Category Archives: Legislative Update

Senate Passes Measure to Require Disclosure of Drug Prices in TV Ads

According to a report from The Hill, the Senate passed a measure to provide funding to require drug advertisements to disclose the price of the drug. The passage came as part of the massive health-care spending bill that the Senate passed last week, which included the drug price amendment from Senators Chuck Grassley (R-IA) and Dick Durbin (D-IL).

“More information gives transparency to the transaction, and will help give American consumers a break and start to slow down the skyrocketing cost of prescription drugs,” Durbin said in a statement.  The Senate’s health spending bill still needs to be reconciled with the House’s before it goes to the president’s desk.

The pharmaceutical industry opposes requiring prices to be disclosed in TV ads. The Pharmaceutical Research and Manufacturers of America, the main drug industry lobbying group, warned the move would “confuse patients” and could violate the First Amendment.

Appeal Filed on Minimum Wage Ballot Proposal

Last week, the Court of Appeals ruled in favor of placing the petition to raise the state’s minimum wage on the November ballot.

In a 2-1 decision, the Appeals Court held that the challenges brought by Michigan Opportunity, the group opposing the proposal, did not raise sufficient grounds to block the proposal from the ballot. However, the opponents of the initiative immediately appealed the decision to the Supreme Court asking to hear their arguments that the proposals should not be certified.

The opposition contends the proposal failed to republish the existing minimum wage law and had insufficient signatures for ballot access. The Department of State must certify the completed ballot by September 7. MAB is monitoring.

September Regulatory Dates for Broadcasters

David Oxenford - Color
David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP

Annual Regulatory Fees; Nationwide EAS Test; Comment Dates on FM Translator Interference, Audio Competition, Children’s Television Requirements, and Reimbursement for LPTV and FM Repacking Costs; and More

While September is one of those months with neither EEO reports nor Quarterly Issues Programs or Children’s Television Reports, that does not mean that there are no regulatory matters of importance to broadcasters. Quite the contrary – as there are many deadlines to which broadcasters should be paying attention. The one regulatory obligation that in recent years has come to regularly fall in September is the requirement for commercial broadcasters to pay their regulatory fees – the fees that they pay to the U.S. Treasury to reimburse the government for the costs of the FCC’s operations. We don’t know the specific window for filing those fees yet, nor do we know the exact amount of the fees. But we do know that the FCC will require that the fees be paid before the October 1 start of the next fiscal year, so be on the alert for the announcement of the filing deadline which should be released any day now.

September 20 brings the next Nationwide Test of the EAS system, and the obligations to submit information about that test to the FCC. As we have written before (here and here), the first of those forms, ETRS Form One, providing basic information about each station’s EAS status was due August 27. Form Two is due the day of the test – reporting as to whether or not the alert was received and transmitted. More detailed information about a station’s participation in the test is due by November 5 with the filing of ETRS Form Three. Also on the EAS front, comments are due by September 10 on the FCC’s proposal to require stations to report on any false or inaccurate EAS reports originated from their stations. See our articles here and here.

September also brings comment deadlines in numerous other important FCC proceedings. September 5 is the date for reply comments on the FCC’s Notice of Proposed Rulemaking on how to simplify the resolution of complaints about interference from new FM translators (see our summaries here and here). One of the most debated issues in the initial comments is whether to ignore complaints from full-power FM licensees and other existing FM broadcasters if those complaints originate outside of the complaining station’s 54 dBu contour. Many FM licensees, as well as the licensees of LPFM stations who are also protected from interference from new translators, contend that a substantial portion of their listening audience resides outside that contour and should not be left unprotected from new translators who interfere with such listening.

Reply comments are due September 10 on the FCC’s Notice of Inquiry as to whether to create a new class of C4 FM stations, and to make changes to allow for more short-spaced FM stations using Section 73.215. See our articles here and here on that proceeding.

Congress has also requested that the FCC provide it with a report on the state of competition in the Audio Marketplace. As we wrote here and here, we expect that, while this report is directed to Congress so that it can use this information in assessing statutory changes, as the report will be prepared at the same time as the FCC is working on the Notice of Proposed Rulemaking in its next Quadrennial Review which will likely review the radio ownership rules, the facts gathered in preparing the report to Congress are likely to be important in the Quadrennial review. Comments on this report to Congress are due September 24.

