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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 so much going on at the FCC and in connection with other topics that we consider, I’m sometimes late getting to all of the issues that arise, and sometimes never mention some of them.  But there is one interesting and important proceeding that the Commission has recently resuscitated and is worthy of mention – the proposal to mandate multilingual emergency alerts by broadcast stations – even when the station broadcasting in a language other than English is knocked off the air by some local emergency.  The proposal would require that all primary EAS stations broadcast national alerts in both English and Spanish, and that state EAS plans should designate stations to provide emergency information in other languages where there are significant populations that have a primary language other than English or Spanish.  Not only that, but English language stations in these areas are proposed to have to play a back-up role, ready to step in and provide emergency information in one of these languages should the primary station serving a particular non-English speaking population be forced off the air.  Comments on this proposal are due on April 28, and replies by May 12.

This is not a new proposal, having first been raised by MMTC (the Minority Media Telecommunications Council) in 2005 after there was a perceived failure to get information to minority populations in the area of Hurricane Katrina.  In recent filings, MMTC has suggested that broadcasters need to work together with local authorities to develop a plan that communicates each party’s responsibility based on likely contingencies. Specifically, MMTC stated, “Such a plan could be modeled after the current EAS structure that could include a ‘designated hitter’ approach to identify which stations would step in to broadcast multilingual information if the original non-English speaking station was knocked off air in the wake of a disaster.” What are the potential issues with such an approach? 
Continue Reading FCC Requests Comments on Proposal to Require Multilingual EAS Alerts – Comments Due April 28

In discussing music royalties, the controversy that usually makes the news is the dispute between music services and copyright holders – with services arguing that the royalties are too high and rightsholders contending that they are underpaid. The introduction of the Songwriters Equity Act in Congress earlier this year seems to point toward a new area of dispute – one between the various rightsholders themselves.  This issue was one that was much discussed on a panel that I moderated last week at the RAIN Summit West (audio of that panel is available here).  What is this conflict?

The Songwriters Equity Act, while not explicit in identifying the controversy, does point to the dispute. As we have written many times before, in any piece of recorded music, there are two copyrights – the sound recording copyright (also known as the “master recording,” the recording of a particular song by a particular artist, rights usually held by the record label), and the right to the musical work (or “musical composition,” the words and music to a song, usually held by a publishing company).  The proposed legislation suggests that the amount of the royalties for the public performance of sound recordings can be taken into account in setting the royalties that are payable to songwriters for the public performance of the songs that they have written.  This would amend Section 114(i) of the Copyright Act, which currently prohibits the consideration of the sound recording royalty in determining the rates to be paid for the public performance of musical works.  The proposed legislation would also substitute the “willing buyer, willing seller” standard for the 801(b) standard in setting rates under Section 115 of the Copyright Act, the mechanical royalty (see our discussion of the difference between these standards, here).  While this does not sound like a big deal, it may have a significant impact.
Continue Reading Raising the Royalties for Musical Works? A Discussion of the Potential Dispute between Music Rights Holders over the Value of Their Rights

The FCC is now taking comments on the proposal to do away with the syndicated exclusivity and network nonduplication protection rules.  The Further Notice of Proposed Rulemaking, about which we wrote here, was published in the Federal Register today, giving interested parties until May 12 to file their initial comments, and…

The FCC on Friday issued a reminder to all TV stations that, as of July 1, they will have to upload all of their new political broadcasting documents to their online public files.  Up to this point, only stations affiliated with the Top 4 networks in the Top 50 markets had to worry …

The Copyright Office recently issued a Notice and Request for Public Comment on a study that they have commenced on music licensing in all of its forms.  We’ve written about the complexity of the music licensing process many times, and about proposals for reform.  Many of these proposals have been issued in connection with the speeches of Copyright Register Maria Pallante’s discussion of copyright reform (see our article here), and the subsequent Green Paper on Copyright issued by the Patent and Trademark Office (see our article here).  This Notice appears to be one more step in this overall review of copyright underway throughout the administration and in Congress.  The Notice released by the Copyright Office is wide-ranging, and touches on almost every area of controversy in music licensing.  Comments are due on May 16, and the Copyright Office promises to hold roundtable discussions to further explore the issues in music licensing.

