As part of the PIRATE Act, the FCC must issue an annual report to Congress regarding its enforcement against illegal pirate radio stations in the country. The FCC just released its annual report. Unfortunately, COVID and lack of funding have delayed much of the pirate enforcement over the past few years. Frankly, it is not much of a report. Last March, the FCC was given $5 million to fund pirate radio enforcement activities. The FCC appears to be moving forward: it is beginning to look at the markets in which it will conduct frequency sweeps to determine the number of illegal operations in the top five radio markets with the most illegal pirate activity. It has also taken significant steps against property owners allowing pirate stations to operate on their land or building. We hope the FCC will finally begin to move forward with increased enforcement. You can see a copy of the Report to Congress here.

Recently, Governor Hochul signed legislation that would establish a statewide pay transparency standard, which would require employers to disclose compensation or range of compensation to applicants and employees in job advertisements. The NYS Department of Labor is directed to issue implementation regulations and run a public awareness campaign to inform employers of their new duties. We will keep you updated regarding the new proposed regulations. This will impact the information NYSBA will request from stations when listing jobs on our website. It will also affect advertisements you accept regarding employment opportunities in your market. Also, the law does not preempt local pay transparency regulations. Accordingly, the NY City pay transparency laws will remain in place. Remember, the law does not go into effect until September 17, 2023. You can see Governor Hochul’s press release here. You can see the text of the law that was signed by Governor Hochul here.

Earlier this year, New York passed a new restrictive gun law. Part of that law limited the ability of persons to obtain body armor. The law did allow certain professions, such as police officers to acquire body armor. The New York Secretary of State’s office set up a procedure to expand the eligibility for certain professions that would be allowed to obtain body armor. Last summer, NYSBA filed a series of applications on behalf of broadcast journalists and news crews. We noted that providing the news from crime scenes and riots can be dangerous and that reporters and any professionals helping to provide news coverage should be eligible to obtain body armor. In the applications, we listed all possible technical and production professions. Last week, the New York Secretary of State’s office granted our applications. Broadcast journalists and all those associated with news crews will now be eligible to obtain and possess body armor. Importantly, the new law will be enforced by local police departments. It is important for local stations to inform police departments in your areas that your news crews are eligible to obtain a possess body armor. You can find the link listing exempt professions including journalists and newscasters here. You can find the decision granting our applications for news crews here.

Since 2008, New York broadcasters have been unable to use “covenants not to compete” as part of their underlying employment contracts with employees under NY State Law. (See NY Labor Law §202k). There are some exceptions to the rule. First, the ban in New York applies only if the covenant not to compete is part of the underlying employment contract. Stations could always negotiate a separate contract that could include a covenant not to compete. In addition, the ban applies only to contracts with employees. Stations could still use covenants not to compete in employment contracts for “managers.” In addition, stations could still include other provisions such as a “right of first refusal,” “non-solicitation” or “trade secrets/non-disclosure” provisions in a contract. Last week the Federal Trade Commission (FTC) opened a proceeding that seeks to ban or limit covenants not to compete nationwide: "The proposed rule would define the term “non-compete clause” as a contractual term between an employer and a worker that prevents the worker from seeking or accepting employment with a person, or operating a business, after the conclusion of the worker’s employment with the employer. The proposed rule would also clarify that whether a contractual provision is a non-compete clause would depend not on what the provision is called, but how the provision functions. As the Commission explains below, the definition of non-compete clause would generally not include other types of restrictive employment covenants—such as non-disclosure agreements (“NDAs”) and client or customer non-solicitation agreements—because these covenants generally do not prevent a worker from seeking or accepting employment with a person or operating a business after the conclusion of the worker’s employment with the employer. However, under the proposed definition of “non-compete clause,” such covenants would be considered non-compete clauses where they are so unusually broad in scope that they function as such." While many contracts for broadcasters will remain unaffected, the FCC’s proposal is broader than current New York law. Some non-compete arrangements that are perfectly legal in New York may now violate the proposed FTC regulations. The proposed FTC rule would supersede New York Law. The following are some of the major differences… FTC rules apply to all “workers” including managers, independent contractors, interns, etc.: The ban in New York applies only to “employees.” The proposed FTC rule is much broader. New York law allows stations to use covenants not to compete for a manager’s employment agreement. This would be prohibited under the FTC regulation. In fact, the FTC is perhaps looking at exempting “senior executives.” In addition, the proposed rule would clarify that the term “worker” includes an employee, individual classified as an independent contractor, extern, intern, volunteer, apprentice, or sole proprietor who provides a service to a client or customer. FTC rule bans non-compete provisions in all worker contracts: Under current New York law a station could enter into a covenant not to compete, provided the contract was separate from the underlying employment contract. After the initial employment contract is signed, some stations negotiate a covenant not to compete as part of a separate severance package. Under the proposed FTC rule, all covenants not to compete would be banned. FTC rules affect non-solicitation and non-disclosure agreements: While stations may not sue a covenant-not-to-compete, New York law will permit the use of non-disclosure agreements (“NDAs”) and client or customer non-solicitation agreements. As noted above, these provisions may become illegal if they are “unusually broad” so as to function as a non-compete clause. FTC rules apply to sales of businesses: New York law is specific to employees. Covenant not to compete for provisions are allowed with respect to the sale of a business, provided they are not unreasonable. The proposed FTC rules would allow such covenants only where the person to which the restriction would apply owned 25% of the business. Thus, if you were buying a business and one of the sellers had less than a 25% ownership interest in the business, you could not bind that person with a covenant not to compete and prevent the person from competing against you. This is a major expansion of the concept, way beyond New York Law. FCC rules require existing non-compete agreements to be rescinded: As noted above, the proposed FTC rule would pre-empt state law. Accordingly, the proposed rule would require that the provisions containing a covenant not to compete be rescinded. Employers would be required to notify workers that the provisions have been rescinded. While New York Stations have become accustomed to not using non-compete provisions for employees, the proposed FCC rules go well beyond current New York Law. There is no doubt that the proposed rule will be extremely controversial across all industries. This is a fundamental change in American labor and business law. We are keeping a close watch on this proceeding. You can find the FTC’s proposed rule here.