The potential for changes in the Children’s Television rules, particularly the rules mandating three hours of weekly educational and informational programming directed to children on each programming stream broadcast by a TV station, are being reviewed by the FCC. Comments on the FCC’s Notice of Proposed Rulemaking looking at potential changes in these rules (about which we wrote here) are also due September 24.

As the Incentive Auction repacking marches on (with the testing period for repacked stations in Phase 1 of the repacking starting in September), the FCC is also considering the reimbursement of expenses incurred by LPTV stations, TV translators and FM broadcasters whose operations are affected by the repacking. Comments are due September 26 on the FCC’s proposals on eligibility and administration of the finds to reimburse these stations. See our article here for more details on these proposals.

Commercial radio stations that have been paying the newest Performing Rights Organization, GMR, under an interim license while litigation continues between GMR and the Radio Music License Committee (RMLC) to determine if GMR should be subject to any sort of antitrust regulation, have an interim license that expires at the end of September (see our article here). As the litigation is unlikely to be resolved in the next few months, GMR is reportedly offering yet another extension of its interim license through March 31, 2019. Look out for notice of that extension directly from GMR but, if you have not received it, you may want to reach out to them before the end of the month.

And watch for the agenda of the FCC meeting on September 26. That agenda should be released next week, and we will see what broadcast items may be on it just in time for the Radio Show at the end of the month. Plenty of issues to keep broadcasters busy. As always, check with your legal advisor to make sure that there are no other legal issues that may affect your station’s operations.

More September Regulatory Dates – Effective Date of New Application Fees, Filing Deadline for TV Shared Services Agreements, Lowest Unit Rate For September Election and Reminder on Repacking Requirements

And, here are a few more issues to consider in September. Plus, the FCC on August 27, reminded repacked TV stations of all of the requirements for TV stations involved in the repacking of the TV band following the Incentive Auction which, as we noted in our post yesterday, formally begins this month.

Another date is the effective date for a general increase in FCC application fees – those fees that commercial broadcasters pay every time they file an application for a construction permit, approval of a purchase or sale of a station, a license renewal, an STA or many other requests for FCC action. As we wrote here, the FCC recently announced that the fees were going up to reflect inflation. Last week, the FCC issued a Public Notice announcing that those new fees are effective on September 4. So commercial stations filing applications on September 4 or afterward need to remember to pay the new fees, or risk having their applications returned.

Another obvious date is the first day of the Lowest Unit Rate window for the November election. 45 days before a primary or 60 days before a general election, political candidates (whether Federal, state or local – see our post here) can only be charged the lowest unit rate that any commercial advertiser is paying for advertising spots of the same class that are running during the same time period. See our articles here and here for more information about the lowest unit charge window which, for the November election, starts on September 7. For more information about political broadcasting rules generally, see our Political Broadcasting Guide.

A somewhat less obvious date is the deadline for filing TV shared services agreements. In its 2017 order reconsidering the FCC’s decision in its last Quadrennial Review of the ownership rules, the FCC decided to retain the previously announced requirement that TV stations file shared services agreements with the FCC. We wrote about that obligation here, addressing the broad definition that the FCC gave to a shared services agreement. The FCC gave stations 180 days to comply for any agreements that were already in effect at the time the new rule became effective (new agreements being required to be filed “in a timely fashion” once entered into). Time flies, and that 180-day deadline is now upon us, on September 19.

Finally, the FCC on Monday released a Public Notice setting out all the deadlines that must be met by TV stations that are being repacked following the Incentive Auction. With September 14 starting the testing period for TV stations assigned to move to their new channels in Phase 1 of the repacking, this notice is very timely. The notice talks about the deadlines in the transition and the various notices and public education requirements that stations early in the repacking schedule should be contemplating right now. The Public Notice also notes that any Phase 1 station that is unlikely to meet the required November 30 deadline for completion of their transition to their new channel must file an extension by September 4.

So add these to the list of September dates that we gave you yesterday, as well as any other specific deadline that may apply to your own station, and you can see that the academic year will begin with a bang. Get ready for a busy month ahead!

 

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.

