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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 big news in the music world this week is that Apple finally is able to sell digital downloads of the Beatles catalog in its iTunes music store.  For years, the copyright holders who control the Beatles master recordings have withheld permission to use the Beatles recordings on iTunes and other digital download and on-demand streaming services, seemingly afraid of diluting the value of their copyrights.  There are other bands who have had a similar reluctance to make their recordings available on-line.  While this impasse has now been broken by the biggest name among these digital holdouts, at least as to iTunes, some have asked why it is that the Beatles were never missing from Internet radio, while they were absent from these other services.  The answer is the statutory license under which Internet Radio operates.

While there have been many disputes over the royalties that have been imposed under the statutory license created by Congress which allow non-interactive digital music companies to use sound recordings to provide music to their customers, there is no question that the license has fulfilled one of its primary functions – making sure that there is access by Internet radio operators to the entire catalog of sound recordings available in the United States.  One of the principal reasons that the statutory license was created was the inherent difficulty, if not the impossibility, for a radio-like digital service operating under the sound recoding performance royalty first adopted in 1995 to secure permission from all of the copyright holders of all of the music that such services might want to use.  Thus, Congress adopted the statutory license which requires the copyright holder to make available its sound recordings to non-interactive services, in exchange for the service agreeing to pay a statutory royalty – the royalty now set by the Copyright Royalty Board.  But only non-interactive services, where listeners cannot select the songs that they hear, are covered by that statutory royalty (see our summary here of one of the cases dealing with the question of what is and what is not a non-interactive service).Continue Reading Apple iTunes Gets the Beatles – Why Internet Radio Had Them All Along

The FCC today announced that it will be holding a series of three hearings to assess the environmental impact of its Antenna Structure Registration (ASR) program.  The FCC is required by the National Environmental Policy Act ("NEPA") to determine if its programs have any adverse environmental impact.  In a Court decision in 2008, the US Court of Appeals determined that the FCC had not adequately assessed its obligations under NEPA with respect to the impact of communications towers on birds after there were claims that towers killed millions of birds each year.  The hearings are to review the Commission’s ASR process to gather evidence to determine whether a more extensive analysis of the potential environmental impact of tower construction is necessary when towers are constructed or modified.  In addition to the hearing, the FCC is soliciting written public comment on these proceedings. 

After the Court decision, American Bird Conservancy v. FCC, parties representing those involved in tower construction and conservation groups engaged in a series of discussions to attempt to resolve issues raised in the case.  The parties included the NAB, CTIA, PCIA, and the National Association of Tower Erectors.  Conservation groups included the American Bird Conservancy, Defenders of Wildlife, and The National Audubon Society.  These parties reached an agreement that was submitted to the FCC, setting out three levels of environmental review of tower construction, based on the height of the tower proposed.  As summarized below, the height of a proposed tower would determine if the proposal for construction had to be placed on a Public Notice by the FCC, soliciting public comment about the proposed construction, and whether the tower would need to have an Environmental Assessment ("EA") completed before it was constructed (an EA is a more extensive analysis of the environmental impact of planned construction than the Environmental Impact Statements that most broadcasters include with their current FCC applications).  The parties suggested the following:

  • For New Towers above 450 feet above ground, an Environmental Assessment would need to be conducted, and any proposal would be put on a public notice to solicit public comment
  • For New Towers between 351 and 450 feet, the proposal would be put on a public notice by the FCC and, after comments are filed, the FCC would decide on a case-by-case basis if an Environmental Assessment is necessary
  • For New Towers 350 or less, the parties could not agree as to whether Public Notice would be required.  Resolution of whether Public Notice was required was left to the FCC. 

This proposal has not been adopted by the FCC, so it will no doubt be addressed as part of these hearings. Continue Reading FCC Plans Hearings on Environmental Impact of Tower Registration Program – Follow Up to Court Case on Impact of Communications Towers on Birds

In yet another example of the importance that the FCC places on emergency communications and safety issues, an FCC Enforcement Bureau District Field Office issued a Notice of Apparent Liability, proposing to fine a radio station $25,000 for violations including an EAS system that was not operational, as well as a tower that needed repainting and with lights that were not functioning properly.  Together with various other issues – including missing quarterly issues programs lists – the FCC found that a $25,000 fine was appropriate.  This is another in a series of recent notices of apparent liability from FCC District Offices, demonstrating the high cost of noncompliance with technical and operational issues at broadcast stations.

On the tower issues, the FCC found that the tower lights, which were required to be flashing, were in either not operational at all or not flashing, and that the licensee admitted that no visual inspection of the lights had occurred in at least a week.  Citing Section 17.47 of the FCC rules, which require a visual inspection of tower lights every 24 hours unless there is an automatic inspection system (which was not present at this tower), the FCC found that there was a violation here.  In addition, the inspection revealed that the tower paint was faded and, in some places, had peeled to reveal bare steel, as the tower had not been painted since 1996.  Towers must be cleaned and painted "as often as necessary to maintain good visibility" under Section 17.50 of the FCC Rules.  The failure of the tower owner to monitor the tower lights resulted in a $2000 fine, and a $10,000 fine was imposed for the failure to repaint the tower.Continue Reading $25,000 FCC Fine for Safety Related Issues – No EAS, Tower With Painting and Lighting Issues

