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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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The FCC this week announced groups of mutually exclusive (“MX”) LPFM applications, i.e. those groups where applications are for the same or adjacent channels where the grant of one application in the group would preclude other applications in that same group.  The Public Notice is here, and the list of MX groups is here.  The importance of the FCC’s announcement for LPFM applicants is that it gives the applicants 60 days, until February 14, 2014, to amend their applications to make minor changes that will resolve the MX situations (e.g. moving to an adjacent or IF channel or making a slight site change that will eliminate the interference with the other applications that would result if the applications were granted as they now stand). 

Applications left in the MX group at the end of the 60 day period will be subject to a “point system” analysis, granting the application which has the highest number of points in the FCC’s system for deciding between mutually exclusive applicants (giving points for the following:

  • (1) having an established community presence of at least two years;
  • (2) pledging to originate locally at least eight hours of programming per day;
  • (3) pledging to maintain a publicly accessible main studio that has local program origination capability;
  • (4) certifying that you qualify for a point under both the local program origination and the main studio criteria;
  • (5) certifying that neither you nor any party to your application has an attributable interest in another broadcast station; and
  • (6) being a Tribal Applicant proposing to locate your transmitting antenna site on your Tribal Lands).

Note that no amendment that is filed now can improve an applicants comparative position under these point system criteria.  Applicants are locked into the points that they claimed when they initially filed their applications. 
Continue Reading FCC Announces MX Groups for LPFM Applications – Amendments Possible, So Full-Power FMs Should be Watchful

The LPFM applications are in, and counted, and the FCC is actively processing them.  A recent public notice from the FCC about the processing of these applications puts FM broadcasters on notice that they should be checking what was filed in their market areas to make sure that there are no interference issues for their full-power stations or existing translators  The FCC’s public notice about the processing of LPFM applications is available here http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-13-2308A1.pdf

 As you will see, the FCC is first looking to identify “singleton” applications, i.e. those that are not subject to any competing applications.  Once the FCC determines that an application is a singleton, its status in the FCC database will change from the application simply having been “received” to it having been “accepted for filing.”   The acceptance for filing triggers a 30 day petition to deny period, during which broadcasters can object to potential interference from the LPFM or for other violations of the FCC rules on LPFM.  Broadcasters should be looking at local applications, for issues like second-adjacent channel waivers or other issues so that objections can be filed during the petition to deny window against those applications that might be troublesome. 
Continue Reading FCC Processing of LPFM Applications Continues – FM Broadcasters Beware of Potential Interference Issues

In two decisions released this week, the FCC proposed to fine two broadcast groups $20,000 each for EEO violations.  In recent years, when the FCC releases fines for broadcast EEO violations, they seem to be trying to emphasize a point as to some aspect of the EEO rules by releasing multiple decisions at the same time all having the same theme.  In the cases released this week, the point that was common to both fines was that the broadcaster had not regularly sent information openings about job openings to community organizations that asked to be notified about such openings.  It was this failure, plus the failure of the stations to discover the problem through the self-assessment that is supposed to be regularly undertaken by a broadcaster of its EEO program, and the failure to report the problem to the FCC, that led to these fines, issued to two large broadcasters – Maryland Public Television (see the FCC opinion here) and AM/FM Broadcasting (see the FCC opinion here).

The FCC’s EEO program for broadcasters has three prongs. The first requires that the broadcaster adopt an outreach program to notify all significant groups within its community of job openings at the station.  The FCC is looking for an outreach program that reaches beyond the “old boy’s network,” to recruit new people from diverse segments of the community to work at broadcast stations.  In the past, many of the EEO fines that were issued focused on this first prong of the program – fining stations that either did not reach out to community groups about openings for most of its jobs (see, for instance, our article here), or where the outreach was insufficiently broad (see, for instance, our article here about fines issued to stations that had relied solely on in-house recruiting or online sources which, alone were deemed insufficient.  The cases this week went to prong 2 of the EEO program – the obligation to notify groups about job openings when those groups ask that they be notified.
Continue Reading Two $20,000 FCC Fines for EEO Violations Demonstrate the Importance of Notifications of Job Openings to Community Groups

