Category Archives: June 2018

Dealing with a Local Political Candidate Who Appears in a Spot Advertisement for a Commercial Business

David Oxenford - Color
David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP,

With election season upon us again, I’ve had one question that has come up repeatedly in the last few weeks about local candidates – usually running for state or municipal offices – who appear in advertisements for local businesses that they own or manage. Often times, these individuals will routinely appear in a business’ ads outside of election season, and the candidate simply wants to continue to appear on their businesses’ ads during the election as well. We wrote about this question in an article published two years ago, and since the question has been coming up again, it is worth revisiting the subject. What is a station to do when a local advertiser decides to run for office?

While we have many times written about what happens when a broadcast station’s on-air employee runs for office (see, for instance, our articles here, here and here), we have addressed the question less often about the advertiser who is also a candidate. If a candidate’s recognizable voice or, for TV, image appears on a broadcast station in a way that is not negative (e.g. it is not in an ad attacking that candidate), outside of an exempt program (in other words, outside of a news or news interview program which, as we wrote here, is a very broad category of programming exempt from the equal time rules) that appearance is a “use” by the political candidate. “Uses” can arise well outside the political sphere, so Arnold Schwarzenegger movies were pulled from TV when he was running for office, as were any re-runs of The Apprentice and The Celebrity Apprentice featuring Donald Trump. An appearance by a candidate in a commercial for his or her local business is a “use” which needs to be included in a station’s political file (providing all the information about the sponsor, schedule and price of the ad that you would for any pure political buy). But that does not necessarily mean that a station needs to pull the ad from the air.

As a commercial for a business is usually a paid spot, where the station is receiving money to air the ad (and not an unpaid one like the appearance in an entertainment program where the station does not get paid to air its comedy program or movie in which a candidate appears), a “use” arising in a paid commercial gives rise to equal opportunities for other opposing candidates to buy time on the station. The station will not usually be required to provide free time to opposing candidates (but watch for candidate appearances in PSAs, as that might give rise to free time for opposing candidates). If the station has plenty of commercial inventory and does not mind selling spots to the opposing candidate for the lowest unit rates that apply during the political windows (45 days before a primary and 60 days before a general election) to spots purchased by a candidate’s authorized campaign committee (the opposing candidate gets lowest unit rate for a spot run in connection with his or her campaign, even if the commercial business bought the spot featuring their employee-candidate at regular commercial rates), a station may decide to continue to air the business spots with the candidate’s appearance. But if inventory is tight, or the station is not selling political ads to candidates in a particular state or local race, the station may want to tell the business that the candidate can’t appear in the business’ spots once the candidate becomes legally qualified, as the running of those spots with the candidates would require the station to provide equal time to the opposing candidates.

Note that the “no censorship” provision of the Communications Act and the lowest unit rate provisions likely do not apply to the business spots even though they contain the voice or image of a candidate. That is because these spots are not uses by the candidate or the candidate’s authorized campaign committee which are covered by the rules providing for lowest unit rates and the “no censorship” provisions of the law. As the commercial spots are not by the candidate or his or her political committee, but instead they are commercials by a business that happen to be “uses,” normal commercial rates can be applied.

Note, also, that business spots that advertise a business in which the candidate’s name appears, but where the candidate him or herself do not appear by voice or picture, do not trigger any equal opportunity issues. It is the recognizable voice or picture of the candidate that triggers the equal opportunity and public file issues. For those of us here in the DC area, we are accustomed to seeing ads for the local Volvo dealer even during election season, even though that dealership is named after a politician currently serving in Congress.

As in all areas of political broadcasting, any analysis of the implications of any on-air appearance of a candidate can be a very nuanced matter, and small changes in the facts can result in big changes in the legal conclusions that apply. So if these situations arise, consult with the station’s legal counsel before making any decision as to how to treat these kinds of ads. This article is just meant to note that there may be options for dealing with the candidate-advertiser if he or she wants to stay on their business’ spots during an election period, depending on the station’s circumstances. For more general information about the rules that apply to political broadcasting, see our Guide to Political Broadcasting, here.

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).

There are no additional costs for the call; the advice is free as part of your MAB membership.

Michigan Broadcaster to Receive $16k in Energy Rebate from Power Company

Buying a New Transmitter? Substantial Energy Rebates Available Through MAB!

You may be able to get a refund from your energy company if the new equipment that you plan to purchase or have purchased within a year saves energy. Knowing that many of you will need to purchase a new transmitter as part of the repack, and the equipment will most likely be more energy efficient than the ones that you have, MAB is filing with local energy companies to create a special category for broadcasters to receive cash back.

You already pay into this account as a surcharge on your electric energy bill, everyone does. Electric Energy companies are required to place the money into a special account and use it to provide refunds and incentives for energy conservation. These incentives will help the energy companies to reach their declared energy reduction plans. You pay into the energy fund on your bill, so why not try to get a little back?

Example: One MAB member radio station will see a one-time rebate from Consumers Energy in the $16,000+ range by replacing its transmitter with a more energy-efficient unit.

Here’s how it typically works: Your power provider will measure usage with your present equipment and then once the new equipment is operational, will do another measurement. The power savings are then calculated and a one-tme rebate is set up for energy savings.

The rebate can be usually estimated in advance of these measurements with equipment manufacturer efficiency data.

Call the MAB at 1-800-YOUR-MAB and we will set you up with our Energy Consultant Don Johns, EnStar Energy. Don is an expert on all things energy and he can help you traverse the paperwork to see if you qualify. You have nothing to lose and everything to gain.

