The FCC's Oct. 27 meeting agenda is expected to include an order on unbundled network elements (UNE) based on the USTelecom/Incompas compromises reached on dark fiber transport and loop issues (see 2009150063), industry officials told us. Chairman Ajit Pai applauded the agreements at last week's Incompas show, saying he hoped for FCC support for them (see 2009150069).
Matt Daneman
Matt Daneman, Senior Editor, covers pay TV, cable broadband, satellite, and video issues and the Federal Communications Commission for Communications Daily. He joined Warren Communications in 2015 after more than 15 years at the Rochester Democrat & Chronicle, where he covered business among other issues. He also was a correspondent for USA Today. You can follow Daneman on Twitter: @mdaneman
TV stations, like radio in recent months, could get a slew of political file consent decrees as a signal of FCC interest in those files being up to date and accurate, Media Bureau Policy Division lawyer Gary Schonman said during an FCBA event Tuesday. Most of those, minus consent decrees brought against the big six station chains (see 2007220070), were the result of radio license renewals and stations certifying their public file obligations, he said. TV renewals are starting and will run through 2023, so it's too early to say whether video will have similar consent decree activity, he said. NAB told us it plans to send compliance manual templates by week's end to small and midsize radio stations that they then can personalize. The FCC has sent out 106 consent decrees to broadcasters due to widespread noncompliance and expect that close to 300 will go out as it goes through the current two-year license renewal cycle, said Policy Division Assistant Chief Robert Baker. He said the radio industry and TV broadcasters “are getting their acts together." Baker said a major issue has been getting broadcasters mindful that there's a digital date stamp when they upload materials into their online political files. Some stations in smaller radio markets weren't aware they were required to post into a digital file, "which is a little bit surprising," he said. Schonman said the clock for broadcasters to upload in their political files starts ticking when they receive a firm request to buy airtime for an issue or candidate ad. Asked when a local issue or candidate ad triggers a national importance issue, Schonman said it depends, and if a station decides in a particular situation that an ad was purely local, the FCC will generally defer to that good-faith judgment. Fox Corp. Vice President-FCC Legal and Business Affairs Ann Bobeck said the political ad space is changing rapidly. She mentioned big spending in Florida, presidential campaigns buying at local as well as national levels since the start of the year, and digital ad platforms trending upwards.
Supreme Court Justice Ruth Bader Ginsburg's death could affect the outcome of the court's Oracle v. Google intellectual property case and be a turning point on some administrative law issues, experts told us. The federal judges most mentioned as President Donald Trump most likely choice to replace Ginsburg are considered somewhat unknown quantities on issues such as technology, media regulation and copyright.
EU's general data protection regulation seems to be entrenching big tech companies that were much the target of the legislation, while costing billions of dollars in compliance, FTC Commissioner Noah Phillips said on C-SPAN's The Communicators, to have been televised this weekend. He said proposals to expand it and the California Consumer Privacy Act, which is taking effect now, indicate weaknesses in the ability of those laws to address privacy issues. He said congressional work on federal privacy legislation needs to focus first on what problems need addressing and then on details such as whether there should be state law preemption or a private right of action. However, much of the Capitol Hill debate seems to be focusing on those details first, he said. Phillips confirmed his agency is doing an antitrust investigation into Facebook but didn't elaborate, and he didn't comment when asked about any possible TikTok investigation. He said he intends to serve out the remaining three years of his term regardless of how the November election goes. He said there's no chilling effect on FTC commissioners by FCC Commissioner Mike O'Rielly's renomination being pulled by the White House seemingly for his stance on social media regulation. "We operate as a bipartisan agency," Phillips said. NTIA said Friday the FCC has the legal authority to regulate social media, and the First Amendment backs it doing so (see 2009180054).
Cable and broadcast lawyers anticipate a 5-0, noncontroversial approval to the FCC 30-day channel lineup notification rule on September's agenda (see 2009090048). Less clear is the significance of the commission's reversing its policy on who controls program carriage and retransmission consent negotiations in the last 30 days, so it's no longer automatically the cable companies.
Maine faced questions about constitutionality of its cable a la carte programming law during a 1st Circuit Court of Appeals oral argument Wednesday, as the state challenged a lower court's preliminary injunction stopping it from enforcing that law (see 2004300011). A lawyer involved in the proceeding told us odds are good of seeing a decision this year, early Q1 at latest.
Deerfield station groups "are evaluating [their] options" after the full FCC upheld a Media Bureau ruling they failed to negotiate in good faith with AT&T's DirecTV on carriage of those stations (see 1911080036), outside counsel for the stations emailed us Wednesday. Per the docket 19-168 order in Wednesday's Daily Digest, the FCC rejected the station groups' application for review and proposed a $512,228 fine against each of 18 stations. The commission said the record clearly shows the Deerfield stations repeatedly refused to negotiate carriage or respond to DirecTV proposals, unreasonably delaying the negotiations and causing a blackout. “We disagree with the decision on the merits and its proposed penalties," the outside counsel said. Commissioner Geoffrey Starks said the bureau called it the most egregious example of delay in the good faith negotiation rules' history, so the maximum forfeiture is justified. He said other negotiating parties should be on notice they could face similar penalties for similar instances of failure to negotiate for retransmission in good faith, especially when the result is blackouts and other consumer harm. Commissioner Mike O'Rielly, who approved in part and concurred in part, said there's enough evidence to justify the notices of apparent liability, but he concurred on only the forfeiture amounts. "Imposing the statutory maximum on individual stations by way of a novel, first-time application of the rules could be disproportionately punitive and significantly threaten the operations of these stations," he said.
