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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 is cracking down hard on television stations and cable companies who use EAS alerts – or even simulations of such alerts – in advertising, promotions, and programming.  In two orders released this week, the FCC imposed big penalties on video companies who used fake EAS alerts in commercial messages.  In one case, it fined a cable programmer (Turner Broadcasting) $25,000 for the use of a simulated EAS tone (not using the actual tone, but just a set of tones that sounded like the EAS alert) in a promotion for the Conan O’Brien program.  In a consent decree with a TV broadcaster, in exchange for a $39,000 voluntary payment to the FCC and the adoption by the station of a series of policies to avoid similar problems in the future, the Commission agreed to dismiss a complaint against a station that had used simulated EAS tones in a commercial for a local store.  These decisions were coupled with two other announcements to make the point that the FCC wanted to demonstrate the importance that it places on EAS and its lack of tolerance for any non-emergency use of anything sounding like the EAS tones that could possibly confuse the public.

At the same time as the two decisions were released, the FCC issued a press release emphasizing the importance of EAS and how such actions trivialized the alert system.  A Fact Sheet was also released, making four documents all emphasizing the importance of EAS, and the threat posed to real warnings by any sort of use of sounds that could be confused for the EAS alerts.  Where does the FCC get its authority to impose such fines?
Continue Reading Penalties of $39,000 and $25,000 Assessed For Video Programming Containing Fake EAS Messages

There have been many Washington developments for broadcasters in the last week – and while it was all occurring, our Blog was undergoing a makeover, so some of the articles that we published in the last week may have been missed.  Perhaps the biggest news was the confirmation and swearing in of the new FCC Chairman, Tom Wheeler.  Last week, we wrote this article setting out the many legal issues of relevance to broadcasters that will be facing the new Chair.  Among the first issues that will be dealt with is the modification of the FCC’s limits on the foreign ownership of broadcast stations, which is scheduled for consideration by the FCC at their open meeting next Thursday.  We wrote about the issues in that proceeding here.

One of the last issues considered by Acting Chairwoman Mignon Clyburn was the FCC’s Notice of Proposed Rulemaking on the revitalization of the AM radio band.  We summarized the issues set out in that proceeding, and wrote in more detail about the proposal likely to have the biggest impact on AM broadcasters – a window for AM stations to seek FM translators.  That article also discussed how the FCC has seemingly decided to pull back from Mattoon waivers as part of that proceeding, and in a separate decision where the FCC decided that Mattoon waivers could not be used if the primary station is an FM.  We’ll write more about the rest of the AM revitalization proposals soon.  And, related to translators, we wrote about the extension of the last day for filing applications in the LPFM filing window to next week. 

As last week was Halloween, and also the 75th Anniversary of the broadcast of Orson Welles War of the Worlds, we wrote about the changing views on broadcast hoaxes, and what the FCC would do if the program was broadcast today.  Speaking of emergency broadcasts, the FCC yesterday issued a number of notices on fake emergency broadcasts.  We’ll write more about that issue shortly.
Continue Reading While Our Blog Was Getting A Makeover, Did You See Our Stories on the New FCC Chairman, Foreign Ownership of Broadcast Stations, AM Revitalization, Orson Welles and the Hoax Rule and More?

The FCC’s proposals for aiding AM radio have been released in a Notice of Proposed Rulemaking – one of the last actions for broadcasters under Acting FCC Chairman Mignon Clyburn (see our article here on the leftover broadcast issues with which her successor as chairman, Tom Wheeler, will have to deal).  The proposals for revitalizing the AM band that were contained in the NPRM are all ones that the Acting Chair had previewed at the NAB Radio Show, which we summarized in our article about that speech.  While the general proposals that were made in the NPRM were not surprising, in most of these areas there were a couple of surprises in the details – some of which will may be of concern to some broadcasters.

The Commission made several proposals, including the following:

  • A special FM translator window where applications would be restricted to AM licensees.
  • Reduction of both daytime and nighttime city-grade coverage obligations of existing AM stations.
  • Elimination of the ratchet rule that requires that any AM station making facilities changes do so in a way that reduces overall interference in the AM band (in many cases compelling a reduction of service if a change is proposed)
  • The potential for more liberal use of MDCL technologies, which decrease transmitter power when modulation of the station decrease, potentially saving power (though raising some questions about the robustness of the signal that will result)
  • The modification of AM efficiency standards in some way to allow for shorter towers that could be located on rooftops or in other more limited spaces – though the Commission asked for more comments on how its current rules actually limited such uses
  • A general request for other ideas that could help AM stations.

