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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’s indecency rules have, in recent months, twice been declared unconstitutional by the US Court of Appeals for the Second Circuit – essentially finding that the FCC’s policies imposed unconstitutional restrictions on speech as they did not give broadcasters any way of determining what was permitted and what was prohibited.  After seeking several extensions of time to determine whether to seek Supreme Court review of the Court of Appeals decisions, the FCC today released its Petition for Certiorari to the high court.  The Supreme Court need not hear this request for review though, given its previous decision on these rules (which we wrote about here), and the high publicity and public interest in this subject, the case could quite well end up on the schedule.

This appeal deals with two cases.  First, it seeks review of the decision of the Court of Appeals throwing out the fleeting expletive admonitions given to Fox network stations for the broadcast of two Billboard Music Award shows that contained expletives, one by Cher and one by Nicole Richie.  Following the precedent set by the Golden Globes case (where Bono used the "F word"), the Commission held that the use of one of these single words, even if not used in a sexual context, were inherently indecent.  The second case covered by the Supreme Court petition was for the depiction of bare female buttocks in the program NYPD Blue – resulting in $27,500 fines on a number of ABC stations.  This decision was also overturned by the Court of Appeals.Continue Reading FCC Decides to Appeal Indency Cases to Supreme Court

The sale of a noncommercial radio station is often controversial, especially when it’s clear that the format of the station will change after the transfer.  In a decision released last week denying a Petition to Deny challenging the application for the sale of KTRU, the noncommercial radio station owned by Rice University, the FCC again made clear that they are not in the business of regulating the formats of broadcast stations.  For 30 years, the FCC has held firm to its position that the marketplace is best for deciding on what format a station should broadcast.  Thus, when Rice University students argued that the sale of their station and the loss of the diverse format that the station had programmed would harm localism and diversity, the FCC rejected the argument.  Seemingly, that decision makes sense, as we don’t want a government agency becoming a czar of the programming offered by broadcast stations.  When we see decisions from the regulatory bodies in the United Kingdom or Canada sanctioning stations that don’t stick to their legally proscribed formats, we wonder how such a system could possibly function in the US.  Can you imagine the FCC fining a station because it played too many hits on an alternative station?  Of too much rock on an Adult Contemporary station?  Once the FCC or any government agency gets into regulating formats, these sorts of decisions will follow.  Luckily, based on this decision and the prior 30 years of precedent, we won’t have to worry about such an eventuality.

The Commission also rejected other objections to the sale of KTRU. The Petitioners had challenged the noncommercial purpose and educational plan of the buyer – an argument summarily rejected as the buyer was already the licensee of another noncommercial station in the market.  The ownership of that station led to another argument – that the sale would violate ownership limits by concentrating too many noncommercial stations in the hands of one operator.  But the FCC made clear that there are no ownership limitations on how many noncommercial stations one company can own. Continue Reading FCC Makes Clear It Doesn’t Regulate Formats – Rejects Petition Against Sale of Noncommercial Station

SoundExchange claims on its website that webcaster SWCast.net was shut down when SoundExchange complained to its ISP that the service was not paying royalties for the use of the music played by the site.  SWCast was an aggregator of webcast channels created by other individuals, who paid the company – allegedly for the streaming and for the royalties that were due for that streaming.  According to the SoundExchange press release, the webcaster was shut down when SoundExchange "sent a letter requesting that the hosting ISP disable access to the SWCast site."  SoundExchange’s statement says that, despite repeated attempts to engage the webcaster, SWCast neither paid royalties nor filed reports of use for the songs streamed by the service, leading to SoundExchange’s action.  As far as we know, this is the first time that SoundExchange has taken such an action. 

How did this work?  While we have not seen the letter that SoundExchange sent to the ISP, we can assume that it alleged that SWCast was infringing on copyrighted materials by not paying the required royalties.  ISPs have a safe harbor under the Digital Millennium Copyright Act, protecting them from liability for the infringement of users of their services, if the ISP does not encourage the infringement, registers an agent with the Copyright Office, and agrees to take down infringing content when properly notified by a copyright holder (see our post here).  We can only assume that SoundExchange or the copyright holders themselves notified the ISP that the material streamed by this webcaster was infringing as no royalties were being paid and, to protect itself, the ISP blocked access to the site.Continue Reading SoundExchange Claims Credit for Shutting Down Webcaster Who Was Not Paying Royalties

