Letting cable operators make the first negotiating move and thinking about trying to renegotiate the definition of gross revenue were among suggestions localities experts gave state and local franchise authorities facing implementation of the FCC's LFA order adopted 3-2 earlier this month (see 1908010011). In a NATOA webinar Wednesday, they also advised scouring franchise agreements for pre-emption clauses and preservation of benefits clauses.
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
SpaceX's read of FCC Section 25.261(c) on how a satellite operator qualifies for "home spectrum" is flatly incorrect, said rival non-geostationary orbit operators in International Bureau letters submitted Thursday. The companies are disputing SpaceX claims it has first choice on Ku-band frequencies in in-line NGSO events (see 1907100003). The chief problem with SpaceX’s interpretation of the home spectrum rule is it doesn't include a requirement to communicate with licensed U.S. earth stations, OneWeb said. It said the FCC has a history of using launch order, with no earth station license requirement, as the basis for home spectrum selection. SpaceX's argument the FCC might be forced to choose who's entitled to choose spectrum first without knowing if that NGSO has earth stations falling under the rule is "beyond fanciful," Telesat said. It said the FCC doesn't need to make a determination under Section 25.261(c) unless and until a spectrum coordination attempt between NGSO operators has failed and that coordination attempt will have taken into account earth stations that fall within the jurisdiction of FCC rules. Kepler said SpaceX's reading of the rules "is both forced and flawed." As of November, Kepler noted it had a U.S. market access grant, an authorized Ku-band satellite in orbit and authorization for multiple earth stations in the U.S., meaning even under SpaceX interpretation, it had the highest claim to home spectrum. SpaceX didn't comment Friday.
The 9th U.S. Circuit Court of Appeals decision to remand a lower court decision throwing out claims of racial discrimination in Comcast's programming decisions (see 1811190023) conflicts with the plain meaning of Section 1981 of federal anti-discrimination law. That's the argument of docket 18-1171 amicus briefs filed Thursday with the Supreme Court on behalf of Comcast. Section 1981, saying all people have the same rights to make and enforce contracts regardless of race, is most naturally read to require but-for causation, and background common-law principles confirm that a but-for rule applies, DOJ said. Other appellate courts have adopted a burden-shifting framework where a plaintiff can make a prima facie case of a Section 1981 violation by showing race played a role in a challenged decision and the defendant has the burden to show the same decision would have been made regardless of race, but the section doesn't authorize a shift in the burden of persuasion and a plaintiff must prove all elements of a claim including but-for causation, it said. The U.S. Chamber of Commerce, National Federation of Independent Business and National School Boards Association said the 9th Circuit decision turns Section 1981 into a tool for plaintiffs who weren't discriminated against to impose litigation burdens and settlement demands on businesses, local governments, school districts and other contracting entities merely by alleging race was a factor in the challenged decision. They said the 9th Circuit's "mixed-motive standard" that even if racial animus weren't the but-for cause for not getting a contract but a factor in the decision would "invite tenuous allegations of discrimination" that would be tough to resolve on summary judgment, putting pressure on defendants to settle even claims that lack merit just to avoid litigation costs. Limited government public-interest law firm Washington Legal Foundation said the 9th Circuit's conclusion that Section 1981 allows an exception to the but-for standard is a misread of the statute's text and history. The text focuses on conduct and not motives implies a but-for causation standard, and Congress wasn't interested in looking at the many motivations that were part of a defendant's decision-making, it said. The Center for Workplace Compliance said SCOTUS reasoning in other cases suggests but-for causation applies to Section 1981 claims the way the court has ruled it applies in Title VII retaliation claims.
Eight Democratic senators asked the FCC to issue a public notice and seek comment on T-Mobile buying Sprint as laid out in the DOJ consent decree (see 1907260071), though the FCC doesn't seem so inclined. Louisiana, meanwhile, joined states supporting the deal. In a letter Friday to Chairman Ajit Pai, the senators said they have significant competition concerns about the deal and the consent decree terms "may prove insufficient to protect competition, innovation, and the public interest." They noted the decree then had Dish Network asking the FCC for construction deadline extensions. They said the FCC's merger review process wasn't transparent, with Pai voicing support for the deal weeks before knowing of the consent decree terms. The senators said Dish's planned 5G deployment as part of its Boost acquisition is a major part of T-Mobile/Sprint that the public hasn't had a chance to address. Presidential candidates Amy Klobuchar of Minnesota, Elizabeth Warren of Massachusetts, Cory Booker of New Jersey and Kirsten Gillibrand of New York signed, along with fellow Sens. Ed Markey of Massachusetts, Tammy Baldwin of Wisconsin, Tom Udall of New Mexico and Richard Blumenthal of Connecticut. The FCC doesn't seem so inclined. It emailed us that T-Mobile/Sprint "has been pending in front of the Commission for more than a year, and there have been multiple public comment cycles. Moreover, the commitments offered by T-Mobile and Sprint to the Commission have been public since May, and many parties have submitted comments about them. The time has come for Commissioners to vote and for this proceeding to be brought to a close.” Announcing Louisiana's support for the deal, state Attorney General Jeff Landry noted T-Mobile's aims of providing coverage to 90 percent of rural America and offering residential broadband to more than 5.5 million rural Americans. “Louisiana citizens living in rural communities deserve meaningful competition and reliable service,” he said. Nebraska, Kansas, Ohio, Oklahoma and South Dakota backed the consent decree, while about a dozen states are suing to block T-Mobile/Sprint.
