In its continuing effort to take action against illegal pirate radio operations, last week the FCC has issued proposed fines against stations in New Jersey, the Bronx, and Spring Valley. According to the FCC’s press release: “The first penalty proposed by the Commission today is $920,000 against Masner Beauplan for operating an unauthorized radio station, known as “Radio Leve Kanpe” on 91.7 MHz in Irvington, New Jersey, and Maplewood, New Jersey, from November 2023 to January 2024.  The second penalty is against Raul Alcantara, against whom the Commission proposed a penalty of $40,000 for operating an unauthorized radio station, known as “Sabor FM” on 88.9 MHz in the Bronx, New York, from November 2023 to January 2024.  Finally, the Commission proposed a penalty of $40,000 against Wilner Baptiste for operating an unauthorized radio station, known as “M-One Radio Live” or “M-One Live Radio” on 94.1 MHz in Spring Valley, New York, from January 2024 to June 2024. These actions are a result of the FCC's “spectrum sweep” of illegal pirate radio stations in the New York City Metro area. The FCC’s sweeps are required as part of the PIRATE Act. We want to thank the FCC for its vigilance in tracking down and taking enforcement actions against illegal pirate radio operations in New York and New Jersey. Apparently, Commissioner Simington issued a separate statement. He questioned whether the FCC had the authority to impose a fine without a jury trial. Of course, FCC fines, especially for non-licensed entities, are ultimately enforced by the Department of Justice in a separate trial de novo  in Federal District Court. We will examine the Commissioner’s separate statement closely.   You can see the FCC’s press release here .

A recent article in Radio and Television Business Report  contained a recent analysis by BIAS regarding advertising on radio. According to the article: “Some operators are growing concerned over slowing Automotive ad spend in 2024. However, the sector is poised for a strong rebound in 2025 as auto brands return to capitalize on AM/FM. That’s according to BIA Advisory Services.” BIA Managing partner Rick Ducey noted that the dip in auto spending is due in large part to ads being crowded out by political advertising. According to the article: “Ducey explained that the automotive sector, particularly local spending, has decreased by about 2.3% this year. This decline is largely driven by the high volume of political ads, which are taking up a significant portion of ad inventory across all media, including radio. Although the auto industry has overcome many supply chain issues, and interest rate cuts are stimulating demand, political spending has crowded out much of the automotive ad space in 2024." Nonetheless, despite the dip during a political year, Ducy predicted that automotive advertising would bounce back: Despite this temporary dip, automotive advertising remains a major force, especially in digital. In 2024, total automotive ad spending is expected to reach $12 billion, with about 56.8% going toward digital media. Ducey highlighted the growing appeal of connected TV and over-the-top platforms for auto advertisers, with automotive ranking third among industries investing in Connected TV advertising. The article is worth reading. The complete article in Radio and Television Business Report  can be found here .

As the social media frontier continues to change, gaining a deeper understanding of the new developments is critical to stay one step ahead. Even if your station does not offer social media solutions, your LOCAL competition does, and keeping up with the options available to your clients and prospects is vital to your short- and long-term success. In other words, you can’t afford NOT to be caught up on social! In this session, we will discuss four major social media shifts: 1) Content distribution has completely changed; 2) The massive follower counts some brands obsessed over “getting” no longer matter as much; 3) Keywords are greater than hashtags; 4) And if you don’t like video, it’s going to get a little rough. Tune in with your entire team for this practical and informative session! The webinar will feature LBS social media expert Lori Lewis.  Ms. Lewis’ radio career spans 25 years, starting as an on-air talent to a decorated Program Director in Baltimore. In a move to help the Radio industry grow digitally and socially, Lori became VP of Social Strategies & Digital Audience Growth for Midwest Communications. She then joined Jacobs Media to assist broadcasters' digital and social needs. Next, she became Vice President of Social Media for Cumulus Media and Westwood One. Lori was then named Vice President of Social Media for Modern Luxury. In 2019, Lori launched Lori Lewis Media, a social media management, marketing, and monetization firm – advising brands on creating real social impact. This online seminar is offered to NYSBA members in good standing at no charge.  To attend, please register in advance here .

