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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.

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

  • The FCC wants to refresh the record on its collection of information about the race and gender of broadcast employees.

While the regulatory deadlines in August may be a bit lighter than other months, there are still several important regulatory dates to keep track of, some of which are detailed below.  All broadcasters should have August 11 circled and highlighted on their calendars as the date of the next National EAS Test.  And there are renewal and EEO deadlines, as well as several comment dates on FCC regulatory proposals.

After skipping last year’s annual test due to the pandemic, FEMA and the FCC chose August 11 to hold this year’s National EAS Test.  All broadcasters should work with their engineers and technical staff to make sure their EAS equipment is operating properly and is set to monitoring the stations that they are required to monitor by their state EAS plan.  By the day after the test, August 12, broadcasters must file Form Two in the EAS Test Reporting System (ETRS) portal with “day of test” information.  Then, by September 27, broadcasters must file in ETRS Form Three with detailed post-test data.  The information shared with FEMA and the FCC allows them to determine the successes and failures of the test.
Continue Reading August Regulatory Dates for Broadcasters: National EAS Test, License Renewals, EEO Reporting, Political Broadcasting Rules Proposals, Media Ownership Comments, Annual Regulatory Fees, and More

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

  • The four television network affiliates groups have asked the FCC to clarify its new rules for sponsorship identification of programming

Last week, it was announced that the FCC would be considering some changes to its political broadcasting rules at its monthly open meeting in August.  In some quarters (see, for example, this article), that raised concern that significant changes were coming in time for the 2022 Congressional elections.  But, when the draft of the proposed changes was released last week, it turned out that the changes were instead very minor – almost ministerial.  The proposed rule changes revise the Commission’s rules on two matters that are already part of the practices of stations and the lawyers who advise them on political broadcasting matters.  Two changes are being proposed – one dealing with the showing that needs to be made by a write-in candidate to show that the candidate is “legally qualified” and entitled to take advantage of the FCC’s political broadcasting rules, and the second being just a rule change to conform FCC rules to statutory requirements that broadcasters include, in their online public files, information about the sale of advertising time to non-candidate buyers who convey a message on a matter of national importance, i.e., a federal issue ad.

The first proposal would add use of social media and creation of a campaign website to the factors specified in the rules as factors to consider when determining if a write-in candidate has made a “substantial showing” of a bona fide campaign for office so that they can be considered a “legally qualified candidate.”   Legally qualified candidates, even write-ins who have made this substantial showing, are entitled to all the protections of the Commission’s political rules, including equal opportunities, lowest unit rates and, for candidates for federal office, reasonable access to buy advertising time on commercial broadcast stations.  Looking at the online activities of an alleged candidate has already been part of the evaluation of whether write-in candidates have made a substantial showing of a “bona fide candidacy” – one demonstrating that the write-in candidate was conducting a serious campaign for office entitling them to the protections of the political rules.  Just saying that you are a write-in candidate is not enough to qualify for protections under the FCC rules – a write-in candidate must also show that he or she is really conducting a serious campaign for office (see our article here).  The facts set forth in that showing determine how serious the campaign is.  Since the FCC’s list of activities in its rules is illustrative and not exhaustive, and since online activities are indicative of how serious a candidate is, stations were already reviewing online activities when assessing substantial showings.  The FCC’s proposal would just make sure that what is already being done is spelled out in the rules.
Continue Reading FCC To Clarify Political Advertising Rules – No Significant Changes Proposed

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

  • The FCC’s Video Division of its Media Bureau has begun to release decisions on TV license renewal applications filed in

We’ve written many times about the perils of posting a photo on your website without getting permission from the photo’s owner (see, for instance, our articles here and here).  Copyright protects photos, even when they are shared on the Internet.  Just by posting a photo to some website does not mean that the owner has given up its copyright protections – and just because you can easily right-click on the image and paste it on your website doesn’t mean it is legal to do so. If you copy a photo for use on your site without permission, you should not be surprised to see a copyright infringement claim seeking damages – potentially big damages.  To avoid issues, many website owners look for ways to get permission to use photos, signing up for subscriptions from stock photo services or, often when trying to save money, relying on photos made available through some “creative commons” license.  However, relying on the creative commons license can be perilous.  One example is a recent US District Court ruling on a motion for summary judgment of a copyright lawsuit brought by a photographer when his photos of Willie Nelson and Carlos Santana appeared on a news website to illustrate articles on the musicians.  Anyone with a website should read this decision, as it addresses in detail not only the issues with these creative commons licenses, but also many of the other legal issues that arise in lawsuits about the unauthorized use of photos.

