In This Issue Where was Pandora? Mark Your Calendar … “What’s Happening in Salem?” - “The election is Over: Now What – and So What?” Blogged about

In This Issue

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Where was Pandora?

(Borrowed from my friend Paul Rotella, President of the New Jersey Broadcasters Association)

NJBA pal Mary Beth Garber puts forth a very compelling argument as to just how important Real-Radio © is compared to other radio wannabes. She posts in response to how free-over-the-air radio stacked up over internet radio services, she says:

“All you have to do is ask how many people listened to Pandora for instructions on where to go, what was happening in their neighborhoods as the power and the cell towers were wiped out. How many generators, how much food, how much help Pandora helped deliver to the victims of Sandy (compared with NJ broadcasters and countless other radio stations)? How many people did Pandora help to connect with one another who were separated in the devastation? How many people who were stranded or frightened called in to Pandora to be comforted by them and share their grief or news or calls for help on the air? Oh, wait, the electricity was out and many cell towers were down ... people's cell phones ran out of charge ... only their battery powered radios worked. Even Pandora admitted that their hours of listening dropped significantly on the East Coast during the days of Sandy. I think that pretty handily demonstrates that people turn to radio for very different reasons from the one that sends them to Pandora. Mindless music can be a necessity of life to some at some times. But a connection to a virtual neighborhood on a radio station is a daily necessity to 7 out of 10 people, and a weekly connection is a necessity to 9 out of 10. What are Pandora's comparable numbers? Oh, wait, they won't tell anyone. I wonder why."

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Mark your calendar...

November 14 ~ Copyright Royalty Fee: Monthly Usage Statement of Account Form and Quarterly Report of Use Form Due—Commercial and noncommercial webcasters and those simulcasting radio programming over the Internet must by this date submit the Monthly Report of Use and Monthly Usage Statement of Account forms to SoundExchange for the month ending September 30, 2012.

December 1 ~ FCC Form 317 DTV Ancillary/Supplementary Services Report Due—Commercial television, digital Class A and digital LPTV stations must by this date electronically file FCC Form 317, the Annual DTV Ancillary/Supplementary Services Report for Commercial Digital Television Stations, with the FCC whether or not they have received any income from transmitting ancillary or supplementary services. If a digital station provided ancillary or supplementary services during the 12-month time period ending on the preceding September 30, and received compensation for doing so, the station is required to pay to the FCC five percent of the gross revenue from such services concurrently with the filing of Form 317. Note that since this filing deadline falls on a weekend, the submission of this item to the FCC can be made until December 3.

December 13 ~ CALM Act Rules Effective—By this date, television broadcasters and MVPDs must be in compliance with the regulations adopted by the FCC implementing the Commercial Advertisement Loudness Mitigation Act.

December 15 ~ Copyright Royalty Fee: Monthly Usage Statement of Account Form Due—Commercial and noncommercial webcasters and those simulcasting radio programming over the Internet must by this date submit the Monthly Report of Use and Monthly Usage Statement of Account forms to SoundExchange for the month ending October 31, 2012.

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“What’s Happening in Salem?”

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THE ELECTION IS OVER: NOW WHAT – and SO WHAT?

The fact that the election is over will be music to the ears of those were getting fed up with political ads, tweets, radio spots, and zingers from the left or the right.

Well, perhaps from a radio or TV perspective, you are not tired of political ads!

As Washington Post writer Kathleen Parker put it in her column on the morning after the election: "Give me a choice of company between the savviest political prognosticator and Jimbo at the bait shop, and I'll take a carton of those worms, please."

On the dawn of election day +2, the discussion moved from what happened in Oregon on election night to why it happened and what it might mean. On the run-up to election eve, opinions were sharply divided over whether the Democrats could retain their narrow control of the Senate and who would control the House. Yet, election night was short – the D’s took all of the statewide races, maintained their 16-14 margin in the Senate and took control of the House by a 34-26 margin. How was this possible?

At this point, observers usually turn to the losing party and point fingers on what they did “wrong” – bad candidates, bad message, lack of resources, etc. None of that seemed in play for the Republicans this year – particularly in the race for Secretary of State where a credible, well-funded candidate, Knute Buehler received strong signals of support from even liberal leaning publications like Willamette Week.