We will cover the special translator window in today’s post, and cover the other issues in more detail in the future.  Most of the other proposals deal with making facilities changes to the AM station, in some cases changes that might actually decrease service to their current service areas (e.g. were some stations to take advantage of the proposed city-coverage limitation to move further from the station’s city of license).  The translator proposal is the one most likely to bring the most relief to the most AM broadcasters in the heart of their service area – and is one that can be quickly implemented.  So below, we will look at the translator proposal in more detail. 
Continue Reading FCC Proposals For AM Improvements – Part 1 – A Restricted FM Translator Window and an End to the Mattoon Waiver?

At long last, it appears that we will soon have a complete FCC, as the Senate has approved the nomination of Tom Wheeler to be the next FCC Chairman, and Michael O’Rielly for the other vacancy on the FCC.  The nomination of Mr. Wheeler had been held up by Senator Ted Cruz on grounds that he feared the FCC taking action to implement provisions of the Disclose Act (which we wrote about here).  Senator Cruz was particularly concerned that a new FCC might adopt rules that would require disclosure not just of a political ads sponsor, but also of the chief financing sources of the sponsor.  Mr. Wheeler apparently assured Senator Cruz that the adoption of such a rule was not high on his agenda, the hold on the nomination was dropped, and the new Chairman was confirmed.  He should take office very soon – with press reports suggesting that it will be on Monday.  What issues should broadcasters expect the new FCC to tackle?

There are many big issues for broadcasters that are under consideration but not decided, and we would expect that the new FCC chair would want to quickly start to deal with them.  The biggest issue is no doubt the Incentive Auctions – looking at the reclaiming of spectrum from TV broadcasters to allow it to be re-sold to wireless companies for wireless broadband and other uses.  We last wrote about that incredibly complex proceeding here.  The FCC under Chairman Genachowski had looked to have rules in place before the end of this year to reclaim the spectrum and to sell it to the wireless companies.  The former chair had hoped to have the auction itself occur in 2014.  With the delays in the confirmation of the Chairman, and the recent government shutdown, many observers are expecting the rules will be pushed back to next year, and the auction itself to the year after – but all that remains to be seen.
Continue Reading Tom Wheeler Confirmed As FCC Chair – What Broadcast Issues Will the New FCC be Addressing?

This is the 75th anniversary of the Mercury Players broadcast of the Orson Welles production of the War of the Worlds – a radio broadcast that seemingly scared many Americans into thinking that the country was under attack by Martians, that my home state of New Jersey had been overrun, and that the rest of the country would be soon to follow.  PBS’s American Experience just ran a great documentary about the production – talking about Wells’ decision to delay an announcement that the program was a fictional production, not a real invasion, long after his network superiors ordered that announcement after the phone lines of the network were tied up.  Also tied up were the phone lines of emergency responders, and it supposedly even caused people to leave their homes to flee the path of the oncoming invaders.  The PBS program talked about how the FCC opened an investigation of the program, and how Congress demanded that laws be passed to prevent such a broadcast from happening again.  Essentially, through some well-publicized apologies by Welles and others involved in the program, and a promise by the network to take steps to prevent it from happening again, the FCC closed its investigation and no law was passed by Congress.  Even though the government did not act 75 years ago, it is interesting to look at how the FCC has changed since that time, and why such a broadcast would not fly under FCC rules today.

Most prominent among the FCC rules adopted since the famous broadcast is the FCC’s rule against “hoaxes.”  As we’ve written before (usually just before April Fools’ Day), this rule (Section 73.1217) forbids broadcasters from airing programs that are false where it is foreseeable that the broadcast will tie up the resources of first responders or that the broadcast will otherwise cause harm to people or damage to property, and where such harm is in fact caused.  Applying that rule to the War of the Worlds broadcast would mean that the radio network (and its affiliated stations) could likely be looking at big fines were such a broadcast to be made today. While a broadcaster could certainly argue (as was done at the time) that no rational person would believe that the Martians were really invading, the fact that the network was deluged with calls, and that the network warned its director to air a disclaimer (which was delayed for dramatic effect) would likely defeat any such arguments.
Continue Reading Orson Welles’ War of the Worlds 75 Years Later – What Would the FCC Do Now?

