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600 Peter Jefferson Parkway, Suite 300 • Charlottesville, Virginia 22911434.977.3716 • 434.979.2439 (f) • easter@easterassociates.comNewsletterVirginia Association of Broadcasters October 2009Senate Judiciary Panel Approves Performance Tax BillThe Senate Judiciary Committee hasapproved legislation to make radio stationspay royalties to performers whenthey broadcast their music.Judiciary Committee Chairman PatrickLeahy, D-Vt., said, “When we listento music, we are enjoying the intellectualproperty of two creative artists — thesongwriter and the performer.”In a letter to Senate Majority LeaderHarry Reid (D-NV) and Minority LeaderMitch McConnell (R-KY), Sens. BlancheLincoln (D-AR) and John Barrasso (R-WY) write that the Performance RoyaltiesAct “would have a devastatingimpact on the local radio broadcastingsystem as we know it.” Lincoln andBarrasso, original co-sponsors of antiroyaltiesresolution the Local RadioFreedom Act, say that “potentially billionsof dollars” could move from localbroadcasters to the recording industryunder the PRA.The letter points to the ongoingeconomic challenges faced by radio.“We believe that artists and their labelsare currently more than fairly compensatedby local radio stations in the formof free and unparalleled promotion.”Lincoln and Barrasso write that thesystem in place “works to the benefit ofboth the recording industry and localradio stations,” and say radio gives therecording industry free advertising “ona level that cannot be matched by anyother platform.”Songwriter Nina Ossoff, who hasworked on songs for Daughtry and PhilStacey, says because declining sales havehurt everyone in the industry, she nowhas to “deal in volume,” trying to getas many songs placed wherever she canto make up for lower sales and a lack ofradio exposure.“The business is so singles-drivennow,” Ossoff says, adding that the newtrend is for songwriters to submit onlya verse and a chorus to execs, who willtell them to finish songs that have hitpotential.“Radio’s become more importantbecause of what has happened,” saidDavid Katz, half of the productionsongwritingteam S*A*M and Sluggo,responsible for recent hits from Boys LikeGirls, The Academy Is . . . , and MetroStation. “The hit song’s become a moreimportant medium because no one buysalbums any more.”Lincoln and Barrasso also point tothe possible consequences of “weakeninglocal radio” in areas where radio mustbe relied on during disasters. They urgethe Senate leaders to “oppose any effortto move this bill, either as a stand-alonemeasure or as part of a broader legislativepackage.”Sen. John Cornyn, R-Texas, calledthe bill a job killer and said it would hurtsmall and minority-owned radio stationsalready struggling in the hard economictimes. He said he feared many of themwill just switch to all-talk formats ratherthan pay more royalties.Leahy said he amended the bill toaccommodate smaller broadcasters byallowing them to pay a flat fee annualfee ranging from $100 to $5,000 basedon their revenues. Public radio andother noncommercial stations wouldpay between $100 and $1,000 in newroyalties.Larger commercial stations thatmake more than $1.25 million wouldpay a rate set by the federal CopyrightRoyalty Board. Broadcasters that makeless than $5 million would start payingfees three years after the bill becomeslaw. Stations that make more wouldhave to start paying the fees a year fromenactment.The Judiciary Committee’s approvalon a voice vote sends the bill to the fullSenate, but lawmakers said they stillwant to make changes before a vote. Asimilar bill is pending in the House afterwinning the approval of its JudiciaryCommittee in May. v

VAB NEWSLETTER OCTOBER 2009VA White Spaces Broadband NetworkVAB NewsletterPublished monthly by the Virginia Association ofBroadcasters600 Peter Jefferson Parkway, Suite 300Charlottesville, VA 22911434.977.3716 (p); 434.979.2439 (f)www.vabonline.comPRESIDENTPAST PRESIDENTPRESIDENT-ELECTSECRETARY/TREASUREREXECUTIVE DIRECTORDoug DavisWAVY-TV, PortsmouthMichael GuldWBBT-FM, RichmondFrancis WoodWFLO-AM/FM, FarmvilleWarren FiihrWSLS-TV, RoanokeDouglas EasterASSOCIATE ADVISORYHarrison PittmanOn-Time Online Broadcast Compliance, Newport NewsBOARD MEMBERSDistricts 1 & 2Charlie (Charles) Russell WESR-AM/FM, OnleyLarry SaundersWGH-AM/FM/WVBW-FM/WXMM-FM/WXEZ-FM, Virginia BeachBob PetersonLinda ForemBob WilloughbyDennis Royer, Sr.Leonard WheelerJack DempseyTheresa KellerRandy SmithDennis MocklerDoris NewcombRobert ScutariDistrict 3WRIC-TV, RichmondWCDX-FM/WKJM-FM/WKJS-FM/WPZZ-FM/WTPS-AM, RichmondWKHK-FM/WMXB-FM/WKLR-FM/WDYL-FM, RichmondDistricts 4 & 5WBBC-FM/WKLV-AM, BlackstoneDistricts 6 & 9WFIR-AM/WSLC-FM/WSLQ-FM/WVBE-AM/FM/WXLK-FM, RoanokeWJHL-TV, Johnson City, TNWEHC-FM, EmoryWSET-TV, LynchburgDistricts 7, 8 & 10WCHV/WCYK/WHTE/WKAV/WWTJ/WZGN, CharlottesvilleWFAX-AM, Falls ChurchWJLA-TV, ArlingtonCONSULTANTSLabor Law Employment CounselJohn G. Kruchko, Paul M. LuskyKruchko & Fries1750 Tysons Boulevard, Suite 560McLean, VA 22102(703) 734-0554The first public white spacesnetwork has launched in Claudville,Virginia. It is uses sensing technologyfrom Spectrum Bridge with softwareand Web cams supplied by Microsoftand PCs supplied by Dell.During a press conference announcingthe white-spaces network, U.S. Rep.Rick Boucher (D-Va.), chairman of theHouse subcommittee on communications,technology and the Internet, calledthe deployment a “milestone” in ruralbroadband deployment.“It is our hope that this will demonstratedefinitely that white spaces canwork,” Boucher said.White spaces are services that runin the unused portion of televisionspectrum, and have been called “WiFion steroids” by Google founder LarryPage. The battle for white spaces hasbeen going on for years. IT companieslike Microsoft, Dell and Google lobbiedin favor of opening up the spectrum fordata services, particularly broadbandInternet access, while those in the broadcastingindustry vehemently opposedthe idea.In February, the National Associationof Broadcasters and Association forMaximum Service Television (MSTV)filed a lawsuit against the Federal CommunicationsCommission over its decisionto authorize unlicensed devices forsending and receiving broadband overunused television channels.“As several engineering tests haveshown, portable, unlicensed personaldevice operation in the same band as TVbroadcasting continues to be a guaranteedrecipe for producing interference,”said NAB Media Relations director KrisJones.Broadcast engineers, includingCharles Rhodes, who ran the technicalarm of the Advanced Television TestingLab, noted that digital TV signalsrequired a buffer zone (à la taboo channels)as much as did analog signals.Digital reception was--and still is--beingFirst Amendment HotlineCraig T. MerrittChristian, Barton, Epps,Brent & Chappell1200 Mutual BuildingRichmond, VA 23219(804) 697-4100worked out.Almost a year ago, in November,2008, the FCC voted to allow carriersand other vendors to deploy devices inthe unlicensed white spaces spectrumat up to 100 milliwats, and up to 40 milliwatson white space spectrum adjacentto TV channels. However white spaceswill support bigger bandwidth for fasterdownloads over longer distances thanWiFi. It also is less prone to interferencefrom walls and other obstacles.One condition the FCC placed onwould-be white spaces providers at thetime is that the devices would need sensingcapabilities that would automaticallyshut them down should they interferewith television. Devices were also to haveaccess to a geo-location database to trackthem by their IP address or media-access-controladdress or a radio-frequencyidentification tag. Once the database hada fix on the device’s location, it was tobe able to select the optimal white-spacespectrum for the device and switch thespectrum as the device moves.Spectrum Bridge provided thedatabase that ensures the white spacesdevices in Claudville do not cause interferencewith local TV signals. “The databaseassigns non-interfering frequenciesto white spaces devices, and can adaptin real time to new TV broadcasts, aswell as to other protected TV band usersoperating in the area,” the companyexplains.Tests of those early devices by theFCC were said to show that they didindeed cause the feared interference withtelevision signals, though Microsoft saidthat the device tested must have beendefective. A second round of tests on anew Microsoft prototype device apparentlydidn’t have the same problems.ESPN, the Broadway League of NewYork (an association for the theaterindustry),and other entities that use wirelessmicrophones also filed a lawsuit tochallengethe “white spaces” rules in theSecond Circuit Court of Appeals. vFCC/EEOC MattersWade Hargrove, Mark J. Prak,Marcus Trathen, Coe RamseyBrooks, Pierce, McLendon,Humphrey & Leonard, L.L.P.P.O. Box 1800Raleigh, NC 27602(919) 839-0300; Fax: (919) 839-0304

