The FCC has opened a proceeding to address the impact of program blackouts on consumers that stem from failed retransmission consent negotiations. In opening a proceeding, the FCC stated: “In this Notice of Proposed Rulemaking, we seek comment on whether to require cable operators and direct broadcast satellite (DBS) providers to give their subscribers rebates when those subscribers are deprived of video programming they expect to receive during programming blackouts that result from failed retransmission consent negotiations or failed non-broadcast carriage negotiations.  When such blackouts occur, subscribers often pay the same monthly subscription fee for a service package that does not include all of the channels for which they signed up to receive. In other words, consumers are paying for a service that they are no longer receiving in full.  This proceeding seeks comment on whether and how we should address this customer service shortcoming. We also seek comment on how the market addresses this issue currently.” This proposal follows an FCC proposal issued in December soliciting comment on a rule that would require the Commission to be notified in the case of a blackout from failed retransmission consent negotiations. While we understand that consumers would like to see rebates on their cable bills, the FCC’s intrusion into the process can become very complex. For example, what happens if an agreement is never reached? Moreover, we have previously taken the position that the government should remain neutral in retransmission carriage disputes. It is not clear how such a proposal will impact these negotiations. We will watch this proceeding closely. You can see the FCC’s Rebate Proposal here. You can see December’s Notification Proposal here.

By a 3-2 vote, the FCC is proposing to re-instate programming processing guidelines for broadcasters. Under the proposal, stations that broadcast at least three hours per week of locally originated programs would receive expedited application processing. Similar processing guidelines were eliminated for radio in 1981 and television in 1984. Basically, these decisions held that stations, in response to market forces, would provide programming that meets the needs of the community. In place of the processing guideline, stations were asked to file quarterly issues programs lists. Also, the majority supporting the decision took direct aim at the FCC’s 2017 decision that eliminated the main studio rule. They asked whether eliminating the rule was a mistake. Under the proposed rule, to become eligible for expedited processing, a station would be asked to produce local programs. The FCC proposes to define locally originated programming as follows: (1) For purposes of this provision, locally originated programming is programming produced either (i) [w]ithin the station’s community of license; (ii) [a]t any location within the principal community contour of any AM, FM, or TV broadcast station licensed to the station’s community of license; or (iii) [w]ithin 25 miles from the reference coordinates of the center of its community of license as described in § 73.208(a)(1). The proposal raised a number of significant First Amendment-related issues. Not the least of which is addressing the issue of whether nationally produced programming can address local issues. If so, why is such programming not considered? Moreover, the FCC moved away from quantitative guidelines because they were overly mechanistic and did not address whether the programs were helping to meet the needs of the community. Quantitative processing guidelines merely encouraged licensed challenges even though a station was serving the community. Finally, the proposal does not establish a nexus between local production and journalism. On the contrary, the additional costs of producing 3 hours of “locally originated” programming may undermine a station’s overall journalistic efforts. Amazingly, locally originated programming would not be considered where a local program has been broadcast twice, even if the licensee broadcasts the program on a different day or makes small variations in the program thereafter. This approach ignores viewing patterns today, where most programs are time-shifted and broadcast multiple times to obtain an audience. Both Commissioner Brendan Car and Nathan Simington issued strong dissents. We shall see where the FCC takes this issue. Our immediate reaction is that it tries to resurrect a rule that was eliminated nearly 40 years ago. We have all seen that movie. You can see the FCC’s proposal and accompanying statements here.