NYSBA, along with other state broadcast associations filed Joint Comments arguing against the FCC’s proposed imposition of new EAS cybersecurity monitoring and reporting obligations and harsh enforcement policies. Imposing new burdensome regulations may drive stations away from full participation in the EAs system. The FCC proposes that EAS Participants (1) report any EAS equipment outage to the FCC and repair the equipment according to an ill-defined “reasonably prompt and diligent” performance standard; (2) adopt cybersecurity plans covering “all communications systems and services” that might affect the ability to provide EAS alerts, including constantly monitoring the cybersecurity threat landscape and upgrading cybersecurity plans on an ongoing basis in response to new threats; and (3) report to the FCC any unauthorized access to EAS equipment or any communications systems or services affecting the ability to provide EAS alerts within 72 hours of when the station knew or should have known of the unauthorized access. Before moving forward with any new regulations, the FCC must first a number of other steps to improve the safety and security of EAS. In this regard we urged the FCC to work with EAS device manufacturers to incorporate features like (1) modifications that automatically require password updates, (2) integrated firewalls and multifactor authentication, and (3) alerts for software patches and updates. The Joint Comments also recommended the FCC explore more secure alternatives to the public Internet for transmitting EAS communications. Finally, the Joint Comments argued that the FCC should retain the current rule that allows broadcasters to take broken EAS equipment out of operation for a period of 60 days without Commission notice or authorization, work with broadcasters to develop cybersecurity plans or incident reporting protocols rather than place that full burden on broadcasters without guidance on what the FCC will find satisfactory. We urged the FCC to reject the punitive enforcement stance outlined in the Notice of Proposed Rulemaking. A copy of our filing may be found here.

On December 15, the FCC’s Public Safety Bureau issued a Public Notice stating that broadcasters must submit their annual EAS Form 1 by February 28, 2023. While there was no national EAS test in 2022, it is anticipated that there will be a test in 2023. However, no date has been set. The Public Notice Stated: "By this Public Notice, the Public Safety and Homeland Security Bureau (Bureau) directs parties subject to the Emergency Alert System (EAS) rules to submit their annual Form One filings for calendar year 2022 in the online EAS Test Reporting System (ETRS) by no later than February 28, 2023. The ETRS is an online filing system by which EAS Participants submit information regarding their performance on nationwide tests of the EAS that the Federal Emergency Management Agency (FEMA) and the Commission conduct regularly to assess the reliability and effectiveness of the nation’s alert and warning infrastructure." You can see the Public Notice here.

Last week, the House Judiciary Committee passed the American Music Fairness Act. This bill would impose a performance copyright fee on over-the-air radio broadcasts. One of the leading proponents of the bill was the House Judiciary Chairman Jerry Nadler (D. NY). The bill passed the committee by voice vote. Despite passing the House Judiciary Committee, the bill will not pass the House. Broadcasters have more than 250 members of the House supporting the Local Radio Freedom Act, which opposes the imposition of a performance fee on over-the-air broadcasts. The bottom line is that this bill is not moving this year. NAB President Curtis LeGeyt stated: “NAB thanks the members of the House Judiciary Committee who voted against the AMFA today, and the more than 250 members of Congress – including a majority of the House of Representatives – that support a resolution opposing this new performance royalty on local radio. These lawmakers understand that AMFA will harm local broadcasters and audiences around the country, undermine our ability to serve their communities and ultimately fail artists by leading to less music airplay. Broadcasters urge the recording industry to join us in serious discussions instead of using the few legislative days left in the calendar to pursue divisive legislation that faces broad congressional opposition.” NYSBA strongly opposed the American Music Fairness Act. We are delighted to see that this legislation will not pass this year. Unfortunately, several members of the New York Delegation followed Chairman Nadler and supported the American Music Fairness Act, including Rep. Jamaal Bowman, [D-NY-16], Rep. Adriano Espaillat, [D-NY-13], Rep. Brian Higgins [D-NY-26], Rep. Gregory Meeks, [D-NY-5], and Rep. Thomas Suozzi [D-NY-3]. On the other hand, we want to thank the 10 members of the New York Delegation who supported the Local Radio Freedom Act and opposed imposing a performance fee on over-the-air radio broadcasts. The New York Representatives, mostly Republican, who supported the Local Radio Freedom Act are as follows: Rep. Andrew Garbarino, [R-NY-2], Rep. Chris Jacobs [R-NY-27], Rep. John Katko, [R-NY-24], Rep. Nicole Malliotakis [R-NY-11], Rep. Gregory Meeks [D-NY-5], Rep. Tom Reed, [R-NY-23] Rep. Joseph Sempolinski, [R-NY-23], Rep. Elise Stefanik. [R-NY-21], Rep. Claudia Tenney, [R-NY-22], and Rep. Lee Zeldin [R-NY-1]. This issue will come back in the next Congress. With Republicans taking control of the House of Representatives, it will become more difficult to pass legislation that will impose a performance fee on local stations.

