Category Archives: Legislative Update

Senate Majority Leader Opposes House Version of FOIA/LORA

State Senate Majority Leader Mike Shirkey (R- 16) voiced opposition to the bill package that expands FOIA to the Legislature and the Governor’s office as passed the House of Representatives. Spokesperson for the Senator said that whatever the Senate eventually votes on would be different than the House package and legislation from other states is being reviewed. Decision on how to proceed has not been made.

The bills generally open records not currently covered under the FOIA law. There are exemptions that include constituent communications, executive appointment, caucus materials, communications between lawmakers and others.  Under the Legislative Open Records Act (LORA), the Legislature would hire coordinators to handle the requests for records. Appeals would be handled by Legislative Council, a body of House members, rather than by a court. Michigan is one of only two states where the governor’s office is fully exempt from FOIA and one of eight where the Legislature is exempt.

Michigan Supreme Court Changes Rules on Attorney Advertising

In a new rule adopted by the Supreme Court, attorney advertising must include the name and contact information of at least one lawyer “responsible for the content of the advertisement.” If it is not practical for that information to be included in an ad because of size requirements, the court said, in Rule 7.2 (d), the information must appear on the firm’s website or a website the firm uses for advertising purposes.

The proposed change is aimed at addressing such situations as a sign on a building saying “1-800-LawFirm,” for example, or lawyer ads posted on social media sites. The new rule takes effect on May 1.

Upton to Co-Chair Public Broadcasting Caucus

Congressman Fred Upton and MAB President/CEO Karole L. White (File photo)

Four seasoned federal legislators – two Democrats and two Republicans – will co-chair the Public Broadcasting Caucus in the 116th Congress.

Taking seats as co-chairs are Republicans Fred Upton (6th-MI) and John Yarmuth (3rd-KY) and Democrats Earl Blumenauer (3rd-OR) and Mark Amodei (2nd-NV).

Rep. Upton chaired the House Energy & Commerce Committee for six years, while Rep. Yarmuth chairs the House Budget Committee. Rep. Amodei is a member of the House Appropriations Committee, and Rep. Blumenauer is a member of the House Ways & Means Committee and chairs its subcommittee on trade.

Blumenauer founded the Congressional Public Broadcasting Caucus more than 20 years ago to bring his colleagues together in support of public media and the important services they provide.

On March 18, President Trump on March 18 released his fiscal 2020 budget proposal, rescinding a large portion of funding for public broadcasting.

Upton noted that he majored in journalism and understands the importance of supporting public broadcasting for communities around the country. “It is simply good public policy,” said Upton. “I’m proud to offer my steadfast support so public broadcasting can continue to provide valuable services in education and public safety to families in Michigan and across the nation.”

“I am eager to work together with the new co-chairs of the Congressional Public Broadcasting Caucus to expand understanding in Congress of the vital role of public broadcasting in communities large and small,” Blumenauer said.

Rep. Yarmuth added,. “Public Broadcasting plays a vital role in communities across America and provides an irreplaceable service to all citizens. From children’s educational content, to promotion of the arts and humanities, to providing job training and public safety information — Congress should be working to increase federal investment and expand the important services public broadcasting provides. I look forward to working with my colleagues to help lead that charge in the 116th Congress.”

Rep. Amodei said, “Without federal support for public broadcasting, many localities would struggle to survive – particularly those in rural communities like mine,” he said. “I’m pleased to be a co-chair of the Public Broadcasting Caucus for the 116th Congress, and I look forward to working with my colleagues to ensure Americans continue to have access to important public broadcasting programs and services.”

In response to the caucus’ leadership choices, APTS President/CEO Patrick Butler said, “The bipartisan nature of this leadership team reflects the bipartisan nature of public support for federal funding of public broadcasting. We look forward to working with these distinguished Members to increase this funding for the first time in 10 years and enable us to teach more children, protect more lives and property, and create more well-informed citizens to guide the world’s most important democracy.”

