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

Proposed law looks to address multiple aspects of TV in the MVPD era, including bundling, broadcast abandonment and blackouts.

True to his reputation as a maverick, Arizona Senator John McCain has authored a bill seemingly designed to please nobody, while arguably disserving just about everybody. Dubbed the “Television Consumer Freedom Act of 2013”, it consists of clumsily crafted legislative language that mashes together in one bill three disparate and contentious aspects of the current video delivery system. In only one of those three areas does McCain’s proposal come to remotely practical terms with the problem it seeks to address.

McCain’s bill aims to: (1) promote “a la carte” program availability for MVPD subscribers; (2) discourage broadcasters from removing their programming from over-the-air availability (in response to the success that Aereo has recently enjoyed); and (3) eliminate broadcast blackouts of sports coverage in certain situations.

Promoting “A la Carte” MVPD offerings

McCain has long been an advocate of an a la carte approach to program availability. Under that approach, cable and satellite TV subscribers would be able to sign up for only those channels they want to watch – no more required “bundles” or “tiers”, i.e., packages of channels including some really desirable choices and a bunch of others that probably won’t be watched much, if at all. 

The practice of “bundling”, of course, is not unique to the MVPD operator/MVPD subscriber relationship.

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Thoughtful prediction of 6-3 vote for petitioners proves wrong, big time, as 9-0 Court upholds Virginia citizens-only FOIA provision.

[Blogmeister’s Note: Paging Dr. Heimlich! A couple of months ago, our Supreme Court Haruspicator Extraordinaire, the Swami (a/k/a Kevin Goldberg) confidently predicted that the petitioners in McBurney v. Young would win, 6-3, in the Supreme Court. That’s the case involving a constitutional challenge to Virginia’s FOIA law, which is available only to Virginia citizens.  The decision is now out and, oops, the Court went 9-0 the other way. When we were finally able to track the Swami down for a follow-up post on the decision, his initial response was to send us a tear-stained resignation letter expressing his sense of commitment, his pride, his dedication to process, etc., etc. Upon closer examination, however, the letter turned out to be a transparent semi-plagiarism of Richard Nixon’s 1974 resignation speech. We talked the Swami off the ledge, leaned on him a bit, and he has now provided the following take on the Court’s decision.]

Yep, I was wrong, but seriously, nobody – and I mean NOBODY – saw this coming. Sure, plenty of folks might have thought the Court would uphold the law. But none of them would have put their own hard-earned money on a 9-0 verdict.  Not even the most accommodating bookie would have given odds on a unanimous verdict in this one.  And even knowing the final result, I stand by my earlier words that “Justices Ginsburg, Sotomayor and Kagan seemed clearly to favor Messrs. McBurney and Hurlbert”. 

So I’m shocked – not only by the result, or the Court’s unanimity, but by the overwhelming and radical antipathy toward open records laws expressed by the entire Court through Justice Alito’s pen. And I’m angry at the Court’s liberal block for signing onto that position (more on that below).

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Broadcasters ask full Second Circuit to review panel’s decision allowing Aereo to continue to operate pending trial of infringement claim

We told you the Aereo saga wasn’t over. 

Having lost the most recent (but certainly not the last) round in their litigation war with Aereo, the broadcast plaintiffs have filed a “petition for rehearing en banc” with the U.S. Court of Appeals for the Second Circuit. In that petition, the broadcasters are asking the full 13-member court to review the 2-1 decision of a three-judge panel that affirmed a lower court ruling allowing Aereo to continue to operate while the trial of the case moves ahead.

[Before we get into the nitty-gritty of the petition, let’s take a brief introductory side trip into the world of appellate procedure. Each of the 13 federal courts of appeals consists of between six (in the First Circuit, covering New England) and 29 (in the Ninth Circuit, which sprawls across nine western states and a couple of territories) judges. When an appeal is filed, it is normally heard by a panel consisting of three judges from the particular circuit court where the appeal is filed. 

After the panel issues its decision, if the losing party believes that that decision was wrong, the loser has three options. It can ask: (1) the three judges to re-think their disposition of the case; (2) all the judges in the circuit, sitting “en banc”, to review the panel’s decision; or (3) the Supreme Court to look the case over. Supreme Court review is usually the longest of long shots. Similarly, since the panel has just deliberated over the issue and come up with the result at hand, it’s usually a pretty good bet that the panel won’t be eager to reverse itself. But en banc review brings a bunch of different judges into the mix, so it presents at least some source of hope to the party unhappy about the panel decision.

But the rules are set up to make en banc review hard to get.

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Delaware judge, USPTO take actions in long-running patent matter, but it’s hard to say what it all means.

Talk about mixed signals! March 25 very likely marked a crucial turning point in the up-and-down, back-and-forth tug of war between Mission Abstract Data (MAD) and many radio broadcasters, but it’s hard to tell for sure which way it turned and in whose favor.

