As we reported previously, there were several proposals in the New York State Budget to help fund mass transit in the New York City region. The Assembly opposed Governor Hochul’s proposal to fund NYC mass transit through a payroll tax on companies located in the New York City region. In its place, the Assembly proposed to impose a consumer sales tax on all streaming services throughout New York State. We opposed the extension of the sales tax to radio and TV streaming services. A drafted it raised questions about whether it would apply to programming services and set a precedent for advertising taxes. In the end, Governor Hochul and the New York State Senate opposed the Assembly’s proposal. New York City Area Mass Transit will be funded through an increase in the payroll tax. The basic elements of the agreement are as follows: Increase the Payroll Mobility Tax for the largest businesses in New York City to 0.6 percent, generating approximately $1.1 billion. $300 million in one-time NY state aid. A requirement that New York City contributes $165 million for paratransit services funding. $65 million to reduce the proposed fare increase on the MTA. Expanding service frequencies on the subway. Launching a pilot program providing five free bus routes in New York City – one in each borough – to enhance the customer experience. In addition to the state-provided support, MTA will implement a $400 million per year plan to ensure operations are efficient and cost-effective. You can see our opposition to extending the sales tax to streaming services here.

New York State sent notices to all notaries regarding these new rules, and we received several calls about them. Several stations have asked whether the new affects the standard advertising “CO-OP Invoice” form commonly used for “proof of performance.” The “CO-OP Invoice” form contains two signature lines. One line is for the signature of the “property official.” This line is usually signed by a sales executive, business manager, traffic manager, etc. The second line is for a notary. Remember, existing law requires a notary to actually witness the signature of the “property official.” Also, as a matter of law, a notary’s signature merely indicates the notary saw the person sign the document and that the signature is valid. It does not verify that the information contained in the invoice is necessarily correct. Recent changes in New York’s Notary Law allow for remote notarization. However, there are very specific requirements: The notary must see the person signing the document via some form of audio-visual connection. A recording of the signing must be kept for 10 years. The notary must keep a journal/ledger of all electronic signings. This is not just the company keeping a list of all the invoices. It is a separate ledger and the information that must be kept is fairly extensive. The new rules are cumbersome and may not work for stations issuing hundreds of CO-OP invoices. Some stations may decide to continue their old process, where the notary witnesses the signature of each invoice. Another option is to consider changing the standard “CO-OP Invoice” form. Simply change the notary signature line to a “witness” line. This will provide the advertiser with a second signature on the form confirming that the advertisement was actually broadcast while avoiding the complications surrounding notarized documents. Of course, you may want to discuss this with advertisers that require the station to use the “CO-OP Invoice” form. You can advise them that changes in New York Law make it difficult to continue notarizing the invoice forms. Moreover, having a “witness” signature will serve the purpose of verifying that the advertisement was broadcast. Again, a notarized document only verifies the signature on the page. It does not certify that the advertisement was broadcast. If the advertiser still demands a notarized document, you can revert to the traditional process. You can find all the new requirements here.

A recent analysis by Westwood One demonstrates that it would be a mistake to take Am receivers out of electric vehicles. The analysis references new Nielsen data: "The Nielsen Fall 2022 survey reveals: 82,346,800 Americans listen to AM radio monthly One out of three American AM/FM radio listeners are reached monthly by AM radio 57% of the AM radio audience listens to News/Talk stations, the very outlets that Americans turn to in times of crisis and breaking local news" Of course, Ford has signaled that it plans to take AM radios out of its electric pickup trucks. Yet according to the analysis: "Ford owners represent 20% of all U.S. AM radio listeners and are more likely to listen to AM radio.” You can see the complete analysis here. You can access a video briefing on these findings by Pier Bouvard here.