The issues on which the Copyright Office asks for comments deal both with the licensing of the musical composition or musical work (the words and music of a song) and the sound recording (the song as actually recorded by a particular artist).  The request deals with both the public performance right for musical compositions, usually licensed through ASCAP, BMI and SESAC, and the rights to make reproductions of the works, which are usually licensed by the music publishers, sometimes through organizations like the Harry Fox Agency.  On the sound recording side of the music world, the rights are usually licensed by the record company except for the public performance royalties paid by non-interactive music services, which are collected in the United States by SoundExchange. 
Continue Reading Copyright Office Begins Wide-Ranging Inquiry Into Music Licensing

While we are waiting for the full text of the FCC’s decision  taken Monday on the multiple ownership rules, rolling one Quadrennial Review into another and prohibiting most Joint Sales Agreements, we can look in more detail at the FCC’s decision on retransmission consent issues.  We wrote about the historical background of both of these issues earlier this week.  When that is finally released, the full text of the decision will give us the details of the multiple ownership decision.  But the Commission has released the full text of its decision prohibiting two independently owned Top 4 TV stations in the same market from jointly negotiating retransmission consent agreements, and starting a further proceeding to look at whether the network non-duplication and syndicated exclusivity rules should be abolished.

The restriction on the joint negotiation of retransmission consent agreements was founded on the FCC’s sense that such joint negotiations gave the negotiating stations too much power in their negotiations with cable systems and other multichannel video providers.  The Commissioners concluded that this meant that TV stations engaged in such joint negotiations could get more money from cable systems than they could get if they negotiated independently.  While the statements made by the Commissioners at Monday’s open meeting suggested that such negotiating power led to higher rates paid by consumers, the evidence cited by the Commission was principally based on theoretical arguments by economists as to the ability of jointly-negotiating stations to get these high rates.  What specifically did the FCC prohibit?
Continue Reading Details of the FCC Decision Prohibiting the Joint Negotiation of Retransmission Consent By Local TV Stations and Starting Proceeding to Examine Syndex and Network Nonduplication Protections

The FCC meeting yesterday proposed to attribute Joint Sales Agreements (making them “count” for multiple ownership purposes – meaning that one broadcaster can’t do a JSA with another station unless it can own the other station).  The Commission also apparently kicked the can down the road on all other multiple ownership matters – not changing the local TV ownership rules or amending the newspaper broadcast cross-ownership restrictions, instead deciding to further consider any modification of the rules.  No decision on these issues is expected until probably 2016.  See the FCC’s Public Notice of that action here.  Shared Services Agreements will also be examined – though new ones have effectively been put on hold during the course of the examination by an FCC processing policy released two weeks ago that requires that any party proposing any sort of sharing agreement in a transaction requiring FCC approval demonstrate how that sharing agreement serves the public interest.  Also at the meeting, the FCC took actions to ban joint negotiation of retransmission consent fees by any two of the top 4 rated stations in a TV market, and to reexamine the network nonduplication and syndicated exclusivity rules (see the FCC’s decision here).  While we will have more details on these decisions in the coming days, as we fully analyze the texts of the FCC decisions as they are released, for now it is interesting to look at these decisions with the perspective of history.

Having represented broadcasters in Washington for over 30 years, one sees many of the same issues debated over and over again.  Many of the issues that were thought to be settled years ago come to the fore after most of the participants at the FCC, and even those in industry, forget that these battles had already been fought and seemingly decided.  In introducing the FCC’s examination of Shared Services Agreements at yesterday’s meeting, the representative of the FCC’s Media Bureau talked about how the examination of each transaction will be important for the FCC to determine if there are too many interlocking ties between stations that are supposed to be competitors in a market.  Not mentioned was the fact that this same kind of review used to be done by the FCC under what was called the “cross-interest policy,” a policy that was repealed by the FCC in 1988.
Continue Reading FCC Attributes JSAs, to Examine SSAs and Network Nonduplication and Syndex Rules – A Return to the 1980s?

An active political broadcasting season is already upon us, with things more likely to get even more hectic between now and November.  Are you ready to handle all of the FCC’s political broadcasting obligations?  We’ve prepared an updated Guide to the FCC’s political broadcasting rules in a question and answer format, and it is available here.  We hope that this Political Broadcasting Guide will give you a primer on many of the questions that arise in any political broadcasting season so that you can intelligently discuss the issues with your attorneys when issues arise, and with your staff and media buyers when dealing with routine matters.  And the issues will arise.

