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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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In recent years, FM translators have become more and more important to broadcasters, as they are being used to rebroadcast AM stations and HD-2 channels, giving the programming broadcast on these over-the-air signals new outlets in many markets.  However, there have been some bumps in the road to the introduction of these new outlets.  These bumps have arisen both from attempts to move these translators significant distances without observing all the obligations of FCC rules and policies, and in connection with translator stations that have started operations only to find that there were interference complaints from a broadcaster on an adjacent channel in some nearby market. So, while translator stations have provided many opportunities to broadcasters, those looking at translators to rebroadcast one of their signals should be aware of these potential pitfalls that have arisen in a few cases.

Perhaps the worst case involved an translator licensee in Florida, who was attempting to move translators from the Florida Keys into the Miami area.  Under current rules, an FM translator licensee can only move a translator from one location to another if the current coverage of the translator overlaps with the proposed coverage area of that station, unless the applicant waits for an infrequent translator window (the last was held in 2003) where the application can file a "major change" and would be subject to competing applications, .  Because of this requirement, it sometimes it takes multiple "hops" to move a translator from one location to another where someone might want to use it to rebroadcast an AM station or an HD-2 signal.  At each hop, the translator licensee must build the station, get it licensed, and then file to move to the next location until it is ultimately located at its desired location.  Each hop can take months to process by the FCC, to build and operate.  The recent case shows the problems that can arise in connection with these hops if an applicant attempts to cut corners.Continue Reading The Bumpy Road of Using FM Translators to Rebroadcast AM Stations or HD-2 Channels

The date for a nationwide test of the Emergency Alert System ("EAS") was announced by the FCC last week, at the same meeting at which the Future of Media report was delivered.  The first ever national test of EAS will occur at 2 PM EST on November 9, 2011. As we wrote in February, the FCC amended its rules to provide for a nationwide test, in addition to the weekly and monthly tests that are already part of the FCC rules.  The nationwide test is to assess the reliability and effectiveness of EAS in being able to convey to the public a Presidential alert.  This test comes at the same time as the FCC has issued a Notice of Proposed Rulemaking to consider amendments to its rules to provide for the conversion to a new method of disseminating EAS alerts – using the Common Alert Protocol (CAP) which is IP based, rather than reliant on the daisy chain over-the-air system that has been used for so long.  One question is whether the deadline for CAP implementation, presently set for September 30, should be extended.  Thoughts about the test and the FCC proposals for CAP implementation are set out below. 

The Nationwide test, even though it will not use the CAP system (which in and of itself may show that the Commission has already recognized that the September 30 CAP implementation deadline will be extended), is still very important for broadcasters.  The FCC, in coordination with the Federal Emergency Management Agency ("FEMA"), will use the results of the test to determine what problems exist in the EAS system and what improvements are necessary to ensure that the EAS functions as a robust public warning system.  As broadcasters in recent years have highlighted their participation in EAS, and the important role that it plays in alerting communities to emergency situations, in connection with many initiatives (including the push to put FM chips in cell phones), broadcasters want to make sure that their performance during the upcoming test will be up to the level that the FCC expects. As all EAS participants will have to report to the FCC on the results of the test, all participants should use the period between now and November to assure that their systems are working and ready to fulfill their obligations under the rules. No broadcaster, cable system or other participant wants to be in the position of having to report to the FCC that their equipment was malfunctioning on the date of the test. And, certainly, no participant wants to forget to file the necessary report when due.Continue Reading Updates on EAS – A Nationwide Test, and Lots of Questions About CAP Implementation Including Whether More Time is Needed

The FCC today heard from its Future of Media task force, when its head, Steven Waldman presented a summary of its contents at its monthly meeting.  At the same time, the task force issued its 475 page report – which spends most of its time talking about the history of media and the current media landscape, and only a handful of pages presenting specific recommendations for FCC action.  The task force initially had a very broad mandate, to examine the media and how it was serving local informational needs of citizens, and to recommend actions not only for the FCC, but also for other agencies who might have jurisdiction over various media entities that the FCC does not regulate.  Those suggestions, too, were few in the report as finally issued.  What were the big headlines for broadcasters?  The report suggests that the last remnants of the Fairness Doctrine be repealed, and that the FCC’s localism proceeding be terminated – though some form of enhanced disclosure form be adopted for broadcasters to report about their treatment of local issues of public importance, and that this information, and the rest of a broadcaster’s public file, be kept online so that it would be more easily accessible to the public and to researchers.  Online disclosures were also suggested for sponsorship information, particularly with respect to paid content included in news and informational programming.  And proposals for expansion of LPFMs and for allowing noncommercial stations to raise funds for other nonprofit entities were also included in the report. 

