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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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In several recent speeches and press releases, FCC Commissioner Jonathan Adelstein has challenged the FCC to do more in the regulation of children’s programming.  In a recent Press Release, the Commissioner outlined proposals including the following:

  • Improve the V-Chip and other program blocking technologies
  • Improve ratings information for television programming – including potentially having third parties review programming for its suitability to children as opposed to the television programmers themselves doing the ratings
  • In the context of a proceeding on Embedded Advertising that has been rumored for quite some time, look at how such advertising is used in children’s programming
  • Restrict interactive advertising directed at children.
  • Convene a summit to explore these issues

In addition to these proposal, the Commissioner gave a recent speech to the Media Institute in which he expanded on these ideas, and also lengthened this agenda to include further Commission action to define and restrict violent programming.  He also expressed his regrets over the recent decision overturning the FCC’s fines for fleeting expletives and urged that action be taken to overturn this decision (see our post here on the FCC’s appeal of that decision).  And in yet another recent speech, he emphasized the proceeding on Interactive advertising in children’s programming, remarking on how the Commission has a pending proceeding that has been pending and unresolved for several years.  He cited the Commission’s tentative conclusion to ban such ads, as broadcasters form a "portal" for children’s entrance to the Internet.  While the Commissioner expressed that the FCC had little jurisdiction to do much on the Internet itself (but see our recent post as asking whether the FCC may soon get more power over the Internet), he felt that restrictions on the links to the Internet from television programs would be useful in protecting children. Continue Reading The Regulation of TV Programming for Children – Embedded and Interactive Advertising, Violence, and Ratings

On June 30, 2008, David Oxenford attended the Montana Broadcasters Association Annual Convention in Whitefish, Montana, and presented a seminar titled: Staying Out Of Trouble in Washington – FCC Fines, Streaming Fees and Whatever Else Keeps You Up At Night.  During the seminar, David discussed topics including the FCC’s localism proceeding, the DTV…

A recent Washington Post article highlights a bill that was recently introduced in Congress suggesting that the FCC bring back their rules for audio descriptions of video programming – rules which were thrown out by the Courts several years ago as being beyond the scope of the Commission’s authority without explicit Congressional authorization.  But not only does this bill propose to give that missing Congressional approval to the FCC to re-introduce video description requirements for broadcast television, but it would authorize the FCC to introduce these rules, and closed-captioning requirements, on all video screens, including MP3 players, wireless devices and other video devices getting their programming through the Internet or other digital technologies.  With this bill, and various other proposals that have surfaced in recent months, it seems more and more likely that, as the Internet becomes even more important in the provision of broadcast-like programming in the future, the FCC may be called on by Congress to impose broadcast-like restrictions on that programming.

The full text of the recent bill, introduced by Congressman Markey, Chair of the House Subcommittee on Telecommunications and the Internet, can be found here.  A summary of the bill is also available on Congressman Markey’s website.  The bill deals first with the accessibility of telephones and other communications devices, before setting out the provisions dealing with the captioning and video description requirements for broadcast and Internet video devices.  The bill first asks the FCC to study and report to Congress on the issues with captioning and video description on video devices, and then asks the FCC to adopt rules governing these matters, making video programming placed on the Internet that was either broadcast on a television stations or which is "comparable" to broadcast programming to be subject to these rules.  The idea is to make all TV-like programming subject to the rules, no matter what device it is viewed on.  Presumably, if adopted, the law would allow the FCC to make exemptions for certain types of programming (just as it currently allows exemptions from the current closed captioning requirements for small entities that have insufficient resources to caption a program).  The bill also requires that the FCC make sure that program guides and emergency information are available to those with hearing or visual difficulties, and that the navigation devices on video receivers can  be worked by those with disabilities.  So the FCC would have much to do to comply with this law, if adopted, and all within an 18 month period.Continue Reading Closed Captions and Video Description – The First Step to FCC Regulation of On-Line Media?

According to press reports, the Obama campaign is contemplating an ad schedule during the upcoming Summer Olympics.  This raises the question of what political broadcasting rules would apply to such a buy.  The Olympics run from August 8 through 24, before the lowest unit rate window for political candidates.  Thus, the Obama campaign is not entitled to lowest unit rates.  Instead, the candidate would only be entitled to a "comparable rate" to what a commercial advertiser in a similar situation would receive.  The campaign would not get frequency discounts that a big Olympics sponsor might get, unless the campaign bought in the same frequency, or other discounts that may apply to larger advertisers.  But the reasonable access provisions of the rules do apply once you have a legally qualified candidate, so it would seem as if at least some political ads would have to be placed in the Olympic programming.  In various political seminars held throughout the country, when this question has been raised, the FCC representatives have consistently said that, given the fact that the Olympics run for such a long period, at least some access must be made available to Federal candidates who are willing to pay the price that the airtime commands.

During the Super Bowl, the Obama campaign bought time, but it was purchased on local stations, not on the network itself (see our post here).  Affiliates of NBC would also have reasonable access issues of their own, were the Obama campaign to approach them directly, or were some local Federal candidate to request time on their stations.  As these stations have less inventory during the Olympics than does the network, the amount of time that would have to be provided would be less (and a candidate need not be given access to the exact time spot that they might request – not everyone can get the coveted spots in certain high profile event’s finals – as long as the access that they are given is reasonable under the circumstances).  But the access rules would apply -so at least some access would have to be given.  Note that in a few states with late primaries for Congress and the Senate, it is possible that there would be Federal candidates entitled to lowest unit rates, even during the Olympics.  State and local candidates, however, have no right of access, so stations would not have to sell them time in the Olympics.Continue Reading The Politcal Broadcasting Implications of An Olympic Ad Buy

On June 25 and June 30, David Oxenford presented a webinar to members of the Kansas Association of Broadcasters on the FCC’s political broadcasting rules and policies.  The webinars discussed topics including reasonable access, equal opportunities, lowest unit rates, and political advertising paperwork requirements.

A copy of the Davis Wright Tremaine Political …

The processing of the applications for new noncommercial FM stations marches on.  This week, the FCC released a list of groups of Mutually Exclusive applications (commonly known by those who regularly deal with the FCC as "MX groups"), i.e. applications that are linked together in that, because of interference concerns, not all can be granted. …

The FCC today issued an order extending the comment deadline in its Broadcast Diversity proceeding, extending the comment date a full month until July 30, with Reply Comments now due on August 29.  This important proceeding, about which we wrote here, will address many issues, including proposals to, among other things, repurpose television…