Wiley Rein’s Media Practice is described as the “preeminent Washington, DC outfit” (2009) by Chambers USA, which ranks the firm’s practice as a leading Media & Entertainment practice and calls it “a leading light for regulatory work” with an “undisputed area of strength” that is complemented by the Team’s “broad interdisciplinary approach to media law” (2013). While commending the Group for its “unbelievable amount of expertise” (2009) and praising Wiley Rein as the “standout choice for Federal Communications Commission (FCC) issues” (2011), Chambers notes the firm’s expertise and experience extend well beyond the FCC realm to encompass the full breadth of legal services required by traditional and new media, whether as content producers and distributors, investors, or equipment manufacturers. The Group’s far-reaching industry, agency, and other government contacts make Wiley Rein uniquely situated to anticipate and inform media clients about developments that will affect the way they do business.
The firm provides its media clients in the radio and television broadcasting, multichannel video, print, digital technologies, online communications, and other new media industries a wide array of services to address the legal and business issues they face, whether regulatory, policy, or transactional. Our clients include broadcasters large and small, cable system operators, radio, television and cable programming networks, and other content producers and distributors, newspaper and magazine publishers, financial institutions and investors, and equipment manufacturers.
Wiley Rein has a long history of involvement with emerging technologies, including digital, high-definition, and mobile television, audio and video streaming, direct broadcast satellite services, fiber optics, high-speed data services, and the latest wireless data transmission technologies. Because many of the most contentious policy debates affecting the media occur on Capitol Hill and involve the Executive branch, we work closely with the firm's Public Policy Group on legislative initiatives and draw from our "natural instincts on how to interact with the agencies and Capitol Hill" (Chambers USA 2009).
Broadcasting | Cable and Multichannel Video | New Media and Digital Technologies | Content Acquisition and Use | Music Licensing | Privacy and Information Security | Domain Names and Trademarks | E-Commerce | Online and Mobile Advertising and Marketing | Sweepstakes and Contests | Technology Transactions | International Transactions | Contact Us
Our broadcast clients range from single radio or television station licensees to major market group owners, and also include financial institutions, private equity and venture capital firms and other investors, radio and television networks, websites, and other content producers and distributors. Our expertise covers not only the traditional broadcasting businesses but also the challenges that arise as a result of our clients’ adaptation to new and emerging technologies such as the Internet and mobile digital media. In ranking Wiley Rein among the top tier of broadcast and telecommunications firms nationwide, the 2009 edition of The US Legal 500 noted that “the firm’s success in translating an unrivalled history of achievement in the Washington, DC communications market to a modern practice equipped to handle the rapidly changing needs of clients has helped them to lead the market for over two decades.”
In recent years, often working closely with the firm’s Corporate Practice, we have helped our clients to successfully complete numerous complex transactions involving large- and small-scale acquisitions, mergers, services arrangements, and restructuring and sales of broadcast station licenses and facilities, including transactions involving leveraged buyouts and the use of limited partnerships. Our efforts include:
- Counseling investors regarding financing, debt and equity offerings, and bankruptcies, restructurings, and workouts—including relevant FCC implications and necessary FCC approvals—involving broadcast and media companies.
- Offering guidance on complying with, and securing waivers of, the FCC’s media ownership rules.
- Providing counseling regarding the FCC’s foreign ownership limitations.
- Crafting shared services, joint sales, and local marketing agreements between broadcast stations.
- Negotiating network affiliation, syndicated radio and television programming, multichannel use, and spectrum lease agreements.
- Assisting in other contract negotiations and other business matters that arise in the context of broadcast station operation, sales, and acquisitions.
On the policy front, we have taken part in FCC proceedings dealing with virtually all of the key broadcast and related media policy issues facing the industry today. Our efforts include:
- Assisting in all aspects of the government-mandated transition to digital television (DTV) and policy issues surrounding mobile television.
- Advising radio broadcasters regarding terrestrial digital radio service (HD Radio).
- Participating in and monitoring agency rule-making proceedings regarding issues such as media ownership, broadcast equal employment opportunity (EEO) rules, content regulation, including “localism” and public interest obligations, indecency and issues related to sponsorship identification (including payola, plugola, and video news releases or VNRs), closed captioning, and video description.
