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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.

Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC opened the window for Fiscal Year 2021 regulatory fees which must be paid no later than 11:59 pm,

Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.

  • In a significant win for television broadcasters, a federal district court in New York determined that the nonprofit company Locast,

The saga of Flo & Eddie seeking performance royalties for the pre-1972 sound recordings of their old band, the Turtles, seems to be finally reaching its end. For years, they have sued both broadcasters and digital media companies trying to exploit an ambiguity in copyright law over the status of pre-1972 sound recordings – songs as recorded by a particular band or artist before February 1972 when sound recordings first became subject to federal copyright law. While federal law still only conveys a performance right in sound recordings when those recordings are performed as a digital audio performance (e.g., through a streaming service or digital cable transmission), Flo & Eddie had argued that pre-1972 sound recordings remained covered by state laws, that some of those state laws provided a performance right, and that this  performance right extended to all performances, not just digital ones. Courts in other states had rejected that argument (see our articles on decisions in New YorkFlorida and Georgia), but the question of the status of the law remained unresolved in California. A court decision last week helps to resolve that issue, though intervening events have lessened its impact, so the decision has gone relatively unnoticed despite the extensive prior coverage previously devoted to this subject.

The decision was one of the 9th Circuit Court of Appeals, specifically related to XM Sirius royalties. In the decision, the Court conducted a searching review of the history of copyright law’s treatment of sound recordings, and found nothing in that history that would suggest that the California legislature, when adopting its law giving a creator the “exclusive rights” in these recordings meant to convey a public performance right in a sound recording – noting that the first use of that exclusive right language was in the 1870s, before there were sound recordings. The Court analyzed all the decisions in the interim and found none that suggested that there was a common law or California statutory right that created a public performance right in these recordings.  There was no suggestion that the California legislature had intended to depart from the practices that have otherwise generally applied throughout the US where no performance right has been paid for sound recordings except for the digital performance right that was adopted by Congress in the 1990s. The Court did note that, since the case first began, the Music Modernization Act extended the federal performance right in digital performances to pre-1972 sound recordings. So, the Court’s decision was limited in its application to disputes about whether a digital performance royalty was due for performances before that extension.  But there was one other issue not mentioned by the Court that makes this decision relevant to everyone who performs sound recordings even in a non-digital context, including broadcasters.
Continue Reading Court Decision Finds No California Performance Right in Pre-1972 Sound Recordings – Why It Was Still an Issue

As Fall approaches and kids head back to school, be sure not to lose track of the regulatory dates and deadlines in September.  We outline some of those dates below.  One date is applicable to all commercial broadcasters, the obligation to pay regulatory fees.  While the exact due date has not yet been announced, look for that announcement any day as the Commission adopted the decision setting those fees last week.  See the Report and Order, here, for more details and to see what your station owes.  As part of that proceeding, the FCC also decided to seek comment on assessing fees in the future on users of unlicensed spectrum, especially large tech companies.  Many such users manufacture devices or provide other applications that use spectrum or otherwise benefit from FCC regulation, but right now do not pay fees.  Watch for comment dates on this proposal in the near future.  The Notice of Proposed Rulemaking begins on page 38, here.

Comment dates have been set for parties that want to weigh in on the FCC’s media ownership rules.  They have until September 2 to file their comments in the 2018 Quadrennial Review proceeding, which focuses most heavily on local radio ownership regulation.  These comments are to refresh the record with updated information about the state of the media marketplace since initial comments in the proceeding were filed over two years ago.  Reply comments are due by October 1.  We wrote more about this review of media ownership, here.
Continue Reading September Regulatory Dates for Broadcasters: Regulatory Fees, Media Ownership and Sponsorship Identification Comments, Auction Applications, and More

Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.

  • On Friday, the FCC released its decision setting 2021 annual regulatory fees. In a win for broadcasters, the NAB and

Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.

  • Two Federal Register notices set dates for changes to the FCC’s EAS rules. We wrote about these issues here and

The minority tax certificate is back in the news with revised bills being introduced in both the House of Representatives and the Senate.  We wrote about a version of this bill introduced in the last session of Congress here.  The tax certificate offers perhaps the most meaningful route to increasing diversity in broadcast ownership.  While the certificate was abolished by Congress over 25 years ago, these new bills signaling the potential for its revival merits another examination of what this policy did and why it was effective, and what is now being proposed.

