Category Archives: Legislative Update

You’re Invited to Meet Your Local Lawmakers at the #MABshow

Michigan broadcasters are invited to attend the MAB Annual Legislative Reception on Wednesday, March 6 from 5:00 to 6:30 p.m. at the Lansing Center during the 2019 Great Lakes Media Show.

With the high turnover after the recent election, MAB legislative reception is a wonderful opportunity to meet your legislators and connect with other Michigan broadcasters to discuss issues that affect your station(s)!

As lawmakers work on creating public policy, it is important they hear from you, their constituents, about how their decisions influence Michigan’s broadcast industry.

We need your presence and your voice to ensure that state laws and regulations do not burden your station’s priorities! We encourage you to attend and to get further acquainted with the key policy-makers who support the Michigan broadcast industry!

The MAB Legislative Reception is free of charge to all members and will include a Walk-Around Dinner in the River Concourse of the Lansing Center. The Legislative Reception will precede the Broadcast Excellence Awards (BEA) ceremony.

If you cannot personally attend, please consider sending a representative from your station.

Click here to register by February 15. Questions? Contact Jackie Timm at [email protected]

FCC Suspends Operations Due to Government Shutdown

Due to the government shutdown, the FCC suspended operations on Thursday, January 3.  This means that the agency’s electronic filling and database will be unavailable until the government is running again. However, a few functions will remain open for business including: the Consolidated Database System (CDBS), the Electronic Document Management System (EDOCS), the Disaster Information Reporting System (DIRS) and the Public Safety Support Center.

According to InsideRadio, the shutdown also means the extension of several normal filing deadlines for any documents that were to be turned in during the period the FCC is closed. Those submissions will now be due on the second day of normal operations. In order to avoid any confusion that could be created by its midday shutdown, the agency will consider January 3 as the first day the FCC is closed.

Read the latest advisory on the FCC shutdown HERE.

 

Bill Extending Legislature’s Power to Litigate Sent to Gov. Snyder’s Desk

HB 6553 – a bill that expands Legislature’s ability to intervene in any lawsuit on any level of state court system at any time passed the State Legislature and is awaiting Governor’s signature. The bill was approved following changes which would first require a court action challenging the constitutionality or the validity of a statute or legislative action before the legislature could intervene. This bill gives the Legislature an ability to litigate in cases of state interest as an entity independent from the Attorney General’s office.

 

Legislature Approves Bill Mandating Contact Info on FOIA Requests

Legislation requiring complete contract information from those submitting a Freedom of Information Act (FOIA) request passed the State Legislature this week in response to requests sent to nearly every Michigan clerk for 2016 ballots signed only as “Emily.” It became clear after the requests were submitted that it came from the nonprofit arm of the national Democratic Party’s largest super PAC, Priorities USA. The requests came in the midst of the 2018 election season.

HB 6582 requires a first and last name, address and contact information from a person or agent of an organization when filing a FOIA request. It would also implement a 45-day timeline for the requestor to respond or appeal the cost estimate provided by the entity receiving the request. If there was no response within 45 days, it would be treated as abandoned. B top

Senate Overturns Donor Disclosure Rule

Last week, the U.S. Senate passed legislation regarding a recent Treasury Department decision which limits donor disclosure requirements for nonprofit organizations.

This past summer, the Treasury Department altered a rule which required all names and address of donors of $5,000 or more to be made available on certain tax forms. The newly passed resolution seeks to reverse this decision.

This move comes as similar legislation currently sits before the Michigan House, SB 1176, which would create a “Personal Privacy Protection Act,” that further protects the identities of members of non-profits and other donor information currently already protected from public disclosure.

