Recent Fine Cancellations Serve as Reminders to Double-Check FCC Fines and Fees

(L-R) Scott Flick and Warren Kessler

By: Scott R. Flick and Warren Kessler, Pillsbury Winthrop Shaw Pittman LLP

As Otis Redding noted many years ago, “everybody makes a mistake sometimes.” As recent events have demonstrated, broadcasters should keep this in mind the next time they are presented with a regulatory fee, proposed fine or other bill from the FCC. Consider the curious case of a North Carolina FM station that was issued a $3,000 Notice of Apparent Liability for Forfeiture (“NAL”) for filing its license renewal application in October of last year when it should have filed by August 1 (with all other North Carolina radio stations). The problem with that? The station had actually timely filed its application on July 30, and the October “application” at the heart of the NAL was only an amendment. The FCC also seems to have pulled the trigger a little too soon on two North Carolina FM translator stations that both supposedly late-filed their license renewals despite neither having had a license to renew until after the license renewal application deadline had passed. To its credit, the Media Bureau published a series of orders only weeks later cancelling these NALs.

The lesson is that even the FCC makes mistakes from time to time, and it is always worth checking before opening your checkbook. This extends to annual regulatory fees, where it is not uncommon for broadcasters to be overbilled or underbilled. In case of overbilling, broadcasters should not expect the FCC to go out of its way to spot a math error and spontaneously reimburse the licensee. At the same time, should the FCC accidentally underbill, broadcasters are reminded that “licensees are solely responsible for accurately accounting for all licenses and for properly paying regulatory fees” (and of course the 25% late payment penalty and any interest accrued on the bill).




FCC Issues First EEO Audit of 2020 Targeting 320 Radio and Television Stations – Reviewing the Basics of the FCC’s EEO Rules

David Oxenford - Color

David Oxenford

10 Michigan Stations on Audit List; 8 radio, 2 television.

By: David Oxenford, Wilkinson Barker Knauer LLP

The FCC on February 6 released another of its regular EEO audit notices (available here), asking that approximately 240 radio stations and about 80 TV stations, and the station employment units (commonly owned stations serving the same area) with which they are associated, provide to the FCC (by posting the information in their online public inspection file) their last two year’s EEO Annual Public File reports, as well as backing data to show that the station in fact did everything that was required under the FCC rules. Audited stations must provide copies of notices sent to employment outreach sources about each full-time vacancy at the stations as well as documentation of the supplemental efforts that all station employment units with 5 or more full-time employees are required to perform (whether or not they had job openings in any year). These non-vacancy specific outreach efforts are designed to educate the community about broadcast employment positions and to train employees for more senior roles in broadcasting. Stations must also provide, in response to the audit, information about how they self-assessed the performance of their EEO program. Stations that are listed in the audit notice have until March 23, 2020 to upload this information into their online public file.

The FCC has promised to randomly audit 5% of all broadcast stations each year. As the response (and the audit letter itself) must be uploaded to the public file, it can be reviewed not only by the FCC, but also by anyone else with an internet connection anywhere, at any time. The license renewal cycle which began last year adds to the importance of this audit, as a broadcaster does not want a recent compliance issue to headline the record the FCC will be reviewing with its license renewal (see our article here about the license renewal cycle). So, whether you are on the list or not, this is a good time for broadcasters to review what is required by the FCC’s EEO rules.

Last summer, at the Wisconsin Association of Broadcasters annual convention, I did a presentation on the FCC requirements for EEO compliance. The slides from that presentation are available here. The FCC rules were designed to bring new people into broadcast employment positions – looking for broadcasters to recruit from outside the traditional broadcast networks when hiring new employees. Not only should broadcasters be reaching out to their consultants and employees for referrals, and using their own airwaves to promote openings, but they need to be using outreach sources that are designed to reach all groups within a community to notify members of these groups about the availability of open employment positions at a station. While the FCC used to require that outreach be made to a plethora of community groups, it has now recognized that online recruitment sources alone can reach the entire community (see our summary of that decision here) – but these sources need to be evaluated regularly to assure that they are in fact bringing in applicants for job openings from throughout a station’s employment area.

Stations need to keep the required documentation to demonstrate their hiring efforts, as the failure to have those documents can still lead to fines (see our article here). The documents should show not only the station’s hiring efforts in connection with job openings, but also the supplemental efforts that they have taken, even where they have not had job vacancies, to educate their community about broadcast employment and to train their employees to assume more responsibilities. Stations should review their policies to make sure that they have the documentation to meet an FCC audit to make sure that the station’s EEO program is regularly bringing in recruits from diverse sources and that the station has done the required non-vacancy specific educational efforts on broadcast employment.