As you know, a station must include a sponsorship ID on all paid advertising. This is especially true for political advertising. However, we often get questions regarding issues programs and even syndicated programs that appear to be news or news interview programs. You must be careful if your station is not producing the news or news interview program. When accepting programming from a third party, the station must make sure the entity that is sponsoring or producing the program is not itself a political entity. This is exactly what happened to stations in Idaho. According to the FCC, “The Investigation revealed that for nearly one and a half years (from early October 2021 to late March 2023), the Stations broadcast a one-hour episode of, and 30-second advertisements promoting, the Program. The format of each episode nominally resembled a news interview/public affairs program produced and presented by the Stations. In fact, however, all episodes of the Program were paid political presentations. Townsquare was paid to broadcast episodes of the Program and related advertisements initially by and on behalf of the Idaho Republican Party, and later by Tom Luna on behalf of a company doing business as Tom Luna and Associates. The hosts of each episode (Tom Luna and Victor Miller, chairman of the Ada County (Idaho) Republican Party) were solely responsible for producing the Program, including selecting guests and determining program content. Neither station provided any on-air Sponsorship ID announcements for the vast majority of the episodes or promotional advertisements that they aired revealing to listeners the true nature of the broadcasts and the identity of those who paid for them. In addition, multiple episodes of the Program contained appearances that constituted uses by legally qualified candidates for public office and communicated messages relating to political matters of national importance. Neither station uploaded records of any such candidate uses or messages to their respective online political files.” Thus, if a political entity is producing/sponsoring the program, then you must include a sponsorship ID for the program and any political advertisements that are included in the program. You can see the FCC’s decision and consent decree here.

We are now accepting nominations for our Hall of Fame Class of 2024. Nominations will be accepted through March 31, 2024. To nominate a person, please submit the form below by the deadline. You may also provide additional materials with the submission. The Hall of Fame is open to individuals in all aspects of the broadcasting industry. This includes ownership, management, news, engineering, production, sales, promotion, on-air talent, programming, creative services, or associated professional fields. The committee also considers such factors as maintaining a geographical balance and service to the New York State Broadcasters Association. The Selection Committee will judge the nominations based on the following criteria: ​ Candidates for the Hall of Fame Class for 2024 shall have worked in broadcasting in New York State or an associated professional field to the benefit of the broadcast industry. Broadcasting is defined as professional work on a local radio or television station as well as a broadcast network. While we will consider work on digital services, a nominee must have worked for a broadcast entity to be considered. Candidates are judged to have made a significant contribution to the broadcast industry in New York State. In doing so, they are judged to have distinguished themselves from their peers in New York. Decisions are made by the Hall of Fame Subcommittee of the New York Broadcasters Association Board of Directors. The decisions of the subcommittee are final. ​ Nominations for the NYSBA Hall of Fame must be made by a person associated with a member station of the New York Broadcasters Association. ​ Our luncheon inducting the Class of 2024 will take place on Wednesday, October 23, 2024, at the iconic Rainbow Room, 30 Rockefeller Plaza in New York City. Nomination forms and materials should be sent electronically to Sandy at sandy@nysbroadcasters.org. You can access the nomination form here. The complete list of members in the NYSBA Hall of Fame can be found here.

Support continues to build for the AM Receiver for Every Vehicle Act. In the Senate, the bill (S 1669) has 45 co-sponsors. In the House, the legislation, H.R. 3413, has 199 co-sponsors. The size of this support should be sufficient to move the legislation forward. As part of the effort to support AM Radio, NAB has published a new report highlighting the importance of AM. In releasing the report, NAB stated: “When disaster strikes, AM radio has proven time and again its invaluable role as a source of factual, authoritative, up-to-the-minute information that saves lives,” said NAB President and CEO Curtis LeGeyt.  “It is also a home to a diversity of programming that is often unavailable on other mediums and particularly important to otherwise underserved communities. It is critical that Congress address the need for AM radio capability in vehicles to ensure Americans can turn to local AM stations when they need them the most.” The report is valuable when discussing AM radio with Washington and Albany policymakers. We will be sending a Report to the New York congressional delegation. You can see the report, “AM is Vital to Ensuring Public Safety” here.

Last week’s LBS three-day seminar, “Year of the Customer,” was a tremendous success. The seminar featured presentations from the most influential sales, creative, and leadership figures serving the LOCAL broadcast industry today! During the ten fast-paced sessions, sellers and managers were given fresh ideas, solid motivation, and proven strategies for becoming their clients’ and prospects’ LOCAL media champions! Speakers included: Gary Moore, President of Local Broadcast Sales Melody Spann Cooper, Chair and CEO of Midway Broadcasting Jeff Schmidt, SVP of Professional Development, Radio Advertising Bureau Paul Weyland, LBS Selling Expert John Tkac, LBS Automotive Expert Blaine and Honey Parker, LBS Creative Experts Lori Lewis, LBS Social Media Expert Chris Fleming, President of CD Media Consulting John Marling, President of Pulse Research Bryan Anderson, President of Captivated.works Eric Moore, Vice President of Local Broadcast Sales LBS will be providing archived access to each of the ten sessions in the weeks ahead. The first session, "Establishing Customer Engagement as Your Competitive Selling Advantage," can be accessed here. Paul Weyland's session on "Mastering the Truth in Selling for your Customers’ Benefit and Success!" will be available next week.

