He navigates the lucrative world of streaming for a non-profit TV operation
WNET’s general counsel Bob Feinberg says legal work has gotten more complicated as content is streamed onto more platforms
Nonprofit organizations have a lot of influence these days. Museums, advocacy groups and universities all have millions and often billions of dollars in endowments, and many universities rival multinational corporations in their size and geographical footprint. In the cultural arena, the Public Broadcasting System (PBS) carries a lot of weight. Members of the group, like the New York-area WNET, are large content producers whose main rivals these days are cable television networks. WNET in particular produces more content for the group than any other. Among its programs are the influential and popular Great Performances, Nature, and Amanpour and Company, a co-production with CNN. (This last one is a talk show hosted by the CNN personality Christiane Amanpour.)
At the center of WNET is its general counsel, Bob Feinberg. An experienced media lawyer, he and his 20-member legal department have overseen WNET’s transformation from a broadcast television station to a group that not only produces original programs but streams them from apps onto devices everywhere, at anytime. His lawyers draw up the agreements for donors who contribute to the nonprofit, which includes New York’s Channel 13 as well as a number of regional TV stations. And they negotiate the agreements that facilitate the production of so much content and the venues on which they’re shown. Our colleagues at the online publication MAG spoke to Feinberg, a quintessential New Yorker, about his work and the role a general counsel plays in a large nonprofit organization that’s as large and influential as any private enterprise media group.
Are you the only lawyer there?
No. There’s a legal department of 20 people. About half of those are lawyers, the other half do legal-type things, and I run the department.
It’s not just one television station, correct?
WNET is the local New York City affiliate of PBS. So it’s not really an affiliate relationship. PBS is a membership organization; it has about 300 local TV stations. And we are the New York City station, the Long Island station, and there’s a third separate station in New Jersey. We do that as well. WNET is a pretty big station. One in Oshkosh is pretty small; there are several bigger ones in the country and WNET is the largest.
What’s the ownership structure?
That’s a good question. We’re a not-for-profit entity and unlike what you think of as a corporation, not-for-profits have no shareholders. So the lawyers would say there is no beneficial ownership; no one “owns” the station. There is a board of trustees and normally trustees are elected. But since there are no shareholders, this is a self-perpetuating board. It reelects itself on an annual basis. That’s how nonprofits operate in New York State and probably most of the states.
If the board wanted to sell the station to someone else, the board would make that decision because there are no shareholders. And one of the other aspects of a nonprofit is that you’re allowed to make a profit and you have to pay your staff, you’re not allowed to distribute revenues to any stakeholder. If the station were to be sold, that money would have to go back into operations.
You became general counsel there fairly quickly.
I was connected to the station through my old law firm, Debevoise & Plimpton, which has represented Channel 13 for decades, and I was hired by a guy who was the general counsel at the time. He was transitioning from a legal role to an operating role. It was supposed to happen quickly. Unfortunately, I started there at the beginning of 2008 when the economy started to collapse. The station reduced the staff by about 20 percent. So the GC ultimately did move to the operations side, but it took longer, about a year.
How long did you work at Debevoise, and in private practice in general?
It was very short. After I graduated from NYU [New York University School of Law] I did a one-year clerkship, and then I went to Debevoise for about two years.
Is going in-house something you thought about at the start, or did it just happen?
It’s not something that I thought of from the start. When I was in law school and in the early part of my career, I wanted to be a litigator. And that’s why I did the clerkship and why I went into the litigation department at Debevoise. From there I went to the U.S. Attorney’s Office in the Eastern District of New York. I was there about five years, in the criminal division. I tried a bunch of cases and got to try them in federal court. It was a pretty good working environment.
And when I finished there, I’d just gotten married and was trying to figure out what to do. A lot of my colleagues were going back to firms after their stint there. I didn’t want to do that, so I wound up going in-house. I’ve been in-house in a number of roles, since 1995.
