'Specialty' Stations Have March 29 Deadline

A March 29 deadline set by the U.S. Copyright Office presents an opportunity for qualifying commercial television stations to facilitate carriage of their signals by cable systems. 

Stations that submit affidavits to the office by the deadline certifying that they are “specialty stations” may be carried by cable systems at the lowest possible cable copyright royalty rate — an incentive for carriage. 

To achieve this benefit, a station must submit a sworn affidavit to the office that the station falls within the FCC’s 1981 definition of a specialty station: “a commercial television broadcast station that generally carries foreign-language, religious and/or automated programming in one-third of the hours of an average broadcast week and one-third of the weekly primetime hours.” 

Here’s how this works: 

• Under the federal Copyright Act, twice a year cable operators file Statements of Account with the Copyright Office listing the broadcast signals they carry and calculating and paying the appropriate cable copyright royalty for each six-month period. Later, the proceeds are distributed to owners of the copyrights in the signals.
• The rate owed per signal varies. If a station is on file with the office as a specialty station, cable operators can carry its signal at the “base,” or lowest, cable copyright royalty rate for any station they’re permitted to carry. 
• The office publishes a list of specialty stations once every few years.

The list for the next three or more years — the fifth list since the first one in 1990 — will be the stations that have filed affidavits by March 29. The Copyright Office uses the list to verify claims in cable Statements of Account that a signal is a specialty station. And, as I said, the affidavits must be received on or before March 29. They must state that the owner believes that the station meets the specialty station definition, and must be signed by the station owner or an official representing the owner. There is no filing fee.

After March 29, the list will be published in the Federal Register, and anyone may object to a station’s claim. The Copyright Office does not resolve those objections, but notes them in a final annotated list, which also is published. The office then checks cable Statements of Account against it. Office examiners will also check for affidavits that are filed after the most recent final list publication.

For qualifying stations, filing an affidavit is a relatively simple step that can benefit stations, cable operators and viewers, who may receive a wider range of program choices as a result of the procedure. 

On March 3, the FCC is set to issue a Notice of Proposed Rulemaking to examine possible changes in the current law and enforcement of retransmission consent. One focus of that is likely to be whether the FCC can or should change its rules or procedures to address the breakdown of retransmission negotiations between broadcasters, cable and other pay-TV systems. Broadcasters, cable operators and others will file comments and reply comments expressing their views. The result of this rulemaking is unknown, but it will not affect the specialty station procedure described here. For qualified stations, being on that list could be a sure thing at a time of change.

This column on TV law and regulation by Michael D. Berg, a veteran Washington communications lawyer and the principal in the Law Office of Michael D. Berg, appears periodically. He is also the co-author of FCC Lobbying: A Handbook of Insider Tips and Practical Advice. He can be reached at 2101 L Street, N.W., Suite 1000 Washington, D.C. 20037; mberg@michaelberglaw.com; or 202-530-8560. Read more of Berg's Legal Memos here.

Note: This column provides general guidance only and is not a substitute for individualized legal advice for particular situations.