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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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A year after the FCC issued its order adopting the "White Spaces" proposals (about which we wrote here and here), to allow wireless devices to operate in unused portions of the television band on a non-interference basis, the FCC took its first steps toward actual implementation of that order by issuing a request for Proposals from entities wishing to be considered for the position of Database Manager.  This Database Manager will play a very important role in the implementation of the White Spaces order, as it will identify all of the current operators in the TV band that the new wireless devices will have to protect while operating in a given region.  In its White Spaces order, the FCC concluded that not all of these devices could, on their own, adequately sense where there were TV stations or other spectrum users that needed to be protected.  Thus, the White Spaces devices need to be able to communicate with the database to be maintained by the Manager, to make sure that they are operating on clear portions of the television spectrum.  White Spaces devices need to protect not only full power TV stations, but also Low Power TV stations and TV translators, as well as the path between a full-power TV station and any translator that rebroadcasts that station.  Cable system headends which pick up TV signals must also be protected, as well as land mobile users who use portions of the TV band.  Certain regular users of wireless microphones also need to be protected – so the database will need to be very detailed to give the White Spaces devices access to information about all of these existing users who must be protected.

In its Request for Proposal, the FCC has asked that proposed Database Managers provide extensive information by the January 4, 2010 filing deadline.  Information requested includes the following:

1. The entity must demonstrate that it possesses sufficient technical expertise to administer a TV band database. It must demonstrate that it has a viable business plan to operate a database for the five-year term the rules. To the extent that the proponent will rely on fees from registrations or queries, the proposal should describe the fee collection process.

2. The entity must describe in detail the scope of the database functions that it intends to perform, such as managing a data repository, performing calculations to determine available channels, and/or registering fixed unlicensed devices and licensed services not listed in the Commission’s databases, or how it will have functions performed in a secure and reliable manner by another entity. The entity must also describe how data will be synchronized between multiple databases if multiple databases are authorized and how quickly this synchronization of data will be accomplished.

3. The entity must provide diagrams showing the architecture of the database system and a detailed description of how each function operates and how each function interacts with the other functions.

4. If the entity will not be performing all database functions, it must provide information on the entities operating other functions and the business relationship between itself and these other entities. In particular, it must address how the Commission can ensure that all of the requirements for TV band database administrators in the rules are satisfied when database functions are divided among multiple entities, including a description of how data will be transferred among these various related entities and other databases if multiple databases are authorized and the expected schedule of such data transfers (e.g. real-time, once an hour, etc.)

5.  The entity must describe the methods that will be used by TV band devices to communicate with the database and the procedures, if any, that it plans to use to verify that a device can properly communicate with the database. It must include a description of the security methods that will be used to ensure that unauthorized parties can not access or alter the database or otherwise corrupt the operation of the database system in performing its intended functions. In addition, the entity should describe whether and how security methods will be used to verify that Mode I personal/portable devices that rely on another device for their geographic location information have received equipment authorization, interfaces, protocols) that will be used by TV band devices to communicate with the database and the procedures, if any, that it plans to use to verify that a device can properly communicate with the database. It must include a description of the security methods that will be used to ensure that unauthorized parties can not access or alter the database or otherwise corrupt the operation of the database system in performing its intended functions. In addition, the entity should describe whether and how security methods will be used to verify that Mode I personal/portable devices that rely on another device for their geographic location information have received equipment authorization.Continue Reading FCC Starts Next Step of TV White Spaces Deployment – Issues RFP for Database Manager to Track Interference Concerns

Update 11/23/2009 – the Commission has just extended the filing deadline for the Form 323 until January 11, 2010.  See our post here for more details. 

December 15 is that date on which the new FCC Form 323 Ownership Report is to be filed at the FCC – yet the revised form is not yet available in the FCC’s CDBS electronic filing database.  What is a broadcaster to do?  The form will require significantly more work to complete than was necessary on prior versions – and it requires more information provided in a different manner than on the old form.  The information on the old form cannot simply be imported into the new form – everything needs to be re-entered.  And information that used to be provided by exhibit in older versions of the form has to be manually entered into separate searchable fields on the new form.  For broadcasters with many principals who have many broadcast interests, the form will take significant time to complete.  All commercial licensees, including LPTV licensees who have never before had to file, must submit the report.  Each attributable owner of each licensee (see our Advisory for a very basic explanation of attributable interests) will also need to have his or her own FCC registration number ("FRN") in order to complete the form – all to be done by December 15.  But will that date potentially change?

