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

The Internet Radio Equality Act was introduced in the House of Representatives today, proposing several actions – most significantly the nullification of the decision of the Copyright Royalty Board raising royalty rates for the use of sound recordings by Internet radio stations.  Our summary of the decision and its aftermath can be found here.  In addition to nullifying the decision of the Board, the Act does the following:

  1. Changes the "willing buyer, willing seller" standard used to determine royalty rates for Internet radio to the "801(b)" standard – named after section 801(b) of the Copyright Act, which considers a variety of factors in determining royalties – factors including possible disruption to the industry of royalties, the maximization of the distribution of the copyrighted work to the public, the relative value of the contributions of the copyright holder and the service, and the determination of a fair rate of return to the copyright holder.  The 801(b) standard is the used for determining rates for satellite radio and digital cable radio.
  2. Establishes an interim royalty rate for 2006-2010 of  (at the choice of the webcaster) either .33 cents per Aggregate Tuning Hour of listening or 7.5% of the service’s revenues directly related to Internet radio
  3. For noncommercial radio, places the royalty determination into Section 118 of the Copyright Act, which is where other noncommercial royalties (including the royalty for ASCAP and BMI for over-the-air use of musical compositions) are found, using the standards set forth in that section; and
  4. Establishes a royalty for 2006-2010 for noncommercial entites at 150% of the fee that the service paid for the sound recording royalty during 2004.
  5. Requires three studies to be conducted after the initiation of the next royalty proceeding, that will be submitted to the Copyright Royalty Board for their consideration in that case.  One study, by the National Telecommunications and Information Administration ("NTIA"), would study the economic impact of royalties on the competitiveness of the Internet radio marketplace.  A second, to be conducted by the FCC, would study the impact of royalties on local programming, diversity of programming (including foreign language programming), and the competitive barriers to entry into the Internet radio market.  A final study, by the Corporation for Public Broadcasting, would provide information to the CRB on the impact of the royalties on public radio operators. 

Continue Reading Internet Radio Equality Act Introduced to Nullify Copyright Royalty Board Decision

As we’ve discussed before, here, the FCC has been reviewing their power to regulate violent programming on broadcast stations.  Despite the apparent constitutional and practical issues involved in such restrictions (e.g. are Roadrunner cartoons covered?), published reports indicate that a majority of the FCC Commissioners will issue a report asking Congress to give the FCC authority…

The Copyright Office last week released a wide-ranging Notice of Inquiry, asking many questions about the statutory licenses that allow cable and satellite companies to retransmit broadcast television signals without getting the specific approval of all the copyright holders who provide programming to the television stations. The notice was released so that the Copyright Office can prepare a report to Congress, due June of 2008, in which it will present its views as to whether the various statutory licenses still perform a necessary function, and whether any reforms of the current licenses are necessary. To complete its report, the Notice asks many questions about how these licenses currently work, whether the licenses function efficiently, and whether they should be retained, modified or abolished in favor of marketplace negotiations. The Notice even asks whether the existing statutory licenses should be expanded to take into account the different ways video programming is now delivered to the consumer, including various Internet and mobile delivery systems. Thus, virtually anyone involved in the video programming world may want to be part of this proceeding. Comments are due July 2 and reply comments are due September 13.

The cable and satellite statutory licenses were adopted by Congress to allow these multi-channel video systems to retransmit broadcast  signals. Without these licenses, the individual owners of copyrighted material – including syndicated,  network, sports, and music programming — would have to be consulted to secure necessary copyright approval before the television signal could be retransmitted. As the multi-channel video providers would, in many cases, not even know who held all these rights, they instead pay a statutory license which is collected, pooled, and then distributed to the various rights holders in proportions agreed to by those copyright holders or, in the absence of agreement, set by the Copyright Royalty Board.Continue Reading Copyright Office Begins Inquiry to Reexamine Cable and Satellite Statutory Licenses – and Asks if Statutory Licenses are Appropriate for Internet Video

The FCC’s agenda for its meeting to be held on Wednesday, April 25, contains four separate items related to the digital television transition.  The issue receiving the most press coverage is the proposal advanced by Chairman Martin that would require the cable carriage of television signals in both analog and digital formats until all cable…

Last week, the FCC issued a Public Notice asking for information as to the compliance of television broadcasters with their obligations to provide programming that addresses the educational and informational needs of children.  While the Notice indicates that it is a follow-up to the 2004 Order addressing the children’s broadcasting obligations of digital television broadcasters, the…

On Friday, the FCC issued a Notice of Proposed Rulemaking to establish the fees and collection procedures for the 2007 regulatory fees – the amount that entities regulated by the FCC pay for the privilege of being regulated.  These fees reimburse the US Treasury for the cost of the regulation.  While no one likes to pay these fees, the total amount to be collected by the FCC is actually slightly less than last year, meaning that the proposed regulatory fees for broadcasters are not proposed to increase from the fees paid last year. The proposed fees for broadcasters for 2007, and the fees that were paid in 2006, are found in the attachment to the FCC’s Notice.  Fees will be paid at a date to be established later, sometime in August or September.

For radio stations, the fees are based on the Class of station, and the population served by that station.  These fees range from $400 for a Class C AM station serving less than 25,000 people, to $9125 for a Class B or C2 or higher FM station serving over 3,000,000 people.  For AM stations, population is computed based on the 5 mv/m service area.  For FM stations, it is based on the 70 dbu contour.

TV stations will pay between $64,300 for a VHF station in the Top 10 markets, to $1750 for UHF stations in markets below 100.  LPTV stations and TV translators will pay $450.  For each broadcast auxiliary license, a broadcaster will pay $10.Continue Reading FCC Regulatory Fees for 2007 Proposed – No Inflation Here

The Copyright Royalty Board today denied the Motions for Rehearing of their decision raising the royalty rate for the use of sound recordings on Internet radio stations for 2006-2010.  The Board found that the Rehearing requests did not demonstrate that there was any manifest error in the initial decision, and did not introduce any new evidence that could not have been introduced in the original hearings.  Finding that these standards for rehearing were not met, the motions were all denied.  The Board decision was brief, not addressing in any specifics the issues raised in the rehearing motions. 

The Board did, however, decide to issue two clarifications to its decision.  It decided that, for administrative convenience, they would permit royalties for a transition period to be paid on an aggregate tuning hour basis for 2006 and 2007.  For 2006, the ATH rate would be $.0123 per hour for Internet-only webcasters, $.0092 per hour for broadcasters who stream their over-the-air music programming, and $.0011 for broadcast stations which use only incidental music (e.g. news/talk and sports stations).  For 2007, those rates would rise to $.0169 for Internet-only webcasters, $.0127 for the simulcast of a terrestrial broadcast station’s signal for a music station, and $.0014 for the simulcast of a talk radio station.  These numbers appear to assume 11.5 songs per hour for broadcasters, and 15.4 songs per hour for Internet-only stations.Continue Reading Copyright Royalty Board Denies Rehearing Motions – Next Stop, Court of Appeals

The FCC today issued a Public Notice announcing that it has approved four consent decrees settling its investigation into possible payola violations by several large radio broadcasters.  A copy of the public notice summarizing the action is available here, and copies of the full consent decrees can be found on www.fcc.gov.   

CBS Radio, Citadel Broadcasting…