The FCC should deny Comcast and its NBCUniversal’s request to broaden the types of people who can sign a protective order to see online video distributors’ deals with other content companies when an OVD uses a content benchmarking curb in the merger order, said six major opponents of what the combined companies seek (CD April 4 p10). Comcast and NBCUniversal want to show the OVDs’ deals with other broadcast, cable and film content owners to executives and in-house lawyers, instead of just outside counsel. “Programming contracts contain extremely sensitive business data and information that warrant heightened confidentiality protection,” a lawyer for News Corp. reported representatives of that company, CBS, Sony Pictures, Time Warner and Viacom told commission staffers including those who have reviewed some transactions. An executive of Disney, like the five content owners part of the “content companies,” left a phone message with one of the agency officials expressing the same view, said the ex parte filing posted Friday to docket 10-56 (http://xrl.us/bm7tvg). The six companies “are innocent third parties who have been drawn unwillingly into this matter through no action of their own,” the filing said. “C-NBCU’s own filings with the Commission confirm that it can, and already has” struck deals with some OVDs, it said. “The Commission already contemplated that binding commercial arbitration should serve as the safety valve for a circumstance when C-NBCU and an OVD reach a bargaining impasse with respect to a program rights negotiation,” the filing said. “Providing C-NBCU with access to confidential programming agreements at the outset of discussions with an OVD effectively would render meaningless the concept of marketplace negotiations."
The 4th U.S. Circuit Court of Appeals upheld FCC denial of Mid-Atlantic Sports Network’s program carriage complaint (CD May 10 p5). The complaint alleged Time Warner Cable gave more favorable treatment to its own regional sports network in not carrying Baltimore Orioles and Washington Nationals baseball games in North Carolina. “We conclude that the FCC acted within its discretion,” Judge James Wynn wrote in a decision released Monday. Judges William Traxler and Dennis Shedd concurred. “Contrary to Mid-Atlantic Sports Network’s assertion, the record contains substantial evidence supporting the FCC’s findings regarding Time Warner’s business justifications for denying Mid-Atlantic Sports Network statewide analog tier carriage,” Wynn wrote. MASN “failed to show that, even assuming that it made a prima facie discrimination case, Time Warner did not effectively rebut that case with evidence supporting legitimate, non-discriminatory business reasons for its denial of statewide analog tier carriage, or that the analytical framework applied by the FCC to its decision in this regard was erroneous,” the jurist wrote. Neither company had any comment on the Richmond court’s decision.
The FCC deemed prohibited a filing from the Brennan Center for Justice at New York University School of Law, the commission’s Office of General Counsel said in a public notice released Monday (http://xrl.us/bm7trg). The center wrote FCC Chairman Julius Genachowski in support of requiring TV stations to put online all content in paper files, after the sunshine period barring further lobbying began (CD April 30 p17). The top of the filing is now marked “SUNSHINE PERIOD” (http://xrl.us/bm7trk). Also barred was a filing from Maneesh Pangasa, an individual who frequently writes the commission on various issues.
The FCC issued shorter-than-normal license renewals of four instead of eight years to three radio stations lacking issues/program lists in public-inspection files during the entire previous license terms. Media Bureau notices of apparent liability (NAL) Monday also proposed to fine them $10,000 each. The stations are the University of Maryland, Eastern Shore’s WESM(FM) Princess Anne, Md. (http://xrl.us/bm7toj), and Yeary Broadcasting Virginia outlets WXLZ(AM) St. Paul and WXLZ(FM) Lebanon (http://xrl.us/bm7to6). “It is clear to us that Licensee’s conduct has fallen far short of the standard of compliance with the [Communications] Act and the Rules that would warrant a routine license renewal,” the NALs said: There were “serious” violations.
The FCC put on hold the comment period on a Media Bureau public notice (http://xrl.us/bm7tmh) about whether Chicago’s satellite-dish antenna ordinance is pre-empted by the commission’s over-the-air reception devices rule. The city, DirecTV, Dish Network and Satellite Broadcasting & Communications Association asked for such a stay until the agency decides if a similar rule in Philadelphia is OK, because they said it “will narrow, if not resolve, the issues in dispute” in Philadelphia. Granting the stay Monday, bureau Deputy Chief Michelle Carey cited “the similarity of the issues presented by both petitions” from the cities. “A new Public Notice with new filing dates will be issued after the Commission’s issuance of an order in the related City of Philadelphia proceeding,” she said.