VAB NEWSLETTER OCTOBER 2009House Committee Passes LocalCommunity Radio Act of 2009The Local Community Radio Act of2009 is on its way to the full House ofRepresentatives after passing the Energyand Commerce Committee. The billwould allow for creation of hundreds ofnew low-power FM stations by eliminatingthird adjacent channel protection forexisting full-power stations.Rep. John Dingell (D-MI) brieflyrepeated his concerns about interference,but otherwise there was little oppositionvoiced in the House CommunicationsSubcommittee earlier this monthagainst the measure to repeal legislationrequiring the FCC to protect full-powerbroadcasters from interference createdby LPFM stations being placed on thirdadjacentchannels.Member after member hailed theLPFMs already on the air for the localismand service to their communities intimes of emergency. They clearly wantthe FCC to get more of them on the airas soon as possible.“Even though it’s low power, it’shighly empowering to these communitygroups,” declared Rep. Lee Terry(R-NE), one of the principal sponsorsof the bill.The NAB has argued that full powerFM broadcasters actually enhance localismby providing community responsiveinformation such as emergency information.Allowing low power FM stationsto have equal spectrum rights could bedetrimental to these necessary programs.And granting primary status to LPFMstations over FM translators could alsolead to serious disruption of full powerFM service, particularly to populationsthat rely on a relay of FM translators toreceive their FM programming. vBoucher Receives Media Institute AwardThe Washington based Media Institutehas presented Congressman RickBoucher its Freedom of Speech Award forhis efforts to establish a federal law to enablejournalists to refrain from revealingtheir confidential news sources in federalcourt proceedings. The Media Instituteis a nonprofit research foundation whichspecializes in First Amendment issuesand communications policy.Boucher authored the Free Flow ofInformation Act, which would protectreporters from being compelled to revealtheir confidential sources in federal courtproceedings. The bipartisan measurewas approved in the House of Representativeson March 31, 2009.“The assurance of confidentialitythat reporters give to sources is fundamentalto their ability to deliver newson highly contentious matters of broadpublic interest such as corruption in governmentor misdeeds in corporations.Without the promise of confidentiality,many inside sources would not reveal theinformation, and society’s opportunityto take corrective action to address theharms would not arise,” Boucher said.Thirty-six states and the District ofColumbia have statutes extending anabsolute or qualified privilege protectingreporters from the compelled disclosureof the identity of confidential sources.“Such overwhelming support for assuringthe confidentiality of journalists’sources at the state level lays bare theglaring lack of similar protections at thefederal level,” Boucher noted.To ensure that confidential sourcesremain willing to share information vitalto the public interest, Boucher’s legislationsets criteria which must be metbefore information can be subpoenaedfrom reporters in any federal criminal orcivil matter. The standards set forth in thelegislation carefully balance the publicinterest in the free flow of informationagainst the public interest in compelledtestimony.The black-tie event also kicked offthe fifth annual National Freedom ofSpeech Week and recognized the MusicMaker Relief Foundation, which promotesfree expression by assisting agingSouthern blues musicians and preservestheir musical traditions. vCOMPLIANCE TIPMembership Hasits Benefits!!!by Harrison PittmanAs you know stations with 5 ormore employees are required to engagein specific non-vacancy outreachactivities. Depending on the size ofyour market, you are required to conducttwo or four outreach activitiesover a two-year period.The list of sixteen outreach activitiessuggested by the commissionoffers a wide variety of choices likeparticipation in job fairs. Hopefully,you are taking advantage of the collegejob fair opportunities sponsoredby the VAB. These are free to membersand with the proper number andscope of participation will help youearn a point.But did you know that there isanother excellent outreach activityavailable to you as a member of theVirginia Association of Broadcasters?It is the outreach initiative describedas “participation in job banks, Internetprograms, and other programsdesigned to promote outreach generally(i.e., outreach that is not primarilydirected to providing notification ofspecific job vacancies).”You would need to do such thingsas promoting the VAB’s website JobBank with an on-air announcement;including a link to the VAB webpagefrom your station’s website; and distributingVAB Job Bank informationat job fairs or career presentations youattend. Of course, you will also needand want to use the VAB Job Bank asone of your recruitment sources forall your vacancies.What a great opportunity! Anon-air announcement that directsviewers/listeners to an exciting careerin broadcasting during a dauntingjob market; a website where qualifiedcandidates are likely to research theindustry and learn about your company,and an EEO outreach activitythat earns you a credit. vThis compliance tip has been providedby Harrison Pittman of On-Time OnlineBroadcast Compliance www.OnTimeOnlinebc.com,hpittman@ontimeonlinebc.com.

VAB NEWSLETTER OCTOBER 2009House Energy and Commerce Committee Approves SHVERAThe House Energy and CommerceCommittee last week approved a bill(H.R. 2994) to amend and reauthorizethe communications law section of theSatellite Home Viewer Extension andReauthorization Act (“SHVERA”). Thebill will ultimately be combined with thecopyright law section of the SHVERAbill approved last month by the HouseJudiciary Committee.Also last month, the Senate JudiciaryCommittee approved its version of thecopyright law section of the bill.Earlier this month, the Senate CommunicationsSubcommittee held a hearingon the communications law sectionof the Senate bill, and a markup in theSenate Communications Subcommitteeon those provisions will occur within thenext few weeks.At this juncture, the House andSenate bills differ in numerous respects,which will necessitate a reconciliation ofthe differences.I. WHERE THINGS STANDWhen the SHVERA reauthorizationprocess began earlier this year, theindustry’s number one objective wasto prevent Congress from amendingthe bill to modify DMAs and authorizethe importation by cable and satellite ofduplicating network stations from othermarkets. So far, that objective has beenachieved.In addition, another industry prioritywas to prevent major revision of theretransmission process—that objectivehas, so far, been achieved.A third objective was to assure thatthe existing local station analog “GradeB” service standard is replaced witha digital counterpart (i.e., the digital“noise limited service contour” standard)for the purpose of determining ifa household can receive, over the air, anadequate local digital broadcast signal,thus prohibiting the importation bysatellite of duplicating out-of-marketdigital network signals. That objective,also, has been achieved.A final industry objective was tocreate an incentive (if not a mandate) toextend local-into-local satellite carriageto all 210 markets. The House bill appearsto achieve that objective. Whilethe Senate bill, at this point, facilitatesthe extension of local-into-local serviceinto all 210 markets for both satellitecarriers, it does not reinstate DISH’sdistant signal license nor require DISHto extend local-into-local service to all210 markets.However, both the House and Senatebills contain various other provisionsthat, if not addressed, could be harmful tolocal television stations. We are workingwith the House Committee leadershipto improve the bill as it moves forward,and we will keep you fully informed onthe progress of that effort.II. THE TROUBLING PROVISIONSDigital Transition/GrandfatheringNeither the House nor the Senatebill takes into account the digital transition“timing gap” issue, and, in failingto do so, the bills would grandfatherpotentially thousands of subscribersreceiving distant, duplicating networksignals who can receive perfectly goodprimary or multicast digital channelsaffiliated with the same network from localnetwork stations—fragmenting localstation viewership and giving satellitecarriers additional leverage in the nextround of retrans negotiations.The problem will be mitigated tosome extent by the “if local, no distant”provision of the law, but, even so, thenew “if local, no distant” provision inthe House bill is not as favorable as ithas been.The “grandfathering” issue is politicallysensitive for Members of Congress.The concern of Members is thatsubscribers whose distant signal serviceis terminated will blame Congress. Forthat reason, there is precedent in priorSHVERA reauthorizations for grandfatheringexisting distant signal subscribers.Nevertheless, we’ve pointed outthis reauthorization is different becausethe “grandfathering” here results solelyfrom the digital transition, and Congressand satellite carriers should share, alongwith broadcasters, the burden of thetransition. Satellite carriers, for certain,should not be allowed to expand theirdistant signal copyright licenses by exploitingthe digital transition.Protecting Multicast SignalsThe Senate bill provides programexclusivity protection against the satelliteimportation, post December 31, 2009,of network programming from distantstations that duplicate programmingbroadcast by the network affiliated“multicast” channels of local stations.The House bill, however, delays thisprotection for multicast channels forthree years—until January 1, 2013. Thelack of program exclusivity protectionfor three years will fragment viewershipof local network affiliated multicastchannels and afford satellite carriersgreater retrans leverage in negotiatingsatellite carriage of and retrans paymentfor local multicast network channels. Italso creates a disincentive over the nextthree years for satellite carriers to launchlocal-into-local service in new marketswhere one or more networks are offeredon multicast channels, since satellitecarriers will be able to offer distant duplicatingnetwork signals throughoutthe local market.Predicting “Served” Households/Outdoor Antenna StudyThe House bill directs the FCC toconduct a study of the current predictivedigital reception standard and theuse of outdoor and indoor antennas.This could pave the way for Congressin future years to scuttle the outdoorantenna requirement as part of the“unserved” household service standard.Should that happen, it would, of course,allow more duplicating distant networksignals to be imported by satellite, fragmentingfurther the viewership of localstations and impairing satellite retransnegotiations.The statutory language, however,is ambiguous. A legislative “report”accompanying the bill is currently beingdrafted by the House CommerceCommittee. This report is expected toclarify the meaning of the provision. Weare working with the Committee staff todevelop language that will be helpful tothe industry.DMA StudyThe House bill directs the FCC toconduct a “study” of the DMAs systemand determine whether in state viewerslocated in DMAs that straddle state(continued on next page)

