Category Archives: Legislative Update

2016 Post Election Update

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.”

Leonard, Singh Named Next Caucus Leaders

(L-R) Rep. Tom Leonard (R-93); Rep. Sam Singh (D-69)

House Republicans chose Rep. Tom Leonard (R-93) on Thursday as their new House speaker for the 2017-2018 legislative session. The caucus also elected Representative Dan Lauwers (R-81) as the majority floor leader. Other member appointments include State Representative Lee Chatfiled (R-107) as speaker pro-tempore, Representative Robert VerHeulen (R-74) as the caucus whip and Representative Eric Leutheuser (R-58) as caucus chair.

The Democrats voted to elect House Minority Floor Leader Sam Singh (D-69) as their caucus leader. State Representative Christine Greig (D-37) will serve as minority floor leader.

Photo chart of 2017-2018 House of Representatives is available here.

Looking at the Election Results and the Future of Washington Policy For Broadcasters

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

This post was written on November 9, 2016

Before the November 8 election, in some of the legal journals that circulate in Washington, there was much speculation as to potential appointees to various government positions after the election. For positions such as the chairman of the FCC, many of these publications listed familiar DC names as likely appointees if, as expected by most pundits, Hillary Clinton was elected president. On the Trump side of the leger, speculation was much vaguer, as few had any real insight into how his administration would implement the broad but, in many cases, imprecise policies that Mr. Trump expounded during the election. Given the results of the election, those speculations are sure to ramp up as everyone tries to guess what will happen with broadcast policy in a Trump administration.

At this point, we can only speculate as to what that election will mean for broadcast policy – particularly at the FCC. One would certainly expect a lessening of the regulatory burden on broadcasters – as lessening burdensome regulations on businesses was a clear plank of the Trump agenda. The make-up of the FCC will likely facilitate such changes, as Republicans will no longer be in the minority at the FCC. A third Republican will join Commissioners Pai and O’Rielly on the FCC. These two Republicans dissented on many issues of importance to broadcasters – including the recently concluded Quadrennial Review of the Ownership Rules. Thus, a third Republican vote could have changed the decisions on many issues.

At this point, it would be speculation as to who will be appointed Chairman, essentially controlling the agenda of the FCC. But, at times like these, speculation is what people in Washington do. One name that has central to a Trump FCC is Jeffrey Eisenach, a visiting scholar and Director, Center for Internet, Communications, and Technology Policy at the American Enterprise Institute, a conservative “think tank” in Washington, who has been associated with the Trump transition teams planning for the possible transition of power. One of the existing Republican Commissioners will likely become Acting and potentially permanent Chair, and new names for FCC vacancies will likely arise in the near term.

Planning for a Republican administration may well change the thinking about how to proceed on many of the issues now on the table for broadcasters. The fight over the Ownership Rules, for instance, might be subject to reconsideration, asking the new Commission to reverse the decision that was handed down in August. That could replace the current strategy of an appeal to the Courts which, even if successful, would likely result in a remand to the FCC to adopt rules in line with the Court’s order. The appeal that the NAB has announced that it is pursuing could be abandoned if there was an indication that a new FCC would see things differently than the old one. Of course, the President-Elect Trump’s expressed hostility to big media companies is a wild card in this calculation. Other paperwork requirements, from EEO rules to public file obligations, could also be reviewed under a new administration.

FCC reform generally has been a signature issue of the Republican Congress, so such reform could advance under a government where Congress and the Administration are all under Republican control. Signature issues under such reform proposals have included more transparency in decision making, more rapid decision making, and requiring more economic analysis of the effects of any new regulation on those being regulated to make sure that the regulation is justified.

Question marks for broadcasters include antitrust policy, where candidate Trump has indicated some concern with businesses, including those in the media space, from getting bigger. Reform of libel laws (about which we wrote earlier this week) so that public figures have more avenues to pursue defamation actions, have also been advanced by the President-Elect.

Obviously, we are one day into a new reality, so this is still very much a developing story. We’ll be watching, and broadcasters need to be watching too.

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.

Media Bureau Chief Proclaims AM Revitalization FM Translator Filing Windows a Success

According to the report in AllAccess, FCC Media Bureau Chief Bill Lake declared the AM Revitalization filing windows for FM translators a “resounding success” in a blog post after the second filing window closed.

He noted that 671 relocation applications were filed in the first window for Class C and D AMs, and 90% have already been granted.  An additional 420 were filed in the second window open to all AM stations, with 265 granted so far. Additionally, 776 translators were sold or transferred in the two windows, with 631 already granted.

NAB Criticizes FCC’s Hold on Ownership Rules

The Federal Communications Commission’s (FCC) 2014 Quadrennial Review of media ownership regulations was posted in the Federal Register last week. In response, the National Association of Broadcasters sharply criticized the agency for retaining ownership rules that are stuck in the ‘70s.