At its November 14 meeting, the FCC is tentatively scheduled to consider the relaxation of its limits on the ownership of broadcast stations by foreign entities or citizens.  Under the current “alien ownership” limitations, US citizens or entities must own 80% of a broadcast licensee, or 75% of a licensee’s parent company.  In the broadcast world, the 25% alien ownership limit must be analyzed both as to equity and voting interests.  In the modern financial world, where companies are often owned by many diverse investors (or funds with widely diverse ownership), these rules can be very burdensome in assuring compliance and managing the potential investment in US broadcast operations by foreign sources of capital. 

Under the governing statute, Section 310(b)(4) of the Communications Act, the FCC can’t allow a licensee in any service that it regulates to be more than 20% foreign owned.  But the statute allows a parent company of a licensee to be 25% foreign owned, and even allows that parent company to exceed that “limit” unless the FCC finds that the public interest would be compromised by foreign ownership greater than 25%.  Thus, the rules are actually written to presume that the “limit” can be exceeded, unless the FCC sees a problem.  The principal concern that would raise a question under the law would be one of national security – the government does not want crucial communications infrastructure, or the means of dissemination of information to the public, to be controlled or unduly influenced, by foreign interests in the event of some emergency.   As we wrote just 6 months ago, in non-broadcast services, the FCC has routinely allowed foreign ownership to exceed the 25% threshold, and recently made it easier for companies to demonstrate their compliance with the rules.  This clearly shows that national security issues can be addressed in other ways.  How about in the broadcast services?
Continue Reading FCC to Consider Allowing Increased Foreign Ownership of Broadcast Stations at Its November Meeting

The deadline for filing applications in the LPFM window has been extended as a result of the Federal government shutdown – with the new filing deadline being November 14 at 6 PM Eastern Time.  The FCC filing system is open now, so parties can go ahead prepare and actually submit their applications now. But as, during the shutdown, the FCC’s system was not available for research or application preparation, and as the FCC staff was not available to answer questions, the Commission gave applicants additional time in which to submit their applications.

During the shutdown, the FCC had been scheduled to have a webinar to further explain the application process and to answer questions about the rules applicable to LPFM.  Obviously, the shutdown prevented that from happening, so the FCC has now rescheduled the seminar for October 24 at 1 PM.  The webinar can be accessed here. Continue Reading FCC Extends LPFM Filing Window, New Dates for LPFM Webinar and Changes in LPFM Protections to FM Translator Inputs

The FCC issued further guidance on FCC filing deadlines for regulatory submissions that were due during the 16 day Federal shutdown. The FCC has essentially given most applicants and filers a 16 day extension of time to file anything that was due during the shutdown. They note, however, that there are certain deadlines that they cannot…

The battle over services that record and stream over-the-air TV without compensation to TV broadcasters has become even more confusing, with a US District Court judge in Boston denying an injunction to stop the Aereo service in Massachusetts in a suit brought by Hearst Corporation, which owns a local TV station. This decision comes on the heels of a decision the decision by the US District Court in Washington DC finding that Aereo-like service FilmOn X was violating the copyrights of TV stations by operating a similar service in the DC area (see our discussion of that decision here). Joining decisions in NY favoring the streaming services (a decision we initially wrote about here), and one is California favoring broadcasters, the decision appears to be headed to an ultimate resolution before the Supreme Court to reflect these conflicting points of view. In fact, TV broadcasters have already announced the likelihood of their filing a Supreme Court petition asking the Court to resolve the matter. 

Of course, the decisions outside of NY have been by District Courts, not US Appeals Courts. All except the NY decision are subject to review by the US Court of Appeals in the Circuits in which these District Courts lie. It is possible that the appeals could come out differently than the decisions by the District Courts, and either increase or decrease the likelihood of Supreme Court review, depending on whether the other appellate courts rule for Aereo or FilmOn X (decreasing the likelihood of Supreme Court review if the Circuits agree on the outcome) or against it (increasing the likelihood of review as the Court would be faced with conflicts among the circuits which is a usual ground for Supreme Court review). The Boston decision, while not as comprehensive as some of the other decisions on the topic, does raise some interesting issues that will no doubt be considered on appeal.Continue Reading The Courts Continue To Split on Streaming TV Services – As Boston Court Denies TV Broadcasters Request for an Injunction Against Aereo