Podcaster Sued for Copyright Infringement for Using Music without Permission – Remember ASCAP, BMI and SESAC Licenses Don’t Cover All the Rights Needed for Podcasting

David Oxenford - Color
David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP,

It was news recently when a company that promotes poker was sued by one of the major record labels and publishing companies for the use of music in podcasts without permission. As we have written before (see, for instance, our articles here and here), the use of music in podcasts requires a license from the copyright holder of both the musical composition and the recorded performance of the music (usually, for popular music, a publishing company and a record label). In this case, one of the first we’ve seen against a podcaster for infringement of a copyright holder’s music rights (though we have heard of other situations where cease and desist letters were sent to podcasters, or where demand letters from copyright holders resulted in negotiated settlements), Universal Music alleges that the podcast company used its music and refused to negotiate a license despite repeated attempts by the music company to get the podcaster to do so. Thus, the lawsuit was filed.

As we have pointed out before, a broadcaster or other media company that has performance licenses from ASCAP, BMI, SESAC and even GMR does not get the right to podcast music – nor do the SoundExchange royalty payments cover podcasts. These organizations all collect for the public performance of music. While podcasts may require a performance license (see our article here about how Alexa and other smart speakers are making the need for such licenses more apparent as more and more podcast listening is occurring through streaming rather than downloads), they also require rights to reproduction and distribution of the copyrighted songs and the right to make derivative works – all rights given to copyright owners under the Copyright Act. These rights are not covered by the public performance licenses which only give the rights to make performances to the public. What is the difference between these rights?

The public performance right is simply that – the right to perform a copyrighted work to the public (those beyond your circle of family and friends). Making a copy of a copyrighted work is a different right, as is the distribution of that recording. Both are triggered when the podcast is downloaded onto a phone or other digital device – the manner in which podcasts were initially made available to the public. As we have written before (see, for instance, here and here), by convention (and now by the provisions of the Music Modernization Act), making available music for on-demand streaming (where a listener can choose a particular song, or a set of songs that will play in the same order all the time) has come to be considered to involve the rights of reproduction and distribution (the “mechanical royalties” covered by the MMA – see our articles here and here on the MMA).

The right to make a derivative work is another right of the copyright holder (see my article here on derivative works). A copyright owner must give his or her permission before their work is modified in some way. While that can involve the changing of lyrics to a song, it can also involve associating that song in some permanent way with other content. In the video world, that is referred to as a synch right – where the audio is “synched” to the video creating a single audiovisual work. Synch rights are not specifically defined by the Copyright Act. They have traditionally referred to audiovisual productions, but the same concept is at play in the creation of a podcast, where the music is synched to other audio content to create the podcast. In the Universal Music complaint against the podcaster, Universal complains that the podcaster violated not just the public performance rights of the copyright holders, but also their rights to authorize the reproduction, distribution, and the derivative works made from their copyrighted material.

This is all a long way of saying that podcasters need to get permission for the use of music in their productions. Many podcasters have commissioned original works where they license from local artists the recordings of music written and performed by those artists. Some online services have recently begun to develop, licensing music for podcasts for set fees. But, thus far, most of that music is not major label releases, but instead independent music. Right now, for major label releases, you need to get permission directly from the copyright holders to use their music. The bottom line – don’t use music in podcasts without getting permission.

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.

Bills Stripping Campaign Oversight from SOS Clear Senate

The State Senate has reported a package of bills that strips campaign finance oversight from the Secretary of State and puts it into  the hands of an independent bipartisan commission. This move would reduce the power and responsibilities of the Secretary-elect Jocelyn Benson.

Senate Bills 1248-1252 were reported along the party-line votes and create the Fair Political Practices Commission within the Department of State. The proposed commission would consist of three members recommended by the governor from the governor’s political party and three members of the opposing political party. No more than three members of one political party would be allowed to serve and members would be able to serve two four-year terms and would be eligible to be re-appointed after two terms after a period of four years.

Banned from serving on the commission would be those holding elected office, staff or paid employees of a candidate for elected office, lobbyists and those who are not registered Michigan voters. Commission members would also be banned from making political contributions to anyone running for office or solicit contributions from anyone.