VAB NEWSLETTER OCTOBER 2009(continued from previous page)lines receive an adequate amount of “instate” programming, and, if not, whetheralternatives exist to the DMA, as thestandard for defining the scope of thelocal compulsory copyright license. Thiscould—hopefully it will not—ultimatelylead to a market modification proposalby the FCC and the introduction in twoyears of market modification legislationin Congress. Again, the legislativereport now being drafted by the HouseCommittee will reflect the true Congressionalintent for this study. We areworking with the Committee leadershipto develop language that will be helpfulto the industry. We are recommendingthat the legislative report restrictthe FCC’s study to the availability tothe affected households of “in-state,”non duplicating local news, weather,and public affairs programming—notduplicating network and syndicatedprogramming.The DISH 210 DealThe House bill reinstates DISHNetwork’s distant signal compulsorycopyright license, in exchange for acommitment by DISH to extend localinto-localservice to all 210 markets. Theprovision contains troubling languagethat could become significant later interms of protecting the program exclusivityof local stations, and we hope toremove that provision.At the House Commerce Committeemarkup, public broadcasters succeededin having an amendment adopted toaccelerate carriage by DISH of publicstations in HD. It is unclear whether thatrequirement will adversely affect DISH’scommitment to extend local-into-localservice in all 210 markets.The Senate Commerce Committeemay attempt to reinstate DISH’s distantsignal license coupled with a 210service requirement. However, there issignificant opposition to reinstatementof DISH’s distant signal license in theSenate Judiciary Committee.Grade B BleedLanguage in both the Senate andHouse Judiciary bills potentially reducesthe protected area of exclusivityfrom a local station’s “noise-limitedservice contour” (i.e., the old Grade Banalog contour) to the lesser of the noiselimited service contour or the station’sDMA—thus potentially paving the wayin some markets for satellite importationof more distant duplicating networkchannels.Low-Power Compulsory LicenseThe Senate bill expands the limitedgeographic scope (20/35 miles) of thesatellite compulsory copyright licensefor low-power stations by extendingthe scope of the compulsory copyrightlicense to the entire DMA in which thelow-power station is located. To theextent the bill extends the compulsorycopyright license for satellite carriageof low-power stations to the same geographicarea of full-power stations, fullpower stations oppose it.The House bill contains minormodifications in the current low-powercompulsory copyright license for satellitecarriers that is not objectionable.Non-Compulsory LicenseArrangementsThe House Commerce bill containsa new provision in the nature of a “savingsclause.” Its purpose is unclear andthe language is confusing. It states thatnothing in the Communications Act“limits the ability of a satellite carrier toretransmit a performance or display of awork” pursuant to authorization grantedby the copyright owner.The provision, we are advised bythe Committee staff, is intended to dono more than re-state what current lawalready provides. We are continuingto analyze the provision to ensure thatit will not result in unintended consequences.Frankly, it is simply unclearwhat the provision achieves, if anythingat all.Significantly Viewed SignalsThe existing satellite act allows satellitecarriers to import a “significantlyviewed” HD and multicast signal froman adjacent market only if the satellitecarrier is uplinking and devoting an“equivalent” amount of bandwidth tothe local in-market station affiliated withthat network. The purpose has been toprevent satellite carriers from uplinkingthe HD and multicast channel(s) of a stationin an adjacent market and importingthose signals into a local market wherethe station is “significantly viewed”without also uplinking the HD andmulticast channel(s) of the in-marketstations. In other words, the provisionwas intended to protect local stationsand assure non discrimination.The “equivalent bandwidth” requirementhas been deleted. The bill nowonly requires satellite carriers retransmittinga “significantly viewed” adjacentmarket station in HD to retransmit thein-market station in HD, but it providesno protection against the importationof adjacent market multicast channels.Thus, under the bill, a satellite carriermay import an adjacent market’s “significantlyviewed” station’s multicastchannel(s) without carrying any of thelocal station’s multicast channel(s). Thisis a diminution in program exclusivityprotection for local stations and createsless incentive in some markets for satellitecarriers to uplink local multicastsignals.III. NEXT STEPSWe have been assured repeatedlyby the House and Senate Committeestaff members they will work with us toaddress the concerns we have with themore troubling aspects of the bill. Forthat reason, and the fact we have nowjust received the Committee approvedHouse bill, NAB, affiliate associations,and state broadcast associations havenot launched a “grass roots” initiative.But, that decision may soon change sincethe Senate Communications Subcommitteewill mark up its bill in the nextfew weeks.In short, our major concern withthe House and Senate bills, as they currentlystand, is with the grandfatheringof virtually all distant signal subs andthe House bill’s failure for the next threeyears to prevent satellite carriers fromsigning up distant signal subscriberswho can receive a perfectly good signalof the same network from a local digitalmulticast channel.We are also concerned, as notedabove, with the House bill’s mandatedFCC studies. vThis Legal Review should in no way beconstrued as legal advice or a legal opinionon any specific set of facts or circumstances.Therefore you should consult with legalcounsel concerning any specific set of factsor circumstances.© 2009 Brooks, Pierce, McLendon, Humphrey& Leonard, L.L.P.

VAB NEWSLETTER OCTOBER 2009TWISTED TAILSHEADQUARTERED IN SAFE OFFSHORE HAVENS,THE FOUR FAT CATS OF THE RECORD LABELSENJOYED MANY YEARS ATOP MOUNTINGPROFITS.Something hasto be done.A FAMILY. A RECORDING EMPIRE. BUILTON PROFITS -- FROM MUSIC PLAYEDAND PROMOTED BY LOCAL RADIO.BUT THE OPERATION HAS HIT A SNAG.PEOPLE AREN'T BUYING ENOUGH PRICEY CDS.LOCAL RADIO IS CALLED TO THE MAT.THEY PUT THE SQUEEZE ON RADIO.are youplayin'the music?are you promotingconcerts?all the time?where'sour profit?we'll get it outtayou somehow.i...i...i'm playingthe music!call it a "performance right."…cover our tracks.IT LOOKS BAD FOR RADIO.IT LOOKS BAD FOR MUSIC.who's gonnaplay the music?GET THE REALSTORY OF THEPERFORMANCE TAX.NOPERFORMANCETAX.ORG

