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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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TV stations in markets outside of the Top 50, and stations in the Top 50 markets that are not affiliated with one of the Big 4 networks, need to begin to upload new material placed into their political files into their Online Public File as of July 1 – just a few weeks away.  David O’Connor of my firm and I conducted a webinar for television broadcasters from 7 states last week, where we discussed this new obligation for smaller TV stations, and talked about what documents are supposed to go into the political file.  We also reviewed the content of the NAB forms that are helpful in tracking the documentation that needs to go into the political file.  The slides from that presentation are available here.

 As we wrote in April, the FCC has already reminded broadcasters of this new obligation as of July 1, and there does not appear to be any potential that the obligation will be changed between now and the July 1 effective date.  Broadcasters need not upload political file contents that were placed into the file before July 1 (they should continue to be kept in the station’s paper file for the two-year required holding period).  But, starting on July 1, all new political file documents need to be placed into the station’s Online Public file accessible through the FCC website.
Continue Reading A Presentation on the Obligations of Small Market TV Broadcasters to Begin To Upload Their Political Files into Their Online Public File as of July 1

The Copyright Royalty Board has extended the deadline for comments on proposals to change the recordkeeping obligations of webcasters and others who use music under the statutory license granted by Section 114 of the Copyright Act.  Some of the proposed changes include requiring that services provide ISRC codes for all songs when filing their Reports…

In the last few weeks, while I was on vacation and otherwise occupied, there have been many big developments in the broadcasting and music industries that I’ll try to write about separately – including the release of the FCC’s Order setting up the first official outline of the television incentive auction process and the Department of Justice beginning an examination of the antitrust consent decrees that govern ASCAP and BMI.  But a couple of quick FCC decisions bear mentioning here.

First, the FCC announced a change in the CALM Act, regulating loud commercials.  We wrote about the FCC’s order implementing the Act, here.  One of the FCC’s decisions in implementing the Act was that stations could comply with its provisions by meeting the standards set out in A/85 Recommended Practice, a standard adopted by the ATSC (the Advanced Television Standards Committee).  The FCC noted that such standards would be revised from time to time.  That standard has now been revised by ATSC, and stations, to remain in compliance with this safe harbor for compliance under the CALM Act, are expected to comply with the revised standard by June 4, 2015.
Continue Reading Odds and Ends – CALM Act Revisions, New Effective Date for Higher FCC Application Fees, and a Case Exploring the Reach of the FCC Character Policies

The FCC’s proceeding on its multiple ownership rules, adopting rules that make Joint Sales Agreements “attributable” (meaning that they “count” for multiple ownership purposes – one TV station can’t do one with another unless it can own that other station) and starting a new proceeding to review its other ownership rules, was adopted in late …

In today’s Federal Register, the FCC is published its new rule on prohibiting the joint negotiation of retransmission consent agreements by stations that are not commonly owned.  According to the notice, “it is a violation of the duty to negotiate retransmission consent in good faith for a television broadcast station that is ranked among the …

The National Association of Broadcasters on Monday asked the US Court of Appeals for the District of Columbia to overturn the interim processing policy statement adopted by the FCC’s Media Bureau requiring that the FCC scrutinize every new Shared Services Agreement.  As we wrote last month, the FCC has decided that television Joint Sales Agreements should not be permitted unless the stations involved could be commonly owned.  It also commenced a new rulemaking proceeding to review its multiple ownership rules, including specifically Shared Services Agreements.  The rulemaking notice indicates that the FCC thinks that Shared Services Agreements should be limited, but it is asking for public comment as to what kind of sharing is in the public interest, and which should be prohibited.  Any restrictions on SSAs are but a proposed FCC action, and not any sort of final rule.  Nevertheless, the FCC’s Media Bureau, two weeks before the decision starting the rulemaking proceeding on SSAs, instituted an Interim Policy, effectively requiring a case-by-case analysis of all new agreements that involve sharing arrangements.  It is that interim policy that the NAB is challenging.

What the NAB is saying is that this policy effectively creates new law without the Commission making any decisions in the rulemaking proceeding – effectively prejudging that proceeding even before the public comments have been received.  And the policy does in fact change what had been permitted in the past, as many SSAs had been approved in various FCC proceedings.  Even the standards applied to the evaluation of whether or not such agreements are in the public interest change established FCC policy, e.g. suggesting that any involvement in the financing of one station by another, including the guarantee of a loan, would be impermissible – contrary to explicit decisions by the FCC that loan guarantees were not an ownership attribution issue.  Similarly, options and other potential future ownership rights, under the interim processing guidelines, give rise to a suggestion that the deal is not in the public interest – contrary to FCC decisions made after notice and comment rulemaking proceedings on the multiple ownership attribution policies – that contingent future ownership rights did not give rise to attribution for multiple ownership purposes unless such future interest rights were exercised. 
Continue Reading NAB Files Court Challenge to FCC’s Shared Services Agreement Interim Policy

Two weeks ago, we wrote about the complaints filed against 11 big-market TV stations about deficiencies in the political broadcasting paperwork in their online public file.  This week, the FCC’s Office of Political Broadcasting in its Media Bureau sent letters to all of the stations involved, asking that the stations respond to the complaints and provide details about the factual assertions that were made, by May 27.  At the same time, the FCC Chairman issued a Statement, reminding TV broadcasters of the importance of the political file, and how seriously the FCC takes any violations of its rules.

