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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 debate over the proposed performance royalty (or "performance tax") on over-the-air radio is once again front page news in all of the broadcast trade press, as radio executives who make up the NAB Radio Board reportedly are making their way to Washington, DC to decide on whether to pursue a settlement with those seeking to impose the royalty.  What’s on the table?  Reportedly a very low (perhaps 1% of revenue as reported in some of the trades) royalty for terrestrial radio, a royalty set in legislation for at least a several year period.  In exchange, broadcasters would get a break on streaming royalties and a push towards getting working FM chips into cell phones – a potentially big audience boost for radio operators.  But from all we have heard, this is not, by any means, a done deal.  What will happen?

We wrote just a few weeks ago about a proposed settlement and why it might or might not be a good idea, and received many comments on our post.  As was clear from the comments, many are not sure why a settlement of any sort makes sense at this point, when the NAB has so far bottled up the royalty in Congress, and where the next Congress is, at least in the eyes of many, going to be far more Republican and, in some people’s eyes, a lot less likely to impose the royalty.  Proponents of a settlement respond that the royalty is not necessarily a partisan issue, with Republicans such as Senator Hatch of Utah, Congressman Issa of California, and many members of the Tennessee delegation taking strong positions in favor of the royalty.  So, just because there is a change in Congress (if it in fact occurs) does not necessarily mean that the current Performance Rights Act or some other version of the royalty proposal would be dead.  Moreover, as we wrote in our recent post, there still is the remainder of the current Congress to get through, including the "lame duck" session after the election, when Congressmen who may no longer have jobs will be voting on much legislation, including many big budget bills in which a performance royalty rider can get hidden. Continue Reading NAB Board Comes to DC to Discuss Radio Performance Royalties – Is There a Deal in the Works?

Congress last week adopted a bill important to all US media companies that produce content that can be received overseas.  This would include anyone with content on their website (including user generated content) that could potentially give rise to a legal judgment overseas.  As explained in detail in Davis Wright Tremaine’s memo on the act –…

In 2006, the FAA proposed requiring that many communications users seek FAA No Hazard Determinations not only before they make changes in the height of a tower, but also prior to frequency or power changes.  The FAA sought to review applications to determine if proposals would create any interference to frequencies used by the by aircraft and by the FAA for air navigation purposes. This review would be in addition to any review that the FCC made of interference considerations.  Many communications companies and engineering firms argued that this second layer of frequency review was unnecessary; and certain engineering groups contended that the FAA’s interference programs were not accurate – finding interference where none existed.  After over 4 years of consideration,the FAA has now decided that most of the frequency blocks that it was considering did not really pose a threat to air navigation, with one exception.  The FAA determined that interference problems do arise from FM operations, and thus the FAA did not dismiss their proposal to require its approval of FM changes – even where no tower height changes are planned.

The FAA, however, apparently will not be making this decision alone.  Instead, that FAA is coordinating with the FCC and NTIA (an Administration in the Commerce Department that coordinates between various government agencies that use spectrum) to adopt policies that will govern the potential for interference from FM stations to FAA operations.   The FAA’s Notice says that more information about what is to be proposed for FM stations should be forthcoming soon.  This can be a real issue for FM stations, especially ones proposing significant power increases or frequency changes in congested metropolitan areas with numerous public, private and military airfields in the vicinity. Continue Reading FAA Working On Proposals to Require FAA Coordination For FM Changes Even Where There is No Change in Tower Height – Rejects That Requirement for Other Services

The FCC today announced a $1,000,000 Consent Decree with Univision Radio to settle payola investigations underway at both the FCC and the Department of Justice.  Payola, or "pay for play" as it is called in the FCC Press Release issued today, is a violation of FCC rules and Federal criminal law, which both prohibit…

While it’s summer in Washington and things should slow down, the discussion of the need for wireless spectrum for broadband, and the related question of whether to reclaim television spectrum for that use, continues unabated.  This week, the FCC released a new report finding that between 14 and 24 million Americans have no access to broadband, and finding that a disproportionate number of those people are in rural areas.  While this report to Congress is meant as a factual report on the status of broadband deployment, and not a document that details solutions to the lack of access, both the statement about the report from FCC Chairman Julius Genachowski and the FCC Press Release summarizing the report, suggest that one way to address this shortcoming is to encourage the deployment of wireless broadband.

