As we previously noted, the FCC has reinstated its annual EEO Report 395B on a 3-2 party-line vote. This form was used in the 1980’s and 1909’s. However, after two court decisions challenged the constitutionality of using Form 395B, the FCC eschewed using the form in 1998. Basically, the courts found that by using the form, the FCC was forcing stations to hire based on race or gender, which it deemed to be unconstitutional. Fearing a constitutional challenge, the FCC has not used the form in more than 20 years. It has now reversed course and will once again collect very specific employment data. To avoid a constitutional challenge, the FCC indicated it would not use the data against any individual station. However, it will make the data contained in each station’s Form 395 B public via a web portal. “Consistent with how these data have been collected historically, we will make broadcasters’ Form 395-B filings available to the public because we conclude that doing so will ensure maximum accuracy of the submitted data, is consistent with Congress’s goal to maximize the utility of the data an agency collects for the benefit of the public, allows us to produce the most useful reports possible for the benefit of Congress and the public, and allows for third-party testing of the accuracy of our data analyses. Thus, with today’s action, we restore the process of giving broadcasters, Congress, and ourselves the data needed to better understand the workforce composition in the broadcast sector. We find further that continuing to collect this information in a transparent manner is consistent with a broader shift towards greater openness regarding diversity, equity, and inclusion across both corporate America9 and government.” Many general managers do not remember having to file Form 395B. Needless to say, it requires a lot of work. Moreover, making the data public raises some significant concerns. We are examining the FCC’s decision closely. You can see the FCC’s decision to reinstate Form 395B here.

Next week, we will be in Washington DC representing local stations (see story below). As a result, there will be no NewStream published next week on March 5. Our next edition will be published the following week, March 12, 2024

As we reported earlier, in response to a court order, the FCC finally completed its 2018 review of its ownership rules last December. After years of delay, the only change was tightening the ownership rules for local TV stations. Previously, the limitations on owning more than one of the top 4 stations in a market did not include LPTV or digital channels. Under its most recent decision, it has been made clear that one TV station cannot acquire the Top 4 network programming from another station in its market and move that programming to a commonly owned LPTV or multicast stream without seeking a prior FCC waiver. You can see the FCC’s notice here. You can see the FCC decision here. You can see a discussion from noted communications attorney David Oxenford here.

The MTA’s congestion pricing plan for New York City is facing significant opposition from a number of sources, including the state of New Jersey and even the Mayor. Nonetheless, the MTA continues to move forward with a plan that would impose a fee for entering the central business district (CBD) in Manhattan, i.e., below 60th Street. The basic fee for entering the CBD during the day would be $15 once a day per vehicle once a day. These fees would apply to most vehicles now used for covering the news, including SUVs and vans. There are lower fees for entering during the evening and credits for tolls already paid for using bridges and tunnels. Broadcasters operate about 165 news vehicles in New York City, so these costs could add up. Unfortunately, the MTA changed the initial Traffic Review Board recommendations with respect to vans. Initially, all vans were eligible for the $15 per day fee. However, the proposed toll schedule states that vans with “roofs extending above the windshield” would be charged $24 not just once a day, but every time they entered the CBD. A number of news vehicles have vans with roofs that extend above the windshield. The change in fees could significantly impact news coverage in the central business district. We filed comments with the MTA addressing both of these concerns. Specifically, we requested that the MTA (Triborough Bridge and Tunnel Authority): 1.            News vehicles with “press plates” issued by the New York Department of Motor Vehicles should be exempt. 2.            The TBTA’s toll schedule for vans conflicts with the Traffic Mobility Review Board’s recommendations. The TBTA should follow the conclusions contained in the Traffic Mobility Review Board’s report regarding vans. News vans with “press plates” should be considered as Class 1 vehicles, even though the roofline extends above the windshield. To date, the MTA has essentially denied all exemption requests. Nonetheless, we are concerned these fees could have a negative impact on news coverage. The MTA plans to implement the fee schedule later in the spring. You can see NYSBA's memo filed with the MTA here. You can get more information from the MTA website here. You can see MTA’s proposed fees here. You can see the original Traffic Mobility Review Board’s recommendations here.