Senate Passes Resolution in Support of the First Amendment

Last week, the U.S. Senate passed a resolution (S. Res. 607) by unanimous consent affirming that the media “is not the enemy of the people.”

The resolution, cosponsored by Democratic Senators Brian Schatz of Hawaii and Minority Leader Charles E. Schumer of New York, declares the Senate’s support for a free press and the First Amendment protections afforded to journalists.

The resolution text was released the same day 350 newspapers ran editorials designed to push back on President Trump’s criticisms of the media.

Gubernatorial Campaigns Differ on Details for Debates

Gretchen Whitmer (left)/Bill Schuette (right)

Republican gubernatorial nominee Bill Schuette announced earlier this week that he accepted Democratic nominee Gretchen Whitmer’s invitation to three televised debates but the two campaigns have yet to agree on terms and locations

A statement released by the Schuette campaign proposed debates to take place at WPBT-TV in Traverse City on October 1 or 15, WOOD-TV in Grand Rapids on October 9 and WDIV-TV in Detroit on October 24. Whitmer’s campaign is looking at Flint as a potential debate setting given the water crisis experienced by city’s residents. The MAB will provide updates as debate dates and locations are finalized.

Deadline Set for Minimum Wage Proposal Ballot Language

The Board of State Canvassers set August 27 as a deadline for suggested ballot proposal language for the minimum wage increase proposal and the proposal to amend the voting rights. The Department of State must certify the November ballot by 5 p.m. on September 7.

In announcing the deadline to submit proposed language for the 100 words that will go on the ballot to describe the proposals, the department said, “In view of imminent deadlines for certification of the November 6 ballot, the director of elections is soliciting public comments regarding these proposals at this time for potential, conditional consideration by the Board of State Canvassers.”

More Action Appears to be Coming on AM Revitalization

David Oxenford - Color
David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP

Looking at Revising Interference Protection for Class A Clear Channel Stations

FCC Chairman Ajit Pai, in a speech last week at the Michigan Association of Broadcasters Summer Convention (the text of the speech is available here), announced that he has circulated to the other Commissioners for review and approval a Notice of Proposed Rulemaking looking to make changes to AM interference standards. Specifically, he said that the NPRM would look at Class A AM interference standards. I was in the audience for the Chairman’s remarks, and audience reaction was muted – perhaps because so few people regularly use the term “Class A AM” when referring to what many call the “clear channel” stations – those big 50 kW AM stations that can often be heard halfway across the country at night because of their “skywave” service bouncing off the atmosphere to be received hundreds and sometimes thousands of miles from where the signal originates.

What to do about Class A AM stations was an issue teed up by the FCC in the AM Revitalization proceeding initiated several years ago (see our post here summarizing the issued raised by the FCC back in 2013). While these clear channel stations are enjoyed by listeners far from their own city of license (often bringing sports broadcasts to distant fans, or programs like the Grand Ole Opry that have become national institutions), the huge service areas of these stations does come at a cost to local service – as many lower powered AM stations operating on the same channel as these Class A stations have to either drastically reduce their power or cease operations all together during nighttime hours. While some AM licensees have received FM translators to fill in those service gaps, those translators do not bring listeners back to the AM band itself. So, in the Revitalization proceeding, the FCC asked for ideas as to what it should do with these stations – e.g. if it should advance proposals to reduce protection to the clear channel stations in order to allow more local AMs to increase their nighttime power. It appears that the NPRM announced by the Chairman on Tuesday will crystalize the comments received in response to the 2013 Notice into more specific proposals for action.

In his comments in Michigan, the Chairman said “our rules should reflect the reality of the current noise floor and appropriately balance the interests of Americans who want to listen to smaller local stations in their communities with those who enjoy listening to Class A stations.” Exactly how the FCC proposes to achieve that balance may not be clear until we see the release of the new NPRM. This is a controversial issue, as many owners of clear channel AMs argue that these stations are what keep listeners tuned to the AM dial and allowing more interference could weaken their ability to provide the attractive programming that many of them do. Of course, owners of the weaker AM stations want to serve their communities during all hours, not just during daylight hours. This further NPRM will no doubt be carefully watched, and we will see the arguments raised on both sides in the coming months.

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.

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.