The FCC isn't seen likely to play a role in regulatory review of CBS buying former sibling Viacom (see 1908130050). That would fit with some recent precedent, like when AT&T bought Time Warner.
Faced with divisions whether to repurpose 611 for a national three-digit suicide hotline or add that to 211 (see 1812110033), the FCC is recommending to Congress 988 be used instead. That route may not become a compromise solution all stakeholders rally behind, interviews show.
C Spire's petition saying an FCC modification of a commercial TV station's market to add communities makes that outlet and all its broadcast streams local for reciprocal retransmission negotiations in those communities (see 1906040031) is either an attempt to use the agency to disrupt the network-affiliate relationship or a reflection of changing video market realities. Those were clashing broadcaster/MVPD arguments this week in docket 19-159 replies. C Spire and MVPD allies are trying "to hoodwink" the FCC into an "unprecedented [and] unlawful" level of government intrusion into retransmission consent and network affiliation agreements through its petition, NAB said. It said the pay-TV provider is trying to get the FCC to rewrite its retransmission consent agreement with Gray, while the declaratory ruling would only reiterate what MVPDs and broadcasters understand to be their good faith negotiation obligations after a market modification. CBS said what C Spire seeks -- a ruling that rules bar any restriction in a network affiliation agreement on a station’s ability to grant retrans -- could violate congressional content because it might significantly disrupt the relationship between a broadcast network and its affiliated stations, it said. Network affiliation agreements routinely and legitimately include obligations or restrictions, it said. Such a declaratory ruling would require a new rule and would have to go through FCC rulemaking processes first, Tegna said. Congress voiced concern broadcasters could use retrans agreements to limit MVPDs carrying signals that became local through the market modification process, so clearly a station can't condition a retrans grant for a local station in a market modification area on an MVPD either carrying or not carrying a non-commonly owned station, C Spire said. Affiliate consolidation, geographic restrictions in network affiliation agreements and dual big-four affiliations via multicast programming streams are distorting efforts to preserve localism and access to in-state programming, with those changes pointing to affiliation agreements involving retrans of stations found to be local following a market modification now are violating good-faith rules, the company said. Backing C Spire's petition, Pine Belt Communications said it also has video subscribers in an out-of-state designated market area and has had similar difficulties getting retrans consent to deliver local or significantly viewed stations. It said rural cable operators know well how DMA boundaries are broadcaster leverage in retrans negotiations in violation of good-faith rules. Along with its petition, C Spire filed a related retrans complaint against Gray.
Viacom, CBS and those worried about their long-expected combination (see 1908130039) foresee more retransmission and affiliate fee pressures. The combined company will have 22 percent of U.S. TV viewership, and will look to greatly beef up its affiliate fees as part of its growth strategy, CBS acting CEO Joe Ianniello said in a call with analysts Tuesday as the two programmers announced the recombination; the companies split in 2006.
Residential broadband small-network equipment is inching ever closer to universally meeting energy efficiency standards in the 2015 voluntary agreement set up by NCTA and CTA (see 1506260038). The two pointed Monday to the latest annual report showing 99.6 percent of small network equipment bought or sold by signatories in 2018 met those standards, up from 99.2 percent in 2017. Consumer electronics can pose a thornier problem, environmental interests say.
Government-supported internet connectivity, already an important market for geostationary orbit (GEO) satellite operators, is set to be a notable driver of business for non-geostationary systems as well, satellite industry officials and experts told us. Except for perhaps the poorest nations, government-backed connectivity is "everywhere and it's growing," said Telesat CEO Dan Goldberg. Telesat announced a memorandum of understanding (MOU) in July signed with Canada for the country to buy capacity on Telesat's planned low earth orbit (LEO) constellation as part of its universal service goal.