The FCC has sent an e-mail, apparently to all broadcasters, regarding the cybersecurity of broadcast stations that use the DASDEC EAS encoder/decoder device sold by Digital Alert Systems (formerly Monroe Electronics), using software prior to version 4.1. The advisory states: "On November 23, 2022, the Cybersecurity and Infrastructure Security Agency (CISA) issued an Advisory on security vulnerabilities in DASDEC EAS encoder/decoder devices sold by Digital Alert Systems (formerly Monroe Electronics). CISA warns that DASDEC software prior to version 4.1 contains a cross-site scripting (XSS) vulnerability that allows remote attackers to run code on the devices. CISA also warns that all DASDEC software contains an XSS vulnerability via the Host Header that can be used by remote attackers after login. The Public Safety and Homeland Security Bureau (PSHSB or Bureau) of the Federal Communications Commission advises all EAS Participants that use DASDEC devices to immediately take the following steps recommended by CISA to protect their systems from cyberattacks: Patch their DASDEC equipment to the latest version. Minimize network exposure for all control system devices and/or systems, and ensure they are not accessible from the Internet. Locate control system networks and remote devices behind firewalls and isolate them from business networks. When remote access is required, use secure methods, such as Virtual Private Networks (VPNs), recognizing VPNs may have vulnerabilities and should be updated to the most current version available. Also recognize VPN is only as secure as its connected devices. The Bureau also urges EAS Participants to take additional steps to improve their cyber hygiene as described in its August 5, 2022, Public Notice. Under the FCC’s rules, EAS Participants are responsible for ensuring that EAS equipment is installed so that the monitoring and transmitting functions are available during the times the stations and systems are in operation. Failure to receive or transmit EAS messages during national tests or actual emergencies because of an equipment failure may subject the EAS Participant to enforcement. The Bureau thanks you for your efforts to ensure the continued effectiveness of EAS." You can access the CISA Advisory here. You can access the FCC’s previous Public Notice here.

Last week, NYSBA joined with the other state broadcaster associations urging the Senate Leadership to pass the Journalism Competition & Preservation Act “JCPA” (S.673). In today’s marketplace, “Big Tech” companies can take a station’s local news content without fairly compensating the station. As such, they take a station’s content, use it on their platforms, and then turn around a sell local advertising. This unfair practice has to stop. This legislation creates an exemption from the antitrust laws and allows local stations and newspapers to bargain collectively with “Big Tech” to make sure they obtain fair value for their product. The letter noted: “Broadcasters provide an invaluable resource to local communities around the country, serving as a trusted source for news and information. However, the major tech behemoths are threatening the survival of local broadcasters and other news publishers throughout American communities. These behemoths have grown to massive sizes, and have gained enormous market power. They have upended the advertising marketplace and, in many cases, have devised anticompetitive practices to protect it. Broadcasters and other news publishers are now competing with these massive platforms for advertising revenue, and these platforms often act as gatekeepers of online content – exerting power over what internet users access and how advertisers reach them.” As we move into the lame-duck session of Congress, we hope to have this legislation attached to “must pass” legislation. Majority Leader Chuck Schumer is doing his best to move this legislation forward.

The New York State Broadcasters Association BEST (Broadcast Essentials for Selling Today) Program gives the veteran and new seller broadcast professional a foundation to build upon for a successful and rewarding traditional and digital broadcast sales career. It is also the path for NYSBA and LBS members to obtain the coveted status of Certified Seller! The BEST Program offers content covering these topics: Broadcast and Digital Branding Your Clients Your LOCAL Auto Dealers Broadcast Selling Excellence The Basics of Selling Broadcast Keys to Selling by Personality Style Tips from a General Sales Manager "The NYSBA BEST Seller Certification program is a high-value certification ensuring that New York broadcast sellers and leaders maintain a high level of knowledge and skill in the broadcast sales profession. Your commitment to completing the program is a strong message that you have mastered key selling skill sets for the benefit of your clients, station, web marketing, and self-development," said David Donovan, President of the New York State Broadcasters Association. Please note: The New York State Broadcasters Association BEST Program is a college-level course for TV, Radio, and Digital broadcast sellers and leaders whose stations are in good standing with the association. As a result, this is a highly-organized and structured program, including periodic quizzes to evaluate your understanding of the topics covered. Completing this course is intended to take 30 days at roughly 25 minutes per day (some days are longer, some shorter), though you are certainly welcome to proceed at your own pace if you prefer to work through the content either faster or slower. To get started, please use this link. Once you sign up, a course listing will appear, and you’ll want to click on “Section 1 – Welcome to The BEST Program!” to begin. Have questions? Need help? Contact LBS Vice President Eric Moore at ericmoore@localbroadcastsales.com.

