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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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With regulatory fees behind us, October brings a number of the routine quarterly regulatory filing dates.  October 10 for all broadcast stations, commercial and noncommercial, is the date by which your Quarterly Issues Programs lists, setting out the most important issues that faced your community in the last quarter and the programs that you broadcast to address those issues, need to be placed in the physical public inspection file of radio stations, and the online public file of TV broadcasters.  As missing and incomplete Quarterly lists have led to more fines in the recent license renewal violation than any other matter, and as the FCC staffers have been reviewing some of the TV station lists that are now posted in the online public inspection files of station, completing these forms on a timely basis remains very important. 

Full power TV and Class A TV stations by October 10 also need to have filed with the FCC their FCC Form 398 Children’s Television Reports, addressing the educational and informational programming directed to children that they broadcast.  Also, by that same date, they need to upload to their online public files records showing compliance with the limits on commercials during programming directed to children.  Children’s television reports have trailed right behind the Quarterly Issues Programs lists as the source of fines at license renewal time – so be sure that these are completed and filed on a timely basis as well. 
Continue Reading October Regulatory Dates for Broadcasters – Quarterly Issues Programs Lists and Children’s Television Reports, New Form for TV CP Applications, Comments on Captioning of Video Clips and Incentive Auction Reimbursement Form and More!

There are more and more signs that the FCC is moving forward aggressively with its “incentive auction” to purchase TV stations so that their licenses can be cancelled and their spectrum sold to and reused by wireless companies for wireless broadband purposes.  In two significant actions this week, the FCC gave broadcasters a first peek at the anticipated value of their stations in an incentive auction, and also clarified the interference standard that will be used by the FCC when they “repack” the stations that do not sell their licenses into a smaller post-auction TV band.  This Declaratory Ruling clarification seems to be addressed to answering some of the questions raised by the NAB in its appeal of the incentive auction order, about which we wrote here (an appeal which has been combined with a separate appeal of the incentive auction order by Sinclair Broadcasting).  But, to most television operators, the more interesting of the two actions is the report issued by the FCC suggesting the values that licensees in the various TV markets might get if they surrender their TV licenses in the incentive auction.

The Report was prepared by an investment banking firm retained by the Commission.  It sets out the procedures for the auction, and how the bidding will work. The report also contains an IRS letter suggesting the tax treatment that would be accorded licensees for incentive auction payments in various scenarios (e.g. a pure surrender of the license, or a surrender of a license as part of a channel sharing agreement, or a decision to move a station from UHF to VHF in exchange for FCC compensation).  But what most broadcasters were most interested in was the chart of projected maximum and median payments to full-power and Class A stations in each of the television markets across the country.  Those projected payments ranged from Los Angeles, where the FCC projected that the maximum that could be paid to a broadcaster for surrendering their license could be as much as $570,000,000, with the median value of a surrendered license being $340,000,000, to much smaller markets where the value, in the smallest television market of Glendive, Montana and in several smaller Alaska markets, where the FCC did not foresee any payments to TV broadcasters for surrendering their licenses.
Continue Reading TV Incentive Auction Moves Forward – FCC Estimates the Value of TV Stations and Clarifies the Interference Standard for Stations Who Remain After the Auction

We wrote last week about some of the upcoming issues on the FCC’s agenda for the very short term related to the TV incentive auction to clear part of the TV spectrum for use by wireless companies, and the subsequent “repacking” of the TV stations who do not sell their licenses in the auction into the new smaller TV band.  On Thursday, the FCC took a step to make that repacking somewhat more concrete – releasing a Public Notice where the FCC’s Media Bureau seeks comment on a draft TV Broadcaster Relocation Fund Reimbursement Form (the draft form is here, and draft instructions to the form can be found here).  This will be the form that broadcasters will use to claim payment from the government for the costs of the repacking.  The Bureau asks for comments on the draft Reimbursement Form.  The comments are due on October 27, 2014.

The form provides a checklist of likely expenses, asking for details of the equipment to be bought and other expenses to be incurred in making the transition, including both hardware costs and soft costs including the reimbursement of tower crews, consulting engineers and even broadcast attorneys for filing the necessary FCC forms.  Broadcasters should carefully review the draft form to make sure that it anticipates all categories of expected expenses that stations may incur in the repacking process.
Continue Reading FCC Seeks Comments on Form for Reimbursement of Expenses for Technical Changes Caused By Repacking the Television Specrum After the Broadcast Incentive Auction

As the summer of copyright comes to an end, the music licensing issues which arose causing me to repeatedly write about this extremely contentious season in copyright law are by no means finished (see the most recent of our Summer of Copyright articles here).  In fact, on the first full day of autumn, we received a very interesting decision out of a US District Court in California on the lawsuit brought by Flo and Eddie against Sirius XM, finding that the music service improperly failed to pay royalties for the public performance of pre-1972 sound recordings from the duo’s former band, the Turtles (a copy of the decision can be found in this Billboard article).  As we have written before, Flo and Eddie brought suit against Sirius XM, arguing that the service needs to get permission to make public performances of these recordings and, by not doing so, it violated their California state law copyrights. 