On the one hand, in the federal court lawsuit in Delaware, on March 25 the judge denied MAD’s motion to lift the stay that has held that case in suspended animation for more than a year already. But in the same order the judge held that the stay would be lifted “upon the issuance” by the U.S. Patent and Trademark Office (“USPTO”) of “Notices of Intent to Issue Reexamination Certificates” (NIRCs) with respect to MAD’s two patents. As our loyal readers know, those patents have undergone not one, but two separate reexaminations at the USPTO over the last year or two.   Indeed, it appears that the judge in Delaware has held his case in abeyance until the USPTO reaches some final conclusion about the nature and validity of the patents.

But in a remarkable coincidence, also on March 25 it appears that the USPTO issued an NIRC relative to Patent No. 5,809,246 (the 246 Patent) and a “final rejection” relative to at least some aspects of Patent No. 5,629,867 (the 867 Patent). (The term “final rejection” appears in the PTO’s online description of the document.)

If you weren’t confused already, hang on.

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Supreme Court rejection may be the end of the road for the upstart, Internet-based MVPD wannabe.

It looks like the Supreme Court may have dumped a final, fatal treatment of Roundup on ivi, Inc.  In a standard nine-word order (“The petition for a writ of certiorari is denied.”), the Supremes unceremoniously rejected ivi’s last-gasp effort to get out from under the preliminary injunction imposed by the federal District Court in NYC two years ago.  As a result, ivi is still barred from operating in the Second Circuit, and its future prospects are decidedly dim.

We’ve reported on several occasions on ivi.  It’s one of a handful of companies seeking to revolutionize television viewing by making broadcast signals available to viewers via the Internet.  ivi’s approach involves a liberal interpretation of the Copyright Act that would allow it to stream television programming directly to your computer, tablet or smartphone.  

ivi claims that its Internet-based streaming operation is the equivalent of a cable system as defined in Section 111 of the Copyright Act.  Under that theory, it has argued that it’s entitled to retransmit broadcast programming without the prior consent of the broadcasters as long as it pays applicable copyright royalties.  The broadcast industry has disagreed, naturally; in 2010, even before ivi started operation, broadcasters peppered ivi with cease and desist letters.  Undaunted, ivi went on the offensive, filing a lawsuit in the U.S. District Court for the Western District of Washington seeking a declaratory judgment that ivi is a cable system under the Copyright Act.  The broadcasters promptly countered with their own suit (alleging copyright infringement) in New York.

ivi’s Washington case was tossed by the judge there in January, 2011.  The following month, the broadcasters convinced the judge in the New York case to preliminarily enjoin ivi from operating pending the outcome of the case.  ivi appealed that ruling to the Second Circuit, to no avail.  In its trip to the Supreme Court it was trying to get the Supremes to lift the injunction.

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The Supremes hear arguments about the “citizens-only” provision of Virginia’s Freedom of Information Act

[Blogmeister’s note: The Supreme Court recently heard arguments in McBurney v. Young, a case involving a “citizens-only” limitation on state FOIA rights in Virginia. This was smack in the wheelhouse of Kevin Goldberg, a/k/a the Swami, who has long specialized in matters affecting access to information and the rights of the media. He attended the argument and provided this report.]

If you want to hear (and see!) what I had to say right after the McBurney argument, click here – that’s where you’ll find a video interview with me conducted by our friends at LexBlog only hours after the argument wrapped up. In the interview I hit the high points of the case, but for you, my faithful readers, I’ll flesh out a few more facts and the reasoning behind my prediction.

The case started when two individuals – neither of them a Virginia citizen – filed requests for information under the Virginia Freedom of Information Act.  Mark McBurney requested records relating to child support owed to him by his ex-wife; Roger Hurlbert sought property assessment records for business purposes.  Each request was denied because the Virginia FOIA is (with some limited exceptions) available only to Virginia citizens and neither McBurney nor Hurlbert is a Virginia citizen.

Those denials were upheld by the U.S. District Court for the Eastern District of Virginia, which held that Virginia’s law does not unreasonably discriminate against non-residents. The case was appealed to the U.S. Court of Appeals for the Fourth Circuit.

I got involved in the case at that point.

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Texas Hold ‘Em or Texas Hold Up? MAD goes all in in East Texas.

Like that gambler who just doesn’t know when to quit, always looking for the big score, our friends at Mission Abstract Data (MAD) – through their latter-day identity, DigiMedia – are back at the table.  On February 14, DigiMedia filed lawsuits against four radio companies with stations in Texas, arguing that the companies have engaged in patent infringement. (You can find links to the complaints, sans attachments, here, here, here and here.) The allegations are essentially identical to those advanced by MAD in federal court in Delaware against seven large radio companies back in March 2011.  The fact that the new lawsuits aren’t markedly different from those earlier, still pending, suits actually raises some questions.

We’ve been dutifully following and reporting on the Mission Abstract Data (now “DigiMedia”) patent saga for nearly two years.  (Standard disclaimer: we are NOT patent attorneys, and make no claim to special familiarity with patent law in general or as it might apply to MAD’s arguments.) As of late December it looked like the saga was nearing its end. That’s when the United States Patent and Trademark Office (USPTO) – for the second time – reexamined the patents underlying MAD’s claim and appeared to narrow the scope of those patents dramatically. 

