Category Archives: Legislative Update

Complaints Filed Against TV Stations for Public File Violations on Political Issue Ads

David Oxenford - ColorBy: David Oxenford, Wilkinson Barker Knauer, LLP

Last week, the Campaign Legal Center and Issue One, two political “watchdog” organizations, filed FCC complaints against two Georgia TV stations, alleging violations of the rules that govern the documents that need to be placed into a station’s public inspection file regarding political “issue advertising” (see their press release here, with links to the complaints at the bottom of the release). FCC rules require that stations place into their public files information concerning any advertising dealing with controversial issues of public importance including the list of the sponsoring organization’s chief executive officers or directors. Section 315 of the Communications Act requires that, when those issues are “matters of national importance,” the station must put into their public file additional information similar to the information that they include in their file for candidate ads, including the specifics of the schedule for the ads including price information and an identification of the issue to which the ad is directed. The complaints allege that, while the stations included this additional information in their public file, the form that was in the public file stated that the sponsors of the ads did not consider the issues to be ads that addressed a matter of national importance, despite the fact that they addressed candidates involved in the recent highly contested election for an open Congressional seat in the Atlanta suburbs.

Section 315(e)(1)(b) states that an issue of national importance includes any advertising communicating any message directed to “any election to Federal office.” The stations against which the complaints were filed used the NAB form that asks political and issue advertisers to provide the information necessary for the public file, as do many broadcast stations. The FCC does not require that the NAB form be used but, as it is designed to gather the required information, many stations use it. Some simply take the form and place it into their public file with a copy of their advertising order form specifying the rates and advertising schedule and assume that their FCC obligation is complete. But, here, the complaints allege that the advertisers, in response to a question on the form that asks whether the advertising was directed to an issue of national importance, checked the box that said that the ad was not a Federal issue ad despite the fact that the ad addressed candidates or issues involved in the election for the open Congressional seat. The form was apparently then simply put into the public file in that way without additional notation or correction by the station.

So, basically, the complaints do not appear to allege that the stations failed to put information into their file sufficient for the public to evaluate who was sponsoring the ads, what the sponsors were paying, or how many ads were being run – information only required for Federal issue ads (ads of national importance) and not ads that addressed local issues. Instead, the complaints allege that the stations were in violation of the rules because a box on a form that is not even required by the FCC was checked incorrectly.

These complaints seem to harken back to a set of similar complaints resolved by the FCC last year, admonishing a number of TV stations for not inquiring more when incomplete information was provided by issue advertisers on a political disclosure form (see our article here on that decision). The new Commission, as one of its first acts, rescinded that decision seemingly because it was made by the Media Bureau and not the full Commission (see our article here). Since the rescission, the FCC has not issued further guidance on the issues raised in the complaints. Perhaps these complaints will trigger action on those pending matters from the FCC. But, regardless of the outcome, the complaints teach broadcasters two things – first, they need to be questioning the information provided by issue advertisers on their advertising disclosure forms to make sure that information is accurate and complete, and second, that stations political files are being watched. With the political file being online for all TV stations and for big market radio stations (and, by March 1 of next year, for all radio stations – see our article here), any of these watchdog organizations can scan the public file for inconsistencies and inaccuracies from the privacy of their own home or office, without the station ever knowing. This places a premium on stations being complete and accurate with all of their disclosures.

For more information about political advertising issues, see our Guide to Political Advertising Issues, here.

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.

FCC Releases a List of FM Channels Available in Future Auctions

According to the Broadcast Law Blog, the FCC released an order listing various vacant FM channels. Although the channels are not newly allotted, they had previously been awarded to applicants who either did not pay the amount they bid in the auction, or who received a CP and then did not construct the station.

It has been more than two years since the last window allowing applicants to file for new FM stations. There had been some speculation that the number of requests for new allotments was decreasing, leaving the FCC with few FM channels to auction off and thereby breaking what had been an almost yearly start of a new FCC auction for new FM channels.

When will the channels be available? Read more here.

Snyder Creates a New Opioid Council

Gov. Snyder

Gov. Rick Snyder signed an executive directive on August 15 forming a new Council on Opioid and Prescription Drug Enforcement and named Lt. Gov. Brian Calley as its chair.

In a statement, Snyder said the council will work to develop and maintain relationships between local, state and federal agencies that work in enforcing laws and rules relating to prescription drugs.

“The council will open up the lines of communication and allow for a better use of resources while working to reduce opioid abuse and prevent addiction from occurring in the first place,” Snyder said.

Calley will lead the council along with the directors of the Michigan Department of Licensing and Regulatory Affairs and the Department of State Police. The U.S. Drug Enforcement Administration will also coordinate with the council as well as other state and local agencies.

‘CLASSICS’ Act Seeks Royalties for Pre-1972 Recordings

Congressmen Darrel Issa (R-CA) and Jarrold Nadler (D-NY) have introduced legislation to bring sound recordings made before February 15, 1972 under the federal copyright system that governs post-1972 recordings. The Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society Act (CLASSICS Act) would uniformly treat the digital transmissions of both pre- and post-1972 recordings so that artists and labels receive the same royalties regardless of when the recordings were made.

