CommLawBlog : Broadcast & Communications Lawyers & Attorneys : Fletcher Heald & Hildreth Law Firm : Telecommunications, FCC Regulation, Communications Act

Judge denies Live365 preliminary injunction request based on constitutional challenge to CRB

Inferiority never felt so superior. By successfully painting themselves as “Inferior Officers”, the judges of the Copyright Royalty Board (CRB) have dodged a preliminary bullet. And while the odds seem pretty good that they’ll make it through to the end of this particular round, there’s plenty of reason to believe that the fight won’t be over for some time to come.

The main issue: is the CRB unconstitutional? As we reported last summer, in a CRB-related appeal decided by the U.S. Court of Appeals for the D.C. Circuit, Judge Brett Kavanaugh issued a concurring opinion in which he questioned the CRB’s constitutionality. When a U.S. appeals judge goes out of his way to opine that an agency may be unconstitutional, people take notice.

Live365 did just that. Live365 is an aggregator of digital radio stations which is subject to the compulsory copyright license scheme overseen by the CRB. In particular, Live 365 must suffer through the prolonged trial-type rate-setting proceedings CRB uses to set rates and establish terms, and Live365 must live with the (expensive) results of those proceedings.  

Sensing an opportunity, Live365 took the initiative to file a complaint in the U.S. District Court for the District of Columbia (not coincidentally, the court whose rulings are reviewed by Judge Kavanaugh and his D.C. Circuit colleagues) seeking a determination that the CRB is unconstitutional. Needless to say, if Live365’s suit were successful, it would throw the entire rate-making process into massive disarray, possibly scuttling for an extended period the collection and distribution of copyright royalties for webcasting. 

We outlined Live365’s September, 2009 presentation, deeming it “a very good initial argument”, but cautioning that you really can’t put too much stock on a complaint without first checking out what the other side has to say. 

Truer word was never spoken.

Judge Reggie Walton has recently denied Live365’s request for a preliminary injunction. But Judge Walton also rejected motions to dismiss Live365’s case, so it lives on as Live365 presses for a permanent injunction and a final declaration that the CRB is unconstitutional. And while Judge Walton’s denial of the preliminary injunction must be disappointing to Live365, the Judge acknowledged that the law in this area is not at all clear. What is clear is that we probably haven’t heard the last of this matter.

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Persistent applicant seeks successive reconsiderations; Quoth the FCC, “Nevermore!”

This is another in our continuing series on people who just don’t give up.

Back in 2000, an individual with interests in several wireless companies filed applications to provide maritime radio service along various U.S. waterways. The FCC dismissed the applications because they did not meet the coverage requirements then in effect. Unhappy with the outcome, the applicant filed petitions for reconsideration (denied in 2001), a petition for further reconsideration (denied in 2001), applications for review (denied in 2002), and then appeals to the U.S. Court of Appeals (terminated by the court in 2007).

In 2002, the FCC changed the coverage requirements. The same applicant filed a request to have his applications reinstated (denied in 2004), a petition for reconsideration (dismissed in 2005 as untimely), a petition for reconsideration (denied in 2006), an application for review (denied in 2008), and a petition for reconsideration (dismissed in January, 2010). The FCC tossed this last one as repetitious because, in the Commission’s view, it offered no new relevant information. In an unusual move, the FCC added: “We plan to give no further consideration to this matter, and the staff is hereby directed to dismiss summarily any subsequent pleadings filed by [this applicant] or related parties with respect to these applications . . . .”

That makes nine separate times the FCC rejected the same applications. Most people, by then, would have concluded that “No!” means no. That last dismissal for repetitiousness would deter even the most determined applicant. Even fewer of those would have the nerve to try again, after the FCC ordered its staff not to consider further requests.

But this gentleman is apparently cut from different cloth. Undaunted, he filed a petition seeking reconsideration of the dismissal for repetitiousness of his last reconsideration request.

That one did not even make it to the full Commission. In two brief paragraphs, with a terse citation to the “no further consideration” order, a Deputy Bureau Chief dismissed the arguments yet again.

This is an exciting time for those with an interest in someone so indomitable of spirit.  They will eagerly scan the FCC daily releases over the weeks to come. Will he try to extend his streak at the FCC? Or challenge the most recent dismissal in court? Watch this space for updates.

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Not as momentous as the Julian-Gregorian shift, but changes you might want to note nonetheless

Back in January we reported on a proposal to allow unlicensed operation in the 77-81 GHz band for “tank radar” use. The Commission’s Notice of Proposed Rule Making has now been published in the Federal Register, which in turn has established the deadlines for comments and reply comments. Comments are due by June 2, 2010 reply comments by July 2, 2010.

