A draft rulemaking notice on broadening the definition of a multichannel video programming distributor to include certain types of over-the-top video hasn’t been shared with most eighth-floor commissioners’ offices and won’t necessarily go on circulation, an FCC official and officials in several eighth-floor offices told us Tuesday. The eighth-floor officials said they had received no information about the draft NPRM. Calling the item “a proposal going around” is “a bit of an overstatement,” Chairman Tom Wheeler said at a news conference after Tuesday’s FCC meeting. “I'm not ready to plant the flag,” he said.
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 .
The FCC’s first-of-its-kind auction may present complexities beyond the technical details for longtime telecom attorneys with clients that may sell broadcast-TV frequencies to the agency or wireless carriers that may be wanting to buy that relinquished spectrum for wireless broadband. Such firms representing multiple clients in the incentive auction, which government and industry officials have called extremely complex, may face challenges avoiding conflicts of interest, said wireless and broadcast attorneys in recent interviews. Firms that represent both wireless and broadcast clients -- such as Wilkinson Barker and Wiley Rein -- may not be able to do so in the auction, under local bar association ethics rules or possibly FCC anti-collusion rules, the attorneys said. Since the parties are buyer and seller on opposite sides, firms may not be able to act for both kinds of participants in the auction expected to raise many billions of dollars.
Comcast’s attacks on programmers, Dish Network, Netflix and others in the reply comments filed in docket 14-57 and released Wednesday (CD Sept 25 p6) aren’t likely to have much effect on the eventual outcome of FCC review of Comcast/Time Warner Cable, said cable industry observers in interviews Thursday. Comcast and its opponents are both “posturing,” said Mediacom Group Vice President-Legal and Public Affairs Tom Larsen. Mediacom has not filed comments in the Comcast/TWC proceeding. FCC merger review teams are “more insulated” from comments and news reports and not likely to respond to “rhetoric,” said Free Press Policy Director Matt Wood. Free Press filed a petition to deny Comcast/TWC. Other entities appeared to take Comcast’s accusations more seriously -- public interest group Common Cause demanded an apology. “Comcast’s suggestion that we've offered to withdraw our opposition in return for favors from the company is absolutely unfounded and untrue,” said former FCC Commissioner Michael Copps in a news release (http://bit.ly/1BcVL3Q). Copps is special adviser to Common Cause’s Media and Democracy Reform Initiative.
Broadcasters asked the FCC not to require Comcast and Time Warner Cable to disclose sensitive retransmission consent information as part of the combining cable companies’ response to the agency’s recent request for more information on the deal, said a letter posted Monday in docket 14-57 (http://bit.ly/1sVbe42). Though such documents would be treated as confidential and redacted to anyone not a party involved in the proceeding, said the letter addressed to Media Bureau Chief Bill Lake from E.W. Scripps, Gray Television, LIN Television, Nexstar and Sinclair, it asked that FCC officials instead view the agreements at the Department of Justice. “Given the large number of parties to this proceeding, we have many concerns about the potential widespread dissemination of these extremely competitively sensitive documents, even if only among outside counsel,” said the broadcasters.
Sinclair’s petition for review of the FCC incentive auction order (CD Sept 19 p12) raises a broader scope of issues than the NAB challenge (CD Aug 19 p1), and the company hasn’t decided if it will push for an expedited hearing of the case as did NAB and the FCC, Sinclair Vice President-Advanced Technology Mark Aitken told us Friday. The U.S. Court of Appeals for the D.C. Circuit issued an order Friday consolidating the two petitions and vacating the expedited briefing schedule requested by NAB and FCC.