The FCC itself, when it abolished the FCC Form 397 EEO Mid-Term Report, promised to review the effectiveness of its EEO rules. A Notice of Proposed Rulemaking looking at how to make the program was released last year, bringing in some interesting proposals (see our article here). The proposals made in that proceeding are likely going to require further public comment before they can be adopted so, for now, the rules as they are remain in effect. As EEO enforcement was last year transferred to the FCC’s Enforcement Bureau (see our article here), we can expect that enforcement will be vigorous.

Consult with your attorneys to get a thorough understanding of the EEO rules and talk with the employees involved in employment matters at your station to make sure that they understand what they should be doing and are keeping the paperwork necessary to demonstrate your compliance with the rules. The FCC continues to enforce its rules and impose fines on stations that cannot demonstrate compliance, so make sure that you comply with the FCC’s obligations on EEO matters.

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. 




Quick Thoughts on a Few Political Broadcasting Legal Issues to Survive the Primary Season

David Oxenford - Color

David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP

One presidential caucus down, 49 (primaries and caucuses, plus a few more in the territories) to go in the next four months – with primaries for Congressional, state and local offices stretching out through August. This presidential primary race has already seen unprecedented amounts of advertising on local stations, including through network advertising buys. Based on campaign announcements made in recent days, the advertising is likely to only increase as we move to the Super Tuesday states. As the Democratic party nomination race heats up, broadcasters are likely to continue to see a flood of political buys, as candidates, PACs and other groups try to get the last word before the voters go to the polls. Here are four issues that broadcasters should be considering in this active, condensed broadcast season:

  1. Practice Inventory Management. In the last days before an election, there will be many demands on the commercial inventory of many stations, and stations will need to be careful in managing that inventory. Remember, all candidates have the right to buy equal time to the time aired by opposing candidates in the prior 7 days. While candidates cannot sit on their equal opportunity rights until the last minute, equal opportunity buys can place real demands on your commercial inventory, especially if one candidate tries to reserve lots of time in the days immediately preceding a vote. Plus, you will be getting demands from candidates for new time, and requests from PACs and other political advertisers. Thus, be sure that you have practiced wise inventory management so that there is room for all of the spots that you are obligated to run. Be particularly careful about selling a large schedule to one candidate now, reserving big blocks of time in the final days before the primary date, as opposing candidates will need to be able to get their equal opportunities before the primary – even if you have to bump commercial advertisers – and potentially eat into program time.
  2. Weekend Access. The FCC has said that if a station has, in the year prior to the election, made its employees available to a commercial advertiser for new orders or changes in copy on the weekend prior to an election, they need to make employees available for those activities to political candidates. Even if the station completely shuts down on the weekend, and no salesman ever signs a deal with an advertiser during a Saturday golf outing and no weekend employee ever agrees to change the copy on a big advertiser’s spots, the station may still need to make employees available during the last weekend before the election to allow candidates to exercise the equal opportunity rights discussed above. Start planning now as to the staffing you may need to handle last-minute political requests that weekend before the primary.
  3. Be Prepared for Take-Down Demands. In the last days before any election, the ads can get more pointed, and some may trigger take-down notices from candidates who are being attacked. Remember, if the attack ad is run by a candidate’s authorized campaign committee, you can’t censor the ad based on its content. That means you are legally forbidden to pull the ad even if it lies about the opponent. But ads bought by PACs and other non-candidate groups can be refused based on their content. So you need to carefully evaluate the claims made by the party demanding that the spot be pulled, because if the claims made in the spot are in fact false and defamatory, the station could have liability for continuing to run the non-candidate attack ads after receiving notice demanding that they be taken down. We wrote more about this subject here and here.
  4. Keep Your Public File Up to Date. While you may be incredibly busy just getting political ads on the air, don’t forget your public file obligations. The required information about advertising buys by candidates and issue advertisers (including, for candidate and federal issue ads, all the information about the schedule bought, the price paid, the class of time for the spots purchased) need to get into the political file “immediately” – i.e., on a same-day or next business day basis – so that other candidates and the public can see what has been bought. With the recent FCC rulings requiring stations to disclose all the federal candidates, all the federal offices, and all the national issues that are included in any federal issue ad (see our posts here and here).), you need to have staff ready to fulfill your obligations.

