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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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An order deciding on the steps the FCC will take to revitalize AM radio is currently being actively considered by the Commissioners. As we wrote earlier this week, the biggest argument about the proposal that is circulating is reportedly whether or not that order will provide for a window for filing for new FM translators specifically to be used for the rebroadcast of AM stations. As we wrote, the FCC Chairman has indicated his opposition to that proposal – and the reasons for that opposition were made clearer in the press conference following yesterday’s open FCC meeting. While AM radio was not on the agenda of the meeting, the Chairman was nevertheless asked about his opposition to the AM-only translator window. His response? He said something along the lines of – Everybody has the right to ask for free spectrum, but it’s not the general policy of this agency to give it away. It seems to me that this cannot be the full reason for his opposition, as the process for awarding FM translators generally results in spectrum being given away for free – and Congress in fact set up the system that way, reserving an auction only as a last resort in the award of FM translators. An AM-only window for FM translators is no more a give-away of free spectrum than is any other translator filing window.

Applications for new FM translators are filed during pre-announced auction filing windows. If, during one of those windows, mutually exclusive applications are filed (applications that, for technical reasons conflict with each other), these applications are not immediately thrown into an auction as would be the case when there are mutually exclusive applications for full-power FM or TV channels. Instead, pursuant to the Congressional authorization for the auctions used to award spectrum to commercial broadcasters, an auction is used for secondary services like FM translators, and for AM stations where there are no pre-allocated channels, only where the applicants cannot themselves first find a solution for their mutual exclusivity. Thus, once applications are filed, the FCC announces a window during which applicants can work together to coordinate modifications to their proposed facilities to attempt to come up with engineering solutions so that both applications can be granted, or to work out other permitted settlements. As a result of the 2003 FM translator window, the FCC has already granted thousands of new FM translators – and none of these applications were granted as the result of an auction (see our articles here, here and here about the grant of these translators). All were either singletons (meaning they were not technically mutually exclusive with any other application) or they were granted after engineering amendments or other settlements resolved their mutual exclusivity. All of the thousands of new FM translators granted after the 2003 window were “free spectrum,” no different than any applications that would be granted following any AM-only translator filing window.
Continue Reading More on AM Revitalization – Why the FCC Chairman is Against an AM-Only Filing Window For FM Translators

Last month, we noted that there were a number of upcoming FCC actions on broadcast matters, as revealed in an article on the FCC’s blog. That article, by FCC Chairman Wheeler, promised that an order on the AM revitalization proceeding was in the works. Such an order is in fact circulating among the Commissioners for consideration and has been the subject of a significant amount of lobbying in recent weeks – mostly because the order apparently omits an application filing window exclusively for AM licensees to file for new FM translators to rebroadcast their signals in their service areas.

Based on ex parte filings (letters submitted to the docket file on the AM improvement rulemaking summarizing meetings held by interested parties with FCC Commissioners and other FCC decision-makers), it appears that that order circulating among the Commissioners omits the AM-only translator filing window, in line with the Chairman’s statements back in April that he does not want to set aside a window exclusively for AM stations to file for new FM translators (see our article here).  With the Chairman opposed, the new lobbying seems to be aimed at convincing other Commissioners to support the AM-only window, which many AM operators see as the one sure way to help preserve AM operations for the foreseeable future (perhaps until an all-digital operation becomes feasible). Even though the order apparently does not call for an AM-only window for FM translators, there does seem to be some recognition that translators can assist AMs in their operations.
Continue Reading Where Does the FCC’s AM Revitalization Order Stand?

The US House of Representatives has been looking at potential reform of the Copyright Act for some time, holding a number of hearings before the Committee here in Washington DC (see, for instance, our article here about one of those hearings). Yesterday, the Committee announced that it is taking its examination on the road, conducting a “listening tour” of the country, starting with a roundtable on music issues to be held in Nashville on September 22. The Committee’s announcement of the listening tour (available here), says that future dates and locations (and presumably topics) will be announced at a later date.   The announcement states:

America’s copyright industries – movies, television programming, music, books, video games and computer software – and technology sector are vitally important to our national economy.  The House Judiciary Committee’s copyright review is focused on determining whether our copyright laws are still working in the digital age to reward creativity and innovation in order to ensure these crucial industries can thrive.