The ability of the Ds to completely dominate these races comes down to a few basic facts: Oregon is a blue state; 2012 wasn’t a wave year; Democrats are coordinated with better data. Oregon is, by all measures, a blue state – and it has been for decades. Despite close races in 2010, statewide candidates always benefit from strong support in urban areas combined with coordinated campaigns that truly benefit the entire Democratic ticket.

It’s easy to think about 2010 in a vacuum, but, in fact, it was an anomaly. Legislatures all over the country – some held in control by the D’s for nearly 100 years – flipped two years ago. It was the strongest Republican wave in history – while 2008 was the strongest blue wave in history. Election night 2012 wasn’t a wave year. And in a non-wave year, Oregon is a blue state benefitting statewide and legislative candidates alike.

Perhaps the biggest advantage enjoyed by the Democrats is their ability to coordinate their campaigns and data. Both at the state and national level, campaigns work together on coordinated turnout operations and that ensures that more calls are able to be made and more doors are knocked on because the work isn’t redundant. When elections come down to just a handful of votes, it’s this coordinated operation that benefits the Ds.

But the real question is what the winners will do now. As individuals, can they find a way to work together for the public good no matter their party preference? Will it be possible for those who return to Salem to set aside electioneering to get about the business of governing? Can they surmount the differences between metropolitan Portland and the suburbs, not to mention the decades-long "two Oregon" issue -- the divide between urban and rural parts of the state.

Only time will tell. In the 2011 legislature, lawmakers found a way to work together, perhaps, at least in part, because of the nearly even split between Republicans and Democrats, 30 to 30 in the House and 16 to 14 for the Ds in the Senate. On the campaign trail, when candidates weren't emphasizing their differences, they found a way to talk about the benefits of split control, mostly that they had no choice but to focus on similarities and work together.

Here is summary of issues lawmakers will face as they return to Salem after the first of the year:

HEALTH CARE REFORM: Some legislators may believe they solved health care issues in the 2011 legislative session. No. What passed was a framework for reform. Now comes the hard part of filling in the gaps, including funding a system of low income health care for Medicaid recipients that is woefully short of money.
EDUCATION REFORM: The governor has said that he wants all segments of education -- the "early learning system" for kids up to five years of age, the K-12 system, community colleges and the higher education system -- to operate as one system under his still relatively education czar, Rudy Crew. This will be very tough. For one thing, the K-12 system and community colleges are governed by independent, elected boards of directors. For another, the Oregon University system consists of eight institutions that often operate relatively independently already and, in fact, want even more independence. The University of Oregon, for instance, will be coming to Salem this session asking for independence and other universities may follow suit if the UO, with backing from Nike's Phil Knight, wins the day. All of this obviously tends to work against the governor's education reform agenda.
EARLY LEARNING: The governor has issued a call for better and more coordinated early learning services so children are ready to be educated. Again, the framework is in place, but more detail must be added this session.
PRISON SENTENCING: Compared to the first three above, this is relatively late-comer to the reform party. But, if recent campaigns are any indication, changing sentencing -- and, to put a point on it, appearing to let prisoners out early -- will become a major political issue.
TAX REFORM: Lurking behind all of the issues listed above -- and others -- is tax reform. The governor has said he wants to tackle the subject in the second half of his term, but none of his predecessors in the governor's chair have been able to produce consensus.
PERS: Getting control of the increasing costs of the Public Employee Retirement System will test the mettle of legislators and the governor alike. Finding a solution that will withstand legal scrutiny while providing much needed relief to local government and school budgets is a tall order.
THE STATE BUDGET: Ways and Means leaders will have their work cut out for them because resolving any of those issues listed above will, of necessity, involve compromises on the 2013-15 budget.
JOB CREATION: All of the candidates ran, to some degree, on the need for more jobs in Oregon, but what does that mean? Republicans proposed a series of what they called "job creating bills" last time around, primarily a series of additional tax breaks and greater use of timber and water out of the Columbia River, but none of them passed because, for some reasons, Democrats would not go along. For their part, Democrats have proposed more infrastructure funding and job training programs to get people back to work. The question is what the new legislature will do this time to create jobs to fulfill the many campaign commitments on that topic.
COLUMBIA RIVER CROSSING: This major infrastructure project has been beset by more stumbles than imaginable, but it -- the new bridge between Portland and Vancouver, Washington -- still is on the public policy radar. Plus, the proposed bridge sits in the legislative district of the probable new House speaker, Rep. Tina Kotek, D-Portland.