While stations do not pay performance fees for over-the-air broadcasts, we do pay performance fees for streaming. Unfortunately, the performance fees we pay for streaming will increase in 2023. As noted communications attorney David Oxenford pointed out in his recent broadcast blog: “In a Federal Register notice, the Copyright Royalty Board announced cost-of-living increases in the statutory royalties to be paid by webcasters for the public performance of sound recordings. These are the royalties paid to SoundExchange by those making non-interactive digital transmissions of sound recordings. In 2022, commercial webcasters, including broadcasters streaming their programming on the Internet, pay $.0022 per performance for a nonsubscription transmission and $.0028 per performance for a subscription transmission. The Federal Register publication sets out the computations for the cost-of-living increase and announces that the rate for nonsubscription transmissions made in 2023 will be $.0024 per performance, and for subscription transmissions, the rate will be $.0030 per performance. For noncommercial webcasters, the 2023 rate will be $0.0024 per performance for all digital audio transmissions in excess of the monthly 159,140 aggregate tuning hours of music programming per channel or station that a noncommercial webcaster gets for its yearly $1000 per channel minimum fee.” To see a complete discussion of the fees that can be assessed for streaming, click here to visit David Oxenford’s broadcast blog.

The New York Gaming Commission has released regulations that will govern sports betting in New York State. Sports wagering has already commenced at some facilities. Sports wagering is limited to “brick and mortar” facilities, i.e. casinos. Accordingly, the following state-licensed casinos may operate sports wagering facilities: Del Lago Resort And Casino, Rivers Casino And Resort, Resorts World Catskills, and Tioga Downs Casino. In addition to these facilities, full-service Native American casinos may offer sports wagering. At this point, the Oneida Nation is planning sports books at Turning Stone Resort and Casino, Yellow Brick Road Casino, and Point Place Casino. Others are sure to follow. Online sports wagering has not been authorized in New York State. Thus you should not broadcast advertising for any sports wagering involving online sports betting. Fantasy leagues such as Draft Kings or Fan Duel are legal in New York. You may accept advertising from these sources because fantasy leagues are generally not considered to be gambling per se, but considered a game of skill. Sports wagering offers stations significant advertising opportunities for stations. The Gaming Commission’s regulations are enforceable against the casinos. It is the casino’s responsibility to make sure its advertising meets the regulations. Nonetheless, knowing the regulations will help you better serve your clients. Moreover, there may be FCC license implications if a station knowingly broadcasts advertisements that are illegal under New York law. In general, the new sports wagering regulations incorporate the regulations that currently apply to advertisements for casino gaming. In this regard, you should make sure the content of the advertisement does not include or reference any prohibited activity described below. GENERAL RULES Casinos must obtain a separate sports pool license. Make sure your advertiser has this separate license and is authorized to conduct sports wagering at its facility. No person under 21 may place a sports wager. Wagers may not be accepted from any “sports pool participant.” This includes anyone who may undermine the integrity of the system, including athletes whose performance may be used to determine the outcome of such wagering, players, coaches, referees, or other game officials, trainers, or team employees. Wagers may not be accepted from an employee of the sport’s governing body (i.e. the league or conference) or anyone with non-public confidential information. In effect, any person who holds a position of authority or influence to exert influence over the sporting event may not place a sports wager. RESTRICTIONS ON AMATEUR AND COLLEGE SPORTS No sports wagering on amateur, interscholastic, or youth sports. No wagering on any college game, tournament, or sporting event (e.g. NIT, Big East, A-10, NCAA championships) if it is being held within the State of New York. This prohibition applies even if there are no New York colleges in the tournament. No wagering on any game, tournament, or sporting event involving a college or university located in New York. This prohibition applies to all games, even those held outside the state. For example, if Syracuse Basketball is playing Duke at Duke, it is still prohibited. If Union is playing in the NCAA Frozen Four in Minnesota, you cannot place a wager. Wagering on college sports is permitted only if the event is held outside of New York State and does not involve any New York colleges or universities. (For example, it is legal to wager on the Rose Bowl where Michigan is playing UCLA.) The Gaming Commission, on its own motion or by a petitioning party, may prevent wagering on any sporting event if it conflicts with the public interest. Petitions seeking to limit sports wagering of an event must be filed 60 days in advance. A “wagering tournament” requires prior Gaming Commission approval. GENERAL ADVERTISING RULES Advertising may not depict any person under the age of 21 engaging in sports wagering, gaming, or related activities. Advertising should not be placed in programs where a majority of the audience is under 21. Advertising should not include persons listed as “sports pool participants.” This would include players, coaches, trainers, owners, league employees, umpires, referees, or any person who holds a position of authority or influence to exert influence over the sporting event. Advertising must be based upon fact, and shall not be false, deceptive, or