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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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Earlier this week, I posted a Top Ten list of legal issues that should keep a broadcast station operator up at night.  In two orders released today, the FCC found stations where these issues apparently had not been keeping their operators awake, as the FCC issued fines for numerous violations.  At one station, the FCC found that the EAS monitor was not working, the fence around the AM tower site was unlocked, and the station had no public inspection file, resulting in a $5500 fine (see the FCC’s Enforcement Bureau order here).  At another station, the FCC inspectors were told that the station had no public file, and they also found the AM tower site fence unlocked, resulting in a $3500 fine (see the order here).  These cases are one more example that, while broadcasters have plenty of big-picture legal and policy issues that they need to be concerned about, they also need to worry about the nuts and bolts, as the failure to observe basic regulatory requirements like tower fencing, EAS, and public file requirements can bring immediate financial penalties to a station. 

The tower fencing issue is one that we have written about before.  FCC rules require that public access be restricted to areas of high RF radiation, which are likely to occur at ground levels near AM stations.  The FCC has many times issued fines for fences with unlocked gates, holes, or areas where there are gullies where a child could climb under the fence into the tower area.  The FCC has been  unwilling to accept excuses that the fence was locked "yesterday" or "last week" or at some other less defined time in the absence of proof, as they’ve heard that excuse many time.  If the fence is open when they arrive, expect a fine.Continue Reading Non-Functioning EAS, An Unavailable Public File and Open Tower Site Gates Result in FCC Fines of $5500 and $3500

The NAB Radio Board today voted to adopt a Terms Sheet to offer to the musicFirst Coalition which, if agreed to by musicFirst and adopted by Congress, will settle the contentious issue of whether to impose a sound recording performance royalty (the "performance tax") on over-the-air broadcasters.  If adopted, that will mean that broadcasters in the United States, for the first time, will pay a royalty to artists and record labels, in addition to the royalties paid to ASCAP, BMI and SESAC that go to the composers of the music.  What does the Term Sheet provide, and what will this mean for broadcasters, webcasters and others who pay music royalties?

The Term Sheet sets out a number of points, including the following:

  • A 1% of gross revenue sound recording royalty to be paid to SoundExchange
  • A phase-in period for the 1% royalty, that will be tied to the number of mobile phones that contain an FM chip.  A royalty of one-quarter of one percent would take effect immediately upon the effective date of the legislation adopting it.  The royalty would rise in proportion to the number of mobile phones with enabled FM chips.  Once the percentage of phones with FM chips reached 75%, the full royalty would take effect.
  • The 1% royalty could only be changed by Congressional action.
  • The royalty would be lower for noncommercial stations and stations with less than $1.25 million in revenue – from a flat $5000 for stations making between $500,000 and $1.25 million in revenue down to $100 for those making less than $50,000 per year.
  • Broadcasters would also get a reduction in their streaming rates – but only when FM chips in mobile phones exceed 50% penetration.  The reduction would be tied to the rates paid by "pureplay webcasters" (see our summary of the Pureplay webcasters deal here), but would be set at a level significantly higher than pureplay webcasters, rising from $.001775 in 2011 (if FM chips were quickly deployed) to $.0021575.
  • Future streaming royalties would not be set by the Copyright Royalty Board but by a legislatively ordered rate court – presumably a US District Court similar to that which hears royalty disputes for ASCAP and BMI.
  • An acknowledgment by AFTRA that broadcasters can stream their signal on the Internet in their entirety – apparently agreeing to relieve broadcasters from any liability for the additional amounts due to union artists when commercials featuring union talent are streamed
  • An agreement that broadcasters can directly license music from artists and reduce their  liability for the new royalty by the percentage of music that the broadcasters is able to directly license
  • Agreements to "fix" issues in Sections 112 and 114 of the Copyright Act in making the provisions of these laws regarding ephemeral copies and the performance complement consistent with the waivers that major record labels gave to broadcasters when the NAB reached its settlement with SoundExchange on streaming royalties last year.  See our post here on the provisions of those waivers.
  • musicFirst would need to acknowledge the promotional effect of radio in promoting new music, and would need to work with radio in attempting to secure legislation mandating the FM chip in mobile phones.

[Clarification – 10/26/2010 – Upon a close reading of the Terms Sheet, it looks like the phase in of the 1% royalty and the delay in the streaming discount only kick in if Congress does not mandate active FM chips in cell phones.  If the mandate is enacted, then the full 1% royalty and streaming discount is effective immediately. Given the opposition of much of the wireless industry to a mandated FM chip, this may represent a recognition that the legislation requiring the active FM chip will not be enacted in the near future]

What does this all mean?Continue Reading NAB Radio Board Adopts Proposal for Settlement of Performance Tax Issue – Where Do We Go From Here?

