The National Labor Relations Board likely won't address whether a union was bound to a no-strike agreement at the time of its 2014 work stoppage, so putting legal proceedings on that on hold is delayed justice, Time Warner Cable said in a brief (in Pacer) filed Monday in the 2nd U.S. Circuit Court of Appeals. The brief was in opposition to an NLRB motion (in Pacer) filed last week to stay briefings and further proceedings on the appeal until the agency issues a final decision on a related unfair labor practice complaint before it. International Brotherhood of Electrical Workers, AFL-CIO, Local Union No. 3 is appealing a U.S. District Court in Brooklyn's ruling upholding of an arbitrator's award of damages to TWC after the work stoppage, 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 of the no-strike prohibition. The NLRB, in its motion, said such a stay wouldn't impede TWC's ability to collect the money damages of the judgment if it's affirmed, and "the clarifying effects of a Board determination" would help the union and cable operator better evaluate their litigation positions and aid the court in assessing the merits of both sides' appeals. A stay "would also avoid needlessly preempting the Board’s deliberative process in the pending unfair labor practice case," NLRB said. TWC said "whatever the Board may (or may not say) about that issue at some unknown time in the future is of no 'significant value' to this Court, and the NLRB’s speculative and legally baseless assertions to the contrary provide no legitimate basis for this Court to stay its proceedings." If the NLRB rules on whether the union and TWC had a no-strike agreement, it will be based on precedents and legal standards different from those material to the appeal, the company said. It's now part of Charter Communications.
Notable CROSS rulings
A newspaper that has “closed its doors” can no longer be a “voice” for viewpoint diversity purposes, NAB said in an FCC ex parte filing arguing against the newspaper/broadcast cross-ownership rule. “Retaining a rule that deters investment by broadcasters in the struggling print newspaper industry certainly cannot serve the public interest.” The increased options for consuming news on the internet make the rule outdated, NAB said in docket 14-50. “The only result that can rationally be expected from the continued prohibition is to hasten the demise of print newspapers.” A draft order wouldn't fully lift the cross-ownership ban (see 1606280056).
The company behind the popular augmented reality game Pokemon Go said it essentially goofed when it asked for full permission for iOS users who registered through their Google accounts -- and has since fixed it. Some concerns have been raised, including a letter from Sen. Al Franken, D-Minn., to Niantic CEO John Hanke over the company's data collection and use practices (see 1607120072). Unclear is whether there will be a government investigation as one privacy activist sought or if this issue was hyped as another observed mentioned. One expert said it's possible similar privacy concerns may emerge as this technology with geolocation is increasingly used.
Legislation that would significantly change how the FTC investigates and enforces violations and manage other practices advanced during a House Commerce Committee markup Thursday on a 30-20 party-line vote. Republicans rebuffed several major amendments offered by Democrats, who said the bill would weaken the commission (see 1605240042 and 1607120046). On the prior day, the committee passed another FTC-related bill outlawing gag clauses preventing online consumer reviews and one on amateur radio operators (see 1607130023). Ranking member Frank Pallone, D-N.J., told us after the hearing that the FTC Process and Transparency Reform Act (HR-5510) has little chance of becoming law.
Minority-owned TV stations and minority programming will be devastated by the incentive auction, said speakers at Brownout, a panel at the Multicultural Media, Telecom and Internet Council's Access to Capital and Telecom Policy Conference Thursday. Women and minorities will own less than 1 percent of full-power TV stations after the incentive auction, and the low-power stations that carry most minority-focused programming will be nearly wiped out, predicted Ravi Kapur, CEO of network Diya TV, which targets Indian viewers. “It’s stunning that this is happening in plain sight, in front of a very diverse FCC,” he said. “This is a failure on many fronts,” said Hogan Lovells broadcast attorney Ari Fitzgerald.