Already we have seen a number of contested races, including a primary for the November elections recently held in Texas, and a special election in Florida to fill an open House seat. As in any other even-numbered year, all of the US House of Representatives and one-third of the seats in the US Senate will be filled in the November elections, and there are a great many elections for state and local offices, including many high-profile governor’s races, that will be contested this year.  Check out our 2014 Broadcasters Calendar for some of the upcoming dates for primaries and lowest unit rate windows in your state.  As explained in our Political Broadcasting Guide, there are things that you should be doing now to get ready for the political season, and you will have obligations to potential candidates once they become legally qualified candidates, even if you are not yet in the political window (45 days before a primary and 60 days before a general election).  For instance, as we wrote here, reasonable access applies to Federal candidates even outside the political windows, and equal opportunities and the paperwork and public file requirements apply to all candidates as soon as they are candidates – even outside the actual lowest unit rate windows.
Continue Reading Answering Your Questions on the FCC’s Political Broadcasting Rules – A Guide to Political Broadcasting from Candidates and Issue Advertisers

The agenda is out, and the FCC’s likely action on their Quadrennial Review of the multiple ownership rules now seems to be much clearer.  And the decision seems likely to follow the rumors circulating in Washington for weeks (about which we have written here and here), with new regulatory wrinkles added to those previously suggested.  According to a blog post by the FCC Chairman, the plans are for the FCC to attribute JSAs where one TV broadcaster sells more than 15% of the ad time on another station in its market (meaning that such a JSA is only permissible if the stations can be commonly owned).  In addition, the Commission will prohibit TV non-commonly owned TV stations from jointly negotiating retransmission consent agreements with cable and satellite TV providers.  A further review of Shared Services Agreement is apparently in the works as well.  The Commission will apparently do nothing about the FCC’s cross-ownership rules, leaving in place rules prohibiting joint newspaper-broadcast cross ownership and even radio-TV cross-ownership rules, asking for comments on a proposal to actually retain those rules in a new Quadrennial Review that it will start on March 31. 

Retransmission consent is also on the agenda.  The agenda indicates that not only will the Commission ban joint negotiation of retransmission consent fees by stations involved in a JSA, but it will seek more information on other issues involved in the relationship between broadcasters and MVPDs (cable and satellite TV providers).  Specifically, the Commission will look at whether to repeal the network nonduplication and syndicated exclusivity rules which prohibit MVPDs from importing TV signals that infringe on the exclusive rights held by a local station to network and syndicated programming.  Were these rules to be abolished, to the extent that retransmission agreements permit it, distant signals might be imported by an MVPD when the MVPD and local television station were having a retransmission dispute, lessening the leverage of the local station from its ability to withhold its programming. 
Continue Reading FCC March 31 Agenda to Consider TV JSAs and Retransmission Consent Issues – Lots of Controversy for TV Broadcasters

The FCC has recently staked out a policy that the any use of EAS tones, or tones that sound like those alerts, outside of a real emergency, will lead to big fines.  Since the beginning of the year, the FCC has issued notices proposing fines totaling over $2.2 million against some of the biggest media companies in the country for such violations (see this decision proposing a $300,000 fine against Turner Broadcasting System Inc. for tones mimicking the EAS alerts that were included in a commercial transmitted nationwide in cable network programming, and this decision imposing cumulative fines of over $1.9 million on 3 cable network programmers for transmitting ads for the movie Olympus Has Fallen that included portions of the EAS alert tones).  Only days after the latter decision, a new warning about EAS tones or sound effects made to mimic those tones was sent out by the Southern California Broadcasters Association alerting broadcasters to a commercial for a charcoal briquettes company that seemingly contained such tones.  Given the strict liability that the FCC has been imposing for such commercials, watch for this recent ad and any other programming that might contain EAS tones or anything that sounds like them – and keep them off the air. 

With past warnings on this issue (see our article from November about another set of FCC fines for similar broadcasts,  and the release of an FCC press release warning media companies about the issue) and the recent large fines imposed on major media companies – both broadcast and cable – it is clear that all media companies need to be on the alert to monitor their broadcast material for the any content sounding like EAS alerts, and advertisers and program producers need to be aware that anything they produce that contains the alert tones is likely to cause problems at the FCC.  Note that these recent decisions imposed penalties on cable networks – so it is not just licensees who need to be vigilant.  In these decisions, the FCC has rejected any arguments that the media companies that transmitted the advertising containing the alert tones should be excused from liability as they did not themselves produce the ads.  So watch for these tones – even if they are packaged in someone else’s programming. 
Continue Reading Be on the Alert for EAS Tones in Non-Emergency Situations – Big FCC Fines for These Violations and Other EAS Issues