A draft NPRM to change the definition of a multichannel video programming distributor to include linear over-the-top video providers will receive broad bipartisan and “bi-industry” support, said FCC Special Counsel for External Affairs Gigi Sohn. The item appeals to broadcasters and cable providers because it will allow more retransmission consent deals and more options for cable companies to provide content, she told the Practising Law Institute's Communications Law in the Digital Age seminar Thursday. Sohn, NAB Executive Vice President Strategic Planning Rick Kaplan, Paul Hastings attorney Sherrese Smith and other panelists also discussed net neutrality, the commission's new rules for joint sales agreements, and the incentive auction.
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 .
A court-ordered emergency stay preventing the FCC from releasing confidential programming and retransmission consent contract information to participants in the AT&T/DirecTV and Comcast/Time Warner transaction proceedings is likely to be granted by Monday, several communications attorneys involved in the proceedings told us. In an order issued Nov. 10 rejecting two applications for review and two emergency stay requests (see 1411070048) from a group of content companies that includes 21st Century Fox, CBS, Viacom and Disney, the FCC established Monday, Nov. 17 as the day it would release the video programming confidential information (VPCI) to outside counsel who have filed for confidential access.
Discussions with Canada and Mexico to coordinate spectrum use in advance of the incentive auction could lead to a regionally harmonized “band plan for the Americas” similar to what was tried with the 700 MHz band plan, said Incentive Auction Task Force Chairman Gary Epstein on a panel at the Americas Spectrum Management Conference Wednesday. Though wireless industry officials at the discussion endorsed a regional or global 600 MHz band plan as a positive, NAB Executive Vice President-Strategic Planning Rick Kaplan said it would be unlikely to succeed because the FCC's proposed variable band plan would be unattractive internationally. Because the plan involves “broadcast and wireless sharing the same yard,” it will be a hard sell outside the U.S., he said. “It's a bad plan.”
The FCC TV incentive auction order’s use of TVStudy repacking software and lack of protection for broadcaster coverage areas should be vacated, NAB and Sinclair said in a joint brief to the U.S Court of Appeals for the D.C. Circuit. Two other aspects of the order, the timeframe for repacked stations to move to their new assigned channel and the definition of competition among TV stations, are attacked in the brief by Sinclair alone, without NAB participation.
The Media Bureau “usurped” FCC authority by allowing access to video programming confidential information (VPCI) in the Comcast/Time Warner Cable and AT&T/DirecTV deals before an application for review against doing so had been considered by the full commission, said a group of programmers in an application for review and emergency stay request filed Friday. The content companies, which include CBS, Disney and Viacom, had filed an application for review and a stay request against the Media Bureau’s protective order for documents in the transaction proceedings. Friday's additional filings challenge the bureau’s Tuesday modification of that protective order and announcement that most of the programmer’s objections were being dismissed (see 1411050050).
Aereo is cutting staff in its Boston and New York offices, Vice President-Communications and Government Relations Virginia Lam emailed us Thursday. “We are continuing to conserve resources while we chart our path,” Lam said. “This was a difficult, but necessary step in order to preserve the company.” In a letter to the company's Boston employees obtained by website Betaboston, Aereo CEO Chet Kanojia said the company has been unable to obtain outside investments since the recent nationwide injunction was granted against it by U.S. District Court in Manhattan Judge Alison Nathan. Lam said the company is looking for a way to continue. FCC Chairman Tom Wheeler and other commission officials have recently mentioned Aereo extensively in connection with a draft NPRM on classifying linear over-the-top video services as multichannel video programming distributors. The broadcasters' case against Aereo in New York has yet to be tried on the merits, and would likely continue in some form even if Aereo were to go out of business, Fletcher Heald attorneys Harry Cole and Kevin Goldberg told us. Though not involved in the case, Cole and Goldberg follow it for the firm's blog. Though broadcasters could pursue their case even if Aereo were to go out of business, the sort of default judgments that likely would occur with a defunct defendant are unlikely to further the broadcasters' legal agenda, said Cole and Goldberg. Fletcher Heald represents broadcasters, though not in any cases involving Aereo. Lam declined to comment further on the scope of the layoffs.
A draft rulemaking notice seeking comment on allowing broadcasters to communicate contest rule information online rather than over-the-air owes its presence on the FCC's November agenda partly to a June blog post by FCC Commissioner Michael O'Rielly, several broadcast attorneys and an FCC official told us Thursday. Proposed in a petition from Entercom Executive Vice President Jack Donlevie in 2012, the item has languished since, despite receiving no opposition. “Small changes to our Contest Rule could improve consumer notice and options for broadcaster compliance,” O'Rielly said in the post endorsing the rule change. The item is set for a vote at the Nov. 21 open meeting.
The FCC Media Bureau rejected most objections by content companies against lawyers looking at their confidential documents and will start the shot clock for AT&T's planned buy of DirecTV and Comcast/Time Warner Cable in five days, the Media Bureau said in several orders (here, here, here and here). The shot clock will turn back on Wednesday Nov. 12, a bureau spokeswoman told us. The bureau will also issue a public notice announcing new pleading cycles for the deals, the orders said. The orders rejected objections against 245 people being allowed to view confidential contract documents that had been filed by a group of content companies that include Disney, Viacom and 21st Century Fox (see 1410170055).
A Nexstar deal involving a joint sales agreement with Marshall Broadcasting was approved Friday only after the companies rearranged the financing on the transaction and withdrew a request for a JSA waiver, according to FCC documents, a broadcast attorney and documents filed with the commission. The deal involved the transfer of six stations from the estate of Milton Grant to Nexstar, and one station, KLJB Davenport, Iowa, to Marshall Broadcasting.
FCC TVStudy repacking software undervalues the coverage area of some Class A TV stations due to a flaw in how data on the stations is inputted, said the Expanding Opportunities for Broadcasters Coalition in an informal comment filed Friday. The incorrect data causes TVStudy to underpredict some Class A contours and interference, and would cause the affected stations to be undervalued in the auction or to experience interference issues on being repacked, EOBC Executive Director Preston Padden told us. It should not be hard for the FCC to correct the input error and fix the problem, and he expects that it will do so, Padden said. The EOBC's spotting an error in the software is an example of why the FCC has tried to be transparent about the incentive auction, an agency spokeswoman told us, saying the commission welcomed the EOBC filing.