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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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Time flies, and more regulatory requirements and comment deadlines in regulatory proceedings are upon us in the month of August.  The regular regulatory deadlines include license renewal for TV and LPTV stations in California, and EEO Public Inspection File yearly reports for stations in California, Illinois, North Carolina, South Carolina, and Wisconsin.  Noncommercial TV stations in California and North and South Carolina all have ownership reports on Form 323E due on the August 1, and noncommercial radio stations in Wisconsin and Illinois have ownership report obligations too.  We can also expect that the deadline for submission of Annual Regulatory Fees will be set this month but, as we have not yet heard about that date, the deadline for the fees to be paid may not be until sometime in September.

In addition to the regular filings, there are numerous proceedings in which various government agencies will be receiving comments in proceedings that could impact broadcasters.  Next Wednesday, August 6, the FCC will be taking comments on it Quadrennial Review of the multiple ownership rules. The issues to be considered include the TV ownership rules (including the question of how to deal with Shared Services Agreements) about which we wrote yesterday.  Also to be considered in the proceeding are questions about the radio ownership rules, and the cross-interest rules – including whether to change the newspaper-broadcast cross-ownership rules.  But the FCC is not the only one who will be receiving comments on issues that can affect broadcasters.
Continue Reading August Regulatory Dates for Broadcasters – Renewals and EEO, and Comments on Multiple Ownership, Music Rights, New Class of FM, and Much More

Next week, on August 6, the FCC will be taking the initial comments on its Quadrennial Review of the multiple ownership rules – looking at what limitations should be placed on the ownership of broadcast stations by one individual or company.  As we have written, this Review follows the FCC’s resolution of the last Quadrennial Review, started in 2011, where the FCC made joint sales agreements between TV stations in the same market “attributable interests” – meaning that you can’t enter into a JSA unless you can own that station under the rules.  All of the other issues on the local ownership rules – including whether to change the rules setting the number of radio or TV stations that can be owned in a single market, and whether the rules against the same market cross-ownership of radio and TV stations, and of daily newspapers and broadcast stations should be modified – were pushed back to this new Review, which is not supposed to be finally decided for another two years.  While we wrote about some of the hidden nuggets in this proceeding in defining radio and TV markets here, let’s look a little deeper at some of the other issues involved in the review – today the local TV ownership rules.  In advance of next week’s comment deadline, there has already been much relevant regulatory action this past week – including the FCC’s approval of the Sinclair’s acquisition of the Allbritton TV stations (but only after Sinclair agreed to surrender to the FCC for cancellation TV stations licenses in two markets as its ownership of those stations would not be allowed under the current rules), and a GAO report addressing Shared Services Agreements between TV stations.

Currently, the FCC allows an owner to hold one TV license in a market, except in certain limited circumstances where two can be owned.  An ownership combination is allowed in the normal course only where there would be eight independently owned stations left in the market after the combination, and only where the combining stations are not both Top 4 stations in the market.  The Commission does also allow some combinations where one of the stations is “failing,” but that is looked at only on a case-by-case waiver basis.  Many broadcasters have argued that, particularly in small markets where there is insufficient revenue to support multiple fully competitive stations, greater consolidation should be allowed.  But the Commission has tentatively rejected that idea in its Notice of Proposed Rulemaking in the new Quadrennial Review.  Why?  Seemingly, small market consolidation was not favored on the simple theory that consolidation is bad, and on the hope that, if the FCC forbids consolidation (and stops any sort of sharing arrangement, like the JSAs that it has already prohibited, and the Shared Services Agreements that it has suggested in this proceeding need to be further limited), minorities and other new entrants will enter the market.  Both of this week’s events – the Sinclair acquisition and the GAO report, seem to cut against the FCC’s beliefs.
Continue Reading Comments on Quadrennial Review of FCC’s Broadcast Ownership Rules due Next Week – Local TV Ownership Issues Highlighted By GAO Report and Sinclair Acquisition Approval

We’ve already written twice about the copyright issues being considered this summer before various agencies and branches of government – all dealing with music licensing issues (see our previous Summer of Copyright articles here and here).  The pattern continues, as the Copyright Office has now requested further comments on music licensing issues, following up on its roundtables held across the country during the month of June to discuss its music licensing inquiry begun in the spring (see our summary of the initial Copyright Office notice on its study, here).  In yesterday’s Federal Register, there is a notice asking a series of questions about specific issues that were raised in the roundtables which the Office apparently finds to be of significance.  Additional comments on these issues, and on any related issues affecting music licensing, are due on or before August 22.

