[grc] question about FCC/DMCA rules

Sun Sep 2 10:54:02 PDT 2018

Thank you Michelle for your reply to Bill.  I’d like to add a few remarks of my own, from the perspective of an independent producer serving many stations.

We provide a paid service:  stations pay a modest annual fee to acquire programming that would be too expensive to produce on their own.  The cost of production and distribution is shared by stations across the network (station fees) and augmented by 1) individual gifts and grants, and  2) national underwriting.  It takes all three to keep our show on the air, and our 5-year sustainability plan (required and approved by CPB) calls for a steady increase in individual giving to offset diminishing grants.

Volunteer programmers are the soul of many stations and we applaud them.  We’ve volunteered for years ourselves.  But volunteers shouldn’t be fundraising for their own projects, just for the station, because the station is covering all the costs:  rent, utilities, insurance, technical, legal, promotion, etc.  Professionally-produced national programs cover all those expenses themselves and need to fundraise to exist.  While here & there some can use the family trust fund (a hidden subsidy) to pay the production costs of a national program — gifts, grants and underwriting are all transparent with on-air acknowledgements and full budget accounting.  The FCC waiver might be required if, for example, a station were to schedule a special all-day fundraiser for a particular outside program. But otherwise the program itself can discretely solicit and acknowledge gifts and grants for program production — which directly helps stations afford the programming.

Hope this helps, and if you’re still concerned, best run it by your attorney.  

Gregg McVicar
Host/Producer
UnderCurrents

www.undercurrentsradio.net <http://www.undercurrentsradio.net/>
www.undercurrentsweekend.net <http://www.undercurrentsweekend.net/>
> On Sep 2, 2018, at 8:48 AM, Michelle Bradley via grc <grc at maillist.peak.org> wrote:
> 
> 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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