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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 Copyright Royalty Board Decision on the royalty rates to be paid for the public performance of sound recordings by Internet radio companies – webcasting royalties – was published in the Federal Register today. We wrote about that decision setting the royalties here and here. The publication in the Federal Register gives parties to the proceeding 30 days in which to file an appeal of the decision. Appeals are heard by the US Court of Appeals in Washington DC.

While we have written about some issues with the decision raised by small webcasters about there not being a percentage of revenue royalty, as that issue was not raised before the CRB as no small webcasters participated, that is not an issue that the Court will consider – as the Court looks to whether the decision was arbitrary and capricious based on the evidence adduced at trial, or whether the decision was without substantial evidence in the record. It is focused on what was argued at trial, rather than what was not. Similarly, the issues about the performance complement waivers for broadcasters, which we also wrote about in the same article, are statutory issues that need to be addressed by waivers from copyright holders, not by a court appeal. Noncommercial groups have also expressed disappointment in the decision.
Continue Reading Copyright Royalty Board Webcasting Royalty Decision Published in the Federal Register – Appeals Due in 30 Days

This morning, the FCC released a Public Notice, announcing that the spectrum clearing target for the initial stage of the Incentive Auction will be 126 MHz.  That means, that if the Incentive Auction is completed in the initial stage with the 126 MHz spectrum clearing target, TV channels 30-36 and 38-51 will be reallocated for mobile broadband and unlicensed wireless services, leaving UHF channels 14-29 for broadcast TV stations (along with VHF channels 2-13 which are not being auctioned).  Channel 37 will remain allocated for wireless medical telemetry and radioastronomy services, with unlicensed services permitted. This is the maximum amount of spectrum that the FCC had initially indicated that it would potentially reclaim from broadcasters.

The Public Notice also announces that the actual bidding in the reverse auction, the so-called “clock rounds,” will begin on May 31, 2016.  The initial two days of the auction will have one round per day, with subsequent days speeding up to have at least two rounds per day until further notice from the FCC’s Wireless Bureau which administers the auction.
Continue Reading 126 MHz Incentive Auction Clearing Target Set – Reverse Auction for TV Stations to Bid to Surrender their Spectrum to Wireless Users to Begin May 31

May is one of those off months in which there are not the kind of routine filings that pop up in most other months – no EEO Public File Reports, no quarterly issues programs lists or children’s television reports, no Biennial Ownership Reports for noncommercial stations (which will soon disappear anyway when noncommercial stations transition to the same biennial report deadline as commercial broadcasters – see our articles here and here). Clearly, the big event for TV will be the likely start of the bidding in the “reverse auction” part of the TV incentive auction. For radio, the big activity will be around the continuing window for AM stations to buy FM translators to move to their communities (see our article here). And, as we wrote in our Broadcasters Calendar here, there are also a number of lowest unit rate windows in the states in which the final Presidential primaries are being held.

There are not even that many comment dates in proceedings of importance to broadcasters. Perhaps the most important is the preliminary comments on the proposed ATSC 3.0 transmission standard for the next generation of television (see our articles here and here). These initial comments are due on May 26.
Continue Reading May Regulatory Dates for Broadcasters – Incentive Auction, Comments on EAS, ATSC 3.0 and Set Top Boxes

There were several recent FCC decisions on application processing matters worthy of note. One deals with the processing of commercial applications for FM stations or FM translators that are involved in an auction to resolve disputes, the others with the processing of noncommercial applications (in this case for LPFM stations). None break new ground – but instead they reinforce earlier decisions that some who have been around the broadcast industry had found surprising, so these decisions are worth noting. The commercial case involved the question of whether an applicant needs to receive “reasonable assurance of transmitter site availability” before specifying a transmitter site after a broadcast auction. The noncommercial cases deals with the dismissal of an application because of a change in the control of its board of directors while the application was pending.

The commercial case involved the application for a new FM translator in New Jersey, where a local broadcaster filed a petition asking that the translator application be denied as the applicant had never received permission to specify the tower site, owned by the petitioner, in the “long-form” application filed by the applicant after the applicant prevailed in an auction. After the petition was filed, the applicant amended his application to specify another transmitter site. But, under an old line of cases, the failure to have “reasonable assurance” of a transmitter site was fatal to an application and could not be corrected by a later amendment to an available site. In this week’s decision, the FCC reiterated a decision that it made a few years ago (see, for instance, our article here) concluding that, where an application is granted as a result of an auction, the applicant need not have “reasonable assurance” of its transmitter site at the time it files its “long-form” application (the application that specifies the technical details of the facilities that the applicant intends to use to operate its station).
Continue Reading FCC Application Processing Decisions – No Reasonable Transmitter Site Assurance Necessary for Auction Applications, Change in Control of Nonprofit Governing Board Fatal to Pending Applications

The FCC has released a Public Notice, as promised by FCC Chairman Wheeler at last week’s NAB convention, asking for public comment on the proposal filed by the National Association of Broadcasters, the Consumer Technology Association and others requesting that the Commission approve ATSC 3.0, the next transmission system for over-the-air television broadcasting.…

At the NAB Convention last week, FCC Chairman Tom Wheeler discussed the timing of the incentive auction and how some of the remaining issues may soon be resolved. One subject of talk in a number of NAB sessions, as well as in the trade publications, has been how the repacking of broadcast television spectrum will proceed after the auction. Even FM broadcasters noted the potential for disruption of their operations as the repacking may affect shared users of broadcast towers, and given that hundreds of TV stations potentially face changing out antennas to operate on new channels in the smaller post-auction television band.