Advertising for CBD – Safe for Broadcasters?

David Oxenford - Color
David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP

In the last few months, we probably have had more questions about advertising for CBD products than any other topic. At this point, CBD products seem to be sold in nearly every state in the country, and discussions about CBD’s effectiveness seem to be staples on national and local television talk programs. Broadcasters naturally ask whether they can advertise these seemingly ubiquitous products. Unfortunately, the state of the law on CBD at the current time is particularly confusing, as discussed in this article.

First, a primer on terminology. CBD, short for cannabidiol, is a derivative of the Cannabis sativa plant. Industrial hemp is produced from portions of a strain of the same plant containing low concentrations of the psychoactive chemical known as THC, or tetrahydrocannabinol, and hemp can also be used to produce CBD. In contrast, recreational and medical cannabis, derived from the dried flowers, leaves, and stems of the female Cannabis plant (which we’ll call marijuana to distinguish it from hemp), contains higher concentrations of THC and lower concentrations of CBD. Preliminary clinical research has shown the potential benefits of using CBD to treat anxiety, cognition, movement disorders, and pain, and certainly these properties are attributed to the substance in popular culture. But is it legal?

Although recreational marijuana use is now legal in 10 states and the District of Columbia, and medical marijuana is legal in 33 states, it remains an illegal Schedule I drug under the federal Controlled Substances Act. Possession and distribution is a felony under federal law, as is the use of radio, TV or the Internet to facilitate that distribution. Because marijuana is still illegal under federal law, we have written repeatedly that it remains a product that broadcasters are taking significant risks in advertising – even if it is legal in a particular state for medical or recreational purposes (see, for instance, our articles here and here). But now CBD is in a different category, at least if it is hemp-derived CBD with low levels of THC.

The Farm Act, passed in late 2018, removed hemp (and thus hemp-derived CBD) from Schedule I, so its possession is no longer illegal under federal law as long as the THC level is less than 0.3%. But CBD derived from marijuana remains an illegal Schedule I drug, so it is important to know how the CBD is being produced, as it helps determine whether the CBD is legal or illegal. Making the law surrounding CBD even more confusing is that, while there is no longer a federal ban on the possession of hemp-derived CBD, there is not yet a legal mechanism for widespread commercial production of CBD, except in limited circumstances, and whether the production fits under these limited circumstances is difficult to discern when a broadcaster is approached to advertise a CBD product. Moreover, other issues must be weighed in any advertising decision.

The 2018 Farm Act sets out a process for the legalization of the production of hemp products, including CBD. But, under the Act, any industrial manufacture of CBD products can only be done through state plans to regulate the sale and distribution of these products, or pursuant to a federal plan to be adopted by the US Department of Agriculture. The state plans also must be approved by the USDA before production begins. At least two states have filed requests with the USDA for approval of their state plans. Unfortunately, the USDA has not yet adopted rules for approving these programs. It held a “listening session” earlier this month on proposed rules for processing requests for approval of state plans (see the transcript of the listening session here), but it does not seem likely that rules will be adopted until much later this year, as there was much discussion during the session of trying to have the rules ready for the 2020 growing season. But there were also calls for quicker action, and more clarity on the current state of the law, including one from a representative of a trade association for supermarkets and drug stores, which face the same issues as do broadcasters – is it really legal to sell the CBD products that are already on the market?

Until the USDA has adopted rules for processing state plans, and has approved some of those plans (as well as a federal plan for states that do not act), the only manufacturing of CBD that is permitted is production authorized under a prior Farm Act from 2014. The 2014 Act only permitted hemp production projects authorized by a state or a university as part of a research program, and no widespread commercial exploitation of CBD under the 2014 Act was supposed to happen except under pilot programs as part of a research project. From some of the testimony given at the recent USDA listening session, it appears that some of the state plans for production on an experimental basis allowed for some serious operations – one company representative talking about how it had over 200 employees producing legal hemp products pursuant to one of these supposedly experimental state projects. While federal authorities may not have envisioned such large commercial production under the 2014 Act, it does not appear that there have been any federal efforts to reign in these producers.

