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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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We wrote about the Department of Commerce’s Green Paper on Copyright Policy, Creativity, and Innovation in the Digital Economy that was released back in July. While our article principally addressed the music issues raised by the Green Paper, many other issues were discussed in its 120 pages. The questions raised by the Aereo case (about which we wrote here, and we wrote about the similar service, FilmOnX, here) were also discussed in the paper. Many other issues were also addressed, and the Commerce Department, through NTIA (the office within Commerce that advises the Executive Branch of the government on Telecommunications issues) and the Patent and Trademark Office, is now beginning the process of asking for public comment on some of the many issues raised in the Green Paper. The NTIA released a Public Notice, dated September 30 and still available on the NTIA website despite the Federal government shutdown, asking for comment on a number of these issues. 

The specific issues on which comments are sought (with our explanation of some of the issues involved) are the following:

  • "the legal framework for the creation of remixes" – the only music issue specifically teed up for comment.  The Green Paper had asked if consideration should be given to some sort of compulsory license for remixes, mash-ups and similar uses of music, or if other steps could or should be taken to allow for the creation of such works;
  • "the relevance and scope of the first sale doctrine in the digital environment." This is asking for comments on questions including whether consumers should be able to re-sell downloads that they purchase, as they have the right to do in a physical world;
  • "the appropriate calibration of statutory damages in the contexts of individual file sharers and of secondary liability for large-scale infringement."   This question seemingly stems from the issue raised by the huge statutory damage requests in mass-infringement cases, damages that in one case alone could exceed the entire revenue of many industries whose works are infringed. Questions have been raised as to whether the full amount of statutory damages should be available for each and every infringement, particularly where such infringement is done on a limited basis.  Obviously, though, copyright holders are concerned about large scale infringement, and want to preserve and even expand penalties in such cases;
  • "whether and how the government can facilitate the further development of a robust online licensing environment." It is unclear exactly what this question is looking at. Perhaps it is seeking comments on ideas such as the one the that government create some sort of copyright hub that would facilitate the identification of copyright holders and the licensing of their works; and
  • "establishing a multistakeholder dialogue on improving the operation of the notice and takedown system for removing infringing content from the Internet under the Digital Millennium Copyright Act (DMCA)." Next to the question on damages, this issue is likely to be among the most controversial of the proposals, and we’ll address that below in a little more detail below.

The reform of the DMCA notice and takedown system is looking to reform the current system where operators of websites generally have immunity from liability for copyright infringement for user generated content – unless the sites knew specifically about the infringing content and did not take steps to take it down, or unless they actively solicited or encouraged such uses. This is often referred to as the "safe harbor" for sites that feature user-generated content.  The safe harbor has allowed many of today’s most popular services, including YouTube and even Facebook to thrive, allowing millions of consumers to have an outlet for their interests through social sharing, without the sites having to review each and every post to determine if there is infringing content in the material that users have shared. We have written about this safe harbor before (see, for instance, our posts here and here).Continue Reading Comments Sought on Commerce Department Green Paper on Copyright Policy, Creativity, and Innovation in the Digital Economy – Including Issues of User Generated Content and Appropriate Damages for Copyright Infringement

With the FCC closed because of the Federal government shutdown so no new decisions will be coming out for the time being, we get to look at some of the issues and decisions that we didn’t get a chance to write about when they first came out.  One of the cases we overlooked raised the question of whether the FCC cares about a broadcaster’s market share when it goes to buy a new radio station, or will it simply apply the numerical station ownership limits set out in the rules? Based on a decision released last month (note that the link to the decision may not work during the shutdown), the rules which set numerical limits on how many radio stations one party can own in a market are pretty much decisive in the FCC’s determination of whether or not a party can buy a station in a market. Even if the advertising or audience market share of the buyer is very high, the fact that there are other stations in a market providing competitive opportunities makes questions of audience share essentially irrelevant. The case also addresses two other interesting aspects of the FCC’s analysis of radio holdings in a market – which stations are included in the station count for a market, and when a station being silent means that it will no longer be counted as a competitive voice in the market.