VAB NEWSLETTER OCTOBER 2009NAB Counters CEA-Funded Spectrum StudyThe National Association of Broadcastershas dismissed a recent studyfunded by the Consumer Electronics Association(CEA) estimating the marketvalueof broadcast television spectrum.The study was filed with the FederalCommunications Commission late Friday,and while CEA commissioned thestudy, the group also told the federalagency that it “does not necessarily endorse”the results.Commenting on the study, NAB ExecutiveVice President Dennis Whartonissued the following statement:“CEA’s study ignores the immeasurablepublic benefit of a vibrant freeand local broadcasting system that isubiquitous, reliable as a lifeline service intimes of emergency, and flexible enoughto include HDTV, diverse multicastprogramming and mobile DTV. ThatCEA itself does not endorse its owncommissioned study reinforces its isolationas primarily an academic exercise.Meanwhile, broadcasters and forwardthinkingCEA member companies haveembraced mobile DTV to enable deliveryof live and local TV to cellphones, laptopsand the back seats of cars.“Notably, television broadcastersjust returned a third of our spectrumto government as part of our historicDTV transition; as the FCC’s processto recommend a National BroadbandPlan moves forward, NAB believes it isimperative that policymakers explorespectrum efficiency choices that don’tlimit consumer access to the full potentialof digital broadcasting.”NAB also filed comments with theFederal Communications Commissionlate Friday concerning the agency’srequest for information on spectrummanagement practices as they relate tothe rollout of nationwide broadband.NAB’s comments were filed jointly withthe Association for Maximum ServiceTelevision (MSTV).NAB and MSTV encouraged theFCC to consider all frequencies that maybe suitable for wireless broadband, notingthat frequencies above 3.7 GHz havebeen allocated for a variety of wirelessservices, including broadband applications.NAB also noted that broadcastersrecently freed up more than 100 MHzof spectrum through the digital TVtransition.“The multi-billion dollar investmentsby broadcast television stations,equipment manufacturers, the governmentand consumers have enabled theintensive use of each television station’s 6MHz channel to deliver a variety of highdefinition and multicast programming,mobile DTV and other ancillary andsupplemental services -- all while freeingup more than 100 MHz of spectrum forwireless broadband and other new commercialand public safety uses.” vHulu May Soon Start Charging ViewersClosed CaptioningNew board member Chase Careysaid Hulu, the popular TV and videostreaming site, must start charging forat least some of its content as early asnext year, according to Broadcasting &Cable.At an event hosted by the publication,Carey said that the pay wall couldbe limited to special or advance programming,but that Hulu in general “needs toevolve to have a meaningful subscriptionmodel as part of its business.”“It’s time to start getting paid forbroadcast content online,” said ChaseCarey, deputy chairman on News Corp.,which owns Fox TV and The Post.“Hulu concurs with that,” Carey toldan industry conference in New York. “Itneeds to evolve to have a meaningfulsubscription model as part of its business.”Hulu is jointly owned by NBC, ABCand Fox, which have all been postingtheir shows on the site soon after theyair on broadcast TV.Carey suggested that some showson the site would remain free but thatothers would be available only to thosewho paid a fee.Meanwhile NBC’s TV chief, MarcGraboff, was telling another industrygroup that Hulu was exploring a numberof options to make more money-- including increasing the number ofcommercials online.Graboff admitted that the networksmay have been too hasty in offering theirshows for free to counter online piracy.But otherwise, the Hulu experimenthas worked, he said. “Our researchindicates that making shows availableonline has not cannibalized but has beenadditive,” he said.This comes after reports severalmonths ago that Hulu was planningseveral tiers of programming in orderto draw in cable networks reluctant toparticipate in anything that could affecttheir subscriber base. But as the reportpoints out, the announcement highlightshow broadcasters are now looking fornew revenue streams specifically fromcontent distributors in order to supplementtraditional sources of income fromadvertisers. vThe next FCC closed captioningbenchmark goes into effect on January1, 2010, and requires 100% of new, nonexemptSpanish language programming,whether broadcast in analog or digitalformat, to be closed captioned. As ofJanuary 1, 2012, and thereafter, 75%of each station’s pre-rule, nonexemptSpanish language programming must beprovided with closed captioning duringeach calendar quarter.The new 100% captioning thresholdrepresents an increase over the captioningrequirements for Spanish languageprogramming for the period 2007 to2009, during which time stations wererequired to caption only 1350 hours oftheir new, nonexempt Spanish languageprogramming per calendar quarter.Because fines for failure to complywith the closed captioning requirementscan be expensive, stations should taketime now to ensure their compliancestrategies are ready for implementationof the new, nonexempt Spanish languagerequirement on January 1. v© 2009 Brooks, Pierce, McLendon,Humphrey & Leonard, L.L.P.

VAB NEWSLETTER OCTOBER 2009ATSC Adopts Mobile Digital Television StandardThe Advanced Television SystemsCommittee (ATSC) is pleased to announcethe approval of A/153 ATSCMobile DTV Standard. The ballot, talliedat midnight Oct. 15, was approved withoverwhelming support by the full ATSCmembership.“NAB congratulates the ATSCon final adoption of the mobile DTVstandard,” said NAB Executive VicePresident Dennis Wharton. “We lookforward to the continuing parallel effortsof the Open Mobile Video Coalition todevelop industry consensus on bringingthese pro-consumer local TV services tomarket.”The ATSC Mobile DTV Standarddefines the technical specifications necessaryfor broadcasters to provide newservices to mobile and handheld devicesusing their digital television (DTV) transmissions.The new services for mobileand handheld devices are carried alongwith current DTV services without anyadverse impact on legacy receivingequipment. ATSC Mobile DTV was developedto support a variety of servicesincluding free (advertiser-supported)television and interactive services deliveredin real-time, subscription-basedTV, and file-based content download forplayback at a later time. The standardcan also be used for transmission of newdata broadcasting services.“Development and adoption of theATSC Mobile DTV Standard is a majormilestone in the ongoing evolution ofdigital television,” said ATSC PresidentMark Richer. “We have been fortunate tohave strong and active industry support,including thousands of person-hours oftechnical volunteers, for this work whichenabled us to develop the standard in anefficient manner.”The ATSC Mobile DTV Standardwill enable broadcasters to provide newcompelling services to consumers utilizinga wide array of wireless receivingdevices including mobile phones, smallhandheld DTVs, laptop computers andin-vehicle entertainment systems.Gary Shapiro, President and CEO ofRemember to update your station profiles on the VABwebsite! New information has been added to make it easierfor VBS media buyers to market your station. To updateyour information, please go to www.vabonline.com/members/login.aspx, log in, then click on “Your Stations.” If you’veforgotten your username or password, emailchristina.meyer@easterassociates.com.the Consumer Electronics Association,said, “As a founding ATSC member,CEA congratulates ATSC on achievingthis new standard, which will help chipmakersand equipment manufacturersproceed with product development anddeployment. With the successful digitaltelevision transition now behind us,the ATSC Mobile DTV standard givesbroadcasters an opportunity to provideconsumers with the next generation ofcompelling over-the-air content.”“This milestone ushers in the newera of digital television broadcasting,giving local TV stations and networksnew opportunities to reach viewers onthe go,” said Paul Karpowicz, NAB TelevisionBoard Chairman and President ofMeredith Broadcast Group. “This willintroduce the power of local broadcastingto a new generation of viewers andprovide all-important emergency alert,local news and other programming toconsumers across the nation.”ATSC Mobile DTV is built around ahighly robust transmission system basedon Vestigial Side Band (VSB) modulation,with enhanced error correction and othertechniques to improve robustness andreduce power consumption in portablereceivers, coupled with a flexible andextensible Internet Protocol (IP) basedtransport system, efficient MPEG AVC(ISO/IEC 14496-10 or ITU H.264) video,and HE AAC v2 audio (ISO/IEC 14496-3)coding. ATSC Mobile DTV services arecarried in existing digital broadcast channelsalong with current DTV serviceswithout any adverse impact on legacyreceiving equipment.In addition to live television, the newATSC Mobile DTV standard provides aflexible application framework to enablenew receiver capabilities. Receiversthat make use of an optional Internetconnection will enable new interactivetelevision services, ranging from audiencemeasurement and simple viewervoting to the integration of Internetbasedapplications and transactions withtelevision content.Formal development of the ATSCMobile DTV system began in May 2007with the issuance of a request for Proposals(RFP). The new standard documentwill be available online at http://www.atsc.org/standards. v

VAB NEWSLETTER OCTOBER 2009FCC Freezes FM Filing and Changes Translator RulesThe FCC has released a Public Notice(“Notice”) announcing that, effectiveimmediately and through December18, 2009, it will not accept applicationsproposing to modify the reference coordinatesof any of the 67 vacant, nonreservedFM band allotments listed inAttachment A to this Legal Headline.The filing “freeze” also applies to petitionsand counterproposals that proposea change in channel, class, community,or reference coordinates for any of thelisted vacant allotments. The FCC willdismiss any application, petition, orcounterproposal that either proposesany change to, or fails to fully protect,one of the identified allotments. Thisfreeze will automatically terminate onDecember 19, 2009.The Notice also announces anotherfreeze on the filing of commercial FMand noncommercial educational FMminor change applications—for example,applications to change a station’scommunity of license or to change to ahigher (or lower) class co-channel, first-,second-, or third-adjacent channel. Accordingto the Notice, the FCC will notaccept such minor change applicationsafter 11:59 p.m. on November 25, 2009,and the freeze will continue in effectuntil December 18, 2009.Through a separate Public Notice,the FCC announced that it will open awindow for applicants to file for new,noncommercial educational FM stationconstruction permits for any ofthe non-reserved FM band (Channels221-300) allotments listed in AttachmentA. Thus, the temporary filing freezeswere imposed to promote stability andpredictability for applicants interestedin filing for these allotments. The filingwindow is available only for existing,vacant FM allotments on Channels 221through 300 that have been reserved fornoncommercial educational use. Applicationsfor commercial facilities will notbe accepted for these allotments duringthis window. The filing window openson Friday, December 11, 2009, and closeson Friday, December 18, 2009.As previously reported, the FCCrecently adopted changes to its FMtranslator rules to allow AM stations touse currently authorized FM translatorstations to “fill in” service voids in theAM stations’ coverage areas. The newFM translator rules involve certain FCCform changes, and these form revisionsrequired regulatory approval from theOffice of Management and Budget beforethey went into effect. The FCC has nowannounced that the new FM translatorrules and certain form changes becameeffective as of October 1, 2009. (Thechanges to FCC Form 349, the applicationform to construct or make changes to anFM translator or FM booster station, hasnot yet, as of October 6, 2009, receivedOMB approval.)According to the Order adopting therules, the Commission made the changesto the FM translator rules to improve theability of AM stations to provide serviceto their local communities by providing“continuity of service” in their licensedcoverage areas. The FCC’s action followsa rulemaking request initiated by theNational Association of Broadcastersin 2006 urging the FCC to allow FMtranslators to rebroadcast AM signalsunder certain circumstances. In additionto nighttime interference, AM stationshave experienced increased interferenceduring all hours of the day from varioussources, including electronic equipmentand wireless devices, and the new rulesare intended to address some of thoseissues. vThis Legal Review should in no way beconstrued as legal advice or a legal opinionon any specific set of facts or circumstances.Therefore you should consult with legalcounsel concerning any specific set of factsor circumstances.© 2009 Brooks, Pierce, McLendon,Humphrey & Leonard, L.L.P.FCC Media Ownership Workshops AgendaThe FCC is about to begin a quadrennial review of its media ownershiprules as required by the Telecom Act of 1996. Every four years the agency must“determine whether any of such rules are necessary in the public interest as theresult of competition.”To assist in structuring the 2010 review process, the Media Bureau plans tohold workshops on November 2, 3 and 4 to discuss the scope and methodologyof the proceeding and the analytical framework the Commission should use forconducting its review. The Commission is also seeking comments on structuringof the review proceeding.The Commission’s statutorily required periodic review encompasses fiveownership rules includes: (1) the newspaper/broadcast cross-ownership rule,(2) the radio/television cross-ownership rule, (3) the local television ownershiprule, (4) the local radio ownership rule, and (5) the dual network rule.“We will explore these issues during three half-day sessions with a panelof policy scholars, a panel of public interest groups and a panel of broadcastersand media trade associations,” the agency said in a release.The moderator of each workshop will invite the panelists to present theirviews on questions relating to the scope and analytical framework of the mediaownership review process.For a complete rundown of all of the work shops visit fcc.gov. v