Late last week, New York Governor Kathy Hochul proposed a package of new laws addressing AI. She plans to include the new AI package in the budget. As a result, she is looking to include the new provisions when the budget is voted on in early April. The legislative package covers a variety of situations where AI can impact both criminal and civil laws. In announcing the package, Governor Hochul stated: "Governor Hochul’s actions include new legislation, presented as part of her FY 2025 Executive Budget, which would add a misdemeanor for unauthorized uses of a person’s voice; allow for a private right of action to combat digitally manipulated false images; update the Penal Law to account for unauthorized uses of artificial intelligence; and require disclosures on digitized political communications published within 60 days of an election. The new legislation builds on the Governor’s vision of putting New York at the forefront of artificial intelligence research and development — including through her transformative Empire AI proposal to establish a consortium of leading New York institutions to unlock AI opportunities focused on public good." The deployment of AI can both help and harm broadcasters. We have three overarching concerns. First, we do not want entities taking our content without payment. Second, it is nearly impossible to determine when a content creator has illegally used AI. As distributors, we should not be held responsible for content created by another entity. The liability should rest on the entity creating the content, not the broadcaster. Finally, with respect to political advertising, federal law prevents broadcasters from editing or modifying political ads from a candidate’s campaign committee. Federal law provides immunity for local stations with respect to campaign advertising from the candidate's committee. Accordingly, we should not be held liable for advertisements from a candidate's committee that improperly uses AI. (Of course, broadcasters are liable for the content appearing in ads purchased by third parties such as unrelated PACs or political parties.) We are working with legislators and the Governor’s office to make sure broadcasters are not unduly burdened by this new legislative package. You can see Governor Hochul’s statement regarding the new AI legislation here. You can see the text of the proposed legislation here.

LBS has archived another webinar from the “Year of the Customer” virtual conference. You can now watch “Social Media for Your Customers Isn’t About Volume, It’s About Differentiation!” from Lori Lewis, President of Lori Lewis Media and LBS Social Media Expert. She discusses the misconceptions and pitfalls of social media that stations commonly fall into. She provides advice for enhancing your station's social media presence. Watch “Social Media for Your Customers Isn’t About Volume, It’s About Differentiation” by clicking here.

Obviously, the audience reach during the “Big Game” commands high prices. However, a recent survey by Katz Media indicates that follow-up discussions on radio should be included in the advertising mix. The study was reported in a recent edition of Inside Radio: “To an on-field rematch to a pop superstar in the celebrity box, this year’s Super Bowl had plenty to talk about regardless of whether it was on a sports-talk station or a CHR morning show.  And talk they did.  A new Katz Media survey finds that seven in ten (72%) listeners report hearing on-air conversations about the big game during their daily radio listening in the two days after the Kansas City Chiefs left the field victorious.” The article explained further: “Helping make the case for why adding some radio to the media plan is a good play for advertisers looking to expand their reach beyond the living room, the Katz survey of more than 500 radio listeners shows that a lot of the conversations people say they heard about the Super Bowl came while they were in the car. Two-thirds say they heard discussions while driving in the car, by far the most common location for both men and women.  Super Bowl engagement also continued while listeners were at work, for 13% of men and 7% of women.  And even though at-home listening is not as prevalent, the survey shows four in ten listeners reported hearing Super Bowl discussions on the radio from the comfort of their homes and home offices – with men (43%) more likely than women (36%) to have heard game-related talk while home.” The article goes on to describe why radio should be part of any advertising campaign surrounding the “Big Game.” Of course, the same analysis could apply to other events, such as the season-ending NCAA basketball tournaments and the Stanley Cup finals. You can see the full analysis in Inside Radio here.

