Category Archives: Legislative Update

University Free Speech Amendment Clears House Committee

Last week, Michigan House Oversight Committee voted out a constitutional amendment that would give the Legislature the power to overrule university and community college regulations on “protection of free speech, expression and assembly rights.”

House Joint Resolution P was sent to the full House on a 4-2 vote, with two Democrats opposing the resolution. State Representative Jim Runestad (R-44), who sponsored the resolution, proposed a substitute that would have also allowed the Legislature to step in if there is public health and safety issues on campus, but withdrew it soon afterwards. The joint resolution needs two-thirds of the House vote, or 73 representatives, to pass the chamber. HJR P would also need a two-thirds vote in the Senate to get on the November 2018 ballot.

Starting Small on Media Regulation Modernization – Rule Requiring Hard Copy of FCC Rules Repealed

David Oxenford - Color
David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP,

One of the first proposals in Chairman Pai’s initiative for the modernization of media regulation (see our post here from when the Chairman announced the initiative) was to repeal an FCC rule that many did not even know was a rule – one requiring that broadcasters who have secondary licenses maintain a paper copy of the FCC rules (surprisingly, the rule did not apply to licensees without secondary licenses for things such as boosters and translators). We wrote about the proposal to abolish this rule here. Not even waiting for the Commission meeting tomorrow at which this proposal was to be considered, the FCC issued its Report and Order February 20, repealing the rule. The Commission notes that station operators have a general obligation to be familiar with the rules that apply to their service, but there is no need to mandate a hard copy of the rules when rules can be accessed from other sources, in more current versions, electronically.

This is but one small step in removing unnecessary FCC regulation – but it is one in the right direction. We look forward to more such actions on more substantive topics 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.


Comment Dates set on FCC Contract Filings
In an effort to modernize the rules applied to broadcasters, the FCC initiated another proceeding seeking comment on whether and how to update the requirement that licensees file paper copies of certain contracts and other documents with the agency within 30 days of their execution.  As a result of the publication of the notice of proposed rulemaking in the Federal Register, comments are due on March 19 and reply comments are due on April 2.


NAB Will Honor Texas Congressman Green With First ‘Broadcast Champion Award’

Rep. Gene Green (D-TX)

Rep. Gene Green (D-TX) will be the inaugural recipient of the NAB Broadcast Champion Award. The award recognizes a member of Congress who demonstrates exemplary leadership and commitment to strengthening the future of radio and television, recognizing broadcasters’ vital role in our local communities.

As a member of the House Energy and Commerce Committee since 1997, Congressman Green has worked on a multitude of issues of importance to local radio and television broadcasters over the years. He has taken to the floor of Congress to champion the vital role local broadcasters play as ‘first informers’ during times of emergency, and appears as a frequent guest on Houston radio and television stations. Green also has been the lead Democratic co-sponsor of the Local Radio Freedom Act – a resolution opposing a performance royalty on local broadcast radio stations for free, promotional music airplay – since its inception in the 110th Congress.

NABCongressman Green is also a principal cosponsor of the Radio Consumer Protection Act, which would establish a fund to reimburse local radio stations impacted by the “repack” stemming from the broadcast spectrum incentive auction. Green will receive the award at NAB’s 2018 State Leadership Conference on February 27 at the JW Marriott in Washington, D.C.

State Canvassers Consider Ballot Proposal To Boost Renewable Energy Standards by 2030

Michigan’s utilities would have to generate at least 30 percent of their electricity from renewable sources by 2030 under a voter-initiated act that could appear on the November ballot.

The Board of State Canvassers will consider the petition next week from Clean Energy, Healthy Michigan. The proposal would define renewable energy as solar, wind, biomass, hydropower and municipal solid waste or landfill gas and not petroleum coke, hazardous waste, scrap tires or coal waste. It would gradually raise the standard – 18 percent by 2022, 21 percent by 2024, 24 percent by 2026, 27 percent by 2028 and 30 percent by 2030. The 2016 energy law called for the percentage to be 15 percent by 2021 (PA 342 of 2016).

In 2012, environmental activists sought a constitutional amendment to set the renewable energy requirement at 25 percent by 2025, but it was defeated.

With the March 1 Deadline Looming, What Should Radio Stations Be Doing to Prepare Their Online Public File?

David Oxenford - Color
David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP,

Many radio stations need to be considering the FCC requirement that their public inspection file be made available online in a system hosted by the FCC. From the calls I have received in the last few days, it appears that, even though the FCC adopted the requirements two years ago (see our post here), and station groups with 5 or more employees in the Top 50 markets had to covert to the online file soon thereafter, many smaller stations are only now realizing that the March 1 mandatory conversion date for all stations – commercial and noncommercial – is fast approaching.