The bill sponsors say it closes a long-standing gap in federal copyright law and serves as an update to the pre-1972 treatment of the Fair Play Fair Pay Act, a broader music licensing bill introduced by Congressman Nadler. The Fair Play Fair Pay Act would not only create a radio performance royalty but would also require stations to pay royalties on songs recorded before 1972. In addition to Issa and Nadler, Congressmen John Conyers (D-MI), Marsha Blackburn (R-TN), Tom Rooney (R-FL) and Ted Deutch (D-FL) cosponsored the legislation. All were original cosponsors of the Fair Play Fair Pay Act.

Justice Department to Meet with Journalist Group Regarding Subpoena Guidelines

According to a report in the Hill, the U.S. Department of Justice (DOJ) is scheduled to meet with the non-profit journalism organization The Reporters Committee for Freedom of the Press to discuss the agency’s rules on whether to subpoena reporters who receive classified information.

The meeting will focus on creating new subpoena guidelines.  The group previously worked with former Attorney General Eric Holder when the Obama Administration updated its guidance on issuing subpoenas in 2015.

Radio to Pay 60 Percent Less In Royalties to SESAC

According to an Inside Radio report, the radio industry will pay less in royalties to SESAC under an agreement reached in an independent binding arbitration with the for-profit performance rights organization.

Under the agreement, stations will pay 60 percent less than what SESAC had been charging on its rate card. The settlement retroactively covers the period from Jan. 1, 2016 through Dec. 31, 2018.

In a statement, the Radio Music License Committee (RMLC )called the arbitrators’ decision a “significant favorable step in the right direction” for the radio industry, since it brings SESAC’s license fees and rate structure more into line with the rate formulas used by American Society of Composers, Authors and Publishers (ASCAP) and BMI.

The settlement also includes SESAC transitioning to a percentage-of-revenue license structure rather than its traditional rate-card approach.

Post-Incentive Auction Window Opens for Modifications by Repacked TV Stations that Can’t Build on Their Assigned Channel

According to a report by Broadcast Law Blog, the FCC announced the first of the post-auction filing windows for TV stations that have to move from their current channels as a result of the post-spectrum auction repacking.

The first window, open from August 9 to September 8, is for a limited number of TV stations that fall into two classes: (1) 25 repacked stations that were granted a waiver of the July 12 filing deadline for applications for initial construction permits because the FCC agreed that those stations were unable to construct the facilities that the FCC assigned to them when they were repacked; and (2) any repacked station or any other station entitled to protection that is predicted to experience a loss of population served in excess of one percent as a result of the repacking process.

Read more here.

Bill Seeks Royalties for Pre-1972 Musical Works

According to a report in RadioWorld, legislation has been introduced to establish copyright protections for performances of pre-1972 musical works. Congressmen Darrell Issa (R-CA) and Jerrold Nadler (D-NY) are sponsoring H.R. 3301, named “the Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society (CLASSICS) Act.”

According to Congressman Issa “this is an important and overdue fix to the law that will help settle years of litigation and restore some equity to this inexplicable gap in our copyright system.”

Viewer Protection Act Introduced

U.S. House Energy and Commerce Committee Ranking Member Frank Pallone (D-NJ), and 10 cosponsors formally introduced the Viewer Protection Act, H.R. 3347, legislation aimed to address any funding or timing insufficiencies relating to the upcoming post-incentive auction repacking.

The Viewer Protection Act aims to ensure that full-power television broadcasters, radio stations, low power television stations, television translators and MVPDs are all covered for eligible repack expenses and authorizes an additional $1 billion to cover those collective costs.  The bill also requires the FCC’s Media Bureau to modify the 39-month repack timeline where additional time is needed due to reasons outside the station’s control.  Additionally, it authorizes $90 million for consumer education relating to the repack.

Michigan Congresswoman Debbie Dingell (D-12) cosponsored the bill. The legislation has been referred to the U.S. House Committee on Energy and Commerce.

Snyder Urged to reject Microsoft White Space Proposal

The MAB reached out to Gov. Rick Snyder and members of the Michigan Congressional Delegation urging the lawmakers to reject Microsoft’s attempts to secure free TV spectrum for a nationwide channel (aka ‘white space’) to use for unlicensed devices. Microsoft is asserting that it is urgent that the FCC reserve a vacant UHF white space channel in every market nationwide before the repacking is finalized.

The National Association of Broadcasters (NAB) also filed comments with the FCC stating that the Microsoft proposal to grant access to 18 MHz of TV spectrum for unlicensed use, should be denied as it will cause direct and immediate harm to translators and low power television stations displaced by the spectrum repack following the incentive auction.

In even a best-case repacking scenario, the capacity simply does not exist to successfully accommodate all of these broadcast television station moves. By design, the incentive auction is already shrinking the broadcast television band and there will not be enough spectrum to keep all broadcast television translators and LPTV stations on the air. This disproportionately harms diverse, niche and rural broadcast viewers that are served by translators and LPTVs.

Broadcasters are not alone in opposing this move. A number of rural and agricultural organizations, including National Assoc. of Wheat Growers, National Assoc. of State Departments of Agriculture, National Black Growers Council, National Farmers Union, and Rural & Agriculture Council of America wrote a letter to the FCC Commissioner Ajit Pai in opposition to the Microsoft proposal.  “Our members rely heavily on local broadcast stations to stay up to date on the important issues in our communities and the rest of the country,” the letter stated. “When local broadcast stations go dark, rural communities are deprived of a vital source of information that is essential for managing our day-to-day lives.”