At the FCC’s open meeting, it commenced a proceeding to address language problems with emergency alerts. Nearly 26 million people in the U.S. do not speak English. Issuing emergency alerts in other languages faces a number of obstacles. The Commission proposed to create a number of pre-scripted emergency messages in a number of languages. According to the FCC: “While the Emergency Alert System currently allows authorities to issue their alerts in languages other than English, the vast majority of these alerts are issued only in English.  One of the key multilingual alerting challenges faced by authorities is translating time-sensitive alerts into additional languages during crises.  The Commission’s proposal would address this challenge by presenting emergency managers with pre-scripted, template alert messages and prerecorded audio files in non-English languages as an option for initiating alerts over the Emergency Alert System." The FCC is proposing to create template alert scripts in the 13 most commonly spoken non-English languages in the U.S. These template scripts and audio files would be produced by the Commission and installed in the Emergency Alert System equipment operated by Emergency Alert System participants, such as broadcasters and cable providers. This is an interesting proposal. IPAWS has greatly expanded the number of government entities that can issue alerts. This includes numerous counties in New York. Many of these entities may not be sufficiently trained in constructing an emergency alert. Creating templates not only in other languages but also in English will help the alerting system. You can see more information about the FCC’s proposal here.

As we previously reported, the FCC is cracking down on certain practices that may occur in the retransmission consent process. During the process of negotiation, both parties may seek to limit subsequent legal exposure once they have reached an agreement. Thus, as part of the settlement, there may be standard provisions stating that neither party may file or complain to the FCC. Unfortunately, the FCC is now looking at such provisions critically. Rather than considering them as part of a settlement process, the Commission is now looking at the provisions as a violation of the “good faith” provisions of the statute. The Commission 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. In denouncing this and similar proposals, the Commission explained: [A]ny effort to stifle competition through the negotiation process would not meet the good faith negotiation requirement. Considerations that are designed to frustrate the functioning of a competitive market are not ‘competitive marketplace considerations.’ Conduct that is violative of national policies favoring competition . . . is not within the competitive marketplace considerations standard included in the statute." Importantly, the FCC rejected the argument that a provision preventing the filing of a complaint applied to both parties and was limited to the facts surrounding the specific negotiations. “Contrary to Nexstar’s suggestion, the Good Faith Order contains no exception or qualifying language that supports interpreting the phrase “proposals for contract terms that would foreclose the filing of complaints” as narrowly as Nexstar advocates. In particular, the fact that the provisions called for a mutual release of claims is irrelevant, as is the fact that Hawaiian Telcom was not prevented (nor would have been prevented) from filing any complaint.” Bottom line, provisions in retransmission consent settlement contracts that prevent parties from complaining to the FCC will not be enforceable and will lead to fines from the FCC. This decision follows several previous decisions and now makes it clear the FCC will fine stations for including such provisions in their retransmission consent agreements. You can see the FCC’s decision here. You can find a good article on this subject from Policyband here.

Since the beginning of police radios, broadcasters have relied on “scanners” to learn about police activity in their communities. With scanners, broadcasters can send reporters to cover live events involving law enforcement and inform the community of dangerous situations. Today, NYPD and police departments across the country are deploying new encrypted digital radios, which render the scanners useless. Moreover, they are not allowing broadcast journalists access to their communications in real time. NYSBA has been actively involved in trying to convince NYPD and the NYC Mayor to allow broadcasters to maintain access to certain police communications. Dan Shelly, President and CEO of the Radio Television Digital News Association (RTDNA), will be hosting a webinar on all the issues surrounding this issue. Dan has been a strong ally on this issue in New York and also across the country. He is a seasoned broadcast veteran, serving previously as Senior Vice President of Digital Content Strategy for iHeartMedia. Prior to joining iHeartMedia, Dan was a Senior Vice President at Interactive One, part of the Radio One (now Urban One) family of companies. Before joining Urban One, Dan was Director of Digital Media at WCBS-TV, New York, the flagship station of the CBS Television Stations Group. He also served as an executive producer for WCBS-TV News. In conjunction with the Kansas Association of Broadcasters, NYSBA is offering its members access to an important webinar discussing these issues. The webinar is free for NYSBA members in good standing. The webinar will be held on February 20th at 2 PM Eastern (1 PM Central). You can register for it here. You can access NYSBA’s filings on this issue with the New York City Council here and here.

