An FCC reconsideration order that would relax broadcast ownership rules is still expected in September or October, attorneys and industry officials told us (see 1707190054). The item, an order on reconsideration of the 2014 quadrennial review, is expected to make it easier for the Sinclair/Tribune deal to be approved without divestitures. Industry officials and attorneys said it's widely expected to roll back newspaper/broadcast cross-ownership rules and rules on joint sales agreement (JSA) attribution, and may also relax or change the eight-voices test and top-four network rule. The American Television Alliance met with FCC officials last week to urge the commission not to eliminate the top-four network rule.
Notable CROSS rulings
Facebook prevailed in a lawsuit against a country-rap artist who sought removal of pages, and the musician said he'll continue the suit. The Court of Appeal of California, 1st Appellate District Division 2, decided last week that Mikel Knight's allegations were insufficient to defeat an anti-SLAPP (strategic lawsuits against public participation) motion. The opinion, posted by the Electronic Frontier Foundation that filed an amicus brief for Facebook, reversed in part a lower court ruling. In Cross v. Facebook, Knight, whose real name is Jason Cross, sued because some users created "Families Against Mikel Knight." In a statement, Knight said Friday: "I'm a Texan! A place historically known for fighting big battles and winning. We will see them in the Supreme Court." The page was created after independent album-selling contractors hired by Knight's marketing company were involved in auto crashes. Knight alleged comments incited "violence and death threats" against him and members of his label. Facebook refused to take down the pages. Its anti-SLAPP motion said the suit's claims were barred by the Communications Decency Act and not viable under California law. The trial court said CDA barred three claims but let stand the others including the right of publicity, which protects a form of IP. Knight alleged Facebook continued to place ads on the unauthorized pages and generated revenue using his name or likeness, but the appeals court said he didn't show the ads appearing next to the pages used his name or likeness or were created by Facebook: "Evidence demonstrates that Facebook has not used Knight‘s identity, and any right of publicity claims fail for this reason alone. Likewise for failure to show appropriation." EFF said if the superior court ruling were allowed to stand, it "would have threatened a huge range of online expression."
A National Labor Relations Board determination that CNN and Team Video Services (TVS) were joint employers of technicians who then were laid off was faulty because the NLRB standard for making that determination was inconsistent with precedent and didn't explain why precedents don't govern, the U.S. Court of Appeals for the D.C. Circuit decided (in Pacer) Friday. The ruling by Judges Merrick Garland, Cornelia Pillard and Brett Kavanaugh and written by Garland included a Kavanaugh partial dissent. The majority opinion said the NLRB isn't barred from finding CNN a joint employer or using a different standard for determining joint-employer relationships, but the court can't enforce that. The D.C. Circuit granted CNN's cross-petition for reconsideration on labor law violations that flowed from the joint-employer finding, but it granted the board's application and denied the Time Warner unit's petition for review on violations not dependent on the joint-employer finding. Kavanaugh said NLRB failed on finding CNN a successor employer to TVS. Kavanaugh didn't see substantial evidence that CNN hiring decisions discriminated against former TVS workers. NLRB counsel didn't comment; CNN said it's reviewing the decision.
Policy to make room for new internet infrastructure on utility poles remains fraught with uncertainty as three federal courts review the practice and the FCC mulls ways to remove broadband deployment barriers, telecom attorneys said in interviews last week. Frontier sued West Virginia this month in the U.S. District Court in Charleston, West Virginia, over a state law enacted in April requiring one-touch, make-ready (see 1704100057). The suit is like AT&T, Comcast and Charter challenges to OTMR local ordinances in Nashville and Louisville. Legal scraps are “microcosms” of the pending FCC infrastructure proceedings, said Ewell Brown's David Brown, a Texas attorney who represents municipally owned CPS Energy.
Antitrust experts are at odds over how AT&T's proposed buy of Time Warner could shake out at DOJ's Antitrust Division, at least on conditions on approval, though OK is expected. There are questions about what kind of changes a Trump administration would represent in how Justice approaches antitrust (see 1611180043), but agency leadership appointees are consistent with what one would expect in a traditional Republican administration, likely indicating a traditional approach, said an antitrust lawyer. The Trump DOJ is likely traditionally Republican on antitrust -- more accommodating and permissive -- but "there will be the occasional lightning strike," said Brian Quinn, Boston College associate law professor, but "If there's going to be a lightning strike, [AT&T/TW] is going to be the deal." AT&T and DOJ didn't comment.
The tone of the House Communications Subcommittee’s Tuesday FCC oversight hearing is likely to turn on the degree to which Chairman Marsha Blackburn, R-Tenn., and other Republicans focus on Blackburn’s draft FCC reauthorization bill at the expense of other hot-button policy issues, communications sector lobbyists told us. House Democrats are likely to air pent-up grievances about controversial topics, particularly the May NPRM examining 2015 net neutrality rules and reclassification of broadband as a Communications Act Title II service, lobbyists said. Senate Commerce Committee Democrats repeatedly referenced their concerns about a potential rollback of the rules amid a confirmation hearing last week for Chairman Ajit Pai and Commissioner nominees Brendan Carr and Jessica Rosenworcel (see 1707190049). Pai and FCC Commissioners Mignon Clyburn and Mike O’Rielly are to testify at the hearing, which will begin at 10 a.m. in 2123 Rayburn.
ISPs and privacy advocates are watching California, after other states’ broadband privacy legislation failed to cross the finish line. Privacy advocates tell us passing the California bill could rebuild momentum for state bills that lost steam after initial excitement in about 20 states to counter President Donald Trump for repealing the FCC privacy rules through the Congressional Review Act. It’s “very much a 2018 fight” in the other states, said Electronic Frontier Foundation Legislative Counsel Ernesto Falcon.
The FCC is expected to vote in September on an order of reconsideration that would roll back many media ownership regulations, industry officials said in interviews. The item, an order on recon of the 2014 quadrennial review, is expected to be circulated to commissioners' offices next month, after their Aug. 3 meeting, broadcast allies said. Though the scope of the item is likely still in flux, most broadcast industry officials we spoke with expect the item to roll back or relax rules governing the attribution of joint sales agreements (JSAs), broadcast cross-ownership, and rules that bar broadcasters from owning multiple stations in a market.
The global cyberattack last week called by some NotPetya, soon after WannaCry (see 1705150008 and 1705160008), shows attacks may get worse before industry and government take more action, said several cybersecurity experts interviewed Thursday. "I don't think we've hit the tipping point" on strongly addressing the issue, said Betsy Cooper, executive director for the Center for Long-Term Cybersecurity at University of California, Berkeley. "I definitely think the increased frequency of widescale attacks suggests we're closer than we were six or 12 months ago." She said the tipping point will be crossed when individual consumers stop thinking their internet transaction are secure.
An agreement between T-Mobile and PBS for the wireless company to pay for PBS low-power facilities displaced by the incentive auction to move to new channels isn’t seen as likely to pave the way for other large-scale agreements whereby wireless companies fund large numbers of broadcaster relocations, translator and low-power TV industry officials told us. There isn’t another large, “one-stop-shop” entity that owns hundreds of translators, said Jim McDonald, former president of the National Translator Association.