Only nine more months and political season will be over, when your station can go back to simply dealing with its normal commercial advertisers. Until then, you need to deal with all of these issues. More on political advertising can be found in our Guide to Political Broadcasting, here, and in the slides that I recently used in a webinar on political broadcasting issues that I did last week for broadcasters in 4 states (available here). Remember, none of this guidance is definitive, as facts are really important in assessing any legal issue – especially in the political broadcasting context. But these guides can help to identify the issues that you should be considering. For now, be prepared for the onslaught of political advertising issues, and have your communications lawyer’s phone number on speed dial!

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. 




Did You Know that There is a Rule that Broadcasters Have to Tell Their Audience that a Program Is Recorded When It Seems to Be Live? – FCC Sends a $50,000 Reminder

David Oxenford - Color

David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP

Did you know that the FCC has a rule that requires that a broadcaster notify its audience that a program has been pre-recorded when the program “creates the impression” that it is live? Probably many broadcasters had forgotten about that rule (if they ever knew it existed). This week the FCC’s Enforcement Bureau entered into a Consent Decree with Salem Media Group, in which Salem agreed to pay a $50,000 penalty and set up a monitoring and compliance plan for 3 years, after admitting that it violated this FCC rule. The Enforcement Bureau specifically states that the action “will send a signal to the industry that the Commission remains vigilant in its duty to ensure that licensees adhere to the live broadcasting rule.” Consider yourself warned!

Section 73.1208 of the FCC’s rules requires broadcast stations to disclose to their audience that program material is prerecorded when “time is of special significance, or . . . [when] an affirmative attempt is made to create the impression that [the program material] is occurring simultaneously with the broadcast.” The program that led to the Enforcement Bureau action was called HealthLine Live, airing on Saturdays on over 20 Salem stations. The FCC, in its initial investigatory letter to Salem station KRLA(AM), the originating station (a letter available, as of the date of this article in the station’s public file), noted that because the word “Live” was in the title of the program, and because the program featured listener calls, the program gave the impression that it was being broadcast live. Reviewing the transcripts of the program provided by the licensee, it certainly seemed to convey the impression that the program was a live discussion of health issues.

The FCC began its investigation as a listener complained to the FCC that the program could not be live as the host had died before the program was broadcast. The program apparently continued to run for several months between the date that the listener stated that they originally heard the program after the host’s death and the date that the listener filed the complaint with the FCC.

In response to the FCC’s investigatory letter, the licensee admitted that the program was in fact prerecorded, and that the host was indeed dead. Because of the number of stations that broadcast the program, and the fact that only a handful of those stations mentioned to their listeners that the program was prerecorded, the FCC determined that a significant penalty was appropriate.

The rule requires that broadcasters notify their audience when a seemingly live program has in fact been prerecorded. That notification must come at the beginning of the program and be clear and understandable to the audience. On TV, the rule states that the notice can be given either visually or aurally. Commercials, promos and PSAs are exempt from the requirement.

With the warning provided by this case, broadcasters need to make sure to review all of their programming to be sure that they are not airing programs, or segments of programs (including any network programs), that appear to be live but are in fact not live, without providing notice to their listeners or viewers. Don’t re-run a talk show when the host is on vacation without mentioning that the program was recorded at an earlier date. Don’t include pre-taped phone calls in a program without providing notice that the calls have been prerecorded. If you include some live and some prerecorded calls in a program, disclose at the beginning of the program that portions of the program have been prerecorded. With the explicit warning that the FCC has provided in this Consent Decree, broadcasters need to be vigilant to avoid problems that can result in a costly lesson.

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. 




Reminder: Lowest Unit Rate in Effect January 25

MAB Washington Attorney David Oxenford has advised broadcasters throughout the country regarding the effective date for the lowest unit rate ahead of the presidential primaries.  In Michigan the effective date is January 25, 2020.  Stations should be certain station employees understand the requirements that go along with political advertising, including lowest unit charge and the expanded public file disclosure obligations issued by the FCC in mid-October.

For more on issues computing lowest unit rates, see David’s articles here, here and here (this last article dealing with the issues of package plans and how to determine the rates applicable to spots in such plans), and his Political Broadcasting Guide for Broadcasters.

