Photo of David Oxenford

David Oxenford

Subscribe to David Oxenford's Posts

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.

Follow:Read more about David OxenfordDavid's Linkedin ProfileDavid's Twitter Profile

We are in March, which means that the minds of many turn to basketball, specifically March Madness as the NCAA hosts its annual championship tournament to crown college basketball’s national champion. And many broadcasters want to take advantage of the tournament to promote their stations or the products of their sponsors. Because of this inclination, we post this warning each year (see, for instance, here and here) – just like we do around the Super Bowl or the Olympics – these championship names are trademarked, and the owners are active in policing and protecting their marks, as sponsors pay the NCAA big bucks for association with the championship – so be careful about using “March Madness” in promotions and advertisements, as these uses could bring trouble.

Each year, we get the question “is March Madness a trademarked term” or, as it is sometimes formulated, “is March Madness copyrighted” (in fact, in this context, when talking about the name which brands an event, we are talking about trademark law, not copyright). And each year we say “yes.” But what does that mean? That does not mean that your newscasters, sports reporters or morning DJs can’t talk about the tournament using the name of the event. Instead, what it means is that commercial uses of the term, that could imply some association with the event for which sponsors pay money, can be problematic – and could cause the NCAA and their lawyers to pay attention, and could cost you or your sponsor money or time defending the use. So the safest way to avoid issues is to avoid the trademarked phrase in promotions and advertisements.
Continue Reading March Madness is a Trademarked Term – Use Caution in Using it in Advertising and Promotion

In a decision released yesterday, the FCC renewed the licenses of three TV stations held by large broadcast groups, rejecting Petitions to Deny filed by a citizen’s organization arguing that the children’s educational and informational programming run by these stations was not sufficiently educational or informational to meet the requirement that stations run three hours per week of educational and informational programing. The licensees were able to present evidence that these programs where developed with expert guidance to insure that they in fact presented valuable messages to children and, based on that evidence (plus the fact that the challenged programing had been replaced by other non-challenged programming), the renewals were granted. However, the FCC warned stations to be careful in their assessments of the educational nature of children’s programs, as the FCC can sanction stations where that judgment is not deemed to be reasonable.

Every television station has an obligation to present an average of at least three hours per week of educational and informational programming directed to children who are 16 or under. That three hour requirement attaches to each programming stream broadcast by the station (including each digital subchannel – though the obligation can be met if all of the educational and informational programming is done on the main program stream of the station – so a news and weather subchannel does not need to do educational and informational programming if the main program channel does 6 weekly hours of such programming). Such programing is to be designed to serve the “cognitive/intellectual or social/emotional needs” of children. Obviously, what meets those needs can be a matter of debate.
Continue Reading FCC Renews Television Station Licenses after Challenges on the Educational Nature of Children’s Programming – With a Warning to Other Broadcasters

March is one of those rare months on the broadcast calendar when there are few routine regulatory deadlines for broadcasters. As we are winding down in the television license renewal cycle, the month’s only license renewal obligations for TV broadcasters are the pre-filing license renewal announcements on the 1st and 16th of the month for stations in Delaware and Pennsylvania, whose renewals are due on April 1, and the post-filing announcements for TV stations in New York and New Jersey. But there are still dates of interest to broadcasters in the month ahead. Here are some of those dates.

March also brings the obligation, by March 16 for TV stations to be in compliance with the Closed Captioning Quality Standards, which require that broadcasts assess and work to perfect the quality of the closed captioning carried on their stations. While the FCC is looking at bringing television program suppliers under these rules, as of now, the obligation for compliance with the rules is on the television broadcaster. We wrote about the captioning quality rules and the FCC’s recent proceeding to shift some of the burden to program suppliers here.
Continue Reading March Regulatory Dates for Broadcasters – Closed Captioning Quality Standards Effective Date, Comments on Online Public File, MVPD Status for Online Video Providers, LIFO for Political Ads, and FRNs for Biennial Ownership Reports

Last year’s FCC decision to make Joint Sales Agreements between broadcast television stations attributable interests (meaning that they can only be done if stations are commonly owned) are back in the news – at least a little bit. Yesterday, at the NAB State Leadership Conference held here in Washington DC, NY Senator Chuck Schumer, a prominent Democrat, said that he believed that Joint Sales Agreements, especially in smaller television markets, were beneficial to the public interest. He said that he has sent a letter to FCC Chairman Tom Wheeler urging him to grant waivers to allow such agreements to continue. Coming from a Senator of the same political party as the Chairman, that call may have more impact than those that have previously gone to the FCC.

