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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 the Washington Post last weekend, an op-ed article suggested that political candidates should voluntarily renounce the use of artificial intelligence in their campaigns.  The article seemed to be looking for candidates to take the actions that governments have largely thus far declined to mandate.  As we wrote back in July, despite calls from some for federal regulation of the use of AI-generated content in political ads, little movement in that direction has occurred. 

As we noted in July, a bill was introduced in both the Senate and the House of Representatives to require that there be disclaimers on all political ads using images or video generated by artificial intelligence, in order to disclose that they were artificially generated (see press release here), but there has been little action on that legislation.  The Federal Election Commission released a “Notice of Availability” in August (see our article here) asking for public comment on whether it should start a rulemaking to determine if the use of deepfakes and other synthetic media imitating a candidate violate FEC rules that forbid a candidate or committee from fraudulently misrepresenting that they are “speaking or writing or otherwise acting for or on behalf of any other candidate or political party or employee or agent thereof on a matter which is damaging to such other candidate or political party or employee or agent thereof.”  Comments were filed last month (available here), and include several (including those of the Republican National Committee) that question the authority of the FEC to adopt any rules in this area, both as a matter of statutory authority and under the First Amendment.  Such comments do not portend well for voluntary limits by candidates, nor for actions from an FEC that by law has 3 Republican and 3 Democratic commissioners.

Continue Reading Artificial Intelligence in Political Ads – Media Companies Beware

Monday was the 85th anniversary of the Mercury Players broadcast of the Orson Welles production of The War of the Worlds – a radio broadcast that seemingly scared many Americans into thinking that the country was under attack by Martians, that my home state of New Jersey had been overrun, and that the rest of the country would soon follow.  There has been much media coverage of that broadcast in the last week.  Ten years ago, on its 75th anniversary, we wrote an article that is worth revisiting now, with some edits to look at more recent activity that might bear on any repeat of The War of the Worlds controversy.

On the 75th anniversary of The War of the Worlds broadcast, PBS’s American Experience ran a great documentary about the production – talking about Orson Welles’ decision to delay an announcement that the program was a fictional production, not a real invasion, long after his network superiors ordered that announcement because the network phone lines were tied up with anxious callers.  Also tied up were the phone lines of emergency responders, and the broadcast supposedly caused people to leave their homes to flee the path of the oncoming invaders.  The PBS program talked about how the FCC opened an investigation into the program, and how Congress demanded that laws be passed to prevent such a broadcast from happening again.  Essentially, through some well-publicized apologies by Welles and others involved in the program, and a promise by the network to take steps to prevent it from happening again, the FCC closed its investigation, and no law was passed by Congress.  Even though the government did not act 75 years ago, it is interesting to look at how the FCC has changed since that time, and why such a broadcast would not fly under FCC rules today.

Continue Reading Orson Welles’ War of the Worlds Turns 85 – Could the Panic It Caused Happen Today? 

The FCC this week released its second EEO audit notice for 2023.  The FCC’s Public Notice, audit letter, and the list of stations selected for audit is available here.  Those stations, and the station employment units (commonly owned or controlled stations serving the same area sharing at least one employee) with which they are associated, must provide to the FCC (by uploading the information to their online public inspection file) their last two years of EEO Annual Public File reports, as well as backing data to show that the station in fact did everything that was required under the FCC rules.  The response to this audit is due to be uploaded to the public file of affected stations by December 14, 2023. The audit notice says that stations audited in 2021 or 2022, or whose license renewals were filed after October 1, 2021, can ask the FCC for further instructions, possibly exempting them from the audit because of the recent FCC review of their performance.  Perhaps for this reason, no stations in New England or the Mid-Atlantic (NY, NJ, PA, and DE) states, are included in the list of audited stations, as stations in these states were the last to file their license renewals.

With the release of this audit, and the recent $25,000 fine proposed for some Kansas radio stations that had not fully met their EEO obligations (see our article here), it is important to review your EEO compliance even if your stations are not subject to this audit.  The FCC has promised to randomly audit approximately 5% of all broadcast stations each year. As the response (and the audit letter itself) must be uploaded to the public file, it can be reviewed not only by the FCC, but also by anyone else with an internet connection anywhere, at any time.  The recent proposed fine, a fine imposed on Cumulus Media for a late upload of a single EEO Annual Public File Report last year (see our article here), and the FCC’s pending consideration of the return of the EEO Form 395 reporting on the race and gender of all station employees (see our article here), shows how seriously the FCC takes EEO obligations.

