Category Archives: Legislative Update

There’s No Sunshine in Michigan

By: Jane Briggs-Bunting,
President, Michigan Coalition for Open Government (MiCOG)
Reprinted by permission

Jane Briggs-Bunting

As citizens around the country celebrate the 13th annual national Sunshine Week from March 11-17, Michigan residents have nothing to cheer.

A series of open records bills that would put Michigan in sync with the rest of the country are buried, once again, in the state Senate Government Operations Committee through the actions of Senate Majority Leader Meekhof, R-Grand Haven.

Despite unanimous bipartisan support in the House for the Legislative Open Records Act spelled out in House Bills 4148-4157, Sen. Meekhof will not move the bills out of the committee that he chairs, or even allow a vote within the committee.

Michigan is the only state in the nation in which state law exempts the governor and lieutenant governor from the requirements of Michigan’s Freedom of Information Act. In 1986, then-Attorney General Frank Kelley issued an opinion that the Michigan Legislature also is exempt from FOIA. Current Attorney General Bill Schuette’s office recently reconfirmed that opinion.

This makes Michigan a FOIA outlier among the states. It means the citizens here have no right to request and obtain records from their governor and lieutenant governor (a critical issue as the Flint water debacle unfolded) or their elected representatives.

City councils, township and school boards, local and county governments are all required under FOIA to provide public records — except in the case of a limited number of exemptions — to people who request them. But what is required of local public officials is not required of Michigan’s state elected officials.

The Michigan Supreme Court summarily exempted itself from FOIA’s requirements when the law was passed in 1976. The high court ruled that FOIA’s mandates violated the separation of powers of the three branches of government, and that the legislative and executive branches could not compel the judicial branch to be covered by FOIA. So now Michigan citizens have no way of making the governor, lieutenant governor, legislators or justices respond to FOIA requests.

 Meekhof told a group of journalists last year that only they care about FOIA. Journalists do file many FOIA requests as part of their job to watchdog government at all levels. But everyday citizens also file FOIAs and plenty of them, as we at the Michigan Coalition for Open Government know well.
Our FOIA is not perfect. Improvements are needed. High fees are still an issue for citizens seeking public records.
Another major loophole is in delivering records sought from public bodies. By statute, public officials are required to respond to a FOIA request within a maximum of 15 business days. Within that time period, they must respond by granting or denying the request all or in part. However, there is no deadline for when those records must actually be provided.
This is a loophole that some public bodies already have used to slow down turning over records. Michigan State University played this game initially with FOIA requests by media over the Larry Nassar case. Flint requesters also met, at times, with similar delays.
The bills making up the Legislative Open Records Act would be a major step forward toward making state elected officials more accountable.  The current lack of accountability and transparency earned Michigan an F grade in 2015 in the Center for Public Integrity’s survey of all 50 states. Michigan should earn another F in the next survey if lawmakers don’t pass the Legislative Open Records Act.
This is Sen. Meekhof’s last term due to limits. The hope is that, in the next session, senators will join their House colleagues and make themselves, the governor and his lieutenant subject to FOIA — and that the new governor signs the bills into law.
Jane Briggs-Bunting is a former reporter, editor, journalism teacher and ardent FOIA advocate. She is a board member and founding president of the Michigan Coalition for Open Government (MiCOG).
MiCOG is a nonprofit corporation founded to promote and protect transparency and accountability in government at the local, state and federal levels. For more information or to join, visit

Legislators and Staff Want to Quash Redistricting Subpoenas

According to a report in Gongwer, 25 current and former legislators and legislative staffers subpoenaed by plaintiffs challenging Michigan’s maps for the U.S. House, Michigan Senate and Michigan House have filed a motion last week to quash those subpoenas.

The motion was filed at the U.S. District Court in Detroit, which is hearing the case, the motion argues the subpoena violates legislative privilege that protects legislative communications, are overly broad, request information unrelated to the plaintiffs’ claims and impose an undue burden on nonparty legislators, former legislators and current and former legislative staff.

Democratic voters have filed suit against the 2011 reapportionment plan passed that year by the Legislature as an unconstitutional partisan gerrymander.

Snyder Announces Special Election to Fill Johnson’s Seat

Governor Snyder set the special election schedule for the 2nd Senate District seat vacated by the resignation of State Sen. Bert Johnson.

The special election will track with the current August 7 primary and November 6 general election, according to a letter Snyder sent to Secretary of State Ruth Johnson. Democratic, Republican and Libertarian candidates have until April 24 by 4 p.m. to file affidavits of identity as well as nominating petitions or filing fees and until April 27 by 4 p.m. to withdraw. Candidates without political party affiliation have until July 19 by 4 p.m. to file petitions and affidavits of identity and July 23 by 4 p.m. to withdraw.

Johnson  pleaded guilty earlier this month to one count of conspiracy to commit theft from a federally funded program as part of a plea deal in a federal corruption case.

