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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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With the Florida broadcast airwaves overrun with political ads in the last few days – the great majority of them attack ads – many ask why do broadcasters keep running those ads?  Of course, there are revenue considerations.  But as the attacks get nastier, and perhaps even go against the interest of the station owners themselves, why do broadcasters keep running these ads?  Often, it’s because broadcasters have to – under the applicable laws.  We’ve seen two stories this week that illustrate that point – one where Gloria Allred, the well-known attorney, has written to a number of television stations asking them to refuse graphic anti-abortion ads to be run during the Super Bowl sponsored by purported Democratic presidential candidate Randall Terry, and a second about an NBC-owned station in Florida apparently continued to run a Mitt Romney ad attacking Newt Gingrich, featuring NBC News footage of an old Tom Brokaw Nightly News report, even after NBC News asked the Romney campaign to stop using the clip.  The NBC station apparently recognized its obligations, while Ms. Allred ignored the station’s obligations under Section 315 of the Communications Act and the FCC’s political broadcasting rules. 

Broadcasters are sometimes in a sticky position with nasty political ads, as by law (Section 315 of the Communications Act) they are not allowed to censor a candidate ad.  What this means is that they cannot reject a candidate ad based on its content, with the possible limited exception of where the ad violates a Federal felony statute like the obscenity laws (though not the indecency rules, which are not felony statutes).  If the ads just violate someone’s property interests, or could give rise to some sort of civil liability (e.g. defamation), as we’ve written before, the broadcaster is immune from liability for running the ad by a candidate or his authorized campaign committee. The broadcaster is also immune from liability from a perceived copyright action like that alleged by NBC.  But that immunity arises only because the station cannot, under law, reject the ad.  So the only remedy for someone objecting to the content of a candidate’s ad is to seek a remedy against the campaign itself, not against any station that runs the campaign’s ad.  (See examples of suits against the candidates, but not the stations, in cases we wrote about here and here)  So, even if the copyright owner who objects to the use of its copyrighted content in an ad owns the TV station, it is still stuck running the ad if the candidate insists.

Similarly, in the case that Ms. Allred complained about – asking stations to pull the graphic anti-abortion ads sponsored by Randall Terry, she posed the wrong question – alleging that the ad would be offensive and inflammatory.  Stations can’t make those judgments about political ads – they have to run them even if they can be upsetting. The FCC has even been told by the Courts that it can’t allow stations to channel upsetting political ads (like those anti-abortion ads that Mr. Terry plans to run), into late night hours.  If a candidate wants to run ads in the middle of the day (or in the middle of children’s programs), a station can warn its audience that the ad may be disturbing and that it is being forced by law to run it, as long as such warnings are done in a neutral fashion, but it must run the ad in the form the candidate created it.  So what should Ms. Allred have argued about the Terry ads?Continue Reading Why Broadcasters Have To Air Political Attack Ads Even If They Don’t Want To

ASCAP and the Radio Music Licensing Committee have reached a settlement on the amount that radio stations will pay to ASCAP for the use of music for the period through the end of 2016. The agreement was approved last week by the US District Court in the Southern District of New York acting as a “rate court” to consider those fees. We reported that a settlement had been reached in early December, and now we’ve seen the actual documents and can provide some details of this agreement between the commercial radio broadcast industry and ASCAP. It should result in significant savings for broadcasters from rates that they had been paying prior to January 1, 2010.

As we wrote in 2010 when RMLC and ASCAP were first trying to reach a deal on new rates, the biggest problem with the old rates was the payment structure. Rather than making ASCAP a partner of the broadcaster by cutting them in for a percentage of the broadcaster’s revenue, under the deal that ended in 2009, ASCAP was to receive a set fee each year from the broadcast industry.  That set fee was divided among all commercial radio stations not based on station revenues, but instead based on the market size and technical coverage of each station. So all similarly powered stations in a market paid the same ASCAP fee, whether they were big revenue producers or not.  And the agreement was entered into during a period where radio broadcasters thought that revenues would be ever-increasing, so that set fee to be paid to ASCAP increased each year. As the economy and broadcast revenues fell during the later years of the deal, while the set fee kept increasing,broadcasters were paying an ever-increasing percentage of their revenues to ASCAP – far more than would have been paid had the industry stuck to a percentage of revenue formula.