We recently conducted a series of seminars for state broadcast associations on the online public file obligation. See the Michigan webinar here. The slides from the last of these, conducted for the Iowa and Indiana Broadcasters, are available here. In addition to those slides which provide an outline of the online public file obligations, there are many resources on the FCC’s own website about the public file. To summarize some of the last minute issues being faced by broadcasters, the Indiana Broadcasters posed 5 questions about the requirements – and our answers are shared below.

  1. If a station is starting from ‘square one’ in preparing for the Online Public File requirement that kicks in for all radio stations on March 1, what are the first couple of steps one should do immediately?
    With the March 1 deadline fast approaching for having your online file up and activated , stations should now be actively uploading the required material to the FCC file, and making sure that the information automatically uploaded by the FCC is accurate. We have already heard reports that the FCC system for hosting the online public file is running slowly, especially during business hours, making uploads difficult. That is likely to get even worse as we get closer to the March 1 deadline. So if a station has not started to get its online public file ready, it needs to do so immediately.For a station that has done nothing, it needs to start by registering to get a password for the FCC’s site that hosts the file. A station first needs to go to the “Owner Sign In” page here. Using the station’s FCC Registration Number (FRN) and password will allow it to log in and set up a passcode for the public file. If a station doesn’t know its FRN or has forgotten its password, it can call the FCC’s FRN Help Line: 877-480-3201 (Mon.-Fri. 8 a.m.-6 p.m. ET). Once the station has its passcode, a station uses that passcode to log into the FCC-hosted platform, here, and start uploading its documents.

    The FCC has a good set of Frequently Asked Questions about the online public file process here.

  2. Are all radio stations now going to be required to use an online Public File?The online public inspection file is required for all stations, commercial and noncommercial, unless the station has obtained a waiver. Few if any waivers have been granted. Unless you are a very small station with real provable issues with Internet access, I would not expect waivers at this point, so late in the game.
  3. What are the most important uploading obligations?The FCC has already uploaded many of the required documents, and those documents should be found already in the folders when you first log into the FCC’s hosting platform. The information already uploaded by the FCC includes pending applications, ownership reports, a contour map showing the stations coverage, The Public and Broadcasting procedure manual, and copies of the station’s license and renewal authorization. Look these over carefully and determine which of the FCC-uploaded documents need to be made available to the public. The FCC will upload all applications filed for your station going back many years – when only pending applications need to be made visible to the public. So you need to select which ones will be made available to the public by keeping them in the “On” position and toggling the rest to the “Off” position so that the public can’t see them. We have also heard reports that there have been instances where the FCC has not uploaded the most recent license into the authorization folder, so you should check to make sure that what has been uploaded reflects accurately your current operations.

    A station will have two sets of documents that will take a significant amount of time to manually upload. Any station that is part of a Station Employment Unit with 5 or more full-time employees needs to upload all of its Annual EEO Public Inspection File Reports, back to the start of the current renewal term for the state in which the station is located. There will likely be 4-6 of these reports, depending on the license term for the state in which the station is located.

    In addition, stations need to upload all of their Quarterly Issues Programs lists going back to the start of the license term. All stations, commercial and noncommercial, should have these reports. These are the only documents that the FCC requires to show how your station met the needs and interests of its community of license. As all of the Quarterly Issues Programs lists going back to the start of the license term need to be uploaded, you are looking at uploading more than 20 of these quarterly reports. Because there are so many, these will likely take more time than anything else to upload.

    Unlike the EEO Reports and Quarterly Issues Programs lists referenced above, the FCC has said that you only need to upload “new” political file documents (i.e. those created after the file goes live to the public). If you decide not to upload the old political documents, you must maintain all “old” political file documents in a paper public inspection file for two years from the date that the document was created. If you are thinking of no longer maintaining a main studio open during normal business hours, you may want to consider uploading all political documents now so you no longer need to maintain a paper file available to local residents.

    There are other documents commonly to be included in the file that station employees will need to manually upload. These include licensee organizational documents, contracts relating to ownership rights (e.g. options, pledges or voting proxies), and other contracts that restrict a licensee’s control over station operations (all of which are supposed to be listed on your ownership report) either need to be uploaded or included on a list of documents available for inspection upon request (with information as to how to contact someone at the station that can provide the documents within 7 days). Time brokerage or joint sales agreements need to be uploaded. And, for noncommercial stations, a list of donors contributing to support the broadcast of a specific program (as opposed to general station donors) is to be included in the public file.

    The FCC has published a complete list of all of the documents that you need to have in your file here.

