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David Oxenford

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David Oxenford represents broadcasting and digital media companies in connection with regulatory, transactional and intellectual property issues. He has represented broadcasters and webcasters before the Federal Communications Commission, the Copyright Royalty Board, courts and other government agencies for over 30 years.

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Here are some of the FCC actions of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC’s Enforcement Bureau entered into negotiated settlements with two Boston-area pirate radio operators who admitted to illegal operations and

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July is usually a month of family vacations and patriotic celebrations.  While the pandemic has seen to it that those activities, if they happen at all, will look different than they have in years past, there are plenty of regulatory obligations to fill a broadcaster’s long, summer days.  Here are a few of the dates and deadlines to watch for in July, and a quick reminder of some of the significant filings due right at the beginning of August.

On or before July 10, all TV and radio stations must upload to their public file their Quarterly Issues/Programs Lists for the 2nd quarter (April, May and June).  Stations that took advantage of the FCC’s extension of time to file their 1st quarter (January, February and March) list must also by July 10 upload that list to their public file.  As a reminder, the Quarterly Issues/Programs Lists are a station’s evidence of how it operated in the public interest, demonstrating its treatment of its community’s most significant issues.  The FCC has shown (see here and here) that it takes this requirement seriously and will fine stations, hold up license renewals, or both if it finds problems with a station’s compliance.  For a short video on complying with the Quarterly Issues/Programs List requirement, see here.…
Continue Reading July Regulatory Dates for Broadcasters: End of the TV Repacking, Quarterly Issues/Programs Lists, Children’s Television Reporting, EEO, Carriage Election Public File Information Deadline, LPTV Settlement Window, Rulemaking Comments and More

Here are some of the regulatory actions of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations:

  • FEMA announced that it has canceled the 2020 test of the Integrated Public Alert and Warning System (IPAWS), which is

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We recently wrote about a case where a Judge in the US District Court for the Southern District of New York found that the website Mashable had a license to use a photo accessible from its site that was actually an embedded photo coming from the servers of Instagram.  In that decision, the Court found that, under Instagram’s Terms of Use, the photographer, by posting photos on Instagram, gave it the right to sublicense the photo to others, which included Mashable who embedded it using an API from Instagram.  This week, the Court issued an Order reconsidering its decision – based on it being pointed out that, for the claim of a sublicense to be sustained, it had to be clear that a license was in fact being issued.  The Court reviewed Instagram’s Platform Policy which made general statement about it helping “publishers discover content, get digital rights to media, and share media using web embeds.”  The Court concluded that, without further evidence, it was unclear that this language alone granted a sublicense to Mashable, and therefore reconsidered its decision to dismiss the photographer’s infringement claim.

This case will go on to look at whether Instagram in fact intended to give Mashable a sublicense to use the photo through the use of the API.  But it does suggest that sites that use embedded media from a social media platform on the assumption that the social media site, by providing other sites the ability to embed their content are in fact sublicensing that content, should proceed with caution.  Those companies looking to post embedded content on their sites should carefully review the terms of use of the social media site to see if a sublicense is in fact being conveyed.  In our last article on the case, we noted that this decision was contrary to another decision in another case (see our article here on that other case) that found a site owner could be liable for embedded content that was accessible from its site.  We noted that there were factual differences in the two cases.  This reconsideration requires even more caution in the use of embedded content from social media sites, particularly in light of the conflicting precedent.…
Continue Reading Court Reconsiders Decision About Website Getting License to Embedded Photo from Instagram Terms of Use

Should broadcasters be able to originate programming on FM translators?  Playing off the proposal to allow limited amounts of programming on FM boosters – basically the insertion of local ads, news, or emergency alerts – in the zonecasting proposal on which the FCC took comments earlier this year (see our summary here), a group of broadcasters has taken the proposal one step further, and asked if translators (including those FM translators rebroadcasting AM stations) should not have the same rights proposed for boosters.  Comments on this proposal (available here) are due July 23.

