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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 has just announced that the Form 323 Biennial Ownership Reports for commercial broadcasters, due to be filed on or before November 1 of this year, will now be due instead by December 2. This is the third straight time that the obligation to file these reports has been extended, due to the complexity and confusion that surrounds the completion of the information that is required on the form. All commercial broadcasters, including LPTV licensees, need to file this form by the new deadline. As set forth in more detail below, at this point, this obligation does not extend to noncommercial educational licensees.

In 2009, the FCC adopted a requirement for modified Biennial Ownership Reports for all commercial stations, requiring that such reports be filed by all commercial broadcasters – including LPTV licensees, sole proprietors, general partnerships and other licensees who had previously been exempt from such obligations. The reports were to be filed on an expanded form that gathers information not just about who the owners of broadcast stations are, but also the race or ethnicity and gender of such owners. This information was to be gathered so that the FCC could better assess the minority ownership of broadcast stations.  This was to be used for purposes such as developing new ownership rules for the broadcast industry.  In fact, the information gathered from the first set of these forms was recently the subject of comment in the ongoing multiple ownership proceeding at the FCC (see our article here).

The forms were also supposed to be searchable by individual, so that the FCC or interested parties could easily cross-reference the broadcast interests of various individuals. To do so, however, required the gathering of new information, and required that every individual obtain an FCC Registration Number (an FRN), which required that they provide a Social Security or Taxpayer ID Number (for corporate owners of licensees) to the FCC. This obligation stirred much controversy. In addition, the format of the reporting of the other broadcast interests of individuals required much more time than had previous reports.  That complexity has not disappeared over time. Continue Reading Filing Deadline for FCC Form 323 Biennial Ownership Reports Extended Until December 2 – Why the Delay?

In a lawsuit filed last week (see the complaint here), Flo and Eddie, the artists who were behind the 1960’s band The Turtles, claim that Sirius XM has infringed on the copyrights in their songs by allowing copies of these recordings to be made by the satellite radio service and in certain Internet offerings that Sirius XM makes available. The article in THR.esq (the Hollywood Reporter’s legal blog) that first announced the lawsuit talks much about the ambiguous status of pre-1972 sound recordings under Section 114 of the copyright act (the section providing for royalties for the public performance of sound recordings by digital services), and seems to view the suit as a reaction to the decision in the satellite radio proceeding before the Copyright Royalty Board finding that Sirius XM owed no performance royalty to SoundExchange for its playing of pre-1972 sound recordings (see our article about that decision). As pre-1972 sound recordings are not entitled to Federal copyright protection, the Board decided that there could be no payment due to SoundExchange (which collects royalties for payments made under Section 114) as there was no Federal right. While that point seems to be well-established, a close reading of the complaint makes it appear that it is not the public performance that is the principal basis of the lawsuit, but instead the copies that are made in the digital transmission process and by certain features of Sirius’s Internet streaming services that allow the download or on-demand playing of their digital streams.

As we have written before, pre-1972 sound recordings were left out of Federal statutes as, until 1972, sound recordings (a specific recording of a song by a particular artist) had no protection at all under Federal copyright law. As these sound recordings had no Federal protections, state laws were adopted – principally to prevent bootlegging or other unauthorized copies of such sound recordings from being made and distributed. As there was not, and still is not, a general public performance right in sound recordings, there has been little in the way of court cases suggesting that pre-1972 sound recordings have rights that other sound recordings do not have, e.g. a general public performance right. If the Flo and Eddie suit were really alleging that there is a public performance right in pre-1972 sound recordings, then seemingly every restaurant, bar, or stadium that plays the original hit versions of Good Vibrations, Rock Around the Clock, Johnny Be Goode, the Twist or the Turtles’ Happy Together could find themselves looking at potential liability for public performance of these sound recordings. Certainly, these state statutes, many of which have been around for decades, did not contemplate the exclusively digital public performance right that exists for post-1972 sound recordings, which was not adopted until the late 1990s. So, if the plaintiffs are asserting that there is a public performance right inherent in these statutes, it would seem that it would have to be a general public performance right. But it sure seems difficult to believe that courts would find ambiguous state statutes adopted to prevent illegal copying created a public performance right where none has ever before existed in the common law of the United States.Continue Reading Flo and Eddie Use State Laws on Pre-1972 Sound Recordings to Target Certain Sirius XM Services

