NAB and the News Media Alliance appealed the FCC’s 2014 quadrennial review and accompanying media ownership rules in the U.S. Court of Appeals for the D.C. Circuit, according to an NMA news release and court filings. “It makes no sense at all to prevent newspapers from helping to fund this essential activity by receiving capital and collaboration by an aligned industry such as broadcasting,” said NMA President David Chavern in the release. The orders violate the Administrative Procedure Act and the Communications Act, since the FCC retained rules against newspaper/broadcast cross ownership “with only minimal change” despite “substantial" evidence that the rule no longer serves the public interest, said the NMA appeal (see 1608250063). NAB also filed its own appeal of the quadrennial review in the D.C. Circuit Monday, as expected (see 1611090061). Like NMA, NAB also challenged the FCC's action as a violation of the APA and agency discretion. "The broadcast ownership rules are relics of a long-gone era," NAB said in its appeal. "Many have not been updated in several decades, despite dramatic evolution in the communications landscape that has eroded the rules' original public-interest justifications and fundamentally altered the nature of competition." Prometheus Radio Project filed an appeal in the 3rd U.S. Circuit Court of Appeals. Though NAB and NMA filed in time to be part of an expected lottery to determine where the case should be heard, both associations said they wouldn’t object if the case is transferred to the 3rd Circuit, as many expect it to be. The FCC didn't comment.
Notable CROSS rulings
Broadcast attorneys and public interest groups describe the 3rd U.S. Circuit Court of Appeals as “frustrated” with FCC actions on media ownership and likely to look favorably on appeals of the 2014 quadrennial review. Prometheus Radio Project filed one such appeal last week in the 3rd Circuit (see 1611040054), and NAB has said it will file another in the D.C. Circuit by Monday (see 1611070052). The Multicultural Media, Telecom and Internet Council has also said it will appeal the ownership rules.
A U.S. District judge was right to deny enforcement of an arbitrator prohibition of future strikes by the International Brotherhood of Electrical Workers, AFL-CIO, Local Union No. 3, said the National Labor Relations Board in an intervenor brief (in Pacer) filed Thursday with the 2nd U.S. Circuit Court of Appeals. The Supreme Court has said a waiver of strike rights usually doesn't survive expiration of the contract that the waiver is in, NLRB said, saying if the court agrees with the agency's ruling that no valid contract between the union and Time Warner Cable contained a waiver of employees' right to strike, then the arbitrator had no legal basis for prohibiting future strikes. NLRB said it wasn't taking a position on the monetary part of the judgment that Local 3 is appealing or on whether Local 3 waived its right to contest the arbitrator's jurisdiction when it took part in the arbitration proceedings. Local 3 is appealing a U.S. District Court in Brooklyn ruling upholding those arbitrator awards, and the company is cross-appealing the portion of the Brooklyn court's judgment that denied confirmation of part of a 2015 final arbitration award ordering the union to refrain from further violations (see 1608300029). TWC, now owned by Charter Communications, didn't comment.
Some internal ICANN community and domain name policy issues are expected to dominate the organization's meeting in Hyderabad, India, as the recently implemented Internet Assigned Numbers Authority transition recedes in ICANN's rear-view mirror, stakeholders said in interviews. The IANA oversight handoff, which occurred Oct. 1 (see 1610030042), had been the main focus or an underlying influence at every ICANN meeting since NTIA announced the transition in March 2014, stakeholders said. The Hyderabad meeting isn't going to result in final resolution of ICANN's outstanding organizational and policy issues, but it will help the community better focus on its future, they said. The meeting is to run from Thursday through Nov. 9.
With its quadrennial review media ownership order, the FCC is providing “an impressive imitation of an ostrich with its head in the sand,” said NAB Senior Deputy General Counsel Jerianne Timmerman in a blog post Tuesday. The quadrennial review order was published in the Federal Register Tuesday (see 1611010027). “The FCC again asserted that 'non-broadcast video programming distributors' are not meaningful competitors in local TV markets, virtually ignoring a host of 20th and 21st century technologies (including cable, satellite, mobile devices and the internet) to retain its local TV ownership restriction,” Timmerman said. By maintaining the newspaper/broadcast cross-ownership (NBCO) ban, “the FCC essentially concluded that little or nothing of import has changed in the news industry and the marketplace position of print newspapers and broadcast stations for the past 41 years -- a nonsensical position on its face,” Timmerman said. She criticized the NBCO rule as out of date and arbitrary, since it only applies to papers “published” four or more days a week. “It borders on the absurd to contend that the viewpoint diversity concerns supposedly sufficient to ban the common ownership of a station and a newspaper publishing a print edition four days a week magically disappear when the newspaper publishes online every day but publishes in print only three days a week,” said Timmerman. Though the FCC touted the order as slightly relaxing the NBCO ban by providing a waiver process, that addition provides minimal change, Timmerman said. “The exception for failed/failing outlets, and the new waiver standard for newspaper/broadcast combinations not 'unduly harm[ing] viewpoint diversity,' fail to go beyond pre-existing waiver opportunities for broadcasters and newspaper owners,” she said. “The FCC has done nothing substantive here.” The agency didn't comment.
