By: Curtis LeGeyt, EVP, Government Relations National Association of Broadcasters
I wanted to let you all know that the Senate went out of session for the year early Saturday morning (12/10), and FCC Commissioner Jessica Rosenworcel was not reconfirmed. This means her term will expire at the end of 2016 and we will begin the next Administration with either a 2-2 or 2-1 FCC, depending on the date on which Chairman Wheeler steps down (Editor note: Chairman Wheeler announced he is leaving the agency January 20, 2017. Details here). This is noteworthy, since a 2-1 FCC would allow a Republican Interim-Chairman to begin advancing an agenda at the outset of the new year before new commissioners are nominated/confirmed.
On the legislative front, two noteworthy updates occurred before the Congress wrapped up its work this week:
First, Senators Moran (R-KS), Schatz (D-HI), Fisher (R-NE), Blumenthal (D-CT), Blunt (R-MO) and Udall (D-NM) circulated bipartisan draft legislation to the Senate Commerce Committee aimed to address any insufficiency in the FCC’s repacking budget and timeframe should either prove insufficient at the conclusion of the auction. As you are aware, the FCC is currently limited to a $1.75 billion relocation fund and 39-month timeline to successfully repack the broadcast band following the incentive auction, limitations that NAB is concerned will prove inadequate.
Circulation of this legislation in advance of the new Congress intends to signal both that this legislation should be at the top of the Commerce Committee’s agenda next year once the auction concludes and the scope of the repack is known, and that the issue is a bipartisan one. This bill is a companion to the legislation circulated by House Energy and Commerce Committee Ranking Member Frank Pallone (D-NJ) earlier this year.
Second, incoming House Energy and Commerce Chairman Greg Walden (R-OR2), Congressman John Yarmuth (D-KY3) and five other bipartisan House E&C members introduced legislation this week to repeal the FCC’s Broadcast-Newspaper Cross-Ownership ban. The legislation intends to signal to both the FCC and the next Congress that there is bipartisan support on this issue, and helps set the stage for the FCC and Congress to address the ownership rules next year.
According to a report in Editor and Publisher, the Drone Journalism Lab released its operations manual as an open source, Creative Commons-licensed document. The 23-page guidebook (found at dronejournalismlab.org) covers a range of issues including how to conduct a preflight briefing and ethical considerations journalists should review before flying a drone. This information may be useful by our members using the drones for news gathering purposes.
The MAB is working on state legislation that sets up a legislative drone taskforce to develop statewide policy recommendations on the use/operation of drones. The taskforce will include a representative from the broadcast industry to ensure that our industry’s concerns are addressed in any future drone related legislation/rulemaking.
According to a report in CommLawCenter, the third stage of the forward spectrum auction, which attempted to clear 108 MHz, resulted in a $40.3 billion clearing target for the forward auction, ended after just one round of bidding on December 5. The FCC has announced that it is launching Stage 4 of the auction on Tuesday, December 13. Notably, Stage 1, 2 and 3 of the reverse auction took 28, 30, and 30 days, respectively to complete, which brings up the question of whether the auction can be concluded by the end of 2016.
The published report wrote: “While the forward auction bid totals have dropped in every stage of the auction as the amount of spectrum being sold has dropped ($23.1B in Stage 1, $21.5B in Stage 2, and now $19.7B in Stage 3), the totals have been fairly consistent.” The FCC will, at a minimum, need forward auction payments to cover the reverse auction total, the $1.75B for repacking and the several hundred million in auction expenses incurred.
SB 992 unanimously passed the Michigan House Committee on Communications and Technology last week. The legislation allows a person authorized by the Federal Aviation Administration (FAA) to operate unmanned aerial systems (aka: drones) for commercial purposes in a manner consistent with the authorization. The legislation also sets up a legislative drone taskforce to develop statewide policy recommendations on the use/operation of drones. SB 992 mandates that the taskforce must include a member recommended by the MAB to represent the broadcast industry.