Section 399b of the Communications Act bans advertising for for-profit companies, as well as political and issue advertising, on noncommercial radio and television stations.  While Congress over 20 years ago loosened some restrictions on fundraising by allowing paid ads by nonprofit groups on noncommercial stations, and permitting commercial entities to provide some minimal information about their businesses (including their logos) on sponsorship underwriting on public TV, the ban has otherwise prohibited commercial and political ads containing qualitative claims, price information or calls to action.  In a recent decision, the US Court of Appeals for the Ninth Circuit affirmed a decision of a California District Court upholding the constitutionality of that ban against a challenge by a noncommercial TV station operator who contended that the rule was an unconstitutional abridgement of the First Amendment.  The case is particularly interesting not just for the analysis by the Court in upholding the ban, but perhaps more so for the dissenting opinion of the Court’s Chief Judge, who found that the Court’s analysis ignored modern realities of the broadcast world in adopting a reduced standard of First Amendment protection for broadcasters leading the majority to be too timid in questioning the justification for the ban advanced by the government.  Thus, the case has importance not just for noncommercial broadcasters looking for new sources of revenue, but also for other broadcasters concerned about intrusive government regulation of their industry and the standard of First Amendment review that would be applied to such regulation.

We had written about an earlier decision in this case here and here.  The case arose when a public television operator in the San Francisco area, Minority Television Project, Inc., was fined by the FCC for having run promotional ads for commercial and political advertisers, and decided to fight that ban in court.  A panel of the Court of Appeals determined that the fine was appropriate for running commercials for for-profit companies, but unexpectedly threw out the Section 399b restriction on ads on political or controversial issues, finding that the public good of speech on these topics outweighed the government’s interest in fostering public broadcasting.
Continue Reading Court of Appeals Upholds Communications Act Ban on Commercial and Political Advertising on Public TV Stations – Significant Analysis of the Standards for First Amendment Review of all Broadcast Regulation

While we were sidetracked by the government shutdown in posting reminders about regulatory deadlines for broadcasters during the last two months, it’s about time to put that behind us, and to resume our monthly practice. While everyone may be looking forward to the holidays, they need to remember that December does bring a number of regulatory obligations for broadcasters across the country.  For instance, license renewals are due on December 2 (as the 1st is a Sunday) for the following station groups: Commercial and Noncommercial Full-Power and Class A Television Stations, TV Translators, and LPTV Stations in Colorado, Minnesota, Montana, North Dakota and South Dakota; Commercial and Noncommercial AM and FM Radio Stations, FM Translators, and LPFM Stations in Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont.

Radio and television stations in all of those states, plus those in Alabama and Georgia, that have 5 or more full-time employees in their station employment groups, also have the obligation to complete their Annual EEO Public Inspection File Report, and to place that report into their public file (for TV stations, that would be their online pubic file).  The deadline for those reports to be complete and posted is December 1.  Radio stations in these states also need to post the most recent report on their websites, if they have a website. 
Continue Reading December Regulatory Deadlines For Broadcasters – Renewals, Ownership Reports, CALM Act, and TV Form 317

A few weeks ago, we wrote about the most immediate part of the FCC’s plan for the revitalization of AM radio – providing more FM translators for AM stations.  As the FCC has just announced the deadline dates for the filing of public comments on the reform proposals, setting the comment deadline for January 21 and the reply comment deadline on February 18, we thought that it was time to return to the subject to address some of the FCC’s other proposals.  As we mentioned in passing in our last article, the other proposals do not address any fundamental change in the AM service or anything that will necessarily help to overcome the interference issues that have made life difficult for many AM stations in an urban environment.  Instead, they look at ways to make current AM station operations easier.  In some ways, the order almost looks to be looking for ways to stem the loss of AM stations until a long-term  solution for the saving the service can be devised.

