Photo of David Oxenford

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.

Notice was published in the Federal Register today of the FCC’s changes in the children’s television rules – setting the effective date for most of those new rules as September 16. The elimination of the obligation to air three hours of children’s educational and informational programming for each digital multicast channel will expire on that

As we noted in our post yesterday, the OMB recently approved the FCC’s forms to allow for reimbursement of the expenses of LPTV and TV translator stations and FM stations (full power and low power) and FM translators caused by the repacking of the TV spectrum following the incentive auction.  This approval sets

Months ago, the FCC approved reimbursing TV translators, LPTV stations, FM stations, and FM translators that incurred costs as a result of the repacking of TV stations into less spectrum following the TV incentive auction (see our post here).  Congress last year allocated the FCC money so that LPTV stations and TV translators forced

The FCC this week issued a Notice of Apparent Liability proposing a $233,000 fine to Cumulus Media for violations of the sponsorship identification rules.  The fine illustrates not only how seriously the FCC takes its sponsorship identification rules (particularly in the context of political and issue advertising) but also the how aggressively the FCC can act for even the slightest violation of a consent decree involving a prior violation of its rules.  If the FCC catches you once in a rule violation, don’t get caught again for the same violation – and if you agree to the terms of a consent decree in connection with that first violation, by all means abide by the letter of that decree or the FCC will not hesitate to exercise its full enforcement power.

This case involves alleged violations by Cumulus Media.  Three years ago, Cumulus entered into a consent decree with the FCC agreeing to pay a $540,000 penalty after admitting that it did not include a full sponsorship identification disclosure on issue ads supporting government approval of an electrical utility project in New Hampshire (see our article here on that consent decree).  As part of the consent decree, the company agreed to a 3-year compliance program to educate its personnel about the FCC’s sponsorship identification rules, to appoint a compliance officer to oversee compliance with the rules and answer questions, and to report to the FCC within 15 days any violations of these FCC rules.  In the Notice released this week, the FCC alleged that Cumulus reported that it had in two instances aired ads without the proper identification – each set of ads running 13 times before the lack of a proper identification was caught and corrected.  In one instance, the violation was reported to the FCC within two weeks, but in the other case, it was not reported to the FCC for approximately 8 months.  Based on this instance of late reporting, and the 26 sponsorship identification violations, the FCC proposed the $233,000 fine.  How did they come up with that number?
Continue Reading

Last week, the FCC started a new proceeding through the adoption of a Notice of Proposed Rulemaking to review several restrictions that currently apply to Low Power FM stations.  While doing so, it will also review the current rules, dating from the analog television days, restricting certain FM operations in the non-commercial reserved band of the FM dial where those operations are near Channel 6 TV stations.  Comments will be due on this proposal 30 days after it is published in the Federal Register, with Replies due 15 days later.

The LPFM proposals look at a number of issues.  The Commission asks if LPFM stations should be allowed to operate with directional antennas, which are currently routinely barred given that these antennas may be more difficult to operate and maintain.  When the rules were originally adopted, there was a fear that LPFM licensees, who may not have a technical background or substantial resources for engineering support, could not maintain those antennas so as to protect other FM stations operating on the same and adjacent channels.  Similar concerns currently limit LPFM stations from using on-channel boosters to fill in holes in their service area.  The FCC asks if these prohibitions can be lifted as the LPFM industry has become more mature, allowing LPFMs to use both directional antennas and on-channel boosters without risking increased interference to other stations.
Continue Reading

The FCC’s new rules setting out a procedure to resolve complaints of interference from FM translators to full power stations will become effective on August 13. Initially, as we noted in our list of August regulatory dates for broadcasters, only the new policy allowing translators that cause interference to move to any available

Once upon a time, August was a quiet month in Washington, when everyone went on vacation. Sure, there are plenty of vacations that will happen this coming month, but it seems that regulatory activity no longer takes a break. For example, August 1 is the due date for the filing with the FCC of license renewals for all radio stations (including translators and LPFM stations) in North and South Carolina, and the filing of associated EEO forms for all full power radio stations in those states. With the renewal filing comes the obligation that these stations start airing, on August 1 and August 16, their post-filing announcements informing the public about the submission of the license renewal applications. Radio stations in Maryland, Virginia, West Virginia and the District of Columbia, who filed their renewals on or before June 2, also need to keep running their post-filing announcements on these same dates. Radio stations in Florida, Puerto Rico and the Virgin Islands, who are in the next license renewal group with their renewal applications to be filed by October 1, need to start broadcasting their pre-filing announcements this month, also to run on the 1st and 16th of the month. See our post here on pre-filing announcements.