Reminder: Register your C-Band Satellite Dishes

Radio and Television stations that receive programming via large C-band satellite dishes   should consider registering their downlinks prior to July 18 to protect their reception.

On April 19, the FCC issued a public notice freezing the filing of new or modification applications for fixed-satellite service (FSS) earth station licenses, receive only earth station registrations and fixed microwave licenses in the 3.7-4.2 GHz frequency band. The purpose of this freeze is to preserve the current landscape of authorized operations in the 3.7-4.2 GHz band pending Commission action as part of its ongoing inquiry into the possibility of permitting mobile broadband use and more intensive fixed use of the band.

In a post on the Barry Mishkind’s BDR (read here) Broadcaster and tech consultant Karen Johnson of LinkUp Communications  says it’s about the proposed new 5G wireless service, and “in a nutshell, broadband companies like Verizon and Google are putting pressure on the FCC to hand over or sell all of these frequencies to major Internet providers.” So there’s a 90-day freeze on new receive-only earth stations in the C-Band, while the FCC sifts through comments.

Johnson advises that in the short-term, “Take care of business…if you own one or more C-band downlinks, make sure each one is registered.” The deadline for that is July 18. More about the situation (and how to register existing earth stations) from attorney Michelle McClure at CommLawBlog here.

In an article on Tom Taylor’s daily newsletter “Tom Taylor Now,” its reported that National Public Radio (NPR) told FCC Commissioner Mike O’Rielly that its PRSS (Public Radio Satellite System) is “an indispensable link” between it and hundreds of NPR member stations. And that “the non-commercial, non-profit public radio system cannot afford alternative means of program distribution, such as terrestrial/fiber networks.” Those alternatives are not just more expensive. It says “for the “rural and remote part of the country where fiber does not reach, there are no alternatives to satellite distribution, regardless of cost.”

Urgent: Sage ENDEC Update Available

Sage Alerting Systems has announced the availability of an important firmware update for its Sage 3644 (blue) EAS box.

Users with the 3644 must install this update to permit the ENDEC to continue to receive EAS CAP alerts from FEMA.   A FEMA signing certificate will expire at 11:45 a.m. on June 24, 2018; if this update is not installed, you will not receive CAP messages from the IPAWS system after that date.

This release also updates the SSL certificate roots that your ENDEC must have in order to download alert audio files from state or county alert originators.

For more information, visit http://sagealertingsystems.com/support-firmware-new.htm.

Updates from other manufacturers: 

Monroe EAS Device users who are being contacted directly.

User notices are being sent out, directing to the following links:
http://www.digitalalertsystems.com/resources_fsb.html and http://monroe-electronics.com/EAS_pages/eas_fsb.html.

Trilithic updates can be found here:

https://eas.trilithic.com/Documents/Firmware/index.html

Gorman-Redlich updates can be found here:

http://www.gorman-redlich.com/downloads/

Speaker line-up announced for Next-Gen TV Summit

With the first group of U.S. stations now “on-air” with ATSC 3.0 and with Spectrum Repack planning well underway, local station General Managers and Engineering personnel need to know how the upcoming transition to Next-Generation ATSC 3.0 TV transmission will affect their advertising offerings and engineering plans. Broadcaster Associations throughout the Midwest are pooling resources to present this event targeted to local stations who need to get ready for the transition to Internet Protocol-enabled broadcast TV.

Location: Marriott Columbus Northwest in Columbus, Ohio. Hotel sleeping room rate = $143/night. Click here to register now!

Wednesday, June 27

3:00 p.m.
“Start at the Beginning with ATSC 3.0: An Overview of
Television’s Next Big Leap”
— Rich Chernock, Triveni Digital (Past Chair, ATSC Technology Group 3)
— Skip Pizzi, Vice President, Technology Education & Outreach,
National Association of Broadcasters

5:15 p.m.
Bus transportation begins to evening reception in Hilliard, OH (10-minute bus ride) at the Early Television Museum, sponsored by LG Electronics. Bus service back to the hotel continues until 7:30 p.m..

Thursday, June 28

8:30 a.m.
Welcome

8:35 a.m.
Cleveland Test Station Update: Starting Place for ATSC 3.0 Broadcasts
— Lynn Claudy, Sr. VP of Technology, National Association of Broadcasters

“Deployment Details: An ATSC 3.0 Plan for General Managers and Engineers”
Panel Discussion
• Moderator Myra Moore, Digital Tech Consulting
• Joseph Seccia, GatesAir
• Jeff Andrew, Osborn Engineering
• Greg Martin, Rohde & Schwarz USA, Inc.
• Lisa Hobbs, Ericsson Media Solutions

“Building New Revenue with NextGen TV and SFN Deployment”
— Jerald Fritz, Executive VP, OneMedia

“Monetizing ATSC 3.0 with Personalized Advertising and Viewership Data from Next-Gen TV”
Panel Discussion
• Moderator Glen Dickson, TVNewsCheck.com
• Marc Hand, Public Media Venture Group
• Brad Seitter, TVB
• Jason Patton, Verance

12 p.m.
Luncheon

“Better Television: First Market Phoenix, Arizona”
— Ray Thurber, Vice President of Engineering, The E.W. Scripps Company

“Alert & Aware with AWARN Emergency Alerting”
— John Lawson, AWARN Alliance

“The Consumer’s Appetite for New Technology”
— Stephen Baker, NPD Group

“All Eyes on the Viewer & the Evolution of Television”
— Tim Hanlon, The Vertere Group

4:15 p.m.
Conclusions & Dismissal