The case involved the purchase of a radio station in the Roanoke-Lynchburg, Virginia market. The Buyer already owned four FM stations in the market, and was buying a fifth. Another owner contended that the ownership of those stations would give the Buyer a share of the advertising market of more than 50%, which the petitioner claimed would impede competition and make it difficult for minorities and other new entrants to buy stations in the market. The Media Bureau rejected the arguments, finding that, as there are at least 45 stations in the market, ownership of 5 FM stations in the market is permissible under the rules established back in 1996, and revised in 2003. The numerical limits were found by the Media Bureau to represent the FCC’s judgment of what represented a sufficient limit on one party’s ownership of stations in a market. While a company that owns the maximum number of stations in a market may have a very large share of the advertising market, the decision concluded that the Commission, when adopting the numerical caps, made the determination that the numerical caps were more reliable than a market share analysis.  Even when an owner owns the maximum number of stations allowed under the rules, there are numerous other competitive outlets in the market.  As market shares can change over time, the numerical limits were found to be determinative. So the Media Bureau would not upset that policy decision in a case like this.Continue Reading Challenge to Radio Station Purchase Helps Define FCC Radio Ownership Limits in Arbitron Markets

Congressman Mel Watt from North Carolina this week introduced his long-awaited bill proposing that over-the-air radio broadcasters pay a royalty to sound recording copyright holders (usually the record label) and to artists. As we have written many times, currently, royalties on sound recordings are paid only by companies that make digital performances, including webcasters (see our summary of the current webcasting rates here) and satellite radio (see our summary of the recent decision on satellite radio rates here). While the bill’s proposals for a broadcast royalty has been covered in many other news reports, few note that the Watt bill, called the Free Market Royalty Act, goes far beyond past proposals for a royalty on over-the-air broadcasters. In addition to the over-the-air royalty, the bill proposes that the Copyright Royalty Board be taken out of the equation in setting royalties.  And the removal of the CRB from the process applies not just to the proposed new performance royalty on broadcasters, but also to the setting of royalties for all other noninteractive commercial digital music services. Instead of a CRB proceeding to set rates, commercial music users, including webcasters and satellite radio, would need to negotiate a royalty with copyright holders – principally with SoundExchange – a royalty not subject to review as to the reasonableness of the rates by the CRB or by the Courts.

And the proposal goes further than simply designating SoundExchange as the party with whom all noninteractive digital audio services would go to negotiate royalties. In addition, the bill provides that any copyright holder could opt out of the rates negotiated by SoundExchange, after they are set, and negotiate direct licenses for its music with music services, including radio broadcasters. Seemingly, a popular band, or a label with a number of hit acts, that thought that it could get more from its music than any rate to which SoundExchange agreed, could withdraw from any "deal" with SoundExchange, and negotiate on their own for what would presumably be higher royalties.  If the copyright holder withdraws its music from the SoundExchange royalty, broadcasters and other music services could not play that music unless and until a license deal was reached.Continue Reading Congressman Watt’s Music Royalty Bill – Performance Royalty For Over-the-Air Broadcasters And Other Fundamental Copyright Act Changes Impacting All Digital Music Services

The Federal government shutdown that we speculated about last week has now come to pass, and the clearest evidence is that, when you go to the FCC website, you are greeted by a special message essentially saying that the website is not available until after the shutdown ends. So, as we speculated last week, broadcast (and most other) applicants can’t even begin to prepare applications for filing when the government reopens, as the Commission’s CDBS database (as well as there other systems for filing electronic applications) is not available. Nor can you even access information about pending applications, pleadings that have been filed, or any of the other detailed information that is available on the FCC’s usually informative website. You’ll even note that links to FCC actions contained in many of the posts on this blog will not work, as the documents to which they link are resident on the FCC website. Similar notices are on most other government agency sites like, for instance, the Copyright Office site.

What is a broadcaster to do when they have an application or other deadline that falls during shutdown period? Stations sales will no doubt be closed, stations will be constructed with license applications due to be filed, there are license renewals that were due yesterday for radio stations in the Pacific northwest, Alaska, Hawaii and the Pacific territories, and other pleadings and filings that are either now due, or will become due if the shutdown persists. One of the few documents that is available on the FCC’s site is a Public Notice on the Procedure for Filing in the Event of a Lapse in Funding, which provides a minimal amount of information about what is next. Beyond saying that the FCC is essentially closed, the notice does say that filings due during the shutdown would be due the day after the FCC returns to normal operations. The notice gives the example that, if funding is restored on a Monday, the FCC would return to normal operations on Tuesday, and filings due during the interim would be due on Wednesday. The Notice also states that, if there are issues restarting the electronic filing databases after the government reopens, further public notices will be issued, which presumably could further extend filing deadlines.Continue Reading Now that the FCC Has Shut Down – What’s a Broadcaster to do?

The FCC denied reconsideration on the last phase of the digital television transition – requiring that all LPTV stations and TV translators cease analog operations and be operating digitally by September 1, 2015. See our summary of the original ruling on the digital conversion of LPTV and TV translator stations here. In denying reconsideration, the FCC determined that the September 1, 2015 date will hold – denying requests that the final decision be postponed while the FCC considers the repacking of the television band as part of the incentive auction process to clear part of the TV spectrum for wireless broadband purposes. The FCC also noted that some parties wanted to keep operating in an analog mode on TV channel 6, as the audio can be received by FM receivers (so-called "Franken FMs"). The Commission determined that using Channel 6 to provide an audio service this was not a sufficient reason to keep analog operations on TV channels alive past the deadline that they have established. (See our articles about these hybrid LPTV/FM stations, which take advantage of the fact that Channel 6 is adjacent to the FM band and that analog TV used an FM audio system, here).

