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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 yesterday announced on its website the royalty rates that webcasters will pay to SoundExchange for the use of sound recordings in their digital transmissions over the Internet and to mobile devices in the period from 2016-2020.  For commercial webcasters, the CRB set $.0017 as the per performance (i.e. the rate paid per song, per listener) rate for nonsubscription streaming, and $.0022 per performance for subscription streaming.  For most webcasters, including broadcasters, this represents a drop of approximately 1/3 in the rates paid – perhaps the first time in any CRB proceeding that rates decreased as the result of a CRB decision.  The rates and terms adopted by the CRB for this statutory license can be found here.

For Pureplay webcasters, like Pandora, the nonsubscription rates represent a modest increase from the $.0014 rate that they were paying in 2015 pursuant to the Pureplay Agreement negotiated under the Webcaster Settlement Act almost 8 years ago (see our article here).  For the subscription services offered by these companies, the rate actually decreases from the $.0025 rate that they had been paying. There is also no provision for a percentage of revenue. The Pureplay Agreement had required that services pay the higher of the per performance rate or 25% of the webcaster’s gross revenues from all sources, limiting their growth outside of webcasting, and preventing companies with substantial other business interests from entering the Internet radio market and relying on the Pureplay rates. That percentage of revenue overhang has been eliminated.  For a summary of the rates that had been in effect for all of the different classes of webcasters, see our article here.
Continue Reading CRB Announces Webcasting Royalty Rates for 2016-2020 – Lower Rates for Broadcasters Who Stream, Minimal Change for Pureplay Webcasters

It seems like every streaming company, and every financial analyst and reporter covering the media beat has been breathlessly awaiting the release of the Copyright Royalty Board’s decision on Internet Radio Royalties that will apply to noninteractive streaming companies during the years 2016-2020.  Many have been predicting a decision for days.  But, in a public notice released today and available on the CRB website, the CRB announced that the that the decision will be released on Wednesday.  While the CRB will make the rates available on their website on Wednesday, the full decision will only go, initially, to the Librarian of Congress which oversees the administrative aspect of the CRB and reviews its decisions for legal errors, and to counsel involved in the case. Counsel will have an opportunity to review the decision to suggest that portions of the decision containing confidential business information be redacted from the public version of the decision, a version that will be released at some point in the future.  So the streaming world will know by Wednesday what they will be paying in the upcoming 5-year period, barring any post-decision changes through appeals, direct licenses, or other processes.

To clarify, this decision only apples to noninteractive streaming companies – webcasters or Internet radio – where the listener cannot select the next song to be played.  It does not apply to digital music companies where parties can play individual tracks on demand, or where they can save music into playlists where the songs can be replayed in the same order repeatedly.  Those paying these “statutory royalties” must adhere to certain restrictions as to how often a particular song will be played, but get the rights to play any song legally released in the United States.  See our article here as to why Adele could refuse to make her songs available to services like Spotify, while Pandora and other Internet radio companies could play those songs.  And these royalties apply only to streams that are directed to US residents, which is why many webcasters, including Pandora, are not available in much of the world.  See our article here on determining where royalties are paid for digital content.  Even though limited to these particular digital music services, the decision remains very important.  What happens when the decision is released, and what is next?
Continue Reading Waiting for the Copyright Royalty Board Decision on Internet Radio Royalty Rates – Decision To Be Announced on Wednesday

The Sunlight Foundation, along with Common Cause and the Campaign Legal Center, have filed with the FCC complaints against 18 TV stations claiming that these stations violated the FCC’s sponsorship identification rules by not identifying former New York City mayor Michael Bloomberg as the true sponsor of issue ads bought by the Independence USA political action committee.  The complaint (available on the Foundation’s website as part of a press release on the action) alleges that stations have an obligation to look behind the named organizational sponsor to identify Mr. Bloomberg as the true sponsor of these ads, as he has provided all of the organization’s funding and directs its actions.  These same organizations filed a similar set of complaints last year, some also targeting Mr. Bloomberg and the PAC with which he is associated, complaints which, for the most part, remain pending at the FCC (see our article here).

These complaints are very similar to the ones filed in 2014, arguing that where a PAC is 100% financed by a single individual, the individual should be identified on the air as the sponsor, not the PAC itself.  The petitioners claim that, by not identifying Mr. Bloomberg as the true sponsor, the public is deceived as to who is behind the ads.  This is despite the fact that, in the required sponsorship disclosure statements filed in the stations’ public files, Mr. Bloomberg is identified, as required by the rules, as the Chairman of the PAC and as one of its two officers.  Apparently, this required disclosure is deemed insufficient by these groups.  But what will the FCC think?
Continue Reading More Complaints Filed Against TV Stations for Allegedly Not Disclosing the True Sponsor of PAC Ad on Political Issues

The US District Court in Washington DC last week decided that FilmOn X could not rely on the compulsory license of Section 111 of the Copyright Act to retransmit the signal of over-the-air television stations to consumers over the Internet. The compulsory license allows a system to rebroadcast copyrighted material without getting express permission from the copyright holder, as long as the service files the rules set out by the statutory provisions that create the license. The DC Court’s decision was the exact opposite of a decision reached in July by a California court which found that FilmOn did fit within the definition of a cable system as set out by the Copyright Act (see our summary of that decision here). Why the difference in opinions over exactly the same system?