Another month is upon us, along with all of the FCC regulatory obligations that accompany it. August brings a host of license renewal obligations, along with EEO public file obligations in a number of states, as well as noncommercial Biennial Ownership Report filings in several states. We also expect that the FCC will notify stations of the date for the payment of their regulatory fees (which will either be due late this month or early next). As we reported yesterday, the filing of long-form translator applications for over 1000 applicants from the 2003 FM translator window also comes at the end of the month. There are comments due in a number of FCC proceedings. We’ll talk about some of those issues below. For TV broadcasters, we also suggest that you review our article that recently ran in TV NewsCheck, updating TV broadcasters on issues of relevance to them not only this month, but providing a description of the full gamut of issues facing TV broadcasters. We prepare this update for TV NewsCheck quarterly.

Today brings the deadline for the filing of license renewal applications for radio stations in California and for TV stations in Illinois and Wisconsin. Stations in these states, and in North and South Carolina also have EEO public inspection file reports that should be placed in their public inspection files no later than today. Noncommercial TV stations in Illinois and Wisconsin also need to file Biennial Ownership Reports today, and noncommercial radio stations in California, North Carolina, and South Carolina should also file their Biennial Ownership Reports by today.Continue Reading August FCC Regulatory Deadlines for Broadcasters – Including Renewals; EEO; Comments on Indecency, the Online Public File and Cross-Ownership

The processing of the FM translator applications left over from the 2003 translator window marches on. The FCC today announced the window for long form applications for all the translator applications that are no longer mutually exclusive with other applicants. The FCC has asked for long-form applications for these 1239 applications (filed on Form 349 and providing more detailed legal and technical information about the applicant and its proposed operation) to be filed by August 30. The FCC Public Notice about this filing deadline is here. The list of applications that are identified as singletons are here.

Many of these applications are those that filed technical amendments in the recent settlement window eliminating mutual exclusivity with other applications. There are 1239 such applications that could be granted as a result of this action, on top of the applications already identified as "singletons" before the settlement window (see our article here), and perhaps others still subject to FCC processing. The remaining applications, who were not able to resolve mutual exclusivity with other applicants, will end up in an auction at some point in the future. 

In the long-forms, the applicant may make minor changes to its technical facilities that were specified in the tech box on the original application. However, these changes, if made in a market that the FCC deemed spectrum-limited for purposes of LPFM availability, must contain a "preclusion study" showing that they will not impact LPFM opportunities in their markets. Any changes are also secondary to any application filed in the upcoming LPFM window.Continue Reading Over 1000 New FM Translators Almost Ready for Grant – Long Form Applications Due August 30, Changes Secondary to LPFM Applicants

How do you advertise a business that sells tobacco products and has the word “cigarette” in its name? Apparently, you don’t, at least not on radio and TV stations – based on the teachings of the Public Notice released by the FCC this week, entering into a consent decree with a broadcaster. In exchange for…

Fines of $20,000 for violations of the obligations to prepare and file Children’s Television Reports have been flowing out from the FCC as it works its way through license renewal applications filed by television stations over the last year. We wrote about a number of these fines here, when the first wave of fines was issued by the FCC, mostly dealing with Class A TV stations. In the last two weeks, the fines have continued, with a few targeting full power television stations, and many others hitting Class A stations. In several cases, the fines reached $20,000, and included fines not only for the failure to file the reports with the FCC on a timely basis, but also the late placement of the reports into the station’s public file, and the failure to report the deficiencies in compliance on the license renewal forms. There were new cases involving Class A television stations and, as with the last batch of these cases, the Commission made clear that the licensees could give up their Class A status to avoid the proposed fines – not mentioning that, if they did so, they would also be giving up their status as primary station licensees, meaning that they would be secondary to any new full power TV construction (for a new station or a modification of an existing station) and would also lose any protection that they otherwise would have in the repacking of the television band in the upcoming incentive auctions that will sell part of the current TV spectrum to wireless users for wireless broadband uses.