So what Washington issues should be keeping broadcasters up at night? At the Connecticut Broadcasters Association Annual Convention in Hartford on October 14, and the Kansas Association of Broadcasters Annual Convention in Wichita on October 18, I presented my Top 10 list of issues for broadcasters – dealing with issues both practical and policy-based.  The PowerPoint presentation from Connecticut is available here, and that from Kansas is available here.   At these sessions, we discussed a variety of legal issues of importance to the industry, including the need for broadcasters to consider the upcoming license renewal cycle.   As we wrote a few weeks ago, that cycle begins with stations in Virginia, Maryland, DC and West Virginia in June 2011, and will continue across the country for the next few years, with radio stations in Kansas filing renewals in February 2013, and radio stations in Connecticut filing on December 1, 2013.   Television stations in each state will have applications due a year later. To be sure that stations are prepared for the renewal, they should be checking their public inspection files to make sure that they are complete, and should be preparing quarterly programs-issues lists detailing the programming that they broadcast to serve the public interest. A copy of Davis Wright Tremaine’s most recent advisory on the Quarterly issues programs list is available here. The most recent Quarterly Programs Issues List should have, by October 10, have been placed in the public files of all stations around the country, covering issue-responsive programming that was broadcast in the last quarter.  The DWT Advisory covering all of the other materials that should be in the public inspection file, and the retention period for that content, is availablehere.

We also discussed compliance with the FCC’s EEO rules, and how important such compliance is – and how each station’s EEO performance will be evaluated at license renewal time or if the station is randomly audited in the FCC’s EEO random audit process. We wrote about some of the complaints of certain public interest organizations about how they felt that the FCC had not been aggressive enough in EEO enforcement, here. With the scrutiny given to this issue, broadcasters should be observing their obligations carefully. DWT’s advisory on EEO compliance is available here, and our most recent reminder on the annual public inspection file reports for broadcasters is available here.  A PowerPoint presentation from a seminar that I just completed for the Washington and Oregon Broadcasters Associations will be posted on our blog shortly, which will highlight some of these EEO obligations. Continue Reading Top Ten Legal Issues to Keep Broadcasters Awake At Night – Presentations to Connecticut and Kansas Broadcasters Associations

The NAB Radio Show in Washington two weeks ago was a upbeat reflection of the present state of the broadcast industry.  But sandwiched around that conference, in the last three weeks, I have spoken at three digital media conferences – and as someone who has grown up on over-the-air radio, and based a career on representing radio stations, the discussions at these conferences raised many questions about the future of the radio industry. At the Radio and Internet Newsletter (RAIN) Summit East in DC, prior to the NAB Radio Show, I gave a summary of the royalty issues facing Internet Radio operators. At the Future of Music Policy Summit in DC the next week, I spoke on a panel on the Future of Radio. And at the Digital Music Forum West in Los Angeles last week, I moderated a panel on music licensing issue for digital media companies. At each of these conferences, the focus was on the digital media, not on over-the-air broadcasting, and many times the question was raised as to whether traditional radio was still relevant in the digital age. I’m not sure how many times I was asked, when I told someone that I am a lawyer who represents radio stations, what I plan to do next when my clients are extinct? Even in media-related industries, many seem to regard radio broadcasters as old-school – a throw back to some other entertainment era. Yet, what surprised me was how these same people who questioned the relevance of radio were all able to talk about what songs were or were not being played on the local rock station, or about the crazy thing some local DJ said that morning and the contests running on radio stations in their market, or about the story on NPR that kept them in their car seats when they were sitting in their driveway at home the night before.

At each of these conferences, in listening to the discussions of the issues facing all the new media (like how to make money), the dark view of radio seemed overblown.  Radio still seems to be a vital medium, especially if it can emphasize the advantages that it has. Harnessing the power of radio with digital media creates platforms that neither has on its own. In many ways radio, of all the traditional media, is best able to use its place in the media landscape to expand in the digital world. Radio has always excelled in reaching niche audiences, in much the same way that the Internet now does. By playing to its strengths, whether that be music, news, talk or sports, or some combination thereof, radio can expand its connection and provide broader and deeper services to its listeners, and serve its audiences like never before.  And all the digital media companies seem to recognize this potential, but seem to be discounting radio’s ability to capitalize on its advantages. Continue Reading Reflections on the State of Radio – A Month of Discussions at The Radio Show, State Broadcasters Meetings and Digital Media Conferences