The Commission did note that, in response to some petitions for reconsideration, that any LPTV station or translator moving to Channel 6 for digital operations be required to protect noncommercial FM stations that would be operating on adjacent frequencies. While the Commission does not expect that such interference will occur frequently, they made clear that LPTV and TV translators are secondary services, and they cannot continue to operate if they cause interference to primary services, including primary noncommercial FM stations.Continue Reading No Relief on LPTV/TV Translator Digital Conversion Deadline – 2015 Deadline for End of Analog Operations Upheld on Reconsideration

Every two years, broadcasters are to file Biennial Ownership Reports on Form 323 to detail the ownership of the companies that hold FCC licenses. Since 2009, all commercial broadcasters across the country are to file such reports in the same window of time. Theoretically, these reports are supposed to be filed between October 1 and November 1 of odd numbered years, yet since the adoption of the uniform date, the November 1 deadline has never held. This year, too, the deadline has been moved (as we wrote here) to December 2.  The window for filing such reports is now open, according to an FCC Public Notice released on Friday. As the reports are supposed to detail a company’s ownership report as of October 1, at this point companies should know what that ownership is, so that they can begin the process of completing the forms and getting them on file.

Noncommercial broadcasters are still on a system where they file their biennial reports on the anniversary dates of their license renewals, so the December 2 deadline does not apply to them (except for stations in those few states where December just happens to be the anniversary of their renewal filings, e.g. noncommercial radio stations in New England). However, as we wrote here when the rules for new Biennial Ownership Reports were adopted, the FCC is considering bringing all noncommercial broadcasters into the same system as their commercial brethren. The report forms used by commercial broadcasters for their biennial reports is more complicated than the normal ownership report form, requiring all individuals who have attributable interests in a licensee to get their own FCC Registration Number (or an “FRN” as it is commonly known), which in turn normally requires that the individuals provide a Social Security Number (or Taxpayer ID Number for entities that have interests in licensees). Having to provide that information has been a controversial requirement, with the FCC offering a work around for owners who refuse to provide that information (a work-around that the FCC has proposed to eliminate, a proposal that has not yet been adopted). Why the need for this FRN for every individual?Continue Reading FCC Announces Biennial Ownership Report Filing Window is Open – Reports to be filed by December 2 By All Commercial Broadcasters

The FCC yesterday proposed abolishing the UHF discount – which counts the audience reached by a UHF station as only one-half when computing whether the owner is approaching the 39% cap on nationwide audience that can be reached by one owner. While many FCC rulemaking proposals are very subtle, with many nuances that are important in the debate about the final rules to be adopted, this proposal is actually straightforward – should the discount be abolished or not.  Following the digital transition, which saw many migrate from VHF to UHF, most television stations are now UHF (meaning that they operate on TV channels 14-51). While many stations may continue to identify themselves by their old VHF channel numbers, the vast majority now really operate on UHF channels because of UHF’s technical superiority in a digital world.  Digital allows these stations to identify themselves with a “virtual” number – looking to consumers like they are still on channels 2, 4, 7, 9, etc. – when they are really operating on a UHF channel.  But the actual channel of operation is used for claiming the UHF discount and assessing compliance with the 39% audience cap. In yesterday’s Notice of Proposed Rulemaking, the Commission proposed doing away with that discount, as the impediment that stations used to suffer from being on a UHF channel (worse indoor reception, a more limited coverage area and significantly higher electricity costs) are no longer as severe, and being on UHF actually has become an advantage (as UHF, in a digital world, is less susceptible to interference and needs a smaller antenna, thus being better for mobile operations). While the Commission’s proposal is straightforward, and the logic seems simple, the proposal is not without issues.

These issues were identified by Commissioner Pai who yesterday dissented from the proposal for the abolition of the rule. The Commissioner noted that several television groups are already above the cap if the discount is abolished (including Univision), and several others are nearing the 39% cap. He suggested that, if the discount is to be abolished, the Commission should consider lifting the cap above 39% to reflect today’s competitive television marketplace realities, and to not effectively raise the cap on how many stations can be owned. He also suggested that diversity should be part of the consideration, given the impact on Univision. Perhaps the biggest area of debate that he raised is the question of when any rule change would take effect.Continue Reading FCC Starts Proceeding to Consider Abolishing the UHF Discount – Effectively Lowering TV Ownership Limits?

