Two powerful House Republicans continued pushing for Congress to respond to the FCC net neutrality order, in different ways. They agreed that the order will generate uncertainty and said they're confident that courts will strike it down.
Notable CROSS rulings
The FCC Media Bureau’s rejection of the pending quadrennial review order as a reason to grant a waiver of the newspaper/broadcast cross-ownership rule requested by a Fredericksburg, Virginia, newspaper owner is inconsistent with a previous waiver granted to Fox and shows why the Fox waiver should be reversed, said the Rainbow PUSH Coalition and United Church of Christ in an ex parte filing posted in docket 07-260 Wednesday. The bureau said the pending media ownership proceeding didn’t constitute justification for a waiver to let Free Lance-Star License own a paper and a radio station in the same city, UCC and RPC said. The licensee was granted a temporary 12-month waiver that the bureau said would likely not be renewed, UCC and RPC said. The bureau has said the Fox request has unique circumstances that don’t apply in the Fredericksburg case, but UCC and RPC disagreed. “Fox’s permanent waiver request had been pending through ten years and two court remands of the relevant standard,” the bureau said in the order on the Fredricksburg waiver request. “The Bureau has applied post-hoc justifications for treating Fox differently that do not appear anywhere in the order granting Fox’s indefinite waiver,” said the ex parte filing. “We ask that the Commission act promptly to reverse the Media Bureau’s decision.”
Getting the incentive auction structured correctly is more important than holding the auction as soon as possible, FCC Commissioner Mike O’Rielly said at an NAB State Leadership Conference Tuesday. Resolving questions about dynamic reserve pricing, interference, opening bid prices and repacking is “critical to any potential participation by broadcasters,” he said, according to prepared remarks. Eliminating reserved spectrum and limiting impaired markets will improve the forward auction and “ensure that we maximize revenues to compensate interested broadcasters,” he said. The commission should update the contest rule to let broadcasters post contest rules on a website, which makes rules more available in an Internet age, he said. Broadcasters have sought such changes (see 1502200035). Broadcasters also should be able to use the Internet to recruit more minority and female applicants, to comply with the commission’s equal employment opportunity rules, he said. Companies are forced to “duplicate their recruiting efforts using old-school methods like newspaper ads” because of 2001 estimates of Internet availability, he said. The commission should update its EEO rule to allow online dissemination of job vacancy information “combined with aggressive notification to candidate referral organizations,” he said. O'Rielly made a similar point in a blog last week (see 1502200054). The commission should adhere to updating media ownership rules every four years -- they haven’t been reviewed since 2006, he said. The commission repeals or modifies rules “no longer in the public interest due to increased competition,” he said. The 2010 quadrennial review wasn’t completed when the 2014 review started, he said. The industry is “saddled” with restrictions, including the newspaper-broadcast cross-ownership rule, he said. O'Rielly encouraged commissioners to address consequential matters, not FCC staff. Documents should be posted in a transparent manner so the public is aware what issues are up for a vote, he said. He urged the commission to make all FCC items to be considered at open meetings public. Texts are circulated internally three weeks before meetings but “the public is left out of the loop,” he said. Some items are released by bureaus without notifying commissioners, he said. “Far from being a rare or isolated circumstance, commissioners must ‘vote on it before you can see what’s in it’ every single month.”
FCC Commissioner Ajit Pai and FTC Commissioner Joshua Wright said in an Chicago Tribune op-ed Wednesday that the “vague” Internet conduct rule in Chairman Tom Wheeler’s draft net neutrality order may be its “most problematic” part. The proposal would put in the “FCC’s cross hairs” on plans involving data caps like T-Mobile’s Music Freedom, Pai and Wright wrote. Separately, Evan Engstrom, policy director of Engine, also said he expects the draft to presumptively ban certain types of zero-rating.