Last week, in a frenzy of cleaning up issues left from old license renewal applications, the FCC upheld several $9000 fines for public file violations – most in connection with the failure of licensees to have a complete set of Quarterly Programs Issues lists ("QPIs") in those files.  The broadcasters who were fined came up with a variety of arguments as to why those fines should be reduced or eliminated – which were uniformly rejected by the Commission.  What we find interesting is that, while these large fines were levied against a number of broadcasters, the FCC is at the same time asking whether retention of the public file can be justified under the provisions of the Paperwork Reduction Act.  So which is it – an important tool to keep the public informed about the ways that stations serve their public, or an unreasonable burden on those who are regulated by the FCC?

While this request for comments on the paperwork burden imposed by the public file may be nothing more than a routine review of Commission rules to justify their continuing existence under the provisions of the Paperwork Reduction Act, it is interesting that this rule – long the source of wrath from broadcasters who complain that the file is never visited except by the occasional college broadcasting student who has to do so as a class project, or by the competitor in the market looking for something to complain about (and even those visits are extremely rare for most stations) – is now up for review and comment.  Why was this rule selected for review?  Will there be other rules about which the FCC asks for comment?  Is there any justification for the burden imposed on broadcasters (which the FCC estimates at a cumulative 1,831,706 hours of work annually, but to which it curiously assigns no associated cost burden with the required tasks) when it is routine for the file to be never visited?  You have your chance to voice your comments – with the filing deadline for such comments being June 17, 2011.Continue Reading Fines of $9000 for Public File Violations Upheld, But FCC Asks if the Paperwork Burden of the Public File is Justified

This past week’s political news seemed to be all about Donald Trump and his possible run for the Presidency – and his plans to announce his intent to run on the season finale of The Apprentice.  When, a week ago, we wrote about the President declaring his candidacy, there was little interest in our post, and there seemed to be little news attention in general to that announcement.  But when Donald Trump started making noise about his possible Presidential run, and his plans to announce his intent on the season finale of The Apprentice in May, our phones started ringing, asking how can he do that?  My partner David Silverman was quoted in a Huffington Post article, while my analysis was misunderstood in a Hollywood Reporter legal blog (see why I was misunderstood below).  But the question remains – can Trump continue on The Apprentice while signaling his interest in running for President?

In fact, there is no FCC rule that prohibits a broadcaster from giving airtime to a political candidate on any kind of program, as long as they are willing to provide equal time to opposing candidates.  There may be other legal issues involved in giving time to a candidate as it may in effect be a deemed a campaign contribution to the candidate (an issue apparently for PACs as well, as explained by that legal scholar Steven Colbert, here), but the FCC’s equal time rules don’t prohibit the appearance of a candidate on an entertainment program, they only demand that the stations that broadcast the program give equal amounts of time to opposing candidates who ask for it – if the opponents ask for it within 7 days of the candidate’s appearance.  And that is often the first issue – will the opposing candidate ask for it?  None of the Republicans asked when cable networks continued to run episodes of Law and Order featuring Fred Thompson, even after Thompson declared his candidacy for the Republican nomination.  Nor did other candidates request time after there was a parade of candidate appearances on Saturday Night Live during the last election (see our post on this pattern of candidates passing on their equal time rights).  But would a Trump declaration of a candidacy on The Apprentice even face that minimal risk?  Probably not.Continue Reading Donald Trump May Declare Presidential Candidacy on The Apprentice – FCC Legal Issues?

The FCC has granted a one week extension for reply comments in the proceeding looking to take many of the preliminary steps toward incentive auctions by which the FCC would reclaim parts of television spectrum for use by wireless broadband companies.  Comments are now due on April 25.  We wrote about the many issues in this…

As broadcasters pursue their digital future, new legal issues arise to greet their entry into the on-line world and to add to the challenges posed by the new media. Over the last few years, we’ve have written extensively about music rights and their impact on webcasters, broadcasters, and other digital media companies. We’ve talked about patent law issues that have faced digital media companies. And we’ve discussed other content issues, like FTC online sponsorship disclosure requirements, that have arisen from time to time. But the one issue that now seems poised to dominate the legal conversation in coming months (or years) is that of privacy. This past week, we saw Pandora announce that it has received a subpoena from a Federal grand jury in connection with an investigation into the use of information collected from various mobile apps, and whether users of these apps were aware of the use of their private information. Other companies apparently received this same request.  This investigation is but the tip of the iceberg on privacy issues facing media companies operating in the digital world – challenges coming from the courts and from legislative and administrative initiatives in Washington.