While we have not yet closely read the entire 475 page report, which was tiled The Information Needs of Communities: The Changing Media Landscape in a Broadband Age, we can provide some information about some of the FCC’s recommendations, and some observations about the recommendations, the process, and the reactions that it received.  One of the most important things to remember is that this was simply a study.   As Commissioner McDowell observed at the FCC meeting, it is not an FCC action, and it is not even a formal proposal for FCC action.  Instead, the report is simply a set of recommendations that this particular group of FCC employees and consultants came up with.  Before any real regulatory requirements can come out of this, in most cases, the FCC must first adopt a Notice of Proposed Rulemaking, or a series of such notices, and ask for public comment on these proposals.  That may take some time, if there is action on these suggestions at all.   There are some proposals, however, such as the suggestion that certain LPFM rules be adopted in the FCC’s review of the Local Community Radio Act so as to find availability for LPFM stations in urban areas, that could be handled as part of some proceedings that are already underway.Continue Reading Recommendations from the Future of Media Report: End Localism Proceeding, Require More Online Public File Disclosures of Programming Information, Abolish Fairness Doctrine

The question has recently arisen as to when underwriting announcements can be aired on noncommercial radio and TV stations.  The New York Times recently quoted me on the subject in an article discussing the plans of PBS to experiment with putting underwriting announcements in programming, rather than merely in the breaks between the end of one program and the beginning of the next.  The FCC rules for both radio and TV state, in italics, that the scheduling of underwriting announcements "may not interrupt regular programming."  What does that mean?

In 1982, in adopting the rules as to the timing of sponsorship announcements and the acknowledgment of donations, the FCC relied on what was then a recently-enacted statute addressing the sponsorship of public broadcasting programming.  The House of Representatives report adopting that legislation contained language interpreting the meaning of the prohibition against these announcements interrupting regular programming.  The FCC relied on that language in adopting the rules currently on the book.  There, Congress said that announcements could be run "at the beginning and end of programs,…between identifiable segments of a longer program" or, in the absence of identifiable segments, during "station breaks" where the flow of programming was "not unduly disrupted."  For radio, this seems like a much easier test to meet, as there are always breaks in programs, e.g. between stories on a news program like Morning Edition, between guests on a program like Fresh Air, or between music sets on a noncommercial music-oriented station.  For TV, the issue is somewhat more complicated, thus the questions that the Times wrote about in connection with the PBS tests.Continue Reading When Can Underwriting Announcements Be Run on Noncommercial Radio and TV Stations?

The FCC has continued this week on its recent tear of fining broadcast stations and other regulated entities for violations of FCC rules – in the last week proposing fines or reaching consent decrees relating to issues including incomplete public files, EAS violations, unauthorized transfers of FM translators, and tower lighting issues, among others.  But a fine issued to a station a few weeks ago merits further review as it provides some more clarity as to what the FCC requires from a broadcast station’s "main studio."  In this recent case, the FCC proposed a $21,000 fine to this broadcaster who allegedly did not have an adequate main studio or public file, and for operating its AM station after sunset with its daytime facilities.

What do the FCC main studio rules require?  Currently, all full-power broadcasters (including Class A TV stations, with the limited exception of satellite television stations and some noncommercial radio satellite stations who may operate with main studio waivers) must maintain a studio either within its city of license, or at another site either within 25 miles of its city of license or within the city-grade contour of any station licensed to the same city of license as the station.  As set out in Section 73.1125 of the FCC rules, no matter where the studio is located, local residents must be able to reach the station by a toll-free telephone call.  The rule, however, does not specifically state what must be at the main studio – those rules are either found elsewhere in the FCC rules or have been developed by caselaw.Continue Reading What Do The FCC Main Studio Rules Require? – Recent $21,000 Fine Offers Some Clarification

Is the release of the long-awaited Future of Media Report at hand?  Since January 2010, the FCC has been studying the Future of Media, a study conducted by a Special Advisor to the FCC Chairman who was appointed in November 2009.  The study was to provide important research and analysis of how broadcasting and other…

Dates for comments and replies on the FCC’s Notice of Proposed Rulemaking to implement the CALM Act, regulating the volume levels of commercials, have now been set.  We provided a detailed summary of that NPRM here.  As set out in that summary, the NPRM asks many questions of broadcasters, cable companies, and other Multichannel Video Programming…

In another example of how seriously the FCC is considering the reallocation of portions of the TV spectrum for wireless broadband use, the Commission today issued a Public Notice freezing any new petitions for changes in the channels of television stations.  Since the DTV transition, almost 100 stations have changed channels – mostly moving from VHF to UHF channels, as television operators have in determined that VHF channels are subject to more interference and viewer complaints about over-the-air reception.  Many predict that these problems with the remaining VHF stations will be worse when the new mobile DTV devices roll out later this year.  Yet, as the FCC is looking at implementing its plan to recapture portions of the television spectrum for use by wireless broadband, this freeze has now been adopted.  No new Petitions for channel changes will be accepted, though requests already on file will be processed.