Despite that apparent setback, MAD has now come roaring back, suing four separate licensees with FM stations in Tyler, Greenville, Denison and Palestine, all in Texas.

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[Blogmeister’s prologue: Kevin Goldberg has a second-to-none track record when it comes to defending the First Amendment and Open Government. Named the outstanding constitutional law student in his graduating class at the George Washington University Law School, he has served as a member of the Board of Directors of the District of Columbia Open Government Coalition, a member of the Executive Committee of the Board of Directors of the National Press Foundation, a member of the Board of Directors of the Public Participation Project and the Chair of the Legislative Affairs Committee of the Media Law Resource Center. In 2006, Kevin was inducted into the National Freedom of Information Hall of Fame for his continued and superlative service in pursuit of open government. He is the youngest of the current 56 members in the Hall. When he has something to say about the public’s right to know, we listen. Kevin has something to say about the proposed “Federal Communications Commission Collaboration Act of 2013”.

We expect some of our readers may disagree with Kevin’s views, and we expressly invite those who do disagree to share their views with us in comments, or possibly even in a guest post.]

Nearly 50 years ago, Congress passed the federal Freedom of Information Act (FOIA), giving all of us citizens access to the records of every executive branch agency (subject to nine very narrowly-construed exceptions). The FOIA embodies the fundamental premise that the public has a right to know how the government does the public’s business.

A decade later, in the wake of the Watergate scandal, Congress passed the Government in the Sunshine Act (a/k/a the Sunshine Act), again seeking to ensure the public’s right to know. (In Congress’s words, “Government is and should be the servant of the people, and it should be fully accountable to them for the actions which it supposedly takes on their behalf.”) The Sunshine Act gives us all access to the meetings of certain executive branch agencies, much as the FOIA give us access to those agencies’ written records.

Maybe not for long, though, at least as far as the FCC is concerned.

Bills proposing the “Federal Communications Commission Collaboration Act of 2013” have been introduced in Congress – as S. 245 by Senators Amy Klobuchar, D-MN, and Dean Heller (R-NV) and H.R. 539 by Representatives  Anna Eshoo (D-CA), John Shimkus (R-IL), and Mike Doyle (D-PA). Under the bills’ provisions, FCC Commissioners would be allowed to engage in a significant amount of regulatory activity outside of the public’s view.

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Webcasters have until JANUARY 31 to file Statement of Account forms, pay annual fees to SoundExchange

According to famed lyrical poet Paul Hewson (“Bono” to his millions of friends), “nothing changes on New Year’s Day”. He reportedly started writing the song as a love paean to his wife, although it eventually morphed into a political statement inspired by the Polish Solidarity Movement. Regardless of the song’s broader political statement (or anybody’s personal notions about the significance of New Year’s Day), the plain statement isn’t true: things do change on New Year’s Day. 

Compliance with the statutory license applicable to webcasting is one of those things. 

When the ball drops in Times Square, webcasters are faced with updated forms to fill in and submit, a new cycle for reporting, and a clock ticking down the 31 days until the annual minimum fees of $500 per channel must be sent to SoundExchange. 

Thankfully, much like last year, the changes from 2012-2013 are pretty minor. The rates have increased slightly. The forms have changed a little (with a new look and feel), although that shouldn’t be anything to worry about if you’ve done this before. And, in perhaps the most noteworthy change, there are actually fewer forms for some webcasters to file. Here’s an overview of what will be expected of webcasters in 2013.

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Yet again, the NFL provides evidence of its aggressive efforts to protect both trademarks it owns and trademarks it doesn’t own.

With four minutes to go in the AFC Championship game and the Ravens looking good for a trip to Super Bowl XLVII®, I noticed that the hashtag #Harbowl was already blowing up on my Twitter feed.  That’s because a Ravens victory would mean that, for the first time in NFL history, two brothers – those would be John and Jim Harbaugh, of the Ravens and Forty-Niners, respectively – would be facing each other as head coaches in the Super Bowl®.  Look for “Harbowl” to become the unofficial moniker for the game.

Being a trademark lawyer geek, I immediately flashed on two thoughts: (1) how quickly could  I get an application on file with the U.S. Patent and Trademark Office (USPTO) to register “Harbowl” as a trademark (for hats, shirts, bumper stickers, temporary tattoos and all the other impulse items that NFL fans will be craving for the next two weeks); and (2) what are the chances that I could get that application granted?

Answer to Question One: I might be able to have an “intent to use” application on file before the game is done – it’s just that easy to file for trademark protection.  (Tip to readers: The ease of filing for such protection is a reason all of you should consider protecting your call signs, program names, slogans and other important brands by filing applications for federal trademark registrations.)

Answer to Question Two: “slim” and “none”, since – thanks to federal trademark law – I’d probably need the permission of the Harbaugh brothers to trademark something referencing their names. 

And that’s before the NFL has its say.

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