State Employee Grant Program

2015 State Legislative Policy Briefs


►Advertising

►News Gathering & Reporting

►Taxes

►Other Issues


Advertising

   Political Broadcasting - General.  State political advertising restrictions or requirements do not make political advertising "better."  Often following a major political campaign year, legislators will introduce bills designed to curb a particular problem they encountered during their campaign, often relating to advertising.  This kind of legislation often conflicts with requirements that either candidates or broadcasters must meet under the political broadcasting sections of the Communications Act, and only adds to the already unacceptable level of confusion among candidates about what elements their spots must include.  In addition, they typically run afoul of the First Amendment protection given to political speech.  WSAB opposes these kinds of bills.

   General Advertising Content Restrictions.  It is not appropriate to make broadcasters liable for advertising violations by their advertisers or to make broadcasters the “advertising police.”  Very often, legislation intended to regulate a particular type of business will include a section defining what may and may not be said in advertising by such a business.  WSAB has never opposed restrictions that prohibit “false and misleading” advertising.  However, WSAB does oppose content specific restrictions which go beyond prohibiting “false and misleading” statements.  WSAB opposes any attempt to make broadcasters liable in the event that an advertiser’s announcement violates a substantive restriction.

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News Gathering & Reporting

      Closure of Government Agency Meetings & Limitations on Access to Government Agency Records.  Open public meetings and access to public records are the only way the public and its surrogate “government watchdog,” the press, have to make government accountable to the citizens.  In every legislative session there are more than a few bills introduced to restrict the public’s access to meetings of government agencies or to records kept by government agencies.  News reporters stand in the same shoes as the public.  Meetings of governing bodies of public agencies and the records created and held by government agencies are presumed to be open and available to the public.  Special interest groups continually try to exempt particular records from public scrutiny for their own private purposes; government agency governing bodies often seek to add to the existing list of reasons to close their meetings to the public.  WSAB reviews each proposed exemption to the Open Records Act and Open Meetings Act, and opposes those proposed exemptions that would prevent broadcast journalists from holding the government accountable for its actions.

      Drones.  Drone legislation was vetoed by the Governor following the 2014 legislative session.  Legislation being developed by a task force will be introduced in 2015 to regulate the use of unmanned aerial vehicles (drones) by government agencies, both law enforcement and regulatory agencies.  Privacy concerns regarding the ability of drones to capture information about individuals without their knowledge or consent have been voiced by some.  Information in records collected by a government agency are public records.  The most significant issue for broadcasters is the ability to have access to video or other information collected by a government operated drone as a public record.  The Federal Aviation Administration rules will govern the use of drones by broadcast stations.

      Audio/Video Recording by Law Enforcement.  Legislation was introduced in the previous legislative sessions that would add recordings made by cameras worn by law enforcement officers to the exemption to the “two-party consent” rule for recording conversations.  WSAB and others worked with legislators to make an additional change to the statute that would eliminate the ability of police departments to refuse to make a copy of the recording available until after the statute of limitations on an action against the department of an officer has expired.

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Taxes

      Broadcasters B & O Taxation.  Broadcasters’ B & O Tax statute is woefully out of date and needs to be modernized.  Legislation will be introduced in the 2015 session to address several outdated provisions of the current law that have led the Washington State Department of Revenue (DOR) to disallow the standard deduction for national, regional and network advertising revenue and, in some cases, the out-of-state audience deduction, which makes revenue generated outside Washington non-taxable.  It also corrects certain outdated provisions and adds certain provisions that did not exist at the time the statute was adopted.  The legislation will reinstate the standard deduction and establish a reasonable schedule for updating the standard deduction.  It maintains the ability of a station to deduct national, regional and network advertising on an itemized basis, as well as, the percentage of its out-of-state audience from the taxable local advertising revenue.  It also establishes that revenue received by a station for granting the right to use broadcast material (retransmission consent revenue) is taxed as a royalty.  It also provides that retransmission consent revenue is only taxable if the station receives it from an in-state payor. WSAB supports the modernization of broadcasters B & O Tax statute.

      Sales Tax on Advertising.  Prior experience, particularly in Florida, shows that a sales tax on advertising is completely counterproductive.  It is impossible to administer to ensure that the transaction is only taxed once.  Advertising increases demand for products and increases retail sales, therefore, increasing the collection of the sales tax; decreasing advertising by taxing its sale will decrease sales tax collections.  Local businesses will end up shouldering the entire burden of the retail sales tax because the U. S. Constitution prohibits taxing out of state transactions.    Elected officials are always searching for new sources of revenue and legislators have from time to time proposed adding the sales tax to services generally, or advertising in particular.  WSAB opposes a sales tax on the sale of advertising time, or generally on services.

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Other issues

      Patent Trolls.  Washington radio stations have been the target of patent infringement claims by an aggressive company that has questionable claims to the patents it seeks to license.  Mission Abstract Data, LLC, doing business as DigiMedia, claims it holds patents for a digital music storage and playback method and system for operating radio stations using a computer hard drives with a digital database of stored music that is programmed, played and broadcast. According to DigiMedia, those patents are crucial to the automation of radio programming.  DigiMedia filed a federal patent infringement lawsuit against several of the largest radio companies in America and has sent demand for licensing and payment to many, many more small broadcasters. Legislation to be introduced in 2015 would attempt to regulate abusive patent litigation and the assertion of bad faith infringement claims.

      Metal Theft.  Broadcasters have been the victims of copper and other metal theft from their tower sites and elsewhere.  The problem of thieves stealing metal from businesses, utilities, cities and counties is growing an alarming rate.  Legislation has been introduced in past sessions to seek creative ways to reduce metal theft, including the formation of a Task Force that would have included broadcast representatives to develop recommendations for legislation to address the problem and similar legislation could be introduced in the coming session.

      Non-Competition Provisions in Broadcast Employment Agreements.  Covenants not to compete are fair protection for the employer’s investment and should be enforceable throughout the term of the contract and after the contract ends for the duration of the non-compete period.  Stations need to be able to protect the investment they have made in their talent to build the personality brand connection between the audience and the air-talent and the value that employee receives as a result.  The courts have uniformly refused to enforce covenants not to compete which overstep the bounds of fairness in the geographical scope of the competition limit, the length of time of the non-competition period or the nature of the employment which is restricted.  But reasonably drawn restrictions protect a station against unfair competition from another employer and do not unduly restrict an employee from obtaining work.  Covenants not to compete should be enforceable after the contract ends.  WSAB opposes prohibiting the enforcement of non-competition agreements in broadcast employment agreements after the contract has ended.

      Environmental Policy/Precautionary Principle.  Even when approved by the FCC and other relevant agencies, and in full compliance with the FCC’s RF radiation exposure limits, siting of broadcast towers can still be derailed at the local level by pseudo-science.  The process often involves evidentiary hearings regarding the findings of Environmental Impact Statements and actions that impact a variety of environmental-oriented laws, such as the State Environmental Policy Act.  Broadcasters are particularly vulnerable to problems with these processes because of the limited number of locations where a station’s tower can be sited.  Even though the application for a construction permit has been approved by the FCC and any other agency involved, the project can still be stalled by local land use advocates under a process called the Precautionary Principle.  The Precautionary Principle provides that unless a proponent of a land use application can prove beyond a shadow of a doubt that the project will never have a negative impact on the health or well-being of individuals now or in the future, that project should be denied.  The Precautionary Principle permits anyone to derail a land use permit application by raising even the slightest concern.  WSAB opposes the integration of the Precautionary Principle into Washington’s land use statutes.

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