Monty Tayloe

Pay-TV companies and groups still disagree with TiVo and the Consumer Video Choice Coalition over whether the FCC should take action based on the Downloadable Security Technology Advisory Committee report and whether such an action would be legal, said replies in docket 15-64. AT&T, the American Cable Association, MPAA and NCTA believe the FCC would be overstepping congressional intent and its own authority if it tried to implement the downloadable security solution backed by the CVCC.

The proposal for a downloadable security solution advocated by the Consumer Video Choice Coalition (CVCC), isn't a sound basis for a rulemaking, a group of pay-TV companies, set-top box manufacturers and associations said in a meeting Tuesday. They met with Media Bureau Chief Bill Lake, FCC Chief Technology Officer Scott Jordan and Media Bureau staff, said an ex parte filing in docket 15-64. The industry delegation included the American Cable Association, Arris, AT&T, CableLabs, Comcast, MPAA and NCTA, and was composed mainly of entities that had supported the multichannel video programming distributor-backed proposals in the Downloadable Security Technology Advisory Committee final report.

TV broadcasters considering selling all their spectrum in the incentive auction and leaving the industry need to consider the liability and contract ramifications of taking that step, said Pillsbury Winthrop broadcast attorney Scott Flick during a Broadcasting & Cable webinar on the incentive auction Thursday. The webinar also included University of Maryland auction economist Peter Cramton, Incentive Auction Task Force Vice Chair Howard Symons, and KLCS Los Angeles Director-TV Engineering Alan Popkin. Broadcasters need to consider that untangling contractual obligations could eat up a portion of the money they get for selling their spectrum, Flick said. “It’s not the size of the bid, it’s how you use it,” said one of the slides in Flick’s presentation.

The FCC reimbursement form and catalog of expenses (see 1510300064) for broadcasters that will be repacked after the incentive auction are designed to be accommodating to a broad range of possible broadcaster needs, but still leave some questions unanswered, broadcast attorneys told us. Though the catalog of expenses lists the kinds of things broadcasters may need reimbursement for, it doesn't list how much those things will cost, with price ranges to be addressed in a later document, said the public notice released Friday. And though Friday's PN makes it clear that broadcasters will need to extensively document the repacking costs for which they plan to seek reimbursement, it's not clear how that documentation will be evaluated, or what the threshold would be for the commission to challenge a reimbursement claim, said Fletcher Heald broadcast attorney Dan Kirkpatrick.

NCTA and members of the Consumer Video Choice Coalition are sparring in ex parte filings and interviews over whether the CVCC is now recommending downloadable security different from the one it recommended in the Downloadable Security Technology Advisory Committee report. NCTA asked the FCC for an extension of the Nov. 9 deadline for reply comments (see 1510280070) to adjust its filings to what it says is a changing position by the CVCC, first in initial comments from the group's members and then in a recent ex parte filed by members Public Knowledge and Hauppauge.

Requiring broadcasters to dig into the true sources of funding for political ads as is requested in a letter Thursday from several transparency groups would create a thorny situation for the FCC, several broadcast attorneys said. The letter to FCC Chairman Tom Wheeler from the Campaign Legal Center, Common Cause and the Sunlight Foundation said the agency should act on several complaints, applications for review on the matter that have been sitting since 2014 (see Ref:1411130068]), and a Media Access Project petition for rulemaking from 2011. The Communications Act requires broadcasters to “exercise reasonable diligence” to correctly identify sponsors of political ads, and the FCC should enforce the law, said Georgetown Law Institute for Legal Representation Senior Counselor Andrew Schwartzman, who represents the groups.

The back and forth between Chairman Tom Wheeler and Commissioner Ajit Pai over the AM revitalization order is the latest flare-up (see 1510260062) in what is seen by some as a more partisan and divided FCC than past administrations, communications attorneys and former agency officials said in interviews this week. Wheeler and Commissioners Mignon Clyburn and Mike O'Rielly referenced (here, here and here) the disagreements and very public battle over the order in statements released with it. Lawyers said an antagonistic atmosphere at the commission is being exacerbated by partisan fighting in Washington.

The FCC released the text of its AM revitalization order, creating a 2016 window for AM stations to apply for waivers to relocate existing FM translators, and a 2017 window for AM stations that didn’t use the first window to apply for new FM translators, as expected (see 1510220060). “We are very pleased that all five Commissioners came together in a spirit of compromise to unanimously approve this order,” said National Association of Black Owned Broadcasters President Jim Winston in a statement Saturday. The item includes a report and order, plus a Further NPRM and a notice of inquiry that seek comment on possible further policies such as removing skywave protections for Class A stations. The Media Bureau is already taking action on the order, issuing a public notice Monday on the specifics of the 2016 window application process.

The FCC decision that lawyers representing multiple clients in the incentive auction are at risk of violating anti-collusion rules mean communications lawyers need to limit their own access to information, lawyers who study legal ethics rules said at an FCBA ethics CLE Thursday night. Since the FCC guidance on the prohibition is focused on bidding information (see 1510070082 and 1510070072), attorneys seeking to represent multiple clients need to make arrangements with their clients ahead of time to make sure they won't have access to bidding information, said Wilkinson Barker General Counsel Lawrence Movshin. “You should be trying to avoid getting any kind of prohibited information.”

The FCC voted to approve an AM revitalization order that includes a 2017 AM-only window for FM translator applications, said agency and industry officials during Thursday’s commissioner meeting and in subsequent interviews. The text of the item hasn't been released and won’t be until at least Friday, said a Media Bureau spokeswoman. Chairman Tom Wheeler and Media Bureau Chief Bill Lake confirmed during a news conference Thursday in response to our questions that the item was approved.