FCC approval of the $963 million purchase by Sinclair Broadcast of Allbritton Communications’ TV stations is expected to come by way of a Media Bureau decision on delegated authority this week, broadcast attorneys and public interest officials told us. The Department of Justice filed a consent decree announcing its conditional support for the deal last week (CD July 16 p8), and the FCC traditionally issues its decisions on deals after DOJ weighs in, several broadcast attorneys said in interviews Monday. Sinclair has asked the bureau to issue a decision before July 27, because the purchase agreement allows either party to terminate the deal on or after July 28 (CD May 30 p1). It’s unlikely that the Media Bureau would allow the clock on the deal to run out without weighing in, and the time limit makes it doubtful that the decision would be a full commission vote, the attorneys told us. The FCC’s next open meeting is August 8.
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 makeup of the FCC review team that will oversee Comcast’s proposed buy of Time Warner Cable (CD July 8 p1) seems designed to show that the commission will be taking extra care with the transaction, but doesn’t indicate the direction the regulatory approval process will take, said industry officials in recent interviews. The inclusion of Northwestern University economists William Rogerson and Shane Greenstein on the task force indicates the commission is planning a “deep dive” on Comcast/Time Warner Cable, said BakerHostetler cable attorney Gary Lutzker. It’s not unusual for the FCC to seek high-level help on such a massive, important transaction, said Fletcher Heald attorney Tom Dougherty, who handles many communications deals. Comments on such a deal are likely to be voluminous and complicated, and that requires expert staff, Dougherty said.
Comcast and TiVo reached a voluntary agreement under which the operator will abide by CableCARD rules vacated by the U.S. Court of Appeals for the D.C. Circuit and work with TiVo to develop a two-way non-CableCARD security solution to replace CableCARD, the companies told the FCC (http://bit.ly/1wuQG4I). TiVo will use the solution developed by Comcast in its set-top boxes. CEA, which has aligned with TiVo against cable interests in past efforts to protect CableCARD rules, said it was “supportive” of the companies’ efforts to find a successor to CableCARDs. Last year, the D.C. Circuit vacated some encryption rules in EchoStar v. FCC but not the entire CableCARD regime, leading TiVo to petition the FCC to confirm the rules still applied.
Aereo’s request that a federal court issue it a compulsory copyright license under 1976 Copyright Act Section 111 isn’t a clear path to survival for the streaming TV service, industry and public interest attorneys told us Thursday. The Supreme Court ruling that Aereo should be treated as a cable system when it retransmits content because it resembles one (CD June 26 p1) also means Aereo should be granted the same type of copyright licenses as cable systems, Aereo said in a joint status letter with broadcasters (http://bit.ly/1sDoJY3) to U.S. District Judge Alison Nathan in New York. That also means an injunction that broadcasters are seeking against Aereo’s business shouldn’t be granted, Aereo said in Wednesday’s filing. If Aereo is a cable system, “the transmissions Plaintiffs have sought to enjoin do not infringe Plaintiffs’ rights,” Aereo said. The question of whether it should be granted a compulsory license is “inextricably intertwined” with the question of the injunction, said the company.
The FCC should cap the total interference that TV stations will experience as a result of the TV incentive auction repacking, said NAB, affiliates of Block Communications and consulting engineering firm Cohen Dippell in comments on a public notice (CD June 4 p17) on how much interference broadcasters are likely to see as a result of the repack. Though the incentive auction order proposed that stations’ new interference reception would be limited to 0.5 percent per station repacked, commenters all proposed solutions that would limit the total new interference any station could receive, rather than the total per repacked station.
The first week of online political file requirements applying to all TV stations is going smoothly, with close to 2,000 uploads of political advertising buyer information, said public interest officials and an FCC spokesman in interviews last week. Although top-50 market TV stations have had to post political ad data online for two years, smaller broadcasters have only been required to do since Monday (CD April 8 p5). Contested primaries in states such as Alaska and Arkansas seem to have driven most of the early filings, said Sunlight Foundation Managing Editor Kathy Kiely. The real test of broadcaster response to the new filing requirement will come in the fall, as political ads will arrive with higher frequency, said Kiely and several broadcast attorneys with clients that are obligated under the new rules.
Comments on an FCC public notice on the aggregate interference cap and use of proxy channels in repacking stations were due Wednesday, the same day the item appeared Federal Register (http://1.usa.gov/1lU9gBZ). The lack of notice stems from a mix up in delivering the information to the Federal Register, an FCC official told us. The commission will likely be lenient in accepting late comments on the item, the official said. The public notice announcing the call for comments was released by the FCC June 2 (CD June 4 p17). Replies are due July 22.
An upcoming FCC order requiring closed captions (CD June 18 p10) for online video clips will likely apply to all video clips of material that previously aired on TV, on websites owned by video programming distributors no matter the clip length, said FCC and industry officials in interviews Wednesday. The order is still being finalized, but would also give VPDs a 12-hour grace period to caption “time-sensitive” or live clips, defer the issue of responsibility for third-party clips to a further rulemaking and sets deadlines for compliance starting in 2016, they said. “We are really thrilled the commission is taking steps to address this issue,” said attorney Blake Reid of the University of Colorado, who represents consumer group Telecommunications for the Deaf and Hard of Hearing. Democratic commissioners are all seen as supporting the order (CD Feb 21 p5), which is on the preliminary agenda for the July 11 FCC meeting.
A Pandora request that the FCC issue a declaratory ruling that it complies with foreign ownership rules could have implications for future tests of the FCC’s newly relaxed policy toward foreign ownership (CD Nov 15 p3), and could end up decided by a commission vote rather than a bureau-level decision, said broadcast attorneys in interviews this week. Commissioners Ajit Pai and Mike O'Rielly condemned the wording of the commission’s declaratory ruling at the time for being too vague, and it’s not clear what sort of precedent approval of Pandora’s petition would set, the attorneys said. The rule was partially intended to provide access to capital for minority station owners -- a situation that doesn’t apply to Pandora, attorneys said. “We were hoping the first few filings would be minority broadcasters seeking new financing,” said Minority Media and Telecommunications Council President David Honig, who had been a strong supporter of relaxing the foreign ownership restriction.
The U.S Supreme Court’s decision on Aereo (CD June 26 p1) may have a bigger effect on new technology than majority opinion author Justice Stephen Breyer intended, especially for tech related to TV, said representatives from several trade associations in interviews. By saying companies with an end-product that resembles cable TV should be treated similarly to cable TV by copyright law, the court’s opinion is likely to chill investment interest in tech that appears to deliver a similar product to cable, said American Cable Association President Matt Polka. ACA filed a brief in the case in support of Aereo. “This is not a good thing for consumers,” Polka said: The decision “really calls into question the ability of companies to innovate.” Aereo said over the weekend it’s shutting its service. (See separate report in this issue.)