In this case, a local news website had used photos that were freely available on a creative commons site and were widely circulated on other sites.  But when they were posted to the defendant’s site, there was allegedly no attribution of the photos to the photographer and no link to the photographer’s own site, which were preconditions to the creative commons license.  Because the defendant did not follow the terms of license, the court found that the license was not effective.  The fact that these photos were otherwise widely available on the Internet similarly provided no defense to the infringement claim.  Relying on a creative commons license without scrupulous attention to any license requirements can lead to legal actions like the one brought here. In fact, the decision suggested that this was not the first lawsuit brought by this photographer, and as we’ve seen in past cases, there is no shortage of other photographers ready to make claims against those who use their work without an effective license.
Continue Reading Using Photos on Your Website – Court Decision Highlights Problems with a Creative Commons License and Other Copyright Issues

Last week, we wrote about two dissenting opinions in a Supreme Court decision that highlight the debate that is underway on the principles that govern defamation liability in the United States.  While we are reviewing Supreme Court decisions that could have an impact on broadcasters, including on political advertising, we thought that we should highlight another decision of the Supreme Court, a case called Americans For Prosperity Foundation v. Bonta, Attorney General of California, that could have an even more direct effect on the political advertising disclosure obligations of broadcasters.  In that case, the Court struck down a California requirement that charities operating in California reveal to the state their major donors.  Even though the state was supposed to keep this information confidential, the Court felt that the potential for disclosure of the contributors to groups dealing with controversial issues could chill their willingness to donate to the charitable groups, due to fears of repercussions should their donations become public (thus, in effect, creating a restraint on their First Amendment right to free association).  But could this decision have a wider impact on First Amendment rights and potentially affect disclosure obligations about contributions used for political advertising?

At least one commentator, George Will, seemed to think so.  In a column that he wrote last week, he suggests that supporters of the DISCLOSE Act (we wrote about a similar bill introduced 5 years ago here) should be worried  about its constitutionality in light of this Supreme Court decision.  If creating fears about the repercussions of donations to charitable organizations is seen as constitutionally suspect, a court could draw a similar conclusion about donations to political speech organizations.  The Supreme Court’s decision does acknowledge that the government could justify narrowly tailored disclosure obligations that advanced an important government interest, and the Court has, in the past, upheld disclosure obligations for contributors to political campaigns.  But would today’s Court see things the same way?  Would it make distinctions between disclosures of donations directly to campaigns (which have been upheld in the past where they could be seen as being linked to an attempt to buy influence with a candidate) versus  donations to third-party organizations that may engage in political speech, including support or opposition to candidates, which the Court might view  as the donors exercise of its free speech rights (as were the political expenditures by corporations in the Citizen’s United case – see our articles here and here)?  Time will tell how the ramifications of the Court’s decision will play out.
Continue Reading Could a Supreme Court Decision Affect Disclosure Obligations on Political Advertising?

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

  • This week all but ends analog television operations in the US. The FCC’s Media Bureau reminded all low power television

For well over 50 years, the Supreme Court’s New York Times v. Sullivan decision has governed the principles applied by the courts when assessing any claim of defamation.  That standard requires that, to find a statement about a public figure to be defamatory, not only does the statement need to be false, but it also needs to have been conveyed with “actual malice.” The Sullivan decision generally defines actual malice as writing or publishing an incorrect harmful statement knowing that the statement was false, or with reckless disregard as to whether the statement was true or not.  See our articles here and here, on this standard.  Because of this standard, the vast majority of defamation cases against public figures cannot be sustained, as it can rarely be proven that a defendant knew or should have known that a statement about a public figure was untrue.

In the recent past, there have been calls for this standard to be revisited.  Former President Trump was a big critic of the policy, thinking that he should have a greater ability to successfully sue media outlets over his claims of “fake news.”  Earlier this year, a prominent US Court of Appeals judge suggested that the doctrine should be abolished, using his dissenting opinion (at the end of this decision) to rail against big media companies and what he perceived to be their liberal bias.  This past week, two Supreme Court justices, Thomas and Gorsuch, issued dissenting opinions arguing that the Sullivan standard should change, in a case in which the Court decided not to review a lower court’s finding that a defamation case was precluded by the application of the Sullivan standards.  Justice Thomas has made this argument before (prior case here, new dissent here), but the dissenting opinion of Justice Gorsuch was the first time that he officially went on record calling for a modification of the standard.
Continue Reading Two Supreme Court Justices Try to Ignite Debate on Defamation Standards – What A Change Would Mean for Broadcasters News and Political Ad Sales

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

  • The FCC this week reminded television broadcasters of their obligation to make televised emergency information accessible to persons with disabilities.