Photo of David Oxenford

David Oxenford

Subscribe to David Oxenford's Posts

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.

Follow:Read more about David OxenfordDavid's Linkedin ProfileDavid's Twitter Profile

What a difference a few days makes.  At the beginning of this week, it was full speed ahead for the February 17 termination of analog television.  Then NTIA announced that it was out of money to pay for DTV coupons to assist the public in buying converter boxes so that analog TV sets will continue to work after the transition.  This action, in turn, caused Consumers Union to ask Congress for a delay in the transition, resulting in Congressman Markey’s office suggesting that the DTV transition might need to be delayed (as we wrote yesterday).  Today, the other shoe dropped as the Obama transition team formally wrote to Congress asking for a delay of the termination of analog television.  That letter leaves everyone asking – will Congress respond?  If so, what are the ramifications?

The NAB responded with a press release talking about how broadcasters are still prepared to meet the deadline, and how the deadline has focused all parties (TV stations, electronics manufacturers, cable and satellite companies) on doing what they need to do in order to be ready for the transition.  But the Obama team’s call for the postponement does not seem to be focused on the readiness of program providers to accomplish the switch, but instead on the readiness of viewers to deal with the new digital environment, especially given the lack of coupons for last minute shoppers still waiting to buy their converter boxes.  As we’ve written before, many in Washington are worried about the political ramifications of the transition – especially if millions of people wake up on February 18 and can’t watch the Today Show or Good Morning America.  And while that is a legitimate concern, one wonders if it will ever be possible to prepare everyone for the transition deadline.  Sure, if the deadline is postpone 4 or 5 months, there will be a marginal increase in people who are ready, but there will still be stragglers.  Catching up to them all may never happen until they are hit with the reality of their analog sets not working on the day after the transition, whenever that day may be.  If so, shouldn’t someone at least consider the costs that a delay will impose on broadcasters? Continue Reading Obama Transition Team Requests Delay of DTV Transition Deadline

Several press reports were issued today suggesting that there is at least some consideration in Congress of delaying the DTV transition now scheduled to be completed on February 17.  The consideration stems from the announcement that the NTIA (the National Telecommunications and Information Administration) had run out of money to issue the $40 coupons…

2009 – a new year, and a whole new cycle of regulatory requirements.  We wrote last week about the potential for changes in regulations that may be forthcoming but, like death and taxes, there are certain regulatory dates each year that broadcasters need to note and certain deadlines that must be met.  Those dates…

The Copyright Royalty Board today published a notice in the Federal Register announcing the start of its next proceeding to set the royalties to be paid by Internet radio operators for the performance rights to use "sound recordings" (a particular recording of a song as performed by a particular performer) pursuant to the statutory royalty.  As we’ve written extensively on this blog, the statutory royalty allows an Internet radio station to use any publicly released recording of a song without the permission of the copyright owner (usually the record company) or the artist who is recorded, as long as the station’s owner pays the royalty – currently collected by SoundExchange.  In 2007, the Copyright Royalty Board set the royalties for 2006-2010, a decision which prompted much controversy and is still under appeal.  In the Notice released today, the CRB set February 4 as the deadline for filing a Petition to Participate in the proceeding to set the royalties for the next 5 year period.

The 2006-2010 royalties are currently the subject of negotiations as the parties to the last proceeding attempt to come to a voluntary settlement to set royalties that are different than those established by the CRB decision.  The Webcasting Settlement Act (which we summarized here) gives webcasters until February 15 to reach an agreement as to rates that would become an alternative to the rates that the CRB established.  The Act also permits parties to reach deals that are available not only for the 2006-2010 period, but also allows the deals to cover the period from 2011-2016.  Thus, theoretically, webcasters could all reach agreements with SoundExchange to establish rates that cover the next royalty period, obviating the need for the proceeding of which the CRB just gave notice.  But, as is so often the case, those settlements may not be reached (if they are) until the last minute – so parties may need to file their Petitions to Participate before they know whether a settlement has been achieved.Continue Reading Here We Go Again – Copyright Royalty Board Announces Date for Filing to Particpate in Proceeding to Set Webcasting Royalties for 2011-2015

The FCC’s Notice of Proposed Rulemaking on Digital Fill-In Translators, to provide television service in areas where a television station’s digital signal does not reach locations that were covered by its analog operations (a proposal we summarized here) was published in the Federal Register today, setting comment dates on this proposal.  Comments are due on January 12, and Replies on January 22.  As the Commission has already published instructions for filing for temporary authority to operate these stations, broadcasters who are interested in the final rules that may be adopted should look to file comments on these matters before the January 12 deadline.  This is another proceeding that is being rushed through the Commission in anticipation of the February 17 end of the digital television transition.