MAB members might also view a November, 2019 webinar, “Preparing for the 2020 Elections” with David Oxenford, Wilkinson Barker Knauer LLP and Bobby Baker and Gary Schonman, FCC.  The webinar recording is available in our webinar archives here (member password required).




Governor Asks MAB to Join Complete Count

By: Karole L. White, President/CEO
Michigan Association of Broadcasters

The Census is not just important to the state, its citizens and your audience, it is vital to broadcasting. Market rankings are determined by Nielsen using the census in part. Getting a strong and complete count may help you maintain or improve your market rating and your advertising dollars. So, to help promote a complete count is actually helping your station and company.

Governor Gretchen Whitmer has asked the members of the Michigan Association of Broadcasters to help Michigan get a Complete Count. The Governor appointed me as your representative on the Complete Count Committee.

We are asking every station to help in their own way. If you have daily news, a weekly news program, on-air personalities or if you do editorials please feature different stories about the census count. Some project ideas will be provided on the MAB website shortly. Your station could work with others in your community and have a call center where experts can answer the census question from citizens. You could sponsor a Stand Up and BE Counted day at a local library to answer questions. Get your creative people on this. I know you can and will do something unique to your station. You will receive a survey electronically in the next few days. Fill out and return it with you the name of your Complete Count team leader. We will be reporting participation back to the Governor. This is why we will be asking you to estimate the cash value of your activities.

This year more than every we need to show the value of Michigan Broadcasting to our state as they look for ways to solve road funding. The Governor and some of the lawmakers have mentioned expanding the sales tax. They say nothing is off the table. We need to continue to prove our worth. Promoting a complete count helps tell the story.

Some of you may get an advertising buy from the Federal Census Bureau. It will be focused in certain hard to count areas. Whether you get a federal buy or not, we all need to pitch in for our own good. The Michigan Census Committee is separate from the Federal Census Bureau and operates under separate budgets.

National and regional marketers plan their media based in part by DMA. To move from your ranking to a lower one cause some of your to loose advertising dollars. More info to come.




“Come See Us At The Superb Owl” – Don’t Try This At Home! 2020 Update on Super Bowl Advertising and Promotions

Mitchell Stabbe

Mitchell Stabbe

By: Mitchell Stabbe, Wilkinson Barker Knauer, LLP via the Broadcast Law Blog

For several years, I have posted guidelines about engaging in or accepting advertising or promotions that directly or indirectly reference the Super Bowl without a license from the NFL (see, e.g. our articles here and here). It’s that time of year again, so here is an updated version of my prior posts.

The Super Bowl means big bucks. It is estimated that each of the three television networks that broadcasts the Super Bowl pays the NFL over $1 billion per year for the right to broadcast NFL games through 2022, including the right to broadcast the big game on a rotating basis once every three years. The investment seems to pay off for the networks. The Super Bowl broadcast alone generates hundreds of millions of dollars for the networks from advertisers. In addition to the sums paid to have their commercials aired (reported to be approximately $5.6 million for a 30-second spot), many advertisers spend more than $1 million to produce each ad. In addition, the NFL receives hundreds of millions of dollars from licensing the use of the SUPER BOWL trademark and logo.

Given the value of the Super Bowl franchise, it is not surprising that the NFL is extremely aggressive in protecting its golden goose from anything it views as unauthorized efforts to trade off the goodwill associated with the game. Accordingly, with the coin toss almost upon us, advertisers must take special care before publishing ads or engaging in promotional activities that refer to the Super Bowl. Broadcasters and news publishers have greater latitude than other businesses, but still need to be wary of engaging in activities that the NFL may view as trademark or copyright infringement. (These risks also apply to other named sporting events, for example, making use of the terms “Final Four” or “March Madness” in connection with the upcoming NCAA Basketball Tournament – see, for instance, our articles here and here.)

Simply put, the NFL views any commercial activity that uses or refers to the “Super Bowl” to draw attention as a violation of its trademark rights. Many of the activities challenged by the league undoubtedly deserve a yellow flag. However, the NFL’s rule book defines trademark violations very broadly. If anyone were willing to throw the red flag to challenge the league’s position, a review from the booth might reverse some of those calls, but seeking review of the NFL’s play may be risky, time-consuming and expensive.