Pre-1972 sound recordings first registered in the US are not covered by Federal law, so the current mechanism for Sirius XM to pay for the digital public performance of sound recordings (paying a royalty, set by the Copyright Royalty Board, to SoundExchange) does not exist.  To the surprise of many (including this author) the Court concluded that there is in fact a public performance right in pre-1972 sound recordings under California state law, and went on to conclude that Sirius XM violated its obligations under the law to pay for the use of music.  This decision, on a summary decision motion, may quite well be appealed.  The issue is also before many other courts, both in California and elsewhere.  But this decision is certainly worth review, as it could have an impact not only on digital services, but also on any other company that publicly performs such recordings – including other digital music services, bars and restaurants, stadiums, and potentially even broadcasters.
Continue Reading Court Rules in Favor of Flo & Eddie in California Suit Against Sirius XM for Public Performance of Pre-1972 Sound Recordings – What Does This Decision Mean for Broadcasters, Digital Media Companies and Other Music Users?

Every election season there is the same refrain from candidates who are attacked in political ads run on broadcast stations – that ad is unfair and the broadcaster who is running it should take it off the air.  Sometime, that request is sent by a lawyer with threats to bring legal actions if the broadcaster does not stop airing the ad.  What is a broadcaster to do when it gets one of these requests to pull a political ad from the air?  While we have written about this issue many times before (see, for instance, our refreshers on the rules with respect to candidate ads, here, and non-candidate, third-party attack ads, here), questions still come up all the time.  Thus, broadcasters need to know the rules so that they don’t pull an ad that they are not allowed to censor under the FCC’s rules, and that they don’t run one for which they could in fact have liability.

The rules are actually fairly simple in concept, and for ads sponsored by candidates themselves, the rules are fairly simple for broadcasters to implement.  It’s very basic – broadcasters can’t censor a candidate ad, so they can’t reject it (or remove it from the air) no matter what its content is.  The FCC has made only one exception to this “no censorship” obligation.  That exception was adopted when Larry Flint was planning to run for Federal elective office and stations feared that he would run sexually explicit campaign ads.  At that time, the FCC adopted a policy that broadcasters need not run an ad that would violate a Federal criminal law (e.g. obscenity).  That is a very narrow decision, as the Courts have even forced the FCC to make stations run without censorship graphic anti-abortion ads with disturbing content, where such ads would not be legally obscene (they might be indecent under FCC rules, and may be disturbing to some, but the airing is not a criminal violation, so the Courts said that they cannot be blocked by a broadcaster).  Because broadcasters have essentially no choice but to run a political ad in the form that the candidate provides it, and cannot reject it based on content, the Supreme Court has recognized an exemption from any broadcaster liability for the content of the ad.  So the candidate who claims that he is libeled or defamed by the political ad needs to seek relief from the candidate who ran the attack ad, not from the station.  But there are some important details that need to be observed to make sure that there is no liability for the broadcaster.
Continue Reading Questions about the Truth of Political Ads, What’s a Broadcaster to Do When a Candidate Complains About an Attack Ad? – The No Censorship Rule for Candidate Ads

In a case that has been watched by many AM licensees and debated at a number of broadcast conferences in the last few years, the FCC on Friday denied the “Tell City waiver,” by which the licensee of an AM station in Indiana sought to buy an FM translator in Kentucky and move it to Indiana, on a non-adjacent channel, and use it to rebroadcast their AM station.  This sought to expand the “Mattoon waiver” (about which we have written many times including articles here and here) which effectively changed the definition of a “minor change” for an FM translator that could be approved in a single application, without waiting for any sort of translator filing window. 

The current rules define a minor change as one where the translator’s 1 mv/m service contour at both the current and proposed sites overlap.  The Mattoon waiver treated applications as minor changes where the service contours did not overlap – as long as the interfering contour of the translator at one site overlapped with the protected contour of the station at the other site – essentially meaning that a translator could not exist at both the current and proposed sites without prohibited interference.  The Tell City waiver would have eliminated even that connection between the present and proposed sites for the translator – allowing essentially a move of any FM translator from one place to another, and from one frequency to another, regardless of whether the new location had any connection with the original site.  That attempt to stretch the definition of a minor change led the Commission’s Media Bureau to deny the request.
Continue Reading FCC Denies “Tell City Waiver” to Move Translator to Distant Non-Adjacent Channel to Rebroadcast AM Station

While many broadcasters have been watching Capitol Hill as Congress debates the issues surrounding the extension of satellite TV’s copyright permission to retransmit over-the-air television signals, and the attempts to add other provisions to the bill that could affect television stations, there are a number of issues teed up at the FCC that could also affect the industry.  In the tentative agenda for the September 30 FCC open meeting, there are two issues being considered that have impact on TV.  One has received much press coverage is the repeal of the sports blackout rule that leads to the blackout of local coverage of NFL games when the game is not sold out.  From a blog post by the Chairman (available here), and statements of other commissioners, it appears that this rule is headed for repeal – though the actual blackouts may continue by contract rather than FCC mandate. 

