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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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We have written much on the Copyright Royalty Board decision on Internet Radio Royalties, and have received many questions and comments on the decision.  To try to put all of the answers in one place, we have put together a comprehensive memo on the decision.  The entire memo can be found here. 

In the memo, we provide a background of the case, a summary of the decision, a discussion of what comes next, and answers to some commonly asked questions.  Those questions follow here, but for a full understanding of the case, we urge you to read the complete memo. 

 To whom does the decision apply? The Board’s decision covers only non-interactive webcasters operating pursuant to the statutory license. Essentially, a webcaster covered by this decision is one that operates like a radio station – where no listener can dictate which artists or songs he or she will hear (some limited degree of consumer influence is permitted, but a webcaster must comply with the restrictions set out in the Copyright statute). These restrictions forbid prior notification to the listeners of when any specific song will play, and restrict the number of songs by a specific artist that can be played. For more information on these restrictions, see our memo on Internet Radio – The Basics of Music Royalty Obligations.

Does the decision cover broadcasters who stream on the Internet? Yes, the decision does cover the Internet transmissions of the over-the-air content of broadcast stations. Continue Reading Copyright Royalty Board Decision on Music Royalties – Clarifying the Confusion

The Presidential election in 2008 seemingly has a record number of candidates who will apparently have a record amount of money to spend on political advertising.  One would think that broadcasters would be celebrating their likely share of this spending.  While broadcasters will no doubt be the recipients of much political spending, the timing of this election’s early primaries may also present problems – as political advertising will be running during the broadcasters’ busiest advertising season – the period between Thanksgiving and Christmas.  Many of the largest states are now planning a primary in early February, meaning that the lowest unit rate window for political advertising, which begins 45 days before a primary or caucus, will become effective the weekend before Christmas.  And for those states with earlier contests (Iowa, New Hampshire, Nevada and South Carolina), the lowest unit rate period will be in effect for much of December.

Of potentially more concern will be the fact that candidates will be entitled to reasonable access to the airwaves even before the lowest unit rate periods begin.  Under FCC rules and policies, once a candidate is legally qualified to be on a ballot in a state (or for President, once he or she is qualified in ten states, the candidate is qualified in every state), the candidate is entitled to reasonable access to all "classes and dayparts" of advertising time offered by a station.  While the determination of how much time is reasonable is in the discretion of a station, that discretion is not absolute.  Stations must provide at least some time in all dayparts to all qualified candidates for President who request such time, so this may put a strain on commercial inventory in the pre-Christmas period in many states with hotly contested Presidential primaries or caucuses.Continue Reading Early Presidential Primaries May Present Christmas Season Problems for Broadcasters

Last Monday, briefs were filed by the parties addressing the motions seeking rehearing of the Copyright Royalty Board’s decision to dramatically raise the royalty rates paid for the use of a sound recording on an Internet radio station.  In its briefs opposing each of the webcasters’ rehearing motions, SoundExchange took a very aggressive position challenging the very right of the webcasters to raise their rehearing points.  Following the filing, SoundExchange issued another press release, quoting its President John Simson, "just because you don’ like the outcome of a fairly played game doesn’t mean that you should ask the referee to order the game to be replayed."  In fact, what the webcasters are really doing is asking for an instant replay review of an alleged winning touchdown.  Webcasters are arguing that the "officials" were mistaken in their initial determination, including arguments that the principal basis of the CRB decision, reliance on a SoundExchange expert witness who derived a model for determining what the royalties for noninteractive Internet radio should be based on what parties pay for music use in the interactive marketplace, was a fundamentally flawed model contradicted by one of SoundExchange’s own expert witnesses in the satellite radio royalty proceeding which is currently underway. 

SoundExchange spent much of its briefs challenging the right of the webcasters to raise their arguments – claiming that the webcasters should have raised their arguments at an earlier stage of the proceeding, that the webcasters’ arguments lacked supporting evidence, and even suggesting that the Broadcasters had breached the "protective order" in the satellite radio proceeding against the use of confidential material when the Broadcasters offered the evidence of the conflicting expert in the satellite radio proceeding.  Each of the webcasting parties amplified their arguments about various aspects of the decision – small webcasters suggesting that the Board should have recognized an "opt-in" category of webcasters who would pay royalties based on a percentage of their total revenue (avoiding many of the issues that the Board found with trying to compute a percentage of revenue for an entity that had multiple business lines), all webcasters challenging the $500 minimum fee per channel, and each arguing that there needed to be an aggregate tuning hour metric on which to compute royalties.  And, as set forth above, most interestingly, there was a fundamental issue raised by the Broadcasters, who discovered that a witness presented by SoundExchange in the CRB proceeding involving the royalties for satellite radio contradicted the premises of the SoundExchange expert in this proceeding on which the Board placed its greatest reliance in reaching its decision.

Continue Reading Briefs Filed With Copyright Royalty Board on Internet Radio Royalty Rehearing – SoundExchange Cries Foul

The FCC yesterday released a Public Notice announcing that the new Form 340 – Application for Construction Permit for Noncommercial Station – has been approved and is now effective.  This is the revised form that allows noncommercial FM stations operating in the educational reserved band to file for city of license changes as minor changes, rather…

The FCC yesterday approved the sale of the stock of Univision Communications to a consortium of private equity companies.  In order to approve the deal, the FCC agreed to a $24 million dollar payment to the US Treasury by Univision as part of a consent decree for alleged violations of the children’s television rules.  The consent decree, attached to the FCC decision on the sale, while providing for one of the largest fines ever paid to the FCC, provides little guidance to broadcasters on what constitutes educational and informational programming directed to children, the source of the violation found by the FCC. But the separate Statement of Commissioner Copps raises a new issue – one he looks for the FCC to study and report on – the effect of private equity and debt on the ability of broadcasters to operate in the public interest. 

The Copps opinion suggests that the debt incurred in connection with acquisitions by private equity companies may impair the ability of broadcast stations to operate in the public interest, as money needed for operations is instead funneled into debt repayment.  Of course, private equity firms are not the first owners of broadcast companies to incur debt, nor is there any evidence that I have seen that private equity companies which own broadcast companies have proportionally more debt than other broadcast owners.  What would the FCC hope to accomplish through such an investigation?  I can’t see the FCC evaluating each transaction that comes before it to determine if the proposed debt structure would be too much of a burden on the operations of a station.  Nor could I foresee the FCC putting broadcast ownership restrictions on certain classes of otherwise qualified potential broadcast owners.Continue Reading Follow the Money and Find the Public Interest?