SAN FRANCISCO -- The legal system must recognize information law as a cohesive field crossing several traditional doctrines and the world’s many jurisdictions, to lay a good foundation for a long era of new rules supporting innovation, said Kent Walker, Google’s general counsel. “If you get that foundation wrong, the house is going to go off in a funky direction,” he said at the Corporate Counsel West Coast Conference. And in-house lawyers should stop being largely naysayers and become agents of change with regulators and those at other companies in addition to within their own, he said.
Notable CROSS rulings
The FCC should keep the newspaper/broadcast cross-ownership rules that were reinstated by the 3rd U.S. Circuit Court of Appeals in Philadelphia over the summer, a foe of media mergers and acquisitions told the agency. “Maintaining or tightening, and in either event, enforcing the ownership limits would best promote diversity, localism, competition and efficient use of the broadcast spectrum -- the public interest goals that lie at the heart of the Commission’s Quadrennial Media Ownership review,” Free Press said. It reported in a filing Wednesday in docket 09-182 (http://xrl.us/bmive5) that the group’s executives met with an aide to Commissioner Michael Copps. A draft rulemaking notice in the quadrennial review proposes to restore a cross-ownership waiver rule that’s similar to one remanded to the agency by the 3rd Circuit (CD Nov 9 p1).
Rep. Lee Terry, R-Neb., has recurring concerns about whether the FCC’s Universal Service Fund order, approved last month, does enough to spur the growth of wireless (CD Oct 28 p1), the vice chairman of the House Communications Subcommittee said Wednesday at a National Journal conference on the future of technology. Spectrum and regulatory reform largely dominated the discussions.
There’s no reason to ban any cross ownership of daily newspapers and radio or TV stations in the same market, the new head of the Newspaper Association of America said after her first 65 days on the job. The NAA hopes the FCC in its ongoing review of all media ownership rules will entirely rescind the ban, Caroline Little said during Q-and-A at a Media Institute luncheon Tuesday. “We'd like to get no cross-ownership whatsoever,” Little told us about the current rules. Another NAA executive visited the commission last week to press the agency to change cross-ownership rules. A draft rulemaking notice on the quadrennial review proposes to allow waivers to be sought of the ban in the top 20 markets, restoring a rule remanded by an appeals court this summer (CD Nov 15 p5).
The FCC is looking to revive some media ownership rules approved during Kevin Martin’s chairmanship, while ending a bar on one company holding radio and TV stations in the same market. A rulemaking notice that circulated Friday afternoon for the quadrennial review (CD Nov 7 p19) proposes to reinstate some cross-ownership rules approved 3-2 in 2007.
Europe’s information and communications sector could create €1 trillion ($1.3 trillion) in extra economic activity and millions of new jobs if necessary actions are taken, Digital Agenda Commissioner Neelie Kroes said Tuesday at a Lisbon Council summit in Brussels. One of the key elements of the EU digital agenda is the digital single market, she said. It should be easier to sell goods from a distance than “real” items but in practice the cross-border market is still fragmented, she said. Rules must be applied consistently and uniformly across the EU, and steps taken to ensure that half of Europeans are buying online by 2015, she said. More harmonization is needed, so she and Internal Market Commissioner Michel Barnier will unveil proposals to boost e-commerce via safe online payments, including micro-payments and ways to secure cross-border transactions, she said. To help digital content markets flourish, Kroes said she'll outline policies next month to make public sector data such as weather information available for others to use in new content and services. To make users feel safe online, privacy rules should be based on transparency, fairness and user control, she said. People’s privacy rights shouldn’t be sacrificed to economic interests but those interests shouldn’t be damaged “by insisting on too inflexible or cumbersome” rules and the “paternalistic attitude toward citizens they embody,” she said. She wants the Web industry to agree, by June, on a “do-not-track” standard that gives users more control over who can track them on the Internet; makes it easy for companies to do the right thing; and increases opportunities for designers, application and device makers to develop clear, user-friendly ways to record and enforce user preferences, she said. The European Commission also has plans to spur investment in new networks and to create the right legal framework to make Europe more “cloud-active,” she said.
Five companies sought to defer further the FCC deadline to supplement their waiver requests to rules limiting common ownership of a daily newspaper and radio or TV station in a market. Bonneville, Calvary LP, Cox Enterprises, Morris Communications and Scranton Times said delay is warranted because waiver standards aren’t “finally resolved.” Because of a remand of a 2008 cross-ownership rule by the 3rd U.S. Circuit Court of Appeals and “the likelihood of one or more petitions for certiorari seeking Supreme Court review,” judicial consideration of the agency’s last quadrennial review of media ownership isn’t over, the companies said. Their lawyers met with Chief Bill Lake and others in the Media Bureau and lawyers in the Office of General Counsel, said a filing Friday in docket 09-182 (http://xrl.us/bme8kf). Monday, the bureau delayed the deadline for supplements a 17th time, an extension to Jan. 13 for 100 days, not the usual 90 days (CD June 22 p16). “The extension is necessary to provide additional time for the Commission to consider the Media Parties’ request that the deadline be delayed until 90 days after the issuance of a final court order, including the expiration of the period for all judicial review, on pending judicial challenges to the Commission’s modified newspaper/broadcast cross-ownership rule,” an order signed by Lake said of the five companies (http://xrl.us/bme8kb).
The FCC is looking at changing some broadcast regulations, leading to less oversight of how noncommercial stations raise money and possible rules for all types of stations to make disclosures online, not just on paper. Chairman Julius Genachowski has asked the Media Bureau to work on those areas, he told an FCC hearing in Phoenix about a June report by commission staffer Steve Waldman on the future of the new and old media industry. Those were the two concrete steps the commission said it’s taking to deliver on the recommendations of the report (CD Oct 3 p6).
The FCC gave the green light to Level 3’s $3 billion takeover of Global Crossing. “We conclude that approval of the applications will serve the public interest, convenience, and necessity, and hereby grant the applications,” Wireline Bureau Chief Sharon Gillett said in a memorandum opinion and order and declaratory ruling, dated Wednesday and released Thursday. “We also conclude that, while the merger will result in the loss of one Tier 1 ISP, the record does not support a finding that the merger is likely to result in ’tipping’ of the Internet backbone market, an increase in prices to supra-competitive levels, or lower service quality.” The deal had not faced concentrated opposition. XO Communications briefly filed an opposition to the acquisition, citing Level 3’s lack of a publicly-available template on peering agreements (CD July 11 p3). XO later dropped its opposition, but in any case the commission was “not persuaded by XO’s initial allegations that the combination is likely to harm competition, and thus we do not find cause either to deny the merger or to impose conditions on it,” Gillett wrote. Officials from Level 3 and Global Crossing didn’t comment.
Comcast can’t update the record in the Tennis Channel’s program carriage complaint against the cable operator, the administrative law judge who heard the case ruled Monday. Chief FCC ALJ Richard Sippel denied the operator’s request to add information about the channel’s loss of some distribution, which the Tennis Channel had opposed (CD Sept 27 p13). “Post hearing evidence proffered by Comcast is hearsay that was not cross-examined,” his order said. “To decisionally consider such untested evidence confuses the record, wastes time, and invited Tennis Channel to follow suit by its Response.” Recent media reports on the lost distribution, which Comcast said belied the channel’s case, would update “existing non-controverted evidence” and “should be excluded even if relevant,” Sippel wrote, “as it is superfluous, not necessary and just as likely to confuse as inform.” A Comcast spokeswoman had no comment.