FCC to Release Additional Repack Funds

According to a report in Broadcasting & Cable, the FCC will  release an additional appropriation of repack funding over the next four to six weeks. The move comes after the FCC announced it has received verified and unverified post-auction repack expenses totaling $1.95 billion.

The move was praised by the National Association of Broadcasters.

“We intend to work with policymakers to ensure that broadcasters are quickly and fairly compensated for these expenses. Our overriding goal is a successful repack that protects viewers and is completed as expeditiously as possible,” said NAB’s Dennis Wharton.

The FCC signaled that there would be multiple allocations to cover expenses related to moving to new channels after the auction. The agency also signaled that the $1.75 billion would not be enough.

Register Now: State Capitol Advocacy Day is May 15

The MAB Board of Directors and
President/CEO Karole L. White invite you
 to attend a broadcast industry
State Capitol Advocacy Day on May 15. 
MAB members are invited to meet with their local lawmakers and leaders who chair committees of influence to the broadcast industry.
Registration Deadline: May 1, 2018
Why Attend State Capitol Day?

The purpose of this event is to showcase television and radio stations’ commitment to their local communities and the investment it takes to make that happen. This includes community service, local programming content and the broadcast industry’s economic impact and job creation.

With term limits in place, it is important that we maintain strong relationships with our legislators so that the MAB can most effectively represent your interests. What is the best way to do that? By having constituents visit lawmakers and explain why these issues are important to them.

In the past, we have supported or opposed several pieces of critical legislation, for example:

  • We work to oppose any proposal for state ad tax or tax on services.
  • MAB works to open up public notice revenue to our members by reforming the outdated public notice laws.
  • MAB helped pass legislation to standardize FOIA costs across the state.
  • MAB battles to keep the sales tax deduction on broadcasting equipment.
  • MAB works to ensure your station is not burdened by state regulations on the use of drones in newsgathering.
State Capitol Advocacy Day

Schedule of Events

8:00 a.m. – 9:30 a.m.
MAB Board Meeting and Breakfast

Christman Building, 208 N. Capitol Ave.

9:30 a.m. – 10:00 a.m.
Legislative Issues Briefing

Christman Building 208 N. Capitol Ave.

10:00 a.m. – Noon
 Meetings with State Representatives

House Office Building

11:30 a.m. – 1:00 p.m.
Lunch with Lawmakers

Capitol Building

1:00 p.m. – 3:00 p.m.
Meetings with State Senators

Binsfeld Office Building

Please NOTE: Appointments will be scheduled for you with each of your legislators. Our lobbyist, Rob Elhenicky of Kelley-Cawthorne and MAB’s Government Relations Director Elena Palombo will hold a briefing to update you on the state legislative issues. You will receive talking points and meeting materials two weeks prior to the event. You will also have a chance to meet with the legislators and staff during the legislative luncheon at the Capitol.
Registration Deadline: May 1, 2018

2018 Call on Congress Update

Left to Right: MAB Secretary/Treasurer Zoe Burdine-Fly (Market President, Townsquare Media), Fred Corbus (General Manager, WWMT-TV), Karole White, U.S. Rep. Fred Upton (R-6), MAB Vice-Chairman Gary Baxter (Vice President and General Manager, WSYM-TV), and MAB Chairman Peter Tanz (Senior Vice President, Midwest Communications)

On February 27 and 28,   MAB members traveled to Washington, D.C. for the 2018 National Association of Broadcasters State Leadership Conference and MAB Call on Congress.

Michigan broadcasters met with the Michigan Congressional delegation and their telecommunication staff to discuss: (1) the need to ensure that the repacking timeline and relocation funds are adequate as not to disrupt TV and radio broadcast service; (2) ensuring the ability of broadcasters and pay –TV operators to continue conducting private, market-driven negotiations for retransmission consent; (3) broadcasters’ opposition to the performance tax and MAB’s support of the Local Radio Freedom Act; and (4) broadcasters’ opposition to the Microsoft request for free spectrum to operate unlicensed devices.

Cyber Security FOIA Exemption Passes Committee

A bill exempting critical energy infrastructure and cyber security related information from FOIA was reported unanimously by the House Committee on Communication and Technology. HB 4973 exempts cybersecurity plans, assessments or vulnerabilities from FOIA requirements. Under current law FOIA exempts “records or information of measures designed to protect the security or safety of persons or property” from being disclosed. HB 4973 adds language that says “or the confidentiality, integrity or availability of information systems.”

An exemption would be carved out for information that identifies or provides a way of identifying a person that may become a victim of an incident involving cybersecurity. Exemptions do not apply to information submitted as required by law or any information required as a condition to receive a government contract.

