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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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With the recent hurricanes and last night’s tragedy in Las Vegas, the FCC Public Notice issued last week reminding all video programmers of the importance of making emergency information accessible to all viewers seems very timely. The public notice serves as a good refresher on all of the obligations of video programmers designed to make emergency information available to members of the viewing audience who may have auditory or visual impairments that may make this information harder to receive. As the FCC also reminds readers of its notice of the ways in which to file complaints against video programming distributors who do not follow the rules, TV broadcasters need to be extremely sensitive to all of these requirements.

What are these obligations? These are some of the obligations highlighted by the FCC’s reminder:

  • For persons who are visually impaired, rules require that emergency information that is visually provided in a newscast also be aurally described in the main audio channel of the station.
  • When emergency information is provided outside of a newscast (e.g. in a crawl during entertainment programming), that information must be accompanied by an aural tone and then an audio version of the emergency information must be broadcast on a secondary audio channel (SAP channel) of a TV station at least twice. See our articles here, here and here about this obligation.
  • For persons who are deaf or hard of hearing, the Commission requires that emergency information provided in the audio portion of a broadcast also be presented visually, through methods including captioning, crawls or scrolls that do not block any emergency information provided through other visual means (like other captions or crawls).
  • For stations that are permitted to use electronic newsroom technique (ENT) captions, where ENT does not provide captions for breaking news and emergency alerts, stations must make emergency information available through some other visual means. See our post here on this obligation.
  • The FCC suggests, but does not require, that stations make emergency information available through multiple means (maps, charts, and other visual information) and in plain language, so that all viewers can understand the nature of any emergency.

Continue Reading FCC Reminder to Video Programming Distributors – Including Broadcasters – on Accessibility Obligations

The beginning of a calendar quarter always brings numerous regulatory obligations, and October is one of those months with a particularly full set of obligations. All full-power broadcasters, commercial and noncommercial, must complete their Quarterly Issues Programs Lists and place these reports into their public inspection files by October 10. These reports are the FCC’s only official record of how a station served its community. They document the broadcaster’s assessment of the most important issues facing their communities, and the programming that they have broadcast to address those issues. Failing to complete these reports was the biggest source of fines during the last license renewal cycle – with fines of $10,000 or more common for stations missing numerous reports during the license renewal term (see, for example, our articles here, here and here). With the public inspection file for all TV stations now being online and the public file of large radio groups in major markets also already converted to being online, the timeliness of the completion of these reports and their inclusion in the public file can now be assessed by the FCC and anyone else who wants to complain about a station’s regulatory compliance (as documents added to the public file are date stamped as to their inclusion, and the FCC has used this stamp to assess station’s compliance in other areas, see our post here). All other radio stations will be converting to the online file by March 1, 2018 and will need to upload this quarter’s reports into the file by that date (along with all others back to your last license renewal, see our post here), meaning the reports they complete this quarter too can be scrutinized from afar. Thus, be sure that you complete this important requirement.

TV stations have the additional quarterly obligation of filing with the FCC by October 10 their Quarterly Children’s Television Reports, Form 398. These reports detail the educational and informational programming directed to children that the station broadcast in the prior quarter. These reports are used to assess the station’s compliance with the current obligation to broadcast at least 3 hours per channel of programming addressing the educational and informational needs of children aged 16 or younger. Late-filed Children’s Television Reports, too, were the source of many fines for TV broadcasters in the last renewal cycle (see, for instance, our articles here and here), so don’t forget this obligation and don’t be late in making the required filings. At the same time, TV stations should also include in their public file documentation showing that they have complied with the limitations on commercialization during children’s programming directed to children 12 and under.
Continue Reading October Regulatory Dates for Broadcasters – Quarterly Issues Programs and Children’s Television Reports, EEO Obligations, Repacking Reports and More

The FCC yesterday released a Public Notice providing the details for its settlement window for mutually exclusive applications for new FM translators to rebroadcast AM stations. The settlement window will run through November 29. The mutually-exclusive applications (applications which conflict with each other as they cannot both operate without creating prohibited interference) are listed on an appendix available here. These applications were the ones filed earlier this summer in the FCC’s first window reserved for AM station licensees to file for new FM translators to rebroadcast their AM stations as part of the FCC’s AM revitalization proceeding. The first window was for Class C and D AM stations to submit applications. Class A and B AMs, which generally have greater coverage areas, will be able to file applications in a window to open either later this year or, at this point, more likely in early 2018. The majority of applications filed in this year’s window, which are not listed on the appendix of mutually exclusive applications and which did not receive a letter from the FCC in the last few weeks identifying deficiencies in their short-form applications, are likely “singletons,” meaning that these applications are not in conflict with any other and will likely be asked to file a “long-form” application completing the FCC Form 349 before being proposed for grant at some point later this year or early next year.