The MAB, along with the Michigan State Police, Michigan Telecommunication and Cable Association, Michigan Association of Realtors, supported this legislation. The MAB believes that this legislation is a balanced approach to regulating drone use. The bill recognizes the growing economic and commercial use of the unmanned aerial vehicles across a wide variety of industries including, in our case, broadcasting.
Status: SB 992 has been referred to the full Michigan House of Representatives chamber for a vote. If the bill passes this chamber, it then goes to the Governor’s office for signature.
According to a report by TVNewscheck, the National Assocation of Broadcasters (NAB) has filed a lawsuit with the U.S. Court of Appeals for the D.C. Circuit challenging the FCC’s media ownership order as “arbitrary and capricious.” The organization challenged the FCC’s ruling in its required every-four-year review of its broadcast ownership rules, saying that “despite the obvious transformative changes in the media landscape in the decade since the commission’s last completed quadrennial review, the commission failed to take a fresh look at the broadcast ownership rules and to repeal or modify them in light of those changes.”
The FCC released an order on November 16 giving TV stations an additional 18 months to comply with a requirement that emergency information conveyed to the TV audience during non-news programming in a visual or graphical manner (e.g. on-screen weather maps during entertainment programming) be converted to audio that is broadcast on the TV station’s SAP channel.
We wrote about the FCC’s request for comments on the extension here. If the extension had not been granted, those requirements would have kicked in this week. But, as broadcast groups and those representing the visually impaired agreed that there was no available technology to make this conversion of graphics to speech, an 18 month extension of the obligation was appropriate. Thus, broadcasters have more time to comply with this requirement (though the obligation to convert text carried in non-news programming – like emergency crawls – to speech broadcast on the SAP channel is already in effect for all TV stations (see our articles here and here).
The waiver extension is subject to the condition that NAB and the other petitioners provide a status report to the FCC on efforts to develop a technical solution by November 22, 2017.
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.
The U.S. House Energy and Commerce Committee Chairman Fred Upton (R-MI) and Communications and Technology Subcommittee Chairman Greg Walden (R-OR) sent a letter to FCC Chairman Tom Wheeler asking the Commission to hold off on votes on the controversial items until the new administration is in place.
The letter states, “The most important challenge for the Commission over the next ten weeks is to ensure a successful broadcast incentive auction. The successful completion of the auction will provide needed spectrum to meet America’s wireless broadband needs and ensure that Americans continue to enjoy the local news and national programming broadcasters provide. As Representative Henry Waxman (D-CA) and Senator Jay Rockefeller (D-WV) noted during the 2008 Presidential transition, it would be counterproductive for the FCC to consider complex and controversial items that the new Congress and new Administration will have an interest in reviewing. We strongly urge you to concentrate the Commission’s attention and resources only on matters that require action under the law and efforts to foster the success of the broadcast incentive auction.”
A U.S. District Court in Texas issued a preliminary injunction preventing the Department of Labor from implementing and enforcing its new overtime regulation that was set to go into effect December 1. The regulation would have raised the salary and compensation level needed for white collar workers to be exempt from being paid overtime to $47,476 ($913 a week). The previous salary level was $455 a week or $23,660 annually.
The court concluded that the DOL’s salary level under the rule was “without statutory authority” and that the court has the authority to “enjoin the final rule on a nationwide basis.” For more on the court’s ruling, please click here for a legal advisory from Pillsbury Withrop Shaw Pittman LLP
The Washington, D.C. law firm Pillsbury Winthrop Shaw Pittman LLP created a report on a number of issues that will be faced by the new President and Congress in the upcoming year. The full report, titled Pillsbury 2016 Post Election Update, is available here.
The report is organized by a number of practice sections and discusses what will likely happen across a number of industries, including communications, in the next four years.
On the subject of communication policy and regulation, the report states that a Republican-controlled FCC can be expected to either roll back or choose not to enforce the numerous regulatory mandates that have been adopted by Tom Wheeler. “These could include: repeal of net neutrality, loosening restrictions on ownership of radio and television stations; and increased funding for Universal Service programs.”