Category Archives: Legislative Update

Performance Tax Reintroduced

According to a report in InsideRadio, supporters of a performance royalty on AM/FM airplay have introduced legislation in Congress that would require stations to pay a fee on music they use for over-the-air broadcasts. Introduced by Congressman Jerrold Nadler (D-NY), the ‘Fair Play Fair Pay’ Act would create a performance right on AM/FM airplay which Nadler says would put broadcasters on “equal footing” with internet and satellite radio services.

Like proposals made in the past, this bill would offer a carve-out for small stations with less than $1 million in annual revenue. Those stations would pay a flat $500 per-year royalty rate if the station operates commercially.

Whitmer Selects Campaign Manager

Gretchen Whitmer
Gretchen Whitmer

Democratic gubernatorial candidate Gretchen Whitmer has selected Jerid Kurtz as her campaign manager. Kurtz worked on a number of Democratic campaigns around the country, most recently as campaign manager to U.S. Representative Ami Bera (D-CA). He was the communications director for the unsuccessful Maryland Democratic gubernatorial candidate in 2014, is a former communications director for the Ohio Democratic Party and served as a press secretary to U.S. Representative Tim Ryan (D-OH).

NAB Wants Changes to the FCC’s Repack Plan

NABAccording to a report in Broadcasting & Cable, the National Association of Broadcasters (NAB) has petitioned the FCC to reconsider its “flawed” framework and timeline for repacking TV stations after the incentive auction, saying not to do so will hurt broadcasters and their viewers.

The auction’s official ending date is scheduled for the end of March and a final “Closing and Channel Reassignment Public Notice,” announcing who won what, is expected to be released mid-April. From that point, broadcasters remaining on the air have 39 months to move to new channels. The FCC has said a deadline is needed so that the spectrum forward auction bidders, paying almost $20 billion, can be freed up.

In a filing with the FCC March 17, NAB says the agency made mistakes in setting up the auction, including making it overly complicated and not letting stations that had dropped out back in, and created a framework for repacking that does not sufficiently take into account the “unprecedented logistical and operational challenges” both for the commission and industry.

Voters Could Ban Warrantless Searches Of Electronic Data

capitol3Under a House Joint Resolution C (HJR C), introduced by State Representative Jim Runestad (R-44), Michigan voters would get a chance to say whether the state’s Constitution should be amended to protect “electronic data and electronic communications” from warrantless searches. The constitution already states “the person, houses, papers, and possessions of every person shall be secure from unreasonable searches and seizures.” Cell phone call logs, text messages and computer files, along with other electronic data would be added to that list under the resolution.

According to a report in Gongwer, Runestad stated that “I think there is a crying need for this because some law enforcement agencies have interpreted the constitution to not include electronic communications. New technology exposes people’s private lives in unexpected ways and his amendment would give citizens the certainty of privacy protection.”

HJR C has been referred to the House Committee on Judiciary.

Relaxed Rules Announced for FM Translator Locations

According to the Broadcast Law Blog, the FCC has moved forward with the new rules to relax the limits on where licensees of AM stations can use FM translators to rebroadcast their stations. The new rules allow the location of these translators so that their 1 mv/m coverage area does not extend beyond 25 miles from the AM station or beyond the AM station’s 2 mv/m contour – whichever is greater. Up to now, the translator had to stay within the lesser of those two areas.

According to a Federal Register notice, the new rules are effective on April 10.

Oxenford: Radio Ownership Subcaps on the Table for FCC Review

David Oxenford - ColorBy: David Oxenford, Wilkinson Barker Knauer, LLP
www.broadcastlawblog.com

We’ve written (see, e.g. our articles here, here and here) about the pending petitions asking the FCC to reconsider decisions reached last year to end the UHF discount, to leave the TV local ownership rules in place and to make attributable new TV Joint Sales Agreements, and to not adopt any change in the FCC radio ownership rules in “embedded markets.” Recently, that list of items on the table before the FCC has expanded, with a number of radio groups making a concerted push to change the FCC rules on ownership “subcaps” – limiting the number of AM or FM stations that can be owned in a single market. Thus, while a broadcaster can own up to 8 radio stations in the largest markets, no more than 5 can be either AM or FM. In the smallest markets, broadcasters can own up to 3 as long as they do not exceed half the stations in a market, but only 2 can be of the same service. The new petitions seek to eliminate those subcaps, allowing owners to own up to the maximum number of stations in a market without regard to whether those stations are AMs or FMs.

