Some parts of the FCC media ownership order are seen as more vulnerable than others, broadcast and public interest attorneys and former commission officials told us Monday. FCC justification for a revenue-based eligible entity standard (see 1608250063) is on firmer ground than its justifications for retaining most of its broadcast ownership rules, numerous broadcast attorneys said. There’s room for arguments against many aspects of the order, and court challenges and a return to the 3rd U.S. Circuit Court of Appeals (see 1605250073) are seen as extremely likely, lawyers said.
Notable CROSS rulings
A European Commission-produced draft impact assessment for its planned copyright law revamp proposal is prompting some U.S.-based digital rights and tech sector stakeholders to renew their concerns about the proposal’s scope, before its planned release in late September. The draft, leaked by EU watchdog group Statewatch, discusses possible impacts of multiple copyright issues. U.S. officials emphasized their concerns about a possible pan-EU ancillary copyright aimed at allowing publishers to claim royalties from news aggregation services like Google News. Officials told us they also believe the document indicates the EC won’t seek to fully end European “geoblocking” policies that make cross-border portability of digital content in the EU more difficult. In its original copyright revamp proposal released in December (see 1512110018), the EC proposed both an end to geoblocking and the ancillary copyright, which some critics labeled a “snippet tax.”
Many major cable distributors have almost crossed the finish line on full digital conversion of their analog signals, but digital transition progress for smaller operators is more of a mixed bag, said companies and industry experts. Most small to midsize cable operators will go digital, or even transition to IPTV, within a decade, American Cable Association President Matt Polka told us. "We want to get there," he said. "We need to maximize our networks to be more efficient so we can reclaim more bandwidth [for broadband]. The issue becomes one of complexity, size, technology and available resources."
The FCC is expected to have a busy few months before the Nov. 8 election as it finalizes key parts of Chairman Tom Wheeler’s remaining agenda. The set-top box order appears headed for a vote at the Sept. 29 open meeting (see 1608240064). Orders overhauling the special access market and imposing privacy rules on ISPs are expected at commissioners' October meeting, agency and industry officials told us. The growing consensus is Wheeler may have several additional months as chairman if Hillary Clinton wins the presidency (see 1608240057). In reality, the time to move his agenda is limited, the officials said. The FCC didn't comment Friday.
The FCC released its media ownership order Thursday. As expected, the order approved Aug. 10 on a party line 3-2 vote (see 1608110058) resolves the 2010 and 2014 quadrennial reviews, leaves most existing ownership rules in place and restores joint sales agreement rules that were knocked down by the 3rd U.S Circuit Court of Appeals. “The record in this proceeding leads us to conclude that retaining the existing rules is the best way to promote our policy goals in local markets at this time,” the FCC said. A court challenge is likely by all sides, both allies of media deregulation and its foes said in interviews.
Health insurance companies are asking for more clarity on implementation of the Telephone Consumer Protection Act, beyond what the FCC sought to provide a year ago in an order and declaratory ruling (see 1506180046). The Consumer and Governmental Affairs Bureau agreed to seek comment. The insurance companies asked the agency to clarify that provision of a phone number to a “covered entity” or “business associate,” as defined under the Health Insurance Portability and Accountability Act (HIPAA), constitutes prior express consent for nontelemarketing calls, said a bureau notice. “The Petitioners contend that such ruling and/or clarification is necessary to harmonize the TCPA, HIPAA, and prior Commission rulings while protecting important health care communications,” the bureau said in a notice. Anthem, the Blue Cross Blue Shield Association, WellCare Health Plans and the American Association of Healthcare Administrative Management signed the petition. Comments are due Sept. 19, replies Oct. 4, in docket 02-278.
The FCC wants real industry progress on curbing robocalls and isn’t afraid to step in if its new industry-led Robocall Strike Force falters, Chairman Tom Wheeler said Friday as he opened the group's first meeting at commission headquarters. The agency expects recommendations by Oct. 19, Wheeler said. The “bad guys” are beating industry on technology because they have a profit motive to do so, he said. AT&T CEO Randall Stephenson, chairing the group, said robocallers are a “formidable” foe and the problem is complex.
The FCC voted 3-2 along party lines to approve a media ownership order Wednesday that, as expected (see 1608080051), largely resembles its 2014 NPRM, industry and agency officials told us. An spokesman confirmed the item had been voted, but details of the voting breakdown and the text of the order weren't released. FCC and industry officials told us the item was approved by all three Democratic commissioners and opposed by both Republicans, and keeps most ownership rules in place and resurrects joint sales agreement (JSA) ownership attribution rules that were vacated by the 3rd U.S. Circuit Court of Appeals.
A now abandoned eighth-floor proposal to relax newspaper/broadcast cross-ownership rules limiting common holdings of daily newspapers and radio or TV stations in the same market was connected with discussions about whether such NBCO relief would come with long-sought diversity studies, informed sources including industry officials said. The idea to eliminate the NBCO isn't being pursued because Commissioner Mignon Clyburn wanted the FCC to conduct such studies if it pursued cross-ownership deregulation, some said. Chairman Tom Wheeler had been seeking ways to get a unanimous vote on the draft media ownership order, officials told us. Now, some say, a 3-2 vote to approve the order is the most likely outcome.
Support on the eighth floor for a compromise media ownership order that would have eliminated newspaper-broadcast cross-ownership (NBCO) rules has collapsed, and a draft order that keeps the provision in place is seen as nearly certain to be approved 3-2, FCC officials told us Monday. The alternative draft order to eliminate NBCO was seen as having support from Chairman Tom Wheeler and Commissioner Jessica Rosenworcel (see 1607290063). Their support was conditioned on the item also being backed by Commissioner Mignon Clyburn, current and former FCC officials told us.