►Advertising
►News
Gathering & Reporting
►Taxes
►News
Gathering & Reporting
►Other Issues
Alcoholic Beverage
Advertising.
Attempts to regulate beer and wine advertising are
continuing issues and could cause a severe loss of advertising
revenue to Washington broadcasters.
They could take the form of an outright ban of hard
liquor, or beer and wine advertising on television, radio or
both; including in advertisements the same warning
“labels” that are required on alcoholic beverage
containers; or, restrictions on the substantive content of
advertisements. Some
of the restrictions might cause brewers to eliminate broadcast
spot advertising in Washington state altogether, while
compliance by stations with other requirements would be nearly
impossible (blocking network spots, for example).
WSAB will continue to lead the opposition to any
attempts to restrict or remove alcoholic beverage advertising,
as an unconstitutional abridgement of commercial free speech.
Legal Notice Advertising.
Broadcasters
serve the public interest by informing voters.
The Secretary of State is required to publicize
statewide ballot measures in print media and broadcast prior
to every General Election.
However, in 2009, as a budget-cutting measure, the
Secretary of State requested legislation to eliminate this
requirement. Given
the State’s budget crisis, it is possible that similar
legislation will be introduced in 2011.
WSAB will oppose any such attempt to reduce information
flowing to voters.
Medical Marijuana.
Restrictions on
advertising medical marijuana must be clear and not
discriminate against any advertising medium.
Legislation was introduced and passed in 2011 that
would have established a licensing system for medical
marijuana growing, distribution, sale, possession and use.
The original legislation contained very vague language
that appeared to prohibit broadcast advertising of medical
marijuana, but other language conflicted with that provision.
WSAB had an amendment adopted that would protect
broadcasters from immunity for running spots that were not in
compliance with the law. Then
the Senate removed the advertising provision entirely.
Ultimately, the Governor vetoed nearly the entire bill,
including the advertising provisions.
WSAB will work to make any new legislation in this area
consistent with the provisions of last year’s legislation.
Political Broadcasting.
State political advertising restrictions or
requirements do not make political advertising “better.”
They often conflict with requirements that either
candidates or broadcasters must meet under the political
broadcasting sections of the federal Communications Act, and
only add 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 political speech.
WSAB opposes these kinds of bills.
Public Funding
of Supreme Court Campaigns.
Legislation from
previous sessions would have permitted a court to issue an
injunction to a radio or TV station ordering the station to
stop broadcasting advertising by a candidate who had violated
the provisions of the bill.
While this provision conflicts with the Federal
Communications Commission’s “no censorship” rule, the
more effective method of resolving this issue is to have the
court issue the injunction against the candidate or
candidate’s committee. WSAB
opposes this provision.
Promotional Contests of Chance.
Promotional contests of chance offer broadcasters an
ideal way to present added value to an advertiser’s
commercial announcements.
Federal law permits broadcasters to advertise such
activities, so long as they are authorized by State law.
Washington law outlines the types of promotional
contests of chance that are allowed.
WSAB opposes any attempt to reduce the number or kind
of activities permitted by State law.
State
Lottery Advertising.
The State
Lottery spends a significant amount of money advertising on
radio and television.
WSAB has supported the retention of the ability of the
State Lottery to advertise.
In the past, some legislators who oppose the Lottery
have attempted to reduce its effectiveness by reducing or
eliminating Lottery advertising in order to provide a pretext
for eliminating the Lottery altogether.
While WSAB does not take a position on whether there
ought to be a State Lottery, the Association has opposed the
strangulation of the Lottery by eliminating broadcast
advertising.
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
opposes those proposed exemptions that would prevent broadcast
journalists from holding the government accountable for its
actions.
State Agency to Arbitrate Open Records Disputes Between
Record Requesters and Government Agencies.
Legislation was introduced in 2011 (alive in 2012) that
would establish a separate government agency to provide an
alternative method of resolving disputes, which would allow
requesters to avoid the cost and time of suing the agency from
which the records were requested.
Broadcast journalists often request records from state
and local agencies. When
those requests are denied or the agency drags its feet, the
only remedy currently is to sue in Superior Court.
This legislation would permit a record requester to
choose to have the dispute handled by an administrative
proceeding. The
ability to go to court would still be available.
WSAB supports this legislation because it would reduce
a station’s cost of challenging an agency’s decision not
to release public records.
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Taxes
Broadcasters B & O Taxation.
Broadcasters pay their fair share of B & O tax. The
U. S. Supreme Court in Fisher’s Blend Station v.
Washington Tax Commission (1936) required a station’s
revenue to be apportioned for taxation purposes so that only
revenue which is generated within the State of Washington is
subject to tax. Current
law allows broadcasters to deduct a standard amount (62%) of
gross revenue, representing national, regional and network
advertising sales, or a station may itemize these deductions,
in order to protect their interstate income from taxation.
In addition, a station with out of state audience may
also deduct the percentage of out of state audience from gross
revenue in determining B & O tax.
The effect of eliminating these deductions would be to
nearly triple a broadcaster’s B & O tax burden.
WSAB opposes any attempt to remove or reduce
broadcasters’ B & O tax deductions.
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
Blue Alert.
Legislation was
introduced in 2011 (alive in 2012) to establish a “Blue
Alert” that would be activated when a law enforcement
officer had been killed or seriously injured by an act of a
violent criminal who was at large.
The bill will be alive in the 2012 session and its’
prime sponsor will be returning, having been defeated in his
bid to become Snohomish County Executive.
WSAB worked with him in 2011 to insert an amendment
into the bill that would provide immunity to broadcasters for
any damages or liability for broadcasting a Blue Alert.
In addition, the Blue Alert would not be an activation
of the Emergency Alert System.
WSAB will monitor the progress of this bill to ensure
that it continues to contain language favorable to
broadcasters.
Correction/Clarification of Defamation Act.
Legislation was introduced in 2011 (alive for 2012)
that would require a person, in order to maintain an action
for defamation, to make a timely and adequate request for a
correction, clarification or retraction by the entity
publishing or broadcasting the information at issue. If
the clarification is made, the plaintiff may recover only
provable economic damages as mitigated by the clarification.
WSAB supports this pro-journalism legislation.
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.
Endangered
Missing Person Advisory.
The Endangered
Missing Person Advisory Plan specifically states that the
Emergency Alert System is not activated for an endangered
missing person advisory.
Activation of the EAS for an endangered missing person
advisories would result in a huge increase in the number of
activations, so much so, that the public would quickly begin
to ignore them. WSAB
opposes activation of the Emergency Alert System for an
endangered missing person advisory.
Environmental
Policy. 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 currently 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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