So what are some of the issues that are likely to be considered? On the music side, there are many issues, including questions about the disparity between the payments from digital media companies made to songwriters as opposed to sound recording rights holders (see our article here), the amounts of the royalties themselves (with digital media companies finding many royalties to be too high to allow for a profitable operation while rights holders argue that they are too low to compensate creators for the decrease in the sale of music in a physical form – see our article on how the one-to-one nature of the digital performance complicates the discussion of the value of music when compared with analog performances), issues as to whether broadcasters should pay a performance royalty for sound recordings, and the question of pre-1972 sound recordings (see our last article on pre-1972 sound recordings, here). Many of these issues were addressed by the Copyright Office in its report on reform of the copyright laws as they relate to music (see our summary here). Some of the songwriter issues are also being considered by the Department of Justice in its review of the antitrust consent decrees governing ASCAP and BMI (see our article here).
Continue Reading House Judiciary Committee Begins Nationwide Listening Tour on Copyright Reform – First Roundtable on September 22 in Nashville Focusing on Music Issues

The Incentive Auction, by which the FCC is to pay TV stations to surrender their spectrum and then resell that spectrum to wireless carriers, is to begin on March 29, 2016 (see our article here which broke that news). At the end of last month, my law partner Jonathan Cohen and I presented a webinar to members of 11 state broadcast associations on the auction process, as clarified by the FCC last month in its Incentive Auction Bidding Procedures Public Notice (here). The slides from our state association presentation are available here. These slides set out the background of the proceeding, the process that broadcasters will go through to participate in the auction, an outline of the issues that come up in channel sharing agreements, the post-auction repacking of the TV spectrum into the fewer channels that will remain dedicated to TV use, and the deadlines for stations to either end their service or implement any facility changes ordered as part of the repacking.

Even more light was shed on the process yesterday, in remarks made by FCC Chair Tom Wheeler at the CTIA convention in Las Vegas. In his remarks, he reiterated the intention of the FCC to begin the auction next March. He also indicated that more specific advice about auction procedures would be coming by a subsequent FCC Applications Procedures public notice in October. Chairman Wheeler said that broadcasters will be indicating their intent to participate in the auction around Thanksgiving (by filing initial auction applications), and wireless companies will be filing their initial applications around the first of the year indicating their intent to participate in the second phase of the auction to buy up the spectrum surrendered by broadcasters. Note that these dates are all very general, so you’ll need to watch as specific guidance is provided by the FCC. Given that the FCC has said that broadcasters will be given 60 days of advance notice of the amount that they will be offered to surrender their spectrum before being required to file their initial application, if the Applications Procedures public notice is the document where the opening bids are provided, the Thanksgiving date, for instance, may well actually be sometime in December.
Continue Reading TV Incentive Auction Timing and Procedures Become Clearer – A Presentation on the Process, and More on Upcoming Important Dates

The FCC announced yesterday 2015 regulatory fees are due by 11:59 pm (Eastern Daylight Time) on September 24, 2015.  The FCC also announced that the FCC’s automated filing and payment system (Fee Filer) for FY 2015 regulatory fees was open yesterday and will reopen on Tuesday, September 8 (it is closed today through the holiday weekend as the entire FCC electronic filing system is being shut down for maintenance).  All commercial radio and television stations (and those who hold construction permits for unbuilt commercial stations) must pay these fees.  The fees for radio are the same as were proposed in our article on the FCC’s proposal for the fees, here.  The fees for TV changed slightly from those proposed in May, and are set out at the bottom of this article.  The FCC also issued a Notice of Proposed Rulemaking, asking a number of questions about potential changes in the computation of broadcast fees in the future.

