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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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This week, I spent some time at the Podcast Movement Annual Convention, this year held in the DC area.  While the convention is always a good time to catch up with industry friends and to spot new trends (AI was, of course, a topic that was discussed on several panels as it is at virtually every media conference these days), it was also a reminder that with all that has been going on at the FCC and with other regulations, we have not written much about podcasting in the recent past.  Previously, we have covered many issues related to the use of music in podcasts (see, for instance, our articles here, here, and here).  We’ve written about other legal issues that need to be considered in connection with podcasting including getting releases from guests, making sure that ownership of the podcast is clear (an issue potentially of more importance if the Federal Trade Commission’s ban on noncompete agreements in employment contracts goes into effect, as it could result in more changes in employment of employees working on podcasts, though the effective date of any noncompete ban is questionable based on a court action this week that throws out that ban – a decision likely to be appealed), and other issues that I covered in the slides from a presentation presented at the Podcast Movement conference several years ago that remain relevant.   Today, I thought that I would revisit another topic from my prior coverage of podcast legal issues, one that was given new urgency by another recent FTC ruling – sponsorship identification. 

Broadcasters are familiar with the FCC requirements for the identification of those who provide something of value to a station in exchange for any on-air content.  Fines can be issued (and big payments under consent decrees have resulted see, for instance, the cases we noted here and here) from broadcasters who do not follow the FCC’s sponsorship identification rules.  But broadcasters are not as familiar with the fact that the FTC also has rules about sponsorship identification requirements that go beyond the FCC’s obligations, looking at questions including the truthfulness of endorsements and testimonials for products and services.  FTC enforcement can be as severe, if not more severe, than that of the FCC (see, for instance, the FTC’s fines we wrote about two years ago on Google and a broadcaster for having DJs talk about their use of Pixel phones that they had not in fact used).  The FTC last week expanded on its policies by adopting a final rule prohibiting the purchase and sale of fake reviews and testimonials concerning products and services, and allowing the agency to seek civil penalties against knowing violators.  Among other things, the new rule prohibits activities including the buying or selling of fake consumer reviews or testimonials, buying positive or negative consumer reviews, using certain insiders to create consumer reviews or testimonials without clearly disclosing their relationships, creating a company-controlled review website that falsely purports to provide independent reviews, using certain review suppression practices, and selling or purchasing fake indicators of social media influence.  We plan to write more about this FTC decision in the near future, but it is important to note that these FTC policies apply with equal force to podcasters and any other online communications medium.Continue Reading Podcasters and Broadcasters – Disclose Those Sponsors! 

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

  • The FCC announced that oppositions are due August 27 in response to the National Association of Broadcasters’ petition for reconsideration
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With a number of upcoming regulatory deadlines approaching, including regulatory fees that will likely be announced in the next two weeks with a payment deadline before October 1, we thought that this would be a good time to remind broadcasters of EAS filing obligation that they may have missed as there has not been the…

The agenda for the Federal Election Commission’s August 15 Open Meeting was released last week, and it contains a proposed Notification of Disposition of the FEC’s review of a July 2023 petition for rulemaking filed by the advocacy group Public Citizen seeking to initiate a proceeding to address the use of Artificial Intelligence in campaign communications.  The FEC asked for public comment on that petition last August (see our article here).  The draft Notification and accompanying memorandum circulated by the three Republican members of the FEC proposes to deny the request to initiate such a proceeding.  As the FEC has equal representation of Democrats and Republicans, even if all of the Democrats disagree with the position advocated in the Notification, it would appear that the proposal would still be on hold for the foreseeable future as there would not be a majority of Commissioners necessary to move it forward.

The Public Citizen petition asked that the FEC “clarify that the [Federal Election Campaign Act’s prohibitions] against ‘fraudulent misrepresentation’ (52 U.S.C. § 30124) applies to deliberately deceptive AI-produced content in campaign communications.”  The draft Notification finds that the FEC lacks the statutory authority to initiate the proceeding – that the fraudulent misrepresentation language applies to a misrepresentation of a sponsor of a campaign ad, not to misleading messages in the ads themselves.  The Notice also contends that the FEC is “ill-positioned to take on the issue of AI regulation and does not have the technical expertise required to design appropriately tailored rules for AI-generated advertising.”  The draft notice suggests that, before any action is taken by the FEC, Congress must first authorize it.   Continue Reading FEC Appears Ready to Take a Pass on Regulating AI in Political Ads

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

  • The FCC’s Public Safety and Homeland Security Bureau announced that October 4 is the deadline for EAS Participants to file
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Last week, as we noted in our monthly look ahead at the regulatory dates of importance to broadcasters in August, the reinstatement of the rule prohibiting the duplication of programming on FM stations went into effect.  The FCC Order reinstating the rule is interesting both for its substance, and for the parties pushing for that reinstatement – principally representatives of the music industry.  As we note below, even though the rule is now back in effect, the NAB has asked for reconsideration of that action.