We also have substantial experience on issues affecting the day-to-day operations of our media clients’ business, including not only compliance with FCC rules, but also crafting and negotiating critical agreements, counseling on laws and regulations affecting website content or mobile applications, and partnering with newsrooms to obtain access to information and to avoid liability for publishing stories. Our efforts include:
- Defending against enforcement actions on issues ranging from indecency and sponsorship identification to radiofrequency (RF) compliance and public file violations.
- Advising broadcasters about must-carry rights and engaging in retransmission consent negotiations.
- Assisting clients with content licensing and distribution, including network affiliation, syndicated programming, digital multichannel use, spectrum lease, and complex content licensing agreements.
- Supplying strategic advice on channel allocations, station licensing, and auction proceedings.
- Helping clients to navigate the broadcast station renewal process.
- Advising clients on compliance with the rules governing political broadcasting, including equal opportunities, lowest unit charge, the Bipartisan Campaign Reform Act (BCRA), and issue advertising.
- Reminding and assisting clients with reporting obligations, including ownership, children’s television, annual regulatory fees, EEO, issues/programs, and ancillary and supplementary services reports.
- Counseling on newsgathering and publication, including access, prepublication review, defamation, Freedom of Information Act (FOIA) and open records laws, reporters’ privilege and responding to subpoenas, Communications Decency Act (CDA) Section 230, and Digital Millennium Copyright Act (DMCA) protections, and the use of social media and user-generated content (UGC).
- Providing advice on antitrust and competition issues affecting the media industry.
In addition, because many of the most contentious policy debates affecting broadcasters occur on Capitol Hill—such as those involving the performance royalty dispute, the digital television transition, political advertising restrictions in campaign-finance reform bills, the federal shield law, and proposed retransmission consent legislation—we work frequently with the firm’s Public Policy Group on legislative initiatives. We also work to advance our media clients’ goals with the Executive branch, such as the White House and the U.S. Department of Justice (DOJ), as well as at other independent agencies, including the Federal Trade Commission (FTC).
Cable and Multichannel Video
Wiley Rein’s Communications attorneys represent a variety of domestic and international clients involved in cable television and similar multichannel video program distribution (MVPD) services, such as digital broadcast satellite (DBS) and Internet protocol television (IPTV) services. Our expertise covers the full range of law and regulation that any client may confront, from federal rules to state laws to local franchising requirements.
Our specialists regularly counsel system operators and industry associations on the local franchising process and the FCC rules and regulations governing cable. We also advise video programmers, equipment manufacturers, financial institutions, and other investors on federal and state laws and policies that affect their interests in the multichannel video industry.
Our efforts include:
- Representing cable operators in franchising and licensing matters.
- Participating in and monitoring agency rule-making proceedings and related appellate litigation regarding issues such as program access, program carriage, cable ownership restrictions and consumer electronics equipment requirements.
- Counseling on compliance with FCC technical and operational rules, and defending against enforcement actions on issues such as signal carriage, cable EEO rules, FCC ownership restrictions, and technical standards.
- Advising on antitrust and competition issues.
- Advancing First Amendment claims and providing defamation counseling and litigation counsel.
- Offering investment and transactional counseling, including the full range of complex regulatory and financial issues that arise in purchases and sales of cable properties and in major media and multimedia transactions involving cable and multichannel video companies.
New Media and Digital Technologies
Traditional media companies continue to redefine themselves as multiplatform content providers, whether over the air, online, or via mobile devices. As our clients work to leverage their core strengths into new and integrated media platforms, Wiley Rein attorneys partner with them to navigate the legal challenges presented by their use of increasingly sophisticated technologies to grow their businesses. Our attorneys who focus on new media and digital technologies are experienced in legal disciplines critical to success in the digital arena and work closely with lawyers in our Corporate, Intellectual Property, and Privacy practices.
For clients creating or enhancing a website, looking at interactive applications for mobile devices, streaming audio and/or video, launching a social network, or acquiring content for new digital channels, Wiley Rein attorneys can assist. Our Media Team is recognized for its in-depth understanding of the industry and its technology and our practical, comprehensive, and responsive service. Recently, we have helped clients with:
- Establishing an Internet presence.
- Streaming content through websites and podcasts.
- Launching video-on-demand services.
- Accepting and placing online advertising or click-throughs.
- Planning online and text messaging marketing campaigns.
- Expanding into e-commerce.
- Acquiring new programming content.
- Launching chat rooms and social media applications.