A radio station owner in Jasper, Alabama, was surprised to learn that his entire radio tower and transmitter were stolen. As CNN reported: “A small-town radio station manager had a big surprise when he learned the station’s 200-foot radio tower and transmitter in Jasper, Alabama, was missing. Brett Elmore, the general manager of WJLX, said his landscaper had been doing a cleanup of the property Friday when the crew discovered the tower was gone. Every piece of equipment had also been stolen and the wires to the tower had been cut at the site, Elmore said in a Facebook post.” To make matters worse, CNN reported that the FCC refused the station’s request to broadcast the “stolen” station’s content from a translator. The FCC apparently noted that a translator cannot broadcast original content and can only retransmit the content from a primary station. This is an absurd result since the primary station is off the air because all of its transmitting equipment was stolen. While this is truly a unique situation, it is worth reminding stations that stealing copper and other valuable metals from stations has become an issue. It may be worth looking at some form of security, such as remote cameras, for your facilities. You can see the story as reported by CNN here.

For years, the FCC had a rule prohibiting two commonly owned radio stations serving the same area with the same service (AM or FM) from duplicating more than 25% of their programming. In 2020, the FCC eliminated the radio duplication rule for both AM and FM facilities. The FCC has been in the process of considering petitions for reconsideration of that decision. It now appears the FCC may be moving forward with the reconsideration petitions. In this regard, it is worth noting that Commissioners Rosenworcel and Starks dissented from the 2020 decision to eliminate the duplication rule of both AM and FM stations. At the time, both commissioners stated that the rule should only be eliminated for AM stations and remain in place for FM stations. Now that Commissioner Rosenworcel is the chairperson and with 3 democratic votes, we could possibly see a reinstatement of the rule for FM stations. We are keeping a close watch on this one. You can see the FCC’s 2020 decision eliminating the duplication rule for AM and FM radio here. You can see a good article on the subject in Inside Radio here.

LBS has archived another webinar from their recent “Year of the Customer” virtual conference. You can now watch “Must Do’s to Become an Industry Expert for Your LOCAL Auto Dealers” from LBS President Gary Moore and John Tkac, President of John Tkac Enterprises. They discuss how you can establish yourself as the premier broadcasting professional to work within your market. Topics include how to get your dealers’ attention and position your station in their terms. Watch “Must Do’s to Become an Industry Expert for Your LOCAL Auto Dealers” by clicking here.

LBS has archived two more webinars from their “2024 - The Year of the Customer” digital conference. Below you can view “Providing Consistent Creative “Surprise” for Your Customer” from Blaine and Honey Parker. They discuss how you can use surprises that can enhance your station's value and help clients sell their products. The second webinar that is now available to stream is titled “Mastering Your Station’s Reputation for Advertisers, Prospects, and Community” from Melody Spann-Cooper. She talks about how vital the reputation of your station is, how to make your station stand out, and also how your team can collaborate to build a local perceived value of your station. View “Providing Consistent Creative “Surprise” for Your Customer” here. Watch “Mastering Your Station’s Reputation for Advertisers, Prospects, and Community” by clicking here.

Last week’s hearings before the Senate Judiciary Committee triggered headlines regarding Big Tech and the dangers of children using social media platforms. The bipartisan rebuke of Big Tech by a number of U.S. Senators marked a dramatic shift in the politics of this issue. The “apology” by Meta Founder and CEO Mark Zuckerberg grabbed headlines across the globe. While Washington continues to debate these issues, New York is moving forward with legislation. Embedded in Governor Kathy Hochu’s budget were two policy bills that deal directly with children and social media platforms. The two bills are: Bill #1 : Stop Addictive Feeds Exploitation (SAFE) for Kids Act: The SAFE for Kids Act will require social media companies to restrict the addictive features on their platforms that most harm young users. Currently, platforms supplement the content that users view from the accounts they follow by serving them content from accounts they do not follow or subscribe to. Bill #2 : The New York Child Data Protection Act: With few privacy protections in place for minors online, children are vulnerable to having their location and other personal data tracked and shared with third parties. To protect children’s privacy, the New York Child Data Protection Act will prohibit all online sites from collecting, using, sharing, or selling personal data of anyone under the age of 18 unless they receive informed consent or unless doing so is strictly necessary for the purpose of the website. For users under 13, this informed consent must come from a parent. The bill authorizes OAG to enforce the law and may enjoin and seek damages or civil penalties of up to $5,000 per violation. We obviously support protecting children from harm caused by social media platforms.  Stations have a unique and special obligation to children in the audience.  For example, broadcasters have successfully followed all FCC regulations pertaining to children’s television and advertising during children’s programs. We are examining these new bills closely to make sure there is no inadvertent and unforeseen impact on broadcasters.  Because these bills were included in the NY State Budget, we expect to see the legislation move quickly. The Senate and Assembly will offer their budget version in the next few weeks. As a general matter, the NY State budget is voted on in early April. You can see a summary of the bills in Governor Hochul’s press statement here. You can see the exact language of the proposals here. You can find the Senate Judiciary hearing and testimony here.

