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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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Yesterday, the FCC issued a hearing designation order – though one with much lower stakes than the last designation order issued by the FCC which seemingly resulted in the termination of the proposed Sinclair-Tribune merger. Yesterday’s order was at almost the opposite end of the spectrum from a massive merger of TV companies – the upcoming hearing will determine whether to revoke the license of a Low Power FM station. Issues were raised as to whether the licensee in its FCC applications lied to the FCC about whether its board of directors was made up of US citizens – there being substantial evidence that the board members were in fact citizens of other countries.

As we wrote here when the Sinclair acquisition was designated, hearings are most commonly used when the FCC is faced with disputed issues of fact. But hearings are also required in some cases by the Communications Act, including in cases where there is a proposed revocation of an existing license, as appears to be the reason for the order yesterday – though the FCC also lists a number of issues in the LPFM case that need a factual review. These include whether the licensee made misrepresentations to or lacked candor with the FCC (essentially whether the licensee had lied to the FCC in its applications when it said its directors were US citizens), whether the license was controlled by aliens (i.e. foreign citizens), whether the licensee failed to keep information on file at the FCC accurate and up to date, and whether the licensee failed to respond to FCC inquiries (the FCC having asked for information about the apparent foreign ownership and received no response).
Continue Reading Another FCC Broadcast Case Designated for Hearing – With Much Different Stakes

Late last week, the FCC issued a “Second Further Notice of Proposed Rulemaking” in its AM Revitalization Proceeding. The FCC has been taking steps over the last several years to attempt to restore AM radio to health. In last week’s Further Notice, the FCC followed up on ideas that it floated in 2016 in a prior order in the AM revitalization proceeding (see our articles here and here) suggesting that protections afforded to Class A AM stations be lessened in order to allow increased power by other more localized AM stations. Class A stations, often referred to as “clear channel” stations, are those 50 kW AM stations that are currently given interference protections both during the day and to their nighttime “skywave” signals (the signals heard hundreds and sometimes thousands of miles from the station’s transmitter site after bouncing off the atmosphere). These protections allow these stations to cover large geographic areas, and were particularly important in the early days of radio when these stations provided the only radio services to vast portions of the country that did not have local radio stations. In the Further Notice released last week, the FCC questions whether such protections are still necessary given the proliferation of other sources of audio programming (including radio stations, satellite radio and the Internet), and advances specific proposals that would reduce the protections accorded to these stations to allow some power increases by local AM stations.

This proposal is not without controversy. Obviously, station owners who hold Class A licenses do not believe that the service provided by these stations should be impeded. In fact, they note that many of these stations are among the few profitable AM stations in the country, often providing unique programming and substantial programming diversity to rural residents. These stations have also always been a favorite of long-haul truckers and others driving at night for providing uninterrupted service over vast distances. Perhaps even more importantly, and a question specifically raised for comment by the FCC, is the impact that any loss of service from these stations would have on the EAS network. Many of these stations serve as the primary stations for relaying national emergency messages to the EAS network. In fact, many of these stations have been provided funds by FEMA to improve their facilities to insure that they are available to provide uninterrupted service in the event of a national emergency.
Continue Reading FCC Proposes Lessened Interference Protections for Class A “Clear Channel” AM Stations – What Does This Proposal Mean for AM Revitalization?

The FCC this week released its draft order proposing to eliminate the requirement that broadcasters file certain contracts relating to ownership and control with the Commission. Instead, the disclosure of these documents will be made simply by observing the current requirement that stations either (1) make those documents available in the station’s online public file, or (2) make available a list of the required documents in the online public file with the documents themselves provided within 7 days to anyone who requests them, including the FCC. Certain other clarifications about the disclosure of such documents were contained in the draft order, which is expected to be adopted at the FCC meeting on October 23.

Among the documents that are required to be in the public file are those showing the governance of the license entity (e.g., articles of incorporation and bylaws); options and other documents related to future ownership rights; joint sales and time brokerage agreements; and television network affiliation agreements.   In the draft order, the FCC requires that such documents be included in the online public file (either in full or by inclusion on the list) within 30 days of execution, or within 30 days of any amendment or other modification of the agreement. If only a list of the documents is provided in the file, all the information that is required on an Ownership Report, where such documents are listed, would be required – including the name of the parties involved and the execution and expiration dates of the agreements.
Continue Reading FCC Releases Draft Order to Eliminate Broadcasters’ Obligations to File Contracts, Relying on Online Public File to Make Documents Available

Earlier this year, there was a settlement window for mutually exclusive applications in the FCC’s application window for new FM translators for Class A and B AM stations. The FCC yesterday released a list of the applications that are now grantable as a result of conflict resolutions filed during that settlement window. These applicants must…