Time Warner Cable's (TWC) assertion that there was a collective bargaining agreement (CBA) with the International Brotherhood of Electrical Workers, AFL-CIO, Local Union No. 3 at the time of an alleged contractual breach ignores that the National Labor Relations Board (NLRB) definitively ruled the opposite, the union said in a reply brief (in Pacer) Friday in the 2nd U.S. Circuit Court of Appeals. The union said it doesn't dispute that through most of the arbitration process it also mistakenly believed there was a CBA with TWC, but TWC "is attempting an end run" around the statutory procedure for appealing the NLRB decision. And since TWC never asked for review of the NLRB decision by the appellate court, the court doesn't have jurisdiction to rule on the validity of that decision, the union said. Local 3 said it also isn't clear the arbitrator who awarded damages to TWC had authority to do so given a NLRB decision that no CBA was in place, and it isn't clear how expired contractual terms like a no-strike provision can survive the expiration of a CBA. Local 3 is appealing a U.S. District Court in Brooklyn ruling upholding those arbitrator awards, and the company is cross-appealing the portion of the Brooklyn court's judgment that denied confirmation of part of a 2015 final arbitration award ordering the union to refrain from further violations (see 1608300029). TWC, now owned by Charter Communications, didn't comment.
House Communications Subcommittee Vice Chairman Bob Latta, R-Ohio, will host FCC Commissioner Mike O’Rielly Tuesday at Owens State Community College in Perrysburg, Ohio, for what Latta’s office is dubbing an Ohio broadcasters’ forum. A Latta aide told us AM revitalization, the incentive auction repacking process and media cross-ownership rules may be among the topics.
The FTC plans to issue a report on the half-day cross-device workshop it held about a year ago (see 1511160066), said Megan Cox, staff attorney in the Division of Privacy and Identity Protection, during a Thursday Practising Law Institute seminar. She provided few details, but said the FTC is working on the report to discuss lessons learned and provide staff recommendations. Reed Freeman, a WilmerHale privacy and cybersecurity lawyer who was leading the PLI seminar, called it "welcome news" for the industry.
The FCC's "thoughtful and collaborative" AM revitalization process is in stark contrast to its "misguided, partisan decision" in media ownership rules, Commissioner Mike O'Rielly said Tuesday at the International Broadcasters IdeaBank Conference in Buffalo, New York, according to a transcript online. With the FCC having been in court in the past over its handling of the quadrennial review of media ownership rules, O'Rielly said, "the unrealistic nature of the latest attempt" will likely meet the same fate. "It is incomprehensible and patently unfair that broadcasters alone should be kept on this particular regulatory leash, while their competitors roam the radically expanded landscape relatively free of Commission interference," O'Rielly said. He also urged the agency to "take a more realistic view" of the media market by including nonbroadcast and non-newspaper competitors in its analysis: "An updated market definition could set the table for us to better promote localism, competition, and diversity by thoughtfully removing outdated restrictions to media combinations." O'Rielly and Commissioner Ajit Pai unsuccessfully supported more-relaxed newspaper-broadcast cross-ownership rules in the media ownership order (see 1608250063). O'Rielly also said he hoped the FCC's update of contest rule will lead to broadcasters' ability to use the internet for fulfilling other regulatory requirements like sponsorship identification and broad advertising of employment opportunities.
With South Korea having adopted the ATSC 3.0 broadcast TV standard earlier this year, the U.S. needs "to get moving, too," FCC Commissioner Ajit Pai told the Kansas Association of Broadcasters Convention Monday, hoping for an ATSC 3.0 NPRM to be issued before year's end. In remarks posted, Pai said the FCC's goal should be adoption of rules authorizing ATSC 3.0 use in the first half of 2017. "This shouldn't be controversial; all we are talking about is giving broadcasters the option of using ATSC 3.0," Pai said. "No one would be required to do so." On radio issues, the Media Bureau has received 957 FM translator applications from AM radio stations, and granted 854, Pai said. He said he plans to press for two other application windows for AM broadcasters applying to the FCC for new FM translators to open "as soon as possible in 2017." Some have raised concerns about possible interference (see 1609230067). Pai said the agency "should take action" early next year on some AM revitalization issues that enjoy broad consensus, such as relaxing the main studio rule. Pai also said he hopes the FCC will lift the public file requirement on broadcasters by year's end. And he criticized the agency's retention of the newspaper-broadcast cross-ownership rule: "It was all about politics. And I fear that at the rate we are going, the ... cross-ownership rule will outlive newspapers themselves, absent judicial intervention."