Category Archives: Legislative Update

DOJ’s Memo Turns up Heat on Marijuana Prosecutions – How are Advertisers Affected?

Attorney General Jeff Sessions has issued a memo directing federal prosecutors to enforce all the laws related to marijuana activities, in states where marijuana is legal for either medical or recreational use. Even though some states have removed state law restrictions on the sale or use of marijuana. Marijuana remains illegal under Federal law and is classified as a “Schedule 1” drug.

How are the advertisers affected? According to David Oxenford’s Broadcast Law Blog, because marijuana is illegal under Federal law and broadcasters are Federal licensees, running advertising for a substance that is generally illegal to use or possess under Federal law poses real risks for broadcast licensees.  Last week’s action by the DOJ means that it’s unlikely the Department of Justice or the Federal Communications Commission will give explicit clearance to radio and TV stations to air marijuana commercials in 2018.

2018 Broadcasters Legal Calendar Now Available

David Oxenford - Color
David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP,
BroadcastLawBlog.com

At the beginning of each year, we publish our broadcaster’s calendar of important dates – setting out the many dates for which broadcasters should be on alert as this year progresses. The Broadcasters Calendar for 2017 is available here. The dates set out on the calendar include FCC filing deadlines and dates by which the FCC requires that certain documents be added to a station’s public file. These dates just recently changed for noncommercial broadcasters as the FCC suspended its requirement that noncommercial stations file Biennial Ownership reports every other anniversary of their license renewal filing (see our post here). Instead, their reports will be due on the  December 1 deadline which is the deadline for all stations, both commercial and noncommercial, to file these Biennial reports. That deadline is included on this calendar. In some states there are political windows even in what seemingly is an off year for elections (two governors and several big-city mayoral races are particularly noteworthy). The date for the beginning of the lowest unit rate window for the November general election is on the calendar, but stations need to check locally for primary dates and for any special elections that may be held in their service areas. Also included are some copyright deadlines, including dates to make payments to SoundExchange for Internet streaming royalties.

While the dates on this calendar may change, and new ones may be added, this at least gives you a start in planning your regulatory obligations. And, remember, you should always talk to your own attorney to make sure what dates are important to you.

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.

Michigan State of the State Broadcast Feed & On-Site Information


On January 23, 2018 at 7 p.m., Governor Rick Snyder will deliver his final State of the State address to Michigan citizens. In response to a survey of our TV members, the MAB will once again up-link the State of the State address live via satellite for all stations to use.

The feed will be a clean (unanchored) feed, in HD and closed-captioned.  Please be aware that the Governor may not begin speaking right at 7 p.m.  Stations should be prepared to fill (with a live anchor) until the Governor begins speaking.

Stations should also be prepared for the an uncertain end time.  We have booked satellite time until 8:30 p.m.  Should we get any further guidance as to the length of the Governor’s address, we will post at MichMAB.com 

(MABP/ Public Television) stations will receive a seperate HD feed anchored by veteran State Capitol reporter Tim Skubick.   MPRN/Public Radio affiliates can receive a live anchored broadcast by Capitol Correspondent Rick Pluta and WDET’s Laura Weber Davis.)

We encourage all radio and television stations to carry this program live on their main broadcast channel and/or digital channels. Its important that we show State government the value of broadcasting.

Airing the State of the State also goes a long way toward helping to influence lawmakers on the value of supporting a strong  Michigan broadcast media. The State of Michigan is one of the largest sponsors of public education programming, a major funding source of your association. We hope you will make the address as well as the Democratic response available.

Central Michigan University Television (WCMU-TV) has generously offered to once again uplink the address for MAB with their mobile uplink/production truck. The address will be on Galaxy 17 at 91 degrees west. Detailed satellite information is available here.

We will pre-feed the Democratic Response in two test periods prior to the live address: 4 to 4:30 p.m. and again 6:30 to 7:00 p.m.; and again 90 seconds following the end of the Governor’s address.

And, after many requests last year, we are happy to provide code to embed the State of the State broadcast on your websites (radio and television), courtesy of WKAR-TV.  The embedded broadcast will  be closed-captioned and feature the Michigan public television broadcast hosted by Tim Skubick.  Embed code information for your website is available here.

RADIO:  Radio stations are also encouraged to air the address.  The MAB will provide an Internet feed with audio of the Tim Skubick-hosted broadcast.  The Internet feed will be available on the homepage of the MAB station.  Stations will find an embedded audio player on the MAB website, plus URL information for those who wish to use their own player.

