Coming Soon: CommLawBlog Live!

A chance for you to hear directly from CommLawBlog contributors and friends.

CommLawBlog is pleased to announce the debut of a new feature: CommLawBlog Live!

From time to time, we will present our bloggers, and maybe even some outside guests, discussing communications law issues in a live online format. The kick-off show is set for Tuesday, April 22, at 3:00 p.m. – it will feature Kevin “The Swami” Goldberg and Harry “Blogmeister” Cole sharing their observations about the Aereo oral argument in the Supreme Court (which both will be attending earlier that day). Which Justices asked what questions? How did counsel respond? What does it all mean for broadcasters, MVPD’s, copyright holders, viewers, Aereo? And who knows what else?

Kevin and Harry, both veteran Supreme Court watchers, have been all over the Aereo saga for two years. If you like reading their posts on CommLawBlog.com, we expect you’ll like hearing them live and on-screen.

We’ll be using our usual webinar process, but don’t expect this to be like other webinars you may have attended. PowerPoints? Probably not. Off-the-cuff comments, casual banter, the occasional pointed critique? Count on it. Fun? We sure hope so. Keen insight? You’ll have to be the judge.

The April 22 CommLawBlog Live! test drive will be a complement to the more traditional webinar presented by Kevin and Harry as an Aereo primer in advance of the Supreme Court argument. If you missed that session, you can catch the recorded version by clicking on this link.

Registration for the first CommLawBlog Live! is now open – just click on the button below. Registration is first-come, first-served. Space is limited, so register sooner rather than later. 

Aereo Update: Alito Back On The Case

In case you ever wondered whether there’s such a thing as “unrecusal” – and, frankly, we hadn’t – here’s the answer: yes. The Supreme Court has announced that Justice Alito, who had recused himself from any participation in any aspect of the Aereo case (which, we remind you, is set for oral argument next week), is no longer recused. The Supremes aren’t required to explain their recusals and, it appears, the same is true of unrecusals. Whatever the reason, with Alito back on board the full nine-member court is now set to hear the case. That eliminates the possibility of a 4-4 tie among the justices (which would have left the Second Circuit’s decision in place, albeit without any approval by the Court)

JSAs On the FCC's Hit List

Increased restrictions and an at-best-vague waiver policy threaten continued viability of many if not most joint sales arrangements.

Everybody knows that, back on March 31, the Commission significantly altered the playing field for television broadcasters. In two separate items adopted that day the FCC (a) barred non-commonly-owned Top 4 network affiliates in a given market from engaging in joint retransmission consent negotiations, and (b) changed its approach to ownership attribution of joint sales agreements (JSAs). The full text of the retrans consent decision was released the day of the meeting. (You can check out our post on it here.) But the JSA order has been MIA . . . until now.

On April 15, more than two weeks after its adoption, the Further Notice of Proposed Rulemaking and Report and Order (JSA R&O) laying out the new JSA rules and policies was released. (The JSA R&O also kicks off the Commission’s statutorily mandated quadrennial review of its ownership rules.) Despite the delay in the document’s release – and the fact that it runs to 236 pages (and 1,147 footnotes) – the JSA R&O doesn’t add significant insight into how JSA attribution, and in particular the standards for waiver, will be implemented. 

The new JSA rules and policies govern any arrangement which authorizes one TV station in a market to sell 15% or more of the advertising time of another station in the same market. Reversing a couple of decades of precedent, the JSA R&O provides that such JSAs will now be attributable to the owner of the station doing the selling. This means that, in many markets, longstanding arrangements that have been viewed as consistent with the multiple ownership rules will now have to be modified or unwound in order to assure compliance with those rules. Such modifications/unwinding must be done within two years of the effective date of the new rules. While the Commission will entertain requests for waivers of the rules, the prospects for getting a waiver are at this point far from clear.

Continue Reading...

Update: FCC Rejects Class Action Proposal

About a year and a half ago we alerted readers to a Petition for Rulemaking proposing that the FCC allow lawyers to file class actions on behalf of complainants. Rather than summarily toss the petition, the Commission invited public comments on it. And now, 19 months down the line, the Commission has tossed the petition.

