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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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The FCC today released its most recent EEO audit letter for broadcasters – and it is a relatively brief list – just one page with 58 radio stations listed (compare this with the last audit that targeted about 280 radio and TV stations, see our article here).  The FCC’s public notice includes the audit letter that was sent to all of the targeted stations.  Responses are due July 28, 2016. The FCC reminds stations that were targeted by the audit to put a copy of the audit letter in their public file. The response, too, must go into the file. While there are very few Top 50 market stations on the list, those that are listed will need to right away upload the response in their online public file if they file after June 24, the effective date of the online public file for new documents filed by Top 50 market commercial stations that are part of an employment unit with 5 or more full-time employees (see this article for more information on the online public file for radio).

The Commission has pledged to audit 5% of all broadcast stations and cable systems each year to assure their compliance with the Commission’s EEO rules – including the requirements for wide dissemination of information about job openings and non-vacancy specific supplemental efforts to educate a station’s community about job opportunities in the media industry.  We recently summarized FCC EEO issues here, reminding broadcasters of the possibility of being audited.  We also wrote about the start of the obligations for the filing of FCC Form 397 EEO Mid-Term Reports – which started last year for radio groups with more than 11 full-time employees and will extend to TV licensees with 5 or more full-time employees in a few months, and are filed on the 4th anniversary of the filing deadline for the station’s license renewal – which will give the FCC another chance to review station EEO performance.  
Continue Reading FCC EEO Audit List Released – 58 Radio Stations on the List

Yesterday marked the 10th anniversary of my first post welcoming readers to this Blog.  I’d like to thank all of you who read the blog, and the many of you who have had nice words to say about its contents over the years.  In the ten years that the blog has been active, our audience has grown dramatically.  In fact, I’m amazed by all the different groups of readers – broadcasters and employees of digital media companies, attorneys and members of the financial community, journalists, regulators and even students and teachers. The blog was recently profiled on Lexblog Leaders, relaying some of the stories about readers that I have discovered, and I have many more such stories.  Because of all the encouragement that I have received, I’ve keep going, hopefully providing you all with some valuable information along the way.

I want to thank those who have supported me in being able to bring this blog to you.  My old firm, Davis Wright Tremaine LLP helped me get this started (and graciously allowed me to take the blog with me when I moved to my current firm four years ago).  My new firm, Wilkinson Barker Knauer LLP, has also been very supportive, and I particularly want to thanks several attorneys at the firm (especially Rosemary Harold, David O’Connor and Kelly Donohue) who help catch, on short notice, my typos and slips in analysis for articles that I usually get around to finishing shortly before my publishing deadline.  I’ve also published a number of articles written by my colleagues, and I hope that they will continue with their valuable contributions in the future.  Thanks, also, to my friendly competitors at the other law firms that have taken up publishing blogs on communications and media legal issues since I launched mine – you all do a great job with your own take on the issues, and you inspire me to try to keep up with you all. 
Continue Reading It’s Our Anniversary – A Decade of the Broadcast Law Blog

From time to time, questions come up as to whether it is acceptable for broadcast stations to air ads from a political candidate which do not feature the voice or, for TV, the image, of the candidate.  Ads from Federal candidates should almost never be missing the recognizable voice or image, as there are Federal Election Commission rules that specifically put the requirement on the candidate to appear on the spots in the “Stand By Your Ad” disclaimer (“I’m John Smith and I approved this message”).  But sometimes ads from state or local candidates, in states where the Federal requirements have not been extended to local elections by the state legislature, may be missing the voice or image of the candidate.  What are the implications for stations in airing such ads?

The most important implication is in the potential liability of the station for the content of the political ad.  When an ad is a “use” by a candidate, the station cannot censor its content.  It must be run as it is delivered to the station.  Because a station cannot censor the ad, the station has no liability for the contents of the ad.  So if the candidate defames his or her opponent, or violates copyright law, the station cannot be held liable for the content of the ad.  We have written many times about this “no censorship” rule. As we wrote here, that rule (and virtually all of the political rules but for reasonable access) applies to state and local candidates just as it does to Federal candidates. 
Continue Reading Political Candidate Ads Without the Candidate’s Voice or Image – What is a Station to Do?