The cases decided in the last two weeks include a $20,000 proposed fine to a full-power station in Louisiana that did not timely file 18 Form 398 Reports during the license term ($17,000 for the late filings and $3000 for not reporting the late filings in the renewal application). In another case involving a proposed $20,000 fine, a Georgia Class A station had failed to timely file 20 Form 398 Reports, and also did not complete 15 Quarterly Issues Programs Lists and place those reports in its public file on a timely basis. With the online public file, compliance with the Quarterly Issues Programs list requirement can be monitored by the FCC, even though such reports are not filed at the FCC. A third $20,000 fine was given to a Class A station that was late with 25 children’s television reports, and failed to identify the failures on the renewal, even though the FCC had inquired about the status of 7 of those reports before the renewal was submitted, and the licensee had admitted its failures to comply with the rules. $10,000 of the fine was attributed to the late-filed public file documents, $7000 to the late-filing of the Form 398s, and $3000 to the failure to admit the violations in the license renewal. Continue Reading More Big FCC Fines for Children’s Television Violations

The deadline for reply comments on the FCC’s Indecency policy have been extended. These replies  had been due on July 18. But a request from CBI, a collegiate broadcasters organization, asked for more time given the extensive initial comments filed in the proceeding and the fact that college broadcasters have difficulties in responding to issues over…

Using music in commercials and other broadcast station productions can be treacherous. As we’ve written before, contrary to what some stations might think (based on the questions we often get from broadcasters around the country), a station’s ASCAP, BMI and SESAC royalties do not give them the right to use popular music in their station productions – or in their commercials. Nor do they give you rights to use music in video productions used repeatedly on a station, or on a station’s website. Hearing an award winner at the recent broadcast awards banquet at the Montana Broadcasters Association annual convention thank the music publishers that gave her permission to change the lyrics of a well-known oldie for her PSA for a local animal shelter warms a lawyer’s heart, recognizing that there are broadcasters who understand the rights issues. But from questions that I get all the time, I fear that many other broadcasters don’t.

ASCAP, BMI and SESAC are commonly known as the Performing Rights Organizations (or PROs), as they grant music users only a single right – the right to make public performances of musical compositions (or "musical works"). A musical composition is the words and music in a song – not the actual recording done by a particular singer or band. The composer and lyricist of the song have a copyright in the musical composition, though the right is usually assigned to a publishing company to administer. Each copyright in a composition gives its holder the right to exploit it in several different ways – and then user needs to get the rights to use the composition in any of these ways. The different rights include the right to publicly perform the composition (e.g. to play it before an audience or to transmit it to an audience by means of radio, the Internet or other transmission media). But the copyright holder also has the right to limit users from making reproductions of the composition (e.g. a recording of the song or any other “fixation” of the composition), distributing the composition (e.g. selling it or otherwise making it available to the public), or making a “derivative work” (taking the copyrighted work, using it, but changing it in some manner which, in the case of a musical composition, is probably most commonly done by changing the words of a song). So, for the Montana broadcaster to take a well-known song and to change the lyrics for her PSA required that the broadcaster get permission to make a derivative work (and probably to make reproductions, too, if copies of the re-recorded song were made).Continue Reading Using Music in Radio or TV Productions – Why ASCAP, BMI and SESAC Licenses Usually Are Not Enough

July has many FCC obligations for broadcasters, both regularly scheduled and unique to 2013. There are the normal obligations, like the Quarterly Issues Programs lists, that need to be in the public file of all broadcast stations, radio and TV, commercial and noncommercial, by July 10. Quarterly Children’s television reports are also due to…