The House Energy and Commerce Committee is scheduled to vote on the AM Radio for Every Vehicle Act (H.R. 8449). The legislation will require automakers to keep AM receivers in automobiles. A number of automakers have made plans or have already removed AM receivers from their electric vehicles. The bill will be one of 16 bills scheduled to be voted on by the Committee on Wednesday. The Committee vote will start at 10 AM.   Passing the House Energy and Commerce Committee will be a huge step forward to ensuring that AM radio receivers remain in the dashboard. The legislation has overwhelming support, with 261 co-sponsors in the House and 62 co-sponsors in the Senate.   The latest version of the bill, H.R. 8449, is exactly the same as the Senate version of the bill, S.1669. This will make it easier to move the legislation through Congress.  Passing the House Commerce Committee will allow the legislation to be brought to the House floor for a vote. Alternatively, it would allow the leaders of the House and Senate to attach this bill to “must pass” legislation this fall.   We are delighted to see this legislation move forward. We will keep you informed as the bill moves through both the House and Senate. You can access a copy of H.R. 8449 here . You can access the House Commerce Committee website here .

As we noted last week, the FCC’s regulatory fees will be due by 11:59 PM on September 26th. However, the FCC’s developed CORES database problems and urged AM & FM Stations not to make payments until the problem was fixed.  The FCC has fixed the problem and issued a Public Notice stating:   “The FCC has resolved the fee issues that arose towards the end of last week for certain Media Bureau fee payors. Media services licensees can now log into the CORES System to see their revised AM and FM fee codes and fee amounts. Payment must be received by the Commission no later than 11:59 PM Eastern Daylight Time, on September 26, 2024, to avoid an assessment of a late payment penalty and interest. The FCC will be evaluating all payments that were made by AM or FM broadcasters between September 10, 2024, when CORES first opened, and today, when revised fee amounts became available for viewing in the CORES system. The FCC will take action to reconcile the payments that have already been made and will try to contact affected broadcasters."   The FCC most Public Notice announcing that the problem has been resolved can be found here .   The regulatory fees for television Appear in Appendix G on page 70 of the FCC’s Regulatory Fees Order. Fees for radio stations can be found in Appendix C on page 58. You can access the FCC’s Regulatory Fee Order here .     The FCC’s Public Notice outlining payment procedures and due dates can be found here . The payment procedure can be found on the FCC’s website here .

The Commission has released its order imposing regulatory fees for 2024. As in past years, the amount of the broadcast regulatory fees owed will depend on the population covered by the stations. The Commission’s regulatory fees are based for the most part on the number of full-time FCC employees devoted to regulating the business. NYSBA and other state broadcast associations have long argued that broadcasters are bearing an unfair burden of these fees.  This year we argued that the FCC should shift some of the costs associated with regulating broadcasting to other businesses such as broadband and other services. Unfortunately, the Commission declined to make a complete shift in its cost analysis. Nonetheless, our efforts have resulted in lower fees for stations over the past few years. It is worth noting that the FCC is making some changes in its approach. First, beginning in 2025, they will no longer presumptively waive regulatory fees for “dark” or “silent” stations. The Commission stated that a dark or silent station does not necessarily mean the entity is in financial distress. Thus, starting next  year, these stations may have to pay regulatory fees. Also, the FCC has eliminated some of the waiver approaches it adopted during the COVID crisis. We expect the FCC to issue a Public Notice outlining the process and deadline for payment. Payment is due no later than 11:59 PM on September 26th. The regulatory fees for television Appear in Appendix G on page 70 of the FCC’s order. Fees for radio stations can be found in Appendix C on page 58.  You can access the FCC’s Regulatory Fee Order here . The FCC’s Public Notice outlining payment procedures and due dates can be found here . An explanation of the payment process can be found on the FCC website here .