In recent days, the press has been full of stories about Axl Rose from the band Guns N’ Roses sending take-down notices to websites, including Google affiliated sites, that feature a picture taken of him from one of his concerts making him look to be overweight (see, e.g. stories available here, here and here). The photos are often accompanied by captions, reinterpreting Guns N’ Roses songs by modifying the lyrics to include references to food or overeating or otherwise making light of the picture. The take down notice is premised on Rose’s alleged ownership of the underlying photo. According to the press reports, Rose requires all professional photographers taking photos at his concerts to sign releases, giving Rose ownership of all copyrights in the images taken. The legal issues raised by the take down notice are many – including reflecting on the recent calls for reform of the “safe harbor” provisions of the Digital Millennium Copyright Act for user-generated content much in the news lately, particularly with respect to YouTube videos including music (see our article here). No doubt, however, the first issue that will be considered in answering these take down notices is whether the images and associated commentary constitute “fair use.”

The DMCA has adopted a “safe harbor” for “internet service providers” including website owners who host user-generated content – content that is posted not by the site owner and its employees, but instead by users of the site (see our article here). As the hosts of these sites do not control what is being posted, Congress in adopting the DMCA, thought that it was important that the site owners not be liable if users post content that could potentially infringe on some third party’s intellectual property rights. However, the site owner must take certain steps to minimize the posting of infringing content – including making clear in its descriptions of the proper use of the site that users need to respect intellectual property rights, and providing both on the site and in a registration form filed with the Copyright Office the name and contact information for a person who copyright holders should contact if they believe that infringing content has been posted on the site (the Copyright Office is proposing changes to that form, see our article here). Copyright holders can then notify these identified individuals of the perceived infringement by sending what are commonly referred to as “take down notices.” Certain formalities need to be followed in sending these notices are provided under the provisions of the DMCA, including a specific identification of the infringing content, and a good faith belief that the content is in fact infringing. In connection with any take down notice and the decision of the site owner as to whether to honor that request, the question of fair use must be evaluated.
Continue Reading Axl Rose DMCA Takedown Notices Illustrate the Difficulty With Safe Harbor Reforms – User-Generated Content and Fair Use Issues

SoundExchange last week filed an appeal of the Copyright Royalty Board’s decision on webcasting royalties (a decision which we summarized here and here), as reported by a number of trade press articles. Most of these press reports did not note that this was not the only appeal filed. At least two other parties, IBS (Intercollegiate Broadcasting System – representing college and high school broadcasters) and the NRB-NMLC (National Religious Broadcasters Noncommercial Music License Committee – representing noncommercial religious broadcasters) also filed notices of appeal. So what is next now that these appeals have been filed?

The Notices of Appeal that were just submitted to the US Court of Appeals are just “notice” documents – filed to give notice to the other parties, the CRB and the court that these parties will pursue an appeal as they think that the CRB decision was not justified. No detail as to the substance of the appeal need be submitted at this time. Those details will be advanced when the parties file briefs setting out the specifics of their arguments challenging the CRB decision. The exact date for the submission of those briefs won’t be set for months, when the case makes its way onto the Courts docketing schedule. So don’t expect briefs to be filed until the Fall, with an oral argument before the Court to follow. The arguments are simply ones where lawyers for the parties get up before a three-judge panel and make brief presentations about the legal issues involved in the case (and answer the questions of the Judges). No new evidence is taken – at this point the proceeding is just one between lawyers, arguing as to whether the CRB decision was justified. What does the Court review?
Continue Reading Appeals Filed of Copyright Royalty Board Decision on Webcasting Royalties – What’s Next?

In the last few days, the trade press has been full of stories about a settlement of a lawsuit brought against a large broadcaster for alleged violations of the Telephone Consumer Protection Act (“TCPA”). Given that the settlement was for $8.5 million, it has commanded lots of attention. While much of this attention seems to suggest that this is a new obligation, we wrote about this issue last year, warning broadcasters of the potential for big liability if they did not pay attention to the requirements of the rules. The rules prohibit “telemarketing” calls or texts using an “autodialer” unless the recipient has explicitly consented to receive such messages.  In the recent decision, the broadcaster allegedly responded to texts sent to enter a contest with reply texts containing advertising messages unrelated to the contest. 

