Category Archives: Legislative Update

Update: New Advertising Disclaimers on E-Cig and Cigar Advertising Still on for 2018

David Oxenford - Color
David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP,

Last year, the FDA adopted requirements to tag advertisements for vaping and e-cig advertising with a warning that e-cigs contain nicotine and that nicotine is an addictive chemical. These requirements were to go into effect in 2018.

In the last week, I have received several questions about these rules and their effective date. According to this FDA document (see the table on Page 5), released in August, the new disclosure obligations are still set to become effective on August 10, 2018. We wrote about that effective date here, and about the adoption of the requirements, including additional health warning disclosures required for cigar advertising, here. We don’t claim to be FDA experts, so companies offering these products should consult with lawyers who are knowledgeable about the status of additional obligations imposed on manufacturers and retailers adopted by the FDA last year.

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

NAB Asks FCC to Act on Translators, Ownership Rules

NABAccording to a report from InsideRadio, the NAB’s VP of Legal and Regulatory Affairs Rick Kaplan met with the FCC Chief of Staff Matthew Berry to discuss translators and media ownership rules.

The NAB says interference issues between full-power FMs and translators “remains a persistent problem” and Kaplan petitioned the FCC to adopt the proposals submitted by the NAB group to “facilitate efficient disposition” of the conflicts. Most notably, the NAB suggests the Commission give operators the ability to relocate translators anywhere on the FM dial as a “minor change” to a facility—instead of only to an adjacent or IF-related channel—to resolve interference complaints.  Additionally, since the FCC plans to revisit its media ownership rules, Kaplan made a case for a petition which seeks to change how ownership caps are calculated in embedded markets.

Cybersecurity FOIA Exemption Bill Gets a Committee Hearing

Last week the House Communication and Technology Committee held a hearing on legislation that would exempt critical cybersecurity data from the Freedom of Information Act (FOIA). House Bill 4973 exempts from FOIA cybersecurity plans, assessments or vulnerabilities. Similar legislation last term received intense push back, particularly from environmental groups, for attempting to exempt from FOIA critical energy infrastructure information.

Michigan State Police testified in support of this legislation stating that it would help ensure private entities are reporting cybersecurity threats to the department because entities are worried their sensitive and proprietary information could be released under the current FOIA provisions.  Under current law, FOIA exempts “records or information of measures designed to protect the security or safety of persons or property” from being disclosed. The bill would also add “or the confidentiality, integrity or availability of information systems.”

Vote on HB 4973 is expected this week.

FCC to Consider Abolishing Main Studio Rule at its October 24 Meeting

According to the Broadcast Law Blog, the FCC released the agenda and draft orders for the agency’s open meeting on October 24.

For broadcasters, the most significant proposal on the agenda is the draft order to abolish the main studio rule: the requirement that a broadcast station maintain a main studio in close proximity to its city of license that is open to the public and staffed during normal business hours.

The FCC’s draft order states that in today’s world much communication with broadcasters is done by phone or electronically, and as stations either have or soon will have their public files available online, there was no longer any need to maintain the rule mandating the main studio. The main studio rule has been on the book since 1939. Your MAB is monitoring and will bring you updates.

Free Speech Amendment Debate in House Oversight Committee

According to a report in Gongwer, State Representative Jim Runestad (R-44) testified in Michigan House Oversight Committee last week that Michigan’s public universities do not care about protecting free speech and allow for the suppressing of speech on campuses.

Runestad testified in favor of the constitutional amendment that would give the Legislature the power to overrule university and community college regulations for the “protection of free speech, expression and assembly rights.”

House Joint Resolution P was opposed by the college officials who called it “a solution in search of a problem.”  The committee did not act on the proposal at the meeting.

ACTION ALERT:​ Tell Congress to Vote NO on Ad Tax!

As Congress begins to work on tax reform in earnest, the MAB wants to reinforce our support for preserving advertising deductibility as an ordinary and necessary business expense in any forthcoming tax reform proposals.

