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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 have not written as much as we should have about the current FCC proceeding looking to reclaim parts of the television spectrum in order to repurpose it for auction to wireless users. The process by which the FCC will pay some broadcasters to give up their spectrum (the "incentive auction"), and get the money to pay for that surrender of spectrum from a simultaneous auction of the reclaimed spectrum, is a very complicated one. It will require careful judgments about how much money will be received and how much will be needed to be spent to clear the required spectrum, and to pay for other costs required by Congress in the enabling legislation (see our article here about the legislation), including the costs of moving remaining broadcasters to new channels after the auction. In order to provide a uniform block of wireless spectrum across the country (so that devices can be built to receive new signals on the same channels everywhere), the television stations that are not going to return their spectrum to the FCC will have to be “repacked” into a reduced television band, requiring some stations to change channels to accomplish that repacking. This week, the FCC made two announcements that will begin to shed some light on that transition – announcing the panelists for a discussion on the repacking process, and asking for comments on the costs to be incurred by TV broadcasters which can be reimbursed by the fund that the FCC is required to maintain to fund that repacking.

The FCC first released notice of the panelists for a September 30 discussion of how the repacking of TV spectrum will take place, discussing the likely mechanics of the repacking and the ways that the repacking can be accomplished efficiently.  (For more on the discussion, go to this page on the FCC website).  Representatives of the FCC will moderate panels of trade association representatives, engineers and others to discuss the repacking process. The discussion will be webcast by the FCC (go here for the webcast on September 30).Continue Reading FCC Seeks Comments on Reimbursable Costs of TV Stations Changing Channels as Part of Repacking of TV Spectrum for Incentive Auctions, and Announces Panels to Discuss the Process

Last week, acting FCC Chairwoman Mignon Clyburn delivered a speech at the NAB Radio Show, which talked about new technology and old, and her affection for AM radio.  In the most newsworthy aspect of the speech, the Chairwoman announced that the FCC is currently considering a draft Notice of Proposed Rulemaking looking to improve the service delivered by AM radio. As we wrote here, the issue of AM improvement has been a major initiative advanced by Commissioner Pai, looking to restore AM radio’s competitive posture.  Attention is needed to overcome some of the many obstacles that AM faces, including those from interference that has increased significantly in many metropolitan areas, causing more and more electronic “noise” that disrupts the AM service. The discussion at the Radio Show raised several proposals for AM relief. But will they really help AM stations?

First, it is important to understand that the Chairwoman was talking only about a series of proposed actions – nothing has yet been decided. There is a Notice of Proposed Rulemaking that is circulating at the Commission. This means that the proposal has been drafted and is being reviewed by the other Commissioners. Once they finish their review, the Notice will be released to the public, which will then have some period of time (probably a few months) to comment on the suggestions made by the Commission. According to the Chairwoman’s speech, and echoed by Commissioner Pai in an address that he delivered to the Radio Show, broadcasters will also be urged to come forward with their own ideas as to how to improve AM radio. All of the comments filed by the public will have to be digested before the Commission can actually implement any of them. With that background, what is to be proposed, and which actions will likely move the fastest?Continue Reading AM Improvement Proposals Coming from the FCC – What is Coming and How Quickly?

The US District Court in Washington DC issued a decision earlier this month, enjoining the operation of the television streaming service FilmOn X throughout the United States – except within the Second Circuit (covering NY) where the US Court of Appeals reached a contrary decision in connection with Aereo – a very similar service. Both of these services utilize multiple small antennas to receive over-the-air television programs, which are recorded on a central server and sent over the Internet on demand to individual viewers. In effect, these viewers, by paying the subscription fee charged by the services, get their television programming on the Internet – through their computers and soon to their mobile devices.  The contrary decisions in these two cases illustrate a fundamental disagreement between two courts as to the meaning of the "public performance" right enjoyed by copyright holders in their copyrighted works.

As we wrote here, the Second Circuit, in the Aereo case, determined that, as the transmission of the over-the-air programming was done on an individual basis, at the demand of the individual viewer, it was not a “public performance.” In the Second Circuit’s opinion, the fact that the transmission is made to a single user, either when the program is aired or on a delayed basis, made each individual performance of the television program a "private performance," which did not infringe on the rights of the copyright holders, and more than a transmission of a signal from an antenna on someone’s roof to the television set in the living room was a public performance.  The DC Court disagreed with that interpretation, joining a District Court in California in deciding that this type of service, without the permission of the broadcaster, is a violation of the copyright laws.