In the waning days before the mid-term election, we have received many questions about the applicability of the political broadcasting rules to state and local candidates.  In particular, we have seen a number of letters from attorneys representing candidates who are running for state and local offices (everything from Governor to county commissioner or school board representative), who claim that an attack by an opposing candidate is unfounded and that a broadcast station must pull that ad from the air.  Just as is the case with Federal candidates, ads by state candidates cannot be censored by a station.  Thus, except in certain very unusual situations (where the language of the ad would violate some Federal criminal statute, e.g. if it is obscene), a station must air the ad as it was created.  It cannot be rejected because the station disagrees with the content or the tone, and it cannot be pulled even if the opposing candidate believes it to be defamatory.  Because the station cannot censor a candidate’s ad, they have no liability for the content of the ad, i.e. they cannot be held responsible for any defamatory content that it may contain, even if they are on notice of that content.  They cannot censor an ad by a candidate or a candidate’s authorized campaign committee – whether that candidate is running for a Federal, state or local office.

Note that, as we have written many times, this is in contrast to those situations where a candidate complains about an attack ad sponsored by a non-candidate group.  In those cases, the station does have the option of whether or not to run the ad (the no censorship provisions of Section 315 of the Communications Act do not apply).  Thus, if the station is on notice that there is potentially defamatory content in an ad, it must do some investigation of that ad, and make an informed decision about whether or not to allow the ad to continue to run.  If it does not investigate, and continues to run an ad that is defamatory after receiving notice of that fact, in some extreme cases, it could face liability for that defamatory content.Continue Reading Political Broadcasting Reminder – State and Local Candidates Subject to Lowest Unit Charge, No Censorship and Equal Opportunities Rules

Dave Oxenford this week conducted a seminar on legal issues facing broadcasters in their digital media efforts.  The seminar was organized by the Michigan Association of Broadcasters, and originated before a group of broadcasters in Lansing, but was webcast live to broadcasters in ten other states.  Dave addressed a variety of legal issues for broadcasters in connection with their website operations and other digital media platforms.  These issues included a discussion of service marks and copyrights, employment matters, music on websites, the use of social media, privacy, and sponsorship disclosure.  The slides used in the Lansing presentation are available here.    During the seminar, Dave also mentioned that stations with websites featuring user-generated content, to help insulate themselves from copyright infringement that might occur in the content posted to their website by their audience, should take advantage of the registration with the Copyright Office that may provide safe harbor protection if a station follows the rules and takes down offending content when identified by a copyright holder.  The Copyright Office instructions for registration can be found here.   

One of the most common issues that arise with radio station websites is the streaming of their programming.  In August, Dave gave a presentation to the Texas Association of Broadcasters providing  a step-by-step guide to streaming issues, with a summary of the royalty rates paid by different types of streaming companies.  That summary to Internet Radio issues is available here.  Additional information about use of music on the Internet can be found in Davis Wright Tremaine’s Guide to The Basics of Music Licensing in a Digital Age.   Dave also presented this seminar at the Connecticut Broadcasters Association’s Annual Convention in Hartford on October 14.Continue Reading David Oxenford Conducts Webinar for State Broadcast Associations on Legal Issues in the Digital Media World – Including a Discussion of Ephemeral Copies of Sound Recordings

Last week, the Department of Commerce’s Internet Policy Task Force asked for comments on the relationship between the protection of copyrighted content on the Internet and the effect of such protections on technology innovation and the expectations of consumers.  The purpose of the inquiry is to develop a report to be circulated among the various government departments that have power over the enforcement of copyrights and the development of rules and regulations that deal with copyrighted materials – to essentially develop government policy in this area.  While the request for comments dwell on the concerns about copyright infringement that are raised by many Internet applications, the proceeding will obviously be controversial among media companies.  Many of these companies are concerned about the unauthorized use of their content on various websites, while other media companies (or divisions of the same media companies who are concerned about the unauthorized use of content) are concerned about too tight restrictions on the use of copyrighted content and how that will impact various websites, especially those that feature user-generated content.

As we have written before, the Digital Millennium Copyright Act allows Internet companies to allow users to post material on their websites, without fear of liability, if they take certain precautions – including adopting terms of use warning users that they need to observe the intellectual property rights of others, not otherwise encouraging infringing uses, registering with the Copyright Office to provide a contact person at the website operator that a copyright owner can contact if they believe that their content is being used improperly, and taking steps to take down improper content if the website operator is notified of the infringing use.    This Commerce Department’s notice asks if this "safe harbor" provision has served the public interest, or if adjustments to this regime should be made.  Obviously, many websites that have grown businesses based on user generated content (e.g. many of the social networking and video-sharing sites) and will be very concerned with a proposal to alter their safe harbor and require them to take on a greater burden of reviewing content for potential copyright violations, while many content owners, who have complained about the inability to monitor all of these sites, may be looking for these reforms.   Obviously, there will be conflicting views on these proposals.Continue Reading Department of Commerce Seeks Comments on The Relationship of Protecting Copyrighted Content and Innovation in the Internet Economy