The MAB reached out to all the members of the Michigan Congressional delegation on this important issue. We believe that to make any changes to the current tax treatment of advertising pose significant economic harm to the local business and, by extension, broadcasters’ investment in local news, weather, emergency information, and community service.

Now we are asking you to take action! Tell your members of Congress that an ad tax is a bad tax. Contact your member of Congress and ask them to oppose any attempts to change the way advertising is currently treated in the tax code.

PLEASE NOTE: We are NOT contacting Senator Debbie Stabenow’s office as she is already in our corner and has signed a letter to her colleagues urging them to oppose any modification to the ad tax treatment.

Below is a sample of text that you may use in your email to Senator Gary Peters and your local representative:

As Congress begins to work on tax reform in earnest, we want to reinforce our support for preserving advertising deductibility as ordinary and necessary business expense.  Michigan broadcasters reject any measure that would eliminate a business’ ability to deduct the full cost of advertising in the year it was incurred.

Advertising is a powerful engine that helps drive the economy of Michigan. According to the Advertising Coalition study prepared by IHS Economics and Country Risk, advertising expenditures account for $179.8 billion of economic output or sales in Michigan – that is 16.3% of the $1.1 trillion in total economic output in the State. Sales of products and services that are driven by advertising help support 566,329 jobs, representing 13.4% of the 4.2 million jobs in Michigan.

For 100 years, advertising has been treated in the tax code as an ordinary and necessary expense of doing business and that has worked well.  We urge you to not to make any changes to this portion of the tax code as you seek to make reforms.

Thank you for your support!

When you email your Congressional member, please CC the MAB at

  • Click here to contact Senator Gary Peters.
  • Click here to contact Congressman Jack Bergman, R-1
  • Click here to contact Congressman Bill Huizenga, R-2
  • Click here to contact Congressman Justin Amash, R-3
  • Click here to contact Congressman John Moolenaar, R-4
  • Click here to contact Congressman Dan Kildee, D-5
  • Click here to contact Congressman Fred Upton, R-6
  • Click here to contact Congressman Tim Walberg, R-7
  • Click here to contact Congressman Mike Bishop, R-8
  • Click here to contact Congressman Sander Levin, D-9
  • Click here to contact Congressman Paul Mitchell, R-10
  • Click here to contact Congressman Dave Trott, R-11
  • Click here to contact Congresswoman Debbie Dingell, D-12
  • Click here to contact Congressman John Conyers, Jr., D-13
  • Click here to contact Congresswoman Brenda Lawrence, D-14


FCC Reminder to Video Programming Distributors – Including Broadcasters – on Accessibility Obligations

David Oxenford - Color
David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP,

With the recent hurricanes and the tragedy in Las Vegas, the FCC Public Notice issued last week reminding all video programmers of the importance of making emergency information accessible to all viewers seems very timely. The public notice serves as a good refresher on all of the obligations of video programmers designed to make emergency information available to members of the viewing audience who may have auditory or visual impairments that may make this information harder to receive. As the FCC also reminds readers of its notice of the ways in which to file complaints against video programming distributors who do not follow the rules, TV broadcasters need to be extremely sensitive to all of these requirements.

What are these obligations? These are some of the obligations highlighted by the FCC’s reminder:

  • For persons who are visually impaired, rules require that emergency information that is visually provided in a newscast also be aurally described in the main audio channel of the station.
  • When emergency information is provided outside of a newscast (e.g. in a crawl during entertainment programming), that information must be accompanied by an aural tone and then an audio version of the emergency information must be broadcast on a secondary audio channel (SAP channel) of a TV station at least twice. See our articles here, here and here about this obligation.
  • For persons who are deaf or hard of hearing, the Commission requires that emergency information provided in the audio portion of a broadcast also be presented visually, through methods including captioning, crawls or scrolls that do not block any emergency information provided through other visual means (like other captions or crawls).
  • For stations that are permitted to use electronic newsroom technique (ENT) captions, where ENT does not provide captions for breaking news and emergency alerts, stations must make emergency information available through some other visual means. See our post here on this obligation.
  • The FCC suggests, but does not require, that stations make emergency information available through multiple means (maps, charts and other visual information) and in plain language, so that all viewers can understand the nature of any emergency.