FCC Proposes Ending Form 397 EEO Mid-Term Report

By: David Oxenford, Wilkinson Barker Knauer LLP,

At its meeting February 22, the FCC adopted a Notice of Proposed Rulemaking suggesting the abolition of the EEO Mid-Term Report, FCC Form 397. That form is filed at the mid-point of the renewal term of TV stations with 5 or more full-time employees and radio clusters with 11 or more full-time employees (see our post here about the form). As the content of the report is principally made up of the broadcaster’s last two EEO Public Inspection File Reports, and those reports are available in a broadcasters online public inspection file (which should be in place for virtually all broadcast stations when the final radio stations covert to the online public file next week, see our post here), the FCC concluded that there is no real reason that these reports need to be separately submitted, and thus proposed its elimination.

The Notice of Proposed Rulemaking did suggest that there were issues on which comments would be appropriate. The one bit of information that would not be readily available without the filing of the Form 397 would be which TV stations have 5 full-time employees and which radio clusters have more than 11 full-timers. That is important as Congress required the mid-term review of the EEO performance of stations meeting these employment thresholds. So the FCC asks how that information should be tracked. It is also noteworthy that the FCC will continue to conduct the EEO mid-term review of stations meeting these employment thresholds even without the filing of the Form 397 reports.

As the FCC says that they will continue to conduct that mid-term review, it is interesting that the FCC also asks in the NPRM what other EEO review should be conducted to assess the EEO performance of stations, seemingly at the insistence of Commissioner Clyburn who feared that the abolition of the Form 397 might send the wrong message about the FCC’s commitment to EEO even if its retention served no useful purpose. Commissioner Clyburn’s comments are available here. Seemingly, as the Commission will continue to do the EEO mid-term review, and continue audits and complaint-based reviews, many methods of assessment are already in place.

Comment dates on this proposal will be set when it is published in the Federal Register. This is one more proposal for procedural reform advanced as part of Chairman Pai’s Modernization of Media Regulation Initiative. As we wrote earlier, we are looking forward to more substantive proposals in the months to come.

The First EEO Audit of 2018 With a New Wrinkle – Notifications by Email and Responses Submitted Through the Online Public File

David Oxenford - Color
David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP,

Eight Michigan Stations on the FCC Audit List, including 2 commercial FM stations, 3 non-commercial FMs, 2 commercial TV stations and 1 non-commercial TV.

On Friday, the FCC issued a Public Notice announcing its first EEO audit of 2018. The Notice lists the almost 300 radio and television stations that will be subject to the review as well as the rules that apply to that audit. And those rules are somewhat new. First, the notice itself was not sent by mail, but instead by email – the first time that email has been used to deliver the notice of an EEO audit. Some broadcasters who received the email seemed surprised and wondered if the email really was an official FCC communication, so the FCC included verification methods in the letter including a link to the Public Notice. So, if you are listed on the Public Notice, you are subject to the audit.

Second, the procedure for responding to the audit is different. No longer does the broadcaster subject to the audit have to submit paper copies of all of its documents to the FCC through the FCC Secretary’s office. Instead, the response will be filed in the station’s online public file. The response must be uploaded to the online public file by April 12. There, the FCC can review that response (as can anyone else anywhere, at any time, as long as they have an internet connection). The audit requires that the broadcaster submit their last two EEO Public File Reports (which should already be in the online public file) and backing data to support the outreach efforts. Broadcasters subject to the audit should carefully review the audit letter to see the details of the filing.

If any station in your cluster is on the list of audited stations, all stations in that “station employment unit” (a group of commonly owned stations serving the same area with at least one common employee) must respond. If that cluster has 5 or more full-time employees, it must observe the FCC’s EEO requirements and respond to this audit. If a station that is being audited is involved in an LMA with another broadcaster, the audit may require that the broker provide employment information as well as the licensee. There are some exceptions where stations can be excused from the audit for stations renewed or audited in the recent past.

Be sure to take care in responding to the EEO audit as the FCC will be reviewing it carefully, and issues with the audit can lead to fines. Even though the FCC has allowed online recruiting to be the sole method in which a station recruits new employees (see our article here), if a station does not keep the required paperwork and submit it in response to the audit, the station can still be fined by the FCC (see the article here about recent EEO fines). So check the audit list twice to see if your station is on it, and if it is, take your time and answer carefully.

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.

Radio Industry Pushes for FM Chips Activation

NAB’s SmartBrief is reporting radio industry leaders and government agencies are putting the pressure on Apple to activate FM chips in its IPhones to provide critical information to the consumers during emergencies.  “Apple portrays itself as cutting edge and consumer friendly, we think it just makes good business sense to have a public service ethic that allows people to access local radio stations,” says National Association of Broadcasters Executive Vice President Dennis Wharton.

The latest push on Apple follows a decision in January by Samsung to unlock the FM chip on their devices. Samsung joined LG, Motorola and Alcatel, companies that have already allowed their users access to FM radio through the NextRadio app. The app uses a phone’s FM chip to access local radio stations.