Newstream will take a hiatus next week. We will be on the road hosting sales training sessions and regional awards luncheons across the state.  Our sales training sessions feature noted broadcast sales expert Derron Steenbergen, founder of the Swagger Institute. His session will run from 10 AM to 12 noon.  We are also hosting our regional Excellence in Broadcasting and Serving New York Awards. Our annual Excellence in Broadcasting Awards will honor broadcasters who have provided outstanding work during the past year. Our Serving New York Awards recognizes stations for their commitment to public services. The luncheons will run from 12 noon to 2 PM. Both the training and awards luncheons will be held at the following locations: ·         Buffalo – Aloft Buffalo Downtown, 500 Pearl Street | Monday, September 23rd (luncheon & training) ·         Rochester – The Strathallan Hotel, 550 East Avenue| Tuesday, September 24th (luncheon & training) ·         Syracuse – Embassy Suites by Hilton Syracuse Destiny USA, 311 Hiawatha Blvd.| Wednesday, September 25th (luncheon & training) ·         Binghamton – DoubleTree Hotel, 225 Water Street| Thursday, September 26th (luncheon & training) ·         Albany – Wolfert’s Roost Country Club, 120 Van Rensselaer Blvd. | Friday, September 27th (luncheon & training) The training and luncheons are provided to member stations free of charge.

Edison Research published a recent “Share of the Ear” study showing that radio remains a powerhouse in the digital era.  The research was referenced in an article appearing in Radio Ink . The article noted: “While marketers continue to funnel major money into ad-supported audio streaming, they could be much better served by radio. Media planning, as it currently stands, could use some recalibration as AM/FM continues to significantly outperform advertiser perceptions.”   Edison goes on to describe the significance of traditional over-the-air radio: “So how relevant is radio? Edison’s Q2 2024 report shows that over-the-air radio holds more than double share of ad-supported audio than the next four biggest sources combined.” The analysis is worth reading. You can access the study in Radio Ink here .

If your station is backed by a foreign government or political party and your programs are carried on an MVPD system (cable or satellite) you will need to register with the FCC by October 11th.  According to the Media Bureau’s Notice, “[A]ll “United States-based foreign media outlets” to submit to the Commission a report containing:   1) the name of such outlet; and 2) a description of the relationship of such outlet to the foreign principal of such outlet, including a description of the legal structure of such relationship and any funding that such outlet receives from such principal. The report is to be submitted no later than 60 days after the date of the enactment of the NDAA and no less frequently than every 6 months thereafter.  As the previous report was due on April 11, 2024, the deadline for outlets to submit the next NDAA report to the Commission is October 11, 2024.   Thus, while the FCC has opened up the ability of foreign entities to own broadcast stations, it will come with this registration requirement.   You can access the Media Bureaus Public Notice here .

Just a reminder that the political window for the General Election opened on September 6th. This means you can only charge candidates the station's “lowest unit charge” for political advertising time purchased between now and the general election on November 5th.  This applies to both federal and state candidates. Calculating the lowest unit rate can be complex. NYSBA has assembled several webinars and a primer on the subject.  If you have any questions you can access the political broadcasting on our website here .

A recent decision by the FCC emphasizes the enforcement focus of the FCC.  At issue is the broadcast of a Hot Wheels commercial aired during a “Hot Wheels-themed” TV show. As noted by FCC Commission Brenden Carr, “A technical error at its central facility caused the broadcaster to insert those ads for Hot Wheels toys during the kids’ show Team Hot Wheels.” Of course, this type of technical error will always result in multiple broadcasts, triggering multiple violations.  The FCC found that running this Hot Wheels commercial during a Hot Wheels Show violated the rules: “We find that the licensees listed in Appendix A (collectively, Broadcasters) willfully and repeatedly violated section 73.670 of the Rules, by failing to comply with the limits on commercial matter in children’s programming.  This Order follows a Notice of Apparent Liability for Forfeiture (NAL) released on September 20, 2022, in which the Commission found that the NAL Broadcasters’ multiple airings of a commercial for a Hot Wheels‑themed toy during a Hot Wheels-themed television show apparently fit within the Commission definition of a program-length commercial.  After considering the responses to the NAL filed by the Respondent Broadcasters, [1]  we find no reason to cancel, withdraw, or reduce the penalties proposed, and we hereby affirm the NAL and its proposed forfeitures for all the broadcasters subject to this Forfeiture Order in the amounts specified in Appendix B.” The total fines assessed by the FCC amount to $3.34 million. The fines will vary from station to station ranging from $20,000 to $2.65 million. Under FCC procedure, the Commission must go to court to impose the fines. Stations will have an opportunity to defend themselves before the fine is collected.    These types of errors are often difficult to detect. Stations tend to rely on central hubs regarding the insertion of advertising content. The same may be true for some syndicated children’s programs.  It appears the FCC will now be aggressive and impose fines on all stations airing content that violates its rules. As a result, local stations may want to have a process to examine such content, especially children’s programs, to make sure they do not get caught up in future enforcement activity. You can see the FCC’s decision here .

