Spectrum availability and ensuring that a regulatory framework supports use of broadband will continue to take top priority at the FCC, said commissioners Mignon Clyburn and Ajit Pai Thursday at the Minority Media & Telecom Council conference. They said FCC action from last year helped advance the goal of fostering broadband availability. In 2012, the commission took up universal service reform, Clyburn said, and everyone recognized that the communications ecosystem continues to change at exponential speed and that “we needed a framework that had the capacity to keep up with the times,” she said. Clyburn said she’s proudest of having moved that along on a bipartisan basis.
Notable CROSS rulings
Lobbying on FCC media ownership rules continues, as what’s expected to be the final comment cycle (CD Dec 29 p1) before a draft order is recirculated ended Jan. 4. Those seeking more deregulation than is in the draft circulated Nov. 14, including the Newspaper Association of America, reported in docket 09-182 visiting the agency in recent days (http://xrl.us/boa4d8). Meanwhile the National Association of Black Owned Broadcasters and Independent Telephone & Telecommunications Alliance continued seeking more regulation than is in the draft. Commissioner Robert McDowell said Wednesday (http://xrl.us/boa4d4) that the agency shouldn’t limit joint sales agreements, something the draft does for JSAs. (See separate report above in this issue.) Media General wants exemption from any restrictions on JSAs where the station brokering ads for the other broadcaster in the agreement provides local news and information to its partner, CEO George Mahoney wrote in a handwritten letter to an aide to Commissioner Jessica Rosenworcel, a copy of which is in the docket (http://xrl.us/boa4va). With the agency “poised to conclude” JSAs “should be deemed attributable ownership stakes,” the commission should “take the additional step of ensuring” that those and any other sharing deals that allow coordinated retransmission consent negotiations for multiple stations in a market don’t “harm competition and consumers,” ITTA told (http://xrl.us/boa4gz) the aide to Rosenworcel. There’s a “complete lack of any potential harm” that “liberalization of the newspaper-broadcast cross-ownership rule” would have on ownership diversity, a lawyer for NAA reported telling an aide to FCC Chairman Julius Genachowski. NABOB Executive Director Jim Winston told Genachowski’s aide of its continued opposition to ownership-rule relaxation without developing a record on the potential impact on ownership opportunities for minorities and women, and said doing so wouldn’t meet the requirements of the 3rd U.S. Circuit Court of Appeals’ 2011 remand of the last media ownership order (http://xrl.us/boa4f8). It would “be very difficult for a standalone radio station to compete with a radio group of multiple stations in a market if that radio group owner also owned the daily newspaper,” Winston reported a month late that he and other NABOB directors told Commissioner Mignon Clyburn. The draft order has been said to allow common ownership of radio stations and daily newspapers within a market. Because auto advertisers like to buy ads in the automotive sales supplements that dailies run weekly, “it would be very difficult for a standalone station to compete with a combined daily newspaper-radio combination,” Winston and executives from Access.1 Communications, Inner City Broadcasting and Taxi Productions told Clyburn. The notice covered no arguments not made in previous on-time filings by the association, so its lateness didn’t prejudice any party, Winston wrote (http://xrl.us/boa4gt).
Lawyers for the American Cable Association told an aide to FCC Chairman Julius Genachowski the commission should, in the context of its media ownership rule review, “address the increasingly prevalent practice of separately owned, same market television stations coordinating” retransmission consent negotiations with pay-TV distributors, an ex parte notice said (http://xrl.us/bn9xfd). The association’s previous comments in the proceeding demonstrate the harm to competition in local TV markets that results from such practices, the notice said. An advocate for the free community newspaper industry met with an aide to Genachowski to argue against loosening media ownership restrictions, an ex parte notice shows (http://xrl.us/bn9xea). Jim Haigh, a government relations consultant for the Association of Free Community Newspapers and Mid-Atlantic Community Newspapers Association, told Elizabeth Andrion, Genachowski’s acting chief legal adviser, that the worst possible outcome of the FCC’s media ownership proceeding would be “the widespread formation of outsized cross-media entities leveraging traditional advantages while also given the ability to leverage game-ending digital advantage.” That’s if the ownership rules proceed as reported and the agency’s open Internet rules are overturned by the courts, the notice said.
Some long-pending proposals to increase broadcast ownership by minorities and women got more support. The Diversity Competition Supporters (DCS) said there was broad consensus in initial comments late last month (CD Dec 28 p3) on a FCC public notice about a recent Media Bureau broadcast ownership report for several of the 47 proposals they want the FCC to consider. In replies posted to docket 09-182 Monday and Friday, more commenters endorsed some of those ideas.
The U.S. decision not to sign the revised International Telecommunication Regulations (ITRs) means controversial changes to the treaty-level document will have no effect on U.S. law or the telecom sector’s work within the U.S. -- but the treaty’s effect on U.S. businesses’ dealings internationally remain far less clear, industry experts and insiders say. The U.S. was among 55 ITU member nations to not immediately sign onto the revised ITRs last month after they were adopted at the conclusion of the World Conference on International Telecommunications (WCIT) in Dubai. Another 89 nations signed the treaty (CD Dec 17 p1). Non-signatory nations will continue to follow the original ITRs enacted in 1988, Terry Kramer, head of the U.S. delegation to WCIT, told us. The original ITRs are “antiquated, but they're very high level, they don’t get into any Internet issues,” he said. The revised ITRs will take effect Jan. 1, 2015.