What are the questions being asked by the Copyright Office, and what do they portend for its ultimate recommendations to Congress who, as we recently wrote, is itself considering music licensing issues and the potential for a comprehensive reform of music licensing in this country?  The areas in which the questions are being raised are not new ones, but instead continue the themes raised in other forums this summer.  They include questions as to how withdrawals of major publishers from the Performing Rights Organizations (ASCAP and BMI in particular) could affect those organizations.  We first wrote about potential publisher withdrawals and the impact that could have on music services back in 2011.  Also, on a related question, they ask why, when these organizations have collected record amounts of money in recent years, songwriters are complaining that they are economically struggling.  In addition, questions are asked about the procedures used by the Copyright Royalty Board in their rate-setting process and whether those procedures should be revised, how better identification of musical works and sound recordings could be adopted to make recordkeeping and royalty administration easier, how a system of setting mechanical royalties could work without a statutory license, and whether there are international licensing models that might be adaptable to the US market.  Some details below.
Continue Reading The Summer of Copyright, Part 3 – The Copyright Office Requests Further Comments in its Inquiry on Music Royalties and Licensing

Public interest groups are actively watching broadcast political advertising which could make this a very interesting year for broadcasters.  The Sunlight Foundation, which only two months ago filed complaints against 11 television stations for alleged inadequacies in their online political files (see our summary here), has now filed two new complaints alleging that television stations violated FCC rules in recent elections by not identifying the true sponsor of political ads.  In each complaint, Sunlight alleged that ads were tagged as having been sponsored by Political Action Committees, but in each case the true sponsor who should have been identified was the wealthy individual who had contributed all of the funds to the PAC.  Sunlight’s press release about the complaints is available here, and contains links to the complaints themselves.  Is this complaint valid?

The complaint focuses on the language in Section 317 of the Communications Act which requires that when a station broadcasts any content and “consideration is directly or indirectly paid, or promised to or charged or accepted by, the station so broadcasting, from any person,” that person must be identified.  While it seems clear from FCC precedent that person does not mean individual person, as corporations or other legal entities can certainly be sponsors, the compliant submits that this situation is different.  Why?  Because, the petitioners argue, the PACs involved in these cases (one supporting a Republican candidate, the other supporting a Democrat) were effectively each an alter ego for a single individual who provided all the funds for the PAC.  But how is the TV station supposed to know?
Continue Reading FCC Complaints Filed Against TV Stations for Not Identifying the True Sponsor of Political Ads

We wrote last week about the FCC’s determination of which applicants are to be preferred in several groups of mutually exclusive applications for new Low Power FM stations.  We warned full-power FM broadcasters to review the preferred applicants as broadcasters have 30 days from last week’s public notice to file petitions to deny against such LPFM applications citing interference concerns or other issues with those applications.  Now, a number of additional LPFM applications have been found by the FCC to be ready for grant, and broadcasters need to review these applications – and be prepared to review a steady stream of these applications, all with different petition to deny deadlines, over the next few months.  Where did these applications come from?

 In the rules for the LPFM window, the FCC decided that once it made determinations about tentative winners in mutually exclusive groups of applications, all LPFM applicants not selected (or those in ties) could file amendments to their applications seeking new channels – including major changes specifying brand new channels at different sites having no relation to the original application but for meeting the general requirements that the controlling parties in these applicants be local to the service area that they propose to serve.  As these amendments are processed on a first-come, first-serve basis, many LPFM applicants were apparently ready to go with amendments as soon as the list of tentative winners was released.  And these amendments have started to come out on public notices, announcing 30 day petition to deny deadlines (see, for instance, this list of Broadcast Applications released yesterday by the FCC, at pages 8-11).
Continue Reading More LPFM Applications for Broadcasters to Review to Assess Potential Interference Issues, and New Petition to Deny Deadlines

The FCC’s Media Bureau yesterday released a Public Notice asking for comment on a proposal to extend the construction deadline until September 1, 2015 for any construction permit for a digital LPTV station or a TV translator that will expire before that date.  September 1, 2015 is the deadline for all TV translators and…

The FCC on Friday voted to extend its rule about captioning TV video repurposed to the Internet so as to cover not only full television programs, but also clips of those programs.  While the rules already require that TV programming that is captioned when broadcast to be captioned when retransmitted in full over the Internet, the new rules, to be phased in as described below, require that clips of TV programs that were broadcast with captions also be captioned when repurposed for online use.  In addition to adopting the rules for phasing in this new requirement, the Commission also asked several questions in a Further Notice of Proposed Rulemaking, asking some technical questions about the rules that it already adopted, and also whether to expand the requirements to other services and to programming that mixes both programming excepted from TV and programming that is original to the Internet.   

