The Justice Department asked the Supreme Court to overturn an appeals court ruling allowing the American Civil Liberties Union to challenge the constitutionality of a 2008 law giving the government authority to monitor international emails and phone calls originated by Americans. At issue is a ruling by the 2nd U.S. Circuit Court of Appeals allowing ACLU’s 2010 case against the Foreign Intelligence Surveillance Act Amendments Act of 2008 to move forward. “The appeals court correctly ruled that our plaintiffs have standing to challenge this sweeping surveillance law, and it’s disappointing that the administration is challenging that ruling,” said Jameel Jaffer, ACLU deputy legal director, in response to the DOJ action. “It’s crucial that the government’s surveillance activities be subject to constitutional limits, but the administration’s argument would effectively insulate the most intrusive surveillance programs from judicial review. The Supreme Court should leave the appeals court’s ruling in place and allow our constitutional challenge to proceed."
Time Warner Cable and MSG Media ended their carriage dispute late Friday, returning New York Knicks’ games to TWC subscribers in New York. The companies said Monday the deal includes carriage of MSG, MSG+ and Fuse.
Nonprofit groups seeking more broadcaster disclosure had some criticism for proposals from seven TV station owners on what categories of local programming they should report quarterly to the FCC as having aired (CD Jan 31 p7). The Public Interest Public Airwaves Coalition (PIPAC) said the proposal for a replacement to the never-implemented Form 355 has some “suggestions” that “would be extremely problematic if adopted.” The three categories of local content the companies proposed “would not provide information that is meaningful to the public” and shouldn’t be substituted by the commission for the coalition’s proposal, the group said Friday. The notice of inquiry on the new form largely reflected suggestions by the coalition, whose members include Common Cause, Free Press and the New America Foundation. “The PIPAC proposal would require fewer such judgments because it would require a great deal less reporting,” the group said in a filing in docket 11-189 (http://xrl.us/bmsya3). In earlier comments in that docket (http://xrl.us/bmsyat), Barrington Broadcasting, Belo Corp., Gannett, Washington Post Co.’s TV unit and three others sought categories for news; local news and other content of local interest; and electoral programs. Putting local programs into more than one category if they fit “would make it impossible to determine the overall quantity of programming addressing local issues,” the coalition said. The FCC is expected to adopt an order requiring online public files from TV stations, and is working on a rulemaking notice about a new Form 355. (See story in this issue.)
An FCC ruling that Gulf Power’s pole attachment rates were too high will stand, the U.S. Court of Appeals for the D.C. Circuit said Tuesday (http://xrl.us/bmsxsc). Gulf Power, a wholly owned subsidiary of Southern Company, can’t argue that the Pole Attachments Act fails to provide just compensation for power companies because that issue was already decided when Alabama Power, also a Southern Co. subsidiary, made a similar constitutional takings challenge in 2002, the court said. “Gulf and Alabama Power were under the common control and complete ownership of their parent entity,” the court said. “Both companies were thus servants to the same master.” The doctrine of issue preclusion bars “successive litigation of an issue of fact or law” already litigated, the court said. Alabama Power had argued that the pole attachment statute and regulations “fail to provide just compensation,” and sought compensation for the opportunity cost incurred when Alabama had to install mandatory attachments. The 11th U.S. Circuit Court of Appeals rejected the argument, saying the takings clause only requires such compensation when there’s actual crowding on the pole and demand for higher-valued uses. The D.C. Circuit also rejected Gulf’s argument that the FCC had misconstrued Alabama Power. “Gulf failed to meet its burden to show that its poles are at full capacity,” the court wrote.
Many of the 298 programmers whose captioning waivers were rescinded by the FCC in October didn’t refile exemption requests within the allotted time, said a Tuesday public notice. It listed dozens of programmers that didn’t file a new petition by Jan. 18, and so must have begun captioning their TV shows by the next day. “If the programming that is the subject of such petition aired without captions after January 18, 2012, the video programming distributor that aired such programming may be in violation of the Commission’s closed captioning rules from that date up until the time that the new petition was submitted,” the notice said (http://xrl.us/bmsx8e). The FCC in recent days has sought comment on some of the petitions that were refiled (CD Feb 9 p22).