Throughout the year, NYSBA receives a lot of questions regarding EEO obligations. The FCC’s obligations apply to stations with 5 or more full-time employees. They go beyond traditional nondiscrimination laws and require stations to take affirmative steps to reach out to the community. Noted FCC attorney David Oxenford has provided a basic outline describing local station’s EEO obligations. He states: “Beyond the general requirement that all broadcasters (and all other businesses) avoid discrimination in hiring, promotion, and all other employment practices, the FCC imposes additional obligations on radio and TV stations that are part of “employment units” with 5 or more full-time employees. An employment unit is defined as a station or commonly controlled cluster of stations serving the same general geographic area that share at least one employee. Full-time employees, for FCC purposes, are employees who work at least 30 hours per week.” Remember, due to technical issues on the FCC’s web portal, New York stations must file their annual EEO Public File reports by February 28, 2023. You can see David Oxenford’s analysis of the basic EEO obligations here.

Earlier today, NYSBA launched an updated version of its website! Nora Kipp, Director of Communications, did an outstanding job completely redesigning the website so that it is more user-friendly. The new website is equipped with a sleek design and it contains more detailed and easily accessible information. Our member stations will still be able to access past stories featured in the New York NewStream, register for upcoming events, browse job listings, and pay membership dues online. The website also contains updated information regarding advertising regulations and FCC rules underneath the "Regulatory" tab. Great job Nora! Questions regarding the new website should be directed to Nora at nkipp@nysbroadcasters.org.

NYSBA, along with the other state broadcast associations, recently asked broadcasters about the status of AM radio. The survey received more than 1000 responses, including a number of AM stations licensed to New York communities. The topline preliminary results are as follows: The first key issue concerns radio format. As expected, talk/news was the largest. However, a significant amount of AM station broadcast music. This finding is important because radio listeners rely on AM radio for news and information. 53.7% are some form of talk format (news/talk, talk, sports, religious teaching, etc.) 43.8% are some form of music format (correlation between music formats on AM and FM translators is likely) 2.5% responded with “other formats.” Auto manufacturers often argue that you will be able to receive AM content through digital transmissions in the connected car. From a public safety standpoint, citizens need a direct local connection to emergency information through an AM tuner in the vehicle. This is especially true in an era when digital platforms may be “hacked” or the transmission system for digital services gets overloaded. Unfortunately, many local AM stations are not found on a digital platform. 50.4% of stations don’t have a standalone digital “app.” 40.5% are not found on radio aggregators (possible SBA role in aiding with app creation and/or aggregator usage?) In recent years, the FCC has permitted AM stations to obtain FM translators. However, a significant number of AM stations do not have FM translators. More importantly, these translators generally do not provide the same coverage as the AM facility. 30% of responding AM stations do NOT have an FM translator. Only 17.5% say the FM footprint is at least as large as the AM. It is also worth noting that very few AM stations simulcast their content on an FM station. Only 9.3% of the responding AM stations simulcast content on an FM facility. The public policy concerns regarding the elimination of AM radio from the dashboard become evident when looking at participation in the Emergency Alert System. According to the survey, 99.2% of the responding stations participate in the EAS system. More importantly, FEMA has designated certain stations as Primary Entry Point (PEP)stations in each state. These stations are the key entry point for Federal emergency messages, which are then relayed out to stations throughout a state. The stations have been “hardened” to ensure they work during an emergency. The overwhelming majority of these PEP stations are AM facilities. As noted previously, decisions by some automakers to eliminate AM receivers in electric vehicles have gained attention in Washington. NYSBA is working to inform policymakers that taking AM receivers out of a vehicle should not be an option. We will keep you updated!

The FCC has published a Notice requesting comment on a proposed transfer of control of a radio station to a Canadian-owned corporation. The Notice involves WLYK(FM) in Cape Vincent. A petition for declaratory ruling has been filed on behalf of Border International Broadcasting, Inc. (BIBI) requesting that the FCC find that it would serve the public interest to allow BIBI to accept foreign investment in excess of the 25% foreign ownership benchmarks set forth in the Communications Act. Specifically, BIBI seeks a Commission ruling to (1) permit up to 100% aggregate foreign investment (voting and equity) in the company, and (2) specifically approve certain foreign investors to hold more than 5% equity and/or voting interest in BIBI. As detailed in the Notice, 1234567 Corporation (123), as the transferee in the related transfer of control application and as the proposed direct 100% interest holder of BIBI, filed the Petition on behalf of itself, the licensee BIBI, and the individuals and entities that will hold a direct or indirect interest in BIBI. This is an interesting case and raises important questions about the ability of Canadian entities to invest in American broadcast companies. It could help upstate stations attract additional investors. You can see the FCC’s Notice here.

