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

At yesterday’s NAB Leadership Conference in Washington, FCC Commissioner Robert McDowell stated that he thought that broadcasters would be pleased with the outcome of the Commission’s action on the NAB proposal to allow AM stations to use FM translators to fill in holes in their coverage, or to provide nighttime coverage for daytime stations.  The Commissioner said that the proposal was working its way through the FCC.  While he would not commit to a date when action could be expected, he thought something should come out soon.  In the interim, the FCC has granted at least one AM Station Temporary Authority to use an FM translator to rebroadcast its signal – apparently as a result of a Congressional request. 

We wrote, here, about the NAB proposal when it was first advanced back in August.  Broadcasters then had hopes for quick FCC action.  While it is good news that the FCC seems to be moving on the NAB proposal, broadcasters should not think that relief for all AM stations is coming soon.  Instead, the FCC will simply release a Notice of Proposed Rulemaking, opening a formal comment window in which parties can state their support for the proposal.  There may be others who oppose the proposal – particularly the supporters of Low Power FM stations.  Given that the FCC already has an open proceeding dealing with the relationship between FM translators and LPFM stations, the proposal to give AM operators FM translators will have to be linked in some way to this other proceeding.  And, were the FCC to decide that LPFM stations have a priority over FM translators, any victory for AM stations might be hollow, as LPFM stations could preclude the operation of many FM translators.Continue Reading McDowell: Broadcasters Will Likely Be Pleased by FCC Action on FM Translators for AM Stations – But One AM Doesn’t Wait

As we’ve written before, when Congress passed a new law extending Daylight Savings Time, AM stations that adjust power levels at sunrise and sunset would be affected.  Today, the FCC took action to adjust to those differences by announcing changes in Pre-Sunrise (PSRA) and Post-Sunset (PSSA) authority for all AM stations that have such authority.  Effective March 11…

At the NAB Broadcast Leadership Conference in Washington today, Congressman Ed Markey, Chairman of the House of Representatives Telecommunications and Internet Subcommittee of the Energy and Commerce Committee, announced that the subcommittee would hold hearings on the state of radio.  These hearings would examine not only over-the-air radio, but also Internet radio…

$24 Million is enough to get anyone’s attention – and a fine in that amount should wake up all television broadcasters who have grown complacent about the FCC’s enforcement of its regulations requiring television stations to broadcast three hours of weekly educational and informational programming directed to children.  According to a report in the New York Times, the FCC is expected to announce that it has agreed to a settlement with Univision that would result in a payment of that amount as a way of resolving complaints against the network’s stations about whether a claimed educational program qualified as educational and informational programming directed to children.   The settlement agreeing to pay this fine will also clear the way for the grant of the application seeking approval of the pending sale of Univision.  According to the Times report, this fine is many time higher than the highest fine ever issued by the FCC – a $9 million fine against Quest.  Certainly it dwarfs any fine for violation of children’s television rules.  The highest fine that I can recall is one that was in excess of $200,000 for several hundred violations of the FCC rules limiting the amount of advertising permitted during programming directed to children.

While many complaints have been filed in the past against television stations alleging that programs claimed as educational and informational were not sufficiently serious to warrant that label, few stations have been fined for violations of the rule, at least partially because the FCC’s standards are ambiguous.  Programming need not be strictly educational to qualify, but instead must contribute to the educational and informational needs of children, "including the child’s intellectual/cognitive or social/emotional needs."  A child is defined as anyone age 16 and under.  As programming that meets the social and emotional needs of a child of 16 may be hard to differentiate from programming directed to adults, the lines are not easy to draw.

The Univision programming at issue involved a telenovella – in essence a Spanish soap opera – about 11 year old twin sisters separated at birth who find each other and swap identities.  According to the Times report, the FCC was not convinced that the complex plot with intertwined stories provided by this program could be followed by children.  I find this reasoning hard to believe as a parent of a teenager who has had no problem following the plot of Lost and similar television programs with complex intertwined subplots – most often explaining to me what is going on.  In fact, last year there was even a book, Everything Bad is Good For You,  which argued that the complex plots now common in television programs and video games helped develop children’s cognitive abilities.  Look here for a link to many of the discussions of this book.

