Topics likely on deck for Friday’s House Communications Subcommittee media ownership hearing include the FCC’s quadrennial review of ownership, broadcaster joint sales agreements and the minority tax certificate, all topics laid out in a Republican memo about the hearing released Tuesday. “The Commission’s history on reforming its media ownership rules is rife with missteps and setbacks,” the memo said. It outlined “rules in question” in the quadrennial review, pointing to the cross-ownership ban regarding newspaper owners and broadcasters, local TV and radio ownership limits and the national TV ownership cap. “Implemented properly,” the memo said, “a minority tax certificate program could produce diversity in ownership and programming without triggering constitutional concerns that can accompany programs intended to benefit women and minorities.” The hearing is scheduled for 9 a.m. in 2123 Rayburn.
Notable CROSS rulings
A decision in the FTC’s case against LabMD is expected within 70 days of closing argument that was held Wednesday (see 1509160051), which would be around Thanksgiving. Attorneys for LabMD said the company’s case against the FTC has “significant legal consequences” and they will continue with the case until a federal court has the final say. They said the FTC colluded with a third-party security company to create a case against LabMD, and the agency changed the legal rules to benefit itself. The FTC didn't comment.
A court decision certifying class-action rights of Uber drivers has implications for other companies that rely on independent contractors, including upstarts and communications companies, Kelley Drye attorney Steve Augustino said in a Friday blog post. “Many communications companies make similar uses of independent contractors to perform key functions, and therefore should heed the lessons of the decision. At a minimum, the Uber decision demonstrates why companies must remain cognizant of how they classify workers in order to avoid similar costly and time-consuming class action cases.” U.S. District Court Judge Edward Chen in San Francisco ruled Sept. 1 that current and former Uber drivers constituted a class that could pursue a claim that Uber violated California’s Unfair Competition law (Douglas O’Connor, et al., v. Uber Technologies, No. C-13-3826 EMC). Four plaintiffs sued Uber on behalf of themselves and a putative class of about 160,000 past and present Uber drivers. They contended they and other drivers were employees, not independent contractors, under state law and thus eligible for various labor protections. Uber argued it had properly classified every single driver as an independent contractor, but Chen disagreed after finding the company's statements created tension with that argument. He noted other federal rulings, including Norris-Wilson v. Delta T Group in the Southern District of California in 2009, which said an employer citing independent contractor classification as universally appropriate “runs at cross purposes with the reason for objecting to class certification.” A Kelley Drye advisory said the case has lessons for companies, including tech startups, using independent contractors to lower costs. “One possible way for a company to avoid a potential class action of the kind filed against Uber is by utilizing contractual clauses that limit the resolution of disputes with independent contractors to arbitration proceedings that exclude class actions,” it said.
The decision by Danish carriers TeliaSonera and Telenor to abandon their proposed combination may have ramifications for other pending mergers and acquisitions, telecom consultants and attorneys told us Friday. The wireless companies announced that day the withdrawal of their merger because they weren't able to satisfy European Commission antitrust concerns. Competition Commissioner Margrethe Vestager appears to be setting a transaction standard different from her predecessor's by requiring countries to have four mobile network operators, rather than mobile virtual network operators (MVNOs), to ensure competition, experts said. Others downplayed the impact of the scotched deal on European M&A.
There's a divide over whether it’s necessary to have separate cyberbullying laws or if current anti-harassment laws can curb the problem, experts said in interviews. States all have some type of anti-bullying laws, which mainly pertain to students and require school districts to be involved in enforcement. Adults can use harassment laws in instances of cyberbullying, experts said. Some laws address everything from cyberbullying and cyberstalking to harassment and how schools can be involved in enforcement, while others amended harassment statutes to include electronic communication.
New York State’s assessment of telecom came in for criticism from the state’s attorney general, Eric Schneiderman (D). The AG and consumer groups took the Public Service Commission to task for what they said was a good review in theory but one that in practice is flawed. They sought more public involvement, among other things.
Rule changes proposed by a group of low-power FM station owners that are up for comment at the FCC aren’t likely to be put into practice, broadcast attorneys said in interviews Tuesday. Comments on whether the FCC should act on the petition from the Low Power FM Advocacy Group are due Aug. 30. Proposals to allow LPFMs to run commercials and increase power levels are seen as fundamentally changing the LPFM service, said the attorneys who have full-power FM stations as clients. That is likely too radical a shift, said Wilkinson Barker broadcast attorney David Oxenford, who has filed comments opposing power increases for LPFM in the past.
Kevin Martin, former FCC chairman and now Facebook vice president-mobile and global access policy, emphasized the company’s desire to connect to the Internet unconnected parts of the world. “That’s an increasing point of focus for Facebook, making sure we’re connecting the unconnected,” Martin said in Aspen, Colorado, on a panel hosted by the Technology Policy Institute. He spoke about how he often travels through other countries in the developing world, naming Brazil, India and Mexico, which have areas where “basic access” is the core challenge. These other countries look to the U.S. and Europe in considering telecom frameworks, he said. “We agree with [many at Google] with the concerns about the importance of having strong net neutrality rules in that debate, of making sure there are some limitations on the operators who own infrastructure,” Martin said. “We at the same time agree with some of the operators in making sure we’re not reflexively applying regulations to new services.” Other panelists at the conference emphasized internationally focused concerns. Verizon Senior President Peter Davidson said there's a need for cross-border data protection language in the Trans-Pacific Partnership trade deal and he’s optimistic that will get in there. There's “consensus on the broad principles,” Davidson said.
A wave of mergers and acquisitions in the European telecom market is raising concerns about competition and service prices, analysts, regulators and attorneys said. Questions include how many mobile operators are needed for a competitive national market; whether M&A is necessary to spur investment; and whether European Commission antitrust decisions are undermining national regulators, they said. Some see the EC as moving to crack down on M&A through conditions, possibly benefiting consumers by averting price increases that consolidation often brings. Others contend deals eventually benefit customers by boosting companies' network investments.
Senate passage of the Domain Openness Through Continued Oversight Matters (DOTCOM) Act (S-1551) is critical to guaranteeing federal “oversight over the final product” of ICANN’s planning for the Internet Assigned Numbers Authority (IANA) transition, said Rep. John Shimkus, R-Ill., in a speech Wednesday. Shimkus sponsored the House-passed version of the DOTCOM Act (HR-805), which is identical to S-1551. The DOTCOM Act would guarantee that NTIA would temporarily extend its current contract with ICANN to administer the IANA functions, which would extend NTIA’s oversight of the process, Shimkus said at an American Enterprise Institute event. To get that guarantee, “you have to pass the DOTCOM Act, the president has to sign it into law,” Shimkus said.