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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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September 29 will be a big day for broadcasters and other media companies when the FCC holds its next open meeting. In the tentative agenda for that meeting released on Thursday, the FCC identified several issues that deal with the media including two big items on video issues – the decision as to what to do about the Commission’s proposals to open the cable set top box to competing systems, and a new proposal designed to promote sources of independent programming for video distributors. In addition to these two items, the FCC also says that it will resolve the proposals to make the FCC’s foreign ownership rules for broadcasting more like those applicable to non-broadcast companies, easing some of the procedural restrictions that made it difficult for non-US investors to become owners of US broadcast stations.

The set top box debate is perhaps the debate that has garnered the most publicity, with the Commission proposing to allow more companies to offer a means to access cable and satellite TV programming – perhaps enabling the use of new apps to access and inventory that programming. Content owners and program distributors have worried about security issues with opening programming to access on a myriad of devices, and have also been concerned that the loosening of these restrictions could interfere with contractual rights limiting access to certain programs to certain devices and distribution channels. The FCC Chairman yesterday released this fact sheet about the proposal setting out some specifics of the proposal that will seemingly be voted on at the late September meeting, and the Chairman published this op-ed article in the LA Times explaining what he is trying to do. The matter is sure to remain controversial right through the late-September meeting, and perhaps after the decision as well.
Continue Reading September FCC Meeting To Be a Big One for Media Companies – Set Top Boxes, Foreign Ownership of Broadcast Stations and Promotion of Independent Programming

It’s election season, and for the 60 days before any general election, broadcast stations are required to charge political candidates the “lowest unit rate” for comparable advertising time that runs on their stations. That means that, for each class of advertising time on any particular station, the candidate can only be charged the lowest…

The FCC today released a series of public notices setting September 27 as the deadline for the filing of Annual Regulatory fees.  We wrote here about the FCC Order setting the amount of those fees, and reminding TV stations, even ones looking to surrender their licenses in the incentive auction, that they must still pay those fees by the upcoming deadline.  These notices also announced that the fee filing system is now up and operating, so fees can be paid at any time.  Finally, the notices talk about some of the details of the fee filing process, covering who is eligible and how exemptions from fee obligations can be obtained.

One of the Public Notices sets out instructions for requests for waivers and deferrals of the fee obligations.  Any party thinking about filing such a request needs to carefully follow the instructions and fully document the reasons for the waiver, as the failure to fully follow the rules will result in penalties and interest.  In fact, to avoid the potential for penalties and interest, the FCC suggests paying the fee and asking for a refund, rather than asking for a deferral and waiver of the fee obligations. 
Continue Reading Regulatory Fees Due By September 27 – Fee Filing Guides and Instructions for Waivers or Deferrals Released by FCC

Right as everyone was set to enjoy the last glimmer of summer over the long weekend, the FCC issued its Report and Order on the regulatory fees for 2016.  The FCC adopted all the fees for broadcast stations as proposed in its Notice of Proposed Rulemaking (about which we wrote about here) with some…

Incentive Auction Stage 2 to Begin September 13 – FCC Proposal to Clear 114 MHz

Given Tuesday’s declaration by the FCC that Stage 1 of the TV incentive auction did not meet its clearing target (in that enough was not bid in the forward auction to cover the amount needed to compensate television stations for surrendering their spectrum plus the costs of the auction itself), it is now on to Stage 2.  The FCC yesterday issued a new Public Notice announcing that the second stage of the reverse auction will begin on September 13, 2016.  In this second stage, the FCC will try to clear 114 MHz of spectrum, instead of the 126 MHz that was the clearing target in Stage 1.  If the auction is successful in clearing 114 MHz, that means that channels 31 and below will remain in the TV band.

Yesterday’s public notice gives other information about the procedures to be used in Stage 2, and the band plan for the forward portion of the stage.  It also announces that an online tutorial will be available for TV broadcasters who are participating in the auction beginning September 1, on the auction website.  TV stations that were provisionally winning bidders in Stage 1 (meaning that their offer to go off the air or move to a VHF channel was accepted) will be able, according to the public notice, to determine the status of that provisional acceptance starting on September 7 by logging into the auction electronic system with their SecurID tokens that they used to place bids in Stage 1.
Continue Reading Incentive Auction Stage 2 to Begin September 13 – FCC Proposal to Clear 114 MHz

While most broadcasters are awaiting word of when the FCC’s annual regulatory fees will be due (an announcement that should be coming any day now as regulatory fees will be paid in September by all commercial broadcasters to offset the cost of being regulated), the FCC announced yesterday that its application fees are going up…

In the last few minutes, the FCC has released its order on the Quadrennial Review of its multiple ownership rules, about which we wrote last week. The decision is available here, and includes dissenting opinions from the two Republican commissioners and a concurring statement from Commissioner Clyburn. In total, the text is 199…

While this summer has perhaps not brought the big headlines in trade press about copyright issues involving broadcasters – particularly in the area of music rights – there still are many issues that are active. I addressed some of those issues in a presentation earlier this month at the Texas Association of Broadcasters Annual Convention. I did my presentation in conjunction with a representative of SoundExchange, where he covered the nuts and bolts of the obligations of broadcasters and webcasters to file royalties for the noninteractive digital performance of sound recordings (e.g. webcasting and Internet radio). While the rates for 2016-2020 are on appeal (see our articles here, here and here), these rates are effective pending appeal and webcasters need to be paying under them. In the Texas presentation, I covered some of the many other copyright issues that are on the horizon, many of which we have written about in the pages of this blog. The slides from my presentation are available here. They provide an outline of many of the pending matters.

The presentation covered the controversy about the Department of Justice decision on the ASCAP and BMI consent decrees, about which I wrote about here. That controversy continues, as the PROs seek judicial or legislative relief from the new DOJ requirement for 100 per cent licensing of split works (see my article for an explanation of what that means). In the interim, the radio industry is negotiating new royalties with both of these organizations, as the current license agreements expire at the end of this year (see our article here).
Continue Reading What’s Up With Music Rights for Broadcasters and Webcasters? – A Presentation on Pending Issues

Rules regarding the processing FM applications – particularly those involving upgrade applications that require the forced change of the channel on which another station is operating – can be very complicated.   In a decision released the week before last, the FCC looked at all sorts of issues that can be raised by one of these applications – including clarifying the timing of the required reimbursement for the costs of the station that is being forced to change channels, the timing of required channel changes, and the ability of an applicant to file an upgrade while a license application is pending for initially constructed facilities of a station. For any radio operator contemplating an upgrade involving coordination of channel changes with other stations, this decision is worth a read.

The issue of reimbursement of the costs of a forced channel change is one that comes up in numerous upgrade applications. A station that wants to upgrade its facilities can ask the FCC to change the channel of another FM station to clear room on the dial for that upgrade – and that other station can be moved on the FM dial even if it does not want to change its channel. The FCC will order the other station to change channels as long as the upgrade proponent is able to find another channel for that station which is technically feasible at that station’s current transmitter site and is fully-spaced under the FCC rules governing required mileage separations between FM stations. Unless there is a unique issue about the channel to which the forced station is being moved, there are very few objections that can be raised to one of these involuntary channel changes. However, the station that is upgrading has an obligation to reimburse the changing station for all of the costs of the forced relocation.
Continue Reading FCC’s Audio Division Case Clarifies Processing Rules for FM Upgrades and Forced Channel Changes