Category Archives: Legislative Update

FCC Releases Draft Order to Eliminate Broadcasters’ Obligations to File Contracts

According to the Broadcast Law Blog, the FCC released its draft order proposing to eliminate the requirement that broadcasters file certain contracts relating to ownership and control with the Commission. The disclosure of the documents can be made by either (1) uploading the documents to the station’s online public file, or (2) making available a list of the required documents in the online public file with the documents themselves provided within 7 days to anyone who requests them, including the FCC.

Among the documents that are required to be in the public file are those showing the governance of the license entity (e.g., articles of incorporation and bylaws); options and other documents related to future ownership rights; joint sales and time brokerage agreements; and television network affiliation agreements.

In the draft order, the FCC requires that such documents be included in the online public file (either in full or by inclusion on the list) within 30 days of execution, or within 30 days of any amendment or other modification of the agreement. If only a list of the documents is provided in the file, all the information that is required on an Ownership Report, where such documents are listed, would be required – including the name of the parties involved and the execution and expiration dates of the agreements.

Michigan Democrats Call to ‘End Citizens United’

Seven of Michigan’s Democratic congressional candidates are among the 107 candidates nationally who signed a letter led by the group End Citizens United urging Congress to take up elections reform as a first priority in the 2019-2020 session.

Elissa Slotkin of Holly in the 8th District, Matthew Morgan of Traverse City in the 1st District, Robert Davidson in the 2nd District, Matt Longjohn in the 6th District, Gretchen Driskell in the 7th District, Andy Levin in the 9th District and Haley Stevens in the 11th District all signed the letter.

The letter reads in part: “We share the American people’s impatience and frustration over the lack of reforms and transparency and the role of money in our politics. We hear day in and day out that special interests are drowning out the voices of everyday citizens – to the point where many Americans no longer believe their votes even count.  Restoring faith in our elections and in the integrity of our elected officials should be a top priority that all members of Congress can agree upon.”

President Signs MMA Into Law

NABOn October 11, President Trump signed the Orrin G. Hatch – Bob Goodlatte Music Modernization Act (MMA) into law, putting into effect the first reform of music copyright law in decades.

In a statement released by the NAB, the organization notes that the “NAB supported this legislation, which formally establishes a role for Congress as the Department of Justice reviews consent decrees with the two largest performing rights organizations — ASCAP and BMI. The decrees are essential to a functioning music marketplace, and any action to terminate them must now be preceded by appropriate congressional oversight to protect the interests of songwriters, licensees and music consumers.”

The NAB has summarized the effect to broadcasters here.

FCC Proposes Lessened Interference Protections for Class A “Clear Channel” AM Stations

David Oxenford - Color
David Oxenford

What Does This Proposal Mean for AM Revitalization?

By: David Oxenford, Wilkinson Barker Knauer LLP

Late last week, the FCC issued a “Second Further Notice of Proposed Rulemaking” in its AM Revitalization Proceeding. The FCC has been taking steps over the last several years to attempt to restore AM radio to health. In last week’s Further Notice, the FCC followed up on ideas that it floated in 2016 in a prior order in the AM revitalization proceeding (see our articles here and here) suggesting that protections afforded to Class A AM stations be lessened in order to allow increased power by other more localized AM stations. Class A stations, often referred to as “clear channel” stations, are those 50 kW AM stations that are currently given interference protections both during the day and to their nighttime “skywave” signals (the signals heard hundreds and sometimes thousands of miles from the station’s transmitter site after bouncing off the atmosphere). These protections allow these stations to cover large geographic areas, and were particularly important in the early days of radio when these stations provided the only radio services to vast portions of the country that did not have local radio stations. In the Further Notice released last week, the FCC questions whether such protections are still necessary given the proliferation of other sources of audio programming (including radio stations, satellite radio and the Internet), and advances specific proposals that would reduce the protections accorded to these stations to allow some power increases by local AM stations.

This proposal is not without controversy. Obviously, station owners who hold Class A licenses do not believe that the service provided by these stations should be impeded. In fact, they note that many of these stations are among the few profitable AM stations in the country, often providing unique programming and substantial programming diversity to rural residents. These stations have also always been a favorite of long-haul truckers and others driving at night for providing uninterrupted service over vast distances. Perhaps even more importantly, and a question specifically raised for comment by the FCC, is the impact that any loss of service from these stations would have on the EAS network. Many of these stations serve as the primary stations for relaying national emergency messages to the EAS network. In fact, many of these stations have been provided funds by FEMA to improve their facilities to insure that they are available to provide uninterrupted service in the event of a national emergency.

The specific proposals set out by the FCC are likely going to be most easily understood by those with technical backgrounds. They are set forth below:

Daytime hours proposal:

  • During daytime hours, Class A AM stations would protected to their 0.5 mV/m daytime groundwave contour, from both co-channel and first-adjacent channel stations;

Critical hours (two hours before sunset and sunrise) proposals:

  • Alternative 1: During critical hours, Class A AM stations would be afforded no protection from other AM stations, or
  • Alternative 2: During critical hours, Class A AM stations would be protected to their 0.5 mV/m groundwave contour.