Please complete this survey for us as soon as possible regarding your State of the State plans:  https://www.surveymonkey.com/r/RLZV869

***IMPORTANT INFORMATION FOR THOSE PLANNING TO ATTEND THE STATE OF THE STATE ADDRESS IN PERSON***

Michigan State Capitol Construction and “The Big Hole”

ON-SITE INFORMATION: It is important to note that due to State Capitol construction, parking on the streets surrounding the Capitol will not be available this year. Stations should be prepared to park vehicles, as available, on nearby streets.

Video/audio feeds from the House Floor will not be available as they’ve been in the past (again, due to Capitol construction). Stations should be prepared to use the MAB clean feed of the Governor’s address.

PRESS CREDENTIALS: Be aware the the Capitol Building will have increased security. Anyone entering the Capitol will be required to have special pre-apporved credentials, including news media. You may not get in if you just show up. Request credentials by contacting John Whetstone at (517) 373-5059 or cell: (517) 899-9671. Email: jwhetstone@house.mi.gov . THIS MUST BE DONE IN ADVANCE – DEADLINE IS JANUARY 16, 2018. You will need a photo ID to pick up credentials at the north entrance to the Capitol; a press pass will not do.

January Regulatory Dates for Broadcasters

David Oxenford - Color
David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP,
BroadcastLawBlog.com

The holidays are over, and while the regulation never stops, it is time to once again buckle down and look at what is on the horizon for broadcasters. While, in the next few days, we will have our typical look ahead at the broadcast regulatory agenda in Washington for the New Year, we also need to look at more immediate deadlines in the month of January. As we are at the beginning of a calendar quarter, the tenth of the month is the date for broadcasters to add their Quarterly Issues Programs Lists for the just completed quarter to their public file – whether it be the online public file for TV broadcasters and the many radio groups that have already converted to the online file, or into the paper file for those radio broadcasters waiting until the last minute before making the conversion to the online file as required by March 1. These Quarterly Issues Programs lists are the only FCC-required documents showing how a broadcaster has met its public interest obligations to serve their communities and, as we have written many times (see, for instance, here and here), the FCC considers them to be very important, and thus have led to numerous substantial fines for broadcasters who have not met the FCC’s requirements.

TV broadcasters also need to file their Children’s Television Reports with the FCC by the 10th of the month, and place information into their public file about how they complied with the commercial limits on children’s television programming. As we have written before (see our articles here and here), these, too have been the subject of numerous FCC enforcement actions when the Commission becomes aware that the reports were not filed, or were submitted late. So be sure to timely file these reports with the FCC, and place the information about compliance with the commercial limits in your online public file by the deadline.

TV stations that are being repacked to a new post-auction channel also must file their quarterly FCC Form 2100, Schedule 387 Transition Progress reports by the 10th of January. See our article here about the initial FCC reminder on these reports.

For AM broadcasters, the second window for filing for new FM translators to pair with their AM stations is open from January 25 through January 31. This window is for Class A and B AM stations who were not allowed to file in the window that opened earlier this summer but only if the stations did not buy a translator and use a 250-mile waiver in the window that the FCC had opened for moving translators last year. See our article here on this upcoming window. We would also expect to begin to see applications granted for many of the FM translator applicants that filed long-form applications last month for their translator applications filed in the window earlier this year for Class C and D AM stations. And keep in mind that, in connection with the upcoming window, there will be a freeze on the filing of minor change applications for FM translators, FM booster stations and low power FM stations from January 18-31.

The effective date of the elimination of the FCC’s main studio rules is January 8 (see our article here). So we would expect some broadcasters to begin to take advantage of the flexibility that this rule change provides as to the location and staffing of their station operations. Obviously, station operators still need to serve the public interest in their communities (and demonstrate it in the Quarterly Issues Programs Lists mentioned above), but their local studio and staffing requirements will disappear as of January 8.

For broadcasters who stream their signals on the Internet and other webcasters, as we wrote here, January 1 brings higher royalties to be paid to SoundExchange, as the royalties set by the Copyright Royalty Board at the end of 2015 for the period from 2016 through the end of 2020 have been adjusted for inflation. Also, under many of the royalty regimes in place under the CRB decision, minimum fees for the year must be paid to SoundExchange by the end of the month.

As in any month, these are just some of the highlights on the regulatory calendar. Every station should be on alert to make sure that they address those compliance issues that need to be addressed, when they need to be addressed, to avoid regulatory issues down road.

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.