The DC Court was very thorough in its review of the issue and its basis for disagreeing with the Second Circuit (or agreeing with the dissenting opinion in the Second Circuit). The issue raised in the FilmOn X case, whether the retransmission over the Internet of the over-the-air television signal of a broadcaster is essentially the same issue raised 40 years ago when cable television operators first started to operate, charging customers for bring them television signals from over-the-air TV stations. After the Supreme Court at that time, in the Fortnightly and Telepromter cases, agreed with cable operators that their retransmissions of television stations did not constitute a "public performance" of those signals, Congress intervened in 1976, revising the Copyright Act to make clear that such retransmissions of broadcast signals were in fact covered by the Act. The changes adopted then, which are still in place in the Copyright Act, were cited by the DC Court in finding that the operations of FilmOn X indeed violated the copyright holders public performance rights under the Copyright Act.Continue Reading DC Court Issues Injunction Against FilmOn X for Its Aereo-Like TV-Streaming Service – Increasing Legal Confusion Over TV Public Performance Rights

On September 26, the FCC will hold its next open meeting and, according to a Public Notice released Friday, will consider several issues important to different parts of the broadcast industry. For television broadcasters, there will be concerns about the proposal to do away with the “UHF discount,” which gives UHF stations a 50% discount in determining the number of households they reach when determining an owner’s compliance with the limitation that prevents any one company from owning television stations that reach more than 39% of the US television households. For radio, the FCC will be getting a report on the preparations for the upcoming LPFM window, allowing applications nationwide for new LPFM stations. That window, as we have written before, is to open from October 15-29. Finally, the FCC will be looking at modifications to its Antenna Structure Registration process – which could be important to all tower owners.

As the UHF discount issue is to be considered by the adoption of a Notice of Proposed Rulemaking, it is no doubt the more controversial of the broadcast issues to be discussed at the meeting. The discount was adopted by the FCC in analog days, when UHF broadcasters faced significant disadvantages. Analog UHF signals (TV channels 14 and above) simply did not travel as far as VHF signals, were less likely to penetrate buildings (especially as many over-the-air antennas were designed for VHF reception), and were far more costly than VHF operations (as VHF transmitters operated at far lower power levels than do transmitters for UHF operations). But, in the digital world, broadcasters found that the world had been turned on its end – with UHF signals being far preferable, as the VHF digital signal was found to be far more susceptible to interference, especially in urban areas. In the less forgiving digital environment (where a signal is either there or not, instead of the degraded "snowy" picture that you could get in the analog world), the UHF signal is generally preferred – despite the higher power costs and the fact that the signals still don’t travel as far.Continue Reading FCC Meeting to Consider UHF Discount on National TV Multiple Ownership Rules, LPFM Window, and Tower Registration Issues

September is one of the few months without a due date for the standard regulatory filings – no renewals, EEO public file reports, and no Quarterly Issues Programs Lists or Children’s Television Reports. Instead, the big filing this month is one that applies to all commercial broadcasters (and most entities regulated by the FCC in other services as well) – the annual regulatory fees due on September 20. We wrote about the deadline here (with links to the FCC webpage on which you can look up your fees), and the amounts of the fees by category of broadcaster, here. But just because there are no other regular filings due at the FCC does not mean that those in charge of regulatory compliance at your stations can take the month off once they have paid the fees.

No, there are plenty of other deadlines to which broadcasters should pay attention. Those who filed license renewal applications for radio stations in California and for TV stations in Illinois and Wisconsin should be running their post-filing license renewal announcements on the 1st and the 16th of the month. The next round of license renewals will be filed on October 1, and stations in the states where those renewals are due should be running the third and fourth of their pre-filing renewal announcements on the 1st and 16th. That would be TV stations in Iowa and Missouri, and radio stations in Alaska, Hawaii, Oregon, Washington, American Samoa, Guam, the Mariana Islands, and Saipan.Continue Reading September Regulatory Deadlines for Broadcasters – “Reg” Fees and Renewal Notices, With More Action to Come In October

In a decision issued last week, the FCC ruled on 6 applications for LPFM stations from the last LPFM window, dismissing all of them, and warning potential applicants in the upcoming LPFM window to pay attention to the decision so that they can avoid similar issues with their applications. The dismissal of four applicants was the result of those applicants not being legally registered as nonprofit corporations in their states at the time of the FCC filing of their FCC applications. One applicant was dismissed for failing to respond to a Commission request for information in a timely basis. The dismissal of another was upheld based on the applicant’s failure to obtain reasonable assurance of the availability of its transmitter site prior to the submission of its application. These decisions thus resulted in 6 applicants losing their chance to operate LPFM stations in their markets.

Incorporation at the time of filing was deemed important in four cases for different reasons. In connection with two applicants, the failure to be incorporated was deemed fatal to the applications as the application requires a certification at the time of filing that the applicant is either incorporated or in some other form recognized by state law as an existing nonprofit educational entity (or that it is a governmental organization). That existing noncommercial status is required by law. Both applicants falsely certified that they had been incorporated at the time of filing, when in fact they had not. As they had not met the statutory mandate at the time of filing, they were dismissed. In the third case, a group tried to claim that its pre-incorporation activities qualified it as “an unincorporated organization” under state law. But the FCC found that the pre-incorporation activities were simply organizational in nature, and did not qualify the group for a license. Continue Reading LPFM Decisions Upholding Dismissal of Several Applicants Give Warning to Applicants in Upcoming Window