The reason for regulatory oversight of hemp production by the USDA and the states appears to be to make sure that consumers are actually getting what they think they are buying, and also to make sure that producers take steps to reduce the risk that marijuana products (or hemp products with greater than .3% THC) become available for public consumption. See the USDA statement of principles here. In recent years, there have been numerous articles and statements from regulators suggesting that CBD products are often not what they claim to be – some allegedly having more THC than advertised, others having little or no actual CBD. The FDA is supposed to hold hearings in April about its authority over CBD, and part of that process seems to be geared toward gathering evidence as to what products are safe and what limits to put on the purity and potency of such products, and the disclosure of their contents.

Some broadcasters, after (1) discussion with their counsel, (2) investigation with the advertiser, and (3) some degree of reasonableness (avoiding sales that are done in some dark garage or from the back of a truck on one hand, to possibly being more comfortable with products sold at a big national retailer where there is some expectation that the advertiser has done some of its own due diligence), may be able to satisfy themselves about the question of whether the CBD product that they are being asked to advertise was legally produced and is otherwise lawful. After all, there are plenty of products being advertised on the radio where the broadcaster has never thought to inquire as to whether the product was legally manufactured. But that does not end the broadcaster’s consideration as to whether to run a CBD ad. In fact, there may be far more serious questions to consider, given that a particular type of CBD may be illegal under federal law.

Even though the USDA is moving to implement the provisions of the Farm Act that legalize the production and commercial distribution of hemp products with low THC levels, the FDA retains jurisdiction to prohibit uses of any cannabis product as a pharmaceutical product or food additive. Under this authority, the FDA has made clear that it still prohibits the sale of CBD (hemp-derived or otherwise) as a food additive or oral supplement (see its statement here, issued after the adoption of the 2018 Farm Act). In fact, this year, after the adoption of the Farm Act, the FDA has raided stores selling CBD as a food additive, and health authorities in several states have followed suit. As noted above, the head of the FDA announced in recent Congressional testimony that it would hold hearings on CBD, but he soon thereafter announced his resignation, leaving that timetable up in the air. Edibles and dietary supplements containing CBD will likely be a principal topic that will be considered at the FDA hearing whenever it is finally held.

Until the FDA acts, and regardless of what the USDA does with respect to hemp production, it seems to still be a federal offense to sell any CBD product that is to be ingested – whether it is as a dietary supplement or as an additive to foods and beverages – unless the FDA has approved those products. Late last year, the FDA approved the use of a CDB-based product (sold under the brand name Epidiolex) as a drug to control epilepsy seizures, but that is a very limited exception at this point. Note, again adding to the confusion, the FDA has also approved the use of certain hemp products in food, but only where they have negligible levels of CBD and THC (see, e.g. the FDA notice here). The approval of hemp as an addition to foods confuses many in the public, as hemp is often seen as the equivalent of CBD (or marijuana) so, when they see it advertised in foods or beverages, they believe it to the be the same as CBD. The FDA, however, sees these products as legally different.

Similarly, both federal and state authorities warn about making unproven health claims about any of these substances. The FDA and FTC have informally suggested that they may be concerned about any health claims made for any CBD products not backed by academic studies. With these warnings from government agencies about CBD products that make health claims or which can be ingested, and the broadcaster’s status as a federal licensee, it would seem as if steering clear of the promotion of products that are still prohibited under federal law would make sense.

