A Department of Commerce proposal for implementing changes to export control rules to comply with the multinational Wassenaar Arrangement is continuing to draw controversy amongindustry and nongovernmental organizations, with several industry officials saying at an event Friday that they're actively lobbying members of Congress, Commerce and other federal agencies on the need for changes to the proposal. A wide range of U.S. cybersecurity parties railed against the Commerce Department's Bureau of Industry and Security (BIS) Wassenaar implementation proposal in comments last week, with many saying the proposed implementation of recent changes to Wassenaar that would control the export of intrusion software and IP network surveillance systems was overly broad and would significantly affect U.S. cybersecurity companies (see 1507220082).
Notable CROSS rulings
Cablevision clarified that it's not seeking to change an FCC Media Bureau declaratory ruling denying PMCM's request to operate WJLP Middletown, New Jersey, on virtual Channel 3.10. The cable operator was responding to a Viacom request that the bureau say that Cablevision doesn't need to carry the TV station on cable Channel 33 until conditions are met. As Cablevision said in the U.S. Court of Appeals for the D.C. Circuit in opposing PMCM's mandamus petition, it also said in a filing posted in FCC docket 14-150 Monday that it will "take timely action with respect to PMCM’s carriage and channel placement elections." Viacom had said that it feared the ruling and a related bureau letter to Cablevision, Comcast and Time Warner Cable could mean that WJLP could "prematurely" displace the programmer's Nickelodeon from Channel 33 on Cablevision's New York market systems. After winning a rare FCC OK to move cross-country after the D.C. Circuit ordered it over the agency's objections, PMCM sought to operate the station in what would have been a technological first for broadcasting: on the same main program and system information protocol (PSIP) channel as Meredith Corp.’s WFSB Hartford, Connecticut, while each would have different virtual PSIP subchannels (see 1409160043).
The D.C. Circuit of the U.S. Court of Appeals vacated a National Labor Relations Board ruling that the Southern New England Telephone Company, owned by AT&T at the time, committed an unfair labor practice by prohibiting employees who interacted with customers from wearing a union shirt with the words "inmate" and "prisoner of AT&T." The court said in its decision Friday that "it was reasonable for AT&T to believe that the 'inmate/prisoner' shirts may harm AT&T's relationship with its customers or its public image" and the company "lawfully prohibited its employees from wearing the shirt." The decision was written by Judge Brett Kavanaugh. The ruling follows a Southern New England Telephone Company appeal of a 2-1 NLRB decision that AT&T was wrong to prohibit its workers from wearing the pro-union shirts during contract negotiations between the company and the Communications Workers of America. According to CWA, AT&T infringed on the rights of employees under Section 7 of the National Labor Relations Act, but the telecom company responded by saying it had invoked the act's "special circumstances" provision, which allows companies to ban union messages on publicly visible apparel on the job when the messages might harm customer relations or the company's public image, the court decision said. "Common sense sometimes matters in resolving legal disputes," said the decision. "This case is a good example." In addition to overturning the NLRB's decision concerning the shirts, the ruling also denies the NLRB's cross-application for enforcement of its initial 2-1 vote. "We’re pleased with [the] Court’s common sense approval of our apparel policies," an AT&T spokesman said Friday. "While we respect our employees' right to express their opinions, it is our policy to require appropriate dress for employees in customer-facing positions." The NLRB and CWA didn't comment Friday.
Cablevision's attempt to have the Game Show Network carriage complaint against it tossed was shot down by FCC Administrative Law Judge Richard Sippel. In an order posted Monday in docket 12-122, Sippel ruled that there are too many contested facts and assertions to warrant the summary decision Cablevision asked for in April (see 1504300051). "Summary decision isn't a procedure that was intended to be used in resolving these complex issues of mixed law and fact," Sippel ruled.
Leaving dynamic reserve pricing out of the incentive auction is likely to lead to the FCC paying higher prices to some stations, Incentive Auction Task Force Vice Chairman Howard Symons said at a Hudson Institute event Monday. DRP, which would have allowed the FCC to freeze the prices of some stations or repack them in the wireless band, was included in earlier auction plans to allow the commission to offer higher opening bid prices. A draft order on circulation and also on the agenda for the July 16 commissioner meeting would do away with DRP (see 1506170052).