The FCC reminded all parties who pay fees that checks will not be accepted for regulatory fees.  Instead, all fees must be paid electronically by online “ACH” payment (an electronic payment system that many use for transferring money from one party’s accounts to another’s account), by credit card (though credit card payments will only be accepted when a company’s total fees due are less than $25,000), or wire transfer, all with an accompanying FCC 159-E form which must first be electronically filed through the FCC’s Fee Filer system. 
Continue Reading FCC Regulatory Fees Due September 24 – Plus FCC Proposes Changes in Future Broadcaster Fee Computations

How to deal with a noncommercial radio station’s public inspection file when the station is licensed to a college and has a main studio in a restricted-access student residence hall is a question that I have received repeatedly when I have conducted sessions on FCC rules at noncommercial broadcasters’ conventions and meetings.  In a consent decree reached with a college and announced by the FCC on Friday, the FCC’s Media Bureau has suggested how this issue should be dealt with – by asking for a waiver of the Commission’s rules to allow the file to be maintained at another campus building which has access for the public during normal business hours.

In that case, the Bucknell University station had its main studio in a residence hall not open to the public, and it kept its public file at the student center, another campus building to which the public had access.  While the station posted a sign at the entrance to the residence hall where the main studio was housed that the public file was at the student center, and instructed campus security that this was where anyone who asked for the file should be directed, the college had not asked the FCC for a waiver of Section 73.3527(b)(1),  which requires that the public file of a noncommercial station be kept at the main studio of the station.  In the Consent Decree, the FCC agreed to waive the FCC rules to allow the public file to remain at the student center location, balancing the needs of the public for access to the file with the security needs of the college.  Nevertheless, the licensee made a $2200 “contribution” to the US treasury for not having previously asked for a waiver of the rules to locate the files at a location other than its main studio, and for also failing to include in its files Quarterly Issues Programs lists for several years during the license renewal term in which these issues arose.
Continue Reading The Location of the Public Inspection File of a College Radio Station When the Station’s Main Studio is in a Building Not Open to the General Public Addressed in FCC Consent Decree

The FCC has asked for comments on a rulemaking proposal that would fundamentally change the way in which LPFM stations operate – proposing that they be allowed to take commercial messages (as opposed to the current limit the they operate noncommercially, only taking underwriting announcements and other noncommercial sponsorships), allowing them to be owned by local small businesses (as opposed to the current rule that limit their ownership to nonprofit organizations), and giving them primary status (protecting them against being displaced by a subsequent move of a full-power station or the initiation of service by a new full-power FM station). The proposal also asks that the limits on ownership, which currently limit most nonprofit groups to ownership of a single LPFM, be lifted. There is also a suggestion that LPFM stations be governed by the same spacing rules that apply to FM translators, letting them locate wherever there is no predicted interference, not limiting them to locations where they meet mileage separation requirements set out by the current rules. This is a new proposal, going beyond the proposal we wrote about here to allow LPFM stations to increase power to 250 watts, on which the FCC recently took comments.

Comments on this proposal are due on August 30. The proposal is not a proposal by the FCC to adopt rules on these matters, but instead just a preliminary notice that the petition asking for these changes to the rules was filed, and asking for public comment as to whether the FCC should take any action and further pursue the proposals being made. Obviously, some broadcasters may want to comment on this proposal which would fundamentally change the nature of the LPFM service.
Continue Reading Proposal Asks that Low Power FM Stations Be Given Primary Status, and Allowed to Operate Commercially

In an article posted on the FCC’s blog yesterday, FCC Chairman Tom Wheeler listed four actions that would soon be coming out of the FCC to address broadcast issues. For TV, these include looking at what constitutes “good faith negotiations” in the retransmission consent context, and whether to do away with the FCC’s network nonduplication protection rule. For radio, the long-delayed AM revitalization docket will apparently soon be considered by the FCC. And, finally, the FCC may modernize the contest rules for all broadcasters by allowing more online disclosure of contest rules. What are these proceedings all about?