The minority tax certificate was a program designed to provide broadcasters with an economic incentive to sell their stations to minority owners.  Rather than directly subsidizing the potential owners, the certificate instead gave a tax break to sellers of broadcast stations that incentivized them to sell to a minority-owned business even if there were multiple bidders for their properties.  If the seller sold its station to a minority-owned business, the seller could take the proceeds from the sale and roll those proceeds over into a new media property without recognizing the taxable gain from the sale.  Unlike the typical like-kind exchange where the roll-over into a new property has to proceed within a few months of the sale, the tax certificate treated the sale as an involuntary sale (like the sale of a property because of a government’s exercise of eminent domain) under Section 1033 of the tax code, giving the seller several years to roll the proceeds over into a new purchase.  At that point, the new property would have the same tax basis as the old – meaning that no gain would be recognized until the sale of the new property.  In the closing decades of the last century, this policy spurred many sales to minority-controlled companies by broadcasters looking not to get out of the business, but instead looking to realign their holdings or to move up into larger markets.  Several hundred radio and TV stations were purchased under this program in the last 20 years of the program’s existence.  Why was this seemingly successful program abandoned?
Continue Reading Bills Introduced to Bring Back Tax Certificate to Foster Diversity in Broadcast Ownership – Exploring the Proposals

Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC and FEMA conducted their annual Nationwide Test of the EAS system on Wednesday, August 11. All broadcasters should

The FCC this week announced the end of Auction 109, which offered for sale construction permits for 139 new stations – 4 AM stations in the St. Louis area whose licenses were surrendered by the prior licensee, and 135 new FM channels.  97 of the channels were sold but 42, including all of the AM stations, went unsold in the auction.  The full auction results can be seen on the FCC’s auction site here.  The FCC will raise $12,344,110 from the auction – though over $9,000,000 of that is to be paid for two channels – over $6 million for a Sacramento FM and over $3 million for an FM to be licensed to a community just north of the Dallas metro.

The 42 channels that were unsold range from channels allotted to small communities in states like Wyoming or Alaska that were predicted to serve very few people, thus having opening bids as low as $750 that no one was willing to meet, to channels in somewhat bigger communities including channels in New York state and Colorado that had opening bids of $75,000, indicating that they would serve a substantial number of people, but the prices were apparently deemed too high to justify for companies looking for a business return. The 4 St. Louis area AM stations, which each had opening bids of $50,000, appear to be in that same category.  This lack of interest may also say something about the FCC’s local radio ownership rules.
Continue Reading Auction for New AM and FM Channels Ends with Almost a Third of the Channels Unsold – Does the Result Say Something About the FCC’s Local Ownership Rules?

We’ve written before over the controversy as to whether embedding pictures or video served by a social media site on your website negates the need to get explicit permission from the copyright owner for that use.  For years, many had relied on old court decisions that employed a “server test” – a site was only liable for the use of copyrighted material if that material resided on the same server as the rest of the website content being made available by the site’s owner.  But that test seems to be falling by the wayside based on a number of recent cases (see our articles here and here).  Another decision was released the week before last by a US District Court Judge that seems to further advance that trend.

In a case brought against Sinclair Broadcast Group, video of a starving polar bear was posted by Sinclair on websites that it controlled without permission of the individual who recorded it. The video was posted as part of an article on the popularity of the video.  The videographer sued – and Sinclair responded that it could not have copyright liability as it did not host the video, but instead merely embedded a link to Instagram where the videographer had posted the video.  In his decision denying a motion to dismiss, the Judge determined that intentionally embedding the code that brought up that video whenever a website visitor visited a Sinclair site was a “display” of the video by Sinclair and the functional equivalent of hosting the video on Sinclair’s own servers, so the infringement claim could not be dismissed. The Judge did, however, allow Sinclair to continue to argue that, in the context the video was displayed, the use may have been a “fair use.”
Continue Reading Embedding Social Media Videos on Your Website? – Court Case Says Get Permission from Copyright Owner First