While the FCC has issued a series of Questions and Answers about the form (and we have published our own Advisory to prepare for the filing of the form, here), licensees can’t start filling out the form yet as the revised for is not yet available electronically.  So the difficulties that will no doubt be discovered as hundreds of broadcasters try to complete the form for the first time have yet to even be fully identified.  Even if the form does become available today, there still will be a significant potential for a very messy filing window.  Confusion will likely occur as every commercial broadcaster must file the form, some for the first time, and many will no doubt have questions about the process.  From the calls that we are getting already, the anxiety and confusion among broadcasters is great.  The prospects of a filing "trainwreck" has been the subject of much talk in Washington among lawyers like us who represent broadcasters.  With much of next week taken up with the Thanksgiving holiday, there simply will not be time for every question to be answered, and for every broadcaster to be ready to file by the December 15 deadline.  This week, one law firm went so far as to formally request that the Commission postpone the filing date.  We would not be surprised if this petition is successful, or if the Commission on its own motion decides to extend the deadline.  But the filing deadline has not yet been delayed, so broadcasters should still plan on meeting the current deadline (and, even if extended, any delay will not be indefinite, so broadcasters still need to be getting ready).  What can a broadcaster do now?Continue Reading It’s November 20, and Still No New Form 323 Ownership Report – What’s a Broadcaster to Do?

At more and more broadcast conventions, station owners have been asking questions about their legal liability for the use of social media.  What is their liability for the use of Facebook, Twitter, MySpace or other services?  Could owners have liability if their station maintains its own page on which friends and followers may post statements which are defamatory or which could otherwise give rise to…

DWT attorneys David Oxenford and Ronnie London both spoke at the Future of Television – East Conference held in New York City on November 18-19, 2009. Dave delivered introductory remarks to the Conference, and participated with Shelly Palmer, Host of MediaBytes, in a discussion "What’s the Industry Buzz.". Dave discussed the…

Radio broadcasters all over the country have been receiving letters about music royalties – from ASCAP, BMI and the Radio Music Licensing Committee (RMLC).  The ASCAP and BMI letters are asking for the broadcaster to sign a letter committing themselves to some royalty obligation for 2010.  They pose three options to the broadcaster – sign up to pay royalties for 2010, join the RMLC negotiating group, or notify ASCAP and BMI that they will be negotiating their own royalties.  The RMLC letter suggests that the broadcaster join in their negotiating group to help to establish a new royalty structure with these entities.  What does it all mean, and what should a broadcaster do? 

These letters are all triggered because the rates for royalties that commercial radio broadcasters pay to ASCAP and BMI for the musical compositions that they play on the air expire at the end of 2009. (Noncommercial broadcasters have a special rate set under the review of the Copyright Royalty Board, and thus are not subject to these deals)  RMLC represents most radio broadcasters in their dealings with the performing rights organizations (or "PROs" as ASCAP and BMI, and SESAC, are called). We wrote about the many issues that have held up an extension of the current agreements between radio broadcasters and ASCAP and BMI here. If there is no new deal covering these royalties in place by the end of the year, broadcasters who continue to play these compositions (which will be virtually all commercial radio operators) will need to determine how to pay royalties when the current royalty agreements expire.  The current agreements do not have any automatic extensions in them, as the antitrust consent decrees that bind these companies call for royalty deals of no more than 5 years in duration. Thus, as the old agreements are about to expire, and no new agreements are in place, the flurry of letters has followed to put broadcasters on notice of the current situation.  Of course, none of these letters is entirely clear in spelling out all the issues involved.  So we’ll try to explain some of those issues below. Continue Reading Letters From ASCAP, BMI and RMLC – What’s a Broadcaster to Do?

What will be the issues that broadcasters need to be concerned about in next year’s Media Ownership proceeding?  To get a clue, broadcasters should watch and listen to the second day of the FCC workshop on multiple ownership, featuring members of various public interest groups in Washington the week before last (watch it on the FCC website, here).  These workshops, as we wrote here, were held to start the process on the Commission’s upcoming Quadrennial Review of the multiple ownership rules.   The representatives who testified on this panel discussed the issues that they thought should be reviewed, and facts that they thought should be collected, in order for the Commission to successfully complete the ownership review required by Congress.  As these Washington "insiders" are sure to be the ones filing comments in the proceeding and lobbying the Commission on the issues, the agenda of these organizations are likely to set the grounds for debate in the upcoming proceeding.  From watching this hearing, there are bound to be a number of contentious issues that will come up.