While the FCC did not, in these documents specifically mention the TV spectrum as a source for that wireless capacity, as we have written before, the FCC’s Broadband Plan looks to the television spectrum for the majority of the spectrum that they hope to reclaim for broadband use.   Joining the FCC’s call for more spectrum was an even higher power.  The White House recently issued a Presidential Memorandum supporting the idea that the FCC free up 500 mhz of spectrum for wireless broadband purposes.  While the Memorandum tasked government agencies with finding ways to free spectrum that they are using to meet this perceived need, it also made clear that the government would look to meet part of the need by reclaiming spectrum from non-governmental users.  And they are not the only ones getting into the Act. Continue Reading FCC Wants More Wireless Broadband from TV Spectrum – Congress and the White House Get In on the Action

The broadcast trade press has recently been full of talk of the possibility of reaching a settlement with the recording industry on the adoption of a Performance Royalty for broadcast stations -paying performers and record companies for the use of music by radio stations (on top of the fees already paid through ASCAP, BMI and SESAC to composers).  The latest controversy was set off by comments made at the Conclave Radio Conference by Bonneville Radio’s CEO Bruce Reese, who has also been prominent in NAB activities, who suggested that broadcasters were on the defensive in Congress, and that a good settlement was better than a bad legislative outcome.  Other broadcasters have disagreed with Reese’s assessment, asking why broadcasters would be willing to settle when they have a majority of Congress on their side, having signed the NAB-supported resolution opposing the royalty.  Which side is right?

It should be emphasized that, even though broadcast groups have done an amazing job rounding up support for their opposition to the "performance tax" – signing up far more than a majority of the House of Representatives on a resolution opposing the royalty – that resolution is non-binding.  Congressmen can change their mind, and of even more concern, the proposed performance royalty can end up getting tagged on to some must-pass legislation that Congress needs to adopt before the end of the year.  Congress has many budget bills that need to pass to fund the government’s operation, and these huge bills have a way of attracting all sorts of unrelated matters being folded into their provisions.  With leaders of many important committees in the House and Senate being supporters of the royalty, its easy to imagine that one of these bills can end up with performance royalty language included.  While one broadcast trade publication suggests that NAB lobbyists are paid to stop this sort of thing from happening, it is unrealistic to believe that the NAB is invincible, as provisions on unrelated bills can pop up seemingly out of nowhere and surprise everyone, especially when pushed through by powerful congressional leaders who less committed representatives are unwilling to challenge (especially when to do so might mean voting against some important legislation to which the performance royalty is attached).  Congressman simply will not vote down the defense appropriations bill just because there is a performance tax attached.  This kind of maneuver is of particular concern given that many of these bills may well be considered after the election in November, during a "lame duck" session of Congress when, especially this year, there will be many representatives who may not be around again in January to face the wrath of voters (or of broadcasters) who may be disappointed by their final votes.Continue Reading Talk of A Settlement on the Terrestrial Radio Performance Royalty – What Would Broadcasters Get?

Last week, the FCC’s Media Bureau granted waivers of the requirement that television tuners be capable of receiving both analog and digital television transmissions, but only with respect to tuners meant for mobile use.  The FCC justified the waivers of the All Channel Receiver Act given the technological constraints that an analog reception chip would put on mobile receivers meant for the reception of the Mobile/Handheld Digital Television Standard (A/153) signals.  This signal is being tested now to allow television broadcasters to provide mobile programming in addition to their current over-the-air broadcast signals – a service planned for commercial roll out at the end of the year.  These waivers, granted in response to requests by Dell and LG Electronics, not only signal the seriousness with which this new service is being regarded, but also provide evidence of the coming end of analog television, now used solely by LPTV stations.   

