Category Archives: Legislative Update

FCC Outlines TV Translator Displacement Process

According to a post in CommLawCenter on the issue of displacement of TV Translators during the post-auction repacking process, the FCC has outlined how the displacement application process will work. Included among these efforts is the FCC’s creation of a new category of translator for full-power TV stations to fill-in loss areas, a special filing window for LPTV, TV Translator and analog-to-digital replacement translator stations seeking displacement channels, and rules permitting LPTV and TV Translator stations to channel share, both among themselves and with full-power stations.

For more information, please click here.

FCC Officially Starts Proceedings to Abolish Main Studio Rule and Review All Other Broadcast Rules

David Oxenford - Color
David Oxenford

By: David Oxenford, Wilkinson Barker Knauer, LLP
www.broadcastlawblog.com

As expected, at its monthly open meeting May 18, the FCC started two proceedings of particular importance to broadcasters. The first looks at the abolition of the main studio rules. The second asks for comments on all of the other rules affecting broadcasters and other media companies to see which are ripe for appeal. For the most part, the proposals as adopted mirrored the draft orders released for public review back at the end of April, which we summarized here.

The proposal to review all media rules – referred to as the Modernization of Media Regulation – will look at all media-related FCC rules with the idea of eliminating or modifying those that no longer make sense in the modern media environment. Only the multiple ownership rules, already under review in separate proceedings (see our posts here, here and here) are excluded from this review. Comment dates for proposals to change specific rules are due by July 5, with replies due August 4. The two Republican commissioners supported this proposal. Commissioner Clyburn, the FCC’s lone Democrat, dissented from the adoption of the Public Notice launching the inquiry, not necessarily because she is opposed to review of existing rules, but because she felt that the notice presupposes that the public interest can only be achieved by abolishing rules that limit industry operations. She suggests that many FCC rules remain important – including EEO rules, Biennial Ownership Reports, and certain rules governing access to cable programming. The Republican commissioners, on the other hand, point to the efficiencies that can be gained by abolishing rules that no longer make sense, or which require filings that serve no particular purpose (see Commissioner O’Rielly’s statement here). No doubt, these differing perceptions of the rules will be reflected in comments filed by various parties in this proceeding.

The proposal to abolish the main studio rule very closely tracked the draft order that we summarized back in April, here, asking a number of questions about the impact that the abolition would have on station’s ability to serve their communities. A few additional questions were added to the final order, the most substantive of which dealt with the requirement that would be retained that stations maintain local telephone numbers that local residents can call to address issues about station operations or to respond to community needs and emergencies that may arise. Included among the new questions was the question of whether the phone line needed to be manned during all business hours, or perhaps even during all hours of operation of the station. Even if a live person is not required to answer the phone, the FCC asked whether there should be some requirement that all calls be answered within a given time frame, principally so that no emergency go unreported. In effect, if adopted, these would be new requirements that a broadcaster giving up its main studio would have to live with.

The apocryphal story of the station in Minot, North Dakota where no one was home when a train carrying dangerous chemicals spilled was brought up in one Commissioner’s comments, suggesting that a specific rule on response time was needed – even though the owners of that station have repeatedly said that the story was not true and the station was covering the emergency even though local authorities, working with some outdated contact list, didn’t know where to call. Regardless of the truth of that story, the issue remains the one that appears to be the most controversial on this issue – how will a station with no physical local presence maintain ties with its community. Broadcasters and other interested parties can file comments thorough a date to be announced 30 days after the Notice of Proposed Rulemaking is published in the Federal Register, with reply comments due 15 days later.

These two proceedings again demonstrate that Chairman Pai is serious about his deregulatory agenda for the FCC. Interested parties should comment on these proceedings and stay involved so that their viewpoints can be reflected in the FCC’s ultimate decisions – and in connection with the next deregulatory proposals that may arise from the Modernization of Media Regulation proceeding.

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.