These comments were originally filed in connection with the zonecasting proceeding (see our summary of the comments here).  But they go beyond the zonecasting proposal for limited amounts of origination programming on boosters, and seek to expand the amount of time that translators can originate programming different than their primary stations.  The advocates propose not just the substitution of short messages, but to allow translators to originate as much as 40 hours per week of programming different than that offered on their primary stations.  And the proposal also suggests that translators be allowed to be located within the primary station’s 45 dbu contour, rather than within the 60 dbu contour of an FM primary station as now required (playing off the 45 dbu contour now being used as the one in which primary FM stations can claim protection from interference from FM translators – see our article here).…
Continue Reading FCC Seeking Comment on the Origination of Programming by FM Translators

Here are some of the legal and regulatory actions of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC released a Second Report and Order and Order on Reconsideration regarding Next Gen TV (ATSC 3.0). The Report and Order provides guidance on how the Commission will evaluate petitions for waiver of the local simulcasting rules for broadcasters deploying ATSC 3.0 who cannot find a partner station to broadcast its signal in the current transmission standard, declines to allow broadcasters to use vacant in-band channels for voluntary ATSC 3.0 deployment, and clarifies that the “significantly viewed” status of an ATSC 3.0 station will not change when that station moves its ATSC 1.0 simulcast channel to a host facility.  The Order on Reconsideration denied petitions challenging aspects of the Commission’s 2017 Next Gen TV order, including issues dealing with the local simulcast requirement, the application of retransmission consent rules, patent licensing issues, and sunset of the obligation to use the current transmission standard for ATSC 3.0 (that sunset allowing the new transmission mode to evolve over time without the need for FCC action).  (Second Report and Order and Order on Reconsideration)
  • The Commission granted a waiver to a Jacksonville, Florida TV station, allowing it to complete its post-incentive auction move to a new channel by September 8, beyond the current July 3 end of Phase 10 of the repacking of the television band when all TV stations were to have moved to their post-transition facilities. Because of issues related to COVID-19 and other technical matters, the Commission granted this extension and authorized its Media Bureau to grant similar relief to other stations suffering from similar delays (Order)
  • Two members of Congress wrote a letter to FCC Chairman Ajit Pai urging the Commission to “halt any increases to annual regulatory fees due in 2020 for broadcast licensees.” Ann McLane Kuster (D-NH) and Chris Stewart (R-UT) wrote in their letter that this action requires no congressional action and would help alleviate some of the economic hardship suffered by stations due to the COVID-19 pandemic.  The Members noted that broadcasters are a critical component of the pandemic response by, among other things, informing and educating Americans about public health guidance.  (Letter).  The NAB, as well as a group of state broadcast associations, also filed comments at the FCC opposing the FCC’s proposal to increase broadcast regulatory fees, arguing that broadcasters’ fees should not increase in relation to the fees paid by other industries regulated by the FCC, particularly as broadcasters have been so hard hit by the economic fallout of the pandemic. (NAB Comments and State Association Comments)
  • Last Monday, the reply comment period closed in the FCC’s Significant Viewing proceeding. Designation as a significantly viewed station has implications for determining whether a cable or satellite TV system will carry a TV station in an area that is not part of its home market.  For an in-depth look at what the FCC seeks to resolve through this proceeding, see this post at the Broadcast Law Blog.  (Reply Comments)
  • On Tuesday, the Senate Commerce Committee held a hearing considering the re-nomination of FCC Commissioner Michael O’Rielly to a new five-year term. The Commissioner, in response to a question, noted that he believes the FCC’s and DOJ’s current media competition rules are “problematic,” and that he hopes to work with DOJ to shift its narrow view of the competitive marketplace where it does not recognize that broadcasters  don’t just compete with other broadcasters, but instead directly compete with a wide range of other media companies, including digital media outlets.  (Opening Statement and Archived Video)(see Broadcast Law Blog articles here and here on the competition between broadcasters and other media and how the assessment of the definition of the marketplace is important to the evaluation of broadcast ownership limits)
  • The Enforcement Bureau acted last week against two pirate radio operations, one in Pennsylvania and one in Arkansas. These actions are reminders that broadcast operators must hold a valid license to operate and that the FCC will pursue illegal operations.
    • In the first case, the Enforcement Bureau shut down a station that was broadcasting on 90.7 MHz and 91.5 MHz from Stroudsburg, Pennsylvania. The operator, as part of a consent decree, admitted to the unauthorized operation of the station, agreed to pay a $1,500 civil penalty, and agreed to not operate an unauthorized station in the future.  The PIRATE Act, signed into law in early 2020, gives the FCC authority to fine pirate radio operators up to $100,000 per violation (with a $2 million cap), but, in this case, the operator claimed an economic hardship, which persuaded the FCC to lower the fine to $1,500.  (Order and Consent Decree)
    • In the second case, the Enforcement Bureau issued a $10,000 fine to an operator for the unauthorized operation of a radio station on 103.1 MHz in Alma, Arkansas. (Forfeiture Order)
  • The US Court of Appeals upheld a lower court order throwing out a rule adopted by the Department of Health and Human Services that would have required all TV advertising for prescription drugs to state the wholesale price of the drug. Based on these court decisions, this additional information will not need to be added to the disclaimers that these ads already contain. (Court Decision)(Broadcast Law Blog article on the decision)

