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

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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).

There are no additional costs for the call; the advice is free as part of your MAB membership. 




MAB Will Offer Pool Feed for January 29 State of the State

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 a pool feed of the address beginning at 7 p.m. The MAB TV feed will be unhosted, allowing your anchors to introduce and conclude the broadcast.

We encourage all TV stations to take the raw feed and carry the address live over the air and on your website if you can. The feed from the Capitol will be closed-captioned. We are still planning for radio (which may be a hosted feed or, as with television, unhosted).

Full technical details to come, but the address will be distributed to television via Galaxy 17. Radio will be provided a hosted feed to be determined.

Commercial 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].

GOP Response: We will provide an FTP link for downloading the GOP response to the Governor’s State of the State. There will not be a satellite feed of the response. We have been advised (1/13) that there will be no GOP recorded response; instead there will be a press release issued either the evening of the address of 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

 




Neilsen: U.S. Hemp-based CBD market could be a $2+ Billion Industry in 2020

Nielsen is projecting that the U.S. hemp-based CBD market could be a $2.25 billion to $2.75 billion industry in 2020. These conservative projections already account for hampered FDA rulings and other possible speed bumps for the hemp-CBD marketplace.

Of course, broadcasters at this point are largely excluded from taking a piece of the cannabis advertising pie just yet due to complicated regulations. MAB Washington Counsel David Oxenford has written extensively about this on his Broadcast Law Blog.  

Writing on the company’s Insights blog, Rich Maturo, Vice President, Cannabis Practice, Nielsen notes that “while the regulatory roadmap remains ambiguous, one thing is clear: The next decade for the hemp-based CBD market has the potential to be a game changer for the traditional CPG and retail industry. We’ve identified a handful of developments to be on the lookout for in 2020 that may tip the scales for manufacturers and retailers. These developments will play out as federal regulators align on the legality and safety of hemp-based CBD consumer products.”

The developments Maturo says to look out for include:

1) Targeted educational efforts will rise. While education will remain a necessity for hemp-based CBD manufacturers and retailers, expect a rise in manufacturer-driven, educational efforts to hit health care providers. Nielsen’s Q4 Health Care Practitioner Tracking Study found that although 70% of the practitioners surveyed said they discuss CBD with their patients, only about one-in-three practitioners were knowledgeable about the laws surrounding hemp-CBD.

If the medical community is properly educated, its influence will be profound for the hemp-based CBD industry. In fact, over the next decade, Nielsen believes that primary health care practitioners may do more to drive trial and brand/format loyalty than traditional branding and marketing efforts. Nielsen’s Thinking Beyond the Buzz study found that medical advice is a major motivator to hemp-based CBD trial.

In fact, nothing aside from free product trials is more convincing than a health care practitioners’ guidance: 50% of hemp-CBD interested adults said this would motivate them to try a hemp-CBD product, versus 16% for a family member’s recommendation, versus 17% for a friend’s recommendation, versus 15% having the product manufactured from a familiar brand. And the demand is certainly there. In the coming years, hemp-CBD products positioned as substitutes for over-the-counter (OTC) solutions targeting arthritis, sleep and general pain will attract the largest percentage of non-CBD users.

2) CBD prices will fall. CBD manufacturers that narrow the price gap between hemp-based CBD products and their CPG equivalents will maximize the opportunities to compete within the CPG space. Currently, the price gap is large. Depending on potency, CBD products frequently range between four and 10 times the retail price of CPG products used for comparable needs. Production efficiencies linked to cultivation and extraction practices will affect product pricing. The number of U.S. hemp farmers will rise over the next decade, as will the multi-million dollar investments that Canadian Licensed Producers are making in cultivating hemp in the U.S. market. We also expect to see price efficiencies from the growing of hemp in Latin American countries. A recent study by Hemp Benchmarks reveals that nearly 50% of current hemp cultivators in the U.S. expect to increase the acreage they devote to hemp cultivation. All of these will set the stage to make hemp-derived CBD more affordable for producers/manufacturers, fostering lower prices at shelf.

3) Consumers will grow an appetite for ingestibles. Capsules, gummies and beverages will significantly grow their user bases, pending the FDA’s permission for manufacturers to legally infuse hemp-CBD extracts into ingestible products. In fact, Nielsen projections show that with FDA approval, ingestible formats could grow their existing user base as much as 250%-375% in a year’s time, as these are the formats that consumers are most familiar with. In addition, we know that these formats will benefit from recent technological advances in this space. For example, new water-soluble and nano-technologies both allow for more efficient absorption. We believe that over the next decade, categories that consumers use habitually or as part of their daily routine will contribute significantly to CBD growth and ultimately garner high sales due to replenishment frequency. CBD-infused beverages are especially a good fit for this—think coffee, functional waters, energy drinks, teas and sport drinks.