- Utilizing user-generated content.
- Licensing content for mobile digital media, including mobile DTV applications.
- Crafting policies governing the use of social media.
Content Acquisition and Use
Content is at the core of any media strategy, new or old. Wiley Rein is experienced in negotiating agreements for the composition or licensing of original content (both audio and visual). Moreover, we regularly assist clients in avoiding the legal pitfalls associated with using third-party content. Our experience includes:
- Evaluating potential liability for digital video-streaming services for major communications companies, including services provided by our clients and those provided by third parties that might infringe our clients’ intellectual property rights.
- Assessing website content for potential liability, including prepublication review of news material, as well as copyright, trademark, and fair use analysis.
- Clearing content for distribution.
- Negotiating right of publicity agreements.
Our wide-ranging experience also includes actively participating in multi-industry content protection activities, including the Copy Protection Technical Working Group (CPTWG), the DVD Copy Control Association (DVD CCA), the Broadcast Protection Discussion Group (BPDG), the Analog Reconversion Discussion Group (ARDG), and the Secure Digital Music Initiative (SDMI).
Music and sound recording licensing is a complex and evolving area of law. Broadcasters, webcasters, and other media companies face multiple, overlapping (and often overreaching) demands under a confusing welter of industry agreements, consent decrees, and statutory licenses with varying standards and procedures. Wiley Rein is a leader in the representation of user interests in the negotiation, arbitration and litigation of license fees payable for musical work and sound recording public performances to organizations including the American Society of Composers, Authors, and Publishers (ASCAP), Broadcast Music, Incorporated (BMI), SESAC, Inc., and SoundExchange. The firm regularly counsels media, communications, and technology clients regarding musical work and sound recording licensing obligations; negotiates licensing agreements; and has represented satellite radio broadcasters, radio broadcasters, wireless carriers, and Internet audio and video service providers, among others, in license fee disputes before the CRB and ASCAP Rate Court. The firm has also played a significant role in ongoing legislative and regulatory efforts to reform existing, dysfunctional systems. Significant matters include:
- Representing Sirius Satellite Radio Inc. in litigation before the CRB against the recording industry’s efforts to obtain royalties approaching $2 billion for the period 2007-2012. The CRB’s favorable decision was largely affirmed on appeal.
- Representing the radio industry in litigation before the CRB to establish sound recording fees for simulcast Internet streaming.
- Serving as lead counsel to the radio broadcasting industry in its appeal of Internet streaming fees for the period 1998-2002, and representing noncommercial broadcasters in their appeal of the fees for 2006-2010.
- Representing the wireless industry, radio broadcasting industry and others before the U.S. Copyright Office in successfully opposing regulations that would have expanded duplicative licensing obligations for interactive digital streaming transmissions.
Privacy and Information Security
The lifeblood of any advertising-supported new media initiative is information about a company’s customers and users. An understanding of who uses new media, how they use it, and what their preferences are is fundamental to any successful business that relies upon advertising.
At the same time, any company that collects information online must be concerned with ever-changing privacy and information security issues. Widespread media attention to data breaches, changing attitudes toward the appropriate handling of personal data, and governmental enforcement actions have made privacy and security areas of vital concern for businesses. Wiley Rein has a thorough understanding of the current and potential rules on privacy and security and offers legal solutions that harmonize business needs with emerging information access restrictions.
Our experience in this area includes:
- Reviewing companies’ existing policies and practices for consistency with applicable law, industry best practices, litigation risks, and business objectives.
- Developing and implementing privacy and security policies and practices, including employee training.
- Advising major media companies and broadcasters on the range of issues concerning marketing campaigns via text message, email, telemarketing, fax marketing, direct mail, or using location information or Customer Proprietary Network Information (CPNI).
- Assisting clients in handling cases of possible unauthorized disclosures of personal information.
- Drafting and reviewing agreements with third parties that provide new media and advertising-related services to ensure proper data exchange and handling.
- Monitoring developments in privacy law worldwide and advocating policy positions in Congress and key national and international regulatory agencies.
- Serving as counsel for a leading online privacy seal program.
- In addition, Wiley Rein attorneys in our Health Care Practice have comprehensive experience regarding the Health Insurance Portability and Accountability Act of 1996 (HIPAA) obligations facing employers.