Advertising that Refers to the Super Bowl: Under trademark law, use of a third party’s trademark is considered to be permissible “nominative fair use” if the use does not suggest a relationship between the advertiser and the trademark owner and the trademarked goods or services cannot be readily identified without using the trademark. Nevertheless, the NFL objects to any unlicensed advertising that refers to the Super Bowl. For example, the use in advertising of taglines such as “Stock Up for the Super Bowl” for beer or snacks or “Get the Best View of the Super Bowl” for big-screen TVs has routinely led to the prompt issuance of cease-and-desist letters. The NFL may make a claim directly against the advertiser, as well as against a broadcaster or other news organization that publishes the ad. As a result, many broadcasters may not wish to accept advertising that specifically refers to the Super Bowl unless the advertiser first shows that it has NFL approval.

Other Marks: To overcome these problems, many advertisers now replace any reference to the “Super Bowl” with “The Big Game.” When advertisers commonly began using this tactic, NFL Properties tried to register THE BIG GAME as a trademark with the United States Patent and Trademark Office. (The NFL also has federal trademark protection for “Super Sunday®,” “Gameday®,” “Back to Football®,” “1st and Goal®” and over a hundred other marks.) Over twenty different parties threatened to oppose the application for THE BIG GAME and the NFL voluntarily abandoned the application. We are not aware of any reported claims by the NFL against advertisers based upon the use of “The Big Game.”

Below are some examples of other activities that create a significant risk of an objection by the NFL:

“Super Bowl” Events or Parties: A bar or restaurant that has a public performance license to show television programs on their premises has the right to show the Super Bowl broadcast to its patrons, but if it uses the words “Super Bowl” in its advertising to attract customers, the league will object. Similarly, a company should not be listed as the sponsor of a “Super Bowl” event or party. And, under copyright law, a fee should not be charged to watch the game.

Famously, in 2007, the NFL sent a cease and desist letter to an Indiana church group that had used “Super Bowl” to describe a viewing party for the game and would charge $3.00 per person to cover the cost of snacks. The NFL, however, will not object to a church viewing party for the Super Bowl if it is held in the church’s usual place of worship and no fee is charged for attending. Churches can, however, request donations to help cover the cost of the event. In addition, the league will not object to religious organizations that refer to their events as Super Bowl parties, provided that no NFL logos are used.

Sweepstakes or Giveaways (Naming or Prizes): Promoters should avoid incorporating “Super Bowl” in the name of any sweepstakes or giveaway or as a prominent feature of their advertising. Further, the NFL takes the position that game tickets cannot be offered as a prize or award. In most situations, the “first sale” doctrine under trademark law provides that the buyer of goods may do whatever it wants with its purchase, including reselling it or giving it away. Faced with this argument some years ago, the NFL (as well as the other sports leagues) now includes language on the back of tickets, prohibiting their use as part of a sweepstakes, giveaway or other promotion. While some might argue that the purchaser of a ticket will not even see this language until after the purchase is completed and therefore the terms have not been agreed to and are not binding, this argument has not precluded sports leagues from bringing claims when broadcasters have tried to do unauthorized giveaways with tickets bought on the open market. Tickets to an event are legally considered a license to attend the event, rather than a good that is sold, and therefore entry can be conditioned on any basis that does not violate public policy. Given the actions we have seen taken by sports leagues in the past, we would caution against contests involving ticket giveaways unless authorized by the NFL.

Names of Programs: Even if a broadcaster is not with the network that carries the Super Bowl (this year, CBS), it may want to produce a television program about the game. In years past, the NFL or a local team has challenged local broadcasters that include the name of a team in a weekly program dedicated to discussions about the team. Thus, it would not be surprising if the NFL similarly objects to naming a pre-Super Bowl television program about the game if the program incorporates “Super Bowl” in the title. (As discussed above, there is a strong argument that such naming constitutes permissible “nominative fair use.”)

Special Advertising: Newspapers and online news outlets frequently have a special “section” that is devoted to coverage of the Super Bowl. The organization should be able to solicit advertising to accompany its stories, just as it does for any of its news reporting. It would be risky, however, to have an advertiser “sponsor” the coverage, particularly if “Super Bowl” is part of the name of the section or used in the special advertising.

Disclaimers: A disclaimer such as, “Not an Official Sponsor of the Super Bowl” or “This Advertisement (or Event) Has Not Been Licensed or Authorized by the NFL” will not ward off a cease-and-desist letter. Moreover, in the event of litigation, it is unlikely to provide a defense to a claim of infringement. And, even if the defense were ultimately successful, the defendant would still incur significant attorneys’ fees and other litigation expenses.

