[grc] question about FCC/DMCA rules

Sun Sep 2 12:12:02 PDT 2018

Thanks Michelle and Gregg for your thoughtful replies. This is informative.
I guess my remaining concerns are:

1. Are LPFM licenses subject to different rules regarding fundraising than
full power non-com stations like public radio stations?

2. If no to above, is there a difference between an underwriting message on
a nationally syndicated show that explains that some support is provided by
X company, vs. a direct promotion for the show-producer's own fundraising
page (in this case, Patreon)? They were careful to avoid calls to action in
the spot, but it definitely promotes a service that can be paid for,
ostensibly to offset production expenses of the show. It's not a discreet
acknowledgement of gifts.

At worst, it sounds like maybe it's a gray area, which answers part of my
concern. Thanks again for all your insights.

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

On Sun, Sep 2, 2018 at 1:54 PM, UnderCurrents Radio via grc <
grc at maillist.peak.org> wrote:

> 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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