No one ever claimed that music royalties are easy to understand, especially in the digital age when nice, neat definitions that had grown up over many years in the physical world no longer necessarily make sense. The complexity of the world of digital music licensing is clear from many sources, but the Commerce Department’s “Green Paper” on Copyright Policy, Creativity, and Innovation in the Digital Economy does a good job discussing many of the music royalty issues that have arisen in the last 20 years that make copyright so confusing for professionals, and pretty much incomprehensible for those not immersed in the intricacies of copyright law on a regular basis. The Green Paper discusses some of the issues in music policy that make this area so confusing, and highlights where interested parties and lawmakers should focus their efforts to reform current rules to make them workable in the digital age. The Paper also discusses other areas of copyright policy that we will try to address in other articles.  You can find the Green Paper here (though note that it is about 120 pages and will take some time to download).

One of the most controversial issues that it addresses is the concept of a general performance right for sound recordings. As did Register of Copyrights Maria Pallante in the speech we summarized here, the Commerce Department puts the current administration on record as supporting the creation of such a right – a right that has not existed in the United States, except for a limited sound recording performance royalty for performances by digital audio companies like webcasters (see our summary of the royalty rates paid by different types of Internet Radio services here) and satellite radio (see our summary of the royalties to be paid by Sirius XM under the most recent Copyright Royalty Board decision). While the most controversial aspect of the creation of a broad sound recording performance royalty has been in connection with the extension of that royalty to broadcasters, the adoption of a general royalty, as advocated by the Green Paper would extend payment obligations to others who publicly perform sound recordings – including bars, restaurants, stadiums and other retail establishments.Continue Reading Making Music Rights Manageable in a Digital World – Issues Identified In Commerce Department “Green Paper” on Copyright Policy

The rules for determining when construction of a new tower may cause a distortion of the pattern of a nearby AM station, and when the party building the new tower has a financial obligation to remedy any interference caused, were clarified by the Commission in an order released late last week. The order makes clear that all towers used by FCC licensees must abide by these rules, putting into formal rules the existing general obligation that all “newcomers” that create interference to an existing licensee must be responsible for rectifying that interference. There was apparently some question about the duty of newcomers to rectify issues that they cause to AM stations, as the rules for all non-broadcast services did not explicitly include language embodying that concept.

The Commission also made clear that the distortion of an AM stations pattern would be measured by the “moment method,” a computer program that will determine if there is a disruption to the pattern, rather than by actual field strength measurements. Doing a “proof of performance” of an AM station can be a long and costly process. Thus the FCC several years ago authorized the moment method of modeling AM patterns (see our article here). In this order, the Commission extends the reliance on this method to the resolution of complaints about new tower construction interfering with existing AM patterns. Other specifics of the order are set forth below.Continue Reading FCC Sets New Rules for Determining When New Tower Construction Triggers Financial Responsibility for Disrupting AM Station Antenna Patterns

The FCC has finalized its regulatory fees for this year, though they have not announced the actual filing date, other than to say that the fees will be paid during a window to be announced sometime in September. In the Order announcing the new fees, in addition to setting the fees (which represent an increase for broadcasters of approximately 3.5% over past years), the FCC addressed several issues that it had raised in its Notice of Proposed Rulemaking on the fees, about which we wrote here.  The issues for broadcasters were few, and some of the most significant changes will not take place until the future.

One of the simple issues that was addressed was the difference between the fees for UHF and VHF television stations. Regulatory fees have always reflected the analog preference of VHF stations over UHF, as those stations had larger coverage and were, generally, more profitable. In the digital world, it is exactly the reverse, as UHF stations are far better at transmitting a digital signal.  Yet the fees still reflect the old reality – and VHF stations, as set forth below, pay twice as much as UHF stations. The FCC finally recognized that this was not right, and has decided to set regulatory fees at the same level for both VHF and UHF stations. But, because of certain procedural requirements, the new fees will not take effect until next year. So, this year, VHF stations will again continue to pay a disproportionately high fee.

The Commission also promised to review other fees in the future. Part of the way that fees are set is based on the percentage of the FCC’s resources that are devoted to the regulatory activities associated with a particular communications industry service, as reflected by the employees in the FCC Bureau most directly in charge of regulating the service . One of the reasons for the increase in the fees for broadcasters is because the FCC decided that the fees previously associated with the International Bureau, whose services working on International treaties and clearances, benefit all different kinds of communications entities regulated by other FCC Bureaus, should be largely reallocated to those other Bureaus for purposes of counting the fees paid by the communications services regulated by those other Bureaus.  At least part of the International Bureau fees were allocated to the Media Bureau which regulates broadcasters. In fact, this reallocation will increase fees to an even greater extent over time, but the FCC capped the rate of increase for fees for this year, to avoid “sticker shock” to the various services whose fees will increase.Continue Reading FCC Announces Regulatory Fees to be Paid in September – Specific Filing Dates to Be Announced Soon