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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 minority tax certificate is back in the news with revised bills being introduced in both the House of Representatives and the Senate.  We wrote about a version of this bill introduced in the last session of Congress here.  The tax certificate offers perhaps the most meaningful route to increasing diversity in broadcast ownership.  While the certificate was abolished by Congress over 25 years ago, these new bills signaling the potential for its revival merits another examination of what this policy did and why it was effective, and what is now being proposed.

The minority tax certificate was a program designed to provide broadcasters with an economic incentive to sell their stations to minority owners.  Rather than directly subsidizing the potential owners, the certificate instead gave a tax break to sellers of broadcast stations that incentivized them to sell to a minority-owned business even if there were multiple bidders for their properties.  If the seller sold its station to a minority-owned business, the seller could take the proceeds from the sale and roll those proceeds over into a new media property without recognizing the taxable gain from the sale.  Unlike the typical like-kind exchange where the roll-over into a new property has to proceed within a few months of the sale, the tax certificate treated the sale as an involuntary sale (like the sale of a property because of a government’s exercise of eminent domain) under Section 1033 of the tax code, giving the seller several years to roll the proceeds over into a new purchase.  At that point, the new property would have the same tax basis as the old – meaning that no gain would be recognized until the sale of the new property.  In the closing decades of the last century, this policy spurred many sales to minority-controlled companies by broadcasters looking not to get out of the business, but instead looking to realign their holdings or to move up into larger markets.  Several hundred radio and TV stations were purchased under this program in the last 20 years of the program’s existence.  Why was this seemingly successful program abandoned?
Continue Reading Bills Introduced to Bring Back Tax Certificate to Foster Diversity in Broadcast Ownership – Exploring the Proposals

Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC and FEMA conducted their annual Nationwide Test of the EAS system on Wednesday, August 11. All broadcasters should

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The FCC this week announced the end of Auction 109, which offered for sale construction permits for 139 new stations – 4 AM stations in the St. Louis area whose licenses were surrendered by the prior licensee, and 135 new FM channels.  97 of the channels were sold but 42, including all of the AM stations, went unsold in the auction.  The full auction results can be seen on the FCC’s auction site here.  The FCC will raise $12,344,110 from the auction – though over $9,000,000 of that is to be paid for two channels – over $6 million for a Sacramento FM and over $3 million for an FM to be licensed to a community just north of the Dallas metro.

The 42 channels that were unsold range from channels allotted to small communities in states like Wyoming or Alaska that were predicted to serve very few people, thus having opening bids as low as $750 that no one was willing to meet, to channels in somewhat bigger communities including channels in New York state and Colorado that had opening bids of $75,000, indicating that they would serve a substantial number of people, but the prices were apparently deemed too high to justify for companies looking for a business return. The 4 St. Louis area AM stations, which each had opening bids of $50,000, appear to be in that same category.  This lack of interest may also say something about the FCC’s local radio ownership rules.
Continue Reading Auction for New AM and FM Channels Ends with Almost a Third of the Channels Unsold – Does the Result Say Something About the FCC’s Local Ownership Rules?

We’ve written before over the controversy as to whether embedding pictures or video served by a social media site on your website negates the need to get explicit permission from the copyright owner for that use.  For years, many had relied on old court decisions that employed a “server test” – a site was only liable for the use of copyrighted material if that material resided on the same server as the rest of the website content being made available by the site’s owner.  But that test seems to be falling by the wayside based on a number of recent cases (see our articles here and here).  Another decision was released the week before last by a US District Court Judge that seems to further advance that trend.

In a case brought against Sinclair Broadcast Group, video of a starving polar bear was posted by Sinclair on websites that it controlled without permission of the individual who recorded it. The video was posted as part of an article on the popularity of the video.  The videographer sued – and Sinclair responded that it could not have copyright liability as it did not host the video, but instead merely embedded a link to Instagram where the videographer had posted the video.  In his decision denying a motion to dismiss, the Judge determined that intentionally embedding the code that brought up that video whenever a website visitor visited a Sinclair site was a “display” of the video by Sinclair and the functional equivalent of hosting the video on Sinclair’s own servers, so the infringement claim could not be dismissed. The Judge did, however, allow Sinclair to continue to argue that, in the context the video was displayed, the use may have been a “fair use.”
Continue Reading Embedding Social Media Videos on Your Website? – Court Case Says Get Permission from Copyright Owner First

The FCC yesterday issued a Public Notice reminding all full-power and Class A TV stations that were repacked in Phases 1 through 5 of the post-incentive auction repacking of the TV band (and repacked stations that were granted permission to transition prior to Phase 1) that they must submit all remaining invoices for reimbursement from…

On Friday, the FCC  released another of its regular EEO audit notices (notice and list of affected stations available here), asking approximately 200 radio and TV stations, and the station employment units with which they are associated (i.e., commonly owned stations serving the same area), to respond to the audit notices by September 20, 2021.  Audited stations must upload their response to their online public inspection file. The response should include copies of the employment unit’s EEO Annual Public File reports for the last two years, as well as backup data showing that the station in fact did everything that was required under the FCC rules.  This is the second audit of 2021 (see our article here on the first audit commenced earlier this year).  It appears that this audit targets stations in states who have recently had license renewals reviewed, as stations in states with recent license renewals would already have their EEO record under review as part of the renewal process.

Audited stations must provide representative copies of notices sent to employment outreach sources about each full-time vacancy as well as documentation of the supplemental efforts that all station employment units with 5 or more full-time employees are required to perform (whether or not they had job openings in any year). These non-vacancy specific outreach efforts, which are outlined as “menu options” in the FCC’s rules, are designed to educate the community about broadcast employment positions and to train employees for more senior roles in broadcasting. Stations must also provide information about how they self-assessed the performance of their EEO program. Answers to certain other questions are also required.
Continue Reading FCC Audits Another 200 Broadcast Stations on EEO Performance

Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.

  • In the run-up to the August 11 National EAS Test, the FCC released a Public Notice reminding broadcasters to ensure

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Last week, another bill was introduced in both the House and the Senate with the intention of supporting local media to help offset the erosion of their advertising base by digital media.  The Local Journalism Sustainability Act (text of House bill here, and summary of Senate bill here) proposes certain benefits for local newspaper subscribers, as well as benefits to advertisers who advertise on local media – both broadcast and print.  For newspaper subscribers, individuals can get tax credits of up to $250 per year to cover a portion of their newspaper subscription fees.  For advertisers who place advertising on either a local newspaper or a local broadcast stations, a tax credit of up to $5000 would be available to certain small businesses who utilize local media to get their advertising messages to their communities.

In addition, the bill would provide local media a tax credit of up to $12,500 for hiring local “journalists” who spend at least 100 hours per year on reporting local news.  While the current House version of the bill provides this credit only to newspaper companies, the summary of the Senate version proposes that it also be extended to broadcasters.  This provision in particular has brought support from the RTDNA – the association that represents news professionals – who see it as an incentive to local media outlets to hire more news professionals.
Continue Reading The Local Journalism Sustainability Act – Another Congressional Proposal to Help Local Media

Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC wants to refresh the record on its collection of information about the race and gender of broadcast employees.

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