Nighttime hours proposals:

  • Alternative 1: During nighttime hours, there would be allowed no overlap between a Class A AM station’s 0.5 mV/m nighttime groundwave contour and any interfering AM station’s 0.025 mV/m 10 percent skywave contour (calculated using the single station method); or
  • Alternative 2: During nighttime hours, Class A AM stations would be protected from other AM stations in the same manner as Class B AM stations are protected, that is, interference may not be increased above the greater of the 0.5 mV/m nighttime groundwave contour or the 50 percent exclusion Root Sum Squared Nighttime Interference-Free (“RSS NIF”) level (calculated using the multiple station method).
  • Currently, Class A stations are protected during the day to their 0.1 mV/m groundwave contour by co-channel stations (and to their 0.5 mV/m contour by adjacent channel stations) during the daytime; to their 0.5 mV/m-50 percent skywave contour by co-channel stations (and to their 0.5 mv/m groundwave contour by adjacent channel stations) at night; and to their 0.1 mV/m groundwave contour during critical hours. The FCC proposals set out above would, in some cases, result in a significant decrease in interference protections accorded to these stations.

The FCC notes that there are differing opinions, even among engineers, as to when a Class A station’s service can reliably be heard by listeners, and the extent to which distant listeners still rely on these services. Because of these differences in opinion, and the natural split between local station owners and those that hold licenses for Class A stations, this proceeding is likely to be controversial. And it may well implicate many of the issues about the future of AM radio more generally (see, for instance, our article here).

The FCC is not proposing at this time changes in the protections of other classes of AM stations, though that possibility had also been raised in earlier proceedings. But the FCC does ask for comments as to whether it should move ahead in a future proceeding with that idea – potentially increasing interference in areas further from some stations in exchange for the potential for other stations to increase power and service to more local areas. That, too, is likely to be a controversial issue – one that will be debated in more detail at a later date.

Comments on the Further Notice will be due 60 days after the document is published in the Federal Register, with replies due 30 days later.

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.

House Passes Online Voter Registration

The State House of Representatives unanimously passed legislation to allow residents with valid driver’s licenses to register to vote online.

The bills, HB 5548 and HB 5549, passed 107-0 and require those who register to vote online to vote in person for the first time. The bills also direct the Secretary of State to use measures to ensure security and prevent hacking. Secretary of State Ruth Johnson supports the bills. The legislation has been referred to the Senate for committee hearing and floor vote.

NAB files comments with the FCC on Audio Marketplace Competition

NABThe NAB has filed comments with the FCC concerning competition in the audio programming marketplace as part of the agency’s congressionally-mandated communications marketplace report. The NAB’s comments state, “While today AM and FM radio still account for 50% of daily time spent listening to audio sources for those ages 13+, well ahead of any other single audio platform, total time spent listening to AM/FM radio on a weekly basis has been heading downward.”

The comments laid out the current audio marketplace and the NAB notes that “digital technologies have significantly expanded the number of audio content providers and the marketplace choices available to listeners. This expansion within the marketplace has led to changes in the marketplace for both listenership and advertising.”

Beware of the Political File Obligations in this Hot Political Advertising Year

David Oxenford - Color
David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP

In this “political” year with Congressional mid-term elections in November, including many hotly contested races for seats in the U.S. House of Representatives and the Senate, as well as many state and local elections, I receive many questions from broadcasters across the country. Perhaps the area in which most questions are received deals with the “political file,” particularly because these files are now available online. The fact that this file can now be viewed by anyone anywhere across the country has raised many questions that were perhaps less top-of-mind when the file was available only by physically visiting the main studio of a broadcast station. So, with the election just over a month away, meaning that the busiest advertising period will be coming up between now and the election, I thought that it would be worth taking a look at some of the online public file issues.

As an initial matter, it is worth mentioning that the political file has two main purposes. First, it is designed to provide information to the public about who is trying to convince them to vote in a certain way or to take action on other political issues that may be facing their country or community. Second, the file is to inform one candidate of what uses of broadcast stations his or her opponents are making. Thus, the documents placed in the file must be kept in the file for only two years from the date that they were created – perhaps on the assumption that at that point, we will be on to the next election cycle and old documents really won’t matter to the public or to competing candidates in the last election. But what needs to go into the file?

For any request for advertising made by any legally qualified candidate for any public office (Federal, state or local), the following information needs to be maintained in the file:

  • Whether the request to purchase time was accepted or rejected;
  • If accepted, the rate charged for the ads in the advertising schedule;
  • The date and time that the ads are to be aired, with the exact times that they were aired to be added to the file after they run;
  • The class of advertising time purchased (which will be determined by the rights associated with the spots, e.g. whether they are fixed or preemptible, the daypart or rotation in which the spots will run, etc.)
  • The name of the candidate and his or her authorized committee, and the treasurer of the committee.

All information should go into the file as soon as an order is received – certainly within 24 hours. The only exception is for the details of the exact times that the spots ran, which can be inserted into the file when your traffic system generates those reports – provided that they must be provided sooner on request.