As we reported previously, last February, the FCC voted to reinstate its annual EEO Report Form 395B after a lapse of more than twenty years. The report requires stations to list detailed information about the race, ethnicity, and gender of all employees. Under the FCC’s rules, the information would be made public.  The decision initially required stations to file the form on September 30, 2024.  That date has been delayed. According to the Commission:  “As the Commission previously explained, prior to the time the first filing of the Form 395-B will be due pursuant to the Fourth Report and Order, the Media Bureau will issue a Public Notice with details of the electronic filing process and instructions about how to submit the filings.  Because the Bureau has not yet released that Public Notice, the data collection will not be due on September 30th this year.  The Bureau will provide broadcasters ample time to put into place whatever data collection processes they require prior to the first filing deadline, consistent with the Fourth Report and Order.” One reason for the delay is that the Office of Management and Budget must approve the data collection form. That has not happened yet. The Texas Association of Broadcasters, the American Family Association, and the National Religious Broadcaster filed a petition for review with the U.S. Court of Appeals to block the FCC’s decision. In this regard, it is worth noting that previous efforts by the FCC to implement this type of data collection have been struck down by the courts. You can access the FCC’s Public Notice Announcing the delay here . Our previous story explaining Form 395 B can be found here . Our previous story about the litigation challenging the FCC’s decision can be found here .

The National Association of Broadcasters (NAB) has issued an election preparedness initiative designed to provide broadcasters with the critical resources, tools, and training needed to navigate the complexities of the 2024 election cycle. “This is a critical time for our nation and our democracy. Broadcast journalists serve a pivotal role in educating voters on the candidates, the issues and the electoral process, and NAB is here to support them in these efforts,” said NAB President and CEO Curtis LeGeyt. “As bad actors increasingly use advanced technologies to create and spread disinformation, the role of local broadcasters as custodians of the truth has never been more important.” NAB’s election preparedness initiative includes three core elements: Digital Resources Virtual Learning Event: On September 9, NAB, in partnership with the Radio Television Digital News Association ( RTDNA ) Election Coverage Summit at NAB Show New York NAB's election preparedness initiative offers broadcasters support in key areas of election coverage: Maintaining Broadcasters’ Role as the Most Trusted Medium:  Ensuring Safety in the Field Debunking Misinformation   This is an extensive and detailed program to help stations meet the challenges of this year’s election.  There is a wealth of information that you can access here .

A recent article in Radio Ink  offered some unique insights into how far radio sales have progressed. It stressed the importance of having your sellers provide expertise in both radio and digital advertising. According to an analysis by Borrell Associates:   “Ranking right up there with SMS, search engine, and social media marketing, local businesses are increasingly turning to radio advertising where they weren’t before, and its all because of backwards entry.” The key is the digital sales experience of radio account executives who have become very knowledgeable about digital advertising. This opens the door for radio sales. Borrell Local Market Intelligence EVP Corey Elliott noted: "New businesses are prioritizing digital marketing as their entry point into advertising. This often brings them to radio sellers, who are increasingly being recognized for their deep understanding of digital advertising. This expertise means radio sellers often sell digital solutions first, establishing trust and rapport with clients, before introducing over-the-air options. This approach not only diversifies their product offerings but also enhances value proposition to advertisers who are looking for comprehensive media solutions." The article provides some unique insights about the link between knowing the digital marketplace and increased radio sales. You can see the full article in Radio Ink   here .