How’s the department structured?
It reflects the operation of the station. Half of the legal work is related to the fact that we’re a nonprofit. And the other half is related to the fact that we’re a producer of content for television and online distribution.
The nonprofit side involves a lot of governance work. We have a lot of different boards. So were dealing with them. And we’re dealing with a lot of financial support for the station. We have a large fundraising operation; we call it development. We support that department. It could be anything from grant agreements—when you get a grant from the Ford Foundation—or gift agreements, from a rich individual or family. It can be when people give you money in their wills. And there’s a lot of compliance for the work we do. We get a lot of money from the federal government, and there’s a lot of reporting and compliance.
Every time you deliver content to a different platform there are different rights to be acquired and cleared.
What’s the other half?
The other half supports our creation of TV programs. WNET is the largest single producer of content for the nationwide PBS system. We produce shows for prime time like Great Performances and Nature, American Masters. Two years ago, there was a late night show that Charlie Rose hosted. Of course that went away when Charlie had his [ed. Note, #metoo] problems. Now we’re hosting a show that replaced that called Amanpour and Company. It’s co-produced with CNN.
All of these shows require lots of legal work. Production agreements, license agreements and leases of music. That’s the other half of the legal work. There’s a “third half.” We’re a company of about 450 people. And just like all companies, the legal work supports HR work, contracts for office leases, software.
Has streaming, like on the Apple TV PBS app, changed the work you do?
It has changed. Every time you deliver content to a different platform there are different rights to be acquired and cleared. We’re also at a point where these things are new enough so that many of the deals that we’re doing it’s the first time we’ve ever done them.
For example, you may remember when you became a member of WNET and you got benefits, like a tote bag or DVDs or a book. In the past couple of years, PBS created the first digital member benefit. So if you become a member of your local station you now get streaming access to something called Passport. It’s like a public television version of Netflix. If you want to go back and watch every episode of Downton Abbey, it’s there on Passport.
Right now we’re working on creating lots of apps, a YouTube channel that will be localized.
Is Debevoise still your primary outside counsel?
They’re really not. They do some IP work for us. But firms like them are tremendously expensive and you can only use them if you have transactions of significant size.
Do you use outside counsel much in general?
Only for the things we don’t have expertise for in-house. For example, because we’re content creators, we have collective bargaining agreements with production unions in New York City—the Writer’s Guild, the Director’s Guild. We use an outside labor firm to negotiate those agreements because it doesn’t make sense for me to have a labor lawyer in-house.
We use an outside firm to help us with real estate leases. We recently moved our transmission facility from the Empire State Building to One World Trade Center downtown. The firms we use the most are that labor firm and a regulatory firm in DC that does all our regulatory work down there. When you have a broadcasting license, it’s very arcane and most broadcasters have a regulatory firm. Most are in D.C.And then we use, we have tax-exempt issues. Simpson Thacher has a great small department that does that.
It’s on a case by case basis?
When public TV started in the 1960s we were producing things that were totally different. But now we have to compete more with cable channels that do stuff that’s similar to what we do.
Do the lawyers on your team have an affinity for the mission of WNET? Is there a certain quality they have to have?
I think there is. We describe ourselves as a mission-driven organization. So I think there is an affinity among the lawyers for what we do. I think some of the lawyers identify more with the content creation side and others with the nonprofit side. The lawyers in the department who are doing the production deals could be at a studio. But it is different for them being at a nonprofit for them.
Is there any one issue that worries you?
There are issues about recruiting and keeping talent. We’re in NYC and as a nonprofit I can’t compete with large law firms or major corporations. I’m finding that younger lawyers are much more comfortable moving around than they were in my generation. People do that more and more. And there’s a ton of money supporting places like Netflix and Amazon and Hulu. It’s really a rich person’s game. When public TV started in the 1960s we were producing things that were totally different. But now we have to compete more with cable channels that do stuff that’s similar to what we do.