The panel was made up of representatives of five different Washington public interest groups – four that tend to favor more regulation and less consolidation.  The representative of the fifth organization, suggesting just the opposite – that in the new media world, little or no media ownership regulation is necessary.  While much of the discussion was process-oriented, there was discussion of specific issues that might come up in the review.  Both the process – which included extensive discussion of the need for detailed industry information for informed regulation to take place – and the substance could cause problems for broadcasters.  Substantive issues discussed included the need for more scrutiny of shared services agreements in the television world (as some saw these as a way of evading the FCC ownership regulations), and for ways to insure that there is more local programming as part of the process. One representative also mentioned the need to review noncommercial broadcasting as part of the ownership proceeding – which is usually restricted to a review of commercial operations.Continue Reading Multiple Ownership Workshops Start to Identify Issues for Quadrennial Review – Shared Services Agreements and Local Origination To Be Focus of Public Interest Groups

This week, six Congressional supporters of the broadcast performance royalty wrote a letter calling upon the NAB to sit down with music industry representatives to reach a "negotiated resolution" of the "longstanding disagreement" in a session to last from November 17 through December 1.  The letter suggests that the negotiations will be supervised by Members of Congress and the staff of the Judiciary Committees of Congress, with a report to be made by the Committee staff at the end of the negotiation period which will be considered by Congress in further actions on this issue.  The parties are instructed to bring individuals who have decision-making power to reach an agreement.  Could this call for negotiations really result in a deal that would lead to a law requiring that radio broadcasters pay a fee for the use of sound recordings on their over-the-air stations?

First, we must ask whether there will even be any negotiations.  The NAB’s only statement issued thus far says that they are willing to "talk to Congress" about the matter, but that they hoped that the discussion would include some of the almost 300 members of Congress who oppose the royalty.  As we’ve written before, the NAB has over 250 Congressmen and over 20 Senators signed on to resolutions opposing the performance royalty.  With the initial letter being signed by 6 supporters of the royalty, and the Judiciary Committees of both the House and Senate being filled with its supporters, why would the NAB be willing to jump into what could be seen as the lion’s den – engaging in a high stakes competition where the referees are on the record as favoring one side?  Note that the NAB statement says nothing about participating in "negotiations", which the former President of the NAB had said that he would never do.  We will have to see whether the change at the top of the NAB will bring a change in the attitude of the NAB.  New NAB President Gordon Smith, who has been in his job less than two weeks,  is said to be more of a consensus-builder than his predecessor, but he has had a very short time to come up to speed on the issue or to build any sort of consensus among those he now represents on where to go on this issue. Continue Reading Congressional Supporters of Performance Royalty Tell NAB to Negotiate With Music Industry – Will It Resolve Anything?

The Commission is worried about the future of the broadcast media, and they are trying to figure out what they can do.  The last two weeks have been full of news about actions being taken by the FCC which may or may not lead to a reshaping of broadcasting as we know it.  We wrote about the discussion of re-purposing some or all of the television spectrum for wireless broadband users.  We also told you about the workshops to be held this week as the first step in the Commission’s Quadrennial review of it multiple ownership rules – looking at whether to allow more media consolidation to help broadcasters compete in the new media landscape or, conversely, whether there should be a reexamination of the existing rules to make them more restrictive against big media.  Last week, the Commission announced two more actions – the appointment of a Senior Advisor to FCC Chairman Julius Genachowski to study "the future of media in a changing technological landscape", and a workshop on "Capitalization Strategies for Small and Disadvantaged Businesses."  What is the impact of all of these actions?

The appointment of the Senior Advisor, Steven Waldman, is perhaps the most interesting action.  Mr. Waldman, the founder of the website Belief.net (recently sold to News Corp), is charged with determining how the FCC can assure that the media will serve the public interest in the 21st century, and that "all Americans receive the information, educational content, and news they seek."  He is instructed to work with all Bureaus to determine how best to implement these ambitious goals.  It is interesting that, while one might be inclined to look at this with the assumption that his charge is to look at broadcasting, the public notice announcing his appointment and his charge does not once use the word "broadcast" or "broadcasting."  Instead, it talks almost exclusively about the new media and technology and the potential that they have for serving the public good.Continue Reading FCC Senior Advisor to Chairman to Study Media Change and a Workshop on Media Financing for Small Business – Looking to Reinvent the Broadcast Industry?