Revitalizing AM radio is not easy.  As the oldest radio service, the very things that made it attractive to the early days of radio – being able to reach vast areas of the country – now create problems.  The fact that AM stations have “skywave” signals that bounce off the atmosphere and travel hundreds, even thousands of miles, especially at night, also mean that their signals interfere with other stations on the same frequencies thousands of miles from their transmitter sites.  And, as more and more electronic “noise” has entered the environment, from relatively new technologies including florescent light bulbs to garage door openers and other wireless remote control devices, AM signals have proved to be especially susceptible to interference from these sources, especially in urban environments.  These problems are difficult to address without fundamental changes in the service.  But some quick fixes are possible to address more short-term needs of AM operators, and these are the kinds of issues addressed in the new rulemaking.
Continue Reading FCC Proposals for AM Radio Part 2 – Comment Deadline Dates, Site Moves and Unaddressed Questions

Last week, the FCC issued a declaratory ruling concluding that its long-standing policies on foreign ownership of broadcast stations were misunderstood – “clarifying” its policy to make clear that, if alien ownership exceeds 25% of the holding company of a licensee, it may in fact be permissible.  The Commission decided to adopt a case-by-case approach to determine if any proposed alien ownership in excess of 25% is in the public interest.  It is unclear why the FCC made a point to say that this was just a clarification of a policy that has been viewed as a strict prohibition on alien ownership of broadcast properties where the indirect ownership was in excess of 25%.  In the past, the FCC broadcast prohibition was viewed as all but absolute, even though the governing statute allows for the 25% threshold to be exceeded unless the FCC determined that such excess foreign ownership was not in the public interest and ownership in excess of 25% has been allowed (under the same statutory provision) for nonbroadcast services.  Nevertheless, last week’s decision made clear that foreign ownership levels in broadcast holding companies beyond the 25% threshold were possible, but much else was left unclear in the decision.

As stated in the ruling, the foreign ownership limitations were adopted because of concerns that foreign owners who controlled the instruments of communication in a time of emergency could be a security threat.  Moreover, in broadcasting, there was the fear that such foreign owners could disseminate propaganda to the citizens of the US.  While times have changed and the risk of the dissemination of propaganda by broadcasting seems quaint when there are so many other ways to disseminate what might be called propaganda to the public, the FCC still regards this as a concern that needs to be evaluated in every case.  At the FCC meeting where the order was adopted, and in the ruling itself, it was made very clear that, in the event of any application that proposes foreign ownership in excess of 25%, the Executive Branch of government (including Homeland Security) would have to approve the foreign ownership, concluding that it does not pose any threat to the United States.  For foreign companies that want to invest in broadcasting, this is not the only question that remains unanswered.
Continue Reading FCC Allows More Than 25% Foreign Ownership of Broadcast Stations – Instructions for Investors are to Be Developed

Last week brought a number of Washington developments that we’ll write about in more detail soon, including the FCC’s decision to relax the limitations on foreign ownership of broadcast stations.  But there were also a number of other actions that bear mention – including the decision released late Friday to extend the deadline for the filing of Biennial Ownership reports that are to be filed by all commercial broadcasters – including AM, FM, TV. LPTV and Class A TV station owners.  These more complicated versions of FCC Form 323 are filed every other year to assess diversity in the ownership of broadcast stations.  These reports were originally to be filed on November 1, but the filing date was extended to December 2 earlier this year (see our article here), due to the recognized complexity of the completion and electronic filing of these forms.  Now, after the FCC shutdown deprived broadcasters of several weeks’ preparation time in which the electronic forms were available for use, the deadline has been extended to December 20.  The FCC Public Notice warns filers to try to submit their reports before the deadline to avoid potential slowdowns in the electronic system due to an expected heavy volume of users as the deadline approaches.

In fact, the effect that heavy demands on FCC’s electronic filing system was made evident by the FCC’s last-minute decision to extend by one day the last day for filing LPFM applications.  That extended deadline passed on Friday, after being extended from the originally announced extended deadline (due to the government shutdown) of Thursday, because glitches in the FCC’s electronic filing system delayed last-minute filings before that Thursday deadline.  There has not yet been any announcement of the number of LPFM applications filed in the window, but many think that the number will rival if not exceed the thousands of applications filed in the 2003 FM translator window – applications that the FCC is still processing over 10 years after their filing.
Continue Reading Odds and Ends: Extension of Biennial Ownership Report Deadline, $110,000 Penalty for Indecency, Deadline for UHF Discount Comments, and Closing of the LPFM Window