So does the mid-term election have any impact on broadcast regulation?  While no one knows for sure what the political winds of Washington will have in store, in reading the analysis of the Tuesday election results, I was struck by the conclusions contained in one Op-Ed article in the Washington Post on the message of last week’s Mid-Term elections, and the contrast of that perceived message to an article that had run in the same pages just a week before.  The earlier article dealt specifically with the future of media in the 21st century, and the suggested that, rather than cutting back on taxpayer funding of public broadcasting, as some have suggested, the government should take more steps to provide funding.  this article suggested that there be a tax on commercial broadcasters, and the monies received from the tax should be used to fund public media.  A similar proposal had been included in a Federal Trade Commission staff discussion draft issued earlier this year in the FTC’s exploration of the effect of new technologies on newsgathering.  Both of these proposals were made in the name of providing funding to public broadcasting sources to produce more news in light of the struggles of commercial news outlets in today’s media world.  The FCC’s own Future of Media task force is expected to issue a report before the end of the year on how the government should take steps to ensure that the media in the 21st century provides citizens with the information that they need to make informed decisions on civic issues.   Proposals made in both the FTC and FCC proceedings involve everything from changes to copyright law to provide more Federal protection to news reporting, to suggestions similar to those made in the FCC’s localism proceeding for specific mandates as to how much and what kind of news and information programming licensees must provide.

The proposals for the government to get involved in making the media better stuck me as being in stark contrast to the findings of a Democratic pollster reported in Sunday’s Washington Post, finding that the voters in last week’s elections were most interested in a government that was limited and efficient.  Voters were not totally adverse to government involvement – but favored that involvement only in connection with issues where it was perceived that the action could really make a difference, and only where the involvement was clear, efficient and effective.  While this opinion piece had nothing specific to say about media regulation – if in fact the article accurately reflects the message of the election, does it make sense that the government should be getting involved in the decisions about the future of the media?  Will any regulation that comes out of these proceedings be regulation that will be efficient and effective, with a minimum of red tape?  From my discussions with broadcasters, many are afraid that it will not. Continue Reading The Mid-Term Election and Broadcasting – What’s the Effect on the Future of Media?

The Copyright Office has just released a Notice of Inquiry asking whether Federal protection should be extended to sound recordings recorded prior to 1972.  A sound recording is a song as recorded by a particular artist.  Sound recordings were first protected under Federal law in 1972.  Prior to that, unauthorized recordings or reproductions of an artist’s recoding were policed under various state criminal and civil law.  While the Copyright Act has provided for the protection of pre-1972 sound recordings first registered in other countries, US sound recordings recorded prior to 1972, have not received Federal copyright protections.  Many have assumed that this also exempts pre-1972 sound recordings from royalty requirements under Section 114 of the Copyright Act – i.e. the royalties paid by Internet and satellite radio and other digital music providers under the statutory license.  How would a change in the law affect Internet radio operators?

That is one of the questions that is asked by the Notice of Inquiry.  Many Internet radio operators have not excluded pre-1972 recordings from royalty payments based on any exception that may exist for pre-1972 sound recordings, as the possibility has not been widely publicized.  Moreover, some copyright holders have suggested that the digitization of older songs may somehow bring pre-1972 recordings under the coverage of the Copyright Act, or that there may be state remedies that are somehow the equivalent of the Federal public performance right.  Others may just not want to go to the trouble of determining which copyrighted songs are subject to the Uruguay Round Agreements Act (making the non-US pre-1972 sound recordings subject to US Federal law).  The Copyright Office’s Notice of Inquiry asks what impact the inclusion of pre-1972 sound recordings would have on many undertakings – including the archiving and restoration of sound recordings, and on the current benefits that copyright holders and others enjoy under state laws.  In addition, it asks about the benefits and issues that would arise under Section 114 of the Copyright Act – the section that sets out the statutory license under which most Internet radio companies operate.Continue Reading Copyright Office Asks if Federal Protection Should be Extended to Pre-1972 Sound Recordings – What’s the Impact on Internet Radio?

The nuts and bolts of legal issues for broadcasters were highlighted in two sessions in which I participated at last week’s joint convention of the Oregon and Washington State Broadcasters Associations, held in Stephenson, Washington, on the Columbia River that divides the two states.  Initially, I conducted a seminar for broadcasters providing a refresher on their…

Last week, we wrote that the FCC is going ahead with a rulemaking looking at how broadband needs may require some reallocation of the TV spectrum to wireless uses.  The initiation of a rulemaking on that issue is planned for the next FCC meeting in late November.  With that proceeding about to begin, the FCC today froze all applications for new Low Power Television (LPTV) stations and for TV Translators, and for major changes in existing LPTV and TV translator stations.  Over a year ago, after not having accepted applications for a decade during the DTV transition, the FCC allowed the filing of applications for new LPTV stations and TV translators in rural areas.  Finding that much of the demand for new translators has been met in these rural areas in the intervening period, the FCC has now determined that, until the spectrum needs for television and broadband are more certain, it would not accept any more applications for these stations. It appears that the long-planned window for LPTV stations in major markets will not happen in the foreseeable future.

The freeze does allow for the filing of minor changes to LPTV and TV translator stations, for applications to flash cut to digital, and for displacement applications if a full-power station precludes the continued operation of such a station on its current channel.  LPTV and translator stations still operating on channels 52 through 69, which have already been reallotted for wireless uses, can also file displacement applications during the freeze.Continue Reading FCC Freezes Applications for New LPTV and TV Translator Stations While Contemplating How the Broadband Plan Will Affect the TV Spectrum