In the blog post, entitled “Let’s Do the Time Warp Again—The FCC’s Ownership Rules Remain Stuck in 1975,” the NAB’s senior deputy general counsel Jerianne Timmerman attacked the commission for keeping the ban on the common ownership of a daily newspaper and a radio or TV station in the same market

Timmerman writes: “In maintaining a ban adopted in 1975, the FCC essentially concluded that little or nothing of importance has changed in the news industry and the marketplace position of print newspapers and broadcast stations for the past 41 years—a nonsensical position on its face.”

FCC Seeks to Clear 108 MHz in the 3rd Round of the Auction

fcc-logo_dark-blueIn a public notice released by the Federal Communications Commission (FCC), the agency began the third stage of the reverse spectrum auction on November 1. Bidding started with one, four-hour round on November 1 and will increase to two, two-hour rounds November 2 – 5, then increase again to three, one-hour rounds from November 7 until further notice.

The FCC said the new clearing target of 108 MHz for broadcasters will yield 80 MHz – or 8 paired blocks – of licensed spectrum for wireless use. The new clearing target marks a dip from the FCC’s goal of 126 MHz of spectrum in Stage One of the auction. That figure was subsequently reduced to 114 MHz in Stage Two of the auction after forward auction bidders failed to reach the $86.4 billion price target set by broadcasters in Stage One’s reverse portion. The forward auction bids fell short again in the second stage which ended after just one round. Stage Two bidders were up against a $54.6 billion price target, but the net proceeds reached only around $21 billion.

MAB Meets with Congressman Huizenga

(L-R) L-R: Tim Feagan (iHeartMedia/West Michigan); Kevin Dunaway (Heritage Broadcasting, Cadillac); Brad Lanser (Lanser Broadcasting, Zeeland); Cong. Bill Huizenga; Janet Mason (WZZM-TV, Grand Rapids); Brooks Blanton (WXMI-TV Grand Rapids); Elena Palombo (MAB).

On October 28, MAB staff and members met with Congressman Bill Huizenga (R-2). The MAB would like to thank members Janet Mason, Kevin Dunaway, Tim Feagan, Brooks Blanton and Brad Lanser for joining us at this important meeting.

We discussed the Spectrum Auction and the Congressman showed understanding of the brief timetable that the FCC has given to repack the TV spectrum and the challenges facing the broadcasters. He expressed great interest in the repacking process that will take place after the auction concludes, and asked to be kept updated on the FCC repacking plans. The Congressman has expressed his support for local radio and our position on copyright review and performance tax issues. The Congressman also expressed concern for the new Department of Labor overtime regulations set to take effect December 1 and was interested to hear how the new rule will impact the day-to-day operation of stations.

Drone Regulation Bill Passes Michigan Senate

capitol3Last week, the Michigan Senate unanimously passed Senate Bill 992. The legislation allows a person that is authorized by the Federal Aviation Administration (FAA) to operate unmanned aerial systems (a.k.a. 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 bill leaves some flexibility for the local government entities to regulate how the drones may be operated within their own municipality; however, those regulations must be consistent with the Federal Aviation Administration.

The MAB, along with the Michigan State Police, Michigan Telecommunication and Cable Association and Michigan Association of Realtors, supported this legislation. The MAB believes that this legislation is a balanced approach to regulating drone use. The bills recognize the growing economic and commercial use of the unmanned aerial vehicles across a wide variety of industries including, in our case, broadcasting. The legislation also balances the need for privacy and other considerations by prohibiting knowing and intentional harassment-type practices that interfere with the official duties of the first responders. The bill is now headed to the Michigan House of Representatives Committee on Communications and Technology.

Stage 2 Forward Auction Ends; Stage 3 Announced

fcc-logo_dark-blueThe Federal Communications Commission (FCC) announced that Stage 2 of the forward spectrum auction closed after only one round of bidding. This round generated bids of $22 billion, well short of the target of $56.5 billion for 114 MHZ.

The FCC said on its auction website: “Bidding in the forward auction has concluded for Stage 2 without meeting the final stage rule and without meeting the conditions to trigger an extended round. The incentive auction will continue with Stage 3 at a lower clearing target.”

On October 25, the FCC announced that the third stage of the reverse portion of the FCC’s broadcast incentive auction will begin November 1 at a 108 MHz clearing target.  According to Broadcasting and Cable, “the less spectrum the FCC reclaims, the fewer TV stations will get the big paydays many were hoping for. The FCC has 11 different spectrum targets. If the forward auction bidders don’t cover the stage 3 price, the next target is 84 MHz, which some see as the potential equilibrium point between broadcasters’ asks and forward bidders’ offers.”

“Electioneering” Ads Won’t Have to Disclose the Donors

The Court of Appeals for the D.C. Circuit declined to review a recent ruling which means that nonprofit political groups that sponsor “electioneering” ads won’t have to disclose the donors funding those ads. The appeals court’s denial of rehearing, likely ends a long-running challenge of Federal Election Commission (FEC) rules that require 501(c)(4) groups to disclose only those donors that specifically earmark their contributions for political ads.