The Oregonian, in its morning-after-the-election editorial, wrote words that many of us could second:

"If the urban-rural divide is this size in Portland's back yard, just imagine the gulf between the metro area and the rest of the state. Yet, the tasks that loom for lawmakers -- namely fostering job creation, reining in PERS and other soaring costs, and, finally, setting the stage for comprehensive tax reform -- will require not only determination, but also a degree of cooperation rarely seen in Salem. Especially in the absence of evenly split chambers. We wish Tuesday's winners luck."

LEGISLATIVE LEADERS BEGIN TO EMERGE

After election results are clear, legislators in Salem move to elect their leaders for the next session.

The first caucus to do so was the House Republicans. The 24 members of the Oregon House elected Rep. Mike McLane, R-Powell Butte, as the new House Republican Leader. The new Deputy Republican Leader is Rep. Julie Parrish, R-West Linn, the only Republican to emerge in a Portland suburban race after a very hard-fought race for re-election.

The new House Republican Whip is Rep. Vicki Berger, R-Salem, who, in the past, has played a moderate role as an unofficial emissary between Republicans and Democrats in the House.

These appointments represent a clear change. Rep. Bruce Hanna, R-Roseburg, the House Co-Speaker last session, stepped down voluntarily from leadership positions, saying that six years was enough. He also may want time to point for higher office, either the U.S. Congressional seat now held by Rep. Peter DeFazio, D-Oregon, or the governorship. If the latter and if he were to win the Republican primary, he would face Governor John Kitzhaber who might run for re-election to a second term. If he does not, Democrats in waiting include State Treasurer Ted Wheeler and Secretary of State Kate Brown, both of whom were swept to victory in the Democrat tide.

The other three party caucuses -- House Democrats, Senate Democrats and Senate Republicans -- are expected to meet within the next few days to select their leaders. In the House, Rep. Tina Kotek, D-Portland, the architect of the Democrat takeover of the House, is expected to become House Speaker -- and the Oregonian late last week said she would be the first lesbian Speaker of a House in the country. In the Senate, Sen. Peter Courtney, D-Keizer, is expected to be elected for his sixth consecutive term as Senate President, a record, and Sen. Diane Rosenbaum, D-Portland, is expected to reprise a role as Senate Majority Leader.

The Republican leader is not clear yet. The current leader, Sen. Ted Ferrioli, R-John Day, could either leave or be ousted. Contenders could be Sen. Bruce Starr, R-Hillsboro, who lost a bid to become State Labor Commissioner; Sen. Jeff Kruse, R-Roseburg; or newcomer, Sen.-Elect Tim Knopp, R-Bend.

If Rosenbaum becomes Majority Leader, that will be important to the OAB. In the 2011 session, she introduced legislation that would have barred media access to 911 tapes. Due to strong lobbying from OAB members, she backed off, believing that state action was not necessary. Here's hoping she continues to hold that position.

Dave Fiskum, with CFM Strategic Communications, is the lobby representative for the OAB.

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Blogged about

From David Oxenford’s blog …
David D. Oxenford, Partner / Wilkinson Barker Knauer, LLP / 2300 N Street, NW, Suite 700 / Washington, DC 20037-1128 / Main 202.783.4141 / Direct 202.383.3337 / Fax 202.783.5851 / DOxenford@wbklaw.com
www.wbklaw.com

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CommLawCenter

CommLawCenter

New Post: Randall Terry Focuses His Campaign on the FCC

Posted November 7, 2012

By Scott R. Flick

While most presidential candidates were concentrating yesterday on last minute campaign events aimed at swaying undecided voters, independent presidential candidate Randall Terry was instead focused on winning votes at the FCC, filing multiple election day political advertising complaints against broadcast stations.

I wrote last week of an FCC decision holding that a DC-area station had failed to provide Terry reasonable access to airtime as required by Section 312 of the Communications Act. According to the FCC, Terry, an independent presidential candidate known for seeking to air visually disturbing political ads prominently featuring aborted fetuses, was entitled as a federal candidate to purchase airtime because he was on the ballot in West Virginia. While Terry was apparently not on the ballot in DC, Maryland, or Virginia, the area primarily served by the station, the FCC concluded that the station's Noise Limited Service Contour covered nearly 3% of the population of West Virginia, making Terry a legally qualified candidate for purposes of demanding airtime on the DC-area station.