  4. After uploading the documents, how long do I need to keep copies of these files? Retention periods vary for the various documents that need to be in the file. As noted above, EEO Public Inspection File Reports and Quarterly Issues Programs lists for the entire license term need to remain in the file until your next license renewal is granted. Applications need to be in the public file only until the application is granted and the grant is final (no longer subject to any appeal or review). Only the most recent ownership report needs to be in the file (as a reminder, the next biennial ownership report is due by March 2, 2018). Documents in the political file need to be maintained for two years from the date of their creation. Certain contracts and agreements (like time brokerage agreements) need to be maintained for the life of the agreement. So review the FCC’s rules on the retention of documents. In the slide deck we prepared here, many of the retention periods are provided.
  5. What advantages and disadvantages of the online file?
    The obvious advantage is that you no longer have to maintain a paper file and give physical access to your studio to anyone who wants to see the file. Of course, by putting the file online, you make the contents of the file available for review by anyone, anywhere, any time. So public interest groups and the FCC itself can use it to assess your compliance – including looking at electronic date stamps on documents to determine whether documents were timely included in the file. Late filings could become a real issue for documents like Quarterly Issues Programs lists which were rarely, if ever, reviewed by the FCC when they were kept in the paper public file. Remember, on the next renewal application, you will likely be asked to confirm that you placed all required materials in the public file on time. The FCC and the public will now know whether your response is accurate or not.


The March 1 deadline is fast approaching. If you have not already completed the process and made your file available to the public, start working on that file soon. It will take longer than you think, so don’t run out of time to comply.

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 Sets Comment Dates on National TV Ownership Caps

In December, the FCC adopted a Notice of Proposed Rulemaking to review the national ownership cap for over-the-air television. The cap limits one owner from having attributable interests in television stations reaching more than 39 percent of the national audience. The date for initial comments is now set for February 26.

The date for the reply comments is set for March 27. The NPRM asks two fundamental questions – does the FCC have the authority to amend the cap, and if does, should it use that authority to make changes now?

Online Public File Deadline for Radio

According to the Broadcast Law Blog, March 1 is the deadline for all radio stations to convert to the online public file hosted by the Federal Communication Commission.

For those radio stations that have not yet completed their conversion, February is the month to be uploading those documents.

As the FCC automatically uploads most of the applications and other FCC filings that need to be in the public file, the documents that will likely take the most time for the broadcaster to upload are Quarterly Issues Programs Lists and Annual EEO Public File Reports, documents not filed with the FCC on a regular basis.

Court of Appeals Rejects Petitions, New Ownership Rules Go In Effect

According to Scott Flick, communications attorney with Pillsbury Winthrop Shaw Pittman LLC, the Court of Appeals on Wednesday rejected the efforts of petitioners to block the implementation of FCC Chairman Ajit Pai’s changes to the broadcast ownership rules.

“That means the changes to the TV duopoly rule, as well as elimination of the radio-TV and newspaper cross-ownership rules, went into effect (on February 7),” Flick said.

“The court also suspended it’s consideration of the appeal for six months because the FCC is still in the process of taking comments on its incubator program to encourage new entrants in broadcasting.  That means the new rules will likely stay in place for the rest of this year before the court considers the pending appeals.”

Bill Calls for University Reporting of Legal Settlements

State Rep. Jim Runestad (R-44) is working to introduce legislation that would require the state’s public universities and colleges to report legal fees to Michigan Legislature.

According to a report in Gongwer, the upcoming bill would require a report of all costs incurred with any civil or criminal case, filed or anticipated, against the university or any of its officials, agents or employees. The fees would include legal settlements, attorney fees, witness or other fees and court costs.

“Current events have shown the necessity of requiring information from universities on their expenditures pertaining to lawsuits,” Runestad said in a statement. “Without legislative oversight universities have demonstrated they are emboldened to violate free speech rights of students as well as potentially abuse the public trust.”

FCC to Randomly Inspect TV Stations Repacked by the Incentive Auction

David Oxenford - Color
David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP,

On February 5, the FCC released a Public Notice indicating that they will be inspecting approximately 60 of the over 900 TV stations changing channels as a result of the incentive auction and the repacking of the TV spectrum that took place after that auction. The FCC notice says that it is hiring contract employees who will conduct these inspections on a randomly selected set of stations to assess the equipment that they have on hand and will be replacing when moving to their new channel. The stations are seeking reimbursement from the FCC’s $1.75 billion pool of money set aside to reimburse stations for equipment that needs to be replaced to allow the stations to operate on their new channels.

The notice says that the FCC will be assessing the “existence and functionality” of the equipment for which reimbursement is sought. The FCC seems to be saying that it will be making sure that stations really have the equipment that they are seeking to replace through reimbursement funds. The “functionality” aspect may be an assessment as to whether that equipment really needs to be replaced, though the notice does not specifically make that statement. The approximately 60 stations selected at random will be used as a statistical sample to assess the reliability of repacking estimates provided by stations to the FCC. Nothing forecloses the FCC from conducting further audits in the future. So if you have a TV station that has been repacked, and the FCC comes knocking, you will know what the inspection is all about.

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.