A recent decision by the FCC regarding the filing of EEO Annual Reports is worth your consideration. As you know, the FCC’s Enforcement Bureau, not the Media Bureau, is now in charge of EEO enforcement. This has meant stricter EEO enforcement. A recent fine for failing to file one report is a perfect example. Going forward, the FCC will view the failure to file an Annual EEO Report as more than an administrative error on the part of the station. The failure to file a timely report will be construed as affecting a station’s ability to properly evaluate and review its EEO program. Compiling the report by itself will not be sufficient. In its recent decision, the Commission noted: “Merely compiling an Annual Report without also posting it to publicly accessible locations may, in certain circumstances (such as those present here), prevent the Stations from fulfilling their obligation to analyze their recruitment program “on an ongoing basis” in response to public input.  The Annual Report constitutes the only public record summarizing a station’s recruitment program under FCC EEO rules for that 12-month period and its label, “annual EEO public file report,” signifies an important purpose is review by both the Commission and the public.  Public input, initiated on the basis of an Annual Report, can be instrumental in the evaluation of a licensee’s effectiveness in achieving broad outreach to potential applicants and ensuring that any problems can be addressed on a timely basis... Going forward, Cumulus and all other licensees are on notice that the Commission in the future will consider the timeliness of posting an Annual Report to the public inspection file, including specifically the length of time constituting a failure to timely post such a report, as one factor among the totality of circumstances indicating whether a Station has met its obligations under our section 73.2080(c)(3) EEO self-assessment rule.” This is a significant shift in the FCC’s enforcement policy. If a station does not file a timely Annual EEO report, it may be held liable for a violation of the FCC’s underlying EEO rules. This can result in significant fines. Stations are cautioned to make sure they upload their Annual EEO Reports on time. You can see the FCC’s decision here.

As we noted last week, LBS will be archiving its digital conference “2024 -The Year of the Customer” over the next nine weeks. This week, Paul Weyland, President of Paul Weyland Communication Strategies and LBS Broadcast Selling Expert, believes that broadcast sellers need to take a newer, better story to clients. A story that will change your relationship with decision-makers for the better, resulting in bigger budgets, less rate resistance, and long-term advertising campaigns that really work. You can access this week’s webinar, “Mastering the Truth in Selling,” here. If you missed it, last week’s webinar, "Establishing Customer Engagement," can be accessed here.

Join us for two “Ask Me Anything” webinars about AI in the media with Futuri executives Daniel Anstandig (CEO) and Sophie Fry (CIO). They will discuss how AI can fuel your sales, programming, and local audiences. The first of the two-part series will cover radio and is set to take place on February 21 at 2 PM. A week later, on February 28 at 2 PM, the webinar will focus on TV. Daniel and Sophie will answer your questions and have an open floor discussion. The conversation will also cover the possibility of an AI/Human business model for TV and radio. This AMA is a valuable resource to help you learn about leveraging AI to diversify revenue streams, streamline content repurposing, and strengthen community engagement. In a rapidly changing, hyper-competitive market, this is a must-see webinar series. This webinar is being offered to NYSBA members in good standing free of charge. You can submit a question in advance and register for the webinar(s) by clicking here.

Last week, the FCC proposed a fine of $150,000 against a TV station for failing to negotiate in good faith with a cable system over retransmission consent. Significantly, the FCC proposed the fine even though the station and the cable system reached an agreement. The issue was whether a station could propose, as part of the negotiation, that the parties could not file a complaint with the Commission. The FCC’s Media Bureau stated: “As noted, the Good Faith Order plainly states that “proposals for contract terms that would foreclose the filing of complaints with the Commission” are presumptively at odds with the good faith negotiation requirement, and the Commission cited no exception or qualifying language that would support interpreting this phrase more narrowly. Whether parties sometimes determine that withdrawing existing complaints is in their mutual best interest after a carriage agreement is reached is not relevant to the question of whether they engage in good faith during the negotiation process.” This is a significant decision in that it will impact the substance of future retransmission consent negotiations. You can access the Media Bureaus decision here.