It appears that many broadcasters who had entered into those agreements, who are not currently in the middle of a sale of their companies, have been sitting with their JSAs, waiting to determine what to do with them before the deadline for existing agreements to be unwound – set in December of 2016 by a provision in last year’s STELAR legislation (see our article here). One other factor causing stations to wait on any action is the appeal of the FCC’s decision. The Briefing dates for that case have now been set – with initial briefs due on April 13, and the final of series of other briefs and responsive briefs being due on July 27. No oral argument date has been set yet, but it is likely that the argument itself will not occur until late in the year, so there would not likely be a decision until 2016. Thus, stations waiting to hear about the future of JSAs to which they are a party, may not have much time to decide what to do with their arrangements if there is no decision until 2016.
Continue Reading NY Senator Chuck Schumer Supports TV JSA Waivers in Small Markets, Briefing Dates Set in Appeal of FCC JSA Decision

In a post on the FCC’s blog, Commissioner Michael O’Rielly proposed allowing broadcasters to meet their EEO wide dissemination obligations solely through Internet sources. As we recently wrote, broadcasters need to widely disseminate information about job openings at their stations, using sources that are designed to reach all of the major groups that may exist within a station’s recruitment area. These sources could include school groups, minority organizations, social or community organizations, or other population groups that may exist in a station’s community. The current EEO rules, adopted a dozen years ago, suggested that a significant newspaper of general circulation may be one way to reach most of the groups within a community. But, as the Internet was not seen as universally available at that point, the FCC ruled that online sources alone would not be sufficient to meet these wide dissemination requirements. The FCC has continued to enforce that decision, even penalizing stations that relied solely on online sources for wide dissemination purposes (see, for instance, our summary of one such decision fining a number of stations that relied primarily on online sources, here). Commissioner O’Rielly suggests that this does not make sense in today’s world, as the Internet is much more available than the newspaper and other more “traditional” recruitment sources.

The Commissioner cites many statistics about the current availability of the Internet to diverse populations, and points to the fact that virtually all public libraries now have public Internet access, and one of the principal reasons for such Internet access if often to provide employment opportunities. He points to all of the online job sites that now exist, and the relative paucity of job listings in today’s newspaper. Will his proposal go anywhere?
Continue Reading Commissioner O’Rielly Proposes to Bring Mandatory FCC EEO Recruiting Into the Modern Era by Allowing Reliance on Internet Resources

If all goes as scheduled, at the beginning of December, commercial broadcasters will file Biennial Ownership Reports on FCC Form 323. As we wrote when the obligation to file the current version of these reports was first adopted, the FCC’s intent was to be able to track the interests of broadcast investors across all of their attributable ownership interests in various broadcast companies to assess broadcast diversity. To do so, these investors needed to get individual FCC Registration Numbers (FRNs) to track these individuals or entities across their various investments – so that the FCC could tell whether the John Smith who was an investor in a station in Albuquerque was the same John Smith who owned an interest in a station in Zanesville, and whether that person was also the John Q. Smith listed in an ownership report for a station in Missoula (all hypothetical, of course). The FCC assigns these FRNs to individuals based on their Social Security Numbers, and providing those numbers to the FCC created much unease among investors in connection with past filing windows. This caused the FCC to adopt temporary measures for investors unwilling to provide their SSNs to the FCC (see our articles here). In a Notice of Proposed Rulemaking released a week ago, the FCC proposed a new method to gather this information – perhaps hoping that it could go into effect before the new Biennial Report filings but, if not, before the next set of reports due in 2017.

The FCC’s new proposal uses a dazzling assortment of acronyms in discussing how best to keep track of unique broadcast investors across their investments. But the bottom line is that the FCC proposes to create a new Restricted Use FRN (or a “RUFRN”) that could be obtained for an individual submitting to the FCC certain information – including name, residence address, birth date and the last four numbers of their Social Security Numbers. The RUFRN would be used by the individual for reporting purposes in whatever broadcast station they may have an attributable interest. The FCC’s computer systems would be programmed to compare such filings to try to make sure that the individuals obtaining an RUFRN were receiving only a single RUFRN, as there have reportedly been problems with the existing interim system (where investors have received a “Special Use FRN” or “SUFRN” randomly generated by the FCC). The problems arose both because single individuals have been obtaining multiple SUFRNs and single SUFRNs have been used to identify multiple people. While thinking that the proposed RUFRNs would be better than SUFRNs (which required no specific identifying information to obtain), the FCC asks for comments on this proposal.
Continue Reading Protecting Broadcast Investors’ Social Security Numbers for the Biennial Ownership Report for Commercial Broadcasters (and, Potentially, Noncommercial Ones Too)