VAB NEWSLETTER OCTOBER 2009 10“Teaser” Spots and Sponsorship Disclosure Issuesby Stephen HartzellBrooks, Pierce, McLendon,Humphrey & Leonard, L.L.P.Sponsorship identification remainsa hot topic for the FCC, and there is currentlyan open proceeding at the FCCdealing with sponsorship disclosureissues. In light of an apparent recentuptick in the use of “teaser” campaignsby various advertisers, it is an opportunetime to remind stations that theFCC’s Sponsorship Identification Ruleapplies to “teaser” spots. Of course,the FCC’s Sponsorship ID Rule appliesto all types of programming, includingspecial requirements that apply topolitical and “issue” advertising andto the use of electronic news releasematerial. This article focuses only on“teasers.” Remember, too, that it is alwaysappropriate for stations to contacttheir communications counsel to discusssponsorship ID issues.What are the basic requirements ofthe FCC’s Sponsorship ID Rule?Briefly, the Sponsorship ID Rule, Section73.1212 of the Commission’s Rules,provides in relevant part:When a broadcast station transmitsany matter for which money, service, orother valuable consideration is eitherdirectly or indirectly paid or promised to,or charged or accepted by such station,the station, at the time of the broadcast,shall announce:(1) That such matter is sponsored,paid for, or furnished, either in wholeor in part, and(2) By whom or on whose behalfsuch consideration was supplied:Provided, however, That “service orother valuable consideration” shallnot include any service or propertyfurnished either without or at anominal charge for use on, or in connectionwith, a broadcast unless it isso furnished in consideration for anidentification of any person, product,service, trademark, or brand namebeyond an identification reasonablyrelated to the use of such service orproperty on the broadcast.The Commission has explainedthat the sponsorship ID announce-ment, in short, must “state in languageunderstandable to a majority of theaudience that the station has receivedconsideration for the matter broadcastand from whom that consideration wasreceived.” Sponsorship ID announcementsmust include the language “paidfor,” “sponsored by,” or “furnished by.”The FCC has rejected the use of otherlanguage, including “brought to youby” and “presented by.”Thus, the Rule applies to any materiala station broadcasts for which it has beenpaid or promised something of value.This seems pretty straightforward—if astation is paid to broadcast material, itmust identify the sponsor—but stationsshould not allow themselves to be lulledinto a false sense of security; carefulvetting of spots is sometimes necessarybefore clearing them.What are the “magic words” for a sponsorshipidentification?The FCC’s “magic words” for compliancewith the sponsorship identificationrule are “sponsored by,” “paid forby,” and “furnished by”—disclosuresshould make use of one of these expressionsto indicate the party responsiblefor the material. (A good rule of thumbfor “furnished by” is that it should beused only where a third party gives astation material for free in the hopesthat the station will carry it.) The FCChas specifically stated that no otherlanguage is permissible for compliancewith the sponsorship ID rule, and theFCC has rejected the use of “presentedby” and “promotional fees furnishedby” as adequate substitutes for any ofthe magic language.Other than the “magic words,” what else isrequired in a sponsorship ID tag?In addition to overlooking applicationof the rule entirely, a station can easilyviolate the rule by failing to air a sufficientsponsorship ID. The sponsorshipID must state that the announcement orprogram is “paid for by” or “sponsoredby” the named individual or entity whopaid for the time. A sponsorship ID thatstates “presented by Bob Smith” wouldbe insufficient because it fails to usethe words “paid for by” or “sponsoredby.” Likewise, a sponsorship ID thatstates “paid for by the distributor,” or“sponsored by a local business” wouldbe insufficient because it fails to identifythe person or entity paying for the timeby name.To illustrate the significance of “gettingit right,” an FCC case from severalyears ago is instructive. There, a radiostation aired 51 spots advertising commercialservices and attractions availablefrom businesses in the communityof Cripple Creek, Colorado. The spotswere sponsored by the town’s Chamberof Commerce, but the Chamber was notidentified as the sponsor. The stationargued that the mention of attractionsin Cripple Creek contained in the adsconstituted a “mention of the name of theproduct [that] constitutes a sponsorshipidentification” within the context of theSponsorship ID Rule. The FCC rejectedthis argument (and fined the station$10,000), noting that a listener hearingof Cripple Creek’s restaurants and otherbusinesses would not think automaticallyof the Cripple Creek Chamber ofCommerce.How come most commercial spots do notinclude a “paid for by” or “sponsored by”tag?The Sponsorship ID Rule recognizesthat listeners and viewers will recognizemany commercial spots for what theyare, i.e., that they are advertisementsfor a particular company’s products orservices. This recognition is embodiedin the following provision of the SponsorshipID Rule:“In the case of broadcast matteradvertising commercial products orservices, an announcement stating thesponsor’s corporate or trade name, orthe name of the sponsor’s product, whenit is clear that the mention of the nameof the product constitutes a sponsorshipidentification, shall be deemed sufficientfor the purpose of this section and onlyone such announcement need be madeat any time during the course of thebroadcast.”The vast majority of traditionalcommercial spots will fall within thisprovision, which is why it is unnecessary(continued on next page)