That same information as provided for a candidate ad needs to be put into the file for any advertising relating to a “political matter of national importance.” That would include any ad by a non-candidate group (e.g., a PAC, labor union, corporation or other interested individual) dealing with any issue likely to be dealt with here in Washington. Such issues would include:

  • Any ad dealing with a legally qualified candidate for Federal office (either attacking or supporting a candidate); or
  • Any national legislative issue of public importance (e.g., an ad saying “write your Congressman and tell him to vote” for or against some issue being dealt with by the Federal government).

In the political file for these Federal issue ads, in addition to all of the information for candidate ads, the file also needs to include a description of the issue that the ad addresses. That can be the name of the candidate that the ad supports or attacks, or the name of a Federal issue that the ad addresses. In some cases the ad can address both a candidate and an issue. In that case, it is probably safest for the political file to list both the candidate and the issues addressed. The FCC’s Media Bureau issued a decision in January 2017 requiring that dual identification (see our article here), but that decision was withdrawn when the current FCC Chairman came into office with a promise that the FCC would reexamine the issue and release a new decision (see our article here). While that new order has apparently been drafted and has been on circulation among the Commissioners for a vote since May 2018, the decision has not yet been released. Watch for a clarification that could come at any time.

All issue ads, whether dealing with Federal, state or local issues (state and local issues could include state ballot initiatives, local zoning or school bond issues, or attacks on state or local candidates), also require information about the sponsor of the ads. The information includes the following:

  • The name of the person or entity purchasing the time, and
  • A list of the chief executive officers, members of the executive committee or of the board of directors of such entity.

In the decision referenced above on which we are awaiting a final FCC ruling, the Media Bureau had required that stations, if they are given only a single name of an officer or director of an entity buying issue ads, ask the ad buyer for the names of additional officers or directors – on the assumption that it is unlikely that any organization has but a single officer or director. While that responsibility has not yet been clarified, it is probably advisable that stations make such inquiries.

We note that many stations use forms to gather the information necessary to respond to these questions – often forms generated by a group owner or one of the “PB” forms created by the NAB. These are good models to use to gather the information for the file, but the station still needs to make sure that the information provided by the political buyer fully responds to the questions on the form. We have heard of many cases where non-candidate groups do not want to say on the form that they are buying ads on a Federal issue, even when they are clearly attacking a candidate for Federal office, perhaps because they do not want all the information about the advertising buy (including the price and schedule) to be revealed in the public file. Stations need to inquire if the information provided is not complete, as the burden is on the station, not the ad buyer, for this information to be complete and accurate and timely placed in the online public file.

Also, do not put information into the file about the method of payment for the ads. We have seen cases where checks from advertisers, or worse yet, information about their electronic payment methods, have been included in the public file, potentially revealing sensitive information that could compromise bank accounts. Do not place this information into the file.

Finally, be alert to state record-keeping requirements. States including Washington and New York have recently enacted state laws that may impose different or additional paperwork obligations on political advertising (see our article here). If your station is in one of those states, be sure to not only observe the FCC’s rules, but also those of the state in which you are located.

Good luck in keeping all these rules straight in the last weeks before the election. For more information about political advertising obligations, see our Guide to Political Broadcasting, here. And, of course, ask your own lawyer as these issues arise, as they raise many tricky issues that may depend on the specific facts of your case to get the right answer.

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.

Deadline Reminder: Broadcast Station Quarterly Reports Due October 10, 2018

By October 10, 2018, all radio and television broadcast stations, both commercial and noncommercial, must prepare a list of important issues facing their communities of license, and the programs aired during July, August and September dealing with those issues. All TV stations and radio stations must post these documents to the FCC’s online public file database. The FCC’s online public inspection file database may be accessed HERE.

Also by October 10, all commercial full power and Class A TV stations must prepare and file the Children’s Programming Report on FCC Form 398 for the third quarter of 2018, and post online documentation demonstrating compliance with the limits on commercial matter aired during children’s programming.

Radio Royalty Fight May Resurface

NABNow that the Music Modernization Act passed both the U.S. House and Senate, the National Association of Broadcasters (NAB) is reporting that the royalty fee fight related to radio airplay could soon come back. The NAB is holding informal talks with the music industry in attempts to reach a compromise according to a report in Inside Radio. The NAB President Gordon Smith said, “There’s room for common ground and a settlement of the disputes between us and the performance community.”

FCC Commissioner Rosenworcel Launches Women in Tech Podcast

FCC Commissioner Jessica Rosenworcel

FCC Commissioner Jessica Rosenworcel has launched the first-ever commissioner led podcast called “Broadband Conversations.” The podcast will highlight women making an impact in media, technology and innovation.

“Women are almost half the labor force in this country yet only hold barely a quarter of jobs in science, technology, engineering and math fields,” said Rosenworcel in announcing the initiative. “I’m reminded of this fact when I go into boardrooms, classrooms, or meeting rooms—there are not enough women at the table. Because there are just too few, it’s time to amplify women’s voices from across the technology and innovation sectors.”