As we have written, as these applications were filed in the context of a potential auction, applicants cannot talk to each other except during announced settlement windows. Now that the settlement window has been announced, mutually exclusive applicants can discuss trying to resolve the mutual exclusivity either through technical means or by the dismissal of one of the applications. Technical means could include any “minor change” in the facilities initially proposed by one or both of the mutually-exclusive applicants, e.g. frequency moves to adjacent channels, transmitter site changes, or directional antenna proposals. Dismissal of applications can only be for the reimbursement of a dismissing applicant’s legitimate expenses – the dismissing applicant cannot be paid big bucks to dismiss its application. More details of the settlement process are set out in the Public Notice, but note that the deadline for the submission of any resolution to the FCC is November 29.
Continue Reading List of Mutually Exclusive Applications for FM Translators to Rebroadcast AM Stations Released By FCC – Settlement Window Through November 29

The Copyright Office yesterday issued a reminder, here, that their electronic system for “designated agents” of Internet service providers – those who are to receive notice of any claimed infringing content posted on a service provider’s site – is active and all services must register in that system by December 31 for…

At its meeting yesterday, as promised, the FCC adopted a notice of proposed rulemaking to eliminate the rule that certain classes of FCC licensees maintain a paper copy of the FCC rules. We wrote about the draft NPRM here, which the FCC substantially adopted. Under current rules, licensees of LPTV, TV and FM translator,…

The FCC yesterday released a Public Notice (linked here) announcing that it will open the post-Incentive Auction “second filing window” on Tuesday, October 3, 2017.  In this window, any repacked TV station, including stations that changed from UHF to VHF during the incentive auction and repacked Class A stations, can file an amendment to its initial construction permit application (if still pending), or a modification to its construction permit (if granted) to seek an alternate channel or expanded facilities from those specified in the April 13, 2017 Closing and Channel Reassignment Public Notice.   This follows the first window (about which we wrote here) which allowed certain stations that could not construct on their assigned channels to seek new ones, and it precedes a future window for displaced LPTV and TV translators to seek new channels (see our articles here and here).

This window gives TV stations an opportunity to apply for a greater coverage area if such an upgrade is possible without creating interference to any other station.  The window will close at 11:59 pm EDT on Thursday, November 2, 2017.  Repacked stations should now be consulting with their engineers about their options in order to meet the filing deadline.
Continue Reading FCC Announces Second Filing Window for Upgrades and New Channels for Repacked TV Stations – October 3 through November 2

It seems like about this time as we begin to near the end of the year that broadcasters contemplate their future. And it seems like that brings many to contemplate moving from behind the microphone to being in front of it – by running for public office. Perhaps because next year will likely be a very active one with Congressional elections and elections in many states, I have had a number of calls from broadcasters in the last few weeks asking what they should do with the on-air employee who is contemplating making that move by jumping into politics. We have written about this issue many times before, including coverage of when well-known local or national personalities have contemplated runs for office – see our stories here, here and here. In 2010, we wrote an article that provided a discussion of this issue, which remains valid today, and which I edited and reposted in 2016 here. An updated version of that article is below.

Having an on-air employee who runs for political office – whether it is a federal, state or local office – does give rise for equal opportunities for competing candidates whenever that employee’s recognizable voice or picture appears on the air, even if the personality never mentions his or her candidacy on the air, and even if they appear in what is otherwise an exempt program (e.g. a newscaster who runs for office triggers equal time when he delivers the news even though a candidate’s appearance as a subject of that news program would be exempt). Stations need to take precautions to avoid the potential for owing significant amounts of free time to competing candidates, where those candidates can present any political message – if they request it within 7 days of the personality’s appearance on the air.
Continue Reading What to Do With the On-Air Employee Who Becomes a Candidate for Elective Office?