A group of radio broadcasters have filed a letter with the FCC asking that these subcaps be abolished, citing the change in the media landscape in the 20 years since the rules were adopted. A more detailed economic study was submitted by a Syracuse radio broadcaster, here, showing that the growth in digital and mobile advertising to local companies already exceeds the share of advertising enjoyed by radio generally, and is likely to grow in the coming years. Google alone, according to this analysis, has as much local advertising in Syracuse as the entire radio industry. To compete against these growing new media entities that are eating into local advertising dollars, the radio broadcasters have asked that they be allowed to own more radio stations in a single service – AM or FM – than currently allowed.

As the FCC has told the Court of Appeals (where some parties filed an appeal of last September’s ownership decision) that they plan to review the entire ownership decision, not just those areas singled out by petitions for reconsideration, the radio ownership issue is now before the FCC. There has been some limited grumbling against these new proposals, some observers suggesting that AM radio would be further imperiled if big broadcasters gave up their AM holdings to pursue the ownership of more FM stations. Of course, if that were to happen, there would be nothing stopping ethnic programmers and others who are making more and more uses of the AM spectrum to acquire more AM stations, perhaps at lower prices, to pursue their innovative programming. This is an issue that will be debated in the coming months, as broadcasters adjust to the reality that all of the old rules are now subject to reexamination by this new FCC.

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.

Senators Push Open Records Proposal Despite Opposition

capitol3Three Republican Senators plan to introduce legislation mirroring a House package of bills that expands the Freedom of Information Act (FOIA) to include the governor’s office and the legislature, despite their caucus leader’s resistance to the idea. According to a report in Gongwer, Senate Majority Leader Arlan Meekhof (R-30) has opposed expanding FOIA to the legislative branch, specifically citing concerns over communications between constituents and their legislators.

But, both the House package and the bills expected to be introduced by Senator Tonya Schuitmaker (R-26) and Senator Rick Jones (R-24) exempt communications between constituents and their legislator from being disclosed. The bills would remove the current FOIA exemptions for the governor, lieutenant governor, and executive office employees and create a new part to the act, the Legislative Open Records Act, which would subject the Legislature to the disclosure provisions of FOIA. Records currently exempt from disclosure under FOIA would remain exempt as well.

Radio Groups Petition the FCC to Review the AM/FM Subcaps

According to a report from Inside Radio, six radio groups, including Alpha Media, Connoisseur Media, East Arkansas Broadcasters, Galaxy Communications, Jackson Radio Works and Roberts Communications, are requesting that the FCC review the AM/FM radio subcaps as the agency considers relaxing broadcast cross-ownership regulations. While the FCC previously stated that the subcaps promote competition, the groups argue that FM translators, online streaming and digital technology have narrowed the gap that once separated AM and FM.

The subcaps currently limit an owner to no more than five stations on either the AM or FM band in the largest of markets. Last August, the FCC decided to keep the subcaps in place, stating that the agency saw enough “differences” between the two services to justify the limits.

Appeals an Issue Under Legislative Open Records Act

capitol3Under new legislation, which opens some legislative records, a court would not handle the appeals of refused documents as it is done under the Freedom of Information Act (FOIA). Instead, a bipartisan board appointed by the House Speaker and Senate Majority Leader would have the final say on any appeal. The legislation introduced in the House creates the Legislative Open Records Act (LORA), which mirrors much of the Freedom of Information Act. One of the key differences is the appeals process.

Under FOIA, a requester who was denied documents can take his or her appeal to court, where a public body can be fined or a person can be held in contempt for not complying with a judge’s order to release documents. Under LORA, the Legislative Council, which is a bipartisan and bicameral board made up of six appointees each from the Senate majority leader and the House speaker, with two required to be of the minority party, would handle the appeals.

Lawmakers crafting the proposal have said FOIA would be unenforceable if it were applied to the Legislature. The Council would be required to recommend disciplinary action to the speaker or Senate majority leader if it finds LORA was arbitrarily and capriciously violated. The council would also be required to publicly post those recommendations on its website. It would be up to the speaker or majority leader to move forward with the recommendations.