misleading. Cannot use any type, size, location, lighting, illustration, or graphic depiction of color resulting in the obscuring of any material fact. Advertisements must clearly and conspicuously specify and state any material conditions or limiting factors. Advertisements must state the name and location of the gaming facility conducting the advertisement. Each advertisement shall, clearly and conspicuously, state a problem gambling hotline number. The Gaming Commission reviews advertisements. Each gaming facility provides a copy of all advertisements within five business days of the advertisement’s public dissemination. PROBLEM GAMBLING ASSISTANCE NOTIFICATIONS ARE REQUIRED IN ALL ADVERTISEMENTS The requirements for sports wagering are the same requirements you currently use when accepting advertising for casino gaming. Advertisements shall contain a problem gambling assistance message comparable to one of the following: If you or someone you know has a gambling problem, help is available. Call (877-8-HOPENY) or text HOPENY (467369); or Gambling Problem? Call (877-8-HOPENY) or text HOPENY (467369); or Any other message approved in writing by the commission. RADIO Advertisements must contain one of the above messages during the advertisement. TELEVISION Option 1 – Problem gambling assistance notification appears throughout the entire time the advertisement is broadcast. The height of the font used for the problem gambling assistance message must be at least two percent of the height or width, whichever is greater, of the image that will be displayed. Most casinos opt for this approach. Option 2 – You do not run the notification throughout the entire advertisement. Once you show a scene involving gaming (table, slot machine, casino floor, or sports betting) or orally mention the casino’s name or gaming, you must then display the problem gambling notification in a separate dedicated screenshot. The separate dedicated screenshot must be visible for at least three seconds. The height and width of the problem gambling notification screen on the dedicated screenshot must be at least eight percent of the height or width, whichever is greater, of the image that will be displayed. This is a complicated option and most casinos prefer to use Option 1. WEB AND SOCIAL MEDIA The problem gambling message must be posted on each web page or profile page and on any gaming-related advertisement posted on the webpage or profile page; The height of the font used for the problem gambling assistance message must be at least the same size as the majority of the text used on the webpage or profile page; and For advertisements posted on the webpage or profile page, the height of the font used for the problem gambling assistance message must comply with the height requirements mentioned above. (i.e, must be at least the same size as the majority of the text used in the webpage or profile page) Again, the burden is on the casino to meet the requirements of the Gaming Commission. The New York Gaming Commission reviews all advertising after it has been broadcast. If it determines that a particular advertisement is inappropriate, then you should not run it. Stations broadcasting sports wagering or any gaming advertisements are advised to obtain a letter from a casino stating that it complies with NY Gaming Commission regulations. The NFL has additional policies and regulations regarding advertising. The NFL will permit stations to run general advertising for casinos during NFL games. Stations may not broadcast advertisements relating to sports betting or sports books during NFL games.

The Board of Directors of the New York State Broadcasters Association is honored to announce the selection of Michael Strahan as its Broadcaster of the Year for 2022. Strahan is an Emmy winner, Super Bowl Champion, member of the Pro Football Hall of Fame, and a Peabody award-winning journalist. He currently co-anchors ABC’s “Good Morning America.” During the NFL football season, he serves as an analyst of “Fox NFL Sunday,” for which he received a 2019 Sports Emmy Award nomination for “Outstanding Sports Personality – Studio Analyst” and a 2020 Sports Emmy Award nomination for ‘Outstanding Studio Show – Weekly.” Strahan also hosts the top-rated primetime game show favorite “$100,000 Pyramid” on ABC, produced by SMAC Entertainment in association with Sony Pictures Television, which is currently airing its sixth season. He will be honored in 2023 in the newest category of sports entertainment on the Hollywood Walk of Fame. David Donovan, the President of the New York State Broadcasters Association, stated: “We are honored to recognize Michael Strahan as our Broadcaster of the Year for 2022. This was a unanimous decision by the Board of Directors. Strahan is a tour de force in television. You see his award-winning talent every morning when he co-anchors ABC’s Good Morning America. NFL games would not be the same without his insights and analysis. He brings a perspective that can only be provided by a Pro Football Hall of Famer. His broadcast versatility can be seen as the host of the top-rated show ‘The $100,000 Pyramid.’ Moreover, he has made his mark as a producer of numerous award-winning programs with SMAC Entertainment. Strahan has written a book and as an entrepreneur, he’s launched several highly successful clothing lines, accessories, as well as a recent skincare line. Most importantly, Strahan has given back to the community. He donates his hands and heart to numerous charities. Since 2010, he has also been a passionate supporter of St. Jude Children’s Research Hospital. His recent partnership with ‘See Her’ seeks to combat an unconscious bias that persists against women and girls in advertising, media, and programming.” Strahan will receive the Broadcaster of the Year award at a special luncheon on Thursday, October 20 in the Rainbow Room at 30 Rockefeller Plaza, New York, NY 10112. You may register for luncheon tickets here.

