Category Archives: Legislative Update

FCC Opens Rulemaking to Get Repack Funding for Radio

According to a report in Inside Radio, the upcoming spectrum repack could cost the radio industry millions of dollars in expenses. To address the issue, the FCC proposed a set of rules that would determine how the repack funds set aside by Congress to offset the costs will be spent.

It is estimated that approximately 500 full-power FMs will be disrupted by the repack, either by being forced to power down in order to accommodate engineers working on a television station’s antenna, or by moving to a backup facility, if available. In some cases, an FM could be permanently displaced from a TV tower according to engineers, although the FCC says the number is likely to be very small.

The proposed rules would provide up to 100% of funding for stations that must relocate because of a repack. The same offer would go to FMs that are permanently or temporarily required to modify their facilities because of the process. The Commission proposes to use what is described as a “graduated, prioritized system” to cover the costs that stations would face when purchasing or modifying auxiliary sites as radio confronts disruption from the upcoming TV repack.

The proposal suggests how much money an FM or FM translator gets would depend on how much disruption the station faces. The FCC has proposed stations off the air for between 24 hours and 10 days would receive up to 50% reimbursement of their eligible costs to construct new backup facilities or upgrade an existing one so at least 80% of the service area is covered. For stations that would be off the air for more than 30 days, the FCC proposed 100% of their costs be covered.

$2.3 million of Public Funding Used for Gubernatorial Primaries

According to a report in Gongwer, four gubernatorial candidates who qualify for public funding toward their gubernatorial primary have received $2.34 million so far as reported by the Department of State (DOS).

Under Michigan’s campaign finance law, candidates for governor can receive matching contributions from the state for every donation up to $100 to a total maximum match during the primary season of $990,000. DOS officials reported that the maximum will be less this year because of the number of candidates and the funds available. The two Democrats have received the most funding so far: Gretchen Whitmer at $929,395; Abdul El-Sayed received $908,153. GOP gubernatorial candidate Lt. Governor Brian Calley has received $264,958 from two requests totaling $335,336. His primary opponent Attorney General Bill Schuette received $233,479 from two requests totaling $422,659.

A Presentation on Legal Issues for Podcasters – Who Owns What?

David Oxenford - Color
David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP

On July 25, I spoke at Podcast Movement 2018 – a large conference of podcasters held in Philadelphia. My presentation, Legal Issues In Podcasting – What Broadcasters Need to Know, was part of the Broadcasters Meet Podcasters Track. The slides from my presentation are available here. In the presentation, I discussed copyright issues, including some of the music rights issues discussed in my articles here and here, making clear that broadcaster’s current music licenses from ASCAP, BMI, SESAC and even SoundExchange don’t provide them the rights to use music in podcasts. Instead, those rights need to be cleared directly with the holders of the copyrights in both the underlying musical compositions as well as in any sound recording of the song used in the podcast.

I also discussed how, when podcasters are delivering advertising messages, they need to make clear that the messages are sponsored. We have written about the FTC’s requirements that when someone is paid to promote a product online, they need to disclose that the promotion was sponsored. See our articles here and here. Also discussed, and covered in the slides, were issues about defamation and invasion of privacy (and how concerns like these can become more serious in a podcast than in a broadcast as a broadcast is ephemeral – once the broadcast is over, it is gone – but a podcast tends to be permanent, providing evidence of any content that may be of legal concern). I also touched on privacy and security issues. One topic not covered in the slides, but suggested to me by a podcaster at a reception earlier at the conference, was the question of who owns the podcast.

This is a topic that I have discussed before in various presentations about digital media issues for broadcasters (see, for example, the presentations linked to in my articles here and here). But it seems that it is likely to be one that comes up more and more as traditional media companies expand their digital offerings, and employ independent contractors to prepare the new podcast content, or use employees in ways that were not previously part of the scope of their employment. This may become a particular concern if a podcast takes off, and the content becomes valuable. As we wrote here, independent contractors normally own the rights to the content that they create, unless it is specifically assigned in a written agreement to the company that hired them. So if you are using contractors to create podcasts or any other content, make sure that you explicitly get the rights to that content.

Employees, on the other hand, traditionally create content for their employer – particularly where that content is part of the employee’s job description. But, where the content creation is not part of the employee’s job description, things could potentially become murky. Employers are always best advised to make clear with employees, just as they do with any contractor, who owns the content that the employee creates.

We will write more about podcasting legal issues in future posts. Podcast Movement was an exciting conference where there seemed to be much interest in the legal issues about which these creators should be thinking. There is no FCC that establishes a legal framework setting out the restrictions on the podcaster’s operations, so the law needs to be pieced together from general legal principals and those established by other agencies. More to come on these topics in future posts.

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.

Appeals Court Upholds FCC’s UHF Discount

A three-judge panel of the federal court of appeals in Washington dismissed a challenge to the FCC vote last fall to restore the UHF discount. As a result, the UHF discount remains in place while the FCC continues its review of the national cap. The court did not set a deadline for the FCC’s cap review. The National Association of Broadcasters was an intervenor in the litigation supporting the FCC.

In its decision, the Court did not reach the merits of the FCC’s reinstatement order, but instead dismissed the appeal because the public advocacy groups had not established “standing.” That is, they did not show, as required, that at least one of their members stood to be injured as a result of the FCC’s order. Therefore, the UHF discount will remain in effect until such time as the FCC decides to eliminate or alter it.