Masked Advertisements: A broadcaster who accepts an advertisement wishing good luck to the players or congratulating the winning team, but does not expressly promote the advertiser’s goods or services, still runs a substantial risk. In recent years, some businesses that have run “congratulatory” pieces in honor of some achievement by an individual athlete have been sued. In one case, a jury rejected the defense that the business was engaged in protected non-commercial speech and awarded $8.9 million in damages. Although this verdict was based on a violation of the athlete’s right of publicity, it would not be surprising to see a similar claim made by a sports league based on its trademark rights.

Don’t Get Cute: With tongue planted firmly in cheek, Stephen Colbert has poked fun at the NFL’s enforcement efforts by encouraging advertisers to use “Superb Owl” instead of “Super Bowl.” Last year, an Arizona company tried to register “Superb Owl” as a mark for running events. It was presumably no coincidence that the Superb Owl race was scheduled to take place in Phoenix, where the Super Bowl was being held, on the same day as the game. In addition, the company used the mark with slogans such as “Start Superb Owl Sunday Morning right with a football-themed tailgate party.” It should not have come as a surprise that the NFL opposed the application, which was ultimately withdrawn. Other marks opposed by the NFL include “Superbowling Spectacular” for charitable bowling events, “Souper Bowl” for soups and “Supa Bowl” (“Supa” means “large” or “big” in Pidgin English) for restaurant services. None became registered marks.

Risk Analysis: The policy underlying protection of trademarks is to protect consumers from deception and prevent customer confusion. That said, is there a meaningful difference between, for example, an ad that invites consumers to “Stock up for the Super Bowl” as opposed to one that says, “Stock up for the Big Game”? Do they convey different messages? Is one more likely than the other to confuse consumers into believing that the product being advertised is sponsored by, endorsed by, or otherwise affiliated with the NFL? Probably not.

So, why is the NFL so aggressive? The answer almost certainly lies in the fact that “official sponsors” of the Super Bowl and other trademark licensees would not be willing to pony up the huge sums they pay if a competitor could freely use the “Super Bowl” trademark or the game to promote itself without also paying a license fee. This risk is particularly high for those who have been promised exclusivity in a given category and the right to promote themselves as “The Official _____ of the Super Bowl.” Thus, the NFL has a huge incentive to prevent any advertising that may cross the line. Aggressive enforcement also has a significant deterrent effect on businesses who might be tempted to engage in Super Bowl-related advertising or promotions.

These limitations apply to commercial uses of the NFL’s marks. News organizations, however, have the right to use “Super Bowl” or other NFL marks in reporting on the game. (If they could not, viewers, listeners or readers might find themselves very confused!) That said, a news organization that wants press credentials for the game faces an additional risk if it accepts unauthorized Super Bowl-related advertising. Although news organizations are not required to have permission to report on an event, as a practical matter, their ability to do so from inside the stadium will be hampered by a refusal by the NFL to issue press credentials. (And, yes, we have seen professional sports leagues make such a threat.)

For these reasons, for most broadcasters and other news organizations, the better course is to be aware of and avoid any possible pitfalls, rather than run the risk of litigation.




Governor Whitmer State of State Broadcast Information

Governor Gretchen Whitmer has announced that she will deliver her second State of the State address on Wednesday, January 29.  As in the past, The MAB will offer feeds for both TV and radio of the address beginning at 7 p.m.

TV: The MAB TV feed will be unhosted, allowing your anchors to introduce and conclude the broadcast. The feed from the Capitol will be closed-captioned.

The address will be distributed to television via Galaxy 17 Ku-Band.  Full technical details will be made available on the MAB website as soon as they become available.

Commercial TV broadcasters should have received a clearance survey.  If you have not already filled it out please do so and get it in. We want as many stations to air the program live as possible to show the Governor the power of Michigan Broadcasters.  The survey is here.  If you need any additional information, contact Dan Kelley at the MAB: [email protected]

RADIO:  MAB is proud to offer to commercial stations the hosted Michigan Public Radio Network Broadcast which will be fed via streaming Internet or is available for stations to pick up off-air from their nearest MPRN affiliate station.  The MPRN broadcast will air from 7:00 p.m. straight up to 8:28:59 p.m.  The broadcast will be anchored by MPRN’s Rick Pluta and Laura Weber of WDET-FM (Detroit).

Commercial Radio broadcasters should fill out the clearance form here.  Commercial broadcasters using the MPRN feed should credit the Michigan Public Radio Network.

