadline for payment for FY 2009 annual regulatory fees. However, in assessment letters sent to regulatees earlier this month, the Commission stated: “Regulatory fee payments are due by September 22, 2009.” Accordingly, unless for some reason the new fees do not become legally effective by that date, holders of FCC authorizations that are subject to annual regulatory fees must make their Fiscal Year 2009 payments by 11:59pm EDT, on September 22, 2009.

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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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August 2009
The FCC has released its final schedule of Annual Regulatory Fees for FY 2009. It is expected that those fees will become due and payable sometime in September. We will issue a further Client Advisory as soon as the Commission issues a Public Notice announcing the applicable deadline.

The FCC has released the text of its Report and Order adopting a new schedule of annual regulatory fees. The fees for FY 2009 are almost 10% more than for FY 2008. A copy of the FCC’s Report and Order, including the FY 2009 fee schedule, may be viewed by clicking this link http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-09-62A1.pdf. Specifically, broadcaster related fees are provided in Appendix C, pages 21 – 23, of the FCC’s Report and Order. The FY 2009 regulatory fees are scheduled to become effective 30 days after publication in the Federal Register.

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8/4/2009
Practitioner comment on T-Mobile USA, Inc. v. City of Anacortes (No 08-35493, slip op. (9th Cir. July 20, 2009), available at 2009 WL 2138980).

The Telecommunications Act of 1996 (“TCA”) was enacted with goals that were at once complementary and contradictory–to increase competition and facilitate rapid deployment of new technology, on the one hand, while preserving the autonomy of states and municipalities, on the other. Since enactment, telecommunications service providers, and local and state governments, have resorted to the Act to suit their respective objectives. Providers, driven by technologies and market demand for new services, have continuously sought to install, upgrade and maintain telecommunications facilities upon both private and public property. State and local political leaders, motivated by changing values and community aesthetic objectives, have resisted and sought to regulate and control the installations. The TCA has proven to be an inconsistent guide, at best, to resolving this tension. More than a decade after enactment of the TCA, major questions about local right to control or deny telecommunications installations remain unanswered. Recent decisions in the Ninth U.S. Circuit Court of Appeals clarify the law as to wireless facilities but reveal remaining tension between local prerogatives and provider needs.

Lara-Beye Molina, an associate in the San Francisco office of the firm, assisted in the preparation of this Advisory.

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July 2009
As we recently reported, the FCC has altered the schedule for the filing of Biennial Ownership Reports by commercial broadcast stations. Those Reports must now be filed by November 1, 2009 and by the same date every two years thereafter. However, the staggered schedule for the filing of Biennial Ownership Reports for noncommercial educational broadcast stations remains unchanged for the time being, subject to a pending Further NPRM. For noncommercial radio stations in California, North Carolina and South Carolina and noncommercial television stations in Illinois and Wisconsin, the reports are due August 1, 2009.

Noncommercial educational radio stations licensed to communities in California, North Carolina or South Carolina and noncommercial educational television stations licensed to communities in Illinois or Wisconsin must file their Biennial Ownership Reports by August 1, 2009.
As discussed in a Client Advisory sent earlier this month, the FCC released an Order on May 29, 2009, suspending the biennial ownership reporting requirement for licensees of commercial radio and television broadcast stations that would otherwise have been required to file their reports by June 1, August 1 or October 1, 2009. Accordingly, all commercial radio and television stations must submit biennial ownership reports by November 1 every other year, starting in 2009.

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July 2009
The FCC has altered the schedule for the filing of Biennial Ownership Reports by commercial broadcast stations. August 1, 2009 is no longer the deadline for commercial radio stations in California, North Carolina, and South Carolina, or for commercial television stations in Illinois and Wisconsin to file their biennial ownership reports. Those Reports must now be filed by November 1, 2009 and by the same date every two years thereafter, by all radio and television sta­tions nationwide.

As previously reported, the FCC released an Order on May 29, 2009, suspending the biennial ownership reporting requirement for licensees of commercial radio and television broadcast stations that would other­wise have been required to file their reports by June 1, August 1 or October 1, 2009.

Accordingly, commercial radio stations licensed to communities in California, North Carolina and South Carolina and commercial television stations licensed to communities in Illinois or Wisconsin need not file their Biennial Ownership Reports by August 1. They will, however, have to file their reports by November 1, 2009, as will the licensees of all other commercial, full-power AM, FM, TV, LPTV and Class A television stations licensed to communities in any State or Territory of the United States.

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7/16/2009
As the sources of content available to the public proliferate, attracting and retaining an audience grows more challenging. A common strategy is to use provocative or “attention-getting” on-air elements to increase station awareness among media-saturated listeners and viewers. However, stations must be mindful of the numerous legal restrictions on content, particularly given that illegal on-air content can garner fines as high as $325,000 per violation. In addition, certain types of illegal on-air content can subject a broadcaster to civil and criminal liability, as well as loss of its license.

Introduction
Familiarity with the FCC’s rules regarding on-air content is not optional for on-air talent, station programmers or station management. In most cases, editorial judgments made in advance, especially in the case of syndicated or pre-recorded programming, can prevent illegal content from reaching the air. It is therefore important that those involved in airing broadcast programming be up-to-date on the boundary lines that the FCC and the courts have drawn to distinguish legal from illegal on-air content.

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July 2009
This Broadcast Station EEO Advisory is directed to radio and television stations licensed to communities in: California, Illinois, North Carolina, South Carolina and Wisconsin, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

Introduction
August 1, 2009 is the deadline for certain broadcast stations licensed to communities in the States/Territories referenced above to place their Annual EEO Public File Report in their public inspection files and post the report on their website, if applicable.

Under the FCC’s rule that became effective as of March 10, 2003, all radio and television station employment units (“SEUs”), regardless of staff size, must afford equal employment opportunity to all qualified persons and practice nondiscrimination in employment.

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