But even if a broadcaster can satisfy itself that the CBD comes from legal sources, is not to be ingested, and does not make unverifiable health claims, this does not end the inquiry. The various states have differing laws on hemp products generally and CBD specifically. Some states still have not liberalized their laws along the lines of the 2018 Farm Act, and thus are still taking a hard line on any sales of hemp or CBD. Others, even including some states that have legalized recreational or medical marijuana, have rules that appear more restrictive of hemp and CBD products than of “legal” marijuana. Others have already amended their laws to effectively legalize these products. Even then, most states restrict sales to minors (and some specifically address advertising restrictions), so it would make sense for stations to observe the same kinds of rules that they do for alcohol advertisements, by keeping ads out of programming where a high percentage of the audience may be under the legal age (see our articles here and here). Stations need to do a thorough check of their state’s laws and the regulations of their state agencies to see what other rules might apply to these sales.

After all that, we are back to where we began. There are no clear answers on CBD advertising yet. Consider these factors, consult with your own attorney and give some careful thought as to whether or not to accept CBD advertising on your station, and watch for developments as they occur 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 approves $150M in Repack Funds for LPTVs, Radio

FCC Commissioners unanimously voted to approve $150 million in funding for low-power TV and FM radio stations that are disrupted by the post-spectrum auction repack. Congress directed the agency to add LPTVs and FMs to the funding list and set a deadline of March 23 to do it. The funding was included in the Ray Baum Act FCC Reauthorization legislation that passed last year, which set aside additional repack funding for full power TV as well as the LPTVs, translators and FMs.

FCC chair Ajit Pai said the ongoing repack “has imposed and will continue to impose” a “financial hardship” on many FM stations. But he credited Congress giving the FCC the expanded authority to reimburse radio stations, FM translators and low-power TV stations for their expenses.

“This made it much less likely that these classes of broadcasters will have to pay out of their own pockets after being forced through no fault of their own to relocate or modify their facilities,” Pai said.

State Supreme Court Orders Arguments in FOIA Case Involving Schuette

The Michigan Supreme Court will hear arguments on whether state government can claim immunity as a defense for disclosing public records. The case involves former Attorney General Bill Schuette’s refusal to conduct a search to see if his office sent emails involving public business using private email accounts.

The court ordered the arguments in Progress Michigan v. Attorney General (SC docket No.158150-1) in the case that has been ongoing for several years.The court directed the two sides to address whether the state can argue it has either a sovereign or governmental immunity defense that would cover not releasing public records, and whether the FOIA waives such an immunity.

The Court of Claims had rejected Schuette’s argument that he had immunity, but the Court of Appeals held the filing was invalid from the beginning and found for Schuette. No date was set for the arguments before the Supreme Court.

House Passes Open Records Expansion

The Michigan House has passed a package of bills adding the Governor’s office to the Freedom of Information Act and creating Legislative Open Records Act (LORA) for State Legislature. The bills have been referred to the Senate; however, it’s been reported that Majority Floor Leader Mike Shirkey (R-16) does not support the package. To date, this is the third time the House passed similar bills in the last two legislative sessions.

Under the bills, records from the Executive Office would be open under FOIA, with additional exemptions that include constituent communications, communications about gubernatorial appointments, decisions to remove or suspend an official from office and budget recommendations. The Legislature would be covered under a parallel system called the Legislative Open Records Act. It largely mirrors FOIA but includes new exemptions as well, including constituent communications and communications between legislators.

Senators Ask AT&T/DirecTV to Carry Local into Local

Four U.S. Senators are pushing AT&T/Direct TV to deliver local TV station signals on Direct TV to 12 rural communities across the country, including one in Alpena, that receive imported programming from affiliates in New York or Los Angeles.

The lawmakers wrote a letter (read here), saying their constituents are shortchanged by lack of access to local broadcasting and may miss vital public safety, weather, news and emergency information.

Bill to End Daylight Saving Time Introduced

State Representative Michelle Hoitenga

State Representative Michelle Hoitenga (R-Manton) introduced House Bill 4303 to eliminate the biannual time change nationally established in the 1960s. Similar legislation was introduced in 2015 and 2017 but was never voted out of committee.