Apparently buoyed by that success, Terry yesterday filed complaints against five Florida television stations arguing that he has once again been denied reasonable access rights. What makes these filings odd is that, although dated November 5th, they were not filed with the FCC until November 6th, election day. Even if Terry actually intended to file them on November 5th, that would still be too late for the FCC to take any meaningful action before the election was over. That means Terry has already begun the process of positioning himself for the next election, and is perhaps looking to establish friendly FCC precedent now that can be used against stations then.

What also makes Terry's Florida filings notable is that he is not seeking reasonable access as a candidate for president (presumably because he was not on the presidential ballot in Florida). Instead, his reasonable access complaints are based upon being on the ballot as a candidate for the U.S. House of Representatives, representing South Florida's 20th Congressional District. Terry alleges in his complaints that all five stations cited Section 99.012(2) of the Florida Statues as a reason for not accepting his ads. That Section provides that "No person may qualify as a candidate for more than one public office, whether federal, state, district, county, or municipal, if the terms or any part thereof run concurrently with each other." Since Terry was on the ballot in a number of states running for president, the stations argued that the Florida Statute prevented him from also appearing on a ballot in Florida as a candidate for the U.S. House of Representatives. The stations' argument is that Terry was therefore not a legally qualified candidate for federal office in Florida, and thus not entitled to reasonable access.

Terry's response to that argument cites no caselaw, FCC or otherwise, but argues by analogy that stations did air Romney/Ryan ads in Florida despite Ryan also being on the ballot in Wisconsin to keep his House seat. That is not a particularly strong argument, however, as I suspect that stations in Florida were actually airing Romney ads, and Romney was unquestionably a legally qualified candidate on the ballot. If Ryan also appeared in those ads, that would not alter a station's obligation to provide reasonable access to Romney for his ads, and the "no censorship" provision of the Communications Act means that Romney is free to present anyone else he wants in his ads without interference.

Since the FCC is not generally in the business of interpreting state election laws, the central question in these complaints is whether the FCC will defer to a licensee's reasonable judgment as to who is a legally qualified candidate in the licensee's own state. If not, broadcasters will find that once simple reasonable access analysis is growing steadily more complex and dangerous. As foreshadowed by last week's post, reasonable access issues seem destined to become a growing part of future elections. Yesterday's Terry complaints appear to be an effort to turn up the heat on stations, even where there is no useful remedy available to a candidate whose multiple campaigns have already concluded.

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An Important Reminder

The OAB continues to receive and post job openings for your stations, and we want to know about EVERY opening and employment opportunity that you have at your stations, however we must insist that you include in you posting either “This station is an Equal Opportunity Employer” or “EOE”. The designation “EEO” is not the same as “EOE.” The OAB is not allowed to enter this information for you, it has to come from you.

The OAB has been fighting the battle over the new FCC’s EEO rules for you, and every job opening we post that does not include either “EOE” or “This station is an Equal Opportunity Employer” is a step backwards.

Help us fight the fight for you … include either “EOE” or “This station is an Equal Opportunity Employer” in every one of the job opening or employment opportunity postings that you send to the OAB.

Post your Job Openings on the OAB’s Web Site for FREE! Just email the OAB office your listings and we’ll post it for you within minutes of receiving it (you can also mail or fax the listing .. but it’ll take much longer to get posted, because I’ll have to retype the whole thing). Our email address is: theoab@theoab.org No cost... it’s just another of the many benefits of membership in the OAB. It’s very important that you note somewhere in your posting that your station supports EOE … I know it’s the law, so everyone should “already know that” .. but there have been some who have questioned whether broadcasters are actually abiding by the law … so please add “EOE” or “This station is an Equal Opportunity Employer” to your posting. Plus, you can also post the same listings on the NASBA (National Alliance of State Broadcasters Associations) Career Page for FREE. If you haven’t done so already, you’ll need to call or email the OAB office to get the password for your station. You can either access the site through the OAB’s web site by going to www.theoab.org. Click on Broadcast Employment, and then click on National Career Search. Or you can go directly to the Career Page at www.careerpage.org. Click on “Post your job openings”. Here’s where you’ll need the password you received from the OAB office. Either way .. it’s FREE .. from the OAB.

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