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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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A few weeks ago, the New York Times featured an interesting article about the impact of Internet video and other new technologies on the traditional media.  The premise of the article is that big media players, like AOL, FOX and Disney are being forced into bold moves to keep up with the the Internet.  Decisions such as AOL’s recent decision to from a subscription to a free service is one move cited by the article as being driven by the availability of free on-line content.  A comment by Rupert Murdoch that he would consider merging Direct TV with Echostar because of the competition from Internet video was another instance that the article cites as support for its premise.  This Sunday’s Times featured another article on the impact of Internet technology on the distribution of music, including traditional radio.

These changes impact not only big media, but local media and small Internet players as well.  The choice provided by the Internet has already caused changes in everything from local television to Internet radio.  I started writing this post from rural Wisconsin, where I was for a family event.  Watching the local television station, WEAU-TV in Eau Claire, Wisconsin, I was somewhat surprised to see an a promotion for "build your own newscasts."  The station was promoting its website, and the ability to watch local news stories produced by the station on the website, watching only those stories that you want to see, when you want to see them.  This on-demand availability of new stories when done with local stories avoids most copyright issues.  And it allows local media to serve their audience in the way that the audience wants to be served.  Continue Reading New Media Changes Everything?

This Friday, September 8, begins the 60 day "window" during which lowest unit rates will apply for broadcast advertising for the November 7 general election.  Stations should already be observing equal opportunities obligations and maintaining their political files, as these obligations exist as soon as there are legally qualified candidates, even outside of the political windows.  Reasonable access, the right of Federal candidates to demand to buy time on commercial broadcast stations, also applies as soon as there are legally qualified candidates.

According to reports in many publications, including the Wall Street Journal and Broadcasting and Cable Magazine, this may be one of the most active political broadcasting years ever.  With many observers believing that both the US House of Representatives and the Senate are potentially up for grabs, and there being many significant gubernatorial races in large states including New York, California, Texas and Michigan, money should flow into political advertising, straining the inventories of some broadcast stations in battleground states.  Now is the time, early in the campaign, for broadcasters to consider how to manage these political buys.  Remember that a station must give equal opportunities to opposing candidates to match spots run by their opponents within the prior 7 days.  So stations, when approached early in a campaign by candidates with lots of available funds, need to be careful about booking too many large buys from one side of a political race for spots to be run in the last days of the campaign.  By booking too many large buys now from only one side, the station may find itself, in the last few days of the campaign, with requests from the opposing candidate for equal time, which will have to be accommodated.  Accommodating those equal opportunities may require the preemption of commercial advertisers, something that stations may be loath to do to advertisers who will be around well after the political season ends.Continue Reading Political Broadcasting – The Window Opens

In our posting of July 17, we asked whether President Bush’s comments to Tony Blair at the G-8 summit, which had occurred earlier that day, could get broadcasters who aired the unedited version into trouble under the Commission’s indecency policies.  Well, it looks like the President may have indeed found a unique way to raise government revenue.  Press reports yesterday reported that  complaints were filed with the FCC asking that fines be imposed on stations that aired the President’s comments without bleeping the "S-word."  Specifically, at least one complaint named a Maine television station airing the unedited comments, while another complaint was registered by the FCC about NPR’s coverage of the event.

While unedited coverage of a news event had, in the past, in more tempered times, been found by the FCC to be permissible if the station felt that it was necessary to convey the context of the story (for instance, in the case of coverage of a mobster using some colorful language about the prosecution’s case as he emerged from a courthouse).  But these days, with the recent FCC crackdown on even fleeting uses of expletives, stations are unsure of the law, and frightened of FCC actions.  And, with recently legislated higher indecency fines, which we reported on on June 16, the fears take on even more urgency for broadcasters.

For instance, CBS plans to air a documentary on 9-11, which includes footage of the reactions of emergency personnel at the site of the collapsing World Trade Center.  The reactions to the tragic events include some use of FCC-prohibited expletives.  This documentary has already aired twice on CBS without any adverse action.  Yet now, certain groups have reportedly suggested that complaints should be filed at the FCC about the upcoming airing of the program.  And now, reports state that at least one broadcaster has announced that they will delay the program until after 10 PM – in the FCC’s "safe-harbor" where adult content will not be subject to FCC penalties as the potential for children in the audience is less. Continue Reading George Bush, 9-11 and Potential Big Fines

On Friday, the FCC announced that it will auction 9 new FM channels on January 10.  These are channels that went unpurchased in prior FM auctions – either because no one bid on the channels or because the winning bidder defaulted on its winning bid (presumably by not paying for the channel when the full payment was due). 