11 VAB NEWSLETTER OCTOBER 2009(continued from previous page)for a “Bounty” paper towel commercialto say “Paid for by Proctor & Gamble”or for a fast food restaurant spot to say“Sponsored by Wendy’s.” In otherwords, if the ad is for a commercialproduct or service, the mere mentionof the company name or its product isnormally sufficient. Therefore, whenan ad is for a commercial product orservice, sponsorship ID requirements arerarely given a second thought becausethe ad already contains the name of thecompany or the product. “Teaser” spots,however, typically do not reveal eitherthe sponsor’s corporate or trade nameor the name of the sponsor’s product,which means that stations need to givemore attention to such spots to ensurecompliance with the Sponsorship IDrequirements.What is a “teaser” announcement or campaign?According to the FCC, a “teaser”is, “in essence, a short and succinctannouncement utilizing catch words,slogans, symbols, etc., designed toarouse the curiosity of the public as tothe identity of the advertiser or product,which is to be revealed in subsequentannouncements.” Any time the identityof a sponsor is not readily apparent fromlistening to or watching a spot, carefulevaluation of the sponsorship identificationrequirements may be in order.Since when do “teasers” have to have asponsorship ID?For at least half a century the FCChas taken the view that “teasers” arerequired to have proper sponsorshipidentification. Indeed, fifty years ago, theNAB petitioned the FCC to provide anexception to sponsorship identificationrequirements for “teaser” announcements,and the FCC expressly declinedto do so.Has the FCC said anything more about teaserssince 1959?Yes. Just three years later, in 1962,the FCC issued a Public Notice warningstations to ensure compliance with thesponsorship identification requirementsfor teaser campaigns.1962—Are you kidding me? Isn’tthat too long ago to matter anymore?No—in 2008, when the FCC openedits “embedded advertising” and sponsorshipidentification proceeding, itspecifically cited the 1962 Public Notice,a good indication that the Commissioncontinues to consider it good law andthat the half-century-old warnings aboutteasers are alive and well.Have there been any “teaser” campaigncases?Yes. For example, in 1973, the FCCfined a station $3,000 for failing to includea sponsorship identification in a teaserspot. There, according to the FCC, spotsaired on a radio station without propersponsorship identification. The FCCcited the following script as typical forthe particular teaser campaign at issuein the case:“PSSHHTT-KABALONK. Welcomeaboard . . . this is your bus speaking!TIDDILYUPBINGGING. We’re goin’sight-seein’! (SOUNDS OF FAST DOORCLOSE & STARTING UP) PSSHHT-BLUNK-VAROOOM. And, whadda-wegonna see, y’say? Me! Wearing words ofwisdom from bumper to bumper! Like‘Every Glendale has a silver lining.’Beautiful! An’ ‘Glendale makes the heartgrow fonder.’ Heart! That’s me all over!PSSHHTT-VRUMM. Hey, lady! BEEP-BEEP. Somethin’ beautiful is comin’ yourway! VROOM. Me!”There, the advertiser was the GlendaleFederal Savings and Loan (“GFSL”),and the FCC rejected the argument thatuse of the word “Glendale” was sufficientto identify the sponsor. The FCC alsorejected application of the portion of theSponsorship ID Rule that governs mosttraditional spots (discussed above) because,in the GFSL advertising campaign“the public could not have been awarethat a commercial product or servicewas advertised or that the sponsor’scorporation or trade name, or the name ofsponsor’s product, was even mentioned.It appears that the announcements wereintended to arouse curiosity rather thanto provide appropriate sponsorshipinformation.”Since we want the revenue and other stationsin the market are airing a “teaser” spotwithout a “paid for by” or “sponsored by”tag, we can also take the spot, right?Ah, revenue vs. regulation—this iswhere the rubber meets the road. Onthis issue, stations may wish to keep acouple of things in mind: First, in the“teaser” case referenced above, the FCCstated: “That the copy was receivedfrom a reputable agency and that otherbroadcasters and other media carriedthe commercials provide no justificationfor failure of a licensee to complywith the Communications Act or theCommission’s Rules. Each licensee isexpected to know and comply with thestatute and the Rules.” In other words,when it comes to sponsorship identification,there is no strength in numbers, andtwo wrongs do not make a right. Second,each broadcaster’s risk tolerance willbe different. Stations faced with closecalls about sponsorship ID may wish tocontact their communications counseland bring other company executivesinto the discussion before accepting orrejecting spots.Stations that fall into a pattern ofassuming sponsorship ID requirementsare met by the ad or program copy,rather than analyzing the particular ador program and determining whetherthe sponsor has been identified, exposethemselves to fines for violating the Rule.It is important for stations to remembernot to rely on an independent ad agencyto ensure compliance with the rule. vThis Legal Review should in no way beconstrued as legal advice or a legal opinionon any specific set of facts or circumstances.Therefore you should consult with legalcounsel concerning any specific set of factsor circumstances.© 2009 Brooks, Pierce, McLendon,Humphrey & Leonard, L.L.P.Please send all announcements & press releases to: derek.breen@easterassociates.com. Submissions may be edited for length.Inclusion is not guaranteed and may be excluded due to space.

VAB NEWSLETTER OCTOBER 2009 12Employees With Flu Symptoms: Unfit For Duty?By John G. Kruchkoand Paul M. Lusky*There has been a lot of publicityrelated to the impending influenzaseason and its impact on employers.Of primary concern is the announcedpandemic related to the H1N1 influenzavirus, better known as the swine flu. TheCenters for Disease Control (“CDC”)and the Occupational Safety and HealthAdministration (“OSHA”) have bothpublished comprehensive guidancefor employers to assist businesses inpreparing for the swine flu pandemic.The Equal Employment OpportunityCommission (“EEOC”) has also issueda technical assistance memorandum tohelp employers make certain that theirpandemic flu plans are compliant withthe Americans with Disabilities Act(“ADA”).Of course, reading all this materialcan be time-consuming and may ultimatelyresult in confusion, informationoverload and a headache. Still, somemeasure of preparedness is necessaryif only to reduce the potential infectionthreat for your workplace. OSHA suggeststhat a pandemic could result inabsenteeism as high as 40% of the workforceduring periods of peak influenzaillness. Obviously, such an absenteeismlevel could seriously impact productionand delivery schedules. Thus, it maybe both prudent and a good businesspractice to prepare now for the impactof the swine flu.The OSHA Guidance on PreparingWorkplaces for an Influenza Pandemic(the “Guidance”) is quite lengthy andmuch of it may relate to industries thathave greater potential for exposure to theH1N1 virus than your business. For example,businesses that have employeeswho will have contact with the generalpublic (e.g., retail stores) or persons alreadysuspected of being infected withthe virus (health care facilities) willhave to take more precautions than afirm doing construction work. The CDCwebsite has a “Communications Toolkitfor Businesses and Employers” whichis more user-friendly than the OSHAGuidance and it allows you to download“Action Steps” to protect your businessand employees from the flu. CDC hasalso published a “Preparedness Guidefor Small Business” which is helpful.Employers should not ignore theOSHA Guidance, however, because theGeneral Duty Clause in the OSH Act (29U.S.C. § 654 (a)(1)) requires that employersprovide a workplace which is “freefrom recognized hazards that are . . .likely to cause death or serious physicalharm to employees.” OSHA has said thatit will rely on the General Duty Clauseto protect workers from pandemic fluand will adjust its inspection priorities toensure that employers are following itsguidelines should a workplace pandemicbecome a reality. OSHA’s recommendationsfor employers include:• Develop a pandemic flu plan;• Provide employees with access tothe latest flu information and educatethem as the the symptoms of influenza,including swine flu;• Review sick leave policies to ensurethat they are designed to encourageemployees to stay home, without penalty,when they have influenza-relatedsymptoms;• Allow employees to stay home tocare for sick family members;• Purchase infection control supplies(i.e., touchless garbage cans, alcoholbasedsoap/hand sanitizer, tissues,and cleaning supplies) and allow easyaccess by employees;• Educate and train employees inproper hand hygiene, cough etiquette(continued on next page)* John G. Kruchko is a Partner with the Management Labor & Employment Law Firm of Kruchko & Fries in McLean, Virginia; Paul M. Lusky is aPartner with the Firm. For more information, please contact Mr. Kruchko at (703) 734-0554 or JKruchko@KruchkoandFries.com, or Paul Lusky at(410) 321-7310 or PLusky@KruchkoandFries.com. This article is published for general information purposes, and does not constitute legal advice.