Legislation is moving in the New York Senate that could have a significant negative impact on food and food product advertising in New York. Legislation has been introduced in the Senate (S.213B) by Sen. Zellnore Myrie (Brooklyn) and in the Assembly (A.4424.B) by Assemblywoman Karines Reyes (Bronx). This legislation passed the Senate last year but was blocked in the Assembly during the closing days of the legislative session. The legislation makes fundamental changes in what would be considered “unfair, false, and deceptive food or food product advertising." While styled as protecting children, the legislation would apply to any advertisement directed at those under 18 years of age. It would prohibit the use of music, actors, animation, age of models, language, visual content, or similar factors. It is not clear how one can differentiate advertising content directed at a 25 or 30-year-old that is also enjoyed by those under 18 years of age. To avoid potential legal jeopardy, all of these elements would have to be removed from all advertising. The legislation would change legal standards for all NY food advertising. Specifically, the new § 350(a)(4) expands the definition of what is false and misleading and applies to “any advertising concerning food or food product,” not just children’s advertisements. This section creates potential liability if the advertisement targets a consumer who is “reasonably unable to protect their interests because of their age, physical infirmity, ignorance, illiteracy, inability to understand the language of an agreement or similar factor.” Similarly, §4(c) defines a consumer as a person who is targeted by an advertisement or acting on such person’s behalf. Thus, rather than focusing on whether an advertiser objectively makes false claims, liability will be based on whether a consumer can understand or comprehend the advertisement. It is simply impossible for any advertiser to know the comprehension abilities of everyone hearing or seeing an ad. In today's economic environment, the last thing that broadcasters need is to have advertising pulled due to potential legal jeopardy. We are not alone in our concerns. The Association of National Advertisers and the 4 AAAAs (representing advertising agencies) have expressed concerns. This legislation may move after the Governor’s budget is voted on in early April. You can see the legislation here. You can find NYSBA’s memo in opposition to the legislation here. You can find a joint opposition memo from the ANA and 4 AAAAs here.

Just an annual reminder that the NFL closely guards the copyright and trademark of the name “Super Bowl.” In the past, it has sued to protect its mark. In a recent blog, noted communications attorney David Oxenford reminded us again not to use the words “Super Bowl" without permission: “Given the value of the Super Bowl franchise, it is not surprising that the NFL is extremely aggressive in protecting its golden goose from anything it views as unauthorized efforts to trade off the goodwill associated with the mark or the game.  Accordingly, with the coin toss almost upon us, advertisers should take special care before publishing or engaging in advertising or other promotional activities that refer to the Super Bowl.” Of course, you can have greater latitude in using the term when reporting the news. However, you still need to be wary of engaging in activities that the NFL may view as trademark or copyright infringement. This issue can get more complex than you think. You can see a complete discussion of this issue in David Oxenford's blog here.

There is tremendous support for the AM Radio for Every Vehicle Act. The House bill, H.R.  3413, has more than 200 co-sponsors, and the Senate bill, S.1669, has 45 co-sponsors. While we are waiting for Congress to move the bills, the bill’s original sponsor in the House, Rep. Gottheimer (D-NJ), asked NHTSA to require auto without AM radios to have labels. In writing to NHTSA, he stated: “I am writing to request that the National Highway Traffic Safety Administration take action against auto manufacturers that exclude AM radio reception from their motor vehicles. I urge you to require them to display a safety warning on the car window “sticker price” that states: “Warning: No AM Radio.  Vehicle Unsafe in Certain Emergencies.” This safety warning should be required by auto manufacturers until H.R.3413 (S.1669) — the AM Radio for Every Vehicle Act of 2023, requiring life-saving AM radio reception in all motor vehicles — is passed into law.” We think this is a great idea while the legislation is moving through the process. NYSBA continues to push for this legislation. You can see the complete letter from Rep. Gottheimer here.