The FCC continues its efforts to crack down on illegal pirate radio stations in New York.  As you know, the PIRATE Act gives the FCC the authority to hold property owners liable for allowing illegal pirate stations to operate on their property or in their buildings. Last week, the FCC sent a notice to a property owner in the Bronx regarding a pirate station broadcasting on 99.3 FM.  The FCC stated: “The New York Office of the Federal Communications Commission’s (FCC) Enforcement Bureau is investigating a complaint about an unlicensed FM broadcast station operating on frequency 99.3 MHz. On November 2, 2022, and September 5, 2023, agents from the New York Office confirmed by direction finding techniques that radio signals on frequency 99.3 MHz were emanating from the property at 3349 Decatur Avenue, Bronx, New York 10467 (Property). Publicly available records identify Matovu Realty LLC as the owner of the Property.  The FCC’s records show no license issued for operation of a radio broadcast station on 99.3 MHz at this location.” The FCC advised the property owner that it could be liable for a fine of more than $2 million if the illegal operation continues. You can see the Enforcement Bureaus Notice here.

Last week Governor Cathy Hochul gave her state of the state address.  We listened very carefully to her speech. We also analyzed the written materials provided by the Governor’s office. At this point, there are no proposals that would create a new tax on traditional or digital advertising. Of course, the New York Senate or Assembly may try to insert new taxes in their budget proposals. We are watching this issue very closely. Of course, there are a number of other issues outlined in the Governor's State of the State address. You can see a summary of Governor Hochul’s proposals in a memo prepared by our friends at Brown Weinraub here.

Last week’s excellent webinar on boosting political advertising sales has been archived. New York is facing a very competitive political season. It will start with a special election on February 15th with a very competitive congressional race on Long Island to replace former Representative Santon. The Presidential primary is set for April 2nd. All other federal and state primaries are set for June 25th, with a general election on November 5th. There is a lot of political money at stake over the next few months, and we want to help you get it. This is NOT a rules and regulations webinar. Instead, it is focused on selling political advertising. For those who could not attend, the materials have been archived: You can see the slide deck here. You can access the archived webinar here.

Over the years, we have received a number of questions regarding the ability of Canadians to invest in upstate broadcast stations. The FCC’s rules generally establish a 25% limit on foreign investment. However, the FCC will allow foreign investment to exceed this amount under certain circumstances. In a recent case, the FCC approved the sale of a NY broadcast station to a Delaware company that is 100% controlled by a Canadian corporation. In issuing a Declaratory Ruling, the FCC stated: “The Petition asks the Commission to exercise its discretion to permit foreign ownership in 123 Corp., the proposed controlling U.S. parent of Licensee, to exceed the 25% benchmarks established in section 310(b)(4) of the Communications Act of 1934, as amended (the Act), and sections 1.5000 et seq. of the Commission’s rules.  As discussed below, the Petition seeks authority for up to 100% aggregate foreign investment (voting and equity) in 123 Corp., the proposed controlling U.S. parent, and specific approval for certain foreign investors to hold more than 5% equity and/or voting interest in 123 Corp.  No comments or oppositions were filed in response to the Petition.  As discussed below, and consistent with the input received from the National Telecommunications and Information Administration (NTIA) on behalf of the Committee for the Assessment of Foreign Participation in the United States Telecommunications Services Sector (Committee), we find that it will serve the public interest to grant the Petition, subject to the conditions specified below.” While the FCC’s decision in these cases will vary based on the facts of a particular case, the decision demonstrates investment by Canadians in New York stations can be approved in certain circumstances. The decision is helpful for New York stations looking to attract additional investment. You can see the FCC’s decision here.