Everyone knows that one of the great benefits of the Internet and the many services available on-line and through mobile apps, is the ability to personalize so as to provide a unique listening or viewing experience for every user. Instead of being limited to the linear programming that a broadcast service provides to all users at the same time, users can tailor their digital media experience to give them what they want and, as wireless broadband penetration increases through smart phones and other devices, almost whenever they want it. In some cases, the costs of providing an individualized service, because of bandwidth needs, royalties and license fees and for other reasons, the cost per each additional listener is often higher than that incurred by the traditional media. And online users thus far have been unwilling to tolerate the commercial advertising load that a traditional media experience might provide. To meet these higher marginal costs, and the lower spot loads, many digital media companies have looked to personalization of advertising to allow for higher advertising rates on the theory that advertising will be more efficient if you can guarantee that it will be targeted to reach its intended audience – geographical, demographic or based on expressed interests. As digital media companies have sought to refine the targeting available through their advertising, privacy issues have arisen.Continue Reading Pandora Gets Subpoena About Mobile App – Privacy, the Next Big Issue for Digital Media Companies

[Update – 4/9/2011.  Based on the announcement late last night, the Federal government will not be closing on Monday.  But the agreement that was reached yesterday still needs to be documented and voted on by the House and Senate.  But, barring an unforeseen breakdown in the deal, these shutdown instructions can be shelved…

With the President declaring his candidacy for reelection in 2012, broadcasters thoughts may be turning to that election and the expected flood of money that may come into the political process.  But visions of next year’s elections should not be distracting broadcasters from their current political broadcasting obligations.  I’ve received many calls this year about whether broadcasters need to provide lowest unit rates to candidates in the races that are going on in 2011 – including many municipal elections and some special elections to fill various political posts.  As we have written before, if a station decides to sell time to a political candidate in a local race, that sale must be at the lowest unit charge for the class of time sold during the 45 days before a primary and the 60 days before the general election.  While state and local candidates need not be afforded the "reasonable access" that applies to Federal candidates, that merely means that stations do not need to sell these candidates any advertising time at all, or that stations may limit the purchase by state and local candidates to only the dayparts during which the station has more inventory.  But once the time is sold to one candidate in a race, most other political rules – including lowest unit charges, equal opportunities and the no censorship rule, all apply to the local candidate’s spots.

With the President now filing to become a candidate, and many Republican candidates likely to be filing soon, what obligations are imposed on stations?  For the most part, there is no effect on the rates to be charged to candidates or their campaign committees – those rates only become effective 45 days before the primaries – so the lowest unit charges for Presidential campaigns likely will not kick in until very late this year, or early next, for the early Presidential primaries and caucuses in states like Iowa and New Hampshire. But, as candidates become legally qualified, there will be reasonable access and equal opportunities obligations that will arise.  Candidates for President can request reasonable access to all classes and dayparts – even outside the 45 and 60 day windows before a primary and general election, respectively.  In the case of a Presidential campaign, a candidate becomes legally qualified in all states once he has become legally qualified in 10 states. There may be few Democrats who are to likely to challenge the President, so equal opportunities will most likely be a major issue only on the Republican side.  And, as we’ve written before, the FCC has determined that most interview programs where the content is under station control – even those that have little news value on the normal day – are deemed "news interview programs" exempt from equal time rules.  Thus, equal time is normally only an issue in making sure that all candidates have equal opportunities to buy spot time, and in those rare circumstances where a candidate appears on a purely entertainment program (e.g. as a character on a scripted TV show) or where the candidate is themselves a host of a broadcast program – and usually stations ensure that the candidates are long gone from hosting programs once they formally declare that they are running for a political officeContinue Reading President Obama Declares Candidacy – What Political Broadcasting Rules Should Broadcasters Be Considering Now?

The FCC has released the comment dates for its draft rules setting out when Environmental Assessments are needed to formally evaluate the environmental impact of the construction and major alteration of communications towers.  We wrote about these draft rules here, and described their history –  growing out of concerns by conservation groups about the effects of communications…