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Continue Reading This Week at the FCC for Broadcasters: June 13, 2020 to June 19, 2020

It appears that there will be no requirement imposed on television and cable ads to include disclosures revealing the wholesale prices of prescription drugs in any advertising for those drugs.  We wrote about the decision from the US Department of Health and Human Service to impose such a requirement on television ads here, and…

Here are some of the FCC regulatory and legal actions of the last week—and a congressional action in the week ahead—of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC on June 9 held an Open Meeting where it unanimously adopted a Declaratory Ruling and Notice of Proposed Rulemaking regarding Broadcast Internet services. The Commission defines Broadcast Internet broadly as IP-based services delivered over broadcast TV spectrum.  The Declaratory Ruling clarifies that the lease by a party of ATSC 3.0 spectrum on multiple local TV stations for Broadcast Internet services does not count as an attributable interest under the current TV ownership rules as would an LMA or similar programming agreement on multiple stations.  The Notice of Proposed Rulemaking seeks comment on how industry foresees using Broadcast Internet services and what FCC rule change could encourage innovation and use of these services.  Comments and reply comments on the Commission’s proposals will be due 30 days and 45 days, respectively, after publication in the Federal Register.  (News Release) (Declaratory Ruling and Notice of Proposed Rulemaking) (Broadcast Law Blog)
  • Thirty-five radio stations received the news last week that they were randomly selected by the Enforcement Bureau for an audit of their compliance with the Equal Employment Opportunity rules. These periodic audits are good reminders to broadcasters that the Enforcement Bureau sees EEO compliance as a priority and that the Bureau can sanction stations for non-compliance.  Even if your station was not selected to be audited, you can still use the publicly-released audit letter as a checklist to make sure your station is complying with all applicable EEO rules.  The FCC audits about 5% of stations each year, so your time may come soon.  (Public Notice) (Broadcast Law Blog)
  • New technical rules for low power FM stations and the relation between reserved-band noncommercial FM stations and TV channel 6 were published last week in the Federal Register, setting the effective date for many of the new rules. New rules, including permission for LPFM stations to use boosters and the waiver process for NCE stations seeking a change in facilities near a Channel 6 TV station, become effective July 13.  Other new rules, including the broadening of the definition “minor change” and the expansion of the permissible use of directional antennas by LPFMs, require additional government action and likely will not be effective for several months.  (Federal Register) (Broadcast Law Blog)

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Continue Reading This Week at the FCC for Broadcasters: June 6, 2020 to June 12, 2020