Well, the experiment is over, as the new deal returns to a traditional percentage of revenue deal. Music radio pays ASCAP 1.7% of “revenues subject to fee from radio broadcasting." Essentially, that is all the revenue that a station receives from advertising and promotions, less a 12% deduction (presumably to cover commissions and costs of collection). Barter revenues, and payments made to networks (as opposed to the stations themselves), are excluded from the gross revenue calculation. All revenues from HD programming (including any amounts received for brokered programming) is also included (at least for the time being – subject to reevaluation should HD revenues account for 25% of radio revenues by 2015). New Media revenues, if the arise exclusively from streaming your station on the Internet, are also included in this gross revenue calculation.Continue Reading Details of the ASCAP Settlement with the Radio Industry – What Will Your Station Pay?

The FCC’ Notice of Proposed Rulemaking in its Quadrennial Review of the Multiple Ownership Rules was published in the Federal Register today, setting the deadline of March 5 for initial comments in that proceeding.  Reply comments are due on April 3.  We summarized the FCC’s tentative conclusions on changes to the ownership rules when the Commission…

Last week, I participated in an FCC-sponsored webinar to discuss its EEO rules.  Along with two other private firm lawyers, the chief of the FCC’s Office that administers its EEO rules and one of his senior staff members participated on a panel to discuss the legal obligations of broadcasters and MVPDs in meeting the EEO rules.  The panel, which lasted almost two hours, was a very thorough discussion of the requirements of the FCC rules.  It provided insight into how the FCC identifies problems, and even suggested some ideas as to how broadcasters can assure compliance with the requirements in the easiest way possible.  While lengthy, the webinar, which is archived on the FCC’s website, is worth viewing to get a very good summary of the FCC rules.  If a station or MVPD has its management employees and others with hiring responsibility sit down and watch the video, and use it as part of a training program for management employees on EEO matters, it may even count as one of the non-job specific supplemental outreach initiatives that the FCC requires each entity subject to the EEO rules to conduct.

We wrote last week about a recent set of FCC fines to two broadcasters that had not widely disseminated information about all of their job openings – relying instead on only a combination of internal sources (word-of-mouth, station websites, intra-company referrals) and Internet websites for their outreach efforts for a substantial number of job openings.  At the webinar, the FCC officials said that there were a number of other enforcement actions in the pipeline that should be public soon.  The FCC is reviewing every license renewal application that is filed with the FCC to determine if its accompanying Form 396 provides information necessary to demonstrate compliance with the three prongs of the FCC’s EEO program – wide dissemination for all job openings, notice of job openings to community groups that request such notice, and non-vacancy specific initiatives that are designed to educate a community about the nature and requirements of broadcast jobs.  Stations are also reviewed when the FCC conducts random audits (5% of all stations and MVPDs are supposed to be audited annually) and when complaints or other information comes to the attention of the FCC staff.  Staff members remarked that they have even called stations to discuss issues when visiting a station website for personal reasons and noting the absence of the most recent Annual EEO Public File Report that needs to be posted on a station website on the anniversary date of the filing of the license renewal applications for stations in the state of the station’s city of license. Continue Reading More EEO Fines on Their Way – And Helpful Hints on EEO Compliance From the FCC’s EEO Webinar

Changing the city of license of an AM or FM station is getting more difficult, based on recent FCC decisions.  As we have written before, the FCC’s Rural Radio order changed the manner in which the FCC reviews city of license changes.  In connection with any proposed city of license change, the FCC reviews the proposal to make sure that the change will result in a favorable arrangement of allotments, making sure that the distribution of radio channels is in the public interest.  In making that decision, the FCC has relied on a series of priorities – first insuring that all areas of the country get at least two radio reception services (Priority 1 was to provide service to "white areas" that currently receive no radio service at all, Priority 2 was to provide a second reception service to all areas).  The next priority was to provide as many communities as possible with their first "transmission service", i.e. a station licensed to that community that would have a primary responsibility to address its needs and interests.  Finally, if there was no proposal to provide a first or second reception service or a first local transmission service, the FCC  looked at Priority 4 factors, i.e. other public interest matters.  In the past, service to a greater number of people itself was a Priority 4 consideration.  Based on a case released last week, service to a greater population apparently is no longer be viewed as justification for the change in the city of license of a radio station – even if the proposed move is from a rural community that already has a significant amount of service to a similarly well served urbanized area and results in a significant increase in the population served by the station.

