Coronavirus and Broadcasting

Credits: My firm, Womble Bond Dickinson (US) LLP has created a COVID-19 task force to provide information and support to our clients and neighbors during the current, unprecedented COVID-19 pandemic. I am honored to be a contributor on that task-force. While I have added some material targeted for broadcasters, much of this article is taken from a message I created and is the work product of our entire team.

It seems a moment barely passes before we hear that about another state or community issued directive to shelter-in-place. While many non-essential businesses are closed by these orders in an effort to combat the spread of COVID-19, others are considered “essential” that may, or are encouraged to, stay open during the crisis to provide for “essential” needs of the public in combatting the pandemic. As of March 23, 2020, there have been state of emergency declarations in all 50 states, and in all populated American territories because of the COVID-19 pandemic.

Generally, shelter-in-place orders adopt or reference the US Department of Homeland Security, Cybersecurity & Infrastructure Security Agency (CISA) issued Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response [Download PDF here] The CISA Memorandum is only advisory in nature and it is critically important that each business examine the shelter-in-place order governing its state or local community. While states have taken different approaches on how closely they follow the CISA list, nearly all follow the model in identifying communications and information technology as essential. CISA specifically identifies these workers as essential:

• Workers who support radio, television, and media service, including, but not limited to front line news reporters, studio, and technicians for newsgathering and reporting.
• Engineers, technicians and associated personnel responsible for infrastructure. construction and restoration, including for fiber optic cables.
• Installation, maintenance and repair technicians that establish, support or repair service.
• Workers who support Broadcast Operations Control Centers.

Past natural disasters have proven the essential value of maintaining broadcast operations to provide critically needed information to the local population in conjunction with other forms of media, and most particularly when other media are no longer able to function. In a 2013 address to the Missouri Broadcasters Association, then Commissioner Pai recalled the critical role that broadcasters play when disaster strikes, citing examples such as local radio and television stations warning residents when severe weather threatened central Oklahoma saving more than a few lives when an EF-5 tornado barreled through Moore, Oklahoma and the catastrophic tornado in Joplin. When mobile phone service and the Internet were all but wiped out, broadcasters led provided around the clock uninterrupted coverage for nine consecutive days, including lifesaving disaster relief information and connecting people in need with others who could help.

When faced with a shelter-in-place order or a state’s COVID-19 mitigation initiative, essential service businesses must determine what options are available to maintain their operations (adjusted for COVID-19 risks), or how to reduce operations except for specified activities necessary to provide their essential service while mitigating danger through remote working (commonly referred to as “minimum basic operations”), or, if necessary, closing for a period of time. The CISA Memorandum notes the importance of balancing maintenance of critical infrastructure business functions with COVID-19 precautions:

Note that state closure orders typically include social distancing requirements for essential businesses, and may also reference and mandate compliance with OSHA/HHS Guidance on Preparing Workplaces for COVID-19, which is important source document for COVID-19 precautions in essential workplaces. As essential business employers, broadcasters should establish an education and logistics support team to allow critical functions to be performed while minimizing exposure among employees required to perform their essential functions. For example, in consultation with Governor DeWine, the Ohio Department of Health included in its shelter in place order a requirement for essential businesses to comply with defined social distancing requirements, designate six-foot distances for employees to maintain appropriate distances with signage or tape, and instructions on how to use hand sanitizer and sanitizing products. Already we have seen examples where news interview show are broadcasting with video conferencing rather than in-person, face-to-face discussion and in-studio production to empty audiences. As noted, these type of social distancing precautions, are typical requirements of state closure orders that allow maintenance of essential business operations.

Note also that companies that support the operations of exempted businesses may also be considered “essential,” although most of the state orders have yet to fully embrace the supply chain concept in support of specific “essential businesses” to operate. If your operation relies on support of independent contractors, there’s a good argument that they may be deemed an “essential” business, as well.

Challenging the Orders

If faced with an adverse decision either failing to designate a station, or a specific activity or function of the station as essential, the station may decide to challenge the order. The power to issue such orders are state-specific and are based on a state’s constitutional, statutory, and regulatory frameworks. They must be reviewed on a bespoke basis by anyone affected that wishes to understand their application, enforcement mechanisms, and judicial review availability and proceedings. There are some general characteristics, however, that provide a starting point.

Typically, an isolation or quarantine order is designed to address the outbreak of a communicable disease or condition caused by an infectious agent – when the occurrences of a communicable disease exceed the usual number of cases. The authority of health directors or similar officials to issue such orders is generally limited to severe circumstances: when public health is endangered, when all other reasonable means for controlling the problem have been exhausted, and there are no other less restrictive alternatives.

Isolation authority usually gives an official the authority to issue orders limiting the freedom of movement or action of a person if they have (or are reasonably suspected to have) a listed communicable disease or condition.