And in February, we called readers’ attention to the First Report and Order and Notice of Proposed Rule Making (FRO/NPRM) in the rural radio proceeding. There the Commission adopted a Section 307(b)-based “tribal priority” for new AM and FM allotments, and separately invited comments on possible further tweaks to that priority (e.g., whether and how to apply that priority to Native American Tribes who do not possess tribal lands). The FRO/NPRM has also been published in the Federal Register. That publication sets the comment deadlines for the NPRM section of item (comments are due by May 3, 2010, reply comments by June 2, 2010). Additionally, the publication makes the “tribal priority” and other changes adopted in the R&O portion effective as of April 5, 2010. (Check out our earlier post on this for a summary of the various changes.) 

While the “tribal priority” is not likely to affect the lay of the AM and noncommercial FM land for the time being – since new allotment proposals there require the opening of a “filing window” by the Commission, and no such windows are currently on the horizon, as far as we can see – it could affect commercial FM drop-in proposals early on. However, in view of the lag time between (a) the inclusion of new commercial channels in the Table of Allotments and (b) the opening of a window opportunity to file for those channels, increased service to Native American tribal lands as a result of the “tribal priority” is still probably a ways away.

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Federal judge rejects motions to dismiss, allows videogame suits against NCAA, Electronic Arts to proceed

Update Time! For those of you wondering what ever happened with the efforts of Ed O’Bannon, Sam Keller and Craig Newsome – former college athletic stars all (but you probably knew that already, didn’t you?) – to protect their right to control the use of their images, the answer is: Lots. While none has yet emerged victorious over the NCAA, Electronic Arts (EA) and other various foes, progress has been made recently.

As loyal readers of this blog know, the field of “image rights” has been the subject of extensive litigation over the last couple of years. Former professional athletes (including no less a luminary than Jim Brown) and their college counterparts have sued a range of defendants in an effort to protect their ability to control, and profit from, the use of their images. And while Jim Brown’s attempt was stopped at the line of scrimmage, recent rulings in the cases of O’Bannon, Keller and Newsome may provide a path to victory for them (and other similarly situated celebs).

Keller and Newsome were big-time college football players, while O’Bannon played hoops. Since I happen to be partial to b-ball – as opposed to football (in large measure because of my distaste for the whole BCS ridiculousness) – here’s some background on O’Bannon. Originally recruited to play basketball at UNLV, he ends up at UCLA when UNLV’s program is put on probation. He gets injured bad (ACL) as a frosh, but fights back and, as a senior in 1995, is named college player of the year, stars when the Bruins win it all at the NCAA’s Big Dance, gets his UCLA number retired, the works. As college careers go, it doesn’t get more Story Book. Pro-wise, not so much: he went high (9th) in the NBA draft, but lasted only two seasons, followed by some play in the foreign leagues, and then retirement to a new career as a pretty successful car salesman.

Fast forward a decade or so. As the story goes, O’Bannon notices a friend’s son playing a video game featuring the 1995 UCLA Bruins. The video team includes an unnamed player startlingly similar – actually pretty much identical – to O’Bannon: same position, same number, same stats, same shooting hand, etc. His friend remarks, “You know what’s sad about this whole thing? You’re not getting paid for it.” O’Bannon thinks, “Wow, you’re right.” He lawyers up and sues.

O’Bannon and Newsome went after the NCAA. Keller, in a separate suit which was ultimately joined with the O’Bannon/Newsome action, named the NCAA and EA as defendants. The gist of the suits is that somebody – maybe the NCAA, maybe EA, maybe others – is making a boatload of cash from video games which depict (without specifically identifying) real people who are readily identifiable through various aspects – stats, player numbers, years, etc. Why should those real people not be entitled to share in the profits since their images are central to enterprise?

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Fifth Circuit backs FCC on fine issued to manufacturer of radar jamming device.

Most companies are content to lose a case once or twice. But some don’t get the message, and just keep on running up against the wall.

Rocky Mountain Radar (RMR) makes a jammer intended to help motorists evade police radar. It is different from a radar detector (legal in 49 states), which merely signals the presence of a radar beam. The RMR jammer does more. It not only detects the radar beam, but modifies it and sends it back to confuse the police radar device so it cannot register the car’s speed. The driver sails by, with a friendly wave for the officer.

The FCC announced 14 years ago that such jamming devices are illegal. RMR ignored the memo and kept on selling the product. A short time later, the FCC’s then-named Compliance and Information Bureau cited RMR for marketing an unlawful “intentional radiator” – FCC-speak for what most of us call a transmitter.

RMR raised a Clintonian defense. The FCC rules define an intentional radiator as a device that “intentionally generates and emits” radio-frequency (RF) energy. Not guilty, said RMR. Our device does not “generate” RF. Rather, it simply picks up the RF from the police radar and sends it back. Not being an intentional radiator, the jammer is not subject to FCC regulation. QED.

The Bureau disagreed. The device does “generate” a signal, it said. The incoming police beam just serves as a power source. Besides, said the Bureau, the purpose of the device is to cause harmful interference to a licensed service (police radar), which is illegal no matter how we classify the unit.

RMR sought review by the full Commission, which backed the Bureau. Next, RMR appealed to the U.S. Court of Appeals for the Tenth Circuit, whose 1999 decision backed the Commission.