The retransmission consent proceeding grows out of Congress’ adoption of STELAR, which authorized the continued retransmission of broadcast signals by satellite television operators. As part of that legislation, which we summarized here, the FCC was directed to start a proceeding to determine whether it should adopt new rules to define what constitutes “good faith negotiation” of retransmission consent agreements. There has already been significant lobbying on this issue by both sides. Right now, good faith negotiation really has not been an area where the FCC has intervened beyond using its bully pulpit to urge parties to retransmission consent disputes to reach a deal. It is commonly recognized that failing to deal with a MVPD at all would be a violation of the good faith standard, but many MVPDs now want the FCC to become more involved, putting limits on TV channel blackouts, especially just before big televised events (like the Super Bowl or the Oscars), limiting the blackout of web-based programming to subscribers of an MVPD that is involved in a dispute, limiting the bundling of Big 4 network programs with programming from other channels provided by the TV broadcaster, and similar limits. The Chairman’s blog is short on specifics, but does suggest that, while some specific prohibitions may be suggested, the FCC would also be able to look at the totality of the circumstances to determine if a broadcaster and an MVPD were negotiating in good faith (note that these rules apply to broadcast retransmission consent negotiation, not those between MVPDs and cable channels not shown on broadcast TV).
Continue Reading FCC Chairman Details Issues Coming Soon for Broadcasters – Review of Retransmission Consent, Network Nonduplication, AM Improvements, and Contest Rules

The FCC yesterday issued a Declaratory Ruling at the request of the producers of a new syndicated Crime Watch Daily TV show, a program that will give a daily rundown of crime stories including ongoing court trials from around the nation, declaring that the program would not give rise to equal opportunities claims from political candidates. As the producers expected that political candidates would be featured in the program’s daily coverage of crime news (e.g. sheriffs or district attorneys who may be running for reelection in local elections), they wanted to be sure that competing candidates would not have grounds to request equal time from stations carrying the program – which obviously would severely limit the attractiveness of the program. The FCC looked at the description of the nature of the program – where the producer is making editorial decisions about who will appear on the program based on determinations of newsworthiness in the exercise of their journalistic judgment, not based on an attempt to favor or highlight any political candidate. Based on these representations, the FCC concluded that the show was exempt from the equal opportunities obligations of Section 315(a) of the Communications Act.

We have written about the equal opportunities rules (or what many refer to as “equal time”) many times before (see, for instance, our article here). When a candidate makes a “use” of a broadcast station, opposing candidates are entitled to equal time on the station, if they request that equal time within 7 days. If the first candidate did not pay for that airtime, the second candidate gets the time for free. So, if an on-air employee of a station decides to run for public office, once that employee becomes a legally qualified candidate by filing the necessary paperwork for a place on the ballot or taking the steps to launch a write-in campaign, if the employee stays on the air, opposing candidates can request, and are entitled to, equal time on the station. And these opposing candidates don’t need to deliver the weather report or introduce the next song as the on-air employee may have been doing. Instead, the opposing candidates can use the time to promote their campaign, even if the on-air employee never mentioned his or her candidacy on the air (see our article on on-air employees running for office, here). However, where the candidate appears on the air as the subject of a news report, there is no “use” of the station under FCC rules and policies, and thus no need to give equal time.
Continue Reading TV Crime Watch Show is Bona Fide News Program Exempt from Equal Opportunities Requests from Political Candidates – Reviewing the Equal Time Rule

The FCC recently issued a Declaratory Ruling and Order on the Telephone Consumer Protection Act (TCPA) – and that order highlights many issues with broadcasters who use texts or outbound automated calls to the mobile devices of viewers and listeners. In fact, today the FCC released a Notice of Apparent Liability proposing to fine a travel marketing company $2,960,000 for robocalls to households on the Do-Not-Call list, without having any consent from the recipients of the calls. Certain practices of broadcasters could arguably come under TCPA prohibitions. Thus, Josh Bercu, an attorney in my firm, has prepared the following warning for broadcasters about their potential liability under the TCPA.

Last month, the FCC released a Declaratory Ruling and Order addressing 21 separate requests for clarification and other action regarding the TCPA, 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 How Broadcasters Could Have Big Liability For Texts And Calls under The FCC’s Recent Order on The Telephone Consumer Protection Act (TCPA)