Congressional Support to Maintain Tax Deductibility for Advertising

Over 100 members of Congress have voiced their opposition to changes in the tax deductibility treatment of advertising as expenses. The legislators sent a letter to House Speaker Paul Ryan (R-WI) and Minority Leader Nancy Pelosi (D-CA), with Reps. Kevin Yoder (R-KS) and Eliot Engel (D-NY) as leading signatories, asking that they “maintain the current tax treatment of advertising as a fully and immediately deductible business expense.”

The letter asserts that any “measure that would tax advertising – and therefore would make it more expensive – cannot be justified as a matter of tax or economic policy…. Advertising has been accorded the same treatment as all other regularly occurring business expenses, such as employee wages, rent, utilities and office supplies, throughout the 114-year life of the tax code.”

NAB President/CEO Gordon Smith said, “The National Association of Broadcasters thanks Representatives Yoder and Engel and the bipartisan group of 124 House members who have signaled strong opposition to a job-killing tax on advertising. Across America, advertising is an engine for economic growth that creates and supports millions of high-paying jobs. Advertising on local radio and TV stations and broadcast networks supports popular entertainment and provides listeners and viewers with trusted sources of news. In order to sustain our nation’s economic recovery and growth, it is imperative that tax laws continue to allow advertising expenses to be fully and immediately deductible.”

“We are grateful that so many Representatives in Congress have joined in this letter to acknowledge the important role advertising performs in our marketplace today,” said The Advertising Coalition Executive Director Jim Davidson. “Advertising does so much more than sell goods and services. It keeps our radio stations, newspapers, websites, television and cable broadcasts running and provides open access to information.”

Report Recommends FOIA Review

The State of Michigan Law Revision Commission is considering a report that recommends Legislative review of the Freedom of Information Act (FOIA). The report does not include any recommended changes to the law, but, suggests the Legislature consider new definitions in the act based on recent court rulings. Among the language reviewed in the report, the law does not include as public bodies, committees formed by local governments, nor does it include elected local officials. The report notes that the law does not include electronic documents as “writing.” The report recommends the Legislature consider other forms of storage, such as flash drives, as legitimate ways to return records.

The law also appears to use “granted” and “fulfilled” interchangeably, though the Court of Appeals ruled last year that they are not synonymous and that an agency must actually produce the requested records in the time allowed, not merely approve the FOIA request. If an agency does not comply and a court finds there was bad faith, the law provides for fines between $2,500 and $7,500.  However, that does not indicate what an “occurrence” means and how that determines how many times a fine can be imposed. The board also declined to issue an opinion on whether the Legislature should create an entity to monitor access to records, but says the Legislature should review the issue.

Annual EEO Public File Report Deadline for Stations in Michigan

June 1, 2017 is the deadline for broadcast stations licensed to communities in Arizona, the District of Columbia, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, and Wyoming to place their Annual EEO Public File Report in their public inspection file and post the report on their station website.

In addition, a certain group of these stations, as detailed below, must electronically file their EEO Mid-term Report on FCC Form 397 by June 1, 2017.

For more information, please read the advisory from Pillsbury Winthrop Shaw Pittman LLP here. (PDF download via MAB)

5 Questions on the Meaning of the FCC’s Recent Ruling on Online Recruiting – How Does it Change a Broadcaster’s EEO Obligations?

David Oxenford - Color
David Oxenford

By: David Oxenford, Wilkinson Barker Knauer, LLP
www.broadcastlawblog.com

The FCC recently issued a declaratory ruling (which we summarized here) addressing the requirement that broadcasters widely disseminate information about all of their job openings in such a way as to reach all of the groups within their communities. The recent FCC decision stated that a broadcaster can now rely solely on online sources to meet the wide dissemination obligation. In the past, the sole reliance on online sources would have brought a fine from the FCC, so this is a big change for broadcasters – one which recognizes the realities in the world today as to where people actually go to find information about job openings.