Nvidia and Intellectual Ventures (IV) said Monday they jointly bought a set of patents developed and owned by IPWireless. The companies didn’t say how much they paid. The patent portfolio that Nvidia and IV bought was made up of about 500 patents granted and pending in the wireless communications area, including “essential concepts” in LTE, LTE-Advanced and 3G/4G technologies, they said. The purchase closed on April 30, and ownership of the patents was split between Nvidia and IV, with Nvidia licensing the rights to those patents that it didn’t buy, the companies said. IPWireless retained “perpetual, royalty-free access” to the patents, Nvidia and IV said. The purchase “complements” Nvidia’s ownership of “extensive fundamental patents” in graphics, visual and mobile computing, said David Shannon, executive vice president and general counsel at that company. It will “help support our rapidly expanding efforts in the mobile business,” he said. IPWireless will continue to invest and innovate in 4G LTE and other areas of wireless IP, said its CEO, Bill Jones.
All five FCC commissioners plan to testify at Wednesday’s Senate Commerce Committee oversight hearing, the committee said. The witness list was announced Monday, the day Jessica Rosenworcel and Ajit Pai were sworn in. (See separate report above.) The hearing is 2:30 p.m. in Room 253, Russell building. The committee has not held a full-scale oversight hearing on the FCC since Julius Genachowski became chairman in June 2009.
Clearwire would need a wholesale deal with a large national carrier to avoid having to sell spectrum, Credit Suisse analysts said Monday. Executives and other analysts had said selling spectrum could be an option for the company to fund its LTE network. There are potential buyers for Clearwire spectrum, including MetroPCS, if Clearwire can’t secure a large wholesale deal in the near-term, the Credit Suisse analysts said. They expect TD-LTE smartphones that carry voice over LTE to hit the market soon. There could be 30 TD-LTE networks deployed this year, they said. The value of Clearwire’s spectrum partially depends on the emergence of a robust TD-LTE ecosystem with low-cost handsets, they said. TD-LTE (Time Division LTE) is being used by major Chinese carriers as their LTE standard, while the other LTE standard FD-LTE (Frequency Division) is being used by most U.S. carriers.
Jessica Rosenworcel and Ajit Pai were sworn in as FCC commissioners Monday morning, an agency spokeswoman said. Matthew Berry, who served in the Office of General Counsel with Pai when Kevin Martin was FCC chairman, is chief of staff to the new commissioner. He had recently worked at Patton & Boggs, where Martin has worked. Gene Fullano is working as a legal adviser in Pai’s office, and has recently worked in the Public Safety Bureau as associate chief. Courtney Reinhard is leaving the House Budget Committee where she was a budget analyst and counsel to Committee Chairman Paul Ryan, R-Wis., to be Pai’s adviser on wireless, international and public safety issues. Reinhard was previously telecom counsel for the House Commerce Committee and advised Sen. Jim DeMint, R-S.C., ex-Sen. Sam Brownback, R-Kan., and Rep. John Shimkus, R-Ill. Pai said he aims to “promote competition and innovation in the communications marketplace that will work for the benefit of all consumers.” Rosenworcel said she will work to ensure that “everyone across this country has access to the best, most reliable communications in the world.” Lori Alexiou is Pai’s confidential assistant. A Republican from Kansas, Pai was an aide to Brownback, has worked as a lawyer at the FCC and replaces former commissioner Meredith Baker for a term ending July 1, 2016. Rosenworcel, a Democrat from Connecticut, was an aide to Senate Commerce Committee Chairman Jay Rockefeller, D-W.Va., and replaces former commissioner Michael Copps, in a term that ends July 1, 2015. The Senate approved their nominations last week (CD May 8 p1).
Maryland seeks expedited FCC action in granting its waiver petition, so it can deploy a public safety system in the 700 MHz spectrum, ahead of any national network, it said in a filing (http://xrl.us/bm7sm5). TIA had expressed concerns related to the potential of interference in the 700 MHz band, particularly with respect to the broadband spectrum in the upper C Block, the state noted. TIA’s concerns were sufficiently addressed after the state submitted additional information, Maryland said. The state continued to support the original petition for rulemaking submitted by the National Public Safety Telecom Council to permit the nationwide use of the secondary trunking channels for air-to-ground use, the state said in the filing. The use of the secondary trunking channels for public safety aviation is necessary and has nationwide first responder support, the filing said. The NTIA last week suspended seven other 700 MHz public safety grants (CD May 14 p10).