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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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Update (January 24, 2024) – The Copyright Royalty Board issued a Federal Register Notice correcting the deadline for Petitions to Participate in the WEB VI proceeding – making clear that the deadline is February 5, 2024, not February 6 as previously reported. This article has been updated with the corrected deadline. For more information, see our article here).

The Copyright Royalty Board on Friday published in the Federal Register a call for interested parties to file Petitions to Participate in the proceeding to set the royalty rates to be paid by webcasters (including broadcasters who simulcast their programming through internet-delivered channels) in the period 2026-2030.  These royalties are paid by webcasters to SoundExchange for the noninteractive streaming of sound recordings.  The CRB is required to review these rates every five years.  These proceedings are lengthy and include extensive discovery and a trial-like hearing to determine what royalty a “willing buyer and a willing seller” would agree to in a marketplace transaction.  Because of the complexity of the process, the CRB starts the proceeding early in the year before the year in which the current royalty rate expires.  So, as the current rates expire at the end of 2025, parties will need to sign up to participate in the proceeding to determine 2026-2030 rates by February 5, 2024 by filing a Petition to Participate.  The Petition must describe the party’s interest in the proceeding and be accompanied by a filing fee of $150.  The Federal Register notice provides other procedural details for filing these Petitions.

Once the Petitions to Participate are filed, the CRB will set out the rules and procedures to be followed in the proceeding.  Initially, there is a 90 day period in which the parties can try to settle the case.  While parties can settle at any time (subject to approval of the terms by the CRB), this initial 90-day period occurs before any litigation begins and offers parties the opportunity to avoid much of the cost of litigation.  Once that period ends without a settlement, the litigation begins.  Initial stages of the litigation (including the identification of witnesses, submission of the rate proposals and the evidence supporting those proposals, and the initial discovery) will likely all take place in 2024, with the hearing itself conducted in 2025, followed by final briefs summarizing the evidence and arguing about the conclusions to be drawn from that evidence. There are usually oral arguments held after the briefs are submitted.  At that point, the three Copyright Royalty Judges will consider the evidence and the arguments and release their decisions late in 2025, so that parties know the new rates as of January 1, 2026. While there may be appeals of the decision that are argued well beyond the effective date of the new rates, the rates become effective while those appeals are pending.

Continue Reading Copyright Royalty Board Starts WEB VI Proceeding to Set Webcasting Royalties Paid to SoundExchange for 2026-2030: Petitions to Participate Due February 5

Expecting quiet weeks, we took the holidays off from providing our weekly summary of regulatory actions of interest to broadcasters.  But, during that period, there actually were many regulatory developments.  Here are some of those developments, with links to where you can go to find more information as to how these actions may affect your…

Earlier this week, we covered the broadcast issues that the FCC may be facing in 2024.  But the FCC is just one of the many branches of government that regulates the activities of broadcasters.  There are numerous federal agencies, the Courts, Congress, and even state legislatures that all are active in adopting rules, making policies, or issuing decisions that can affect the business of broadcasting and the broader media industry.  What are some of the issues we can expect to see addressed in 2024 by these authorities?

For radio, there are music rights issues galore that will be considered.  Early in the year, the Copyright Royalty Board will be initiating the proceeding to set streaming royalties for webcasters (including broadcasters who stream their programming on the Internet) for 2026-2030.  These proceedings, which occur every five years, are lengthy and include extensive discovery and a trial-like hearing to determine what royalty a “willing buyer and a willing seller” would arrive at for the noninteractive use of sound recordings transmitted through internet-based platforms.  Because of the complexity of the process, the CRB starts the proceeding early in the year before the year in which the current royalty rate expires.  So, as the current rates expire at the end of 2025, parties will need to sign up to participate in the proceeding to determine 2026-2030 rates early this year, even though the proceeding is unlikely to be resolved until late 2025 (unless there is an earlier settlement)(the CRB Notice asking for petitions to participate in the proceeding is expected to be published in the Federal Register tomorrow).  Initial stages of the litigation (including the identification of witnesses, the rate proposals, the evidence supporting those proposals, and the initial discovery) will likely take place this year. 

Continue Reading Gazing into the Crystal Ball at Legal and Policy Issues for Broadcasters in 2024 – Part II: What to Expect from the Courts and Agencies Other than the FCC

A new year – and our annual opportunity to pull out the crystal ball and look at the legal issues that will be facing broadcasters in the new year.  We’ve already published our 2024 Broadcasters Calendar and, as we noted before the holidays, it highlights the many lowest unit rate windows for the November election.  With a heavily contested election almost upon us, there may be calls on the FCC to modify regulations affecting political broadcasting or for more monitoring of broadcasters’ online public files, which caused so many issues in recent years (see for instance, our posts here and here).  Even if there are no FCC proceedings that deal with the rules for political broadcasting, the election will be watched by all broadcasters, and all Americans, to see the direction in which the country will head for the next four years.  With that election looming, 2024 may be a very active year in regulation as there traditionally is significant post-election turnover at the FCC no matter which party wins.  With that turnover in mind, we may see Commissioners looking to cement their regulatory legacies in the coming year.