Both Courts focused on the language of Section 111 which defines a cable system as follows:

A “cable system” is a facility, located in any State, territory, trust territory, or possession of the United States, that in whole or in part receives signals transmitted or programs broadcast by one or more television broadcast stations licensed by the Federal Communications Commission, and makes secondary transmissions of such signals or programs by wires, cables, microwave, or other communications channels to subscribing members of the public who pay for such service. For purposes of determining the royalty fee under subsection (d)(1), two or more cable systems in contiguous communities under common ownership or control or operating from one headend shall be considered as one system.

Even though both courts looked to this same definition, they reach different conclusions – the principal difference being one over the requirement that, to be a cable system, the company must make “secondary transmissions of such signals or programs by wires, cables, microwave, or other communications channels.” The California court had looked at this definition, and determined that Internet retransmissions of TV programs were in fact secondary transmissions (a secondary transmission being a retransmission of the broadcast) by “wires, cables, microwave or other communications channels” – concluding essentially that the Internet was a communications channel. The DC Court, in contrast, did a far more searching analysis of this statutory language, and found that Internet transmissions don’t qualify as cable systems under this definition.
Continue Reading DC Court Finds FilmOn X Internet TV Service is Not a Cable System and Cannot Rely on Statutory License to Retransmit Over-the-Air TV Signals

With the broadcast and cable news (and the monologs of TV talk show hosts) already dominated by discussions of the 2016 elections, broadcasters thoughts may be turning to that election and the expected flood of money that may come into the political process.  We are, after all, only two months away from the first ballots in Iowa and New Hampshire. But dreams of big political spending should not be distracting broadcasters from thinking about their political broadcasting obligations under FCC rules and the Communications Act, and from making plans for compliance with those rules.  I’ve already conducted one seminar on political broadcasting obligations with the head of the FCC’s Office of Political Broadcasting, several months ago, for the Iowa Broadcasters Association, and we will be doing another, a webcast for about 20 state broadcast associations on December 17 (hosted by the Michigan Broadcasters, see their announcement here). Check with your state broadcast association to see if they are participating in the webcast, as we should be covering many of the political broadcasting legal issues of importance to broadcasters.

Stations in Iowa have been receiving buys from Presidential candidates and PACs and other third-party groups since this past summer, and that spending is sure to increase in these last few weeks before the 2016 start of the primaries and caucuses. What should stations in Iowa and in other states be thinking about now to get ready for the 2016 elections?
Continue Reading Political Broadcasting Issues that Radio and TV Stations Should Be Thinking About Now As We Approach a Very Active Election Season

In a recent decision, the FCC made clear that when there is a transfer of control of a station through the sale of the stock of the licensee company, the new owners are not absolved of any FCC violations that may have taken place when the old owners controlled the company. In this case, the old owners had various main studio, public file and issues programs lists issues, along with some compliance problems with late-filed Children’s Television Reports. While the FCC cancelled a fine on the licensee for reasons unrelated to the transfer of the stock (issuing an admonition instead), it went out of its way to emphasize that a new owner of the stock of a licensee company remains liable for the conduct of a predecessor controlling owner. The sale of stock, and the FCC’s approval of that sale, does not remove the threat of fines for violations that occurred when the old owner still controlled the company.

We wrote here about a similar warning in connection with a case decided several years ago. Assignments of license, where the FCC approves the sale of a station to a new licensee, seemingly do provide the new owner with some degree of protection against problems with FCC compliance that occurred during the watch of the old owner – but that is because the licensee has changed. (Note however, as we wrote here, if a compliance issue was discovered by the FCC before the sale, it is possible that the FCC could go after the old licensee for a fine, even after a sale has been completed). But, where the licensee remains the same, the FCC looks to the licensee company for compliance, regardless of who owns that company.
Continue Reading Buyers of Broadcast Stations Through Stock Transfer Beware – Liability for Fines of Prior Owner Can Still be Imposed After the Transfer

December is one of those months when all commercial broadcasters have at least one FCC deadline, and there are also many other filing dates of which many broadcasters need to take note.  For all commercial broadcasters, Biennial Ownership Reports are due on December 2.  Hopefully, most broadcasters have already completed this filing obligation, as FCC electronic filing systems have been known to slow as a major deadline like this comes closer.  See our article here for more on the Biennial Ownership filing requirement that applies to all commercial broadcast stations.

Noncommercial stations are not yet subject to the uniform Biennial Ownership Report deadline (though the FCC has proposed that happen in the future, see our article here, a proceeding in which a decision could come soon).  But many noncommercial stations do have ownership report deadlines on December 1, as noncommercial reports continue to be due every two years, on even anniversaries of the filing of their license renewal applications.  Noncommercial Television Stations in Colorado, Minnesota, Montana, North Dakota, and South Dakota have to file their Biennial Ownership Reports by that date.  Noncommercial AM and FM Radio Stations in Alabama, Connecticut, Georgia, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont also have the same deadline for their Biennial Ownership Reports. 
Continue Reading December Regulatory Dates for Broadcasters – Ownership and EEO Reports, Retransmission Consent and Foreign Ownership Rulemaking Comments, Incentive Auction and Accessibility Obligations