Category Archives: Legislative Update

NAB Files Comments with the FCC on C Band

According to the Radio World report, the Federal Communications Commission (FCC) is considering whether C Band spectrum should potentially be opened up for sharing with wireless operators.

The National Association of Broadcasters filed comments with the agency urging the agency to require supporters of the proposal to submit specific and detailed technical reports to the commission. “That is the only way to allow stakeholders to provide informed comments and analysis to guide the commission’s decision-making process,” the NAB said. Chairman Pai plans to put the item up for a vote at the July 12 open meeting.

FCC Rejects LPFM Objections against Pending FM Translator Applications

According to the Broadcast Law Blog, the FCC’s Media Bureau released a decision letter rejecting an objection filed by three groups advocating on behalf of LPFM stations against almost 1000 FM translator applications.

The grounds for the objections included claims that Section 5 of the Local Community Radio Act (LCRA), an act setting some ground rules for the relationship between LPFM stations and translators, mandated that the FCC evaluate each of these applications for its individual impact on LPFM opportunities in the future. Once the objection was rejected, the FCC resumed processing of pending applications.

The Audio Division noted that the Section 5 of the LCRA, which says that translators and LPFMs are equal in status and that the FCC needed to provide opportunities for each of those classes of stations, did not apply to evaluations of modifications of existing translators, but instead only to applications for new translators.

Whitmer Airs First TV Ads

Gretchen Whitmer

According to a report in MIRS, the “Build a Better Michigan” committee launched an ad across the state featuring Democratic gubernatorial candidate Gretchen Whitmer. This is the first series of ads for Whitmer who, according to the recent polls, does not have the name recognition with the voters. The committee is running the ads for the next five weeks. The ads began airing statewide on both broadcast and cable TV with the first week broadcasts focused on the Detroit, Grand Rapids and Flint television markets.

Redistricting Petition Certified by the Board of Canvassers

Supporters of the Voters Not Politicians (VNP) redistricting proposal landed a victory after their petition was certified by the Board of State Canvassers on June 20. The board approved the petition by a 3-0 vote with one board member absent.

The certification comes following the Court of Appeals’ unanimous rejection of arguments from VNP’s opponents, Citizens Protecting Michigan’s Constitution (CPMC). The court ruled that the proposal to create a citizen commission to oversee drafting of Michigan’s legislative and congressional boundaries does not amount to a complete overhaul of Michigan’s Constitution.

The Supreme Court last week issued an order denying CPMC’s request to stay the appeals court decision, which ordered the proposal be certified as having sufficient signatures to be placed on the November ballot. An appeal is still pending before the Supreme Court.

What Do Broadcasters and Media Companies Need to Know About the GDPR?

By: Emilie de Lozier, Aaron Burstein and Joshua Bercu, Wilkinson Barker Knauer, LLP

By now, you have probably heard that the European Union (EU) has a new data protection law on the books, the General Data Protection Regulation (GDPR) – but what are the new rules, and how might they apply to broadcasters? Below we address these and other commonly asked questions about the GDPR.

What is the GDPR? The GDPR is a new European privacy law that, as of May 25, 2018, generally governs how organizations – including those EU-based and many that are not – collect, use, disclose, or otherwise “process” personal information. While some limited exceptions exist (e.g., businesses with fewer than 250 employees are exempt from some requirements), the GDPR imposes an array of obligations on companies subject to it.

Who does the GDPR apply to? The GDPR clearly applies to companies established in the EU that collect personal information about individuals in the EU, but it also claims a broad extraterritorial reach. Indeed, it can apply to organizations, including broadcasters, without an EU presence. For instance, it can apply to broadcasters who collect or use data to provide services like streaming TV or radio to individuals in the EU. It also can apply to broadcasters who use website cookies and other online tracking mechanisms to “monitor” individuals in the EU (e.g., profiling for behavioral advertising). That said, it remains to be seen whether regulators will enforce the GDPR against companies that for the most part are not serving EU citizens and do not have EU operations, but may occasionally and unknowingly acquire data of an individual in the EU or an EU citizen in the United States.

The GDPR applies to both “controllers” and “processors” of “personal data” of EU citizens. “Personal data” is broad. It includes any information that relates to an identifiable natural person, including, for example, online identifiers and other similar information that has not always been considered personally identifiable information in the United States. Controllers and processors also are considered broadly. Generally speaking, a “controller” is a company that directly interacts with consumers (e.g., by providing a website) and collects their personal data. And a “processor” provides data processing services on behalf of a “controller,” such as, for example, cloud computing and storage.