As we noted a few weeks ago, the FCC was required by the U.S. Court of Appeals to complete its 2018 Quadrennial Ownership Review by December 27th. As expected, the FCC did not relax any of its local radio or TV ownership rules. In fact, it tightened up on the local TV rules. The vote split on party lines, with 3 Democrats supporting and 2 Republicans dissenting. In an amazing conclusion, the FCC found that while there was increased competition from digital services, broadcasting was still an insular market, thereby justifying continued regulations. The Commission concluded: “Specifically, we retain the Dual Network Rule and the Local Radio Ownership Rule, the latter of which we modify only to make permanent the interim contour-overlap methodology long used to determine ownership limits in areas outside the boundaries of defined Nielsen Audio Metro markets and in Puerto Rico.  We likewise retain the Local Television Ownership Rule with modest adjustments to reflect changes that have occurred in the television marketplace.  The existing Local Television Ownership Rule ensures competition among local broadcasters while allowing for flexibility should the circumstances of local markets justify it.  Accordingly, today we update the methodology for determining station ranking within a market to better reflect current industry practices, and we expand the existing prohibition on use of affiliation to circumvent the restriction on acquiring a second top-four ranked station in a market.” Under this approach, the FCC expanded the ban on a station owning more than the top four network affiliates. Under the prior regulations, a station could own more than two if one of the facilities was an LPTV, Class A, or multi-cast digital channel. The FCC’s new decision eliminates these exceptions, thereby making the rules more restrictive. In opposing the decision, Commissioner Carr said it best. "Unfortunately, the Commission has taken an ostrich-like approach to this requirement in nearly every one of its quadrennial reviews, including the instant review.  Indeed, the Commission has consistently ignored Congress’s deregulatory mandate under the statute, the realities of the modern media marketplace, and the many ways that Americans now consume news, information, and entertainment programming.  This failure does not serve anyone’s interest, as a broad range of stakeholders have made clear in this record—once again.  But despite a record bursting with evidence of a vibrant media marketplace, the Commission continues to advance the fiction that broadcast radio and broadcast television stations exist in markets unto themselves." This decision closes out a proceeding that began in 2018.  Ironically, the FCC by law must law commence a new Quadrennial Ownership proceeding. Perhaps The Commission will stop looking in the rear-view mirror and see the road ahead before it crashes. You can see the FCC’s decision here.

The FCC’s Enforcement Bureau continues to crack down on illegal pirate radio stations in New York. Under the PIRATE Act, the FCC is required to conduct an annual spectrum sweep of the top 5 markets with the most illegal radio stations. Unfortunately, New York still ranks among the cities with the most illegal pirate stations. In addition, the FCC can now issue fines against property owners who allow illegal pirate stations to operate on their property. In its most recent actions, the FCC issued a Notice of Illegal Operation against two property owners in Brooklyn. Brooklyn 99.3 FM On May 2, 2023, agents from the New York Office confirmed by direction-finding techniques that radio signals on frequency 99.3 MHz were emanating from the property at 70 Rockaway Parkway #39, Brooklyn, New York 11212 (Property). Publicly available records identify 70 Rockaway Parkway as the owner of the Property. Brooklyn 90.5 FM On November 22, 2022, agents from the Columbia Office confirmed by direction-finding techniques that radio signals on frequency 90.5 MHz were emanating from the property at 2617 Newkirk Avenue, Brooklyn, New York 11226 (Property). Publicly available records identify RAAV 2617 LLC. as the owner of the Property. The FCC’s records show no license issued for the operation of a radio broadcast station on 90.5 MHz at this location. You can see the Notice involving 99.3 FM here. You can see the Notice involving 90.5 FM here.

In December, the Federal Trade Commission issued a report based on a round table discussion on AI that was held last October. The report focused on the potential impact of AI on the creative community and businesses. The round table consisted of twelve participants who represented a wide variety of creative professions. It included visual artists, screenwriters, actors, programmers, editors, musicians, and models. According to the December Report: “During the event, participants acknowledged the potential benefits of generative AI tools, and many had a long history of incorporating new technologies in their practices. Participants also described concerns about the ways generative AI could be an avenue for their own exploitation. Though participants came from different fields, a few consistent themes emerged: Concerns about how their work was being collected and used to train generative AI models; The impact that generative AI outputs are already having on their industry and livelihoods; Issues associated with solutions being proposed by AI companies to address creators’ concerns; and Alternative approaches that creators are pursuing to protect themselves and their industry, including by enshrining their right to choose whether they want to use AI in their work through union contracts.” The report provides interesting insights into the issues surrounding AI and the creative community. There is no doubt that these issues will ultimately arise as part of the broadcasting business. You can see the FTC’s report here.