Not surprisingly, the FCC sees no need to set up a new class action process when the federal courts are already highly experienced in handling such cases. Further, there’s the question of resources: the Commission recognizes that implementation of a class action process would suck up “considerable resources” and would entail various litigation-related activities with which the Commission has no experience. Why bother, when the existing complaint procedures already emphasize "streamlined and expeditious dispute resolution"? And anyway, there’s no evidence that folks who complain to the FCC would prefer to be shunted off into Class Action Land, that the Commission could force them to go that route in any event, or that their various complaints would necessarily raise the common issues of law and fact necessary for class action treatment.

So if you’re thinking of filing a class action, don’t waste time going to the FCC – just head to court straightaway.

Forgotten But Not Gone: Annual Broadcast Employment Form 395-B Re-Surfaces

A Federal Register notice suggests that the FCC may be thinking about re-imposing the Form 395-B requirement – but the notice neglects a couple of problems.

It’s baaaack – maybe. The Commission’s decade-dormant annual employment report form has stirred. In a Federal Register notice the FCC has advised that it is cranking up the process (mandated by the hilariously-named Paperwork Reduction Act) to secure the approval of the Office of Management and Budget (OMB) to continue to keep Form 395-B in the FCC’s roster of forms.

There are multiple problems here.

As longtime Commission watchers may recall, Form 395-B calls for broadcast stations to provide information, annually, detailing the racial, ethnic and gender composition of their full-time and part-time staff according to job category. If you’re a recent arrival to the broadcast industry – “recent” being within the last 15 years or so – you may not be familiar with Form 395-B. You can read about the history in this post of ours from last year.

Continue Reading...

TV Channel-Sharing Study: A Report on the Report

Does the report on the first formal tests of a TV channel-sharing arrangement really say what FCC Chair Tom Wheeler says it says? YOU make the call.

At the recent NAB Show in Las Vegas, Chairman Wheeler came on like a cheerleader at a pep rally, touting the upcoming incentive auction program. (For readers who weren’t there, it was something like Darth Vader trying to sell the Rebel Alliance on the obvious benefits available to Empire participants.) According to Wheeler, the auction presents “a terrific financial opportunity for broadcasters” – and that’s because of the possibility of certain cooperative agreements between TV licensees. This is, of course, the same Chairman Wheeler who, just days earlier, had put the kibosh on cooperation between TV licensees in the shape of joint sales agreements (while also raising a critical eyebrow at shared services agreements and joint retransmission consent negotiations).

But those types of cooperation are different.

In Vegas, Wheeler was talking about channel-sharing arrangements in which two stations use common transmission facilities, arrangements which can provide “under-considered and under-appreciated” benefits.  And how is he so sure about that?  It turns out that a report has been prepared describing the first formal test of channel sharing and, to hear the Chairman tell it, the report makes a “compelling case” for that practice.  He said that he hopes broadcasters “closely study” the report.

Trouble is, the report itself doesn’t appear to have been widely circulated.  So we figured we’d take a look at it and let our readers know what we found – and also give them a direct link to the report so they can read it themselves.

Continue Reading...

Reminder: Aereo Webinar Set for April 16

As we announced several days ago, we’ll be presenting a FREE webinar next Wednesday, April 16 (at 3:00 p.m.), on the Aereo case. The Supreme Court will be hearing arguments in the case on April 22, so our webinar – hosted by Kevin Goldberg and Harry Cole – will provide attendees a comprehensive overview of the history of the Aereo litigation leading up to the Supremes. The webinar is designed to provide background and perspective to help make sense of both the arguments before the Court and the speculation likely to follow the arguments.

While space is limited, we still have some capacity, but it will be filled on a first-come, first-served basis. If you want to get yourself up to speed on All Things Aereo in advance of the Supreme Court argument, here’s your chance. Just click on the “Register Now” button below and sign yourself up.

New gTLD's Are Knocking on the Door - Do You Know What to Do?

Hundreds of new generic Top Level Domains are about to hit the Internet. What do you need to worry about and how can you take advantage of the opportunity?

As we have previously reported, the Internet Corporation for Assigned Names and Numbers (ICANN) has for the past several years been busy readying a new batch of generic Top Level Domains (gTLDs) to unleash on the Internet community. In recent months, 175 new gTLDs – the cognoscenti just call them “the New G’s” – have successfully negotiated ICANN’s exhaustive review process. Soon we can expect to start seeing new domain names ending in “.SOLUTIONS”, or “.PHOTOS”, or “.FLORIST”, among others.