The FCC has opposed regulation where broadcasters support it and supported regulation where broadcasters oppose it, said Matthew Berry, aide to Commissioner Ajit Pai, in a speech to the Florida Association of Broadcasters Convention Wednesday. “And on uncontroversial issues where broadcasters ask for action, the Commission often seems to do nothing,” Berry said in prepared remarks. “The end result has left many wondering what exactly is motivating the Commission’s decision-making.” Pai's office tends not to favor “the clumsy fist” of regulation, Berry said. “I was thinking of wearing a button today that read: 'Don’t blame me; I work in the minority.'" Berry criticized the FCC Democratic majority for supporting certain incentive auction policies over the objections of broadcasters, such as dynamic reserve pricing, preserving vacant channels for unlicensed use, and not limiting the auction budget to the repacking fund. “Too often throughout this proceeding, the Commission has tried to rig that market to benefit favored companies and industries and penalize those in disfavor,” he said. If DRP is abandoned in the FCC July auction order, as expected (see 1506170052), it will be “a major victory” for broadcasters, Berry said. Efforts by wireless carriers to reserve spectrum in the incentive auction are “amusing,” Berry said. ”It isn’t every day that companies with market caps over $30 billion attempt to foment a populist uprising so they can receive more corporate welfare from the federal government,” he said. “If their effort succeeds, there will be less money to pay broadcasters in the reverse auction.” The FCC should stop “thumbing its nose at Congress” and update media ownership rules, Berry said. He criticized the continued existence of the newspaper broadcast cross-ownership rule, and praised efforts in Congress that would counter the FCC rule change to increase how many joint sales agreements are attributable for ownership purposes. “I am optimistic that we will prevail,” he said in support of the congressional efforts. Berry also said it's time for the FCC to act on modernizing contest rules and revitalizing AM radio. “Time is not on the side of the grand old band," he said. The agency had no comment.
FCC Chairman Tom Wheeler reassured the agency’s new Disability Advisory Committee that disability issues remain one of his top priorities. DAC held its first meeting in March, while Wheeler was busy testifying before the House Oversight Committee, so he didn't attend that meeting (see 1503170063). “The work of this committee is very high on my personal priority list,” Wheeler said Tuesday. He said that his first meeting as chairman was with groups representing the disabled. “I wanted to send a message,” he said. “I’m here delivering the message again.”
NTIA’s spinoff of its oversight of the Internet Assigned Numbers Authority (IANA) functions now appears likely to happen by the end of June 2016, said ICANN CEO Fadi Chehadé Monday during the ICANN 53 meeting in Buenos Aires. ICANN’s IANA transition planning process, which includes work to modify the nonprofit’s accountability mechanisms, is to be the dominant topic throughout ICANN 53. Stakeholders also plan to focus during the meeting on the search for Chehadé’s successor as head of ICANN and on the future of ICANN’s generic top-level domains program. The meeting ends Thursday (see 1506190061). Chehadé said he’s basing his assessment that NTIA’s current contract with ICANN for the IANA functions may now end just over “a year from today” on feedback from ICANN community leaders on the current status of IANA transition planning.
The Internet Assigned Numbers Authority (IANA) transition process and accompanying ICANN accountability proposals are set to again dominate proceedings as ICANN 53 convenes in Buenos Aires this week, but questions about the search for a successor to outgoing ICANN CEO Fadi Chehadé and the future direction of the generic top-level domains rollout also loom large, stakeholders told us. Debate over the IANA transition at ICANN 53 is likely to center on how much time stakeholders believe it will take to complete the planning and finalization of ICANN’s transition proposal, stakeholders said. ICANN 53, which was to begin Sunday and will run through Thursday, is the nonprofit’s last major meeting before the current Sept. 30 expiration date of ICANN’s current contract with NTIA to administer the IANA functions.
No consumer groups agreed to take part in NTIA’s facial recognition multistakeholder process, despite industry's hopes that some advocates will take up the slack left by all privacy advocate participants jumping ship (see 1506160041). Citing an email sent to participants from NTIA Privacy Initiatives Director John Verdi, NetChoice Policy Counsel Carl Szabo said two groups interested in engaging in the dialogue to potentially come up with voluntary standards include the Future of Privacy Forum (FPF) and the Online Trust Alliance (OTA), but while FPF said it may get engaged, OTA said it's not taking part. And others said that without a will to work a compromise on both sides, such advocate-industry conversations won't bear fruit. At a Phoenix Center event Tuesday, FTC Commissioner Maureen Ohlhausen said for a multistakeholder process to work there has to be some common ground. Privacy advocates had said industry wouldn't agree to making opt-in the default condition for facial recognition, a dealbreaker for the groups. NTIA had no comment.