The other issue on the agenda that has received less press, and about which less is known, is changes to the rules on white-spaces devices, those wireless devices that have been authorized to operate on a non-interference basis in the portions of the TV band that are not being used in particular markets.  We wrote about the adoption of the current rules, here, and we will be watching to see what changes to these rules are adopted later this month.  Also on the agenda, with possible relevance to television and other media companies, is an item to further consider how to regulate the use of wireless microphones.
Continue Reading FCC Action on TV Issues Coming Soon – Sports Blackout Rule, White Spaces, Post-Auction Treatment of LPTV and TV Translators, and OET-69 Revisions

Another set of mutually exclusive LPFM applications have been reviewed and tentative point system winners (or applicants headed for shared time arrangements where they remained tied after the FCC’s “point system” analysis) have been determined by the FCC.  These determinations involve 111 mutually exclusive groups of LPFM applicants, mostly east of the Mississippi.  We wrote two months ago about a group of Western applications that had already been considered by the FCC.  The issuance of this notice gives broadcasters 30 days to file any objections to these proposed new stations.  In addition, applicants can raise issues against each other.  All objections are due on October 6. 

The notice also sets a 90 day window for LPFM applicants whose applications were under consideration in this notice to file applications to make changes in their applications – including major changes to new frequencies or different transmitter sites.  So applicants who were not the tentative winners in the FCC’s consideration of the mutually exclusive groups have another shot to get the rights to construct a station, if they can find an open frequency in the next 90 days.  And broadcasters need to watch these amendments, as they could pose interference issues on entirely new channels not previously proposed for use by any LPFM applicant. 
Continue Reading FCC Announces Tentative Winners for 111 Groups of Mutually Exclusive LPFM Applications – FM Broadcasters Have 30 Days to Raise Interference Objections

With the lowest unit charge window for the November elections kicking into effect tomorrow (September 5), we thought that it was a good idea to review the basics FCC rules and policies affecting those charges. With each election seemingly breaking spending records from prior cycles, your station needs to be ready to comply with all of the FCC’s political advertising rules. Essentially, lowest unit charges guarantee that, in the 45 days before a primary and the 60 days before a general election, candidates get the lowest rate for a spot that is then running on the station in any class of advertising time. Candidates get the benefit of all volume discounts without having to buy in volume – i.e. the candidate gets the same rate for buying one spot as your most favored advertiser gets for buying hundreds of spots of the same class. But there are many other aspects to the lowest unit rates, and stations need to be sure that they get these rules right.

It is a common misperception that a station has one lowest unit rate, when in fact almost every station will have several – if not dozens of lowest unit rates – one lowest unit rate for each class of time. Even on the smallest radio station, there are probably several different classes of spots. For instance, there will be different rates for spots that run in morning drive and spots that run in the middle of the night. Each of these time periods with differing rates is a class of time that has its own lowest unit rate. On television stations, there are often classes based not only on daypart, but on the individual program. Similarly, if a station sells different rotations, each rotation on the station is its own class, with its own lowest unit rates (e.g. a 6 AM to Noon rotation is a different class than a 6 AM to 6 PM rotation, and both are a different class from a 24 hour rotator – and each can have its own lowest unit rate). Even in the same time period, there can be preemptible and non-preemptible time, each forming a different class with its own lowest unit rate. Any class of spots that run in a unique time period, with a unique rotation or having different rights attached to it (e.g. different levels of preemptibility, different make-good rights, etc.), will have a different lowest unit rate.
Continue Reading The Political Window Opens Tomorrow – A Refresher on the Basics of Lowest Unit Charge

Get ready for more challenges to issue ads that you may be receiving this election season.  The FCC’s Media Bureau today released a brief decision on the Sunlight Foundation’s complaint petition against two TV stations concerning the proper sponsorship identification for ads by Political Action Committees.  We wrote about those complaints when they were filed back in July, here.  The complaints, arising from elections that took place last year, targeted two PACs that each had single individuals who had donated substantially all of the money that was raised by the PAC.  Sunlight claimed that the stations should have tagged as the true sponsors of the ads the individuals who had provided virtually all of the money for the PACs.  Sunlight alleged that these stations should have known who the true sponsors of the ads were, based on news reports that were run on the stations talking about the individuals who had funded the PACs.  Instead, the stations had run sponsorship identifications identifying only the PACs as the sponsors of the ads. 

In today’s action, the Bureau dismissed the complaints.  However, the Bureau did not find Sunlight’s allegations to be incorrect.  Instead, the complaints were dismissed because Sunlight never went to the stations to ask that they change the sponsorship identification on the PAC spots during the course of the election.  The Bureau stated that it was using its “prosecutorial discretion” not to pursue these complaints, going so far as to say that the ruling might have been different had the request for a proper identification been made to the stations during the course of the election.
Continue Reading Identification of Sponsors of Non-Candidate Political Ads May Be More Controversial This Election Season as FCC Suggests that Broadcasters May Need to Determine Who is Behind Third Party Ads