Although it isn't unusual for administrative agencies to reverse themselves, FCC flip-flopping on Latina Broadcasters' inclusion in the incentive auction may be extreme, attorneys and an administrative law expert told us. Though courts tend not to be sympathetic to arguments an agency didn't provide enough notice of a change in policy, the U.S. Court of Appeals for the D.C. Circuit may feel the radical shift on Latina “doesn't pass the smell test,” said George Washington University administrative law professor Richard Pierce in an interview. The FCC repeatedly telling Latina it's included in the auction and then excluding it with so little time before the March 29 start (see 1603070057) is likely to look bad for the commission and increase D.C. Circuit scrutiny of the FCC's actions, Pierce said. A rapid shift in policy often can indicate some “questionable” administrative procedure is being used, he said.
The FCC is considering a regional approach to the post-incentive auction repacking effort, said Incentive Auction Task Force Vice Chairman Howard Symons during a webinar on repacking hosted by Broadcasting & Cable Tuesday. Though the commission hasn’t reached a final decision on the repacking, Symons said repacking by region “probably makes the most sense,” compared with repacking the whole nation at once or by market.
Access to consumer data may be the real prize in the battle between pay-TV carriers and supporters of FCC-proposed changes to the set-top box market (see 1602180065), cable attorneys, analysts and data experts said in interviews.
The FCC, several trade associations and a group of broadcasters attempted through court filings to fend off a stay of the incentive auction requested by Class A broadcaster Latina Broadcasters in the U.S. Court of Appeals for the D.C. Circuit. The auction is to start March 29. “Any unnecessary delay, especially this close to the start of the auction, would cause substantial harm” to companies that have delayed business plans or have investments or financing riding on the current schedule,” the FCC said in an opposition filing Friday.
The FCC enforcement advisory on pirate radio issued Tuesday (see 1603010075) is a step in the right direction but needs to be accompanied by ramped up enforcement, broadcast officials and attorneys told us Wednesday. The statement had been in the works for at least a few weeks. Broadcasters have long complained about pirate radio, and did so even more when the FCC scaled back its Enforcement Bureau field offices. Commissioner Ajit Pai had said a whistleblower alleged the bureau was not prioritizing pirate radio enforcement (see 1512150014).
The FCC lacks authority to tell pay-TV carriers and device manufacturers where in their user interfaces that closed-caption display settings must be located, said AT&T, CTA, NCTA and the Telecommunications Industry Association in comments in docket 12-108 in response to a second Further NPRM. A joint filing by several consumer groups, including the National Association of the Deaf and Telecommunications for the Deaf and Hard of Hearing, supported the FCC proposal to require caption display settings to be on the first level of device menus.
Broadcasters have concerns about and may soon begin a lobbying push in Congress and at the FCC over the commission's policy on broadcast transactions that contain joint sales agreements, broadcast attorneys and industry officials told us. The FCC needs to fall in line with the congressional adjustments to the JSA attribution rules, some broadcast attorneys told us. In a provision of the FY 2016 omnibus appropriations law, the deadline to unwind existing JSAs was moved from June 2016 to Oct. 1, 2025 (see 1512210050). The deadline also was raised by some on Capitol Hill, who mentioned concern the commission is trying to get around the JSA law change (see 1602230070).
The U.S. Court of Appeals for the D.C. Circuit granted a request for expedited proceedings in the appeal by Class A broadcasters Videohouse, Fifth Street Enterprises and WMTM of an FCC reconsideration order excluding them from the incentive auction, the D.C. Circuit said in an order issued Tuesday. Though the court did issue an expedited briefing schedule, the proceeding won't be completed before the incentive auction starts, as the petitioners had requested, the order said. That court challenge of the auction comes alongside a request that the auction be stayed filed Monday by Class A broadcaster Latina Broadcasters, which was also removed from the auction by the same recon order. The FCC might actually welcome such a stay based on pleadings it has filed in the Class A proceeding, said Fletcher Heald broadcast attorneys Harry Cole and Ashley Ludlow in a pair of blog posts this week.
The member stations of America's Public Television Stations -- changing its name from the Association of Public Television Stations -- voted at an APTS meeting Monday to "commit in principle" to allocating some of their spectrum to first responders as part of FirstNet. The vote to change the organization's name took place at the same summit, along with remarks by NAB CEO Gordon Smith and a panel discussion on the incentive auction by FCC staff. Unlike the name change vote, the vote on committing spectrum to FirstNet received considerable pushback from member station representatives at the event, and in response, the language of that commitment was changed to clarify that it isn't binding. "It was a really good discussion that clarified what we're committing to," said APTS CEO Patrick Butler in an interview.
The FCC voted 4-1 to allocate responsibility for closed captioning complaints between video programming distributors and programmers, during Thursday's commission meeting. Commissioner Mike O'Rielly dissented in part and concurred in part; Commissioner Ajit Pai approved in part and concurred in part. The order, as expected (see 1602170055), apportions responsibility for captions to programmers and VPDs based on what parts of the captioning process they control. It requires programmers to certify they're in compliance with captioning rules and creates a "compliance ladder" that will allow captioning problems to be addressed outside of Enforcement Bureau action, said a Consumer and Governmental Affairs Bureau news release .