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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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RMLC, the organization that represents most commercial radio stations in the US in negotiating music license agreements for the public performance of musical compositions, has filed an antitrust lawsuit against GMR (Global Music Rights). GMR is a new performing rights organization (PRO), founded by music industry heavyweight Irving Azoff.  As we wrote here and here, GMR has signed agreements to represent songs from the catalogs of many prominent songwriters, including Adele, Taylor Swift, some of the Beatles, Madonna, Jay Z and many other big names.  RMLC (the Radio Music License Committee) is asking in its lawsuit that, initially, GMR be enjoined from licensing its catalog of songs for more than a rate that represents the pro rata share of its catalog to those of the other PROs while its broader antitrust action is litigated to establish an appropriate mechanism for determining those rates in the future.

Currently, the two largest PROs, ASCAP and BMI, are subject to antitrust consent decrees that govern their operations – decrees that the Department of Justice recently refused to substantially modify at the request of these groups (see our articles here and here.).  SESAC recently entered into a settlement of with RMLC, following an antitrust action similar to the one filed Friday against GMR, imposing restraints on SESAC’s ability to unilaterally impose its rates on radio stations, requiring instead that such rates be set by arbitrators if they cannot be voluntarily negotiated (see our articles here and here).  The songs in the GMR catalog are covered by ASCAP, BMI and SESAC licenses through the term of the current licenses with those organizations, but those licenses for radio all expire this year (see our article here).  Thus, RMLC argues that, if there is no injunction, starting January 1, 2017, a radio station will either be forced to pay whatever rates GMR demands for songs that are being withdrawn from the catalogs of ASCAP, BMI and SESAC, or risk being sued for copyright infringement (and potential damages of up to $150,000 per infringement). 
Continue Reading RMLC Files Antitrust Lawsuit Against GMR And Seeks to Enjoin New Music License Fees on Radio Stations

The FCC yesterday issued a Public Notice reminding all TV broadcasters (full-power, LPTV, translator and Class A stations, both commercial and noncommercial, if they have digital operations) that they must, by December 1, file a report as to whether or not they provide ancillary and supplementary services through their broadcast spectrum. If…

The protection of brands, slogans, positioning statements and program titles must be a high priority of any electronic media company. These assets establish the identity of any broadcaster, webcaster or other media company.  Media companies need to protect these assets through the rights accorded by trademark law.  We have been running a series of articles…

Early this week, in some of the legal journals that circulate in Washington, there was much speculation as to potential appointees to various government positions after the election. For positions such as the chairman of the FCC, many of these publications listed familiar DC names as likely appointees if, as expected by most pundits, Hillary Clinton was elected president. On the Trump side of the leger, speculation was much vaguer, as few had any real insight into how his administration would implement the broad but, in many cases, imprecise policies that Mr. Trump expounded during the election. Given the results of last night, those speculations are sure to ramp up as everyone tries to guess what will happen with broadcast policy in a Trump administration.

At this point, we can only speculate as to what that election will mean for broadcast policy – particularly at the FCC. One would certainly expect a lessening of the regulatory burden on broadcasters – as lessening burdensome regulations on businesses was a clear plank of the Trump agenda. The make-up of the FCC will likely facilitate such changes, as Republicans will no longer be in the minority at the FCC. A third Republican will join Commissioners Pai and O’Rielly on the FCC. These two Republicans dissented on many issues of importance to broadcasters – including the recently concluded Quadrennial Review of the Ownership Rules. Thus, a third Republican vote could have changed the decisions on many issues.
Continue Reading Looking at the Last Night’s Election Results and the Future of Washington Policy For Broadcasters

At the end of last week, the press reported on the jury verdict finding Rolling Stone magazine to be liable for defamation for its story, later retracted, about a gang rape at the University of Virginia. The case was brought by a University administrator who was portrayed negatively, including making her sound as if she had been indifferent or dismissive of the alleged rape, which evidence later showed to be untrue. Even though the court deemed the administrator to be a “public figure,” the jury nevertheless found that there was sufficient “malice” on the part of Rolling Stone to merit the finding of liability. While this decision may well be appealed, it nevertheless is a finding of which broadcasters and other media companies need to take note, as it demonstrates that a sloppy review of the facts of a news report can lead to liability – even when reporting on public figures and important issues of wide public concern.