While the full text of the FCC’s decision has not yet been released, from the discussion at the FCC meeting and from its Public Notice about the rules, the outlines of the newly imposed obligations seem fairly clear.  The rules adopted for video clips, and the timeline for the implementation of these rules, are as follows: 

  • January 1, 2016 – captioning for “straight lift” clips, which are defined as a single excerpt of a program that had been captioned when first shown on TV, with the same video and audio as had been broadcast.
  • January 1, 2017 – captioning for video montages – which are collections of clips from different broadcasts, where all had been captioned when broadcast.  
  • July 1, 2017 – captioning for clips of time-sensitive (i.e., live or near-live) programming.  There will be a “grace period” between TV airing and required online captioning of 12 hours for live programming and eight hours for near-live programming.  (The staff confirmed during the post-meeting press conference that once the grace period expires, the posted clip must be captioned; if an earlier, non-captioned version was posted, it must be replaced.)

The Commission discussed that there would be some potential for waivers of these rules for small market stations, but the details of the standards that would apply were not detailed.  Also, there are some limitations on the obligations for posting of video clips that do not apply to the captioning obligations for full-length programs.  Those limitations are discussed below. 
Continue Reading FCC Adopts New Obligations to Caption Online Video Clips of TV Programs

The Supreme Court decision in the Aereo case seemed to be the end of the line for the service that was retransmitting television stations signals without consent, as it found that the broadcasters were entitled to an injunction to force Aereo to cease the public performance of their signals without consent.  In fact, Aereo itself seemed to think so too, shutting off its service soon after the decision.  But in a move that was surprising to some, Aereo has apparently not thrown in the towel, and it is now back in Court with a two-pronged argument as to why its service is still viable (see its letter to the Court here).  First, it argues that, as the Supreme Court seemed to think that Aereo acted like a cable system and should be treated in the same manner as a cable system for purposes of determining whether its retransmission of a television stations signal was a public performance, it might as well be treated like a cable system for all purposes, and thus it should be entitled to carry the signals of TV stations pursuant to the statutory license granted to cable systems by Section 111 of the Copyright Act.  Second, it argues that, even if it does not qualify for treatment as a cable system, it should nevertheless be able to retransmit television signals – just not in real time, as the Aereo contends that the Court decision only prevented simultaneous and near simultaneous retransmissions of the television stations’ signals.  Offering once again a fearless prediction – I doubt these arguments will help Aereo any more than did their arguments before the Supreme Court.

Admittedly, their argument that they qualify as a cable system under the Copyright Act has some appeal.  In fact, as we noted in our summary of the oral argument before the Supreme Court, the Justices even asked why the company did not qualify as a cable company.  Section 111 of the Copyright Act 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.

That language is seemingly broad, covering not just what most of us think as a cable system (one that uses wires to transmit TV programming to the customer), as it talks expansively of “other communications channels” to deliver programming.  Of course, when satellite TV started, they were unsure of their status under this definition, and ended up getting a whole new section of the act to determine their ability to retransmit local TV signals to their subscribers.  But even if this section can be read expansively to cover Aereo, what does that get them?
Continue Reading Not Dead Yet – Aereo Tries To Reinvent Itself By Arguing that it is a Cable System Entitled to Carry Television Stations Pursuant to the Statutory License

More LPFMs are on the way, and broadcasters have 30 days to file any objections to the coming new stations.  In an order just released by the FCC, the FCC applied its “point system” to select the winning applicant in groups of mutually exclusive applications filed in the recent LPFM window in Western states (as far east as Nebraska and Kansas).  Future selectees in other parts of the country will come in later public notices.  This notice starts the clock on several dates – including a 30 day petition to deny period where full-power stations can raise issues of interference and other issues against applicants, and applicants can raise issues against each other.  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.

The FCC’s notice consists of three documents.  First, there is a description of the action taken by the FCC setting out how the points were awarded to applicants, the options now available to the applicants based on the point system determinations, and the deadlines for the Petitions.  Next, there is a list of the applications that were considered, highlighting the winning applicant in each group of mutually exclusive applicants (or the winning applicants if there was a tie under the point system analysis).  The third document lists all of the applicants on the list who requested waivers of the spacing requirements to full-power stations on second-adjacent channels.  Licensees of full-power stations serving areas near these proposed stations should review these applications carefully.
Continue Reading FCC Applies Point System to Resolve Conflicts Between Mutually Exclusive LPFM Applications – Sets Deadlines for Petitions to Deny and Amendments to Applications