Last year, we noted the number of pending issues at the FCC that had not been resolved because of the partisan deadlock on the Commission while the nomination of Gigi Sohn to fill the one vacant seat was stalled in the Senate.  That deadlock was finally overcome by her withdrawal from consideration and the subsequent nomination and confirmation of Anna Gomez, who was sworn in as a Commissioner in late September.  Since then, the FCC has acted on several long-pending priorities, including the adoption of open internet rules and, for broadcasters, last week’s adoption of an Order resolving the 2018 Quadrennial Review of the local broadcast ownership rules (see our summary of that action here). 

Continue Reading Gazing into the Crystal Ball at Legal and Policy Issues for Broadcasters in 2024 – Part I: What to Expect From the FCC

While we normally publish a weekly summary of regulatory actions relevant to broadcasters, the weekend before last we said that we would take the holiday weeks off – and return with a summary on January 7 of all that occurred over the break – unless there was news in the interim.  Well, there has been…

The new year brings a series of noteworthy regulatory deadlines for broadcasters in January.  As always, broadcasters should consult with their own attorneys and advisors to make sure that they are aware of and ready to act on any other deadlines that are not listed below.

Congress still has not passed budget bills for the fiscal year that started on October 1, and some of the “continuing resolutions” to fund the federal government at last year’s levels run out on January 19, with the FCC’s budget set to expire on February 2.  Thus, at least a partial government shutdown may well occur if Congress fails to act this month.  As we previously discussed here and here, if a government shutdown does occur, some government agencies may have to cease all but critical functions if they do not have any residual funds to continue operations.  If no funding is approved, the FCC will announce how any shutdown will affect it, including whether it has any residual funds to keep operating beyond any general funding deadline.  Watch Congressional actions and any FCC announcements to see how any deadlines that apply to your station will be affected by the funding deadline.

With those concerns in mind, let’s look at some of the specific dates and deadlines for broadcasters in January.  Beginning January 1, television stations affiliated with the Top 4 Networks and operating in Nielsen Designated Market Areas (DMAs) 91 through 100 will be added to the list of markets that are subject to the FCC’s audio description rules.  The DMAs where the rules become effective on January 1 are:  El Paso (Las Cruces), Paducah-Cape Girardeau-Harrisburg, Cedar Rapids-Waterloo-Iowa City & Dubuque, Burlington-Plattsburgh, Baton Rouge, Jackson, MS, Fort-Smith-Fayetteville-Springdale-Rogers, Boise, South Bend-Elkhart, and Myrtle Beach-Florence – in addition to Chattanooga and Charleston, SC, which were previously in DMAs 92 and 91, respectively, but are now in DMAs 84 and 88.  We reported here on the FCC’s recent reminder that these new markets will be subject to the audio description requirements as of January 1.  TV stations associated with the Top 4 networks in these markets are required to provide audio description for 50 hours of programming per calendar quarter, either during prime time or in children’s programming, and 37.5 additional hours of audio description per calendar quarter between 6 a.m. and 11:59 p.m. local time, on each programming stream that carries one of the top four commercial television broadcast networks (ABC, CBS, FOX and NBC). 

Continue Reading January Regulatory Dates for Broadcasters – Expansion of Audio Description Requirements, Music Royalty Cost of Living Increases, Quarterly Issues/Programs Lists, Childrens Television Programming Reporting, Political Windows, and More
  • The FCC adopted a Report and Order establishing rules implementing the January 2023 Low Power Protection Act, which provides
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Right now, most broadcasting stations and other media companies are focused on selling political advertising for the primaries for the 2024 elections and subsequent November election that will elect the President, the US Congress, and so many other officer holders in DC and elsewhere in the country.  But broadcasters need to be aware of other elections that can also trigger political obligations – including lowest unit charges.  I was reminded of that today when I saw the FEC’s notice of the dates for the special election to fill the Congressional seat recently opened by the expulsion of George Santos from Congress (the FEC notice setting out the dates for candidates to meet their FEC filing obligations). That special election, on February 13, 2024, triggers all of the FCC’s political obligations for stations serving this Long Island Congressional District.  Once there are legally qualified candidates, equal opportunities, reasonable access, and political file obligations will arise.  Lowest Unit Charges will also be required for all candidates in the race to fill this seat, as we are already in the 60-day window before the February 13 special election.  The Democratic Party has selected their nominee and, according to the state’s notice about this election, other registered political parties have until tomorrow (December 15) to provide their nominations, and independent candidates can file their nominating petitions through December 18. This means that the candidates entitled to rights under FCC rules will be known in a matter of days. 

For Federal elections like this special election, broadcast stations serving the district involved need to offer candidates the full panoply of candidate rights – including reasonable access, lowest unit rates, and equal opportunities (as well as the public file obligations that go along with any advertising associated with an election or the coverage of any issue of public importance). Stations also need to be alert for other elections that take place at odd times.  Some states have municipal or school board elections at times other than the standard November dates that most people think about.   As we have written before, most of the political rules apply to any election for public office that occur at these odd times, including these state and local electoral races as well as to the few Federal elections that take place to fill open Congressional seats.

Continue Reading Special Election Dates Announced to Fill George Santos’ Congressional Seat – Remember Special Elections and State and Local Elections Trigger Political Obligations Too

The FCC yesterday released a Public Notice extending for two days the now-open window for the filing of applications for new LPFM stations – applicants now have until 12:00 PM Eastern Time on December 15, 2023 to file their applications.  See our articles here, here, and here for more information on the LPFM…