Broadcasters have a host of other legal issues that they should consider in connection with their digital presence.  At last week’s Maine Association of Broadcasters Annual Convention in Bangor, Dave Oxenford addressed these issues, including service marks and copyrights, employment matters, music on websites, the use of social media, privacy and sponsorship disclosure.  A copy of Dave’s presentation on the Legal Issues…

The FCC’s long-awaited White Spaces decision, revisiting its authorization of the operation of unlicensed wireless devices in the television spectrum (see our summaries of the intial order here and here), has finally been released.  The FCC decision and associated comments of the Commissioners promise Super Wi-Fi, or Wi-Fi on Steroids, and a host of other wireless digital marvels, without significantly interfering with the incumbent users of the spectrum (principally TV stations and wireless microphone users).  In this order on reconsideration, the FCC addresses many issues raised by many parties to the proceeding – some suggesting that the FCC has not sufficiently protected the incumbent users, while others arguing that the limitations on wireless users are too onerous.  For broadcasters, some of the highlights of the decision include:

  • No change in the interference protections given to TV broadcasters.  Some had suggested the use of various alternative propagation methods to be used instead of the standard FCC method of predicting the protected contours of television stations.  The FCC rejected these proposals, finding that alternatives would not be more accurate in predicting potential interference.  One minor correction including in the database that will be used by wireless devices to protect stations from interference will be included – information on a television station’s antenna beam tilt.
  • No change in the protection of LPTV station protected contours.  LPTV advocates had suggested that greater protection was required for LPTV stations that were still operating in an analog mode.  This was rejected by the Commission, given the impending digital transition for LPTV (see our summary of the LPTV digital transition, here)
  • Greater protection was afforded to cable headends, TV translator receive sites, and the receive locations for Satellite television providers (like DISH and DIRECTV) and other Multichannel Video Providers (MVPDs), so that existing television reception, no matter how it is received will be protected.  The current rules provide that such sites within 80 km from the edge of a television station’s protected contour can register in the database to be used by white spaces devices to determine where they can operate.  The Commission recognized that sites beyond that 80 km distance may also need protection.  Such sites can petition the FCC for waiver of the 80 km distance within 90 days of the effective date of this order, and the FCC will seek comment on whether or not to accord the site protection.  New sites need to register within 90 days of being put into service. 

Some of the other issues addressed by the Commission, including a big change in how these devices will operate to prevent interference, are summarized below.Continue Reading Reconsideration of White Spaces Decision – FCC Approves Unlicensed Devices for “Super Wi-Fi” in TV Band

FCC Commissioner Meredith Atwell Baker recently delivered a speech in Washington, DC, where she addressed calls for the government to take action to assist the traditional media deal with the economic issues brought about by the new media.  From time to time, there have been calls for the government to assist the traditional media, either through some sort of direct subsidies, or through regulatory changes that could assist in their news coverage to make these entities competitive in the new media world.  While the Commissioner’s speech did not detail those efforts, calls have, for the most part, not suggested direct government subsidies to support traditional news media sources.  Instead, more indirect efforts have been suggested to insure that these media sources continue to serve their communities.  Calls have been made to change tax laws to allow newspapers to operate as nonprofit entities (while still soliciting advertising).  In a draft FTC option paper, there was a suggestion of taxing commercial media to provide more support to noncommercial public broadcasting entities.  Other proposals have been more direct – simply mandating more news and public affairs programming from broadcasters (with little or no discussion of the source of the revenues for such mandates).  In her speech, the Commissioner noted that some suggestions may be forthcoming from the FCC’s own Future of Media report due at the end of the year (see our summary of the issues that they are exploring here), but she seemed to rule out these types of proposals, instead suggesting that the Commission could assist companies meet the new media challenge by loosening FCC restrictions on ownership.

The Commissioner suggested that no government action to bail out the media is necessary to preserve service to the public – citing the many examples of how that service is provided through new media sites that serve all sorts of communities and community groups – providing timely and detailed information on specific topics, often on a neighborhood level.  We have made that same point on these pages – the new media is already filling any void that may exist in local media coverage.  Some of these sites are produced by old media companies – as TV stations, newspapers and others develop microsites targeted to very local needs and interests.  Other sites are totally independent – developed by local interest groups or new media entrepreneurs.  So how can the Commission help these sites to develop?Continue Reading FCC Commissioner Baker Suggests No Government Support for Media, But Possible Relaxation of Broadcast Ownership Rules