13 VAB NEWSLETTER OCTOBER 2009(continued from previous page)and social distancing techniques (reducingthe frequency, proximity, andduration of contact between people);• Consider the use of respirators orsurgical masks to curtail the spreadof infection;• Frequently clean surfaces and itemsthat are likely to have frequent handcontact.If flu conditions become severe,the CDC recommends that employersconduct active screening of employeeswhen they arrive at work and requirethem to go home if they have flu-likesymptoms (fever, cough, runny or stuffynose, headaches, muscle aches, sorethroat, chills and fatigue). Developing aleave policy that encourages employeesto stay home when they have flu symptoms(especially if it involves paid leave)or actually requiring an employee withsymptoms to leave work has been themost controversial of the recommendations.The most frequently asked questionson this issue are as follows:Do I have to pay employees who don’treport to work because of the flu or if theyare sent home because they have flu symptoms?OSHA wants employers to implementleave policies that encourageemployees to stay home, without beingpenalized, when they have flu symptoms.That does not mean, however,that an employer needs to provide paidsick leave to employees out with flu.Non-exempt employees need only becompensated for time actually worked.Federal and state wage and hour lawsdo not require employers to providepaid sick leave. Exempt salaried employeesmay be entitled to compensation,however, if they work any part ofthe day before leaving work because ofillness. One final thought on this issue- - although paid leave is not required,employees are not likely to self-reportflu symptoms if they think they will besent home without pay.Can I ask an employee to work even ifhe has flu symptoms?Employers who discourage employeesfrom using sick leave are actingcontrary to OSHA recommendationsand could be found to be violating theGeneral Duty Clause because they arenot protecting their employees from seriousillness. Employers should not takeactions that increase the risk of infectionto other employees. Also, depending onthe severity of the illness, an employeewith the swine flu may have a serioushealth condition that qualifies for leaveunder the Family and Medical Leave Act(“FMLA”). An employer covered by theFMLA risks violating the Act if it refusesto let an employee exercise his/her leaverights under the Act. Therefore, it is bestto let the employee with flu symptomsgo home.If an employee with flu symptomsmisses work because of his illnessbut does not see a doctor, can we counthis absence as an occurrence under ourabsenteeism policy?Penalizing an employee for anabsence because of flu symptoms isagain contrary to OSHA’s Guidance.Nevertheless, if an employer has toexcuse the absence of every employeeout with a sore throat and a stuffy nose,the attendance policy will be prettyuseless, not to mention ripe for abusefrom employees who may want to takeadvantage of the relaxed standard. Oneway to solve this dilemma is to notifyemployees that absences because of flu orflu symptoms will not be counted as anoccurrence under the absenteeism policyif the symptoms are verified by a doctor’snote. This procedure will prevent misuseThe Virginia Department of Healthhas kicked off a statewide mediacampaign and vaccination programfor the H1N1 flu virus, vaccinatingseveral members of the designatedpriority groups and unveiling a broadpublic awareness program designedto encourage Virginians to get vaccinatedagainst the potentially lethalstrain of flu.“The first doses of the vaccine arenow available in Virginia,” said Dr.Karen Remley, Virginia’s health commissioner,.“However, while we areconfident that we will have a sufficientamount for every Virginian who wantsa vaccine to get one, we are asking thosein the priority groups to be first in lineto get protected against this highlycontagious flu strain.”Dr. Remley and the Virginia Departmentof Health are strongly encouragingall Virginians to get vaccinatedof the sick leave policy and underscorethe employer’s efforts to maintain a safeworkplace by encouraging employees toself-identify any potential case of the fluby going to the doctor.One of my employees claimed he contractedthe swine flu at work. He says hewill file a workers’ compensation claim. Howshould we respond?Many state workers’ compensationstatutes provide compensation for absencescaused by occupational diseases;i.e., illnesses contracted in the courseof employment. The employer shouldfile a First Report of Injury form for anemployee determined to file a workers’compensation claim for a flu-relatedabsence. The challenge for the employeewill be proving he contracted the flu virusat work rather than from contact frompersons outside employment.There are numerous legal issues thatcan arise from an employer’s responseto the predicted flu pandemic. Becauseof OSHA’s increased attention to thisissue and the value prevention can havefor the efficiency of business operations,employers are advised to be proactiverather than passive in responding to theH1N1 virus. v©2009 Kruchko & FriesStatewide Campaign Promotes Vaccinationagainst the H1N1 flu. She noted thatthe vaccine is extremely safe, with therisks associated with the flu itself faroutweighing any potential risks relatedto the vaccine. She said that broaderavailability of the vaccine is expectedin November.As part of its campaign to urgecitizens to get the vaccination, VDHhas prepared an extensive mediacampaign, which will include publicservice television and radio spots,transit, Internet-based and cinemaadvertising. The campaign carries thetheme “H1N1Get1. It’s up to you tofight the flu.”A special Web site, www.H1N1Get1.com also has been set up to provide upto-dateinformation about the virus andthe places where vaccinations are availablethroughout the Commonwealth.Information also is available by calling1.877.ASK.VDH3. v

VAB 14 VIRGINIA NEWSLETTER ASSOCIATION OCTOBER OF 2009 BROADCASTERS14SUBMIT JOBSSubmit to VAB Newsletter:• Please email the listing directly toderek.breen@easterassociates.com.• Be sure to include your station ID orcompany name, information on how theapplicant can apply and where to sendthe applications materials.Submit to the Online Job Bank:• Go to www.vabonline.com• Click on “Member Area” (top rightmenu)• Log in. (If you do not know your loginor password, please email christina.meyer@easterassociates.com)• Upon login, you will see a menu at left.Select “Your Jobs.” From here you canenter new jobs, edit jobs or delete jobpostings that have been filled.• Don’t forget, members can also viewresumes by clicking on the “ResumeBank!”News ReporterOCTOBER JOB BANKThe successful applicant will be able to shootvideo and edit in a non-linear environment.Extensive knowledge of video compositionand file editing, news reporting and writing,and be able to produce story ideas. Experience:At least one year of professional experienceas a reporter, preferably in a smallermarket where they have been able to getsome anchor expericence as well. Requirements:Must be able to work under deadlinepressure, be on call 24-hours and work aspart of a team. A college degree in BroadcastJournalism or equivalent is preferred.EOE/M/F/H/V. WCYB-TV maintains a drugfree workplace. Send resumes/tapes to: HumanResources, WCYB-TV, 101 Lee Street,Bristol, VA 24201. EOE/M/F/H/V.Video Journalist/TV Assignment EditorWRIC-TV8 is looking for a Video Journalistwho can shoot, edit, and write. The idealcandidate must be able to work independentlyand produce innovative content for allnewscasts. One year shooting and reportingexperience preferred. Candidate willalso work the assignment desk two days aweek generating story ideas and maintainingweb content. Please send non-returnableDVD and resume to: WRIC TV8 PersonnelDepartment, 301 Arboretum Place, Richmond,VA 23236-3464 or email your resumeto personnel@wric.com. NO phone callsplease. EOE.Account ExecutiveAccount Executive position in Sales Department.Advertising sales background helpful.Send resume to: WRIC TV8 Personnel Department,301 Arboretum Place, Richmond,VA 23236-3464, or fax your resume to (804)330-8881, or email your resume to personnel@wric.com.NO phone calls please. EOE.Master Control OperatorPart-time/Overnight/Weekends - Ability tomaintain on-air integrity, while being able tohandle an extensive work load in a sometimesstressful environment solely. Provideimmediate and appropriate responses toemergency situations that may affect onair.Monitor all technical aspects of station.Provide discrepancy report documentationand take appropriate action to endure theaccuracy of each log. Perform date entry anddatabase management. Troubleshoot technicaland operational reports. Must be able tooperate multi format VTR’s as well as routingvideo and audio signals, Omneon server, VCIautomation and extremely organized andmulti-task oriented. Troubleshoots technicaldiscrepancies on dubs and on-air. **This isnot considered an IT or an IS position. Minimumof two years college or technical schooltraining in either electronics or television production,or prior experience at a commercialtelevision station preferred. Send resume to:WRIC TV8 Personnel Department, 301 ArboretumPlace, Richmond, VA 23236-3464, orfax your resume to (804) 330-8881, or emailyour resume to personnel@wric.com. NOphone calls please. EOE.Anchor/ReporterWRIC-TV8 is looking for an energetic Anchor/Reporter.The ideal candidate will bean outstanding communicator with strong livereporting skills and excellent computer knowledge.You must be able to think on your feetand be willing to go unscripted. You will bea key contributor to our successful morningnews. Two or more years reporting experiencepreferred. Please send non-returnableDVD and resume to: WRIC-TV8 PersonnelDepartment, 301 Arboretum Place, Richmond,VA 23236-3464, or fax your resumeto (804) 330-8881, or email your resume topersonnel@wric.com. NO phone calls please.EOE.News PhotographerWVEC-TV is looking for two creative andenergetic photographers with an understandingof NPPA principles. Candidates shouldhave at least one year experience shootingand editing news. One year working/operatinga microwave truck necessary. Candidatesshould be flexible in work schedule to providemaximum news coverage and work a specificon call schedule. Live in a great region,right on the ocean and cover stories in verycompetitive news market. Send resume tape(DVD, Beta SP or SX).Persons interested in submitting an applicationfor the position identified above shouldcontact or call: Tony Church, Chief PhotographerPhone: 757-628-5849 WVEC-TV,613 Woodis Avenue, Norfolk, Virginia 23510.WVEC is an Equal Opportunity Employer.Sales Account ExecutiveWTVZ, in Norfolk, has an awesome opportunityfor an enthusiastic, highly motivatedSales Account Executive to sell commercialadvertising time to local businesses andadvertising agencies. Your responsibilitieswill include: Handle outside sales calls,prospect customers and lead generation,attract and close advertisers to sell productsand services via TV, provide input on salespromotion ideas to sales management, retaincurrent business and develop new businesscontacts, and present marketing/advertisingideas to area businesses. Qualifications:Strong organizational, written, and presentationskills, outside media sales experiencepreferred, but not required. You must applyonline to be considered, www.sbgi.net.Equal Opportunity Employer and Drug FreeWorkplace!Account ExecutivesWWDE-FM, WPTE, WNVZ-FM AND WVKL-FM have full-time positions available foraccount executives. The qualified candidateswill be responsible for selling and servicingdirect clients, agencies, developing newbusiness accounts, coordinate production ofcommercial spots with production managerand client, and create and present ideas toclients to achieve their advertising goals.The candidates will also be responsible forcollection of invoices from accounts. Mustbe organized, idea-oriented and possessstrong communication and presentation skills.Entercom Norfolk is an Equal OpportunityEmployer and offers a competitive compensationpackage. Email resume to cmorelli@entercom.com. EOE.On Air PersonalitiesEntercom Norfolk is looking for future airpersonalities both full and part time. 3 to 5years experience is necessary for full timepositions and some experience is necessaryfor part time positions. Full time air personalitieswill also be expected to be proficient inpublic appearances, voice work and commercialproduction. Entercom Norfolk is an EqualOpportunity Employer and offers a competitivecompensation package. Send demotapes or CD’s, thoughtful cover letters andresumes to: Entercom Norfolk, Don Londo,Operations Manager, 236 Clearfield Ave.,#206, Virginia Beach, VA 23462.Part Time Promotions AssistantWWDE-FM,WPTE-FM,WVKL-FM andWNVZ-FM have part time positions availablefor promotions. The qualified candidates willbe responsible for setting up remote broadcasts,driving station vehicles, interacting withaccount executives, listeners and clients,handling heavy equipment, and maintainingpromotional equipment. The qualifiedcandidates MUST BE 21 YEARS OR OLDER, have a flawless driving record, be outgoing,organized, possess strong communicationskills, available nights and weekends andable to handle heavy equipment without problems.Email resume to cwilson@entercom.com. EOE.To view the lastest listings visit www.vabonline.com and click “Careers.”