4) Consumers will pass their CBD curiosity onto their pets.  Hemp-CBD is exploding in the pet space, and a sizable portion of pet owners are already hopping on board. Our data shows that 37% of dog owners who give their dogs vitamins and supplements today say they’re likely to give their dog a hemp-CBD infused vitamin in the next 12 months. That said, we know from our Thinking Beyond the Buzz study that of those who claim to have given their dog a hemp-CBD product, more than 20% used a product not specifically formulated for a dog. As more U.S. adults adopt products from the hemp-CBD category, it’s imperative for pet CBD product manufacturers to provide a recognizable and valued level of differentiation between their products and those intended for human consumption to ensure that this number does not grow.

5) A battle at retail will emerge.  Over the next decade, traditional brick-and-mortar CPG retail channels, inclusive of food, drug, mass, club, convenience and dollar store channels, will begin to steal share from online CBD retailers, local specialty CBD retailers and vape and tobacco shops. An influx of new consumers will tip the scales for traditional retailers. Compared with current hemp-CBD users, our survey data shows that new CBD consumers who say they’re likely to consume CBD products in the next 12 months but have yet to consume are more than twice as likely to state that they’ll shop for CBD products at a grocery chain or mass merchandiser. These same consumers are more than 3.5 times more likely to state that they’ll purchase hemp-CBD products from a chain drug store.

With the rising appeal of hemp-CBD and ubiquity of CPG, the two industries have much to offer each other. As the regulatory outlook becomes clear, manufacturers and retailers can’t afford to ignore the still-nascent CBD space.




State Supreme Court Revises Courtroom Cell Phone Rules

The Michigan Supreme Court announced Wednesday (1/8) that cellphones will be allowed in state courts. The decision was announced after a public hearing and an opportunity for public comment. Previously, judges were allowed to set a policy on cell phones for their own courts.

Chief Justice Bridget McCormack said the new rule will make state courts more accessible. “Every courthouse and courtroom in the country should be open to the public that is very important,” she said. “Simply having a cell phone shouldn’t be a reason to deny access to the public.”

Justice McCormack said the state’s fragmented rules around cell phones were especially harmful for people who didn’t have lawyers. “Self represented litigants who are showing up don’t have a way to manage all the different rules and now there is standardization,” she said.

The MAB filed comments in a this proceeding. MAB Attorney John Ronayne explained in his comments how cell phones are now notebooks replacing pen and paper; they are cameras, video and audio recorders and a device to send video footage of interviews back to the station.

Under the new rules, cell phones need to be silenced while in the courtroom and cannot be used to photograph or record proceedings without a judge’s permission. Calls are not permitted while a court is in session.

Some clerks opposed the change saying cell phones could be used to photograph court documents – and might reduce revenue to the court. McCormack said photographing court documents will be allowed.

“Our view is that just as the courtroom must be accessible to the public so must court records be accessible. This branch of government belongs to the public.”

The new rule takes effect May 1st.

Thanks to Ben Thorp, WCMU




While You Were on Vacation: Looking at FCC Regulatory Actions over the Holidays and Deadlines for January

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David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP

While many of us were trying to enjoy the holidays, the world of regulation kept right on moving, seemingly never taking time off. So we thought that we ought to highlight some of the actions taken by the FCC in the last couple weeks and to also remind you of some of the upcoming January regulatory deadlines.

Before Christmas, we highlighted some of the regulatory dates for January – including the Quarterly Issues Programs Lists due to be placed in the online public file of all full-power stations by January 10. Also on the list of dates in our post on January deadlines are the minimum SoundExchange fees due in January for most radio stations and other webcasters streaming programming on the Internet. January also brings the deadline for Biennial Ownership Reports (postponed from their normal November 1 filing deadline).

In that summary of January regulatory dates, we had mentioned that the initial filing of the new Annual Children’s Television Programming Report would be due this month. But, over the holiday week, the FCC extended that filing deadline for that report until March 30 to give broadcasters time to familiarize themselves with the new forms. The FCC will be doing a webinar on the new form on January 23. In addition, the FCC announced that many of the other changes in the children’s television rules that were awaiting review under the Paperwork Reduction Act had been approved and are now effective. See our article here for more details.