As we accelerate toward next year’s planned TV incentive auction, it seems like there is news almost every day of interest to television broadcasters who may be affected by the FCC’s efforts to clear TV spectrum so that it can be repurposed for wireless broadband use and sold to wireless companies and the subsequent repacking of remaining TV stations into a smaller TV band. Some of the broadcasters most directly affected by the auction and repacking will be LPTV stations who, thus far, have been promised no compensation should their operations be displaced by the repacking of the TV band, and offered no promises that they will have channels on which they can operate after the auction. The issues for LPTV stations, and the FCC’s proposals to deal with them, were to be addressed at a webinar on Tuesday, but the session was cancelled when the Federal government shut down because of snow in the DC area. The FCC yesterday announced that the webinar has been rescheduled for next Tuesday, February 24 – details in the Public Notice here. We wrote about the FCC’s rulemaking looking at what to do with LPTV stations after the auction here.

One of the big questions that many broadcasters have asked since the FCC rolled out the recent Greenhill Report (see our article here), setting out expected opening prices that will be offered to TV stations to surrender their TV channel, was how many stations could actually expect to be bought out in any market. The NAB released a study yesterday, suggesting that in some markets, it is very likely that the FCC will not need to buy out any stations, whether the auction tries to clear 120 MHz (20 TV channels, the maximum that the FCC has looked at clearing) or only 84 MHz (which some have thought was a more realistic goal). On the other hand, in several large markets and in markets in congested spectrum areas near some of those large markets, the FCC may need to get more than half of the stations in those markets to give up their licenses. The NAB computations are taken from FCC data, and the NAB provides many disclaimers that this information may change as auction plans change over time as different assumptions are made, and also are very dependent on the number of participants in adjoining markets. But the study is nevertheless one that gives some broadcasters an idea of how likely it is for them to really need to be an auction participant. See the NAB explanation of their procedures here, and the complete market-by-market chart of likely TV clearing needs here.
Continue Reading More Incentive Auction News – LPTV Webinar Postponed; NAB Study Looks At How Many Stations Per Market Will Need to Surrender Licenses for Successful Auction; More Auction Seminars Scheduled

The FCC has finally had published in the Federal Register its Notice of Proposed Rulemaking proposing to extend the online public file obligations to radio, satellite radio, cable operators and satellite TV providers. This publication starts the countdown to the filing deadline for the comments in the proceeding. Comments are due by March 16…

The FCC yesterday issued a Public Notice announcing the first set of EEO audits for 2015.  Letters to over 250 radio and TV stations went out asking for evidence of their compliance with the FCC’s EEO rules.  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 – requiring wide dissemination of information about job openings and non-vacancy specific supplemental efforts to educate their communities about job opportunities in the media industry. We recently summarized the FCC EEO issues here, reminding broadcasters of the possibility of being audited, and of the upcoming deadlines for the filing of FCC Form 397 EEO Mid-Term Reports, which will give the FCC another chance to review station EEO performance.  In yesterday’s notice, the FCC released the form audit letter and list of stations that will be audited. Responses from the audited stations are due to be filed at the FCC by March 24. Licensees should carefully review the list of affected stations contained in the Public Notice to see if any of their stations have been selected for the audit. 

The audit letter requires all stations with 5 or more full-time (30 or more hours per week) employees to provide a significant amount of information about their EEO programs and recruiting efforts (including copies of their 2 latest Annual EEO public file reports and documentation backing up the efforts listed on those reports).  Even stations with fewer than 5 full-time employees need to report the names and positions of their employees, and provide any information about law suits, EEOC complaints or similar employment actions brought as a result of equal employment or discrimination matters. 
Continue Reading FCC Announces EEO Audit of Over 250 Radio and TV Stations

With the recent release of the FCC’s report setting out the potential opening bids to buy out the spectrum of TV stations so that it can be resold to wireless companies for wireless broadband, station owners and operators around the country have many questions about how the auction will play out, and what they really …