The U.S. Court of Appeals for the D.C. Circuit should transfer all challenges against the FCC 2014 quadrennial review rulemaking and the rule increasing attribution of joint sales agreements (JSAs) to the 3rd U.S. Circuit Court of Appeals or dismiss them, said the FCC in a brief filed Thursday in case 14-1090. Though Prometheus Radio Project and others in the case also have asked for the 3rd Circuit venue change, NAB said the case should be heard in D.C. The D.C. Circuit asked the parties to argue both the venue change and the merits of the case. As of a briefing schedule change earlier this month, final briefs in the case are due Aug. 27, with oral argument expected to be scheduled in the fall, said attorneys following the case.
Monty Tayloe
Monty Tayloe, Associate Editor, covers broadcasting and the Federal Communications Commission for Communications Daily. He joined Warren Communications News in 2013, after spending 10 years covering crime and local politics for Virginia regional newspapers and a turn in television as a communications assistant for the PBS NewsHour. He’s a Virginia native who graduated Fork Union Military Academy and the College of William and Mary. You can follow Tayloe on Twitter: @MontyTayloe .
An FCC rulemaking on reserving TV spectrum for white spaces use unified disparate broadcast interests in opposition to it, said officials at the LPTV Spectrum Rights Coalition, NAB and National Translator Association in interviews. Coalition Director Mike Gravino, who in recent weeks filed an unsuccessful complaint with the FCC against NAB (see 1506050059) and had recently told us the association wasn't looking out for LPTV interests, said his previous stance no longer applies as of the FCC issuing its NPRM Tuesday. The proposed rule is “a seismic shift” that threatens all licensees who value their spectrum, he said, promising to work with NAB to oppose the proposed rule. “If they're able to do this to primary licensees, they can do it to anyone,” Gravino said. “It's completely unlawful,” said NAB General Counsel Rick Kaplan.
FCBA officials have been told the FCC is preparing a response to the bar association's letter on the commission's incentive auction anti-collusion rules, Wiley Rein broadcast attorney Kathleen Kirby said Tuesday at an FCBA lunch. The response is being prepared by the Office of General Counsel, she said. In the FCBA letter on the rules (see 1505180056), the association said the rules let broadcast attorneys represent multiple licensees in the auction. If attorneys can't represent multiple licensees, there likely are not enough attorneys to go around, FCBA said. Broadcast attorneys have told us a response to the FCBA letter wasn't expected unless the commission disagreed with the association's stance. The OGC didn't comment.
Channel sharing agreements (CSAs) under new FCC rules (see 1506120051) will be complicated, highly individualized deals that must account for a range of contingencies, said attorneys Tuesday at an FCBA brown bag lunch event on the rules issued in a reconsideration order Friday. Though the new rules allow term limits on CSAs, they’re still largely designed for agreements that last many years, and if a station in a CSA is sold, a station could find itself in a channel sharing agreement with a relative stranger, said Wiley Rein broadcast lawyer Jessica Rosenthal. Broadcasters interested in channel sharing needed to start exploring such deals “a couple months ago,” said Dorann Bunkin, aide to the FCC Incentive Auction Task Force (IATF).
The U.S. Court of Appeals for the D.C. Circuit utterly rejected all arguments by NAB and Sinclair Broadcast in their petitions against the FCC's Incentive Auction Report and Order, in an opinion written by Judge Sri Srinivasan and issued Friday.
The FCC isn’t expected to resurrect the issue of sharing video programming confidential information (VPCI) in connection with the review of AT&T's planned buy of DirecTV, content company and broadcast officials told us. The U.S. Court of Appeals for the D.C. Circuit remanded the protective order on the sharing of programming and retransmission consent contracts to the FCC (see 1505080053). But it's unlikely to issue a new order before a decision on AT&T/DirecTV, said content company officials involved in the proceeding. The commission had argued that sharing VPCI with third parties in Comcast/Time Warner Cable and AT&T/DirecTV was an important part of the review process.
Older, sector-specific laws such as those regulating health and financial information are good for protecting consumer data that stays in those respective silos, but the modern era of ubiquitous data collection means that no longer happens, said FTC Commissioner Julie Brill on a panel at the Techonomy Policy Conference Tuesday.
Broadcasters deny wanting an incentive auction delay for the adoption of ATSC 3.0, but the Expanding Opportunities For Broadcasters Coalition, Public Knowledge, wireless carriers and several wireless trade organizations issued a joint statement against that possibility last week. They “strongly support" the planned first-quarter 2016 start of the incentive auction and oppose delaying the auction “in an attempt to synchronize" the post-auction repacking and the transition to ATSC 3.0,” the statement said.
The “ubiquitous nationwide presence” of satellite carriers “presumptively satisfies” the requirements for effective competition throughout the country, said the order making effective competition a rebuttable presumption for all cable, adopted Tuesday but not released until late Wednesday. Tuesday was the deadline for new effective competition rules established by the Satellite Television Extension and Localism Act Reauthorization (STELAR) Act. As expected, the rule change was approved on the support of FCC Chairman Tom Wheeler and Republican commissioners Ajit Pai and Mike O'Rielly, while Democratic commissioners Jessica Rosenworcel and Mignon Clyburn approved only rule changes for small cable systems and dissented from the rest. “I cannot support relief to larger providers particularly when doing so could harm consumers and unnecessarily increases the burdens on our local franchising authorities,” Clyburn said in a statement released with the order.
The FCC order making effective competition a rebuttable presumption is based on the fact that the size of a cable system “bears little relationship” to whether it faces effective competition, said FCC Chairman Tom Wheeler in a statement Wednesday. “Where there is 'Competition, Competition, Competition,' the need for basic service tier rate regulation is diminished,” Wheeler said. The FCC's most recent report on cable industry prices shows the average rate for basic service is lower in communities with an effective competition than in those without,” said Wheeler. The effective competition order won 3-2 approval by the Commission late Tuesday (see 1506020060), but the text still hadn't been released as of late Wednesday.