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

The FCC’s Enforcement Bureau this week issued two fines, one for $6000 and another for $5200 for violations of its contest rules, as the contests were not conducted as advertised.  In each of these cases, a prize winner was not awarded a prize in a timely manner.  In both cases, the prizes were not provided to winners even after the winners inquired, and, for one reason or another, the stations did not immediately respond to the prize winner to resolve the issue – instead providing substitute prizes only when FCC complaints were filed.  Even though both prize winners appeared satisfied by the substitute prizes and withdrew their complaints, the FCC nevertheless issued the fines finding that the contests had not been conducted as promised, in that the original prizes were not awarded on a timely basis.  While in both cases the delays appeared to simply be the result of station staff not making a priority of determining how to deal with delivering the prizes, these cases serve as a warning to broadcasters to review their contest rules and make sure that station staff understand that, if an unexpected glitch arises, they should not dawdle in working to resolve those issues.

As we have written before, the FCC requires that broadcasters adopt written rules for contests disclosing all material terms of those contests (see our posts here here and here that talk about some of the material rules that need to be covered) and make those rules available to the public.  While the rules can now be posted online instead of having to be read on the air, the station must still alert listeners through on-air announcements as to where those rules are available (see our articles here and here).  In writing their contest rules, the station should anticipate all the glitches that might occur in the contest process and spell out what will happen if one of these problems crops up.  Obviously, a prize becoming unavailable is a frequent issue.  Technical glitches also can become issues (e.g., phone lines not working or text message programs misidentifying the proper winner).  These should be anticipated, with explanations of what will happen should any of these occur.  What will happen may differ if the glitch occurs before the contest has been conducted (where you need to decide how to treat those who already entered) or after the prize has been awarded (e.g., as in this week’s cases, where substitute prizes were given).  Anticipate the unexpected.
Continue Reading Two FCC Fines for Contests Where Prizes Not Awarded on a Timely Basis – What Broadcasters Should Watch Out for in Conducting Contests

The FCC’s International Bureau released a preliminary list of C-Band earth stations (those that operate in the 3.7-4.2 GHz band) in the contiguous U.S. that the Bureau has reviewed and said appear to qualify as “incumbent earth stations” which will be eligible for reimbursement for reasonable costs of changes to their facilities caused by the upcoming repacking of the C-Band.  The C-Band will be partially reallocated for use by wireless carriers, requiring changes in many existing earth stations.  The FCC’s notice about the preliminary list is available here, the preliminary list of incumbent C-band earth stations with explanatory notes in PDF format is available here, and the preliminary list of incumbent C-band earth stations as an Excel chart is available here.  It is important that all broadcasters who have registered earth stations immediately review this list – as corrections need to be submitted to the FCC in just a week – by July 16, 2020.

The Bureau reviewed the status of all earth stations with active or pending licenses or registrations in the C-band.  The incumbent licensees were those who were operating in 2018 and filed FCC registrations by that year and updated those registrations in 2019 (see our articles here and here).  The list includes earth stations whose timely-filed applications are still pending, though they may ultimately not be eligible for reimbursement if the applications are not granted.  The Bureau did not include earth stations whose applications it has dismissed as not meeting the criteria for incumbent status, even if the dismissal is not yet final under the Commission’s rules.
Continue Reading FCC Gives Notice of C-Band Earth Stations Eligible for Reimbursement Before Repurposing Part of that Spectrum – Broadcasters Need to Review and File Corrections By July 16

A decision was expected in December on the royalties to be paid by broadcasters and other digital media companies who stream their non-interactive audio programming on the Internet.  As we wrote at the beginning of the pandemic, the Copyright Royalty Board, which hears the arguments about the royalties to be paid to SoundExchange in a trial-type administrative hearing, had to postpone the hearing that was initially slated to begin in March.  That hearing will now begin later this month.  Because of the delays in the hearing caused by the pandemic, Congress authorized the Copyright Office to extend various statutory deadlines.  This week, the Copyright Office announced that the December deadline for a decision on webcasting royalties has been pushed until April 15, 2021.

This does not mean that the royalties themselves will not go into effect on January 1.  The current CRB proceeding is to determine the rates that will be in effect for 2021 through 2025.  The proceeding began early in 2019 (see our posts here and here).  The January 1 effective date for the new royalties remains in place, so any decision released later in 2021 will be retroactive.  In January, webcasters and other internet radio operators will pay the royalties currently in place, and there will be some mechanism for a true up of the amounts due once the decision becomes effective.  That is not unusual in the music royalty world.  Just a few months ago, the Radio Music License Committee reached an agreement with BMI on royalties that was retroactive several years.  The Copyright Royalty Board decisions themselves, even if released to the parties in December, are often not final until the next year as the public version of any CRB decision usually takes time to release, and the parties have time after a decision is released to seek edits to the decision.  The Copyright Office itself also reviews the CRB decision for legal errors.  Even after that, the decision can be appealed to the Courts, so the ultimate resolution may be unknown for years – yet parties conduct their business while waiting to see if any adjustments to fees already paid may be due at some later time.
Continue Reading Copyright Office Extends Until April Date by Which Decision on SoundExchange Royalties for 2021-2025 Must be Released

When do noncommercial stations stray from permissible acknowledgment of those local businesses that provide funding for its operations to impermissible commercials?  That question was addressed in a Notice of Apparent Liability issued by the FCC’s Enforcement Bureau on Thursday, proposing a $15,000 fine for a low power FM station whose underwriting announcements were deemed too commercial.  The decision, which includes examples of the announcements deemed problematic, is must-reading for all noncommercial licensees who want to avoid fines from the FCC in connection with their underwriting acknowledgements for commercial entities.