The Rural Radio order changed the Priority 3 preference for a first transmission service by determining that any proposal for a city of license within an urbanized area would be viewed as being a proposal for service to the entire urbanized area (meaning that, instead of being a first local service to a named community, all the stations in the urbanized area would be considered as serving the same city). Thus, a proposal to take a station from a rural area (e.g. proposing to take the third radio station from some smaller rural town) to a city without a service in a urbanized area would no longer be viewed as providing the first local transmission service to the suburban community (but would instead be viewed as being a proposal to provide just another service to a metro area that probably already has many stations that are licensed to the various communities in the urbanized area).  Some had thought that, while Priority 3 would no longer justify such a move, a Priority 4 preference would be available if the move would allow the station to serve a much larger population, and if any loss area was already well served.  In the proposed move discussed last week, the Commission relied on language in the Rural Radio Order that stated that population increases alone would not be enough to justify a city of license change when a station proposed to move into an urbanized area.  In this case, the Commission’s staff found wanting a proposal to move from the well-served community of Boone, Iowa to a community in the Des Moines urbanized area – even though the proposed change would result in service to over 300,000 more people than are currently served by the station – increasing the number of people served by the station from less than 100,000 to over 400,000. The request was not denied outright, but instead the applicant was given another opportunity to supply additional information to demonstrate the public interest benefits that would result from the move. Continue Reading FCC Makes Changing City of License of Radio Stations More Difficult

The FCC has extended the comment deadline in two proceedings looking at imposing new public interest obligations on TV broadcasters (and potentially, at some point in the future, on radio stations as well).  Both proceedings are an outgrowth of the FCC’s Future of Media Report, that suggested that broadcasters be made to be more…

The Copyright Royalty Board has just announced that it is accepting petitions to participate in the next proceeding to set the royalty rates to be paid for the ephemeral copies made by "business establishment services" in connection with any digital transmission of sound recordings.  Business establishment services are essentially background music services who…

In addition to the normal FCC deadlines for routine filings, January brings the deadline for comments in a number of FCC proceedings, and a filing window for new FM applications.  For TV stations, the Commission recently extended to January 17 the Reply Comment deadline on its proposals (summarized here) for an online public inspection file. …

The Copyright Office last week issued its Report to Congress on pre-1972 sound recordings (with an Executive Summary), addressing whether to bring these recordings under Federal law.  As we wrote last year when the Copyright Office solicited comments on the issues raised by this report, sound recordings (i.e. aural recordings embodied in some fixed form like a CD, record or digital file) created in the United States prior to 1972 are not protected under Federal copyright law.  Instead, any protections accorded to these sound recordings are under state laws.  Congress, at the request of a number of archivist and music library groups, asked that the Copyright Office review the issues that would be raised by bringing these sound recordings under Federal law.  Some archivists and librarians feared that, in preserving old recordings, they could run afoul of state copyright laws, and that a unified set of rules under Federal law might be easier to follow.  Why is this issue more broadly important to the music community?  For internet radio station operators, it is because the proposals to Federalize all such recordings could have an impact on digital performance royalties (as there does not appear to be any public performance right in sound recordings under state laws and, under current law, these recordings would not be covered under the SoundExchange royalties that most noninteractive services play).  The Report is also significant in that it raises questions about copyright laws dealing with user-generated content, specifically whether the DMCA safe harbor provisions protecting the operators of Internet service companies from copyright liability for the content posted by third parties apply to pre-1972 sound recordings.

This is only a report to Congress, and such reports have no binding impact.  Instead, they merely set out the position of the authors of the report from the Copyright Office.  Such reports are also cited as evidence in court cases as to what the Office believes the current state of the law to be.  The Office has written a number of reports over the years making suggestions about how copyrights should be administered and, given the complexity of copyright law and the competing interests affected by any revisions to the laws, many of their proposals have never been implemented.  This report suggests that pre-1972 sound recordings be brought under Federal laws.  Specifically, the report suggests that current copyright holders get protection for most pre-1972 works until 2067 (when state law protections are to run out under the current law, allowing the works to move into the public domain).  The protections would be accorded to works that are used by the copyright holder (sold at some reasonable price) and registered with the Copyright Office at some point after a law implementing its proposals became effective.  Works from prior to 1923 would be subject to a similar use and registration process, but would only get 25 years of additional protection.  Seemingly, protections for works that are not registered would pass into the public domain after the applicable registration period expires.  For some webcasting companies, this change could have an immediate impact.Continue Reading Copyright Office Report Recommends Federalization of Pre-1972 Sound Recordings – Possible Implications For Music Royalties and User-Generated Content