Last week, the New York City radio stations launched a multi-media “Love Radio” promotional campaign. The New York City Radio Committee, a joint partnership of all the major radio broadcasters in New York City, has developed a marketing campaign to promote the power of radio. The campaign will include radio messaging on over twenty of New York’s most listened-to stations, digital and social media marketing along with trade media. The multi-media campaign began Monday, September 22nd, and runs through November. The campaign is based on research conducted by DYNATA. The focal point of the initiative will be a special emphasis on advertising agencies and businesses that purchase advertising. Chris Oliviero, Market President of Audacy New York and Chairman of the New York City Radio Committee, stated: “Radio has been and continues to be a critical and valued part of millions of New Yorkers’ daily lives. These iconic brands, from music to news to sports, provide the soundtrack of the city. This campaign offers a fresh, fun and innovative approach to highlighting the efficacy of radio for media planners and advertisers. The collaboration of the city’s major broadcasters shows a clear commitment to our belief that local radio, consumed on FM or AM or streaming or in podcasts, is an essential tool in any overall marketing strategy in the media capital of the world.” The creative used in the campaign was developed by Bandujo Advertising and Design of New York City. Jose Bandujo, Founder & Chief Creative Officer stated: “Our brief was to reinforce with a new generation of media planners and advertisers that radio is a fresh, vibrant media channel. Its popularity is booming, and it should be an essential element of their marketing strategies, to help them reach their customers. With millions of New Yorkers—across all ages and demographics — tuning in every week, we had a strong foundation and could back up any promise with incredible statistics. And, just like radio entertains people, we wanted to communicate those stats in an entertaining way. Our answer was to create a persona for radio through a tongue-in-cheek dating profile. Then convey the many benefits of radio through its personality traits. The result is a campaign that delivers all the surprising stats and reasons to believe, in unexpected ways. Lots of fun. And lots to love.” The New York City Radio Committee is comprised of executives from iHeart Radio (Z100, Power 105.1, Lite FM 106.7, KTU 103.5, 104.3, WOR 710AM, WWRL 1600AM), Spanish Broadcasting System (MEGA 97.9 & Amor 93.1), Salem Media Group (The Mission AM 570 & The Answer AM 970); Media Co. (Hot 97 & WBLS 107.5), Univision (LaX96.3, WADO 1280 & Que Buena 92.7), Good Karma Brands (WEPN-AM 1050AM & WEPN-FM 98.7FM) and Audacy (WFAN, 1010 WINS, WCBS 880, WCBS 101FM, 94.7 THE BLOCK, ALT 92.3 & NEW 102.7). The New York Radio Committee is a subcommittee of the New York State Broadcasters Association, Inc. All radio stations licensed by the FCC in the New York City metro area are invited to participate in the campaign. For more information about the campaign go to the NY City Radio website at nycradioads.com. You can see the press release here. For additional information contact Nicole Ovadia at novadia@nyc-radio.org or David Donovan at ddonovan@nysbroadcasters.org.

As in the past, this will be a statewide competition, with stations competing against other stations in similarly sized markets. The portal opens on March 15 and will close on April 30. Submissions will once again be accepted online. We will present awards in multiple categories for radio, television, and digital. We have a separate division for college radio and television stations. The competition will be statewide with stations competing in large, medium, and small markets. The competition will include content broadcast between March 1, 2022, and March 1, 2023. This competition encourages professional performance and recognizes outstanding achievement among radio, television, and college stations in our state, and all employees of NYSBA member stations in good standing are urged to submit entries. We will present the Excellence in Broadcasting awards at our regional luncheons in September. We are securing locations now. The lunches will run from 12 noon to 2 PM on the following dates: Buffalo – Monday, September 18th Rochester – Tuesday, September 19th Binghamton – Wednesday, September 20th Syracuse – Thursday, September 21st Albany – Friday, September 22nd Long Island – Thursday, September 28th New York City – Friday, September 29th Please note that we will be doing the Binghamton luncheon before the Syracuse luncheon this year. For more information regarding the competition, program categories, and rules, go to the NYSBA website.