As we have been reporting, a number of automobile manufacturers are planning to eliminate AM radios from their electric vehicles. It has been reported that Ford is planning to eliminate AM radios from all its vehicles in 2024. NYSBA strongly opposes these plans. In a recent interview Manny Centeno, Program Manager with IPAWS at FEMA appeared on WBZ Radio in Boston to discuss the negative impact of the decisions to eliminate AM from the dashboard. You can catch the FEMA interview here. NYSBA President David Donovan discussed this issue with WABC 770 AM CEO John Catsimatidis on his “CATS Round Table.” You can access the interview on WABs Podcasts here.

Should you use new and flashy AI tools such as ChatGPT and Bard to write your clients' ads? Can AI services work to your benefit, and how? Does AI art have a future in advertising? Will this quickly emerging technology eliminate your job? By demonstrating through real-world examples, LBS Creative Expert and former CBS Radio production director Tim Burt will show you that there is a proper time - and place - for broadcasters to use these AI tools. Until you hear this presentation, use artificial intelligence services at your own risk! The webinar is offered free of charge to NYSBA members in good standing. You can click here to register.

Several years ago, NYSBA was instrumental in getting Congress to enact the PIRATE Act, which increased FCC penalties for operating an illegal pirate radio station. The new law also created liability for property owners who knowingly allow illegal stations to operate on their property. Last week the FCC issued notices to 16 property owners in New York and New Jersey asking them to take steps to discontinue pirate radio operations on their property. The list of illegal stations includes: 87.9 FM - Newark, NJ 97.5 FM - Brooklyn, NY 88.5 FM – Irvington, NJ 99.3 FM – Paterson, NJ 88.5 FM - St Albans, NY 99.7 FM- Brooklyn, NY 88.9 FM - Bronx, NY 99.9 FM – Brooklyn, NY 90.9 FM – Irvington, NJ 100.7 FM Brooklyn, NY 91.7 FM – Maplewood, NJ 101.7 FM – Bronx, NY 91.9 FM – Brooklyn, NY 102.1 FM – Orange, NJ 95.9 FM - Brooklyn, NY 107.9 FM – Brooklyn, NY In its press release, the FCC stated: The FCC’s Enforcement Bureau today issued sixteen warnings to landowners in the New York City/New Jersey metro area for apparently allowing illegal broadcasting from their property. The FCC may issue a fine exceeding $2 million if it determines that the party continued to permit any individual or entity to engage in pirate radio broadcasting from any property that they own or manage. 'The law is clear: owners can no longer turn a blind eye to pirate radio operations on their property,' said Loyaan A. Egal, Chief of the Enforcement Bureau. 'Such activities can interfere with licensed broadcast signals and do not meet the emergency alerting responsibilities of lawful radio stations. I want to thank our field agents for their widespread sweep for illegal broadcasts and for their ongoing vigilance.'” The Notices of Illegal Pirate Radio Broadcasting sent by the FCC target properties identified by Bureau field agents as sources of pirate radio transmissions during the Bureau’s 2022-2023 New York Pirate Sweeps. The PIRATE Act gives the FCC the authority to impose fines on property owners up to a maximum of $2 million. Based on these decisions, the FCC appears to be conducting “pirate radio” sweeps in the New York Metro area. We strongly support the steps taken by the FCC to increase enforcement. You can see all 16 of the FCC’s enforcement actions against property owners here.