If the GDPR applies, what do I have to do? Among other things, companies subject to the GDPR must have a “legal basis” for processing personal data. Consent offers one such basis. Consent must be “freely given, specific, informed and unambiguous,” and it cannot be inferred, so companies must allow consumers to “opt-in.” At a high level, to ensure that consumers are informed about data practices, privacy policies and other discussions of data practices should be written in clear and plain language (not legal jargon) and state, among other things, the specific purpose or purposes for processing individuals’ data. Importantly, consent previously obtained may no longer be valid if it does not meet the GDPR’s more stringent requirements.

Is GDPR compliance really that simple? The short answer is no. Obtaining consent, or otherwise establishing another legal basis for processing personal data, is only the beginning of GDPR obligations, not the end. Other obligations relate to access, accuracy, data security, data minimization, accountability and providing a “right to be forgotten,” just to name a few. Companies subject to the GDPR may need to establish new internal mechanisms in order to address the expanded rights available under the law and the requests that can be made. As just one example, the GDPR provides the right to receive one’s data in a “machine-readable” format and transfer it to another company entirely.

So if I have good in-house practices, I no longer need to worry? Unfortunately, not quite. Companies subject to the GDPR may require greater oversight over, and cooperation with, vendors and other partners (e.g., cloud providers that provide storage). If your vendors and partners are processing data you obtained from consumers in ways inconsistent with the law, you could be on the hook.

If the GDPR is primarily an EU law, why are U.S. companies so concerned? U.S. companies are worried for several reasons, but one that may drive much of the anxiety is the exorbitant fines available under the GDPR: Severe violations of the GDPR can result in fines up to 4% of a company’s annual global revenue or 20 million Euros – whichever is higher! The GDPR also makes it easier for individuals to bring private claims against companies in EU court and/or complain to EU data protection authorities. EU data protection authorities also present a bit of an unknown – their enforcement priorities remain to be seen, but it’s clear that at least some intend to aggressively enforce the new law.

OK, I think I understand the GDPR and how it may or may not apply to me. Is that all I really need to focus on in terms of new privacy laws? For now, maybe. But the emergence of the GDPR could have trickledown effects both home and abroad. In particular, the GDPR to date has at least started some conversations about whether the U.S. needs to respond through legislation or other modifications to its consumer privacy approach. Time will tell, but for now, stay tuned!

The GDPR framework is complex, and detailed analysis of compliance should be undertaken with counsel qualified to interpret all of its nuances. So note that this article provides only a general description of the GDPR and should not be viewed as legal advice. If you think that your operations may trigger GDPR obligations, get that legal advice to provide a full analysis of your compliance obligations.

Note: 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 membership.

 

 

WOOD-TV to Host Democratic Gubernatorial Debate


WOOD-TV (Grand Rapids)
will host a debate among the candidates seeking the Democratic seat in the Michigan Governor’s race on June 20.

This will be the first televised debate for the gubernatorial contenders. It will air live at 7 p.m. on WOOD-TV and woodtv.com.

All three democratic candidates will take part: Gretchen Whitmer, Shri Thanedar and Dr. Abdul El-Sayed.

WOOD-TV hosted a debate for the Republican gubernatorial candidates on May 9.

 

Hey, Alexa, How Much Did You Raise My SoundExchange Royalties?

David Oxenford - Color
David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP,

In the last year, the popularity of Alexa, Google Home and similar “smart speaker” devices has led to discussions at almost every broadcast conference of how radio broadcasters should embrace the technology as the new way for listeners to access radio programming in their homes. Broadcasters are urged to adopt strategies to take advantage of the technology to keep listeners listening to their radio stations through these new devices. Obviously, broadcasters want their content where the listeners are, and they have to take advantage of new platforms like the smart speaker. But in doing so, they also need to be cognizant that the technology imposes new costs on their operations – in particular increased fees payable to SoundExchange.

Never mentioned at these broadcast conferences that urge broadcasters to take advantage of these smart speakers is the fact that these speakers, when asked to play a radio station, end up playing that station’s stream, not its over-the-air signal. For the most part, these devices are not equipped with FM chips or any other technology to receive over-the-air signals. So, when you ask Alexa or Google to play your station, you are calling up a digital stream, and each digital stream gives rise to the same royalties to SoundExchange that a station pays for its webcast stream on its app or through a platform like TuneIn or the iHeartRadio. For 2018, those royalties are $.0018 per song per listener (see our article here). In other words, for each song you play, you pay SoundExchange about one-fifth of a cent for each listener who hears it. These royalties are in addition to the royalties paid to ASCAP, BMI, SESAC and, for most commercial stations, GMR.