The pending trial of former President Donald Trump has sparked interest in the need to allow cameras in New York courtrooms. This issue has long vexed local stations. New York allowed cameras in the courtroom during a 10-year experiment. Despite there being no evidence of harm to the judicial process, the statute allowing cameras in the courtroom was allowed to lapse years ago. Today, it is possible for an individual judge to allow limited access, but those seeking to provide cameras in the courtroom bear a heavy burden. Most judges deny the media access to trials. For years, NYSBA has supported legislation offered by Sen. Brad Hoylman-Sigal (S 160) (pictured above) and Assemblyman David Weprin (A 712) to allow cameras in the courtroom. The legislation takes on new meaning given the interest in the proceedings involving former President Donald Trump. Sen Hoylman-Sigal hosted a press conference in New York City on Sunday. NYSBA President David Donovan was on hand to support the legislation. Donovan stated: “Every day local radio and television stations provide essential news to all citizens of New York. Every day we are reporting on trials that take place in county courts across the state. However, citizens cannot see how the judiciary works and how justice is dispensed. Citizens want transparency in their government. Transparency is necessary for a democracy. While the trial of a former President has notoriety, the coverage of routine trials is essential. If people are to have faith in government institutions, there must be transparency. I hope Governor Hochul will consider adding this legislation to her budget package.” We hope the bill can be included in the budget process, which will guarantee quick action. If it is taken out of the budget, we will continue to push for the bill during this legislative session. However, if the past is any indication, it will be an uphill task. Former President Trump’s attorneys have asked that cameras not be allowed in the courtroom when he is arraigned today. NYSBA has supported this legislation for years. Hopefully, the time has come for the legislation to pass. You can see a copy of the legislation here. A good story about the issue in New York appeared in Politico here.

The New York Office of Cannabis Management has published its final rules regarding advertising by licensed cannabis distributors. The rules place significant restrictions on cannabis advertising, which may prevent cannabis advertising on local broadcast stations. To begin with, federal law still restricts stations from accepting cannabis advertising from licensed distributors in the state of New York. Since federal drug laws remain in place, stations may place their federal broadcast license at risk by accepting cannabis advertisements, even though the ads are being purchased by a legal cannabis distributor in New York. Each station must make its own decision, and we urge stations to consult with counsel before accepting cannabis advertisements. At some point in time, we are hoping to change federal law. If federal law changes, then the New York State Cannabis advertising laws will take effect. The new regulations apply directly to licensed cannabis distributors in New Your State. If they fail to follow the ad rules, they may risk losing their license. The regulations do not apply directly to stations. Although, as noted above, running advertisements that violate either state or federal law may create risks for your license. 90% Audience Placement Standard May Prevent Advertising During Popular Programs and Formats: Under the New York cannabis ad regulations, cannabis advertisements may only be placed in programs where the cannabis licensee has “reliable evidence” that 90% of the audience is reasonably expected to be 21 years of age or older. The burden of proof is on the licensed cannabis distributor. We strongly object to this standard. On numerous occasions, we have advised NYOCM that this standard is too restrictive. The voluntary industry standards for alcohol advertising require that 71.6% of the audience must be 21 years of age or older. Most states approving adult-use cannabis have adopted the standard used for alcohol. NYSBA’s filings in this proceeding documented the significant preclusive effect of this restriction. The 90% standard will relegate cannabis advertisements to programs that have very small audiences, making it unlikely that licensed distributors will use broadcast, cable, print, or other electronic media. Moreover, a cannabis advertiser has assumed the burden of showing that this standard is met by providing reliable evidence that 90% of the audience is reasonably expected to be 21 years of age or older. It is still somewhat unclear what will constitute “reliable evidence.” However, NYOCM previously published a guidance document stating: “There are many forms of reliable evidence that can substantiate the composition of the audience that is reasonably expected to view an advertisement. Some examples of such evidence are: A description of the age verification methods of an establishment that only allows entrance to individuals who are at least twenty-one years old; Audience composition data provided by a media purchasing agency or ad agency to verify the demographic information of an audience; and Age analytics for the media unit purchased or considered. Evidence is not reliable if it does not accurately represent the reasonably expected audience of an advertisement. The methods through which evidence is collected, the nature of the evidence itself, and the applicability of the information to the situation in which the advertisement will be placed are all factors that could result in evidence being deemed ‘unreliable.'” Extensive Labeling May Prevent Most Radio Advertising: Simply stated, the proposed labeling requirements are simply too long for most radio advertising. While the regulations enacted an audio-specific label, it is still too long for 15-second and 30-second radio spots. The base warning label for all “audio” cannabis ads reads as follows: “For use only by adults 21 and older. Keep out of reach of children and pets. In case of accidental ingestion or overconsumption, contact the National Poison Control Center. Consume responsibly.” The NYOCM Guidance Document issued in December only references this label requirement for “audio” only advertisements. However, the rules that have been adopted seem to say that stations must also include rotating labels and the HOPELine number. We are trying to clarify this now. In either case, the warning labels are too long for most radio spots. Again, federal laws remain in place and stations accept cannabis advertising at their own risk. Even if federal laws change, NYOCM’s rules place significant restrictions on licensed cannabis distributors seeking to advertise on local broadcast stations. NYOCM’s administration of the adult-use cannabis rollout has raised concerns on a number of issues. We anticipate that corrective legislation may move later in the year. We hope to find a legislative fix for these overly restrictive rules. You can see the final NYOCM advertising regulations here. You can see the NYOCM Advertising Guidance Document here. You can see NYSBA’s filings before NYOCM here and regulation comments here.