On April 24, 2023, the Enforcement Bureau issued the first of its Equal Employment Opportunity (EEO) audit letters for 2023 to randomly selected radio and television stations. The Enforcement Bureau annually audits the EEO programs of randomly selected broadcast licensees. Each year, approximately five percent of all radio and television stations are selected for EEO audits. The following New York stations have been included in the random audit: WCWN DTV SCHENECTADY WGRZ DTV BUFFALO WICZ-TV DTV BINGHAMTON WNYO-TV DTV BUFFALO WNYT DTV ALBANY WPBS-TV DTV WATERTOWN WPTZ DTV PLATTSBURGH WRGB DTV SCHENECTADY WSYT DTV SYRACUSE WUTR DTV UTICA WWNY-TV DTV CARTHAGE The deadline for stations to upload responses to their FCC-hosted online public inspection files is June 8, 2023. As a reminder, the Enforcement Bureau will no longer issue letters to licensees upon completion of our review of audit responses. If questions arise during staff review, the FCC’s Enforcement Bureau will contact the licensee. If your station is being audited, you should have received a letter directly from the Commission. In any case, you may want to review the FCC’s Notice to make sure you are not on the audit list. You can see the FCC Notice and a list of all stations subject to the audit here.

In her speech at NAB, FCC Chair Jessica Rosenworcel outlined a new plan called the “Future of TV.” While working with NAB, the FCC will look to establish a plan for the transition to the Next Gen TV transmission system (ATSC 3.0.) A press release issued by the Media Bureau states: “Today, we are announcing a public-private initiative, led by the National Association of Broadcasters, to help us work through outstanding challenges faced by industry and consumers' said Chairwoman Rosenworcel in her speech today at the NAB Show. 'This Future of Television initiative will gather industry, government, and public interest stakeholders to establish a roadmap for a transition to ATSC 3.0 that serves the public interest. A successful transition will provide for an orderly shift from ATSC 1.0 to ATSC 3.0 and will allow broadcasters to innovate while protecting consumers, especially those most vulnerable.'” According to the FCC Media Bureau: “The Future of TV initiative is a public-private partnership led by NAB and working closely with the FCC, consumer groups, and others.” The working group will address issues such as backwards compatibility. Next Gen TV transmissions cannot be received by existing digital tuners in TV sets. Consumers may need to obtain a dongle, similar to other digital components, for the set to continue to receive over-the-air TV signals. Of course, this will not be an issue with reception via cable, satellite, or OTT. This is an important step in moving forward with Next Gen TV. We hope the private/public partnership will provide the industry with a roadmap to move forward with this important new technology. You can see the full press release here.

Negotiations between Governor Hochul, Senate Leadership, and Assembly Leadership continue with no quick resolution in sight. There are a number of unresolved matters including a key issue concerning modifications to bail reform. From our perspective, we have two issues wrapped up in the state budget. As we reported last week, we oppose the extension of the sales tax to subscription-based streaming services. The language of the bill is extremely broad and could unintentionally apply to broadcast services. We are also seeking to enact payroll tax credits for broadcast journalists. Also as noted in this issue, we would like legislation allowing cameras in the courtroom to be included in the budget. Our concerns about the sales tax can be found here. Our support for a payroll tax credit for journalists can be found here.