The New G's hold considerable promise but we suspect that many readers may not be fully aware of what the future has in store. To take advantage of the opportunities the New G’s present – and also to avoid potential problems – it’s important to know what could be coming down the line and how best to deal with it when, or preferably before, it gets here.

Let’s first look at the two Big Questions, and then delve into some of the underbrush to help you figure out how best to proceed.

Continue Reading...

Update: Comment Deadlines Set re Proposed Elimination of Network Non-Dupe and Syndex rules

Last week we reported on the FCC’s Report and Order and Further Notice of Proposed Rulemaking, the “proposed rulemaking” component of which sought comments on the possible elimination of the Commission’s existing network non-duplication and syndicated exclusivity rules. (Those rules allow broadcasters to ask the Commission to enforce exclusivity rights granted in network affiliation or syndication agreements. While not themselves establishing such rights, the FCC’s rules do set out the maximum areas in which such rights may be granted, and provide a framework through which broadcasters can enforce those rights to prohibit MVPDs from importing distant signals.) The Further Notice of Proposed Rulemaking has now been published in the Federal Register, so we now know the deadlines for comments on the proposal. Comments may be filed by May 12, 2014 and replies by June 9. Comments may be uploaded at the FCC’s ECFS filing site; the relevant “Proceeding Number” is 10-71.

CommLawBlog - On the Air!

Blogmeister Harry Cole makes it to the big time with an interview on NPR.

CommLawBlog’s own Harry Cole has hit the NPR airwaves, expounding on the advertising of marijuana in places where the Killer Weed can be legally sold. We’re not saying Harry’s prior stint on the Howard Stern Show adds to his expertise on the topic, but it doubtless contributes to his mellifluous delivery. Hear him for yourself on the NPR website, as he explains what the marijuana munchies have to do with broadcast law.

Free Webinar on Aereo - April 16

Live on the Intertubes: Kevin (“The Swami”) Goldberg and Harry (“The Blogmeister”) Cole, recapping the Aereo story on (almost) the eve of the Supreme Court argument.

Hey, CommLawBlog readers (you know who you are)! Kevin Goldberg (a/k/a/ the Swami) and Harry Cole (a/k/a the Blogmeister) have put up scads of posts here covering the ongoing drama of Aereo vs. the Broadcasters (and its various spin-offs, including Aereo: Los Angeles, better known as Aereokiller vs. the Broadcasters). You’ve been reading their stuff for years – now you can listen to them, too!

Back in December, Kevin speculated that we could be seeing Aereo Armageddon sooner rather than later in the form of a Supreme Court showdown. And sure enough (we don’t call him the Swami for nothing), that showdown is on the Court’s schedule for April 22, when Aereo and its various nemeses are set to face off in an epic oral argument before the Supremes.

The outcome – likely to be decided by the end of June – could have a major impact on the Future of Broadcast Television (as well as other incidentals, like the Future of Cloud Computing). Suffice it to say, we can expect the argument and its aftermath to be big news.

To help make sense of it all before the argument – and to help make sense of the argument once it happens – Kevin and Harry will be presenting a FREE webinar on Wednesday, April 16 at 3:00 p.m. ET to review and explain the legal issues and judicial decisions that have brought Aereo to the Supreme Court. Their goal will be to provide attendees background to help them understand the arguments before – and the ultimate decision of – the Court. They’ll track the legal history from which Aereo emerged, sort out the various different lawsuits that have cropped up across the country, and look at possible outcomes.

You can register to attend the free 75-minute webinar by clicking on the link below. Space is limited and registration is available on a first-come, first-served basis only.


(Messrs. K and H assure the public their production will be second to none . . .)

Wi-Fi Bulks Up

New technical rules for unlicensed 5 GHz will yield better device performance.

We hear a lot about the shortage of spectrum that wireless carriers need for delivering silly cat videos to our smartphones and tablets. Also in short supply, although it gets less attention, is spectrum used by “unlicensed” services like Wi-Fi and Bluetooth. Access to this spectrum is free: no multi-billion-dollar auctions. The chips that use it are inexpensive, despite sometimes being housed in pricey tablets. There are no monthly charges. These frequency bands carry far more data every day than do carrier-provided 3G and 4G data services.