Under the NY Times v Sullivan Supreme Court precedent, the decision in defamation cases quite often depends on the determination of whether the person who was allegedly defamed is a public figure. The thinking of the Supreme Court in adopting the distinction between public figures and private individuals is that the public has more interest in vetting public figures, and by becoming a public figure, individuals expect that their conduct will be under scrutiny. To adopt a strict liability standard for public figures would mean that, if any mistake is made in reporting on their actions, a press outlet could find itself facing defamation liability, even if that mistake was made in good faith after reasonable reporting had been done. To avoid this strict liability, the Supreme Court decided that, if the victim is a public figure, to find liability, the jury must find not only that the statement made by the defendant was false, but also that it was made with “malice.” What does that mean?
Continue Reading What Broadcasters Can Learn from the Rolling Stone Defamation Case

Earlier this year, the FCC decided not to adopt a proposal that would have required at least one broadcast station in each community to provide emergency alerts to local listeners who do not speak English. The FCC decision deciding to not mandate multilingual EAS alerts is here, and our article on the initial proposal…

Section 512 of the Copyright Act provides a safe harbor for Internet service providers whose systems are used to transmit content created by third parties which infringes on copyrights.  The provisions apply not only to common-carrier like services that merely transmit third-party content, but also to websites and other digital services that allow users to post material onto the service provider’s own sites – services like YouTube or Facebook whose very businesses are built on the ability of individuals to posting material on their sites.  We’ve written about the safe harbor recently (see our articles here and here).  The safe harbor requires, among other things, that the service provider not encourage the posting of infringing content on the site, but also that it take-down infringing material found on the site, and that it provide a “Designated Agent” for service of “take-down notices” – requests from copyright holders that infringing material be taken down from the site.  That agent must be identified both on the website of the service and registered with the Copyright Office.  The Copyright Office today announced rules for a new electronic system for registering such Agents.

We wrote about the Copyright Office’s proposal advanced 5 years ago for the new system, and it appears that it has now become a reality.  Currently, service providers register a Designated Agent on a paper form filed with the Copyright Office, which the Copyright Office scans as a PDF file that is uploaded, individually, onto the Copyright Office’s website.  Many felt that this system was clumsy and did not provide the information necessary for the take-down system to work efficiently, as it was difficult to search and was often full of outdated information.  The new electronic system adopted by the Copyright Office and effective on December 1, is expected to remedy many of these complaints.
Continue Reading Copyright Office Announces Rules for New Electronic Filing System for Service Provider’s Designated Agents for Take-Down Notices Under Section 512 Safe Harbor for User-Generated Content

November is one of those few months where there is a very light load of routine regulatory filings for broadcasters.  This is a month with no routine FCC ownership or children’s television reports.  There are no routine EEO reports for the public file, and no other FCC regularly-scheduled deadlines.

Of course, there are several other dates that broadcasters need to be aware of.  October 31 is the end of the FM translator window to move translators up to 250 miles to serve AM stations – so November 1 will likely bring lessened demand for any translator that did not find a new AM home during the window that has been open to various groups of AM stations since January. Those looking for translators to operate with FM stations may find opportunities now less expensive, but harder to move, so opportunities will be limited to stations near to areas where the translators already are located.

Once the FCC’s Broadcast Incentive Auction for television has concluded, the FCC will announce two windows for new FM translators.  These windows (the first for Class C and D AM stations only, and the second for Class A and B AM stations) will only be open to AM licensees that did not participate in the 2016 windows.  See our article here for more information. 
Continue Reading November Regulatory Dates For Broadcasters – Incentive Auction, EAS, Political and More

Last week, we wrote an article which received much attention, addressing the legal issues that could come up if contests are not conducted properly. One issue that we did not anticipate was reflected in an FCC order released yesterday, designating for hearing the license renewal of the Entercom Sacramento radio station that was involved in…