We will be hosting our Hall of Fame Luncheon on Thursday, October 26, 2023. The luncheon will be held in the legendary Rainbow Room at 30 Rockefeller Plaza in New York City. This gala luncheon recognizes the important contributions broadcast professionals have made to their communities and the broadcasting business. In 2022 we inducted: Dana Tyler: Award-Winning News Anchor, WCBS-TV, New York City Jim Kerr and Shelli Sonstein: Legendary Morning Hosts, WAXQ (Q-104) FM, New York City Richard McCollough: Legendary Meteorologist, WDKX-FM 10-3.9, Rochester Chuck Custer: Award-Winning News Director and Morning Host, WGY Radio, Albany In addition, we honored Michael Strahan as our Broadcaster of the Year. Strahan currently co-anchors ABC’s “Good Morning America” and is an Emmy winner, Super Bowl Champion, member of the Pro Football Hall of Fame, and a Peabody award-winning journalist. Nominations for the NYSBA Hall of Fame are now open and must be made by a person associated with a member station of the New York Broadcasters Association. The Hall of Fame is open to individuals in all aspects of the broadcasting industry including 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 as well as service to the New York State Broadcasters Association. The Selection Committee will judge the nominations on the following criteria: Candidates for the Hall of Fame Class for 2023, 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 New York peers. Decisions are made by the Hall of Fame Subcommittee of the New York Broadcasters Association Board of Directors. Decisions of the subcommittee are final. Nominations will be accepted through March 31, 2023. To nominate a person, please submit the form below by the deadline. You may also provide additional materials with the submission. Nomination forms and materials should be sent electronically to Sandy at sandy@nysbroadcasters.org. You can access the nomination form here.

Last week, the FCC issued a Notice of Apparent Liability against a long-time pirate radio station operating in Queens. This is the largest proposed fine proposed under the PIRATE Act. According to the FCC’s Notice of Apparent Liability: “[T]he Commission proposed the maximum penalty allowable under the PIRATE Act, $2,316,034, against César Ayora and Luis Angel Ayora for operating a pirate radio station known as “Radio Impacto 2” in Queens, NY. The Commission previously issued Luis Angel Ayora a $20,000 forfeiture in 2015, which he did not pay. In 2016, the U.S. Marshals Service executed a warrant in rem and seized the Ayoras’ broadcasting equipment. As part of their PIRATE Act investigation, FCC Enforcement Bureau Agents found scores of apparent violations between March and September 2022, including multiple weekly on-air radio programs. The Ayoras even advertised their pirate radio station for no less than 25 weeks, and continue to operate their unauthorized station to date.” As previously noted, the FCC has increased enforcement against illegal pirate radio operators across the country. Enforcement efforts were delayed due to COVID-19 and budget constraints. We are delighted that the FCC has started to move forward with enforcing the PIRATE Act. You can see the FCC’s decision here.

Several years ago, Congress authorized the FCC to require certain television stations to provide “audio descriptions” for their content. Audio description makes video programming more accessible to individuals who are blind or visually impaired through “[t]he insertion of audio narrated descriptions of a television program’s key visual elements into natural pauses between the program’s dialogue.” The FCC proceeded to roll out its audio description requirement over time, beginning with the network-affiliated station in the largest markets. Stations must provide 50 hours of audio description per calendar quarter, either during prime time or on children’s programming, and 37.5 additional hours of audio description per calendar quarter between 6 a.m. and 11:59 p.m. local time, on each programming stream on which they carry one of the top four commercial television broadcast networks. The Commission adopted a phased expansion of the audio description rules. The audio description requirements were extended to: DMAs 61 through 70 on January 1, 2021 DMAs 71 through 80 on January 1, 2022 DMAs 81 through 90 on January 1, 2023 DMAs 91 through 100 on January 1, 2024 This rollout schedule is already set. The FCC is now proposing to expand the audio description to markets beyond 100. It proposes to phase in the audio description requirements for an additional 10 DMAs each year until all 210 DMAs are covered. For New York, this means that TV stations in the Syracuse market (85) are now subject to the audio description rule. TV stations in the Plattsburgh/Burlington market (94) must comply by January 1, 2024. The new proposal would extend the audio description requirement to Binghamton (161) on January 2031. The rules would become effective in Utica (172), Elmira/Corning (178), and Watertown (179) on January 1, 2032. You can access the FCC Notice of Proposed Rulemaking here.