Domain Names and Trademarks
Establishing an online presence starts with registration of an appropriate domain name. Often, clients find that a third party has already reserved a desired domain name that includes the client’s valuable brand name. In such cases, we are experienced at utilizing all appropriate methods to obtain the return of the domain name for the client’s usage from “cybersquatters.”
Wiley Rein also is practiced in enforcing clients’ trademark rights online through informal enforcement efforts and litigation. We are skilled at enforcing trademark rights online—for example, by monitoring keyword advertising and search term bidding—and we regularly watch trademark usage on the Internet for clients and pursue appropriate enforcement activities to stop the infringing use. Our recent experience includes:
- Representing a radio station that found a station in a nearby market using the same nickname.
- Determining availability of trademarks for titles of original programming and merchandising usage, and registering such marks worldwide.
- Developing merchandise licensing programs based on television characters and channel brands.
Wiley Rein attorneys have been instrumental in advising clients on planning and compliance issues affecting e-commerce sites. On issues ranging from the enforceability of electronic signatures and the use of marketing technologies to online taxation and liability, we help our clients understand the rules of the online road. In particular, we have been involved in:
- Drafting contracts with back-end vendors.
- Developing click-through agreements for one of the nation’s top e-tailers.
Online and Mobile Advertising and Marketing
We help our clients shape their online and mobile advertising and marketing efforts in ways that comply with federal and state legal and regulatory initiatives and are sensitive to emerging litigation risks and industry standards. Wiley Rein attorneys regularly advise businesses regarding online and mobile marketing issues arising under the CAN-SPAM Act, the Electronic Communications Privacy Act (ECPA), the Do Not Call (DNC) regulations, and regulations that apply to text message marketing and behavioral targeting.
Sweepstakes and Contests
Both traditional and new media ventures routinely use sweepstakes and contests to increase their market visibility, increasingly on the Internet. Wiley Rein attorneys regularly advise clients in developing contests, sweepstakes, and online promotions that comply with myriad federal and state laws and regulations. We often draft sweepstakes rules, evaluate promotion copy, and advise clients on the legality of a contest. We also advise clients on what contact information can properly be obtained from contest entrants in compliance with state and federal privacy laws, including the Children’s Online Privacy Protection Act (COPPA), and the national DNC regulations.
Wiley Rein advises clients on a broad range of technology business law matters that affect media enterprises, including software development and licensing; IT equipment agreements; telecommunications transactions (including high-speed data services, Internet backbones, wireless communications services, and satellite-delivered services); outsourcing and professional services arrangements; website agreements (such as website development, hosting, linking, and e-commerce); partnering arrangements (strategic alliances and joint ventures); and other matters related to structure, organization, growth, and operation. Some examples include:
- Drafting and negotiating hundreds of software development, software license, software distribution, and end-user license agreements.
- Representing customers and domestic and international vendors in documenting and structuring outsourcing arrangements, including application development, hosted applications, and entire business functions. We assisted a publicly held professional services company in evaluating and negotiating the outsourcing of its business processes and IT development/support functions to offshore vendors, which was valued at more than $100 million.
- Acting as lead outside counsel for a large wireless device manufacturer in drafting and negotiating end-user and professional services agreements in numerous deals across the country related to a complex, nationwide effort to accomplish FCC-mandated 800MHz rebanding.
- Assisting the largest radio broadcaster in the conversion of more than 1,000 radio stations to HD Radio technology using new equipment and licensed software, handling the licensing arrangement, the conversion commitment, and investment-related matters.
- Representing a major long-distance reseller in multiple financing, joint venture, and asset acquisition transactions, including the acquisition of substantial technology and communications equipment.
- Obtaining turnkey services from a major Internet backbone provider in venture and subscriber acquisition transactions and in developing its portal site by acquiring content, e-commerce applications, and other technology for an Internet service provider (ISP).
- Assisting a licensor of proprietary satellite technology to provide digital video and high-speed Internet services in multiple markets, regarding joint venture transactions.
Our clients are well served by the firm’s extensive experience in and knowledge of transnational business undertakings, including the problems of moving people, products, intellectual property, and money from one jurisdiction to another. Structuring communications joint ventures and financing arrangements for U.S., British, European, Asian, and South American clients is just one example of the special role our lawyers can play in transactions that bridge national and continental boundaries. In addition, we have been retained to assist in foreign privatization initiatives, including advice on regulatory and spectrum management issues.
ISSUE: NOVEMBER 2012