State of the State Broadcast is January 23


On January 23, 2018 at 7 p.m., Governor Rick Snyder will deliver his final State of the State address to Michigan citizens. In response to a survey of our TV members, the MAB will once again up-link the State of the State address live via satellite for all stations to use.

The feed will be a clean (unanchored) feed, in HD and closed-captioned. MABP stations will receive a seperate HD feed anchored by veteran State Capitol reporter Tim Skubick.

We encourage all radio and television stations to carry this program live on their main broadcast channel and/or digital channels. Its important that we show State government the value of broadcasting.

Airing the State of the State also goes a long way toward helping to influence lawmakers on the value of supporting a strong  Michigan broadcast media. The State of Michigan is one of the largest sponsors of public education programming, a major funding source of your association. We hope you will make the address as well as the Democratic response available.

Central Michigan University Television (WCMU-TV) has generously offered to once again uplink the address for MAB with their mobile uplink/production truck. The address will be on Galaxy 17 at 91 degrees west. More detailed satellite information to come. We will pre-feed the Democratic Response in two test periods prior to the live address, and again 90 seconds following the end of the Governor’s address.

And, after many requests last year, we will be happy to provide code to embed the State of the State broadcast on your websites, courtesy of WKAR-TV.  The embedded broadcast will  be closed-captioned and feature the Michigan public television broadcast hosted by Tim Skubick.

RADIO:  Radio stations are also encouraged to air the address.  The MAB will be providing an Internet feed of the hosted broadcast, details are pending.

Please complete this survey for us as soon as possible regarding your State of the State plans:  https://www.surveymonkey.com/r/RLZV869

***IMPORTANT INFORMATION FOR THOSE PLANNING TO ATTEND THE STATE OF THE STATE ADDRESS IN PERSON***

ON-SITE INFORMATION: It is important to note that due to State Capitol construction, parking on the streets surrounding the Capitol will not be available this year. Stations should be prepared to park vehicles, as available, on nearby streets.

Video/audio feeds from the House Floor will not be available as they’ve been in the past (again, due to Capitol construction). Stations should be prepared to use the MAB clean feed of the Governor’s address.

PRESS CREDENTIALS: Be aware the the Capitol Building will have increased security. Anyone entering the Capitol will be required to have special pre-apporved credentials, including news media. You may not get in if you just show up. Request credentials by contacting John Whetstone at (517) 373-5059 or cell: (517) 899-9671. Email: jwhetstone@house.mi.gov . THIS MUST BE DONE IN ADVANCE – DEADLINE IS JANUARY 16, 2018. You will need a photo ID to pick up credentials; a press pass will not do.

Local Radio Freedom Act Reaches 220 Co-sponsors

The Local Radio Freedom Act (H. Con. Res. 13) has reached majority support in the U.S. House of Representatives, with 220 House co-sponsors. This means that the majority of our nation’s legislators in the House have taken a stand to protect local radio listeners and stations in their district from the threat of a performance tax. “We thank Congress for its support, and local radio looks forward to continuing to provide unparalleled promotional value to record labels and artists in the form of free airplay of music,” said NAB President Gordon Smith in a statement.

FCC to Review Ownership Cap

During the FCC Open Meeting on December 14 , the Commissioners voted along the partisan lines to move the agency a step closer to raising or eliminating the 39-percent ownership cap.

The rule adopted last week starts a process of review that many broadcast industry insiders view as a change to the cap, which currently limits a single owner from controlling stations with reach to more than 39 percent of U.S. households. The 39-percent  cap was last adjusted in 2004.

FCC Chairman Pai noted that technological advances and shifting consumer media habits mean “the marketplace has changed considerably” in the years since and require a new look at the cap.

BMI Consent Decree Court Decision

NABFrom the NAB Newsroom:

The 2nd Circuit released its decision in the Department of Justice’s appeal of the Southern District of New York’s interpretation of the BMI consent decree related to “fractional licensing.” The case arose out of DOJ’s two-year long review of the ASCAP and BMI consent decrees which concluded in August 2016. DOJ had rejected all of the PROs requested changes and issued an interpretation on the ability of the PROs to engage in fractional licensing, where BMI’s and ASCAP’s licenses would only cover the fractions of works attributable to their respective songwriters. DOJ supported NAB’s view, and concluded that the plain language of the consent decrees prohibits ASCAP and BMI from licensing anything less than full works, ensuring that a licensee who obtains a blanket license from the PRO has immediate access to every song in its repertoire and is indemnified for any claims of copyright infringement.