The analog nightlight proceeding is on an even faster track, with comments due on Monday (see our summary of that proceeding here). The Commission has just released a tentative agenda for its January 15 meeting, where the only item it will consider (other than reports from the Commission’s various Bureau Chiefs) will be the analog nightlight proposal.  This is likely to be Chairman Martin’s last meeting as chair of the FCC.  In light of the Congressional mandate to complete this proceeding by January 15, the Commission will have received comments and replies and digested them into a decision – all in the space of  20 days from the release of its Notice of Proposed Rulemaking – with the Christmas and New Years holidays intervening!  If anything, this shows two things – that the FCC can move rapidly if it has to, and that the DTV transition is the one and only real priority on the full Commission’s agenda right now. Continue Reading TV Digital Transition Rushes On – Comment Date on Proposals for Digital Fill-In Translators Set for January 12 and Analog Nightlight to Be Approved at January 15 Commission Meeting

Come the New Year, we all engage in speculation about what’s ahead in our chosen fields, so it’s time for us to look into our crystal ball to try to discern what Washington may have in store for broadcasters in 2009. With each new year, a new set of regulatory issues face the broadcaster from the powers-that-be in Washington. But this year, with a new Presidential administration, new chairs of the Congressional committees that regulate broadcasters, and with a new FCC on the way, the potential regulatory challenges may cause the broadcaster to look at the new year with more trepidation than usual. In a year when the digital television transition finally becomes a reality, and with a troubled economy and no election or Olympic dollars to ease the downturn, who wants to deal with new regulatory obstacles? Yet, there are potential changes that could affect virtually all phases of the broadcast operations for both radio and television stations – technical, programming, sales, and even the use of music – all of which may have a direct impact on a station’s bottom line that can’t be ignored. 

With the digital conversion, one would think that television broadcasters have all the technical issues that they need for 2009. But the FCC’s recent adoption of its “White Spaces” order, authorizing the operation of unlicensed wireless devices on the TV channels, insures that there will be other issues to watch. The White Spaces decision will likely be appealed. While the appeal is going on, the FCC will have to work on the details of the order’s implementation, including approving operators of the database that is supposed to list all the stations that the new wireless devices will have to protect, as well as “type accepting” the devices themselves, essentially certifying that the devices can do what their backers claim – knowing where they are through the use of geolocation technology, “sniffing” out signals to protect, and communicating with the database to avoid interference with local television, land mobile radio, and wireless microphone signals.Continue Reading Gazing Into the Crystal Ball – The Outlook for Broadcast Regulation in 2009

Last week, the FCC introduced a new service to fill in gaps in the service of a digital television station – permitting television stations to immediately apply for Special Temporary Authority to construct digital translators.  Translators rebroadcast the signal of a full-power station, but operate on a channel different than the main station they retransmit.  The Commission has already authorized stations to operate on-channel low-power facilities in the Distributed Transmission Service (DTS) proceeding, about which we wrote here.  The digital translators, however, will only be authorized to serve areas that had received analog service from the television station but which will lose that service when the station goes fully digital, thus raising questions as to how much use these stations will really be.  In a Public Notice released today, providing filing information for these translators, the Commission states that the translators can only serve this loss area.  While the authorization of this Digital Low Power Television Translator service will begin immediately on an STA basis, the Commission’s order came out only in a Notice of Proposed Rulemaking, which could ultimately be rejected by the Commission after public comments are submitted.