In considering the waiver, the Commission recognized that the only television stations that would be affected by the lack of an analog tuner were LPTV stations, and no such stations opposed the waiver request.  As one of the waiver proponents noted, analog television signals were not meant for mobile reception, and thus the lack of such a receiver in a mobile device was no big loss.  Moreover, the FCC noted that the digital conversion of LPTV stations has already begun, in that it no longer accepts applications for new analog LPTV stations.  The Commission reiterated that it will soon set a date for the final conversion of the last analog LPTV stations to digital.  Thus, the failure to receive analog would be, at most, a temporary issue.Continue Reading FCC Authorizes Mobile DTV Receivers Without Analog Tuners – Further Signals of the End of Analog LPTV, and Raises Questions of Recapture of TV Spectrum for Broadband

The US Court of Appeals for the Second Circuit today struck down the FCC’s indecency rules, finding that the rules were so vague as to not put broadcasters on notice of what programming was prohibited and what was permitted.  Today’s decision was reached following a remand of this case to the Second Circuit by the Supreme Court.  The Supreme Court’s decision did not resolve all questions about the FCC’s rules, instead only deciding that the lower court’s prior decision voiding the rules was not justified.  The prior Second Circuit decision had not been decided on a constitutional basis, but instead it was based on the Court’s perception that the FCC had failed to justify its departure from prior FCC precedent that had excused broadcasters from liability for fleeting expletives.  The Supreme Court found that the departure from prior precedent was justified.  The Supreme Court left open the issue of whether the rules were constitutional, and sent the case back to the Second Circuit for further consideration.  In today’s decision, the Second Circuit takes up the constitutional review left open by the Supreme Court, and has determined that the vagueness of the FCC’s guidelines and the inconsistency in its decisions chilled the First Amendment rights of broadcasters in violation of the First Amendment. 

The Court, in reaching its decision, looked at a number of the Commission decisions on indecency which have arisen since the Commission started its enhanced enforcement of these rules in 2003.  After reviewing the cases, the Court felt that the FCC could not logically articulate when the use of certain prohibited words would be punished.  In one passage, the Court asks how the FCC can find that the broadcast use of expletives in the fictional movie Saving Private Ryan were permissible as the words were essential "to the realism and immediacy of the film experience for viewers", yet at the same time find that these same words did not rise to that same level of importance when spoken by real people in the PBS documentary The Blues.  The Court then cited numerous instances where broadcasters felt that their speech had been chilled – often refraining from airing significant programming for fear of FCC fines.  For instance, the Court cited one station that refused to cover a political debate as a candidate had previously used a forbidden word in a prior debate, and another case where stations did not run a documentary about emergency workers and the 9-11 tragedy as the documentary contained some actual footage from the Twin Towers, where emergency workers used some of those forbidden words. Continue Reading Court of Appeals Strikes Down FCC Indecency Rules

The FCC has released its order setting this year’s Regulatory Fees to be paid by broadcast stations.  While has not yet set the deadline for paying those fees, that deadline should fall sometime in August or September.  In setting this year’s fees, the Commission made some decisions about fees for broadcasters that may not make sense to some – but it promised to review the decisions in the future when determining the amounts of fees in future years.  Perhaps the most controversial issue will be the fees that it set for television stations – which retain the distinction between UHF and VHF stations, and retain the requirement that VHF stations pay significantly higher fees – even though such stations are often disadvantaged (and certainly not advantaged) in the digital world.  Fees for television stations range from $81,550 for VHF stations in the Top 10 markets (versus $32,275 in those markets for UHF stations), to $6125 for VHF stations in the smallest markets versus $3050 for UHF stations.  The many stations now operating digitally on UHF channels that had previously operated on VHF channels in analog will receive some big savings, while some stations forced to operate on VHF channels for the first time may well be in for a surprise as to the reg fees that they will be paying.

The Commission also rejected requests to decrease the amount paid by AM stations in comparison to FMs, though it promised to revisit that issue in the future.  Other proposals to base payment directly on population served by a station were also rejected.  For TV translators and LPTV stations, if an entity is operating both an analog and digital station while in the process of its digital conversion, fees will have to be paid on both stations.  Full-power television stations will have to pay on their digital operations, even if they were operating with STA facilities on October 1, 2009, the beginning of the fiscal year for which these fees are paid.  All fees are based on the facilities of a station as of that date.  Specific fees for broadcasters are set out below.Continue Reading FCC Sets Regulatory Fees – Payment Date Not Yet Set

Three months ago, we wrote about a case where the FCC held that it would grant only one application from each MX Group in the recent NCE FM window for new noncommercial FM radio stations.  MX Groups arise when multiple applicants file applications that cannot all be granted without prohibited interference.  In some cases, an…