The Commission also apparently looked to the fact that much of the commercial matter broadcast in the program was adult-directed, undercutting the claim that the children’s educational and informational was a "significant purpose" of the program, as required by the rules.Continue Reading A $24 Million Lesson on Children’s Educational Programming

While the FCC Commissioners are in Harrisburg, Pennsylvania today holding the third of the Commission’s promised six field hearings on multiple ownership, an interesting story was published yesterday, announcing an unofficial "town meeting" of consolidation critics in Columbus, Ohio on March 7.  While these unofficial meetings have become a staple of the broadcast landscape, they traditionally…

By now, everyone knows that XM and Sirius have announced plans to merge into a single nationwide satellite radio service provider.  This plan is, of course, subject to approval of the FCC.  The NAB has announced plans to oppose the merger, and Congress today scheduled hearings on the matter, to be held next week.  The obvious issues to be considered by the Department of Justice and the FCC will be whether the merger will be anti-competitive and whether it will serve the public interest.  But there are numerous other legal issues, possibly affecting other FCC proceedings, that may well come out of the consideration of this merger.

For instance, the merger raises the question of whether satellite radio is a unique market that should not be allowed to consolidate into a monopoly, or whether there is a broader "market" for audio programming encompassing not only satellite radio, but also traditional over-the-air radio, iPods, Internet radio, and other forms of audio entertainment.  While the opponents of the merger may argue that satellite radio is a unique market, such a finding may affect the broadcast multiple ownership proceeding, where some broadcasters are advancing arguments similar to the satellite companies in hopes that the FCC will loosen multiple ownership restrictions. 

Another issue that seemingly will be raised by the merger is how important a la carte programming is to FCC Chairman Martin.  The Chairman has been pushing both satellite and cable television companies to allow consumers to purchase only the channels that they want rather than whole packages of channels.  He has argued that consumers could save money by buying only the channels that they want, and consumers could also avoid programing that they don’t want (like adult oriented content).  Service providers have countered that forcing the unbundling of program tiers will make it economically unfeasible to offer many of the more niche program channels.  Published reports indicate that part of the merger proposal to be advanced by the satellite companies may include a proposal for a la carte pricing.  Thus, this case may show how important the Chairman really believes such offerings are – and whether that offering may help tilt the public interest considerations in the proceeding.Continue Reading XM and Sirius – The Issues Beyond the Issues

Today’s New York Times carried an article announcing that the Mitt Romney campaign is planning to run advertising spots for his Presidential campaign in five states – at least 10 months before the first contest for delegates to the Republican presidential nominating convention.  With this first purchase of political time in what promises to be a very…

Two interesting stories in major national newspapers highlight the attention that the content of broadcast programming is receiving from regulators – both at the FCC and in Congress.  One story, in the Washington Post, reveals a draft FCC report suggesting that the FCC could regulate violent programming in the same way that it regulates indecent programming, if Congress gives the FCC statutory authority to do so.  In another story, appearing in the Wall Street Journal, critics suggest restrictions on when ads for Viagra and other similar medications could be run on television.  That story also mentions pending legislation to restrict all consumer-directed advertising dealing with prescription drugs. 

Obviously, these proposals for regulation would strike hard at broadcasters – particularly television broadcasters.  Pharmaceutical advertising has become big business for TV companies.  Sure, we’ve probably all felt uncomfortable at times when a Viagra ad runs in a program we are watching with family members.  But should the government pass laws restricting the the advertising of legal products?  Should we shield viewers from information about these products?  In other contexts, the Supreme Court has struck down restrictions on liquor and legal gambling ads.  How would restrictions on legal drugs fair?

And we all know how well the FCC has done in setting out the limits on indecent programming.  Where would lines be drawn on violent programming?  How does one even define violent programming?  For instance, many of the most popular programs on television are medical programs (e.g. Grey’s Anatomy, ER, House).   All feature very detailed and sometimes disturbing visuals of medical procedures – though rarely are there detailed depictions of what most people would characterize as "violent" actions – shootings, stabbings, etc.  Would these medical shows fall under any restrictions?  And how would rules deal with broadcasts such as "Saving Private Ryan," which has already received a dispensation from the FCC for its indecent content which, in other programs, would have resulted in FCC fines.  Would its violent content also receive such a pass?

Continue Reading Violence and Viagra – More Content Regulation on the Way?

Yesterday’s New York Times featured an article on radio’s increasing use of Internet video to promote their on-air programs, to extend their brand, and to increase the connection with their listeners.  This is another manifestation of the theme we wrote about earlier this week in connection with this year’s RAB Convention, where the emphasis…