NAB warned Congress against accepting the recommendations of pay-TV industry providers in any telecom rewrite. “The basic tier and buy through provisions buttress the policy goals ensuring that consumers have access to local programming, often times life-line programming,” NAB told House Commerce Committee lawmakers in late comments it submitted Tuesday night in response to a white paper. “Therefore, NAB urges the Committee to reject proposals by the pay-TV carriers to upend the basic tier making programming more expensive for viewers.” The white paper deadline was late last month. Its questions were pegged to the lawmakers’ broader ambition of overhauling the Communications Act. NAB said cross-ownership rules should not be retained, and advocated for repeal of “broadcast-only regulations.” NAB also cautioned Congress against revamping retransmission consent rules: “But the reality is the retransmission consent system provides strong incentives to complete retransmission negotiations in the marketplace before any disruption to the viewer occurs, and thus nearly all negotiations are completed on time.” TVFreedom, a broadcaster coalition including NAB, released its response Wednesday. “The argument that retransmission consent fees drive up consumer monthly bills presents a red herring,” TVFreedom told House lawmakers. “Legislation designed to support and advance free and local broadcast TV for the benefit of consumers and local markets is critical to the future of the U.S. video marketplace.” The broadcast exclusivity rules “enhance market efficiency by enabling TV stations that have negotiated exclusive programming rights in local markets to notify pay-TV providers of their contractual rights and to enforce those rights at the FCC,” the coalition said. The committee had not posted white paper responses by our deadline Wednesday.
The FCC Media Bureau violated the Freedom of Information Act, including Section 552, said the Georgetown Law Institute for Public Representation in a letter to Chairman Tom Wheeler Tuesday. A Nov. 26 order by the bureau wasn’t given a DA number or indexed on the commission’s FOIA index for 2014, the letter said. The order wasn’t listed in the commission’s Daily Digest, its recent releases page on its website, the FCC record or in privately published reports like Bloomberg BNA, Lexis or Westlaw, it said. A public notice that a waiver was requested also wasn't published, the letter said. In the order, the bureau denied a request for a permanent waiver of the newspaper/broadcast cross-ownership rule to allow a transfer of five FM radio stations and a daily newspaper in Virginia. “Because this order was not published nor even included in the Daily Digest, stakeholders would have no way to learn of this decision,” the letter said. The bureau didn’t immediately comment.
The FCC should reject a proposal that low-power TV stations be subject to mandatory channel sharing, said the Advanced Television Broadcasting Alliance (ATBA), NAB and others in reply comments filed in docket 03-185 in response to the FCC’s request for comment on proposals on the incentive auction’s effect on LPTV. “Coercing LPTV and translator stations into involuntary channel sharing arrangements to provide more white space channels” would be equivalent to “strip-mining” licensed stations for unlicensed uses, NAB said. Commenters also clashed over whether some LPTV stations should be allowed to use part of the FM band and whether the analog tuner requirement should be relaxed as the last stations transition to digital.
The North Carolina and Tennessee state governments are likely to take the lead on any legal challenge to expected FCC pre-emption of their states’ municipal broadband laws, with North Carolina Attorney General Roy Cooper and Tennessee Attorney General Herbert Slatery initiating the lawsuits, industry lawyers told us Monday. FCC officials said Monday that Chairman Tom Wheeler would circulate a draft order this week approving petitions from the Electric Power Board of Chattanooga and Wilson, North Carolina. The draft order would directly address only the Chattanooga and Wilson petitions but is likely to set a precedent for FCC handling of future petitions (see 1502020037).
Promoting cross-border data flows while “respecting data protection rules” was one of the Computer & Communications Industry Association's five recommendations to improve Europe digital trade via the Transatlantic Trade and Investment Partnership. CCIA released a report with the recommendations in a news release Monday. The report said TTIP should avoid “forced localization of data, network infrastructure or investments.” “We need international trade rules based on our shared transatlantic values and high standards,” Christian Borggreen, CCIA-Europe director, said in the release. “The EU-U.S. trade talks offer an historic opportunity to eliminate needless barriers to digital trade and create policies that reflect the realities of a 21st Century, Internet-enabled economy.”
Commissioner Ajit Pai said he hasn't given up on turning back an FCC move to reclassify broadband as a Communications Act Title II service as is expected to be recommended by Chairman Tom Wheeler. The FCC is to vote on the order at its Feb. 26 meeting, approving classification with some form of forbearance from most parts of Title II (see 1501070054). Pai also was candid Wednesday in his comments on how Wheeler runs the commission, alleging the agency has become more political than in the past. The Pai interview is scheduled to appear on C-SPAN’s The Communicators this weekend.