First, let’s look at what the rule provides.  The reinstated rule prohibits any commonly owned or operated (e.g., through a time brokerage agreement) commercial FM station from duplicating more than 25% of its weekly programming on another FM station if there is overlap of the 3.16 mv/m (70 dbu) contours of the two stations, and that area of overlap constitutes 50% of the 3.16 mv/m predicted coverage area of either of the overlapping stations.  Program duplication is not limited to simultaneous transmission of the same programming – the rule by its terms defines “duplication” to include the broadcast of the same programming any time within a 24-hour period.  Continue Reading FM Programming Nonduplication Rule Goes Back into Effect – A Win for the Music Industry While the NAB Objects

The FCC last week issued a Declaratory Ruling approving the acquisition by a company owned by a Canadian citizen of 100% of the ownership interest in a company that owns an AM radio stations in Seattle.  Until about a decade ago, a 25% limit in the parent company of an FCC broadcast licensee would have been the limit allowed by the FCC under Section imposed on foreign ownership of a US broadcast station by Section 310(b)(4) of the Communications Act.  Section 310(b) limits non-US citizens from holding more than 20% of a broadcast licensee, and foreign owners cannot hold more than 25% of a parent company “if the Commission finds that the public interest will be served by the refusal or revocation of such license.” About a decade ago, as we wrote here, the FCC decided to permit, on a case by case basis, greater foreign ownership of US broadcast station owners. This has resulted in past cases where 100% foreign ownership of US broadcast stations have been permitted (see our articles here and here) and even many large US broadcast companies have been permitted to have foreign ownership in excess of the 25% allowed by Section 310(b)(4).  The processing of these applications is, of course, not as straightforward as the normal acquisition of a station by US citizens.

Any foreign owner seeking to acquire a substantial stake in a US broadcast station must be reviewed by various Executive Branch agencies to ensure that there are no perceived security risks raised by the proposed acquisition. The FCC has to do its own review as well.  The approval process for the first acquisition by a foreign owner often takes a full year or more (the deal approved last week was filed with the FCC almost exactly a year ago), so don’t expect to complete an acquisition by a foreign owner on the same timeline as that for the completion of a deal by US citizens.  But, once a foreign owner is approved by the FCC, as long as the ownership of that acquiring company stays the same, it can in most cases acquire additional US stations without going through this extended review process. Continue Reading FCC Allows 100% Ownership of US Radio Station by Canadian Owner – Once Again Demonstrating Openness to Foreign Investment in the US Broadcast Industry

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

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Last week, the FCC released a Notice of Proposed Rulemaking that was first announced by the FCC Chairwoman three months ago (see our article here), proposing to require that the use of artificial intelligence in political advertising be disclosed when it airs on broadcast stations, local cable systems, or satellite radio or TV.  This proposal has been controversial, even before the details were released, with many (including the Chair of the Federal Election Commission and some in Congress) questioning whether the FCC had the authority to adopt rules in this area, and also asking whether it would be wise to adopt rules so close to the upcoming election (the Chairwoman had indicated an interest in completing the proceeding so that rules could be in place before November’s election).  The timing of the release of the NPRM seems to rule out any new rules becoming effective before this year’s election (see below), and the NPRM itself asks questions as to whether the FCC’s mandate to regulate in the public interest and other specific statutory delegations of power are sufficient to cover regulation in this area.  So, these fundamental questions are asked, along with many basic questions of how any obligation that would be adopted by the Commission would work. 

The FCC is proposing that broadcasters and the other media it regulates be required to transmit an on-air notice (either immediately before, after, or during a political ad) to identify an ad that was created in whole or in part using AI.  In addition, broadcasters and other media subject to the rule would need to upload a notice to their online public files identifying any political ads that were created using AI.  The NPRM sets forth many questions for public comment – and also raises many practical and policy issues that will need to be considered by the FCC and the industry in evaluating these proposals.Continue Reading The FCC Proposes Requirements for Disclosures About the Use of Artificial Intelligence in Political Ads – Looking at Some of the Many Issues for Broadcasters

Although many, including Congress, may be taking the last of their summer vacations, there are still many dates to which broadcasters should be paying attention this August.  One that most commercial broadcasters should be anticipating is the FCC’s order that will set the amount of their Annual Regulatory Fees, which will be paid sometime in September before the October 1 start of the federal government’s new fiscal year.  As we wrote here, the FCC has proposed to decrease fees for broadcasters from the amounts paid in prior years.  The FCC has also proposed to end its temporary regulatory fee relief measures implemented during the COVID-19 pandemic as well as ending its presumption that silent stations are entitled to fee waivers without providing evidence of financial hardship – which, as we wrote here, broadcasters largely oppose ending because the policies enable struggling broadcasters to avoid costly paperwork and regulatory consequences, helping to avoid loss of service to local communities.  Sometime in August (or possibly in the first days of September), the FCC will make a final determination on the amount of the fees, and then announce the deadlines for payment of the fees. 

August 1 is the deadline for radio and TV station employment units in California, Illinois, North Carolina, South Carolina, and Wisconsin with five or more full-time employees to upload their Annual EEO Public File Report to their stations’ Online Public Inspection Files (OPIFs).  A station employment unit is a station or cluster of commonly controlled stations serving the same general geographic area having at least one common employee.  For employment units with five or more full-time employees, the annual report covers hiring and employment outreach activities for the prior year.  A link to the uploaded report must also be included on the home page of each station’s website, if the station has a website.  Be timely getting these reports into your public file, as even a single late report can lead to FCC fines (see our article here about a recent $26,000 fine for a single late EEO report).Continue Reading August 2024 Regulatory Dates for Broadcasters– Annual Regulatory Fee Details, EEO Annual Filings, Effective Date of Reinstated FM Non-Duplication Rule, Opening of Window for Class A/ LPTV/ TV Translator Channel Change Applications, and More