Older forms of Wi-Fi used only a band at 5.8 GHz band or, much more commonly, a band at 2.4 GHz. Some newer Wi-Fi protocols can use either or both, or other sub-bands in the 5 GHz range – whatever gives the best performance at a particular time and place. These technologies are amazingly good at working around interference, but still, can tolerate only so much congestion. A mathematical theorem sets the limit. As more of our devices send and receive more data, everybody’s performance gets worse.

A recent FCC order will help.

Continue Reading...

TV Online Public File Update: Political File Exemption Set to Expire as of July 1

Media Bureau “reminder” seems to eliminate any hope of extension of exemption for non-Top Four affiliates outside of top 50 DMAs.

If you’re a TV licensee who doesn’t happen to be either (a) in any of the top 50 DMAs or (b) affiliated with one of the top four commercial networks (ABC, CBS, FOX and NBC), we’ve got some news for you: it looks like you’ll be having to upload all your new (but none of your old) political file data to your online public inspection file starting July 1, 2014.

That, at least, is the unmistakable take-away message from a public notice issued by the Media Bureau.

The notice reminds one and all of a wrinkle the Commission included when it imposed the online public file requirement for TV licensees back in 2012. At that time, the obligation to upload the political file component of each station’s public file was limited to Top Four affiliates in the top 50 DMAs. All other stations were still required to maintain a political public file, but only on paper, as they had done for years.

In 2012, the Commission said the exemption would be good only until July 1, 2014. BUT the FCC held out at least a glimmer of hope that the exemption might be extended: in 2013 the Media Bureau was to invite comments on whether “any changes [to the online political file rule] should be made before it takes effect for the other stations.” The Bureau dutifully solicited comments in June, 2013 and, as we reported last year, the response was less than overwhelming.

Continue Reading...

AWS-3 Takes Center Stage

FCC adopts service rules for long-awaited 65 MHz of re-purposed spectrum.

At its March 31 meeting, the FCC made available an additional 65 MHz of spectrum for broadband operations – sort of. This much anticipated action fulfills part of the objective of the National Broadband Plan to deliver 500 MHz of new spectrum for broadband, while also meeting the requirement of the Middle Class Tax Relief and Job Creation Act of 2012 to find and license 55 MHz of spectrum within certain designated bands by February, 2015. This required taking some spectrum from notoriously possessive Federal government users and figuring out which spectrum bands could most quickly and easily be re-purposed. Amazingly, the Commission’s decision seems to have left most prospective licensees reasonably happy, while not accommodating everyone completely -- usually the sign of a fair decision. The adoption of these service rules, with the February, 2015 statutory deadline looming, sets the stage for an auction of the new spectrum in the fall of this year.

 Before we get to the provisos and complications, here are the main specifics of the new spectrum plan:

Continue Reading...

FCC to TV Licensees: You're On Your Own in Retrans Negotiations

Commission prohibits same-market Top Four stations from joining forces in any way in striking retransmission consent deals.

It’s official. After several weeks of grim anticipation (marked by, among other things, an unusual, ominous public notice from the Media Bureau), the Commission has significantly altered the playing field for television broadcasters. In two separate items, the FCC has (a) changed its approach to ownership attribution of joint sales agreements (JSAs) and (b) barred non-commonly-owned Top Four ranked stations in a given market from engaging in joint retransmission consent negotiations. The following is an analysis of the retrans consent decision; we’ll follow up with a review of the JSA order when it is released by the Commission.

The short version: when the FCC’s Report and Order and Further Notice of Proposed Rulemaking (Retrans R&O) takes effect, joint retransmission consent negotiations between two non-commonly owned “Top Four” stations in the same market will be prohibited. And before you get any ideas, the term “joint negotiations” as the FCC uses it is extraordinarily broad, as we will discuss below.

The back story on retransmission consent is well known. For the last 20 years TV stations have been able to elect cable and satellite coverage either by “must carry” or “retransmission consent”. When a broadcaster opts for the latter, it is required by statute to negotiate in “good faith” with cable and satellite providers (collectively, MVPDs). The Commission has the statutory authority to enforce this good faith negotiation requirement, but historically it has identified only a small handful of relatively obvious indicia of a lack of good faith – e.g., refusing to negotiate at all, or failing to respond to the other party’s offer.

The Retrans R&O adds one more indicium.

Continue Reading...