A West Virginia Senate committee voted down a bill allowing broadband regulation by the Public Service Commission. The Transportation and Infrastructure Committee voted Tuesday on the revised Senate Bill 491 (CD Feb 14 p16) sponsored by Sen. Dave Sypolt (R). The bill had been rewritten at the request of Chairman Robert Beach (D), a bill co-sponsor, to include provisions that would change the statutory definition of broadband speed, and require the West Virginia PSC to regulate broadband services to the extent permitted under federal law. “I understand that the PSC cannot step in and do anything,” Beach said. “It’s an FCC federal scenario."
ViaSat officially served Space Systems/Loral Tuesday with a patent infringement complaint, ViaSat said. It filed a patent infringement and breach of contract suit against SS/L earlier this month in U.S. District Court for the Southern District of California (CD Feb 6 p4), but hadn’t served the satellite manufacturer with the compliant. The two companies entered settlement discussions following the filing this month, but the talks apparently fell apart. “We believe our complaint clearly establishes our position regarding ownership of the underlying intellectual property as well as SS/L’s infringement of our patents and its breach of contract,” ViaSat President Rick Baldridge said. “We have been clear with SS/L that any settlement discussions would need to progress expeditiously given the high stakes involved and the fact that we put SS/L on notice of these issues long ago. Unfortunately, those discussions didn’t progress at all, so we are moving forward with the litigation.” SS/L President John Celli responded to the suit Tuesday following a speech at the Washington Space Business Roundtable. “We've always dealt with our customers with integrity and protected their” intellectual property, he said. “We've got a lot of lawyers” looking at the patent issue, he said. So far, the suit doesn’t seem to have had a material impact on business, Celli said, noting the week after the suit was filed SS/L received two satellite contracts from the Australian government.
Hawaii said the FCC shouldn’t let Time Warner Cable out of rate regulation on Oahu, pointing to the cable operator’s filings as reason to deny the company’s effective video competition petition. “The State was surprised by Time Warner Cable’s contention in its Reply that it has lowered prices on the Island of Oahu in response to competition,” Hawaii said. “Time Warner Cable is actually increasing its rates in Hawaii” and recently told customers prices will go up March 1, the state said. Standard service on a primary outlet will rise 9 percent to $59.80 monthly, for instance, the state said. Such “inaccurate” claims point up why the Media Bureau should deny the deregulation request, because other Time Warner Cable statements may be incorrect, Hawaii said. A company spokesman declined to comment about Friday’s filing in docket 11-187 (http://xrl.us/bmsxs9). Hawaiian Telcom’s “substantial and growing” pay-TV service in the franchise area is reason to grant the cable operator’s request, TWC said in a Jan. 30 filing replying to the state and telco’s oppositions to the deregulation.
A New Jersey government agency representing consumers wants to block Verizon Wireless from buying the advanced wireless spectrum of four cable operators. The New Jersey Division of Rate Counsel wants the AWS licenses auctioned to the highest bidder, it said in an FCC filing seeking to block Verizon Wireless from buying licenses from Cox and SpectrumCo, owned by Bright House Networks, Comcast and Time Warner Cable. “The Applicants portray the transactions as straightforward re-assignments of unused spectrum licenses, using the secondary market as a way to link various sellers (in this instance, a group that includes the nation’s largest cable companies) and a buyer (the nation’s largest wireless carrier),” the division said. “Although no customers are being migrated from one carrier to another carrier, the potential anti-competitive consequences of the two applications could harm the nation’s consumers.” Don’t “reward” cable companies “for stockpiling spectrum (with appreciation of more than one billion dollars relative to their original purchase prices for their licenses),” the division said. The commission should require the licenses be returned, said the division, which has weighed in on other FCC proceedings seeking more safeguards than cable operators had proposed. Friday’s filing is in docket 12-4 (http://xrl.us/bmsxr6).
Increased use of mobile social messaging cost telecom operators $13.9 billion in SMS revenue in 2011, and $8.7 billion in 2010, according to research by Ovum. That represents nearly 9 percent and 6 percent of total messaging revenue. Ovum urged operators to adapt their legacy services to preserve their position in the messaging market. “Social messaging has disrupted traditional services, and operators’ revenues in this area will come under increasing pressure,” said Neha Dharia, analyst at Ovum and author of the report. “Tapping into the creativity of app developers, forming industry-wide collaborations, and leveraging their usage data and strong relationships with subscribers are the key ways for operators to ensure that they hold their ground in the messaging market."