While TCPA rules are written by the FCC, this is one of those few rules where a violation can not only bring penalties from the FCC, but also there is a “private right of action” by people who receive unwanted calls or texts – i.e. they can sue a broadcaster who contacts them in a manner that violates the act.   And there are law firms that specialize in this litigation, even putting together groups of plaintiffs to bring actions against alleged violators – seeking damages including statutory damages (meaning that no real injury needs to be proven).  So just what does the TCPA cover? Here is what Josh Bercu, an attorney in my firm, wrote last August:

The TCPA is a law that restricts businesses and organizations from making calls and texts to consumers’ residential and wireless phones without having first received very specific permission from the recipient. Sending texts to broadcast station viewers or listeners who are contained in a station’s loyal listener or loyal viewer clubs can lead to liability if the proper releases are not obtained, and collecting text addresses from contest participants and adding them to station databases can similarly be problematic.   Because violations of the TCPA can result in civil liability of $500 to $1500 per call or text plus FCC fines, and as there have been a number of law firms around the country that have been active in filing class action suits against businesses to collect those potentially very high per-call damages, broadcasters need to ensure that their practices comply with the TCPA and the FCC’s rules which implement the Act.  While the recent Order provided some specific relief in limited circumstances to businesses, it leaves many well-intentioned companies, including broadcasters, at risk as they try to contact their viewers and listeners. Below we address some commonly asked questions about how the TCPA may apply to broadcasters.
Continue Reading Using Text Messages in Promotions and Contests? – $8,500,000 Settlement Provides Reminder to Make Sure You are Aware of TCPA Obligations

The online public inspection file for radio stations becomes a reality for most Top 50 market stations on June 24. Yesterday, I conducted a webinar for members of 19 state broadcast associations, discussing the process for the transition to the online public file. I also outlined obligations for maintaining the public file and the required contents of the file – what documents need to be included as well as the retention period for those documents. Slides from that presentation are available here.

Just as the presentation was wrapping up, the FCC issued a Public Notice announcing its own workshop on the new online public file. That presentation on June 13 at 1 pm ET is geared to all of the media entities that are required (or will be required by June 24) to maintain an online public inspection file – radio, TV, satellite radio and TV, and cable operators. The presentation seems to be a “how to” demonstration of the workings of the new public file system. That system is different from the one that TV stations have been using for the last several years – being cloud-based and supposedly with more functionality than the current system. So users, old and new, should tune in to the FCC workshop to get a review of the workings of the new system. Online access to the seminar is available here. Also, stations can begin to experiment with the new system with a simulated file for practicing – available here.
Continue Reading The Online Public Inspection File– A Presentation on the Requirements for Radio, and an FCC Workshop for All Users on Procedures for Using the New System

The question of whether state laws about pre-1972 sound recordings could give copyright holders a claim against broadcasters for the over-the-air public performance of these recordings was answered in a novel manner in a decision rendered by a US District Court in California. The evidence before the Court showed that CBS, the broadcaster being sued, had played digitally remastered versions of the pre-1972 songs, not the original analog pre-1972 recordings. The Court, based on evidence provided by the sound engineers who remastered the digital versions of the songs, found that there was enough originality in the remastering process for the digital versions to be copyrightable as “derivative works.” A derivative work is a separate work, based on the original, which can itself be copyrighted if there is some creativity in the new work. As the remastered derivative work was created after 1972, the Court decided that it was covered under Federal law. As Federal law provides no royalty for the public performance of a sound recording by an over-the-air broadcaster, the Court granted CBS summary judgement in the suit brought against it, dismissing the claims of the copyright holders (the text of the decision is embedded in this Hollywood Reporter article about the case).