Advertising for online sports wagering and brick-and-mortar casino sports books has become an important source of revenue for local stations. At the present time, NY regulations regarding sports wagering require that advertising not be directed at people under 21 years of age. There can be no wagering on youth sports and sports involving colleges in New York. Advertising cannot include players, coaches, or any “sports pool” participants. Advertisements may not be false or misleading. Most importantly, sports gaming advertising must include a reference to the problem gambling hotline (877 HOPE NY). The new proposed rules are more specific with respect to advertising directed at people under 21. Of particular note is a proposed audience placement rule which states: “Composition of audience. Sports wagering advertising and marketing shall not be placed in broadcast, cable, radio, print or digital communications where the reasonably foreseeable percentage of the composition of the audience that is a person under the wagering minimum age… is greater than the percentage of the population in the State that is under such age, such population as measured by the most recent completed [sic] decennial census.” We have concerns with this approach. As drafted, it would require that sports betting advertising could only be placed in programs that have a significant audience that is over 21. We are in the process of obtaining up-to-date census data. Some data indicates that 71% of New Yorkers are over 21 years of age. Thus, the question is whether certain TV programs or radio formats have an audience where 71% of that audience is 21 years of age or older. This could exclude a variety of radio formats and sports programs on TV. As we noted when discussing cannabis restrictions, many stations do not have access to rating services with respect to specific programs, especially in small markets. Also, the proposed regulations will ban all sports wagering advertising on all college media outlets, including radio and TV stations. We are in the process of examining the proposed regulations and will be filing documents with the New York State Gaming Commission. This is an important issue. While online sports betting advertising declined this year, it remains an important source of revenue. Stay tuned as this issue is just beginning. You can see the current sports wagering advertising rules here. You can see the New York Gaming Commission’s proposed sports wagering advertising rules here.

Over the past several years there has been a growing concern about excluding AM receivers from electric vehicles. For example, Ford and Tesla are apparently planning to drop AM receivers from new EV models. Senator Ed Markey (D MA) has raised this issue with automakers in a recent letter. He noted: “Despite innovations such as the smartphone and social media, AM/FM broadcast radio remains the most dependable, cost-free, and accessible communication mechanism for public officials to communicate with the public during times of emergency. As a result, any phase-out of broadcast AM radio could pose a significant communication problem during emergencies,” Senator Markey wrote. "Although the auto industry’s investments in electric vehicles are critical to addressing the climate crisis and reducing greenhouse gas emissions, automakers need not sacrifice the benefits of radio in the process.” Senator Markey asked specific questions regarding automakers’ plans to include AM receivers in EVs. The letter was sent to BMW, Ford General Motors, Honda Motor, Hyundai, Jaguar Land Rover, Kia, Lucid, Mazda, Mercedes-Benz, Mitsubishi, Nissan, Polestar, Rivian, Stellantis, Subaru, Tesla, Toyota, Volkswagen Group, and Volvo. We expect to receive the answers shortly. Recently, FCC Commissioner Nathan Simington supported a letter written by former FEMA officials that was sent to Secretary of Transportation Pete Buttigieg. The letter urged the Department of Transportation to keep AM receives in Electric vehicles. Commissioner Simington approved the letter stating: “I applaud the statement by FEMA leaders on the importance of AM radio for disaster response. As the FCC shares authority with FEMA for many aspects of our national emergency alerting systems, I underscore and affirm their concerns in the strongest possible terms. The issue of the continued inclusion of AM radios in electric vehicles deserves urgent attention.” We could not agree more. AM radio serves as the backbone for news and information in this country. Whether in rural areas or communities in New York City, AM radio is an essential communication source. The purported interference issues in EVs can be fixed. Going “green” should not be losing this important service. You can see Senator Markey’s letter to automakers here. FCC Commissioner Simington’s press release supporting AM radio can be accessed here.

Last week, television stations in Rochester rolled out Next Gen TV. The four stations that commenced providing services in ATSC 3.0 were WHAM (ABC), WROC (CBS), WUHF (Fox), and WXXI Public Media (PBS). The rollout of Next Gen TV is moving forward. Sixty percent of Americans now have access to Next Gen (ATSC 3.0) services in television markets across the country. In addition to Rochester, these services can be seen in the Albany, Syracuse, and Buffalo markets. Stations in New York City are working to provide Next Gen Service to the Big Apple. This new transmission system will afford local television stations new business opportunities. The IP-based transmission system uses the same backbone as other streaming media platforms. Next Gen TV lets local TV stations better personalize their broadcasts with information and interactive features. It is designed to bring together over-the-air broadcasting with Over-the-Top content. Next Gen TV delivers better video quality and immersive audio to viewers. It will provide greater capability for advanced emergency alerting. Next Gen TV offers 4K ultra high-definition video quality, theater-like sound, and innovative new features to enhance and expand broadcast viewing. It also allows for enhanced mobile reception. As a digital-based platform, it is easily adaptable to future technologies. You can see more information on the Rochester rollout here. You can find more information about Next Gen TV on the ATSC website here.