The Chairman made clear that the FCC will be announcing soon, perhaps as early as this week, the “spectrum clearing target” for the auction. In other words, the FCC will be announcing how much of the TV band it intends to try to clear for wireless broadband uses, based on how many TV stations expressed interest in potentially taking a buyout of their spectrum in their commitments filed at the end of last month. After the targets are announced, the FCC will quickly begin the reverse auction, a process where, round by round, the FCC will lower the prices offered to TV stations to abandon their spectrum until the FCC has committed to buy just the right amount of spectrum to meet its clearing targets. Then, it will turn around and repackage and resell that spectrum to wireless companies in the “forward auction.” The Chairman indicated that the clearing target may also signal the answers to many other issues.
Continue Reading As Incentive Auction Draws Near, Focus Begins to Shift to TV Spectrum Repacking – and Even FM Broadcasters Take Note of Potential Issues

The “performing rights organizations” – ASCAP, BMI and SESAC – don’t get as much attention in these pages as do the royalties paid to SoundExchange for the use of “sound recordings.” The PROs collect for the public performance of the “musical work” or the musical composition – the words and music of a…

Can expenses incurred by a TV station now in making moves to prepare for the post-incentive auction repacking of the TV spectrum be reimbursed if that station in fact is forced to move after the auction?  In a clarification “Declaratory Ruling” released on Monday, the FCC said that they can – in an aim…

On the eve of this year’s NAB Show in Las Vegas, the FCC has been asked to approve the next generation of TV transmission – ATSC 3.0.  A broad coalition – broadcasters through the NAB and APTS (the public television association), technology manufacturers (through CTA – the Consumer Technology Association formerly the Consumer Electronics Association), emergency communications advocates (through the AWARN Alliance, which includes broadcasters) and ATSC (the TV technology standards association) have requested that the Commission approve this new technology for use by TV stations on a voluntary basis.  The petition (available here) asks that the FCC approval be granted expeditiously, no doubt so that roll-out could be timed with the repacking of the TV band that will be required following the broadcast incentive auction that is now underway.

The requested changes to the FCC rules are minimal – asking only that TV stations be able to adopt and use the new transmission standard, that stations using the standard be treated as TV stations for must-carry purposes (and providing for prior notice to MVPDs when the conversion is about to occur on a TV station), and to provide for TV stations who decide to convert to be able to continue to broadcast in the current DTV standard.  That continuation of service would be provided by allowing a station that converts to the new standard to simulcast one program stream on another TV station that is operating using the current DTV standard in the same market, as existing TV sets will not be able to decode the new transmission standard.  Here are some questions that we had when reading the Petition and answers to the extent that we can discern them from the filings made so far.
Continue Reading Petition Asking FCC to Approve Next Generation of Over-the-Air Television, ATSC 3.0 – What is Being Requested?

Pre-1972 sound recordings are back in the news. Yesterday, the US Court of Appeals for the Second Circuit decided to defer its consideration of an appeal of a District Court’s decision that NY law included a public performance right for pre-1972 sound recordings. The Court deferred its decision until it can get a definitive answer as to whether or not such a right exists under NY state law. To get that definitive answer, the Court of Appeals referred the question to the NY State Court of Appeals (the highest court in New York State) asking it to issue an opinion as to whether the right exists.   Reading the order referring the case to the NY state court, there are a number of interesting issues addressed, including a discussion that could help decide the ramifications for over-the-air broadcasters who play these recordings.

First, we should provide a reminder about what the case here is all about. This case was brought by Flo and Eddie, members of the 1960s band The Turtles, who alleged that Sirius XM (and Pandora in a separate case) owed them royalties for playing pre-1972 sound recordings on their music services (see our article on the filing of the suit, here). Pre-1972 sound recordings first copyrighted in the United States are not covered by Federal law (see our article here and here about a Copyright Office inquiry on whether they should be brought under Federal law). While most states have laws prohibiting the reproduction of those recordings (e.g. prohibiting bootlegging of the recordings), none has an explicit statutory grant of a public performance right such as that collected by SoundExchange for post-1972 works. Sirius XM has thus excluded performances of pre-1972 sound recordings from the royalties that it has paid to SoundExchange (with the blessing of the Copyright Royalty Board in their last proceeding, see our story here). And allegedly Pandora has done the same. In this case, Flo and Eddie argued that in fact state law did convey a public performance right in sound recordings. Many observers (including this author) suggested that this argument would not succeed given that finding that a general performance right existed would be contrary to US law, and could subject all sorts of businesses that have never paid royalties for public performances of sound recordings, from over-the-air radio stations to bars and restaurants, to a performance royalty only when they played oldies. Nevertheless, Flo and Eddie were successful with their arguments in lower Federal Courts in California and New York (see our articles here and here), but a court in Florida denied their claims, finding that there is no performance right in pre-1972 sound recordings in that state (see our article here). The Court of Appeals decision yesterday was on the appeal of the NY decision referenced above. Why did the Court of Appeals need to send this case to the NY state court system?
Continue Reading Appeal of Public Performance Rights in Pre-1972 Sound Recordings Referred to NY State Court for Interpretation – What Issues Might Radio Broadcasters Be Facing?