A Republican- or Democratic-controlled FCC will continue to focus on issues like the digital divide and 5G deployment, but expect differences in approaches and priorities, said Kelley Drye USF lawyers John Heitmann and Steve Augustino at the Incompas Show Monday. On FCC direction next year, Heitmann said rhetoric about digital divide issues will continue, though the GOP prioritizes infrastructure issues, while Democrats prioritize affordability and accessibility via Lifeline. Augustino said more attention likely will be on broadband infrastructure spending, though Democratic presidential nominee Joe Biden's campaign has been making it more of an emphasis than President Donald Trump's. Augustino said the Republican approach to 5G focused heavily on deployment, particularly via preemption of state and local government regulation, but Democrats are less likely to focus so heavily on preemption. He said Democrats have called more for revamping FCC broadband mapping, while the GOP-led agency focused more on making do with current mapping until Congress provides the resources for a deep dive. Under a Democratic-controlled FCC, expect "a re-reclassification" of broadband, perhaps accompanied by privacy regulations, Heitmann said. Expect the agency to continue to focus heavily on robocalls and supply chain security issues, the two said. With it widely expected that Ajit Pai leaves the chairmanship soon, Augustino said Commissioner Brendan Carr seems to have the inside track to replace him in a Republican FCC, while the Democrats have a history of going with dark horse outsiders. Heitmann said Commissioner Jessica Rosenworcel or former Commissioner Mignon Clyburn seem to be the likeliest Democratic choices, and while Carr might be odds-on likeliest for Republicans, other candidates, such as a variety of Senate Commerce Committee staffers, could be in the mix. Heitmann said the next chairman isn't likely to roll back transparency initiatives Pai instituted, such as releasing draft items before commissioner meetings. "It's an irreversible trend," and a subsequent chairman would find it difficult to justify less openness, he said.
Dish Network got more time (see 2009110054) to meet the AWS-4, lower 700 MHz E block, AWS H block and 600 MHz license construction requirements that are part of its plans for a national 5G network. The FCC Wireless Bureau's order Friday said the license terms for AWS-4, lower 700 MHz E block and AWS H block licenses now run through June 14, 2023, and the company is obligated to provide 5G broadband service over them. It said by that 2023 buildout deadline, Dish must be offering 5G to at least 70% of the population in each economic area with respect to each AWS-4 and lower 700 MHz E block license, and to at least 75% of the population in each EA with respect to each AWS H Block license. It said the license term for Dish's 600 MHz licenses is unchanged from June 14, 2029, but the interim buildout deadline of June 14, 2023, is removed, and the final buildout deadline for it to offer 5G to at least 75% of the population in each partial economic area is moved up to June 14, 2025. There had been skepticism about Dish's ability to meet the old deadlines (see 1807100062), and the license modifications and construction deadline adjustments were proposed in October's T-Mobile/Sprint/Dish order (see 1911050016). The bureau said the waiver and extension grants and license modifications are conditioned on the company meeting the terms of the T-Mobile/Sprint/Dish order, including mandatory payments for not hitting deployment commitments. T-Mobile has since bought Dish. The new order dismissed as defective Rural Wireless Association and Communications Workers of America protests to the license proposals in the T-Mobile order. “RWA wishes Dish Godspeed in the deployment of its 5G network and hopes it will meet" buildout benchmarks "so there will be a 4th nationwide carrier on the scene by 2023,” emailed RWA Counsel Carri Bennet. “Our members look forward to working with Dish on ways to continue to serve rural Americans.” CWA didn't comment immediately, nor did Dish or T-Mobile.
Whether a U.S. District Court is bound by a federal agency's interpretive rule was center stage Thursday as the 4th U.S. Circuit Court of Appeals heard oral argument on issues the Supreme Court remanded in its Carlton & Harris Chiropractic v. PDR Network junk fax decision last year (see 1906200055). Judges repeatedly pressed the attorney for the plaintiff-appellant and a lawyer from amicus briefer DOJ on the issue. Carlton attorney Glenn Hara of Anderson and Wanca and the judges discussed the merits of the FCC rule. Hara said the FCC made clear multiple times it treats junk faxes differently than phone calls because of different governing statutes. Telephone Consumer Protection Act practitioners always take pains to differentiate between the two, since "they're different worlds," he said. But it's immaterial under pro se rules whether the junk fax sender is a for-profit or nonprofit entity, he said: Because there has been no discovery, it's unclear whether the PDR faxes are indirectly commercial, trying to solicit further business. Hara also complained of "an abuse of discretion" by the U.S. District Court in Huntington, West Virginia, for dismissing the plaintiff's complaint without allowing an amended one. A district court has to follow an interpretive law because statutory language that talks about orders doesn’t distinguish between legislative and interpretive rules, said DOJ lawyer Mark Stern. Judge Pamela Harris said the 4th Circuit is having difficulty with the new arguments that have come to it since the SCOTUS remand. "I'm finding this frustrating," she said. PDR lawyer Kwaku Akowuah of Sidley Austin said his client always takes the position the lower court was right in its reasoning that it wasn't bound by the rule and could look at the statute. Court proceedings, held remotely, were delayed about two minutes partway through due to frozen screen. Also hearing the case were Judges Albert Diaz and Stephanie Thacker.