Our summary of the January regulatory dates also mentioned the filing window that opens on January 29 for the April auction of new FM channels. The deadline for applications to participate in the auction is February 11 at 6 PM EST (see our article here). We did not mention another filing window falling in January, including one for amendments to pending applications for new LPTV stations or TV translators that had their proposals blocked by changes made during the repacking of the television band following the incentive auction. These applicants can amend their applications to remove these conflicts with repacked channels by January 31. See the FCC Public Notice of this filing window here.

New comment dates in rulemaking proceedings were also recently announced for January. Comments are due on January 22 on the FCC’s proposal to change the rules that preclude radio stations in one service (AM or FM) from duplicating programming on another station in that same service if the two stations serve substantially the same area. See our article here on the FCC’s questions about possible changes in this rule. Comments are also due on the FCC’s inquiry as to whether to allow “Franken FMs” – LPTV stations on Channel 6 providing analog audio programming that can be received on FM 87.7 – to continue to generate an analog audio signal to continue the FM services after the otherwise mandatory end of analog television broadcasting on July 13, 2021. See our article here on some of the issues raised by the FCC, and the Federal Register publication of this notice here setting the comment dates.

Also announced over the holidays was the FCC’s procedural reaction to the Third Circuit decision overturning its 2017 changes in the ownership rules – including the repeal of the broadcast-newspaper cross-ownership rules and the rules that allowed TV duopolies even in markets with fewer than 8 independent voices from those owning or programming stations in that market. With these and other rules back in effect after the Court’s decision, the FCC now requires applicants for a renewal of license or for the acquisition of a station through an assignment or transfer to demonstrate that they meet the ownership restrictions that were in effect prior to the 2017 changes. For more details on what is now required, see our post here.

It is also worth reminding stations that they should have updated their EAS certifications that expired back in November to authenticate EAS alerts transmitted through the IPAWs online alert system. The updated certification to authenticate these alerts was late in coming out, so the FCC gave stations until January 7 to have their systems updated. If you can’t meet that deadline, an STA is required. See our article here on this issue.

Finally, stations need to remember that we are in political season. Lowest unit rate windows are already open for ads targeting voters in Iowa and New Hampshire. These rates kick in on January 8 for the Democratic caucuses in Nevada, and on January 15 for the South Carolina primary. Only 3 days later, lowest unit rates for Presidential primaries or caucuses begin in Super Tuesday states including Alabama, American Samoa (D), Arkansas, California, Colorado, Maine, Massachusetts, Minnesota, North Carolina, Oklahoma, Tennessee, Texas, Utah, Vermont, and Virginia. Later this month, lowest unit charge windows for these presidential contests open in Puerto Rico, Hawaii, Idaho, Michigan, Mississippi, Missouri, North Dakota (D), Washington, US Virgin Islands, West Virginia, Guam (R), N. Mariana Islands (D) and Wyoming. Watch for the exact dates in your state – as well as the lowest unit rate windows for Congressional, state and local races in your communities. See our article here on the opening of the lowest unit rate windows.

Obviously, there are plenty of deadlines and other regulatory obligations coming up early this year. This is but a summary of some of the obligations we see as generally significant to broadcasters – but check with your own counsel to see if there are other deadlines that apply to your own station. Happy New Year – and good luck navigating the regulatory landscape of 2020.

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. 




Lowest Unit Rate Effective January 25 in Michigan

From MAB Washington Attorney David Oxenford;  Presidential primaries and caucuses are right around the corner, including the election-heavy day in March often dubbed Super Tuesday. This means stations in more than two dozen states will soon find themselves within the 45-day primary/caucus political window, which brings with it special obligations like lowest unit rates for candidates. With lowest unit charge windows opening on December 20, 2019 (Iowa), December 28, 2019 (New Hampshire), January 8, 2020 (Nevada), January 15, 2020 (South Carolina), January 18, 2020 (Alabama, American Samoa, Arkansas, California, Colorado, Maine, Massachusetts, Minnesota, North Carolina, Oklahoma, Tennessee, Texas, Utah, Vermont, and Virginia), January 23, 2020 (Puerto Rico), January 25, 2020 (Hawaii, Idaho, Michigan, Mississippi, Missouri, North Dakota, and Washington State), January 27, 2020 (U.S. Virgin Islands and West Virginia), and January 29, 2020 (Guam, N. Mariana Islands and Wyoming), stations should plan ahead to be sure 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 guidance on navigating election season, see our Political Broadcasting Guide for Broadcasters.