Quarantine authority usually gives an official the authority to issue orders limiting the freedom of movement or action of a person who has been exposed to (or is reasonably suspected of having been exposed to) a listed communicable disease.

Some states also provide for health directors to engage in surveillance of people with communicable diseases until there is no longer a threat to public health posed by the people surveilled. Many also give health directors the authority to limit freedom of access to locations thought to be contaminated with an infectious agent. Ignoring an isolation or quarantine order or other state of emergency declaration during the period of emergency may be a violation of state law. With the courts closing or delaying cases, challenging an order will be difficult and not quickly resolved.

Inform your workforce about your “essential business” status, but do not encourage them to defy law enforcement – they should have a number to call within the company should they encounter any difficulty getting to work or performing necessary “essential” tasks outside the workplace.

Management and employees should be aware that the U.S. Congress recognized the essential nature of broadcasting in times of crisis. Under 42 U.S.C. § 5189e, (a provision of the Disaster Relief and Emergency Assistance Act) radio and television broadcast, as well as owners and operators of towers, are “essential service providers” that must be ensured access to its facilities in a federally declared emergency. In Section 302 of RAY BAUM’s ACT of 2018 (enacted as Division P of The Consolidated Appropriations Act, 2018), Congress specifically included broadcasting and cable to ensure them access to their facilities during federally declared emergencies, such as the COVID-19 declared emergency. As DHS recognized in a letter to various broadcast associations, “This means that essential broadcast station personnel should be allowed access to their studios, transmitters, towers and other places of business for purposes of staying on the air.”

Pursuant to Section 5189e, CISA, in connection with the COVID-19 emergency, has made available two generic assistance letters for the communications sector, asking that the bearer be “extended any courtesy” covering (1) access to facilities and (2) the provision of fuel.

In describing these letters, the Pennsylvania Broadcasters Association noted that:

These may be used to help facilitate access to your studios and transmitters. . . .
Please note that the NCC [CISA National Communications & Coordination Branch] provides these letters as a courtesy to help communications providers access their facilities as needed to maintain continuity of service. That said, according to the NCC, state/local authorities retain final discretion on matters of local public safety, access and related issues. Also, the COVID situation is unprecedented so the reaction of local emergency authorities to the letters may be difficult to predict, particularly in states with few hurricanes and other emergencies for which DHS has issued similar letters, and states where broadcasters have not yet been designated as a “first informer.”

Familiarize all employees with the NAB Caronavirus Toolkit, available at https://www.nab.org/coronavirus/default.asp. The toolkit includes information for stations on operation resources, editorial guidelines, broadcast-ready PSAs and examples for application to the station’s social media platforms along with tools in Spanish. Make certain that all employees carry proof of their identity and proof of their employment. Also determine whether other state or federal agencies may have made available assistance letters for your particular industry sector that could assist your employees in performing their functions. CISA has made available generic assistance letters for the communications sector, asking that the bearer be “extended any courtesy” to access facilities or be provided fuel. Obtain copies of the CISA Access Letter and the CISA Fuel Letter and provide copies to all station employees. They can be downloaded at the NAB Caronavirus Toolkit website at the bottom of the Station Operations Resources page.

Documenting that you are essential

Be ready to demonstrate clearly that you are implementing procedures that comply with OSHA/HHS Guidance on Preparing Workplaces for COVID-19 or onsite workers – for example, 10 or fewer people in any one space (including creating separate break rooms to reduce gathering); six feet of separation if at all possible; regular sanitizing of work areas and cafeterias; and sending people home who are symptomatic. Make sure to document the precautions you are taking.

What to do if you are closed

If you have not already done so, prepare contingency planning in case a shelter- in-place order prevents your business from operating or your workers from reporting for work. A shelter- in-place order may restrict the availability of your workforce even if you are an “essential business.” Some employees may not feel safe coming to work or may be unable to commute due to public transportation and travel restrictions

Also continue to document your business losses related to COVID-19 for use when state or federal benefits are available or for insurance claims. In the coming weeks, monitor for state and federal aid packages that may be implemented, and consider being ready to apply as soon as possible. Consider whether business loans or other credit options are viable and available to your business.

Check any business interruption insurance coverage you may have for application to this crisis. Check with your agent now to understand your business disruption policy, how it works and what it protects, and how to make a claim when necessary. If the closure will cause you to breach your contractual obligations, talk to counsel about force majeure and other contractual defenses.

Firm Resources

Our firm has created a resource page for help in “Navigating the Legal Challenges of COVID-19". Available there are recordings of webinars that discuss many of the legal issue employers need to consider including, among other, employee matters including sick leave, paid leave, tax credits and other general issues such as privacy and cybersecurity, contracting during the crisis and force majeure and contract defenses. You can subscribe there for continuing updates on the COVID-19 crisis

This column is provided for general information purposes only and should not be relied upon as legal advice pertaining to any specific factual situation. Legal decisions should be made only after proper consultation with a legal professional of your choosing.