In addition, if the station provides other content through these smart speakers, other royalty issues can arise. When a listener can ask for a certain DJ’s program at any time, the tendency for stations is to want to make it available on demand. Before doing that, stations need to get legal advice as to whether their royalties to SoundExchange cover such uses. As we have written before, podcasts and other on-demand media for the most part are not covered by these royalties. Instead, to use music in podcasts, you need to directly negotiate with the publishing company that own the rights to the underlying musical composition and the record company that owns the song as recorded by a particular artist – or find some musician who owns both the words and the recording who will give you rights to their music. The same would be true for on-demand streams delivered through a smart speaker unless the program segments are at least 3 hours long and accessible only at random points within a 3 hour loop, or if the program is at least 5 hours long and made accessible for less than 2 weeks. There are nuances in these rules that need to be observed to avoid going beyond the limits of the SoundExchange license and potentially incurring significant liability for copyright infringement.

In essence, as these smart speakers grow in popularity, the business of the broadcaster providing its programming through these speakers will change. Unlike programming received over-the-air which bears no SoundExchange royalty (see our articles here and here), broadcasters growing a smart-speaker based audience need to budget to meet the costs of the sound recording performance royalty paid to SoundExchange. As the aggregate fee grow right along with the audience size, the broadcaster faces the conundrum that many pure webcasters face – that the royalties grow faster than the additional income generated from the streams as audiences increase.

Is there a solution? For talk and sports radio, there are far fewer issues as, just as long as a station has the digital rights to stream the programming that it airs, the SoundExchange royalties are generally low. But for music-intensive stations, the royalties grow and need to be dealt with. The vast majority of all digital audio services have thus far been unprofitable primarily because of royalties they have to pay. Perhaps, as broadcasters end up more and more reliant on digitally-delivered streams like those heard on Alexa and Google Home, it is time for broadcasters to consider discussions with the record labels about royalties that would perhaps include a “piece of the action” from over-the-air broadcasting in exchange for dramatically lower digital royalties at a level that would allow for a profitable operation. Something to think about next time you ask Alexa to play your favorite radio station.

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.

Geoffrey Starks to be Nominated as New FCC Commissioner

Geoffrey Starks, who currently serves as an Assistant Chief in the FCC’s Enforcement Bureau, was nominated by President Trump to fill the FCC Commissioner’s seat currently held by Mignon Clyburn.

Commissioner Clyburn has announced that she will be stepping down. If confirmed by the Senate, Starks will be the second Democratic Commissioner, joining Jessica Rosenworcel. His term will run until 2022.

Senate consideration of his nomination is likely to be paired with an extension of the term of Commissioner Carr, the most recent Republican to join the FCC. If both are approved, the FCC will continue with a 3-2 Republican majority as is usual during the administration of a Republican president. The Senate Commerce Committee will hold a hearing on Geoffrey Stark’s nomination to the FCC on June 20.

DHHS Plans Hepatitis A Awareness Campaign

According to a report in Gongwer, there are currently 218 diagnosed cases of Hepatitis A in Michigan.  The Department of Health and Human Services (DHHS) said it will run a media campaign from June through August to encourage public information about the potentially fatal disease, urging people to be vaccinated.

The department did not provide full details on how the campaign will be run, but one focus will be to get information to people who would be most at risk for the disease, including intravenous drug users, homeless persons, people who have been in prison, and people with chronic liver disease.

Appeals Court Orders Redistricting Proposal Put On Ballot

It now appears that Michigan voters will consider a redistricting proposal at the polls after a unanimous Court of Appeals panel ordered the Board of State Canvassers take the “necessary steps to place the proposal on the ballot for the general election.”

The organization opposing the redistricting petition, Citizens Protecting Michigan’s Constitution, argued the proposal was more of a general revision of the Constitution than an amendment and failed to properly cite all aspects of the Constitution that would be changed by the proposal. However, the judges held that the redistricting petition was “confined to a single purpose, that of correcting the partisan aspects of the constitutional provisions regarding the redistricting commission and does so without interfering with the operation of government.” State (COA docket No. 343517)

A statement from Citizens Protecting Michigan’s Constitution said the group would appeal to the Supreme Court, “The VNP proposal is (an) anti-democratic scheme that would completely silence the people’s elected representatives and replaces them with an unaccountable commission.”