FCC Announces Deadlines for the Next Auction for New FM Channels – And a Filing Freeze

David Oxenford - Color

David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP

On Friday (12/13), the FCC released a Public Notice setting out the rules for the auction for new FM channels, which will being in April.  The Public Notice sets out the bidding process for the auction, and the dates for pre-auction filing deadlines necessary to participate in the auction. The notice also rejects several petitions asking that additional channels be added to the auction and one request for a deletion from the auction list. Thus, the channels to be sold in the auction remain the same as originally proposed. A list of the 130 available FM construction permits, with the minimum bid necessary for each of these channels, is available here.

The Public Notice sets out the following pre-auction dates and deadlines that those planning to participate in the auction must observe. These dates are as follows:

  • Auction Tutorial Available (via Internet) by January 22, 2020
  • Short-Form Application (FCC Form 175) Filing Window Opens January 29, 2020, 12:00 noon Eastern Time (ET)
  • Short-Form Application (FCC Form 175) Filing Window Deadline February 11, 2020, 6:00 p.m. ET
  • Upfront Payments (via wire transfer) March 20, 2020, 6:00 p.m. ET
  • Mock Auction April 24, 2020
  • Auction Bidding Begins April 28, 2020

The “short-form” is an application that anyone wishing to participate in the auction must file. This short-form application sets out the channels in which the applicant is interested and some basic information about the applicant. Specific site locations that an applicant wants to protect can also be listed in the short form. Upfront payments are required monetary deposits that must be made by auction participants in amounts sufficient to cover the minimum fees for the channels on which the applicant is interested in bidding. More details on the information required in the forms, and the mechanics of the auction, are set out in the Public Notice which should be carefully reviewed by parties interested in any of these construction permits authorizing the new stations.

FCC staff separately released a Public Notice announcing a freeze on the filing of all FM minor change applications during the Form 175 auction filing window from January 29, 2020 to February 11, 2020. This freeze is to stabilize the FM database so that applicants can file for the channels that they desire and protect any transmitter sites in which they are interested, without having to worry about technical changes being made by stations not involved in the auction.

So, if you are interested in one of these new FM stations, you now know the deadlines, and should be completing your due diligence on channels in which you might have an interest. The opportunity to file for new FM channels comes up at best once a year and often more infrequently (e.g. the last auction was over 4 years ago because of the preoccupation of the FCC’s auction staff with the TV incentive auction), so survey the list and see if there is a channel in this auction that might be of interest 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. 




Important Reminder from NAB: Online Public Inspection File

Activate or Update Your Online Public Inspection File

As of March 1, 2018, all radio and television stations were required to transition their public inspection file to the Federal Communications Commission’s (FCC) online public inspection file system (OPIF). However, the FCC has informed NAB that some broadcasters have not yet activated their online public file and others – both large and small – have failed to keep their public file up-to-date. These stations are at risk of substantial FCC fines. While the FCC has emailed warning notices to some stations, NAB strongly advises you not to wait to confirm your station is complying with the FCC’s rules. FCC staff are in the process of carefully reviewing the online public file system for stations still lacking an online public file, dormant online public files or required items that are missing or late-filed. Perhaps most importantly, broadcasters must be aware that materials entered into the OPIF system are time/date-stamped, so timely filing is essential. Violators should expect to incur fines.

Significantly, the license renewal cycle is well underway for radio stations, and failure to properly maintain the public file takes on additional importance because stations must certify that their public file has been complete and up-to-date at all times during the license term, or disclose violations. The FCC considers a lack of candor in renewal applications an extremely serious violation. In addition to substantial fines, an incomplete online public file can lead to delays in the license renewal process.

A particular area of concern is the failure to upload your Quarterly Issues/Programs Lists, which demonstrate how a station has addressed the needs and interests of its community. These lists must be placed in your online public file on a quarterly basis, going back to the start of your current 8-year license term. Failure to comply can be extremely costly. The FCC routinely imposes substantial fines for every quarterly list that is not included in the file. Moreover, with the transition to the online public file system, attempting to avoid enforcement by uploading the lists after their due date without disclosure to the FCC may only serve to increase your enforcement liability. The online public file system also requires the diligent and prompt uploading of information regarding political advertisements. In this context, the FCC considers “prompt” to mean the same day or within 24 hours.

In addition to the Issues/Programs Lists and political advertising information, stations should make sure to promptly upload their annual EEO Public File Reports, children’s television reports and all other required materials. For questions, please contact your station’s legal counsel or the NAB legal team.