While having the FCC staff respond to complaints with requests for more information is not unusual, the speed with which the letters were sent is.  Rarely does a complaint trigger an FCC response in less than two weeks.  And rarer still is an accompanying press release from the FCC Chair talking about the importance of the subject matter of the complaint.  These actions only serve to highlight what we wrote last week – that stations need to be vigilant in reviewing their online public files – and particularly the political files – to make sure that the records are accurate and timely.  And, as stations in smaller markets need to be ready to put their political files online by July 1, they need to be prepared as well. 
Continue Reading FCC Chairman Reminds TV Broadcasters of the Importance of their Online Political File Obligations as its Staff Investigates Complaints about Deficiencies

On Friday, the Copyright Office extended by one week the deadline for comments on its wide-ranging proceeding on the current music licensing regime and whether reforms are necessary or appropriate.  We wrote about the proceeding and the many questions that it raises here.  Comments are now due on May 23.  Comments can be filed on the Copyright Office website, here. 

In addition, the Copyright Office announced a series of three roundtable discussions to be held at different sites across the country – in Nashville, Los Angeles and New York.  At these roundtables, stakeholders in the music industry and interested members of the public can address the issues raised in the Inquiry.  Interested parties who want to be considered for guaranteed participation in the round table discussions need to sign up by May 20, using the form available here.  At that same link, the discussion topics for these roundtables are set out – covering the broad range of music royalty and licensing issues raised in the Inquiry.  Clearly, this is an important proceeding in which many in the music and media industries will want to participate – but it is just one of many proceedings that may affect the way that broadcasters and digital media services use music in the future.
Continue Reading Copyright Office Announces One Week Extension for Comments on Music Licensing Inquiry and 3 Roundtable Discussions of the Issues – Just One of Many Proceedings Affecting Music Rights and Royalties

The Zapple Doctrine was an outgrowth of the FCC’s Fairness Doctrine.  The Zapple Doctrine required that broadcast stations that give air time to the supporters of one candidate in an election give time to the supporters of competing candidates as well. Even though the Fairness Doctrine has been defunct for years, having had various manifestations of the Doctrine declared unconstitutional either by the Courts or the FCC, Zapple apparently lived on, or at least a death certificate had never been issued (see, for instance, our articles mentioning the continued life support of the Doctrine, here and here).  Thus stations had to be concerned about giving air time to supporters of political candidates for fear of having to provide a similar amount of time to those supporting competing candidates.  Apparently, that uncertainty has now been resolved, as in two just released cases, the FCC”s Media Bureau has declared that Zapple, like the rest of the Fairness Doctrine, is dead.

The cases just decided (available here and here) both involved the recall election of Wisconsin Governor Scott Walker, where complaints were filed against the renewals of two radio stations, complaining that those stations did not provide equal opportunities to supporters of Walker’s recall opponent even though station hosts provided on-air support for Walker.  The FCC rejected those complaints, declaring:

Given the fact that the Zapple Doctrine was based on an interpretation of the fairness doctrine, which has no current legal effect, we conclude that the Zapple Doctrine similarly has no current legal effect.

So why didn’t the FCC’s equal opportunities rule, which is still in effect, apply to this situation?
Continue Reading FCC Decides that it will No Longer Enforce the Zapple Doctrine – Killing the Last Remnant of the Fairness Doctrine

This week brings news that a Virginia broadcaster has brought suit to have a court declare that broadcasters who stream their signal on the Internet, but limit the reception of the signal to within 150 miles of their transmitter site, should not have to pay royalties to SoundExchange.  As we have written before, when Congress adopted the digital performance royalty for sound recordings in the late 1990s, there was an absolute exemption from the sound recording performance royalty for broadcast transmissions, embodied in Section 114(d)(1)(A).  That exemption is not limited by the 150 mile rule.  However, there is another section of the law, Section 114(d)(1)(B), that also exempted from royalty payments retransmissions of broadcast transmissions.  The law exempted from the 150 mile limit those retransmissions done by other broadcast stations.  Thus, FM translators, for instance, can rebroadcast their primary station beyond the 150 mile rule without triggering a sound recording performance royalty.  So what was the section on the 150 mile zone for retransmissions intended to cover?

This issue was raised back in the early days of webcasting, when questions were raised as to whether simulcasting of broadcast transmissions were covered by the 150 mile rule.  There was some thought that it was in the early days of Internet radio.  In the first webcasting decision (the one conducted by a Copyright Arbitration Panel – or CARP, before the Copyright Royalty Board came into existence), evidence was cited that Yahoo! Music, growing out of Mark Cuban’s Braodcast.com which built its business on the retransmission of broadcast station’s over-the-air signals, had set up its royalty structure negotiated with the record labels to take into account that broadcast simulcasts would be exempt.  But the Librarian of Congress issued a ruling rejecting that premise for a number of reasons.  See the decision here.  These included that, because Internet retransmissions of broadcast signals could not be geographically limited, they could not be encompassed within the 150 mile exception of 114(d)(1)(B).  The Librarian read the exception as encompassing only retransmissions that could be limited to being wholly within the 150 mile zone.  The Librarian also looked at Section 112, and did not find a similar exception in that section which grants a statutory license for the ephemeral copies made in certain transmissions, and thought that such an exemption would be necessary for the retransmission of broadcast signals on the Internet. (We have discussed ephemeral rights before, see e.g. here and here). There the issue sat until the case filed last week.
Continue Reading Broadcaster Asks Court to Declare that Internet Simulcasts of Radio Station Exempt From SoundExchange Royalties If Geo-Limited to a 150 Mile Zone