15 VAB NEWSLETTER OCTOBER 2009OCTOBER JOB BANKDigital Sales Account ExecutiveEntercom Norfolk is looking for a DigitalSales pro to sell our portfolio of digital assetsand help oversee the executive of thesetransactions. The ideal candidate has experiencein the media/internet industry and canstep in and drive the company’s revenuegeneration with online assets. They will havethe ability to pitch and close business. Theywill be able to comfortable in communicationabout the latest online technology includingstreaming audio and video/viral/search/richmedia/mobile and SMS marketing technologies,methods and best practices. Priorexperience with an online ad network is aplus, and having an entrepreneurial personalityis a must. You should be able to expressyourself well in email, Power point, Exceland in person.RESPONSIBILITIES: Prospectingand presenting to new and existingbrands/agencies in order to exceed salesquota. Creating cross-media packages.Internal energizing and coaching of salesteam: training station salespeople and copitchingtarget clients/agencies. Involvementin digital sales execution from start to finish,including successful communication with allsales reps, station web masters, third partyand network. Manager digital media inventoryfor the market. Entercom Norfolk is an EqualOpportunity Employer and offers a competitivecompensation package. Email resume tohclevenger@entercom.com EOE.Assistant Affiliate ControllerWWBT, NBC12 seeks Assistant Controller.Successful applicant will handle accountingand finance duties for two Raycom Mediatelevision stations. Duties include budgeting,forecasting, month end closing with relatedfinancial reporting and recons, daily generalledger activity, and other related functions.Candidate must possess strong communicationskills, work well with all departments andbe skilled using server based accountingsystem and Microsoft office. Minimum 3-5years accounting experience and accountingdegree required. CPA preferred. Drug screen,background and credit check required. Sendcover letter including salary requirements andresume to: Assistant Controller, WWBT, 5710Midlothian Turnpike, Richmond, VA 23225or email tthurman@raycommedia.com. Nophone calls please. EOE M/F/D/V.Account ExecutiveCW Richmond is TV to Talk about…Blogabout…Text about…and Chat about. Weare looking for that ideal person who cantalk about the hottest shows on television tobusinesses around Richmond. CW Richmondis now interviewing for Account Executives.If you are an energetic and creative problemsolver who is not afraid of hard work, we wantto meet with you! Send resume with coverletter and salary requirements to: CW Richmond,5710 Midlothian Turnpike, Richmond,VA 23225 Attn: David Hayes or email todhayes@cwrichmond.tv. CW Richmond is anEqual Opportunity Employer.New Media Account ExecutivePrimarily responsible for generating revenuethrough selling new media advertising. TheNew Media Account Executive will prospectnew clients and call on customers directlyand indirectly through conventional and interactiveadvertising agencies. Additional responsibilitiesinclude: 1) Providing support forall new media sales processes and products,including collaboration with other Account Executivesand assisting with their new mediasales efforts; and 2) Providing direction for allnew media vision and strategy, including theestablishment of new media packaging andpricing, and process oversight for new mediaproducts, features and functionality. Applicantsmust be able to interact with local andcorporate advertisers and advertising agencies,as well as with all other WHSV departments.Ideal candidate will be results-drivenand goal-oriented, possessing a passion forsales, and should have some sales experience,with new media sales experience as abig plus. Ideal candidate will be an energeticand organized team-oriented individual withan overall positive attitude. Applicants shouldhave working knowledge of new media products,as well as Microsoft Office programs,along with the ability to perform analysisusing MS Excel. Good driving record is also amust. WHSV is a drug-free work place. EOE.Please send resumes to: Jamie Baker, 50North Main Street, Harrisonburg, VA 22802.CONTACT: Jamie Baker 540-433-9191, ext.165 jbaker@whsv.com.Radio Sales RepresentativeWe’re looking for a superior seller with a trackrecord of superior performance. MonticelloMedia is bucking the trends with consistentrevenue increases and we’re looking for topperformers who see the opportunity and arewilling to work for the payoff. The potentialis unlimited for those who hit the streets andprovide local clients with the highest level ofservice. We’re in Charlottesville, Virginia withsix great radio stations and interactive opportunitiesfor you to make money with. If you’recommitted to outworking the rest of the marketand focused on winning let’s talk soon.Send a cover letter and resume to jobs@cvillestations.com or to Sales, Monticello Media,1150 Pepsi Place #300, Charlottesville,VA 22901. Monticello is an equal opportunityemployer and a small private company that’sa great place to work.Sales AssistantMonticello Media is looking for sales supportfor a team of 10+ account executives at ourradio stations in Charlottesville, Virginia. Theright candidate will be a supreme multitaskerwith a positive attitude and team-firstapproach. Job requires candidate to haveexcellent relationship skills, to be resourcefuland positive and to have great organizationalskills. Candidate must have strong computerskills that include Word, Excel and Power-Point as well as the ability to use other inhouse systems for reporting and presentationpurposes. Send resume and cover letter tojobs@cvillestations.com or mail to Sales Assistant,Monticello Media, 1150 Pepsi Place,#300, Charlottesville, VA 22901. MonticelloMedia is a locally based company and anequal opportunity employer.Full Time Account ExecutiveSell Radio Advertising in the Washington, DCMetropolitan Area. Previous business to businesssales experience preferred. Marketingand advertising experience a plus. Compensationincludes Salary, Bonuses and Incentivesplus Health/Life/401(k). Women andMinorities encouraged to apply. Fax Resumeto 703.807.2249 or mail resume to: TomMoyer, Station Manager WAVA Radio, 1901North Moore Street, Suite 200, Arlington, VA22209.Part Time Board OperatorApplicant must have current knowledge ofdigital broadcast studio operations and becomputer proficient. Good verbal and writtencommunications skills required. Experiencein similar format preferred. Women andminorities encouraged to apply. Fax resumeto 703.807.2248 or mail resume to WAVARadio, Attn: Bob Jones, 1901 North MooreStreet, Suite 200, Arlington, VA 22209 WAVARadio is an Equal Opportunity Employer.PT Master Contol OperatorThis position is for a broadcast televisionstation. Duties will include program switchingand satellite recordings. Candidate shouldbe computer savvy. Radio board operatorsare encouraged to apply. Control Operatorexperience is helpful, but WHSV will train.Previous applicants are encouraged to reapply.Please send resumes to WHSV TV3,ATTN: Chris Maragni, 50 N Main Street. Harrisonburg,VA 22802.Webdesk Editor / New Media JournalistWavy.com/Fox43tv.com is looking for aWebdesk Editor / New Media Journalist Applicantsmust be innovative, reader-focusedand full of creativity. Daily newspaper andonline experience in design and editing,along with a track record of accurate work,is a big plus. Position will: - Ensure accurateand engaging copy - Edit video - Degree injournalism required - Daily newspaper ornews site experience required - Live, workingWeb samples and/or print pages preferred- Proficiency in Adobe Photoshop, Dreamweaver,and Basic HTML preferred - CSS,Flash and other relevant technology skills abig plus - Written and verbal communicationskills - Understanding of design for contentmanagement systems, usability and accessibilitypractice and customer focus areessential Please send resume to: MichelleCampbell New Media Manager WAVY 300Wavy St. Portsmouth, VA 23704. No Calls,please. EOE.Chief Marketing OfficerResponsible for developing and implementinga long-range corporate marketing plan workingwith the individual divisions to developtheir marketing plans. Responsible for theplanning, implementation and production ofcorporate and division marketing materials inprint, audio, video, and on WHRO web sites.Complete responsibilities and requirementsat www.whro.org/employment. EOE.

Virginia Association of Broadcasters2009 Fall Sales SeminarSelling in aRecovering EconomyHow do I get my income back?It’s a tough economy but also aNew Economy. What’s going on?Where are the opportunities?Keynote SpeakerJim TaszarekRoanoke: November 4thRichmond: November 5thwww.vabonline.com