Only three weeks ago, we wrote about an application for experimental authority filed by an AM station operator in Arizona, seeking permission to cease operating its AM station for a one year test to operate solely with its paired FM translator. We suggested that this proposal portended much for the AM band. However, the…

In this “political” year with Congressional mid-term elections in November, including many hotly contested races for seats in the US House of Representatives and the Senate, as well as many state and local elections, I receive many questions from broadcasters across the country. Perhaps the area in which most questions are received deals with the “political file,” particularly because these files are now available online. The fact that this file can now be viewed by anyone anywhere across the country has raised many questions that were perhaps less top of mind when the file was available only by physically visiting the main studio of a broadcast station. So, with the election just over a month away, meaning that the busiest advertising period will be coming up between now and the election, I thought that it would be worth taking a look at some of the online public file issues.

As an initial matter, it is worth mentioning that the political file has two main purposes. First, it is designed to provide information to the public about who is trying to convince them to vote in a certain way or to take action on other political issues that may be facing their country or community. Second, the file is to inform one candidate of what uses of broadcast stations his or her opponents are making. Thus, the documents placed in the file must be kept in the file for only two years from the date that they were created – perhaps on the assumption that at that point, we will be on to the next election cycle and old documents really won’t matter to the public or to competing candidates in the last election. But what needs to go into the file?
Continue Reading Beware of the Political File Obligations in this Hot Political Advertising Year

October is one of the busiest months on the broadcast regulatory calendar, as it includes a confluence of routine EEO filing requirements, quarterly filing requirements for Children’s Television Reports, public file uploading for all stations for their Quarterly Issues Programs Lists, a Nationwide EAS test, and comment dates in many FCC proceedings. Make sure that you are aware of these upcoming deadlines, particularly ones that may impact your station’s operations.

On October 1, Annual EEO Public Inspection File Reports must be uploaded to the online public inspection filed by Commercial and Noncommercial Full-Power and Class A Television Stations and AM and FM Radio Stations in Alaska, Florida, Hawaii, Iowa, Missouri, Oregon, Washington, American Samoa, Guam, the Mariana Islands, Puerto Rico, Saipan, and the Virgin Islands that are part of an Employment Unit with 5 or more full-time employees. There is an additional obligation for Television Employment Units with five or more full-time employees in Alaska, American Samoa, Guam, the Mariana Islands, Oregon, and Washington which must file Mid-Term EEO Reports with the FCC by October 1.
Continue Reading October Regulatory Dates for Broadcasters – Quarterly Issues Programs Lists and Children’s Television Reports, EEO Public File Obligations, Nationwide EAS Test, Registration of C Band Earth Stations, and Comments in Numerous FCC Proceedings

In a decision released yesterday, the FCC issued a “remedial declaratory ruling” finding the change in control of stock in a company that owned broadcast stations did not offend the public interest, and that the approval of foreign ownership in the company that controlled broadcast stations above 25% (but capped at 49%) that was…

The US Court of Appeals today released a decision upholding the Copyright Royalty Board’s 2015 decision setting the SoundExchange royalty rates for 2016-2020. We wrote about that decision here, and provided more details here. In any appeal of an agency decision, the Court routinely affords the agency deference in reaching its decision. The Court will not overturn that decision unless it has no basis in the record developed on the matter before the agency, or unless the agency decision was arbitrary and capricious – in plain English, the agency did not reach a logical conclusion based on the facts before it. That means that the Courts will not overturn a decision just because the agency might have logically reached another decision – but instead it will only intervene where the agency came to a conclusion that could not be logically supported. In this case, no reason to overturn the CRB decision was found.

SoundExchange on appeal had attacked the CRB decision on several grounds – arguing that several defects led to an inappropriate decision as to the rates that would have been determined by a “willing buyer and willing seller” in a marketplace, the standard to be used by the CRB in setting rates. SoundExchange attacked the benchmarks that were relied on by the CRB to set the rates (the direct licensing deals on royalties arrived at between webcasters Pandora and iHeart Media and various record companies) arguing that these rates were too low as they were negotiated in the “shadow of the statutory license.” They argued that the only direct deals that could have been done were ones that were lower than the rates established by the CRB during the prior rate term, as no music service would agree to higher rates. Arguments were also raised that these rates relied on “steering” – the prospect that labels who agreed to the rates had songs played more frequently than those that did not agree to lower rates. SoundExchange argued that not all labels could take advantage of steering (as a label can only get the benefit of steering when a service is playing less of the music of labels that did not pay for steering). The appeals also challenged the determination that a qualified auditor to check royalty compliance had to be a CPA licensed in the state where the audit was conducted.
Continue Reading Court of Appeals Upholds Copyright Royalty Board’s 2015 Webcasting Royalty Rate Decision