Stations are rapidly confronting the benefits and potential liabilities of AI in the broadcasting business. Legislation is being introduced at both the federal and state level. In addition, the Federal Trade Commission is looking at potential AI regulations. This half-day virtual summit is focused on artificial intelligence and will be held on January 25, 2024, from 12:00 pm – 4:30 pm ET. The Federal Trade Commission’s Office of Technology is hosting a virtual tech summit on January 25, 2024, that will bring together a diverse group of stakeholders to discuss key developments in the rapidly evolving field of artificial intelligence (AI), looking across the layers of technology related to AI. While not specifically focusing on broadcasting per se, this will provide a good background on the issue. The summit will bring together representatives from academia, industry, civil society organizations, and government to discuss the state of technology, emerging market trends, and real-world impacts of AI. The discussions will also explore how to cultivate a marketplace that allows both consumers and businesses, including startups and small businesses, to thrive. FTC Chair Lina M. Khan and Commissioners Rebecca Kelly Slaughter and Alvaro Bedoya will provide remarks at the summit. The event will also feature three-panel discussions. These include discussions on the hardware and other key infrastructure that will be needed for AI development, issues related to the data and models used in AI, and AI-powered consumer applications. The summit is open to the public. There is no need to register. You can find more general information about the summit here. An agenda for the summit can be found here.

We have updated our election website to include the most recent dates for both the primary and general elections. Note the lowest unit charge period for the special general election between Democrat Thomas Suozzi and Republican Mazi Melesa Pilip (to replace George Santos) began December 15. The presidential primary election will take place on April 2. Therefore, the lowest unit charge period will begin on February 17, 2024. The remaining primaries take place on June 25, so the lowest unit charge period begins on May 11. The dates are contained in the chart below. As a general rule, the lowest unit charge period begins 45 days before a primary election and 60 days before a general election. You can find more information about the 2024 elections and the FCC’s political broadcasting rules here.

New York is facing a very competitive political season. It will start with a special election on February 15th with a very competitive congressional race on Long Island to replace former Representative Santon. The Presidential primary is set for April 2nd. All other federal and state primaries are set for June 25th, with a general election on November 5th. There is a lot of political money at stake over the next few months, and we want to help you get it. This is NOT a rules and regulations webinar. Instead, it is focused on selling political advertising. The webinar will cover: An understanding of what the past few months likely meant to 2024 political advertising. Where political ad dollars are likely to go. Digital ad changes and how that affects potential broadcast sales. Is your station worthy of a politician’s money? Why local political dollars may be more important than national dollars. Common-sensical things we forget that cost us political buys. How to get political ad money earmarked for outdoor, direct mail, and cable. The value of some lesser-known websites and The Edmonds Political Database. A key question to ask a candidate that can justify a bigger schedule. Knowing how to better tell your story sans “broadcast-ease.” Intro letter templates designed to get candidates and political party chairs to meet with you. The Lowest Unit Rate Template tool that actually works. The often-overlooked danger of social media, political advertising, and low rates. Ideas for upsells and new non-political business because 2024 being an election year. Political ad copy help, including a source for thousands of political ads. And this is broadcasting, so of course, “and more." The webinar will feature noted broadcast sales trainer Mark Levy. Mark Levy is the former GM of numerous broadcast companies, the VP of Sales for the RAB, and the past President of Revenue Development Resources. Mark is one of the most in-demand public speakers, leadership coaches, sales and management trainers, and business development consultants in the U.S. and abroad. He has over forty years of expertise and experience in solving problems and making money for radio and TV broadcasters, managers, sales executives, and their local advertisers. This webinar is provided to NYSBA members in good standing free of charge. Register now here. After registering, you will receive a confirmation email containing information about joining the webinar.