Every year, NYSBA watches the New York State Budget process closely. The process begins with the Governor’s proposed budget. Then, the Senate and Assembly propose their own alternatives. On or around April 1st, they get together and work out a compromise. This year the Assembly has proposed to extend the New York sales tax to the purchase of digital products, including paid streaming services, downloads, apps, movies, podcasts, etc. This is not an ad tax. Rather, it extends the sales tax to paid digital products purchased by consumers. Thus, the tax would not apply to the provision of off-air radio and TV services. It would not apply to traditional cable and TV satellite services. However, it would apply to consumers purchasing streaming services like Netflix or Peacock. Also, the sales tax would extend to the purchase of satellite radio services. While not directly impacting traditional broadcasting, we have concerns with the language of the bill. We want to make sure it does not negatively impact existing and future business models. We are making our concerns known to the Assembly, Senate, and the Governor’s office. Importantly, this proposal was not included in the Governor’s budget or the Senate’s proposal. The issue is funding the MTA for the New York City region. The Governor proposed imposing additional payroll taxes on firms located in the MTAs service area. The Assembly opposed this proposal and in its place seeded to increase corporate taxes and extend the sales tax to digital services in order to pay for the MTA. You can see the Assembly’s proposal here.

The FCC’s International Bureau (the Bureau) issued a Public Notice updating the list of those Fixed Satellite Service (FSS) earth stations in the 3.7-4.2 GHz band (C-band) that satisfied the criteria to be classified as incumbent earth stations for purposes of the C-band transition. This updated list reflects changes since the most recent version of the list of incumbent earth stations was released on December 9, 2022. The updated list includes each station’s earth stations that were properly registered with the FCC. Registration was necessary for payment under the FCC’s C-Band relocation plan and to provide interference protection. You should check the list to see if your C-Band Earth stations are listed. You can see the Public Notice and a list of all the correctly registered earth stations here.

The FCC has issued a fee guide for a number of broadcast applications. This is not a fee guide for the annual regulatory fees. Rather, it is a guide for fees dealing with a number of broadcast applications such as construction permits, transfers, and other matters requiring an FCC application. The guide includes information regarding application fees for AM, FM, TV, LPTV, LPFM, translators, and booster stations. You can access the guide here. Please note that the FCC made an error with regard to some AM applications. You can find the correct application fee here.

Last week New York Congressman Paul Tonko (D. NY 20) introduced legislation that would ban all advertising relating to online sports betting and sportsbooks. In introducing the Betting on Our Future Act, Congressman Tonko observed in a recent Article: “As of today, 36 states have legalized sports betting, with 26 of those legalizing mobile sports betting. Few, if any, impose restrictions on advertisements from sportsbooks. Even worse, many states permit these sportsbooks to deduct these aggressive promotions for tax purposes, reducing their taxable income as well as any potential revenue for state and local governments. The gambling industry insists that advertising restrictions would be counterproductive. I disagree. When more than $1.8 billion is spent on ad campaigns to bring new customers into the fold, underage and vulnerable individuals will inevitably be swept in as well. The National Council on Problem Gambling found that between 60 and 80 percent of high school students had gambled for money in the previous year, likely driven by ads on social media and the ease of access to online gambling. Even more disturbing, the group says that 4 to 6 percent of those high schoolers are considered addicted to gambling.” NYSBA opposes the legislation. We do not believe a ban on this type of advertising is justified. We issued a press release stating: “We oppose legislation that bans both mobile sports and casino sportsbook advertising in the United States. Advertising is essential to educate consumers in this highly competitive market. The tax revenue generated by sports betting has helped to finance essential government services for citizens throughout New York State. It has stimulated local economies in areas lacking job opportunities. Advertising revenue from these ads helps broadcast stations meet the needs of their communities by financing local news and public affairs programs. A ban on sports wagering advertising prevents all responsible adults from receiving information about a legal product in New York, raising significant constitutional issues. There are more effective options available to address issues concerning problem gambling and protecting children. We look forward to working with Congressman Tonko to explore these options.” This legislation has a long way to go before it becomes law. It may be difficult to get this through a Republican-controlled House of Representatives. Nonetheless, it has triggered a discussion in Washington. We shall be keeping close tabs on this bill. The legislation introduced by Congressman Tonko can be found here.