The decision breaks down into four categories the reasons for finding the announcements in this case to be too promotional.  The first category is one that often arises in connection with these announcements – the underwriting announcement uses terms that make qualitative claims about the sponsor.  You can’t talk about a commercial sponsor being voted the “best” or being the “most experienced.”  Talking about mechanics who are “experts” in working on certain cars, or decorators who have “an exceptional eye for the perfect arrangement” are all examples of announcements that cross the line.  In this case, some of the examples of impermissible qualitative claims include a car repair shop with “certified master technicians” who use “state of the art equipment.”  Another was for a new real estate company that was characterized as being “one of the fastest growing real estate companies in the country” having “23 agents and a combined experience of over 300 years” and being a “national company with a local flair” having “recruited some of the most well-known agents.”  Another for a computer repair company was perhaps closer to the line but still was deemed too promotional, saying “don’t waste your time when you have a professional nerd to help make your life run easier” and “we’re not your average nerds.”  In some cases, like the last one, had it been the only identified issue, the FCC may have just determined that it was an exercise of licensee judgement about what was too promotional and let it go.  But in a case like this one, with so many other issues, it was identified as being a problem.
Continue Reading $15,000 FCC Fine Proposed for Underwriting Announcements that Were Too Commercial

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

  • The FCC’s Enforcement Bureau entered into negotiated settlements with two Boston-area pirate radio operators who admitted to illegal operations and

…

July is usually a month of family vacations and patriotic celebrations.  While the pandemic has seen to it that those activities, if they happen at all, will look different than they have in years past, there are plenty of regulatory obligations to fill a broadcaster’s long, summer days.  Here are a few of the dates and deadlines to watch for in July, and a quick reminder of some of the significant filings due right at the beginning of August.

On or before July 10, all TV and radio stations must upload to their public file their Quarterly Issues/Programs Lists for the 2nd quarter (April, May and June).  Stations that took advantage of the FCC’s extension of time to file their 1st quarter (January, February and March) list must also by July 10 upload that list to their public file.  As a reminder, the Quarterly Issues/Programs Lists are a station’s evidence of how it operated in the public interest, demonstrating its treatment of its community’s most significant issues.  The FCC has shown (see here and here) that it takes this requirement seriously and will fine stations, hold up license renewals, or both if it finds problems with a station’s compliance.  For a short video on complying with the Quarterly Issues/Programs List requirement, see here.
Continue Reading July Regulatory Dates for Broadcasters: End of the TV Repacking, Quarterly Issues/Programs Lists, Children’s Television Reporting, EEO, Carriage Election Public File Information Deadline, LPTV Settlement Window, Rulemaking Comments and More

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

  • FEMA announced that it has canceled the 2020 test of the Integrated Public Alert and Warning System (IPAWS), which is

…

We recently wrote about a case where a Judge in the US District Court for the Southern District of New York found that the website Mashable had a license to use a photo accessible from its site that was actually an embedded photo coming from the servers of Instagram.  In that decision, the Court found that, under Instagram’s Terms of Use, the photographer, by posting photos on Instagram, gave it the right to sublicense the photo to others, which included Mashable who embedded it using an API from Instagram.  This week, the Court issued an Order reconsidering its decision – based on it being pointed out that, for the claim of a sublicense to be sustained, it had to be clear that a license was in fact being issued.  The Court reviewed Instagram’s Platform Policy which made general statement about it helping “publishers discover content, get digital rights to media, and share media using web embeds.”  The Court concluded that, without further evidence, it was unclear that this language alone granted a sublicense to Mashable, and therefore reconsidered its decision to dismiss the photographer’s infringement claim.

This case will go on to look at whether Instagram in fact intended to give Mashable a sublicense to use the photo through the use of the API.  But it does suggest that sites that use embedded media from a social media platform on the assumption that the social media site, by providing other sites the ability to embed their content are in fact sublicensing that content, should proceed with caution.  Those companies looking to post embedded content on their sites should carefully review the terms of use of the social media site to see if a sublicense is in fact being conveyed.  In our last article on the case, we noted that this decision was contrary to another decision in another case (see our article here on that other case) that found a site owner could be liable for embedded content that was accessible from its site.  We noted that there were factual differences in the two cases.  This reconsideration requires even more caution in the use of embedded content from social media sites, particularly in light of the conflicting precedent.
Continue Reading Court Reconsiders Decision About Website Getting License to Embedded Photo from Instagram Terms of Use

Should broadcasters be able to originate programming on FM translators?  Playing off the proposal to allow limited amounts of programming on FM boosters – basically the insertion of local ads, news, or emergency alerts – in the zonecasting proposal on which the FCC took comments earlier this year (see our summary here), a group of broadcasters has taken the proposal one step further, and asked if translators (including those FM translators rebroadcasting AM stations) should not have the same rights proposed for boosters.  Comments on this proposal (available here) are due July 23.

These comments were originally filed in connection with the zonecasting proceeding (see our summary of the comments here).  But they go beyond the zonecasting proposal for limited amounts of origination programming on boosters, and seek to expand the amount of time that translators can originate programming different than their primary stations.  The advocates propose not just the substitution of short messages, but to allow translators to originate as much as 40 hours per week of programming different than that offered on their primary stations.  And the proposal also suggests that translators be allowed to be located within the primary station’s 45 dbu contour, rather than within the 60 dbu contour of an FM primary station as now required (playing off the 45 dbu contour now being used as the one in which primary FM stations can claim protection from interference from FM translators – see our article here).
Continue Reading FCC Seeking Comment on the Origination of Programming by FM Translators