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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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The Senate this week approved Anna Gomez for the open Democratic FCC seat that has been vacant since the start of the Biden Administration.  As we wrote in May when the President first nominated her, Gomez is experienced in government circles, having worked at NTIA (a Department of Commerce agency dealing with federal spectrum use and other communications matters) and recently at the State Department preparing for international meetings about communications issues.  She also has a history in private law firm practice. 

Together with her nomination, the President renominated Commissioners Starks and Carr for new terms as Commissioners, but those nominations remain pending – not having been approved this week with the Gomez nomination.  Democratic Commissioner Starks’s term has already expired but he continues to serve under the allowable one-year carry-over which ends at the beginning of January 2024.  Republican Commissioner Carr’s term will expire at the end of this year, but he would be able to serve through the end of 2024 if his renomination is not confirmed.  There is some speculation that these nominations will be packaged with other pending nominations for positions at other government agencies to avoid having the FCC return to a partisan stalemate again in January if the Starks’ renomination is not approved by then. 

Continue Reading And Then There Were Five – Senate Approves Anna Gomez as Fifth FCC Commissioner – What Broadcast Issues Could a Full FCC Consider? 

The FCC issued its Public Notice announcing that Annual Regulatory Fees must be paid by 11:59 PM Eastern Time on September 20, 2023.  As we noted two weeks ago, the FCC earlier this month released its Report and Order setting the amount of the annual regulatory fees that broadcasters must pay, but the Commission had not, until yesterday, followed up on that Order by issuing a Public Notice setting the dates for payment.  Yesterday’s Public Notice, and a set of other Public Notices and Fact Sheets issued yesterday, establishes the payment deadline and announces other procedures for payment. Unlike in past years when the payment window was a limited period, the Public Notice announced that the FCC’s CORES database, through which the fees must be paid, is now available for this payment. 

The FCC issued additional notices detailing various aspects of the fee filing process.  One Public Notice sets out the general filing procedures for making the fee payments.  That Notice makes clear all fees must be paid through CORES.  No checks, money orders, or other forms of payment will be allowed.  Payment must be made either by wire transfers, ACH electronic payments or by credit card.  Credit card payments are limited to $24,999.99.  The Notice tells broadcasters that they will receive an email confirming that they have submitted something through the CORES system – but that email does not confirm that the payment has actually been received by the FCC or debited to a broadcaster’s account.  Broadcasters need to confirm with their banks that the FCC has in fact debited their accounts for the fees. Pay early to make sure that you have time to confirm that the FCC has in fact received the fees by the deadline.

Continue Reading FCC Annual Regulatory Fees are Due September 20 – Flurry of FCC Notices and Fact Sheets Detailing Payment Procedures

On the surface, September appears to have few scheduled regulatory filing dates and deadlines.  But it is period in which many broadcasters will be busy with deadlines that occur in early October and into the rest of the Fall.  TV stations should be finishing their decision-making on must-carry/retransmission consent elections, which need to be in their public files by October 2 (as the 1st is a holiday).  In preparation for the early November filing window for new LPFM stations (see our article here), potential applicants should be determining if a station can technically “fit” in their area without prohibited shortspacings to other stations; if one can be located in their area, they need to locate a transmitter site; and they need to take all the steps other steps needed to be ready to file their application in the early November window.  One of the first regulatory dates of note in September is the freeze on FM translator modification applications that goes into effect on September 1 in anticipation of the LPFM window.  The freeze will be in effect at least through the end of the LPFM filing window on November 8. 

September will also bring the date for the filing of annual regulatory fees by commercial stations.  We recently noted that the FCC earlier this month released its Report and Order setting the amount of the annual regulatory fees that broadcasters must pay, but the Commission has not yet followed up on that Order by issuing a Public Notice setting the dates for payment.  As these payments must be made before the federal government’s October 1 start of the new fiscal year, we expect that Public Notice any day.  We also expect that, as in the past, the FCC’s Media Bureau will release a fee filing guide for the broadcast services.  Licensees should continue to monitor this item closely so that they are ready to pay those fees in a window that will open in September, as the failure to timely pay regulatory fees will result in substantial penalties.

Continue Reading September Regulatory Dates for Broadcasters – Regulatory Fees, HD Radio Power Increase Comments, EAS Filings, and Preparation for Many October Deadlines  
  • In the last two license renewal cycles, more fines have been issued for full-power stations violating the requirement that they
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In recent weeks, some of the radio trade magazines have been carrying coverage of the litigation between the Radio Music License Committee (RMLC) and ASCAP and BMI over the rates that will be paid by commercial radio broadcasters for the public performance of musical compositions that are licensed through these Performing Rights Organizations (PROs).   Negotiations over royalty rates are not new nor is the occasional litigation over those royalties However, because of changes in the law governing these processes, the arguments raised this year  are different and raise important new questions about what could be the first steps toward an entirely different, and perhaps fairer, process for resolving the royalties that broadcasters (and others) pay for the use of music.