This decision does not end all other EEO obligations imposed by the FCC rules. The Indiana Broadcasters Association recently asked me 5 questions about that new decision to highlight some of the other obligations that still arise under the FCC’s EEO rules. Here is that discussion of the continuing obligations under the EEO rules:

1. The FCC recently issued a Declaratory Ruling about how Job Openings should be posted. What’s changing?

The FCC is now permitting broadcasters (and cable companies) to meet their obligation to widely disseminate information about their job openings solely through the use of online recruitment sources. In the past, broadcasters were fined if they did not, in addition to online sources, use recruitment sources such as community groups, employment agencies, educational institutions and newspapers to solicit candidates for virtually all open positions at any station. Under the FCC’s new ruling, a broadcaster can use online recruitment sources as their sole means of meeting their obligation to widely disseminate information about job openings, as long as the broadcaster reasonably believes that the online source or sources that it uses are sufficient to reach members of the diverse groups represented in its community.

2. Are there still Equal Employment Opportunity requirements in place from the FCC?

This ruling does not abolish all EEO requirements. In addition to a general obligation to not discriminate in hiring and other employment practices, the FCC rules set out a three-prong EEO outreach program for broadcasters. The ruling addresses only the first prong – the obligation to widely disseminate information about virtually all job openings at a station. The other two prongs of the EEO program are undisturbed by the FCC’s recent ruling.

The second prong of the FCC’s EEO rules requires that broadcasters notify a community group about job openings at the station if the community group specifically asks to be notified of such openings. Stations need to continue to provide such notifications and to publicize the fact that community groups can ask to be included on the list of groups getting notifications.

The third prong of the EEO program for broadcasters is the obligation to do “non-vacancy specific outreach” – the menu options of efforts stations need to undertake to educate their community about the jobs available at broadcast stations and the training necessary to fill those jobs, as well as the training of employees and others to assume new responsibilities at broadcast stations. These menu options include activities such as internship and mentorship programs, speaking before community groups about job openings, providing scholarships to those interested in broadcasting, working with educational institutions to educate their students about broadcast jobs, training programs to prepare existing employees to assume new responsibilities and similar programs.

Broadcasters also need to continue to self-assess their program. If the sources that they are using for recruiting do not bring employment candidates from diverse sources, they need to consider changing the mix of recruitment tools that they are using. This obligation to review the success of their EEO outreach is not changed by the recent ruling.

3. Should a station still participate in State Association-sponsored Career Fairs, as a way to bolster EEO outreach?

Yes. As set forth in response to the last question, stations still need to do non-vacancy specific outreach efforts to inform members of their communities about broadcast jobs. One of the menu options available to meet that obligation is the attendance at job fairs by management-level employees who are involved in the hiring process. If station employees attend 4 job fairs in a two year period, they get one credit toward meeting their obligations (smaller stations need 2 credits in each two-year period measured from their license renewal filing date to meet their non-vacancy specific outreach requirements, larger stations in larger markets need 4 credits in a two-year period).

4. Any practices that can be curtailed because of the new ruling?

The new ruling allows a broadcaster to meet its wide dissemination obligation for all of its job openings if they use a single online recruiting source to publicize each opening, if the broadcaster reasonably believes that the online source that it is using will reach members of all groups within its community with information about its openings. That means that the broadcaster need no longer publish ads about job openings in the local newspaper and need no longer reach out to community groups to publicize job openings (except for those community groups that specifically asked to be notified about openings under “Prong 2” of the FCC’s EEO outreach obligations). However, the FCC suggested that it would be a good thing if broadcasters continued to reach out to community groups with information about job openings and to broadcast information about those openings on their own stations – but those outreach efforts are no longer mandatory.

5. Do you see any additional EEO-related changes on the horizon?

The FCC is about to commence a wide-ranging review of all of its rules applicable to broadcast stations looking to determine which ones are no longer necessary. Some have suggested that the remaining FCC EEO outreach obligations are no longer necessary. The FCC, under its statutory obligation to assess the character of all broadcast applicants and licensees, can always act against a station owner if the EEOC or state employment agencies find that the station has actually discriminated in its hiring or other employment practices.