The National Association of Broadcasters (NAB) announced the finalists for the 2024  NAB Marconi Radio Awards .  The Marconi Awards are NAB’s highest honor and involves competition from stations across the country. Several New York radio stations have been selected as finalists. There are five finalists in each division. NYSBA wants to congratulate the following stations selected as finalists:  LEGENDARY STATION OF THE YEAR WHTZ-FM New York, N.Y     MAJOR MARKET STATION OF THE YEAR WINS-FM New York, N.Y .     WABC-AM New York, N.Y.   MEDIUM MARKET STATION OF THE YEAR WBEN-AM Buffalo, N.Y .     CHR STATION OF THE YEAR WBLI-FM Long Island, N.Y.   CLASSIC HITS STATION OF THE YEAR WCBS-FM New York, N.Y .   COLLEGE RADIO STATION OF THE YEAR WKCR-FM, Columbia University, New York, N.Y .   Good luck to all the New York finalists.  The winners will be recognized and honored at the Marconi Awards Dinner, which takes place during the NAB NY Show on October 9th at the Javits Center in NYC. You can find more information about the Marconi Award dinner here . You can see all the Marconi Award finalists from across the country here .

When you leverage artificial intelligence (AI) tools properly, writing more effective ads and creating better promotions can happen very quickly. This presentation is specifically designed to help you stay ahead of the curve to enhance your ad sales and promotional strategies. Sixteen months ago, Tim Burt’s original LBS webinar on AI introduced LBS members (and frankly, the broadcast industry) to the potential that this true quantum leap in technology offers to radio and TV sales professionals. To nobody’s surprise, a LOT has changed since then! In this session, Tim will show you practical tips for incorporating AI into your daily workflow and will discuss how it can boost your productivity. Plus, you’ll see both positive and negative real-world examples of AI being used in marketing today. Tim Burt is a broadcast industry veteran who spent 25 years in corporate broadcasting; 22 of those years with CBS Radio, iHeart Radio, and Clear Channel. In that time Tim worked with countless clients, writing commercials for everything from multi-million-dollar homes to ice cream to tires and everything in between, virtually anything you can imagine. Tim has written, recorded and/or produced over 30,000 commercials that have sold well over $500 million in products and services globally.   The webinar is free to all NYSBA members in good standing. You must register in advance here .

BIA recently released an analysis of retransmission consent fees and local stations.  For years, local stations have been able to obtain payments from cable and satellite operators for carrying these local TV stations on their services. Retransmission consent fees have become an important part of a local station’s “bottom line.” BIA noted that there are a number of factors affecting future retransmission payments.   Audience ratings Television households Cable penetration rates Fees local stations are receiving from cable and satellite delivery systems Fees local stations are paying parent networks for their share of these revenues Amounts received by non-top four affiliates (CW, MY, and Univision).   BIA observed that the economics of retransmission consent are changing. Cord cutting, OTT, and streaming services are altering the traditional retransmission consent market. Looking at the next few years BIA predicts: “BIA’s latest forecast for local TV station vMVPD/MVPD distribution revenue shows growth from 2023 but an overall flattening in the 2024-2028 period. Of the total amount of distribution revenue in the 2020-2028 period, the Top 25 TV Markets account for over half of the local TV station revenue from multichannel video providers. The Top 10 markets generate 29.9 percent of the total and Markets 11-25 get 21.6 percent.” There is no doubt that the marketplace is changing. Retransmission fees have become essential in helping to fund local journalism. The question is how local stations will respond to this new challenge. You can access BIA’s analysis here .

In 2011, the FCC issued an Enforcement Advisory stating that local stations must not discriminate with respect to advertising sales. Stations were required to certify that they do not discriminate at renewal. At the time, the FCC stated: “The Enforcement Bureau issues this Enforcement Advisory to remind commercial broadcast licensees of their obligation to certify on their renewal application (Form 303-S) that their advertising sales contracts do not discriminate on the basis of race or ethnicity and that such contracts contain nondiscrimination clauses.” Compliance with this policy means stations must include nondiscrimination provisions in all sales contracts. If these provisions are not included, a station must explain why in its renewal application. Recent renewal decisions make it clear that the FCC is focusing on this issue. While the Commission did not fine stations for not including these disclosures, it signaled that it may penalize stations in the future.  In one of the decisions the Commission noted: “While the Licensee certified “No” in its Application, there has been no evidence presented to the Commission that the Licensee or the Station has engaged in discriminatory behavior with regards to its advertising. We therefore conclude that the Licensee’s failure to include non-discrimination clauses in the Station’s advertising sales agreements does not warrant a monetary forfeiture. However, future failures to include non-discrimination clauses in advertising sales agreements may result in more severe sanction, including the assessment of monetary forfeiture. (emphasis supplied) To avoid potential liability, stations should make sure all sales contracts contain non-discrimination clauses. You can see the FCC Enforcement Advisory here . For additional information from noted communications lawyer David Oxenford, click here .