The channels are for new stations at the following locations:  Covelo and Tecopa, California; Cedar Key and Perry, Florida; Kihei, Hawaii; Outlook, Montana; Ocracoke, North Carolina; Meyersdale, Pennsylvania; and Parowan, Utah.  The FCC proposed rules for the auction, here, and set out the amounts of minimum bids that it expects to collect for each of these channels, here.  The exact date for the filing of the initial short form applications and the posting of the minimum bids will be announced after the final rules for the auction are adopted.  Comments on the Proposed Rules and the minimum bids are due on September 6.

Perhaps most interesting is the fact that the FCC has chosen to open only this mini-window at this time.  In each of the last two years, at about this time of year, the FCC has announced the opening of auction windows for large numbers of FM stations.  Hundreds of stations have been auctioned in these last two years.  The FCC has hundreds of FM allotments around the country that already been made but which have never been available for applications.  These will be apparently be subject to auction at some later date.Continue Reading New Radio Channels to Be Auctionned By FCC

The Corporation for Public Broadcasting announced recently that it has provided $7.74 million in grants to assist 85 public radio stations in their transition to digital operations.  This announcement is interesting, coming as it does only a week after Communications Daily reported on August 16 that CPB engineers were finding that HD Radio was…

Comments are due to be filed with the FCC by this Thursday, August 24, on the NAB’s proposal to allow AM radio stations to use FM translators to fill in nulls in their coverage.  Particularly for AM stations with very directional patterns, or with authorizations that specify little or no nighttime coverage, this proposal could provide an excellent way for these stations to maximize service to their listeners.  The NAB is making the filing of comments easy through an electronic filing system available on its website here.

While it is important for those supporting this proposal to file comments to urge the FCC to consider it, this is but the first step in a long process before this proposal can become reality.  The FCC here is asking only for comments on the NAB’s Petition for Rulemaking.  If the FCC finds merit in the NAB proposal, then it would have to draft its own Notice of Proposed Rulemaking to suggest rules that would govern the use of such translators.  After taking comments on the Notice, if the FCC is still convinced that the idea is a good one, the Commission would then have to draft a set of final rules and an order adopting those rules.  Thus, in the best case, this is a long process.Continue Reading FM Translators for AM Stations?

In the early 1990s, calls were heard in the halls of Congress, among public interest groups and in the press about the harmful effects of advertising on children. Within a few years, we saw legislation and FCC actions limiting the amount of advertising aimed at children, and effectively prohibiting the hosts of children’s programs from promoting goods or services during their programs. We may now be seeing a similar wave building with respect to the advertising “unhealthy” foods – particularly as that advertising affects children.

A recent Broadcasting and Cable article referred to discussions held between advertising organizations and Senator Brownback of Kansas, seeking to encourage industry self-regulation on the advertising and promotion to children of unhealthy foods.   After the discussion, the Senator reportedly agreed to refrain from pursuing any Congressional action at this time, while industry efforts to develop voluntary guidelines proceeded. However, the concern was clearly expressed that, should industry actions not be forthcoming, legislative action may follow.

These efforts to regulate the advertising of unhealthy foods have been arising not only at the Federal level, but also in state legislatures around the country.   Several state broadcast associations have faced proposals in their legislatures to enact restrictions on the advertising of unhealthy foods. So far, most of these efforts have not resulted in actual regulation, at least in part because of the difficulty of defining what foods would be covered by any rules that may be adopted. Continue Reading Restrictions on Advertising Unhealthy Foods?

Today, press reports stated that the FCC has sent letters of inquiry to 77 television stations inquiring about their use of Video News Releases (VNRs) without properly notifying their audience about the source of such releases.  VNRs are essentially pre-produced segments provided to television stations for inclusion in their programming.  The Washington Post carried a story, here, describing some of the stories which triggered the FCC investigation.  These reportedly included a report from an electronics show used by several TV stations in their news reports.  The producer of the report had been paid by the electronics manufacturers featured in the story for including their products in the story.

The FCC released a Public Notice in April, 2005 detailing its policies on VNRs.  The Public Notice makes clear that a station must disclose who paid for material broadcast on a station, whether or not the station received the consideration.  Clearly, if an advertiser paid a station for airing a news report, the station would be required to disclose the payment.  But the Public Notice makes clear that the station also owes its audience a disclosure even if it received no consideration, if the party that produced the material broadcast on the station received some consideration, and the station could discover that consideration by asking the producer if he or she was paid or through other means of reasonable investigation.  Continue Reading FCC Investigates Video News Releases

On July 18, we wrote about the arrest of the CEO of BetOnSports, the Internet gambling site, and the indictment of individuals involved with the Company, including representatives of its advertising agencies.  Yesterday, the New York Times reported that BetOnSports has stopped taking bets from people in the United States in compliance with the US…