Emergency information is described broadly as information “intended to further the protection of life, health, safety and property, i.e., critical details regarding the emergency and how to respond to the emergency.” The FCC gives the following examples of the types of emergencies that may be covered: “tornadoes, hurricanes, floods, tidal waves, earthquakes, icing conditions, heavy snows, widespread fires, discharge of toxic gases, widespread power failures, industrial explosions, civil disorders, school closings and changes in school bus schedules resulting from such conditions, and warnings and watches of impending changes in weather.” Note that, for the school closings and bus route changes, the FCC has, for now, exempted this information from the requirement that crawls be converted to audio for the SAP channel, given the likely length that such messages would take (see our article here). The kinds of details that trigger these obligations include the areas that will be affected by the emergency, evacuation orders, detailed descriptions of areas to be evacuated, specific evacuation routes, approved shelters or the way to take shelter in one’s home, instructions on how to secure personal property, road closures and how to obtain relief assistance.”

The Commission notes that, in wide-spread emergencies like a hurricane, notices may need to be provided far beyond the local area directly hit by the emergency, as other areas can also be affected by the event.

Paying attention to the rules highlighted here and provided in more detail in the FCC’s Public Notice are very important, not just as it is important for broadcasters to serve all members of the public in their viewing areas, but also because there has been active enforcement in this area. The enforcement of these rules do not appear to be a partisan issue, as certain accessibility obligations have even be made more stringent during the term of this administration otherwise noted for its deregulation in other areas. So pay attention to this important reminder from the FCC.

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

FCC Considers Dropping Paper Copy Rule

The FCC issued a Notice of Proposed Rulemaking that eliminates rules requiring broadcast and cable entities to keep paper copies of FCC rules. Currently, the FCC has rules that require low power TV, TV and FM translator, TV and FM booster stations and cable television relay station (CARS) licensees to maintain paper copies of commission rules.

In announcing the NPRN, the FCC said: “Because the rules are now readily accessible online, many parties believe that the paper copy requirements are outdated and unnecessarily burdensome. While regulated entities still would be required to be familiar with the rules governing their services, elimination of the paper copy requirements would give them flexibility to determine how to fulfill that obligation.”

This rulemaking is part of the Modernization of Media Regulation Initiative that the FCC launched “to reduce unnecessary regulation that can stand in the way of competition and innovation in media markets.”

FCC Chair Calls on Apple to Activate FM Chips

Ajit Pai

According to a report in InsideRadio, FCC Chairman Ajit Pai called for Apple to activate the inactive FM chips in the company’s iPhones to promote public safety. The call comes in the aftermath of the hurricanes that ravaged the coastal United States.

The tech titan is the one major phone manufacturer that has resisted turning on the chips that enable FM radio signals to be received over the air.

“I hope the company will reconsider its position, given the devastation wrought by Hurricanes Harvey, Irma, and Maria,” Pai said in a statement.

Bill to Ban Medical Marijuana Billboard Advertising Passes Committee

The State Senate Judiciary Committee passed legislation that bans billboard advertising for medical marijuana. Senator Rick Jones (R-24), Senate Judiciary Committee chair and bill sponsor, said in a press release that the legislation is in line with a similar ban on tobacco billboard advertising.  SB 463 bans billboards for medical marijuana, dispensaries and businesses that provide access to the drug and imposes minimum penalties of $5,000 per each day of violation. The bill now goes to the full Senate committee chamber for a vote.