The Commission seeks comments on a number of proposals made in this proceeding, including the following:

  • The new translators would operate on Channels 2-59, with those operations on channels 53-59 being authorized only where the applicant can show that there is no other channel on which a translator can operate
  • These translators will be given application priority over all other translator applications except those for the displacement of an existing translator or LPTV station, which would have co-equal priority
  • The translators would be authorized as part of the main station license, would be renewed as part of the main station license, and could not be sold except with the main station.
  • The translators will be authorized to fill in the area served by an analog full-power station but lost when the station converts to digital.  The Commission seeks comments as to whether even a nominal extension of the coverage area will be permitted (it apparently will not for authorizations initially granted through an STA) 
  • Applicants receiving an authorization for this service will be given a construction permit – and the Commission asks if that permit should be limited to a period of six months so that service to the public will be initiated quickly.
  • The Commission also asks how this service should interact with white spaces devices recently authorized by the Commission (see our summary).

Continue Reading FCC Proposes New Digital Low Power Fill-In Translators, and Starts Accepting Applications Immediately

 Just when you think that the year will come to a quiet end, something always seems to pop up.  Today, the Copyright Royalty Board announced a Notice of Proposed Rulemaking that would change the reporting requirements for services that pay royalties for the use of sound recordings to SoundExchange.  The proposed new rules would require that Reports of Use submitted by services relying on the statutory royalty contain "full census reporting" of all songs played by any service.  Services would include all users of music who pay royalties due under Sections 112 or 114 of the Copyright Act – including Internet Radio, satellite radio, digital cable radio, digitally transmitted business establishment services, and radio-like services delivered by other digital means, including deliveries to cell phones. This reporting requirement would replace the current system, about which we wrote here, that only requires reporting for two weeks each quarter.  Under the new rules, an Internet radio service would have to submit the name of every song that they play to SoundExchange, along with information as to how many times that song played, the name of the featured artist, and either the recording’s ISRC code or both the album title and label.  Comments on this proposal are due by January 29.

Currently, the quarterly reports are filed electronically using an ASCII format and using either an Excel or Quattro Pro spreadsheet template as created by SoundExchange.  The Board asks for comments as to whether there are technological impediments to providing this information in this manner, and if other changes should be made to more easily facilitate the delivery of this information.  The Copyright Royalty Judges who make up the CRB expressed their opinion that the full census reporting is preferable to the limited information now provided, so that SoundExchange does not need to rely on estimates or projections to insure that all artists are fairly compensated when their works are played.  Using census reporting, all artists can be paid based on how often their songs are actually played.Continue Reading Copyright Royalty Board Proposes Full “Census” Reporting for Services Paying Royalties to SoundExchange

Congress recently passed legislation authorizing an analog "nightlight" or lifeline for those left behind after the digital transition.  This law was designed to allow certain full-power stations to remain operating in analog on February 18, with information about the digital transition for those people who otherwise managed to miss the information about that deadline.  This past week, while Santa was making his deliveries, the FCC released its proposals for implementing this authorization.  The Notice of Proposed Rulemaking sets out a list of stations that can take advantage of the authorization automatically, and the process for other stations being able to operate such a service.  In addition, the Notice proposes restrictions on the nightlight operation, the length of service, and miscellaneous other matters.  Given the tight timeframe before implementation on the end date of the digital transition, comments on the FCC’s proposals will be due 5 days after they are published in the Federal Register, and replies 3 days later.

The proposals include the following:

  • Analog operation would be permitted by authorized stations for only 30 days after the end of the digital transition, through the end of the day on March 19, 2009.
  • The nightlight service can only include information about local emergencies, and information about how viewers can get digital television services.  The information about how to get digital services should be in English and Spanish, and accessible to those with disabilities.  No advertising will be permitted.
  • The Commission attached to its Notice of Proposed Rulemaking a list of eligible stations .  Such stations, if they are interested in participating, need to electronically file by February 10 a request for Special Temporary Authority to operate the nightlight .  No filing fee will be required.
  • Stations not listed may still participate by demonstrating how they will protect all digital operations, through lower power, terrain shielding, directional antennas or similar techniques.  Comments showing how they will participate should be filed in the comment period for the NPRM.
  • The nightlight service will not be entitled to mandatory cable carriage.

Continue Reading FCC Proposes Rules for Analog Nightlight – For Those Left Behind After the Digital Television Transition