[grc] question about FCC/DMCA rules

Sun Sep 2 08:48:23 PDT 2018

On (1), if you run the tribute show strictly over the air (on FM) and do not stream it, then you can legally do it.  The DMCA regulation applies strictly to streaming content.  

I view Audioport as a closed-circuit delivery system for the distribution of programming.  With the exception of the live streams for DN!, programming on AudioPort is technically not "streamed" and with the exception of "Sprouts", programming on AudioPort is not necessarily a "public performance".  Note how when you look at content in AudioPort, the links for streaming is disabled citing the DMCA.  If I was to place a program on AudioPort where playing the program over a streaming radio station would violate the DMCA, I would state so in the  description to warn other stations wishing to carry the programming.  I'm not a copyright attorney, but that is my impression of the law.

On (2), This is a grey area.  In this case, the program producer is fundraising through Patreon but then is offering the programming free of charge to you.  Yes, you pay Pacifica for AudioPort but the program producer does not pay Pacifica to upload programming for distribution.  Producers can raise funds for programming and acknowledge those underwriters.  NPR does this all the time.  The question comes up though, can a program producer interrupt programming to raise funds?  

FCC's Third Party Fundraising rules were intended to allow NCE (including LPFM) stations to raise funds for 501(c) organizations.  This was pushed mainly by religious organizations.  In the case of TPF, the funds raised are not intended to benefit the radio station (stations are allowed to seek reimbursement for production costs).   

The producer is raising money for a program that your station is not paying for.  Therefore, they are raising funds which may indirectly benefit your station as they are covering most of the costs to carry the program.  (Remember, Pacifica does not pay the producer other than offering them a platform for the program).

§399b of the Communications Act defines an advertisement as "any message or other programming which is broadcast or otherwise transmitted in exchange for any remuneration, and which is intended to promote any service, facility or product offered by any person who is engaged in such offering for profit, to express the views of any person of any person which respect to any matter of public importance or interest or to support or oppose any candidate for political office."    

Remuneration is not necessarily cash/money, it can be in the form of tangible goods (merch, concert tickets, etc.) or even the program itself.  The question is now, is the program producer a for-profit organization or is providing their Patreon premiums on a non-profit basis.  It is well known that NCE stations do provide premiums to their listeners.  The producer using Patreon can be seen in the same way.  

Obviously, the safest thing to do is to discontinue running the program and inform the producer about the concerns regarding the offering of the "record club" premiums over Patreon.  I feel overall, the Patreon campaign may not necessarily put you at risk but I would still be careful as this may set an expectation that any prospective DJs for your station would be allowed to promote their Patreon on the air and your station will never see a dime of those funds.   I would remove the program solely based on a station policy decision based on allowing volunteer DJs "promoting their own wares".

I would love to hear other views on this...  but this is just the way I see it.

Michelle Bradley
REC Networks
202 621-2355
844 REC-LPFM
https://recnet.com
On 9/2/2018 10:44:01 AM, Bill Simmon via grc <grc at maillist.peak.org> wrote:
Hi everyone,

Recently a couple of things have come up at our station that have caused us
to examine how strictly we are adhering to FCC and DMCA rules. We are
pretty new — only licensed and on the air since November — and we are still
trying to find a posture with respect to how strict we are about what we
understand to be violations of the rules in shows that we run. The
following examples are both regarding some content distributed through
Pacifica's Audioport system.

1. A DJ who distributes through Audioport but also does a live version of
his show in our studio did an Aretha Franklin tribute following her death,
which was two hours of Aretha songs. Our understanding of DMCA "performance
compliment" rules led us to believe you can't play more than four tracks
from a single artist in a given show if your station streams on the
internet (which ours does). We told the DJ this and he pushed back, saying
that several stream-only stations ran the show (he is syndicated fairly
widely). We told him he could not do his Aretha tribute on our air.

2. We began running a three-hour weekly music show on Sunday mornings
recently that we download from Audioport. A station staff person was
listening and pointed out that there is a promo spot in it that offers a
"record club" subscription (via Patreon) that helps to support the creation
of the show. This appears to be a pretty clear violation of our LPFM
license, which we understand does not allow for any third party fundraising
without a specific FCC waiver. I know the show is syndicated fairly widely,
though maybe other community stations have licenses that differ from LPFM
that allow for this sort of promotion?

My question is: are we misreading these rules, or are other stations just
not enforcing them? And if others don't enforce them, does that mean we
shouldn't be so particular about enforcing them either? How persnickety
should we be about sweating these details?

Thanks in advance for any guidance.

Bill

--
Bill Simmon
Director of Media Services
Vermont Community Access Media

Station Coordinator
WBTV-LP

208 Flynn Avenue #2G
Burlington, VT 05401
802.651.9692

vermontcam.org
993wbtv.org
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