The language of the original bill would keep Michigan on Eastern Standard Time, but Hoitenga wants to amend it to daylight saving time year-round to preserve the later sunset. Though daylight saving is a federal law, states can vote to exempt themselves. Only Arizona and Hawaii do not observe DST and are on standard time year-round. The Florida Legislature became the first in the country to vote to stay on daylight saving time year-round in 2018 but is awaiting federal approval.

March Madness: Nothing but Net for Trademark Infringement Claims

Mitchell Stabbe
Mitchell Stabbe

By: Mitchell Stabbe, Wilkinson Barker Knauer, LLP via the Broadcast Law Blog

Alternate Title: March Madness Trademarks: It’s March Spring and You Do Not Want to Make the NCAA Mad Angry at You.

As we have previously reported, the National Collegiate Athletic Association (NCAA) is very serious about taking action against anyone who may try to trade off the goodwill in its March Madness marks — even if the NCAA’s actual marks are not used. For example:

  • Readers may recall that the NCAA filed a trademark infringement action in 2017 against a company that ran online sports-themed promotions and sweepstakes under the marks “April Madness” and “Final 3.” The defendant stipulated to an order providing that it would cease using those marks at least until the end of the year, but the order did not provide for dismissal of the case. The defendant failed to file an answer to the complaint and the NCAA was granted a default judgment, after which it filed a motion requesting an award of attorneys’ fees against the defendant in the amount of $242,213.55. In May 2018, the Court awarded attorneys’ fees in the amount of $220,998.05.
  • The NCAA sued a car dealership that had registered and was using the mark “Markdown Madness” in advertising. (The case was settled.)
  • Even schools that are part of the NCAA are not immune from claims of infringement. Seven years after the Big Ten Conference started using the mark “March Is On!,” the NCAA opposed an application to have that mark federally registered. (Ultimately, the opposition was withdrawn, the mark was registered, but the registration was assigned to the NCAA.)

These actions illustrate the level of importance that the NCAA places on acting against the use of trademarks which seek to create an association with its annual Collegiate Basketball Tournament. Clearly, such activities continue to carry great risks. Accordingly, following is an updated version of our prior blog posts on this subject.

With the NCAA Basketball Tournament about to begin, broadcasters, publishers and other businesses need to be wary about potential claims arising from their use terms and logos associated with the tournament, including March Madness®, The Big Dance®, Final Four® or Elite Eight,® each of which is a federally registered trademark. March Mayhem® is also registered to the NCAA, which is currently seeking to register March to the Madness.

The NCAA Aggressively Defends Against Unauthorized Use of its Trademarks

The NCAA states that $844.3M of its annual revenues derives from the licensing of television and marketing rights in the Division I Men’s Basketball Tournament. Moreover, its returns from the tournament have historically grown each year. Most of this income comes from broadcast licensing fees. It also has a substantial amount of revenue from licensing March Madness® and its other marks for use by advertisers. As part of those licenses, the NCAA agrees to stop non-authorized parties from using any of the marks. Indeed, if the NCAA did not actively police the use of its marks by unauthorized companies, advertisers might not feel the need to get a license or, at least, to pay as much as they do for the license. Thus, the NCAA has a strong incentive to put on a full court press to prevent non-licensees from associating their goods and services with the NCAA tournament through unauthorized use of its trademarks.

Activities that May Result in a Whistle

The NCAA acknowledges that media entities can sell advertising that accompanies the entity’s coverage of the NCAA championships. Even so, as discussed in greater deal in our earlier discussions of the “Do’s and Don’ts” of Super Bowl– and Olympics-related promotions, unless authorized by the NCAA, any of the following activities may result in a cease and desist demand:

  • accepting advertising that refers to the NCAA, the NCAA Basketball Tournament, March Madness, The Big Dance, Final Four, Elite Eight or any other NCAA trademark or logo (The NCAA has posted a list of its trademarks here.)
    • Example: An ad from a retailer with the headline, “Buy A New Big Screen TV in Time to Watch March Madness.”|
  • local programming that uses any NCAA trademark as part of its name
    • Example: A locally produced program previewing the tournament called “The Big Dance: Pick a Winning Bracket.”
  • selling the right to sponsor the overall coverage by a broadcaster, website or print publication of the tournament
    • Example: During the sports segment of the local news, introducing the section of the report on tournament developments as “March Madness, brought to you by [name of advertiser].”
  • sweepstakes or giveaways that include any NCAA trademark in its name
    • Example: “The Final Four Giveaway.”
  • sweepstakes or giveaways that offer tickets to a tournament game as a prize
    • Example: the sweepstakes name may not be a problem, but including game tickets as a prize will raise an objection by the NCAA.
  • events or parties that use any NCAA trademark to attract attendees
    • Example: a radio station sponsors a happy hour where fans can watch a tournament game and prominently places any of the NCAA marks on signage.
  • advertising that wishes or congratulates a team, or its coach or players, on success in the tournament
    • Example: “[Advertiser name] wishes [Name of Coach] and the 2018 [Name of Team] success in the NCAA tournament!”

There is one more common pitfall that is unique to the NCAA Basketball: tournament brackets used in office pools where participants predict the winners of each game in advance of the tournament. The NCAA’s position is that the unauthorized placement of advertising within an NCAA bracket or corporate sponsorship of a tournament bracket is misleading and constitutes an infringement of its intellectual property rights. Accordingly, it says that any advertising should be outside of the bracket space and should clearly indicate that the advertiser or its goods or services are not sponsored by, approved by or otherwise associated with the NCAA or its championship tournament.

Note that none of these restrictions prevents media companies from using any of the marks in providing customary news coverage of or commentary on the tournament. Just be sure that they are just used to identify the tournament and its stages, and don’t in any way imply that there is an association between the station itself or any sponsor who does not have the rights to claim such association and the NCAA. The NCAA’s Advertising and Promotional Guidelines are posted online.

A Surprising History of “March Madness”

The NCAA was not the first to use “March Madness” as a trademark in connection with basketball tournaments. In fact, beginning in the 1940’s, the Illinois High School Association (IHSA) used it in connection with the Illinois state high school basketball championship playoffs.

The NCAA also may not have been the first to license the use of “March Madness.” Beginning in the early 1990’s, the IHSA licensed it for use by other state high school basketball tournaments and by corporations.

Moreover, the NCAA did not originate the use of “March Madness” to promote its collegiate basketball tournament. Rather, CBS broadcaster is credited with first using “March Madness” in 1982 to describe the tournament. As CBS was licensed by the NCAA to air the tournament, the NCAA apparently claims that as its date of first use.

Finally, the NCAA was not the first to register “March Madness” as a trademark. That honor went to a company called Intersport, Inc., which used the mark for sports programs it produced and registered the mark in 1989.

So, how did the NCAA get to claim ownership of the March Madness® trademark? The short answer is through litigation and negotiations over a period of many years. Although it has also been able to obtain federal registrations for Final Four® and Elite Eight,® it was late to the gate and was unable to snag “Sweet Sixteen” or “Sweet 16,” which are registered to the Kentucky High School Athletic Association (KHSAA). (The NCAA, however, has the KHSAA’s consent to register “NCAA Sweet Sixteen” and “NCAA Sweet 16.”)

The Final Score

Having invested so much in its trademarks, the NCAA takes policing its trademark rights very seriously. Even so, although the NCAA may send a cease-and-desist letter over the types of activities discussed above, some claims may not be a slam-dunk as there can be arguments to be made on both sides of these issues. If you plan to accept advertising incorporating an NCAA trademark or logo or plan to use an NCAA trademark or logo other than in the context of reporting on the tournament, you should consult with an experienced trademark attorney so you can make an informed decision about the level of risk that you may be taking on.