Sometimes the FCC decisions come out in a flurry, often with little nuggets of importance in each one.  Rather than trying to write about each one, we’ll from time to time, just try to highlight those nuggets for your consideration.  At the end of last week, three decisions came out with just such nuggets – all dealing with different issues.  The first case involved the issue of divestiture trusts – trusts set up to hold broadcast assets when a buyer of broadcast properties, usually in connection with the acquisition of a broadcast group, needs to divest some stations so that the buyer remains in compliance with the multiple ownership rules (usually in radio where the attribution of LMAs and JSAs make impossible divestitures like those used in television, to parties with no connection to the buyer but operating with a Shared Services or Joint Sales agreement).  In the past, the FCC has not put any limit on how long the stations could remain in a divestiture trust, with some stations spending 5 or 6 years (or longer) in such trusts before they are finally sold.  This case involved an acquisition of a large number of radio stations by Townsquare Media from Cumulus.  Here, the Commission established a two year limit on period of time that the trust could hold the stations placed in its care.  Thus, the trustee needs to divest of those stations within that period.  We would not be surprised to see that limit imposed on any trusts created in the future – perhaps even on some longstanding trusts still in place when they are subject to renewal applications, where such trusts have been challenged from time to time.

In TV, often stations that cannot be owned by a broadcaster who is buying another station in the same market consistent with the multiple ownership rules are not sold through a trust, but instead they are sometime bought by an independent party who can support the station through some sort of Joint Sales or Shared Services Agreements with the buyer.  In one of those cases, the continuation of an existing Shared Services Agreement was challenged in connection with the sale of the brokering station held by Young Broadcasting to Media General.  The FCC again (as they have in many cases before, see for instance our article here), held that the sale was permissible and that the SSA could continue after the sale.  The brokering station did supply news to the brokered station, but it was under 15% of the program time, and thus not attributable.  The brokered station continued to have a financial incentive to operate the station successfully, keeping 70% of the cash flow of the station.  And the mere fact that the owner of the brokering station guaranteed the debt of the brokered station did not make that interest attributable to the broker.  Note, however, that the Commission did question the staffing of the brokered station but, as that station was not being transferred as part of the sale before the FCC, the Commission said that they would review that issue in connection with the license renewal of the brokered station.  Shared Service Agreements are also under consideration in the current Quadrennial review of the FCC’s multiple ownership rules (see our stories here and here ).  So some of these issues may be revisited again in the not too distant future, when the new FCC Chair decides to complete that review.
Continue Reading Odds and Ends – Divestiture Trusts, Shared Services Agreements and Determinations of Significantly Viewed Stations

“Business Establishment Services” are copyright-speak for those music services that provide background music to commercial establishments.  These services have come a long way from the elevator music that once was so derided – and now set the mood in everything from retail clothing stores to restaurants to department stores with formats as varied as the commercial businesses themselves.  While the rates paid by these services pay for music rights is a little off-topic for this blog, these rates are a bit unusual, so they are worth mentioning.  The Copyright Royalty Board just announced the adoption of a settlement between services and SoundExchange which will raise the rates from the current 10% of revenue to 12.5%, with a minimum annual fee of $10,000, effective January 1.

We have written about the rates paid by these services before (see for instance our articles here and here).  What makes them unusual is that the royalties are not paid to SoundExchange for the public performance of sound recordings, as are the royalties paid by other digital music services including webcasters or Sirius XM.  That is because, in adopting Section 114 of the Copyright Act, Congress did not want to impose on businesses a new performance right, as there is no general public performance right in sound recordings in the United States.  Businesses and other services that do not digitally transmit performances of audio recordings have no obligation to pay copyright holders in the sound recordings (usually the record companies) or artists for the public performance of music.  Users do, however, pay fees for the public performance of the underlying composition through ASCAP, BMI and SESAC.  As we wrote here, the Register of Copyrights has suggested that a general public performance right in sound recordings be paid in the United States, but as that would impose new fees on all businesses that use recorded music in the US, from stadiums playing “We Will Rock You” at the appropriate point in a big game, to DJs spinning their discs in nightclubs, to the trendy tunes playing in the hip clothing retail stores, to over-the-air radio – this proposal is very controversial.  So, if they are not paying public performance fees, why do background music services have to pay SoundExchange?
Continue Reading New Music Royalty Rates for Ephemeral Recordings Used By Business Establishment Services