All groups other than Asian Americans increased the number of full-power TV stations they owned over a four-year period through 2011. Our review of analyses of FCC broadcast ownership data by nonprofits opposed to media consolidation also showed African Americans were the only demographic to see ownership declines in all other types of broadcast outlets, except for low-power TV. Calculations of data from the agency’s most recent biennial ownership forms, in some instances comparing statistics companies gave the FCC to earlier figures from nonprofits’ own efforts, show all groups other than whites owned a disproportionately low share of all types of radio and TV stations.
Some at the FCC are considering whether to allow waivers of media ownership rules for some types of arrangements that are barred under draft rules involving TV stations, agency and industry officials said. They said in interviews that some Media Bureau staff members are considering a waiver process for joint sales agreements where a TV station brokers ads for another outlet in the market, when spots on the second station in the JSA exceed 15 percent of that broadcaster’s commercials. A draft order ending the 2010 quadrennial media ownership review would require the attribution of such JSAs to the station doing the brokering within two years (CD Nov 15 p1). That would mean many of the JSAs would need to be renegotiated so the arrangements don’t violate ownership rules, reducing their cost savings, said executives at companies that own brokering stations. There are more than 100 stations in JSAs (CD Nov 29 p5).
Deals letting TV stations share services were the focus of more lobbying (CD Dec 20 p20) at the FCC last week, docket 09-182 showed (http://xrl.us/bn7g5r). Draft media ownership rules would attribute joint services agreements (JSA) as ownership to a station brokering about 15 percent or more ads for another separately owned outlet in the same market. Broadcasters continued to say JSAs shouldn’t be attributed, while cable operators and a nonprofit opposed to consolidation want more types of arrangements counted toward a market’s ownership limits. Schurz Communications, with three TV stations in JSAs, asked the agency to not “change its established way” of handling such arrangements. The “one exception” to the commission not grandfathering existing ownership arrangements when new rules are adopted was the 2003 order attributing radio JSAs, Schurz noted. “But that occurred after the local radio limits had been significantly relaxed, in contrast to the television rules which remain unchanged.” Asked by FCC staff about waivers for local ownership of media assets, executives of Schurz, owner of cable systems, newspapers and radio and TV stations, said there are often delays getting such exceptions. That “would make that an unattractive option since stations could be tied up for an indefinite period while the waiver was under consideration,” a filing said (http://xrl.us/bn7g6w) of meetings with Chief Bill Lake and others in the Media Bureau, Commissioner Ajit Pai and aides to the other four FCC members. Because eight years have passed since a rulemaking notice proposed attributing TV JSAs, “interested parties should have the opportunity to update the record that would be permitted by a delay in action,” Sinclair General Counsel Barry Faber emailed Lake Thursday, two days after they met. That would let the agency “reach conclusions based on current marketplace conditions,” said the email, included in the company’s ex parte filing (http://xrl.us/bn7g66). Lake and other bureau officials were asked during the meeting by Faber “to slow down [the FCC’s] apparent rush to judgment” on TV JSAs. Faber has criticized attributing them (CD Nov 29 p5). LIN Media, part of four JSAs, thinks any arrangements already OK'd by the agency as part of station transactions “should be permanently grandfathered,” a filing said. LIN would prefer the pacts not be attributed at all, it said of “situations where the parties have invested millions in arrangements approved by the Commission.” Radio has seen “necessary deregulation in ownership caps while the television ownership limits have remained tightly constrained, especially in small markets,” a LIN executive told Lake and others in the bureau. NCTA meanwhile continued lobbying for the agency to deem attributable ownership of any TV station that has its retransmission consent deals negotiated by another nearby outlet, to the negotiating broadcaster, executives said in meetings with bureau officials and aides to commissioners Mignon Clyburn and Jessica Rosenworcel. The current draft order’s focus on JSAs “is puzzling” to Free Press Policy Director Matt Wood, he recounted (http://xrl.us/bn7g8q) telling an aide to Rosenworcel. “News co-production and ’sharing’ arrangements seem more likely to allow for control or influence over another licensee’s programming than do JSAs.” Wood sees a “growing consensus” the agency should study the impact on ownership opportunities for minorities and women of changing newspaper/broadcast cross-ownership rules, before changing the regulations, he said. Minority and woman ownership remains “disproportionately low,” NAB said (http://xrl.us/bn7g9a) in early-filed comments on Form 323 ownership figures for those and other demographic groups. The association, though, cited “some positive developments in the numbers of minority and female owners, attributable interest holders, and positional interest holders.” Form 323 initial comments are due Wednesday (http://xrl.us/bn7g9r).
Europe’s digital agenda is going well but “it’s not enough” because the digital economy is growing seven times faster than the rest of the economy, Digital Agenda Commissioner Neelie Kroes said at a Tuesday press briefing. She set out revised priorities for 2013-2014, and warned that risk-avoidance in Brussels and national governments must stop. “I'm in a fighting spirit” about showing that Europe isn’t just about accounting and rules, but about giving people opportunities, she said. The European Commission also listed the actions it will take by the end of this legislative cycle in 2014 to modernize copyright laws for the online world.
SAN FRANCISCO -- A three-hour hearing in federal district court Friday examined questions Judge Jeffrey White still had after reading the briefs on cross-motions for summary judgment and to dismiss cases challenging the government’s alleged warrantless online surveillance program. The cases, Carolyn Jewel v. the National Security Agency (NSA) and Virginia Shubert v. George W. Bush, were brought after Mark Klein, a one-time AT&T engineer in San Francisco, raised allegations that AT&T was diverting Internet traffic to an NSA-controlled room in AT&T’s San Francisco facilities.