Continue Reading FCC Announces Second EEO Audit of 2023 – 150 Radio and TV Stations Must Report on Their EEO Compliance

November is a month where there are no regularly scheduled regulatory deadlines.  But the big question for broadcasters may be whether the FCC will continue to function throughout the month. The last-minute continuing resolution passed by Congress on September 30 extended federal government funding through November 17 – which again raises the possibility of a federal government shutdown beginning in late November if Congress does not approve new funding measures for Fiscal Year 2024 by that date.  As we discussed in our previous article regarding October Regulatory Dates for Broadcasters, if a government shutdown does occur, the FCC and other government agencies may have to cease all but critical functions if they do not have any residual funds to continue operations.  In late September, the FCC announced that it had sufficient leftover funds to keep operating for about two weeks after a shutdown.  We do not know if those funds are still available, so we need to be watching to see what happens between now and November 17.

Assuming that there is no shutdown, there are a number of other dates that broadcasters should be watching.  All broadcasters need to remember that November 20 is the deadline to file their ETRS Form Three to provide more detailed information regarding their stations’ performance during the October 4 Nationwide EAS Test.  See our article here regarding this year’s EAS test and broadcasters’ reporting obligations.  This deadline is important for many reasons – not just to avoid potential penalties for missing the filing deadline, but also to demonstrate broadcasters’ commitment to the emergency communications system as broadcasters’ role in that system is the principal reason for Congress to be presently considering the bill to require AM radio in every car.  See our article here for more on the importance of accurate reporting. 

Continue Reading November Regulatory Dates for Broadcasters – EAS ETRS Form 3, 12.5 GHz Registrations, C-Band Transition Comment Deadline, a Possible Government Shutdown, and More
  • The FCC’s Enforcement Bureau released a Notice of Apparent Liability proposing a $25,000 fine on two commonly-owned clusters of broadcast
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Earlier this week, the FCC’s Enforcement Bureau issued a Notice of Apparent Liability proposing a $25,000 fine on two related companies operating clusters of stations in two small Kansas markets.  Those clusters have, because of financial setbacks (leading to bankruptcy), reduced staff so that they no longer have 5 full-time employees at either cluster and thus are no longer subject to the FCC’s EEO outreach requirements. In this Notice, the FCC staff looked back to a few isolated violations in 2020 and 2021, when the stations had 5 or more full-time employees, to justify the proposed $25,000 fine.

The Enforcement Bureau pointed to the late upload to the online public file of three Annual EEO Public File Reports. The Bureau also pointed to the late upload of two Annual EEO Public File Reports at one of the clusters, and one late upload at the other cluster.  Both the 2020 and 2021 reports for one cluster were uploaded in June 2021, when the reports were due in February of each year.  Thus, one report was 5 months late, the other 17 months late.  At the other cluster, the 2021 report was uploaded a year late.  There was no allegation that the reports were not completed on time – just that they were not timely uploaded.

Continue Reading $25,000 Proposed Fine for Alleged EEO Violations at Kansas Radio Clusters – A Higher Standard for FCC EEO Enforcement?

The FCC yesterday issued a Public Notice announcing that it was rescheduling the filing window for new Low Power FM stations that had been scheduled for early November – moving the window to December.  Applications now can be filed between 12:01 AM Eastern Time on December 6, 2023 and 6:00 PM ET on December 13, 2023.  The FCC stated that a group of low power advocates had requested the extension to give applicants more time to prepare their applications.  The FCC warns in the Public Notice that this deadline will be strictly enforced – so don’t expect any leniency for any application that does not meet the 6 PM deadline on December 13.

Note that this extension also extends the freeze that the FCC imposed on LPFM and FM translator minor modifications.  That freeze, imposed to provide LPFM applicants with a static database from which to work in planning their applications, will now run through December 13.

Continue Reading FCC Postpones LPFM Filing Window and Extends Filing Freeze – Application Filing Window Now December 6 through December 13