The FCC itself has acknowledged the difficulties with the reception of digital DTV signals broadcast on VHF channels, and has asked for public comment on how these difficulties can be overcome, though many engineers seem to feel that, short of repealing the laws of physics, the quest may be an impossible one.  In that same proceeding, the FCC has asked about how it should repack the television spectrum, so that the Commission could provide a contiguous swath of spectrum for broadband users.  These actions are being taken by the FCC even though, so far, there is no legislation authorizing the incentive auctions that would be used to pay some broadcasters to abandon their spectrum.  Without such legislation, the FCC cannot move forward with its plans – thus this freeze may be in place for some time.Continue Reading FCC Freezes Channel Changes By Digital TV Stations While Evaluating Reallocation of Television Spectrum for Broadband Use

In December, the Commercial Advertisement Loudness Mitigation (“CALM”) Act was adopted by Congress and signed by the President, addressing consumer complaints about television commercials that seem louder than the program content that they accompanied. As we wrote in our summary of the Act when it was adopted, Congress has long received many complaints about loud commercials and decided to act, even though many industry groups were concerned about the ability to design an effective system to deal with the contrasts that sometimes exist between the quiet dialogue that might precede a commercial break and the commercial advertisement itself. Nevertheless, Congress adopted the CALM Act, and instructed the FCC to adopt implementing rules within a year. This past week, the FCC released its Notice of Proposed Rulemaking, looking to adopt rules to implement the statute for over-the-air television broadcast stations, cable systems, satellite, and other multichannel video programming providers. In its NPRM, the FCC asks many questions trying to clarify the details of CALM Act implementation.

The NPRM raises a broad array of implementation issues, ranging from deciding exactly which broadcast stations and which MVPDs are subject to its terms, to the establishment of safe harbors for technical compliance. As discussed in more detail below, the Commission also asks whether stations and systems can shift the burden for compliance with these rules to program suppliers, such as broadcast and cable networks, and whether contractual means of guaranteeing compliance (such as indemnification provisions in contracts between networks and affiliates) are sufficient to ensure compliance by these program providers. Questions about how MVPDs deal with retransmission of broadcast programs, and who is responsible for noncompliant broadcast programming, are also asked. Finally, the FCC suggests processes for consumer complaints and the grant of waivers to stations and systems that cannot quickly comply with the new rules.Continue Reading FCC Seeks Comments on Implementation of CALM Act Regulating Loud Commercials on Broadcast and Cable Television

In March, we cautioned broadcasters against the airing of ads for medical marijuana.  Our concerns stemmed not only from a complaint pending at the FCC, but also because, despite the widespread belief that the Federal government no longer cared about medical marijuana use and sale, the Department of Justice had only said that prosecution was no longer a priority, not that it was no longer illegal.  In recent months, our concerns seem more and more justified.  We had worried about some local Federal prosecutor deciding that he or she had time to prosecute offenses, even though DOJ headquarters did not think it to be a priority.  But, based on press reports and DOJ’s own press releases, it looks like there has been at least some rethinking of the policies in Washington, DC as well.  The DOJ appears to be backtracking on medical marijuana, now saying only that it won’t prosecute individuals who use medical marijuana, but that dispensaries, even if set up under the color of state laws, are still illegal under Federal law and subject to Federal prosecution.  Thus, broadcasters, as Federal licensees, need to exercise extreme care in advertising such dispensaries.

In the last few days, NPR has broadcast stories about the Department of Justice writing letters to authorities in Rhode Island and Arizona, in both cases saying that the Federal government still considers the sale of marijuana, even medical marijuana, to be a Federal felony subject to prosecution.  Both states are now reconsidering their laws that would otherwise allow for the operation of medical marijuana dispensaries.  The DOJ, on its website, cites a US Attorney in Washington State who has written to the landlords of medical marijuana dispensaries, warning them of the penalties that they may face if they allow these dispensaries to continue to operate, going so far as to warn them that they may face the forfeiture of their property to the government as it is being used to distribute prohibited drugs.  As this letter states, “We intend to use the full extent of our legal remedies to enforce the law.”  This language should serve as a warning to broadcasters of the Federal government’s attitude toward marijuana dispensaries.Continue Reading More Concerns About The Broadcast of Medical Marijuana Ads