FCC Chairman Tom Wheeler isn’t seen as having made a decision on Comcast’s proposed buy of Time Warner Cable, said analysts, cable industry and public interest officials in interviews this week. Ex-FCC Chief of Staff Blair Levin doesn’t believe a decision on the merger has yet been made, he said in a conference call. The Department of Justice will decide if the deal should be approved, he said. Wheeler “may know where he’s leaning” but it’s “inconceivable” he would decide the fate of the deal before the Sept. 23 due date for Comcast and TWC’s opposition filings, said Georgetown Law Institute for Public Representation Senior Counselor Andrew Schwartzman. The FCC is also awaiting responses from Comcast, Charter Communications and TWC to the Media Bureau’s detailed information requests related to the deal and to Charter’s buying divested systems (CD Aug 26 p1), which were due Thursday, Schwartzman said. “Even if he made a decision, he doesn’t necessarily have the three votes” needed for a majority vote on the FCC, Schwartzman said.
Public interest groups opposing relaxation of FCC ownership rules “rely on the myth of the media mogul boogeyman,” said NAB in replies (http://bit.ly/1opj4l5) to a 2014 quadrennial review Further NPRM in docket 14-50 (CD Aug 8 p7). Broadcasters don’t have “a dominant hold on the attention of audiences” that warrants heavy regulation, NAB said. Public interest groups such as Common Cause chastised the FCC for not doing enough to increase ownership diversity. Other commenters said no evidence has been presented to justify the newspaper/broadcast cross-ownership rule, and several groups urged the FCC to regulate and require disclosure of shared service agreements (SSA).
Draft NPRMs on several items about the incentive auction will be circulated to FCC commissioners this week and as early as Tuesday, said agency and industry officials in interviews Friday and Monday, after a low-power TV (LPTV) official said he had heard the items were coming (CD Sept 8 p12). They said the draft NPRMs will concern the auction’s effect on LPTV, wireless mics, Part 15 unlicensed spectrum and aggregate interference issues affecting broadcasters. FCC staff overseeing the auction have suggested that issues such as wireless mics and LPTV would be taken up by the commission in advance, and NAB and other broadcast interests have been vocal about concerns over the FCC’s predictions for interference. “Each of these issues is thorny and complicated, so they will take time to sort out,” said NAB Executive Vice President-Strategic Planning Rick Kaplan.
An NPRM on the incentive auction and low-power TV will be circulated to the FCC commissioners’ offices next week, LPTV Spectrum Rights Coalition Director Mike Gravino told us Friday. The information came from Media Bureau Chief Bill Lake, Gravino said. The FCC and bureau declined to comment. Lake said the NPRM was in the works at April’s NAB Show. Auction-related NPRMs on Part-15 unlicensed spectrum, wireless mics and aggregate interference will go on circulation at the same time, Gravino said. After the LPTV notice, the commission will also hold a LEARN (Learn Everything About Reverse-Auctions Now) session on the impact of the auction on LPTV, Gravino said the bureau told him. “While the exact date is not available, we anticipate this important event to be held in October or November 2014,” Gravino said in an email to coalition members (http://bit.ly/1xml6Mb). “We are glad the FCC has stepped up and is now giving LPTV their full attention for our very important rule making.” Though Fletcher Heald LPTV attorney Peter Tannenwald said it’s good that the FCC is moving quickly to address LPTV issues, he said the timing might also make the rulemaking more difficult, since many details of the auction still remain unclear. The LPTV rulemaking will include the issue of construction permits (CD Sept 5 p8), LPTV channel sharing, and how the commission will handle displacement filings, Gravino said. The Wireless Internet Service Providers Association, which had opposed an extension for LPTV CPs, “looks forward to participating in the Commission’s proceeding so that important issues about the rights of LPTV permittees and licensees can be fully considered in advance of the incentive auction,” said Vice President Alex Phillips.
The FCC will likely issue a blanket extension of construction permit deadlines for LPTV stations, several attorneys who represent such stations said in interviews Thursday. The reply comment period for a petition from Advanced Television Broadcasting Alliance requesting such an extension ended Friday (CD Sept 4 p13). All commenters in docket 03-185 supported such an extension, except the Wireless Internet Service Providers Association, which didn’t respond to our request for comment.