Several years ago, Geo Broadcast Solutions filed a proposal to change the FCC’s booster regulations. Under the existing rules, boosters must broadcast the same content as the primary radio stations. The proposal sought to change the rules to allow stations to broadcast different content on their booster stations. The proposal sparked considerable debate in the radio industry, with most radio stations opposing a change in the rules. The potential for interference and the cannibalizing of local advertising markets led most in the industry to strongly oppose the proposed change in regulations. Last week, it appeared the FCC was poised to allow stations to broadcast separate content on their booster stations, at least on a limited basis. While the decision has not been released, Democratic Commissioner Geoffrey Starks and Republican Brendan Carr issued a joint statement. “That is why we’d like to extend our thanks to the Chairwoman for moving this proceeding to an order so that broadcasters can implement this technology, to the extent they choose to do so. Without a doubt, geo-targeting presents a new way of thinking about FM.  If radio entrepreneurs want to test new business models and deploy new technologies, the FCC’s rules shouldn’t stand in the way.” Seeing a joint statement from Republican and Democratic Commissioners is a rare event. Equally rare is the issuance of a separate statement without releasing the underlying decision. NYSBA filed with the FCC, noting considerable problems with the proposal. We eagerly await the release of the FCC’s decision. You can see the joint statement of Commissioner Starks and Carr here.

For years, the FCC has been concerned about network outages during emergencies. This can include hurricanes, floods, blizzards, and other weather events such as Superstorm Sandy. The focus of the Commission is to obtain information about whether communication systems have been knocked out and not operating. There are two primary reporting systems. One system is called the Network Outage Reporting System (NORS). This has not applied to broadcasters and focuses on telephone and other communications systems. A second reporting system is called the Disaster Information Reporting System (DIRS). This system is activated by the FCC during emergencies. It provides the FCC with updated information about the status of communications systems. Broadcasters have participated in this system on a voluntary basis. FCC plans to require cable systems and phone systems to participate in DIRS: “In this Second Report and Order, we adopt rules to: (i) require cable communications, wireline, wireless, and interconnected VoIP providers (subject providers) to report their infrastructure status information in DIRS daily when the Commission activates DIRS in geographic areas in which they provide service, even when their reportable infrastructure status has not changed compared to the prior day, unless they are unable to file." As for broadcasters, the FCC has not yet required broadcasters to participate in DIRS or NORS. However, they opened a proceeding looking at requiring stations to file with DIRS and NORS. The FCC states: “Since DIRS was created initially in 2007, the United States has experienced an increasing amount of flooding, hurricanes, winter storms, tornadoes, and wildfires necessitating the more regular activation of DIRS and demonstrably impacting the nation’s communications infrastructure. Global instability has also increased the potential for malicious threats to vital communications systems and services. As such, the Commission also recognizes that DIRS could be used in response to man-made disasters including cyber and kinetic attacks against communications network infrastructure.” Accordingly, the FCC is looking to expand DIRS and NORS reporting to broadcasters: “We propose requiring TV and radio broadcasters report in both NORS and DIRS based on the type and modality of certain broadcast infrastructures, and seek comment on this proposal.  We seek comment on the classes of broadcasters that should be included as mandatory filers, whether a simplified reporting process would be appropriate, and what reporting elements should be included for such a purpose in NORS and/or DIRS.” While we understand the FCC’s desire to obtain such information, we must make sure that it will not impair our ability to respond during emergencies. We need to keep the citizens of our communities informed. We hope the FCC does not enact a burdensome reporting requirement that has stations filling out forms and taking away resources from our primary mission – to inform the public during emergencies. YOU can access the FCC’s proposal here.