The Federal Communications Commission (FCC) has issued a Notice of Proposed Rulemaking (NPRM) in which it proposes satellite television “market modification” rules to implement Section 102 of the Satellite Television Extension and Localism Act Reauthorization Act of 2014 (STELAR).  STELAR amends the Communications Act and the Copyright Act to give the FCC authority to modify a commercial television broadcast station’s local television market for purposes of satellite carriage rights.  The FCC previously had such authority to modify markets only in the cable carriage context.  The FCC also proposes to change the factors relevant to the market modification process.  Below, we list some of the tentative conclusions and interpretations on which the FCC seeks comment.

The main effect of a market modification is to expand or contract the areas in which a station may elect mandatory carriage under the must-carry rules.  To the extent that a station’s network affiliation or other agreements authorize a station to grant retransmission consent only in the station’s Nielsen DMA, a market modification petition granted by the FCC would not alter the boundaries of that DMA.   However, for stations that have elected retransmission consent, a market modification may have implications with respect to the areas in which such stations’ signals may be carried as “local” signals under the copyright laws.


Continue Reading FCC Releases NPRM Regarding STELAR’s Market Modification Provisions

The STELA Reauthorization Act (“STELAR”) has been signed into law by the President.  STELAR extends the statutory copyright license for satellite carriage of distant signals for another five years (through December 31, 2019).  It also extends through January 1, 2020 the statutory good faith negotiation requirement imposed on broadcasters and MVPDs for retransmission consent negotiations.  As discussed below, it makes several other changes to the Communications Act and to the Copyright Act.
Continue Reading STELAR (STELA Reauthorization) Enacted

Last week, a federal district court declined to enjoin Aereo’s “Watch Now” streaming service pending the outcome of a full trial in the copyright infringement law suit filed by the major networks and broadcast stations serving the New York DMA against Aereo. The parties sought to enjoin Aereo from streaming their programming for the duration of the trial because, they argued, they were likely to succeed on the merits. The court’s denial of their request for a preliminary injunction means that Aereo is free to continue with it service for the duration of the trial. The decision adds to the confusion around the degree to which broadcast signals may be streamed online and to mobile devices.

In last week’s decision, the court agreed with Aereo that its “Watch Now” streaming service works much like the remote storage DVR (“RS-DVR”) service offered by Cablevision and which the Second Circuit upheld against claims of copyright infringement in a separate decision last year. The RS-DVR service at issue in that case stored programming designated by consumers for recording on servers maintained remotely by Cablevision. Consumers could playback those programs through their home television sets using a remote control and a standard cable box equipped with the RS-DVR software. Key to the finding that the RS-DVR did not infringe upon copyright was the fact that when a consumer selected a program to be recorded to the RS-DVR, a “unique copy” of the program was saved for the consumer on the RS-DVR server. It was that “unique copy” which in turn was played back to the consumer when he or she requested it ― meaning there was no infringing “public performance.”  The Second Circuit’s decision is legally binding in New York, Vermont, and Connecticut.


Continue Reading District Court Declines To Shut Down Video Streaming Service