 

House Passes Bill to Raise Pirate Radio Fines

The House of Representatives has unanimously passed the “PIRATE” Act (H.R. 5709) – legislation introduced by Representatives Leonard Lance (R-NJ) and Paul Tonko (D-NY) to combat illegal radio operations.

Specifically, the bill would:

  • Increase fines for illegal pirate radio operation as much as $2 million for ignoring warnings to shut down a pirate station as a means for greater to deterrence and to ensure greater attention to the issue from federal law enforcement;
  • Require enforcement sweeps in radio markets with the highest concentration of illegal pirate operations;
  • Create liability for those who “knowingly” facilitate pirate operators, including property owners and businesses providing ‘physical goods or services’ to the unlicensed station; and
  • Expedite the process for shutting down an illegal station.

Court Rules to Uphold Straight-Ticket Voting Stays

A federal court struck down this week a 2015 Michigan law removing the straight-ticket voting option from the ballot. This means that Michigan voters will continue to have the option to select a party’s slate of candidates by making a single selection on their ballot.

U.S. District Judge Gershwin Drain ruled that Public Act 268 of 2015 would impose “disparate impact” on African-Americans, who use the straight-ticket option far more than other demographics, leading to “drastically longer lines” at the polls. The judge held that the law violates both the Equal Protection Clause of the U.S. Constitution and the U.S. Voting Rights Act.

Congress Considers 21-Day Requirement for FCC Proposals

The proposed FCC Transparency Act (H.R. 6422) would require the Commission to publish the texts of any proposed actions on its website at least 21-days ahead of a vote. Under the proposal, the chairman of the FCC would be allowed to make emergency exceptions to the 21 day rule if the publication of such a document is deemed confidential or classified. It would also allow carve outs if the document’s publication would impose an invasion of privacy or release sensitive data.

READI Act Introduced to Improve EAS

According to a report in RadioMagOnline.com, new legislation would require state emergency communications committees to update their emergency alert systems plan periodically.  The Reliable Emergency Alert Distribution Improvement (READI) Act was introduced by the Chairman of the Senate Committee on Commerce, Science & Transportation John Thune (R-SD).

The READI Act would:

  1. Eliminate the option to opt out of receiving certain federal alerts on mobile phones;
  2. Require active alerts issued by the president or FEMA to be repeated;
  3. Explore establishing a system to offer emergency alerts to streaming services like Netflix and Spotify;
  4. Encourage SECCs to review and update their State Emergency Alert System Plans periodically;
  5. Compel FEMA to create best practices for issuing alerts, avoiding false alerts and retracting false alerts, as well as for alert origination training and plans for officials to contact each other and federal officials during emergencies; and
  6. Establish a reporting system for false alerts, so the FCC can track when they occur and examine their causes.

Elections Bureau Recommends Approval of Minimum Wage, Paid Sick Time Proposals

The Department of State Bureau of Elections concluded that both the One Fair Wage proposal to increase the minimum wage and the MI Time to Care proposal to require employers to provide paid sick time had collected enough signatures to be passed to the Legislature.

The bureau rejected a variety of challenges to the minimum wage petitions, though noting that some of the challenges are still pending before the Court of Appeals.

The reports showed One Fair Wage had collected 283,544 valid signatures and MI Time to Care had collected 271,088. Each needed 252,523 valid signatures.

Moving FCC EEO Enforcement from the Media to the Enforcement Bureau – What Does It Mean?

David Oxenford - Color
David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP

On July 24, The FCC adopted an order moving broadcast EEO enforcement from the FCC’s Media Bureau to its Enforcement Bureau. The change will be effective later, after certain procedural approvals are obtained and after notice is published in the Federal Register. As EEO enforcement is primarily aimed at broadcasters and cable companies, and has been part of the Media Bureau responsibilities since the Bureau existed, why was this change made and what does it mean?

The FCC makes clear in its order that the reason for the move is that the Enforcement Bureau is for better enforcement of the EEO rules. Specifically, the FCC said this about the transfer of authority from the Media Bureau to the Enforcement Bureau:

“The Enforcement Bureau’s staff has extensive experience conducting investigations and pursuing enforcement in a wide range of areas. They therefore are well positioned to provide assistance and guidance with EEO review, audit, and enforcement work. Further, the Enforcement Bureau has expertise in, and maintains tools and databases to aid with, the tracking of statutory deadlines, including those relevant to EEO audits and investigations, that the Media Bureau does not.”

Thus, broadcasters need to be ready for more rigorous enforcement of the EEO rules.

As is evident from recent FCC decisions fining broadcasters for EEO rule violations, while EEO compliance is somewhat simpler since last year’s decision allowing broadcasters to rely solely on online recruitment sources for their wide dissemination of information about job openings, the rules are still being enforced. While EEO enforcement can arise through complaints or FCC investigations, it is much more common for it to come up in three ways: (1) through EEO audits, (2) in connection with license renewal (which will begin its three-year cycle again next year), and, (3) to a lesser extent, through EEO model programs filed with applications for new stations and in connection with assignments and transfers. As two of those three sources of EEO enforcement are tied to Media Bureau applications, there will have to be cross-Bureau cooperation now in assessing the applications where these issues arise.

We will see how this all plays out in the future. But, for now, watch for the notices on the effective date of this change, and be sure to make sure that your EEO program complies with the FCC’s requirements as there is now a new cop on the beat.

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.