The FCC decided more than a decade ago that the newspaper/TV cross-ownership ban wasn't in the public interest and it should remove the ban as part of the media ownership proceeding, said NAB in an ex parte filing posted in docket 09-182 Wednesday. The decline of newspapers “appears to be evident to everyone from laypersons to journalists to PhD economists, and should not be lost on the agency charged with reviewing its broadcast ownership rules,” NAB said. “The only result that can rationally be expected from the continued prohibition is to hasten the demise of print newspapers.” A draft media ownership order would leave much of the cross-ownership ban in place (see 1606280056).
Dish Network, DirecTV and the Diego Beekman Mutual Housing Association Housing Development Fund agreed to drop their appeals and cross appeals before the 2nd U.S. Circuit Court of Appeals, said a stipulation (in Pacer) filed Wednesday with the 2nd Circuit. The appeals and cross appeals came after a judge for the U.S. District Court Southern District of New York in March granted the DBS companies' motions to dismiss the lawsuit but rejected their request for attorney fees and costs. Diego Beekman, owner of 38 apartment buildings in the Bronx, sued claiming the DBS companies installed satellite dishes without its approval and caused property damage as a result. U.S. District Judge Katherine Polk Failla in her ruling said the landlord failed to allege exclusive possession of the buildings, which would be required to maintain an action for trespass.
The news publishing industry “continues to be uniquely constrained by a federal rule that deprives newspapers of investment,” said the Newspaper Association of America in meetings with Commissioner Mignon Clyburn, aides to Commissioner Jessica Rosenworcel, and aides to Chairman Tom Wheeler Thursday. “Constraining broadcasting companies from investing in publishing does not foster diversity, localism or competition -- in fact, this irrational and outdated rule prevents investment that could support high-quality journalism in local communities,” said the NAA in docket 14-50. “There is no record evidence that maintaining the cross-ownership rule supports diversity or that repealing it would threaten diversity.” Earlier last week, NAA slammed a draft FCC order that wouldn't junk the newspaper-broadcast cross-ownership ban on same-market properties in both classes (see 1606290052). At the meetings, in addition to lawyers for NAA was Sara Johnson Borton, publisher of South Carolina papers including The State in Columbia and Hilton Head Island's The Island Packet.
FCC draft media ownership rules “have nothing to do with the evidence in the record, principled decision-making, or the law,” and would be more appropriate for “the world that existed in the 1970s,” said Commissioner Ajit Pai in a statement Wednesday as an order circulates (see 1606270083). “Last month, the FCC had no problem approving not one, but two multibillion dollar cable mergers,” Pai said. “Yet, it now gets the vapors at the prospect of a newspaper in Scranton, Pennsylvania owning a single radio station.” It's likely newspaper/broadcast cross-ownership rules “will outlive the print newspaper industry itself,” Pai said. An agency spokeswoman declined to comment. Also Wednesday, the Newspaper Association of America criticized the draft order. “The NAA is stunned that any policymaker in the Internet era would propose to keep a 1970s-era law that prevents broadcast stations and newspapers from being owned by the same company," said CEO David Chavern. He said he's "deeply disappointed" the draft would keep in place the 40-year-old cross-ownership rule "that is more obsolete than the eight-track tape or the mainframe computer." Investments and deals "will continue to flow to unregulated Internet businesses that compete with news publishers for advertising, but investment and collaboration will be blocked" for newspapers and radio and TV, Chavern said.
FCC draft media ownership rules are likely destined for a fourth go-round at the 3rd U.S. Circuit Court of Appeals, attorneys on the broadcast and public interest sides of the issue told us Tuesday. Industry officials are divided on whether to describe the rules (see 1606270083) as maintaining the status quo or increasing regulation. Lawyers in both camps said they believe there's time to move the FCC in one direction or another through lobbying, since rules are in the circulation phase and both Republican commissioners are expected to oppose them. “I support eliminating the current cross-ownership bans that are keeping broadcasters and newspapers from potentially forming multi-platform entities that could better serve consumer demands,” said Commissioner Mike O'Rielly in a speech that was released shortly before the draft rules were reported to be circulating.