Playing Music in Bars and Restaurants – Cautions When Allowing Broadcast Stations to Play in Retail Outlets

David Oxenford - Color
David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP,

A few days ago, I noted a news story about a bar that stopped hosting live music when it was hit with a lawsuit by BMI because it had not paid royalties for its use of music. The issue of music in bars and restaurants also came up in a continuing legal education seminar on music licensing that I moderated the week before last. Given that I have not written on this topic in some time, I thought that it was worth a reminder that retail outlets, including bars and restaurants, have to pay music royalties to ASCAP, BMI, SESAC and perhaps GMR for the performance of music in their venues, except if they fit within very detailed exceptions that allow for certain businesses to avoid those payments.

We wrote an article here that goes into detail on the exceptions. Basically, for very small businesses, their employees can use a single device of the type used in a home to play music. This exception was designed to allow businesses to allow their employees to have personal audio devices to entertain themselves. So that portable radio on the counter of the dry cleaner or at the secretary’s desk can play music without paying royalties. For larger businesses there is a different exception that allows them to avoid liability but only if they meet very specific rules.

This exception is based on the physical size of the business and the number of broadcast receivers that it uses. It applies only when the business plays an FCC licensed radio or TV station (or cable or satellite TV programming) where the originator of the programming has paid the appropriate fees. The business that takes advantage of this exception can’t charge an admission fee. And the business must fit into one of these categories:

  • It has less than 2,000 gross square feet (excluding parking – but the parking area must be just used for parking – so the area around the gas pumps or other actively used outside areas would probably count toward the 2,000 square feet) or, for “food service or drinking establishments” (bars and restaurants), the square footage is less than 3750 gross square feet (excluding parking as long as the parking is only used for parking, e.g. it does not become a patio during good weather);
  • Or, if the business has more than the square footage set out above, then:
    • If the business only plays the radio, it can have no more than 6 total speakers, no more than 4 of which can be in one room (or adjoining outdoor space)
    • If the business plays TV, it can have no more than 4 TVs, none bigger than 55 inches (diagonal screen size), and no more than one in any room (and there can’t be more than 6 speakers providing the TV audio, with no more than 4 in any one room)

Note that this exception is not limited to consumer-type radios, but the business can only play FCC licensed radio or TV stations (cable and satellite TV count as TV too). No CDs, no hooking up to an iTunes library and no streaming services. If a business plays any of these other services, or features live music, then they must get public performance licenses.

For even more detail on these issues, see the article that I co-authored in the ABA Intellectual Property Division’s magazine Landslide that is available here. Avoid trouble – get the licenses that you need.

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.

First Phase of TV Channel Repack Completed

November 30 marked the completion of the first phase of TV channel repacking process. The second phase began on December 1. According to the FCC, at least 140 stations in more than 20 markets changed frequencies in the first phase of the post-incentive auction channel move. Over a thousand TV stations are being moved to a different frequency in the process that extends to July 2020.

Senate Passes Resolution Recognizing the Freedom of Press

The U.S. Senate has unanimously approved a resolution (S. Res. 501) on protecting press freedom, including calling on President Trump to be a leader in defending the freedom of press, including a press that promotes “government accountability.”

S. Res. 501 recognizes that there are threats to the freedom of press and journalists around the world and that “reaffirming freedom of the press” is a “priority in efforts of the Government of the United States to promote democracy and good governance.”

The Radio-Television Digital News Association’s (RTDNA) Executive Director Dan Shelly, in a statement, called the Senate action a “much-needed affirmation of the importance of the First Amendment and press freedom in the United States. Just as important, it urges a president and an administration that has often been hostile to journalists to instead promote – and protect – those who serve the public by seeking and reporting the truth around the world.

It is gratifying that, at a time when the leader of the free world occasionally calls journalists the ‘enemy of the people,’ that the Senate, on a bipartisan and unanimous basis, would support press freedom at home and abroad.”