The question of whether digitized versions of old recordings are sufficiently creative to merit their own copyrights (whether they are “original works of authorship”) has been debated in copyright circles for some time. Here, the Court looked at a summary of the law that had been prepared in a Circular distributed by the Copyright Office, which listed certain criteria that could be applied in determining whether a re-recorded work had sufficient creativity to merit a copyright. The Court also looked at specific evidence offered by recording engineers that showed how they used independent creative judgment in deciding to enhance certain elements of the recording in the digital version and to suppress others. The testimony showed that the digital version was the result of more than simply hooking the analog source material to a digital recorder and distributing the result. Human intervention in deciding how to materially change the original work to produce a new digital work was found by the Court – deciding that this was a classic version of a derivative work, authorized by the Copyright holders themselves when they commissioned the digital versions of the recordings. Thus, these works were entitled to their own copyright – a copyright that arose when the work was created after 1972.

We wrote about this issue in our article here, an article that primarily dealt with pending appeals of the question of whether there really is a state law public performance right in pre-1972 sound recordings. We wrote there about the fact that Sirius XM and some webcasters have not raised the CBS defense, as they have argued that no such royalties are due on pre-1972 sound recordings and have not been making such payments to SoundExchange (the Court in the CBS case said that CBS was apparently making such payments). Of course, the issue was not raised in those cases as to whether these companies were playing analog versions of the old recordings, or new digitally remastered works that may be entitled, if the current decision is upheld, to new copyrights (in fact, as we wrote here, the Copyright Royalty Board itself has approved of Sirius XM not making payments for pre-1972 recordings, without addressing what constituted such a recording). What implications does this decision have on other cases where this issue has been raised?
Continue Reading US District Court Finds Digitally Remastered Pre-1972 Sound Recordings Are “Derivative Works” Covered By Federal Law – Dismisses Suit against Broadcaster Seeking Over-the-Air Performance Royalties

FCC regulatory fees come around each year, and it seems like they always go up.  This year is no different, as the FCC has asked for comments on its proposed fees to be paid later this year (probably in September), and the proposed fees go up significantly for broadcasters.  The fees are meant to recoup the costs of the FCC’s regulation of the industries that it oversees.  Minimal changes are proposed due to the FCC’s refining of the roles that are played by some of its employees in regulating different types of communications services.  But this year, as the FCC’s lease for its headquarters building is expiring, its operational costs have to include not just the normal expenses of the FCC’s operations, but also the added expense of the probable relocation of the agency.  This one-time expense results in a major increase in the fees being charged.  While the increased fees are a one-time expense, there are certain to be complaints from broadcasters when they see the size of the increase in their fees to be paid this year.

Each year, the FCC goes through a familiar process – asking for comments on an essentially expedited basis so that the fees can be adopted and collected before the end of the government’s fiscal year – October 1.  This year is no different, and the week before last, the FCC asked for comments on the fees to be collected this year – with comments on the proposals due on June 20 and replies due on July 5.  Let’s look at some of the proposed changes.
Continue Reading FCC Regulatory Fees for Broadcasters Proposed to Increase Significantly to Cover Cost of FCC Headquarters Move

While summer has just about arrived, FCC regulatory dates do not depart to the beach and leave the world behind.  Instead, there are a host of filing deadlines this month.  EEO Public Inspection file reports must, by June 1, be placed in the public inspection files of stations that are part of employment units with 5 or more full-time employees if the stations are located in the following states: Arizona, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, Wyoming, and the District of Columbia.  Radio stations in Michigan and Ohio that are part of employment units with 11 or more full-time employees need to also file an FCC Mid-Term EEO Report on FCC Form 397 (see our article on the Form 397 here).  TV stations with 5 or more employees also need to file that report if they are located in Maryland, Virginia, West Virginia or the District of Columbia.

There are regular dates, too, for noncommercial stations in certain states when licensees must file their Biennial Ownership Reports on FCC Form 323E.  While these reports will eventually be filed on December 1 of odd-numbered years, at the same time as Biennial Ownership Reports of commercial stations, at this point the new rules have not yet gone into effect (see our articles here and here).  Thus, by June 1, the licensees of noncommercial radio stations in Michigan and Ohio and noncommercial TV stations in Arizona, Idaho, Maryland, Nevada, New Mexico, Utah, Virginia, West Virginia, Wyoming, and the District of Columbia must file their Biennial Ownership Reports.
Continue Reading June Regulatory Dates for Broadcasters – EEO and Noncommercial Ownership Reports, Incentive Auction, Radio Online Public File, and Comments on EAS and Regulatory Fees