GOP Response: We have been advised that there will be no GOP recorded response; instead there will be a press release issued either the evening of the address or the next morning.

If you are unable to carry the State of the State Address on one of your channels, you may record and tape delay it to be played at a more convenient time. We are trying to get at least one TV and one radio station in each market to carry it live.

Broadcast details will be provided as they become available on the MAB Website.

Revised 1/13 re: GOP response

 




FCC to Host KidVid Webinar

On Thursday, January 23, 2020, from 1:30 – 2:30 p.m. Eastern Time, the FCC’s Media Bureau will host a webinar reviewing the functionality of, and changes to, the Commission’s revised Children’s Television Programming Report. The Report has been amended to implement changes adopted by the Commission regarding the children’s programming rules and broadcasters’ related reporting and filing obligations.

To join the webinar online January 23:

Click here

Click on “Join.”

Enter your name and email address.

During the event, those watching the live video stream will be able to email form-related questions that staff will address at the conclusion of the webinar. After the event, a recording of the webinar will be available for streaming. A link to the recording will be available at https://www.fcc.gov/general/childrens-educational-television-rules-and-orders.

Reasonable accommodations for people with disabilities are available upon request. Include a description of the accommodation you will need and tell us how to contact you if we need more information. Make your request as early as possible; although last-minute requests will be accepted, we may not be able to implement late requests. Send an email to [email protected], or call the Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

For additional information on this proceeding, please contact Evan Morris, Legal Advisor, Media Bureau, 202-418-1656 or by e-mail at [email protected]; or Kathy Berthot, Policy Division, Media Bureau, 202-418-2120 or by e-mail at [email protected].




PIRATE Act Passes Senate, and Now on to the President for Signature – Provides for Big Fines and Enforcement Sweeps in Big Markets

David Oxenford - Color

David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP

The PIRATE Act, to crack down on pirate radio, passed the Senate last week after having passed in the House of Representatives last year. It now goes to the President for signature. We’ve written about this legislation several times before (see for instance, our articles here and here). In this final version, it provides more tools for the FCC to crack down on pirate radio operators more quickly, plus it imposes obligations on the FCC to make more regularized enforcement efforts against pirate radio operators, although without necessarily providing any more resources with which to do so.

The bill increases the fine for pirate radio to a maximum of $100,000 per day of operation, to a maximum of $2,000,000. Fines can be imposed on anyone who “knowingly does or causes or suffers to be done any pirate radio broadcasting.” This would seemingly allow the FCC to go after not just the operators themselves, but also those who “suffer to be done” any pirate radio operation, which could possibly implicate landlords who knowingly allow pirate radio operations on their premises, consistent with some recent FCC cases (see, for instance, the one we wrote about here). In addition, the bill allows the FCC to immediately issue a Notice of Apparent Liability (a notice of a proposed fine) without having to first issue a Notice of Violation (a notice suggesting that there is a violation of the rules, but allowing the person accused of violating the rule to first respond before the FCC can issue the proposed fine). The accused party will still be able to argue that no fine should be imposed when it receives the Notice of Apparent Liability (e.g., the party could argue that it had a license or that it did not really broadcast at all, or at a power level that requires FCC approval), but the two-step process currently needed before issuing a proposed fine would no longer be required, thus speeding up enforcement efforts.

Under the bill, the FCC would also need to conduct an annual “enforcement sweep” of the top 5 radio markets based on the amount of reported pirate radio activity in the market, with follow-up monitoring 6 months after each sweep to assess whether the pirates have in fact ceased operations. These sweeps would need to be conducted without disrupting normal pirate radio enforcement activity in other markets. The bill requires all pirate radio enforcement activity to be cataloged and submitted in a report to Congress each year.

The bill would also prohibit the FCC from taking any action to preempt any state law that targets pirate radio, such as the laws in Florida, New Jersey, and New York which make such activity illegal under state law. The bill also directs the FCC to coordinate with the US Attorney’s Offices and the US Marshall’s office to collect fines and seize equipment – powers that already have been used by the FCC to act against pirate radio operators (see, for instance, our article here about the seizure of pirate radio equipment).

Bigger fines and quicker enforcement actions, plus calls for the closer monitoring of FCC action so that future FCC administrations cannot retreat from the commitment to enforcement shown by the current FCC, seem to bode well for broadcasters looking for protection against pirate radio operators. We’ll watch as these new penalties are rolled out when the Act becomes law.

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).

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