FM translator processing and LPFMs have been inextricably tied together for years, as the services compete for spectrum throughout the country. While the principal conflicts between the two services were, for the most part, resolved last year, it seems that there will always be some ties between the two. At Wednesday’s FCC open meeting, this was illustrated by the fact that there were two reports – one on the status of the processing of the remaining applications from the 2003 FM translator window, and another about the preparations for the upcoming LPFM window.  The report on translators talked about the almost 2000 translator applications that have been or will be granted this year, and how the 2003 backlog soon will be down to only about 200 applications still mutually exclusive and to be awarded by an auction,  The LPFM report talked about the well-attended webinars that have been held by the FCC to educate the public about the possibility of new stations – and the reportedly hundreds of draft applications already partially prepared in the FCC’s electronic filing system – even though the filing window does not open for several weeks.

On the translator front. the FCC two weeks ago announced that there will be another 104 “tech box” proposals that are not mutually exclusive with any other translator application from the 2003 FM translator filing window (see the list here). These are on top of the 1700 other applications that were considered to be grantable in two separate lists that came out earlier this year (see our articles about these prior “singleton” groups, here and here). Long-form applications (ones that spell out the details of the applicant’s proposals, including information about the applicant’s ownership and specific technical information about where the station will be built) for the 104 newly identified singleton applications are due on October 9. Instructions for filing those applications are available here.

That deadline is just prior to the deadline for LPFM applications. As with other recent translator filings, the long-form applications for these new translators are only protected against interference from new LPFM applications from the coming window to the extent of their coverage on June 17, the date that the LPFM window was announced. Moves made from the sites specified as of June 17 may not have any protection from subsequent LPFM applications. But the new LPFM applications themselves have numerous rules and procedures that they must follow to be found acceptable in the upcoming window.Continue Reading More New FM Translators to Be Granted, While FCC Provides More Details for LPFM Filing Window

The buzz in Washington this week is about whether the FCC and the rest of the Federal government will be open come next Tuesday, October 1. October 1 is the start of the FCC’s fiscal year, and without a “continuing resolution” (Congressional authorization to keep the government running at current levels even without a formal budget), there will be no authorized funds to run the government, and there will effectively be a shut-down of all but “essential” government services. Even if Tuesday’s deadline is averted, the government faces another potential shut-down of some of its functions in the middle of the month (apparently by October 17) unless there is a vote to raise the Federal debt ceiling. As attempts to repeal the new health care law are being tied to the legislation necessary to fund the government, many think that there is a real possibility that we will see a shut-down for the first time in almost twenty years in October. What would such a shutdown mean for broadcasters?

While the FCC has not yet issued a plan for a shutdown, such plans are beginning to be seen at other government agencies. So, while we don’t know for sure what the FCC’s plans would look like yet, we can look at the plan issued in 2011, when the government last came within hours of a shutdown. We wrote about that situation here. Basically, most all of the FCC’s workforce would need to go home, and could not perform any functions while the government is closed. Thus, there will be no construction permits issued for new or improved stations, and no grants of other pending applications – including assignments and transfers – meaning that sales of stations would be in limbo for however long the shutdown lasts. FCC officials could not travel, so they could not attend any broadcaster conventions or other meetings that may have been planned. And, in most other shut-downs (or in shutdown planning), the Commission’s staff was not even allowed to voluntarily do anything related to their official business – so they could not answer emails or phone calls from home, or travel on their own dime to anything related to their official functions.Continue Reading What a Federal Government Shut-Down Would Mean for Broadcasters

In 2011, the FCC conducted the first-ever nationwide test of the Emergency Alert System – commonly known as EAS (see our article here about the FCC’s report on the results of that test). While the system was originally created to convey Presidential alerts to the nation, it has never been used for that purpose and, until the nationwide test, it had never even been tested. Instead, EAS has most commonly been used for local emergencies like weather alerts and, in recent years, Amber Alerts for missing or abducted children. In the Public Notice released this week, the Commission asked for comments on a number of issues uncovered during the nationwide test, which in many ways illustrated how far the EAS system has evolved from its original purpose.

The issues on which comments are sought are principally technical issues of system design, such as whether the time codes in the EAS headers work the same on all EAS hardware, or whether these codes resulted in tests running at different times on different stations.  Apparently, some stations immediately broadcast the alert when received, and others delayed it until the time specified in the codes indicated that it should be run (3 minutes after the alert was sent out). The Commission also noted that there is no specific code in the standard alert codes for a nationwide alert. Similarly, there is no “location code” for a nationwide alert, as all of the location codes (which specify the geographic area where the alert is targeted), have been set up on a state-wide or more localized basis for the weather alerts and other similar localized emergencies for which the system is regularly used. These would all seem like easy things to fix – but are they?Continue Reading FCC Seeks Comments on Technical Details of Nationwide EAS Test – Preparing for the Next Test?