At that point RMR had lost in every available forum except the U.S. Supreme Court. Actually it tried that one, too, but the Court declined to hear the case.

Scholars of communications law are accustomed to ambiguity and uncertainty. But here, for once, there was none. Few principles have been established so plainly: radar jammers are illegal. Some might disagree on whether this is the right outcome, but no one could seriously think the law is otherwise.

Except, apparently, the people at RMR.

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Chairman confirms upcoming effort to re-purpose TV spectrum for mobile broadband

For several months now the question on many TV broadcasters’ minds has been: will they or won’t they take away my spectrum and turn it over to smartphones? And while various FCC higher-ups have dropped conflicting hints about what the answer might be, the fact is that no one has expected to know for sure until the release (currently set for March 16) of the FCC’s National Broadband Plan (NBP).   But late this month Chairman Genachowski tipped the Commission’s hand, albeit without adding much practical detail. 

The FCC’s answer appears to be: TV spectrum is not being used efficiently, and would be better allocated to mobile broadband use, so the FCC plans to devise some mechanism to encourage TV licensees to cough up some or all of their spectrum in return for the prospect of taking home some portion of the proceeds when their spectrum is auctioned off for broadband.

According to the Chairman, the NBP will call for the “freeing up” of 500 MHz of spectrum over the next decade.  And one way the FCC hopes to achieve that, at least in part, will involve “establish[ing] market-based mechanisms that enable spectrum intended for the commercial marketplace to flow to the uses the market values most.” 

Can you spell “a-u-c-t-i-o-n”?

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Proposals are intended to make FCC proceedings more efficient and transparent, and less prone to abuse.

Those of us charged with getting the FCC to do things – issue licenses, grant waivers, cancel fines, all of that – are vitally interested in the fine points of FCC procedures, because understanding them can spell the difference between success and failure.  Just as no one would sensibly sit down to a game of poker without knowing that three of a kind beats two pair, no competent practitioner would take on the FCC without knowing the somewhat more complex rules of that agency’s regulatory game. And, sometimes, part of the job lies in knowing how to navigate those rules most advantageously.

So we take notice when the FCC proposes to change its procedures, as it did in two recent Notices of Proposed Rulemaking (NPRMs).  By and large the amendments are meant to serve laudable goals:  to make FCC proceedings more efficient and transparent, and to forestall some of the more common forms of abuse.

One NPRM proposes internal housekeeping changes which would:

• allow the staff (in place of the full Commission) to dispose of frivolous or repetitive requests for reconsideration;
• allow the FCC to amend  an action (as well as to set it aside) within the first 30 days;
• expand the use of electronic filing and notification;
• close some of the 3,000+ dockets that have become inactive;
• split overly large dockets; and
• clarify the effective date of new rules.

In a separate NPRM, the FCC takes on the always-controversial subject of its ex parte rules.

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The FCC has received approval from the Office of Management and Budget to implement its new rules clearing wireless microphones out of TV Channels 52-69 (the 700 MHz band). We reported on the adoption of those rules last month. OMB approval affects some of the deadlines in the clearing-out process. Those deadlines are now as follows:

• At any time on or after February 17, 2010, Public Safety and commercial licensees who are ready to occupy 700 MHz band channels may give notice to wireless microphone users to clear out.  (See Section 74.802(e)(2))
• Effective February 28, 2010, anyone who sells or leases wireless microphones (or offers them for sale or lease) must provide a “Consumer Alert” on their websites, in their product catalogs, and on microphone packaging, using FCC-specified wording.  (See Sections 15.216 and 74.851(i)).
• Effective June 15, 2010, any wireless microphone that operates above 698 MHz must be for export only and labeled that it may not be operated in the United States. (See Section 74.851(h)).

The June 12, 2010, deadline by which all wireless microphone users must stop operating on Channels 52-69 (698-806 MHz), remains unchanged.

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Waiver makes remote-control TV device available to police and firefighters.

Start with something the size of a beer can. Put a wheel on each end, and a TV camera inside, peering out. Pack in a lot of electronics, motors, and batteries. Make the unit able to survive repeated 30-foot drops, but keep the weight to just over a pound. Provide a separate, hand-held controller with a joystick to drive the unit, and a TV screen to show the user what the unit sees. 

The result is a surveillance robot called the “Recon Scout,” which the FCC recently authorized under a waiver.

The U.S. military has been using the device in Iraq and Afghanistan for a few years now. Before entering a building, troops can toss a Scout into an upper-story window and steer it down the stairs and through the rooms to detect hostile persons and size up their armament.

With the FCC waiver in hand, U.S. police and fire departments, and security personnel in critical infrastructure industries, will have access to the same technology. Typical applications are likely to include checking a building prior to forced entry, locating hostages and hostiles before a rescue attempt, searching for survivors in a burning building, and inspecting the site of a chemical or nuclear release. A police task force told the FCC, after testing the Recon Scout, “We don't feel comfortable without this thing now.”

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