BMI appealed that conclusion to its rate court judge in the Southern District of New York, and that court agreed with BMI that the decree does not prevent fractional licensing. DOJ appealed the judge’s decision to the Second Circuit and NAB joined an extensive number of other licensees to support DOJ’s request for reversal.

The 2nd Circuit agreed with BMI and the rate court judge. The Court concluded in a short opinion that the consent decree does not explicitly prohibit fractional licensing. With respect to the arguments raised by NAB and other licensees about the harmful competitive effects of permitting fractional licensing, the Court noted that those issues were beyond the scope of the issue presented and that if DOJ agrees with NAB and others about competitive harm, it can seek a modification of the consent decree or bring an antitrust enforcement action.

This decision will likely have a significant impact on both radio and television broadcasters, who will no longer be able to rely on BMI and ASCAP blanket licenses to indemnify them from copyright infringement claims for all songs in the PROs’ catalogs. Instead, broadcasters will have to determine what fractions of songs they have licensed from BMI and ASCAP and where to obtain the remaining rights to play any songs not fully controlled by those two PROs. Such licenses could come from SESAC, GMR, or even music publishers themselves. The decision also increases the need for improved data transparency from the PROs, an issue that NAB has been advocating for on the Hill extensively.

FCC Adds Blue Alert to EAS

In an order adopted on December 14, the FCC created a dedicated Blue Alert event code in the Emergency Alert System so that state and local agencies have the option to send these warnings to the public through broadcast, cable, satellite and wireline video providers.

Blue Alerts warn the public when there is actionable information related to a law enforcement officer who is missing, seriously injured or killed in the line of duty or when there is an imminent credible threat to an officer.

Officials may also send Blue Alerts through the Wireless Emergency Alert system to consumers’ wireless phones.

Majority of House of Representatives Back Local Radio Freedom Act

Via NAB:

NABA majority of the House of Representatives now supports the Local Radio Freedom Act after a bipartisan group of five House members signed a resolution opposing “any new performance fee, tax, royalty, or other charge” on local broadcast radio stations. The Local Radio Freedom Act (LRFA) now has 220 cosponsors in the House, two more than is needed to constitute a majority in the 435-member body. There are 25 LRFA co-sponsors in the Senate.

Adding their support recently for the Local Radio Freedom Act in the House are Reps. Elizabeth Esty (CT-5), Tom Garrett (VA-5), Josh Gottheimer (NJ-5), Gregory Meeks (NY-5) and Dutch Ruppersberger (MD-2).

“We’re gratified that most House members stand with America’s hometown radio stations against a job-killing performance royalty,” said NAB President and CEO Gordon Smith. “For decades, local radio has jump-started careers of countless musicians and exposed legacy artists to younger listeners. We thank Congress for its support, and local radio looks forward to continuing to provide unparalleled promotional value to record labels and artists in the form of free airplay of music.”

Reps. Michael Conaway (R-TX) and Gene Green (D-TX) are the principal cosponsors of the Local Radio Freedom Act (H. Con. Res. 13) in the House of Representatives. Sens. John Barrasso (R-WY) and Heidi Heitkamp (D-ND) introduced a companion resolution in the Senate (S. Con. Res. 6).

“Congress should not impose any new performance fee, tax, royalty, or other charge relating to the public performance of sound recordings on a local radio station for broadcasting sound recordings over the air, or on any business for the public performance of sound recordings on a local radio station broadcast over the air,” reads the Local Radio Freedom Act.

The 220 House co-sponsors of the Local Radio Freedom Act include (new cosponsors in bold):

The Local Radio Freedom Act’s 25 Senate cosponsors are:

John Barrasso (R-WY)
John Boozman (R-AR)
Richard Burr (R-NC)
Thad Cochran (R-MS)
Susan Collins (R-ME)
Tom Cotton (R-AR)
Steve Daines (R-MT)
Mike Enzi (R-WY)
Joni Ernst (R-IA)
Deb Fischer (R-NE)
Cory Gardner (R-CO)
Maggie Hassan (D-NH)
Martin Heinrich (D-NM)
Heidi Heitkamp (D-ND)
John Hoeven (R-ND)
James Inhofe (R-OK)
Ron Johnson (R-WI)
Joe Manchin (D-WV)
Pat Roberts (R-KS)
Mike Rounds (R-SD)
Jeanne Shaheen (D-NH)
Dan Sullivan (R-AK)
Jon Tester (D-MT)
Tom Udall (D-NM)
Roger Wicker (R-MS)