Whether the FCC in fact goes further to deregulate EEO remains to be seen, but several commentators have suggested that the FCC divest itself of responsibilities where there is another government agency with more expertise. Thus, some think that, as there is an EEOC to deal with employment matters and other government agencies who deal with labor and other occupational issues, the FCC ought to reduce its duplicative efforts in this area.

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.

Body Cameras Exempted From FOIA in House Bill

State Representative Jim Runestad (R-44) re-introduced legislation (HB 4427) to exempt body camera footage from the Freedom of Information Act (FOIA).  The MAB has very serious concerns about this legislation which bears on transparency and the public’s right to know.

Specifically:

  • HB 4427 places body‐worn camera footage, in connection with criminal or internal investigation, outside the purview of FOIA by stating that the footage is not a public record (Section 5). This classification places body camera footage outside any FOIA provisions and exemptions.
  • HB 4427 creates a new category of ‘private places’ as exemptible under the FOIA. The FOIA already has an existing privacy exemption, which is meant to confirm with the Michigan common law on the invasion of privacy. This privacy exemption protects persons under certain circumstances – it does not extend such privacy protection to places. Under the Michigan jurisprudence, privacy is a uniquely personal concept.
  • Exempting such recordings from the FOIA removes any chance of impartial, neutral and judicial review of exemptions as provided by the FOIA.
  • There are unanswered questions about the manner in which the law enforcement will collect, retain, use and disclose these recordings. Each of those issues bears on the public’s right to know.

The MAB was opposed to this legislation when it was last introduced and will oppose it again, taking our concerns to the Senate.  See the full bill here.

Well Liked State Representative Dies From Apparent Suicide

Rep. John Kivela (D-Marquette)

The MAB is sad to report the passing of John Kivela, a Democratic state representative from Marquette.  News sources report that Kivela was found dead from an apparent suicide Tuesday (5/9) at a Lansing home he owned.

Speaker of the House Tom Leonard (R-DeWitt) told WZZM-TV (Grand Rapids) “I truly have no words about the loss of our dear friend John Kivela .As we go forward over the next couple of days, please keep his wife Sandy and his children in your prayers.”

Kivela’s is the third untimely death of House members in the past year. On June 25, 2016, state Rep. Julie Plawecki (D-Dearborn Heights), died of an apparent heart attack while hiking with her daughters in Oregon. And Rep. Peter Pettalia (R-Presque Isle), died Sept. 12, 2016, when a truck pulled out in front of his motorcycle.

MSU Files Lawsuit to Ban Release of Police Records on Assault

Michigan State University has filed a lawsuit to keep news organizations from seeing police and arrest reports that could be related to a suspected sexual assault involving members of the Spartans football team. MSU says complying with a Freedom of Information Act (FOIA) request from the ESPN sports network would interfere with a criminal investigation.

The lawsuit also comes after the Michigan House of Representatives unanimously passed HB 4077 – legislation that would prohibit public entities, such as MSU, from suing individuals and organizations that submit FOIA requests.

Reminder: FCC Political Rules Apply for Off-Year Congressional and State/Local Elections

According to David Oxenford’s Broadcast Law Blog, FCC political rules apply to off-year elections for vacant congressional, state and local offices. Broadcast stations serving districts with special federal/congressional elections need to offer candidates reasonable access, lowest unit rates and equal opportunities. In states where there are no special congressional elections, there are other political races taking place in this off-year and most of the political rules apply to these state and local electoral races as well.

Candidates for state and local elections are entitled to virtually all of the political broadcasting rights of Federal candidates – with one exception, the right of reasonable access, which is reserved solely for Federal candidates. That means that only Federal candidates have the right to demand access to all classes and dayparts of advertising time that a broadcast station has to sell. For state and local candidates, on the other hand, stations don’t need to sell the candidates any advertising time at all. But, if they do, the other political rules apply.