What is different, and what are the arguments being made?  RMLC is arguing that the US District Court that oversees the antitrust consent decrees that govern ASCAP and BMI should consolidate the proceedings to determine the rates that broadcasters will pay, rather than considering those rates in separate proceedings.  If parties cannot agree with ASCAP and BMI as to the rates to be charged for the use of music for a particular purpose, a judge from the US District Court in the Southern District of New York conducts a proceeding as a “rate court” to determine a reasonable royalty rate, much as the Copyright Royalty Board does in establishing SoundExchange royalties for the digital public performance of sound recordings.  Because both the ASCAP and BMI agreements with the commercial radio industry have expired, proceedings are underway to determine the rates that radio will pay to these organizations. 

Continue Reading RMLC Requests Consolidation of ASCAP and BMI Proceeding on Radio Music Royalties – A Step Toward a Unified Process for Resolving All Music Royalty Issues? 

The Federal Election Commission last week voted to open for public comment the question of whether to start a rulemaking proceeding to declare that “deepfakes” or other AI technology used to generate false images of a candidate doing or saying something, without a disclosure that the image, audio or video, was generated by artificial intelligence and portrays fictitious statements and actions, violates the FEC’s rules.  The FEC rule that is allegedly being violated is one that prohibits a candidate or committee from fraudulently misrepresentating 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.”  In other words, the FEC rule prohibits one candidate or committee from falsely issuing statements in the name of an opposing candidate or committee.  The FEC approved the Draft Notice of Availability to initiate the request for public comment on a second rulemaking petition filed by the group Public Citizen, asking for this policy to be adopted.  This Notice of Availability was published in the Federal Register today, initiating the comment period.  The deadline for comments is October 16, 2023.  This is just a preliminary request for comments as to the merits of the Public Citizen petition, and whether the FEC should move forward with a more formal proceeding.

As we wrote in an article a few weeks ago, the FEC had a very similar Notice of Availability before it last month and took no action, after apparently expressing concerns that the FEC does not have statutory authority to regulate deliberately deceptive AI-produced content in campaign ads.  Apparently Public Citizen’s second petition adequately addressed that concern.  The Notice published in the Federal Register today at least starts the process, although it may be some time before any formal rules are adopted.  As we noted in our article, a few states have already taken action to require disclosures about AI content used in political ads, particularly those in state and local elections.  Thus far, there is no similar federal requirement. 

Continue Reading FEC Asks for Public Comment on Petition for Rulemaking on the Use of Artificial Intelligence in Political Ads
  • The FCC released its Report and Order setting the annual regulatory fees that broadcasters must pay for 2023. The Order
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  • FEMA and the FCC announced that this year’s Nationwide EAS Test is scheduled for October 4, 2023 (with a back-up
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FEMA and the FCC announced that this year’s Nationwide EAS Test is scheduled for October 4, 2023 (with a back-up date of October 11 in case there is a real or threatened event that occurs around October 4).  FEMA will transmit the nationwide test of the EAS at 2:20 pm EDT on October 4, 2023 using the Integrated Public Alert and Warning System (IPAWS), the Internet-delivered warning system that has been required for broadcasters for about a dozen years. The test will be disseminated in English and Spanish as a Common Alerting Protocol (CAP) message using the Nationwide Test of the Emergency Alert System (NPT) code.  FEMA issued a Release announcing the test.  The FCC issued a much more extensive Public Notice which includes a list of recommended steps that broadcasters should take to prepare for the alert, and a reminder for broadcasters to be sure that their information in the EAS Test Reporting System (ETRS) is accurate and up-to-date. 

While the steps recommended by the FCC to prepare for the test are all somewhat obvious, they should still be reviewed by broadcasters to make sure that they have not overlooked anything that can enhance their preparation for the test.  Among the recommendations from the FCC are that the broadcaster review their role in their state’s EAS plan, and make sure that their equipment and software has been updated to the most current versions. The FCC also suggests making sure the EAS clock on station EAS equipment is synchronized with the official time used by the National Institute of Standards and Technology which is used by the IPAWS system.  Having an accessible EAS Official Handbook and reviewing the handbook for instructions on the operation of the EAS system is also on the FCC’s list.

Continue Reading Nationwide EAS Test Set for October 4 – Start Your Preparations Now