Earlier this year, the FTC issued new rules prohibiting non-compete clauses in nearly all employment contracts. The FTC’s rules changed the nature and scope of covenants not to compete as they apply to broadcasters and all businesses throughout the United States. The FTC found that using covenants not to compete is an unfair method of competition. The rules were to go into effect on September 4th. However, the implementation of the rules is now blocked by court order. New Contracts: Post-term non-competes entered into, on, or after the effective date were to be banned as violating the FTC Act. This applied to all contracts. Existing Contracts: For existing contracts with post-term non-competes (entered into before the effective date): Senior executives – existing non-compete provisions can remain in force. All other workers – covenants are not enforceable. In New York, post-term covenants in employee contracts have been prohibited since 2008. However, stations may use these post-term covenants only with respect to managerial positions (See NY Law Section 202K). Thus, the real impact of the FTC regulations would be its impact on managerial employment contracts. Last week, a Federal District Court in Texas issued a preliminary injunction in Ryan v. FTC , holding that: 1) the FTC lacked authority to issue these regulations, and 2) the regulations were arbitrary and capricious.  Earlier, a similar case in Pennsylvania reached a different conclusion.  Most legal authorities believe the Texas case effectively blocks the FTC from enforcing the new rules throughout the country. Nonetheless, the New York law is still on the books.  The impact of this decision on stations in New York is as follows: Because employee post-term covenants not to compete were already prohibited in New York, they remain prohibited.  Thus, there is no impact. Management contracts that may include a covenant not to compete will now remain in effect.  Stations may continue to use a covenant not to compete for managerial, (not employee) employment contracts. Employers do not have to send out notices to employees by September 4th. The last bullet is important. The FTC’s rules would have required employers to notify all employees that covenants not to compete provisions were prohibited by September 4th. Given the Texas court decision and its nationwide implications, most lawyers believe there is no need to send out a notice. This issue is not over, as the FTC may appeal the decision. It also mentioned potentially enforcing on an individual case-by-case approach. For now, the FTC’s rule will not go into effect. We urge you to consult with your own labor counsel on this issue. You can see a brief legal memo from the law firm of Wilmer Hale here .  A discussion of the case from the law firm Gibson Dunn can be found here The text of the Texas Cour’s Decision in Ryan v. FTC can be found here . You can see our previous story outlining the FTC’s rule here .

The registration portal for our fall events is now open. You should use this portal to:   Register for Up-State Regional Training Sessions Register for Excellence in Broadcasting and Serving New York Luncheons   To make things easier, we have created a combined registration page for all of the above events. Here is a list of the training and luncheon locations.   All training sessions (upstate only) will run from 10 AM to noon. The awards luncheons (both upstate, NYC, and Long Island) will run from 12 noon to 1:30 PM.    New York City  –  Manhatta , 28 Liberty Street, 60th Floor| Thursday,  September 12th (luncheon only) Long Island  –  Blackstone Steakhouse , 10 Pinelawn Road| Friday,  September 13th (luncheon only) Buffalo  –  Aloft Buffalo Downtown , 500 Pearl Street | Monday,  September 23rd (training and luncheon) Rochester  –  The Strathallan Hotel , 550 East Avenue| Tuesday,  September 24th (training and luncheon) Syracuse  –  Embassy Suites by Hilton Syracuse Destiny USA , 311 Hiawatha Blvd.| Wednesday,  September 25th (training and luncheon) Binghamton  –  DoubleTree Hotel  225 Water Street| Thursday,  September 26th (training and luncheon) Albany  –  Wolfert’s Roost Country Club , 120 Van Rensselaer Blvd. | Friday,  September 27th (training and luncheon)   Training and luncheons are provided to NYSBA members in good standing free of charge.   You must register in advance. Register for the training and/or luncheon nearest you here .   Note : If you plan to submit a public service campaign for a Serving New York Award, you must submit the campaign in a separate  portal.  All “Serving New York” public service campaigns must be submitted here .