Commercial and noncommercial full power and Class A Television Stations and AM and FM radio stations in California, Illinois, North Carolina, South Carolina, and Wisconsin that are part of an employment unit with five or more full-time employees must place their annual EEO public inspection file reports in their online public file. Links to those reports should also be placed on the home pages of these station’s websites, if they have a website. The effectiveness of these EEO public file reports, and the EEO programs of which they are a part, are being reviewed by the FCC in a proceeding started by a Notice of Proposed Rulemaking about which we wrote here. Comments on this notice asking for suggestions about how to make the EEO rules more effective are due August 21, with reply comments due by September 5.
Continue Reading

CBD has been a hot topic for media companies – trying to decipher what products are legal and which can be advertised. We have written a number of articles on CBD, hemp and other cannabis advertising issues (see, for instance, our articles here, here, and here). Each of these articles highlights the confusion about the current state of the law on CBD, not just in the media, but across all industries. Some recent government correspondence indicates that clarity on the legality of CBD production may be coming soon, but that any resolution about the health claims that can be made about CBD products and their use in food and drugs may still be years away. These letters also show that the advertising community risks government concern if advertising does not recognize the continuing regulatory concerns about CBD health claims and its use in food and drugs.

The correspondence that most directly addresses marketing issues is this Warning Letter from the FDA to a CBD distributor in which the FDA warned the distributor about health claims made about its products in the promotional materials that it was distributing online. Many seemingly generic claims about the benefits of CBD were singled out as a source of concern, along with many claims that were more specific citations to studies suggesting that CBD was helpful in treating defined ailments. From the tone of the FDA letter, claims about third-party findings on specific health benefits should not be included in promotional materials. Nor should the more generic claims like these cited in the letter as being problematic:

  • “CBD oil is becoming a popular, all-natural source of relief used to address the symptoms of many common conditions, such as chronic pain, anxiety . . . [and] ADHD.”
  • “The Benefits of CBD Oil for ADHD . . . It’s not unusual for people with ADHD to feel anxious and on the edge. CBD is known for its anti-anxiety properties that can promote relaxation and stress relief. It can also help to restore focus and ability to concentrate on specific tasks, as well as reduce impulsivity.”
  • “CBD can successfully reduce anxiety symptoms, both alone and in conjunction with other treatments.”
  • “CBD oil can be used in a variety of ways to help with chronic anxiety.”
  • “Some of the most common reasons to use CBD oil include . . . Chronic pain . . . Mental conditions like anxiety, depression, and PTSD . . ..”
  • “CBD . . . can be used to help manage a wide range of health conditions, such as . . . Anxiety and depression . . . Chronic or arthritic pain . . ..”
  • “Some of the most common reasons to use CBD oil include . . . Chronic pain . . . Mental conditions like anxiety, depression, and PTSD . . ..”

Another issue that arises in advertising CBD and other hemp products is whether any of these products are being legally produced. An interpretative opinion from the USDA sets out under what circumstances the production of CBD products is currently legal in the US. This opinion sets out that the only legal hemp products being produced at this point are the limited products being produced for research purposes under the 2014 Farm Bill. As we wrote here, the government has previously stated that it did not seem to think that commercial production was authorized under the 2014 Bill, yet some growers operating under these pilot plans seem to be relatively big businesses. Otherwise, hemp products including CBD can only be grown pursuant to provisions of the 2018 Farm Act with a USDA license or one issued by a state or tribal nation under a plan approved by the USDA – and the USDA has not yet approved any such plans nor even adopted the framework under which they will evaluate such plans. According to the USDA website, the USDA intends to have regulations in effect by Fall 2019 to accommodate the 2020 planting season. If a state or tribal nation submits a plan before that time, USDA will not review or approve the plan until the regulations are implemented. Thus, there appears to be a very limited universe of hemp products that are currently legally produced and thus can be used for making hemp-derived CBD.
Continue Reading

Last year, as we wrote here, the FCC adopted a number of new rules regarding its emergency communications practices using the EAS system. At that time, soon after all the attention that had been given to the EAS alerts about the false Hawaii missile attack, the FCC adopted rules requiring stations to report to the FCC if they participated in an EAS alert about a fake emergency. Also, the FCC authorized EAS officials to conduct EAS tests using the real event codes for particular emergencies, but only after taking precautions to warn EAS-participating stations and the public that these tests were only tests, and not real emergencies. The effective dates of those new rules were put on hold pending review of the Office of Management and Budget under the Paperwork Reduction Act. According to a Federal Register publication this week, they have now been approved, and thus these rules are now in effect.

The FCC also approved a requirement for state emergency coordinators to file with the FCC in a new electronic database all Statewide EAS plans and any updates to those plans. The OMB also approved the data collection requirements of that rule but the rule will not become effective until one year after the FCC announces that it has created the electronic database to receive these updated plans. We recently noted that the FCC last month published links to statewide plans, and we urged state coordinating committees and participating broadcasters to review these plans to make sure that they have not become out of date with the passage of time. Given the upcoming new filing obligations, it would appear that this review is even more important.
Continue Reading