Aereo in the Supremes: A Post Mortem Post

So the storm that had been brewing for some months – the long-impending Aereo argument in the Supreme Court – has now come and gone, and we are left to sift through what remains to try to figure out what’s next.

We are pleased to report that, as planned, our intrepid reporters on the Aereo beat, Kevin Goldberg and Harry Cole, attended the argument (nearly front-row seats, thank you very much) and were able to provide an overview of the festivities on CommLawBlog Live! less than three hours after the gavel came down in the courtroom. (That’s just a metaphor – Chief Justice Roberts did not appear to wield an actual gavel.) For those of you who missed it, you can catch a recording of the audio portion here, although you’ll miss the video of Kevin and Harry – which is, of course, the price you pay for not signing up for the live presentation.

Several highlights, in no apparent order:

  • The Supreme Court’s head was in the clouds . . . literally. Many of their questions centered on how cloud computing might be affected by any decision in this case.
  • At least four justices observed that Aereo looks just like a cable system, and at least a couple reflected an awareness that Aereo’s design was intended to allow it to avoid copyright obligations – but it’s not clear that that alone will convince them to find for the broadcasters.
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An Internet-on-Airplanes Upgrade

FCC gives co-primary status to “Earth Stations Aboard Aircraft” uplinks.

The FCC has given in-flight Internet an upgrade.

Late in 2012, the FCC authorized use of earth stations installed on aircraft to communicate with Fixed-Satellite Service (FSS) spacecraft in geostationary orbits. Called “Earth Stations Aboard Aircraft” (ESAA), the service delivers wholesale Internet service to the airplane, where it gets parceled out to individual passengers via Wi-Fi.

Uplinks from the aircraft use the 14.0-14.5 GHz band, shared with (among others) the small VSAT terminals we often see on the roofs of gas stations and chain hotels. The FCC tentatively assigned ESAA secondary status, meaning that ESAA would have to (a) protect the VSATs and other primary users from interference, and (b) accept any interference from them. But the FCC stopped short of etching that decision in stone: a Notice of Proposed Rulemaking attached to the order asked whether the FCC should elevate ESAA to co-primary status.

The FCC has now made its decision: ESAA is co-primary. Other co-primary users and ESAA must all protect one other on equal terms.

The new order also makes a few adjustments in response to a petition for reconsideration. The rules will apply not only to aircraft operating within the United States, but also to U.S.-flagged aircraft anywhere in the world. The FCC clarified a technical provision requiring automatic shut-off if certain things go wrong, and one about the reliability of the mechanism that points the antenna at the satellite. The new rules wlll take effect 30 days after they get published in the Federal Register; check back here for updates.

Sure, these details are dull. But they make it possible to lean back at 35,000 feet and watch silly cat videos.

Reminder: Live Webinar Review of Aereo Oral Argument - 4/22/14

There’s nothing like a Supreme Court argument to get the Main Stream Media’s attention. With tomorrow’s argument in the Aereo case nearly here, it seems that all the MSM (well, at least the Washington Post, the New York Times, the Boston Globe, CNET, PBS, among many others) are suddenly attuned to the story that we here at CommLawBlog have been all over for more than two years. (For a collection of our Aereo pieces, click here.)

As we reported last week, our Aereo beat bloggers Kevin Goldberg and Harry Cole are planning to emerge from the CommLawBlog bunker for a quick run over to the Supreme Court to take in the show. Then they’re going to hustle back for a live online discussion and analysis of the arguments at 3:00 p.m. that afternoon (Tuesday, April 22, 2014).

Why wait for the nightly news (or the next day’s newspaper) to find out what you’d probably like to know sooner? Space is still available if you want to hear Kevin and Harry lay it out.And it's FREE. Just click on the button below and sign yourself up.


Drone Even Go There: On Newsgathering, Drones and the FAA

The FAA’s anti-drone posturing: procedurally, practically and constitutionally unsound

They say that tragedy plus time equals comedy. Sometimes that may be true. But when the tragedy is severe enough, tragedy plus time equals tragedy – leading, at best, to reflection.

Reflection on a recent tragedy has led to this post.

In March, a KOMO-TV News helicopter crashed in Seattle, killing two people. This kind of tragedy can be avoided in the future, at least in part through the use of Unmanned Aircraft Systems (UAS) – more commonly referred to as “drones”. But I fear that the current Federal Aviation Administration (FAA) stance on the use of drones will prevent news operations from employing this more nimble, informative and safer option in the future.

Note that I referred to the FAA’s “stance” on drones, rather than its “rules”. That’s because the FAA does not now have (and apparently has never had) any actual “rules” governing drone use. But that’s not stopping the FAA from engaging in bluff and bluster – along with at least one threat of a five-figure fine – in an effort to discourage drone use by, among others, news gatherers.

The good news – at least from my admittedly-biased-in-favor-of-journalists perspective – is that courts may not stand for the FAA’s shenanigans.

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Another Big Audio Manufacturer Makes Another Big Settlement

Peavey Electronics ponies up $225,000 for digital device violations.

Are there no music lovers at the FCC?

Perhaps not in the Enforcement Bureau, which over the last few years has singled out audio and music companies for large fines relating to the FCC’s digital device rules. Those rules require manufacturers of equipment having digital circuitry – that’s pretty much everything, these days – to test stray radio-frequency emissions for compliance with FCC limits. The manufacturer (or importer) must also place specified warnings in the instruction manual and, for consumer equipment, apply certain labels and provide additional paperwork.

The last few years have seen substantial penalties and settlements against audio manufacturers for violating these rules: Rane ($61,500); guitar-maker Fender ($265,000); American Music and Sound ($72,000); PreSonus ($125,000) and the biggest fine of all, levied against Behringer ($1,000,000).

Most recently in the crosshairs is Peavey Electronics Corporation, which is handing over $225,000 to settle charges that it violated the digital device rules. (We take a personal interest in this one; our own Blogmeister has long used Peavey gear, pictured above in the CommLawBlog bunker sound studio.)

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Travelers' Information Stations: To Filter (above 5 kHz) or Not to Filter, THAT is the Question

Comments have been invited on an NAB/SBE proposal aimed at (slightly) improving the audio quality on the TIS without interfering with AM stations.

Last July we blogged about changes the Commission had adopted to improve Travelers' Information Stations (TIS). At that time, the FCC proposed another fairly drastic change – the elimination of certain filtering requirements – that might potentially improve the service. The proposal went farther than some commenters thought advisable, which prompted them to propose a more moderate approach and, in response, the Public Safety and Homeland Security Bureau has now issued a Public Notice seeking further comment. (The Bureau probably could have skipped this step, but this writer thinks it’s a good thing they didn’t.)

TIS are low-power AM stations broadcasting information of interest to motorists, including traffic and road conditions, travel advisories, hazards, directions and the like. Each station covers only a small geographic area, most commonly along major highways and near tourist destinations.

AM service is notoriously interference-prone, with TIS as a potential source. The interference occurs because of the “sideband” portion of the TIS-transmitted AM signal. Excessively wide sidebands can cross over into another station’s channel, causing interference to that station. With AM stations – whose signals, particularly at night, can extend for hundreds of miles – this can cause big problems.

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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, 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.

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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.

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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.

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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.

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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.