Monty Tayloe

LOS ANGELES -- Programmers and cable providers should work together to keep programming costs down and repel challenges from companies outside the industry such as Google, said a panel of cable and content company executives at the first general session of NCTA’s 2014 Cable Show. “The partnership between programmers and operators needs to be solidified or a lot of competitors are going to pass [cable] on by,” said A&E President Nancy Dubuc. Such a partnership seems unlikely while cable companies have to pay programmers high prices for content, said Massillon Cable TV President Bob Gessner, in an interview. “I don’t work for ESPN, I work for my customers” he said.

Relaxing open meeting rules to allow FCC commissioners to meet in larger groups would lead to less contention and quicker decision-making for the agency, said a panel of former FCC commissioners at a Quello Center Communication Policy Forum event Thursday. Former FCC Chairman Richard Wiley moderated the panel of former Commissioners Rachelle Chong, Michael Copps, Susan Ness, Henry Rivera and Deborah Tate, who discussed issues ranging from net neutrality to media ownership. All agreed that increasing dialogue between commissioners could facilitate commission business.

A Supreme Court win for Aereo would mean broadcasters continuing the battle in court and in Congress while cable companies strategize against retransmission consent, several attorneys told us in interviews. Though several observers think the court’s decision may be leaning toward broadcasters, the justices seemed conflicted at Tuesday’s oral arguments (CD April 23 p1). While some investors may have been poised to move money based on news from the court, the oral arguments didn’t show the court leaning convincingly enough in either direction to move markets, Guggenheim Partners analyst Paul Gallant told us. “We were warned not to put too much thought into the oral arguments given that it is never easy to ‘read’ the Supreme Court’s final decision during this part of the case,” said Wells Fargo analyst Marci Ryvicker in an email to investors. The high court decision is expected this summer.

Aereo v. ABC remains too close to call (CD April 21 p3) after oral argument at the U.S. Supreme Court Tuesday, said several communications attorneys who attended the hearing in follow-up interviews. They said a decision, which may be 5-4, seems likely to hinge on what’s safest for the cloud computing industry.

The U.S. Supreme Court’s questions and responses to oral arguments Tuesday in ABC v. Aereo will provide some insight into whether the court will side with broadcasters or streaming TV service Aereo when it issues a decision this summer, said several attorneys, one of whom is involved in the case. Because broadcasters sued Aereo and similar competing service FilmOn in many venues all over the country, multiple lower courts have had the chance to issue rulings based on the same information the Supreme Court will use in its decision, and those rulings have varied widely, said Fletcher Heald appellate attorney Harry Cole. The courts have issued “complete differences of opinion based on essentially the same facts,” Cole said in a webinar examining the case on Fletcher Heald’s CommLaw Blog (http://bit.ly/1eIRjVg). That makes it hard to predict the case now, but the questions the justices will ask may shed some light on how they view the case, several attorneys said.

Those seeking to keep their joint sales agreements under the FCC’s new ownership attribution rules for JSAs will have to either show that their JSA doesn’t give one company undue control or influence over another, or accept attribution and ask for a waiver of the local ownership rule, according to an FCC official and the text of the commission’s media ownership item (http://fcc.us/1eKtYmt). Though approved at the March 31 meeting, the text of the item -- making attributable for ownership cap purposes JSAs that cover more than 15 percent of a station’s sales -- wasn’t released until Tuesday. Much attention in the intervening two weeks has focused on the specifics of the waiver policy included in the order (CD April 1 p4), with public interest groups concerned it might provide a way to get around the new rules, and FCC Chairman Tom Wheeler saying it would allow JSAs that serve the public interest to remain in place.

LAS VEGAS -- The Media Bureau will recommend the FCC issue a rulemaking on the effects of the incentive auction on low-power TV after the auction report and order is issued this spring, bureau Chief Bill Lake told low-power broadcasters at an information session Monday at the 2014 NAB Show. The proposed rulemaking notice is designed to answer questions about the impact of the auction on LPTV that the bureau can’t, Lake said. It would consider extending DTV transition deadlines for LPTV, propose authorizing voluntary LP-channel sharing, seek comment on creating digital replacement translators for full-power stations affected by the auction, and discuss offering LP stations the chance to use the FCC’s repacking software to find new channels, Lake said.

The FCC new 2014 quadrennial review doesn’t appear likely to lead to much change in broadcast ownership rules, said several broadcast attorneys, public interest officials and a broadcast executive in interviews. Though the actual text of Monday’s further rulemaking notice launching the review hasn’t been released, the information released by the FCC makes it look to many industry observers as though Chairman Tom Wheeler is kicking the can down the road on issues like cross-ownership, several told us. “The FNPRM for the 2014 quadrennial review recommends retaining the FCC’s existing ownership rules virtually intact,” said blog of the Wiley Rein law firm.

Opponents of a draft order to make joint sales agreements (JSAs) attributable have zeroed in on Commissioner Mignon Clyburn as their best chance for limiting the effects of the eventual JSA rule, set for the FCC’s March 31 (CD March 18 p5) agenda, several broadcast attorneys told us. There’s a widespread industry perception that Clyburn is torn between limiting abuse of sharing arrangements and keeping them alive as a tool for encouraging minority ownership. Industry attorneys and public interest officials said the order was likely to be passed in some form by a 3-2 vote, with Clyburn’s support.

Increased competition in the video industry may have undermined the basis for must-carry rules, argued Latham Watkins cable attorney Matthew Brill at a Federal Communications Bar Association continuing legal education event Monday evening. Recent federal court opinions in cable program carriage cases Comcast v. FCC (CD May 29 p1) and Time Warner, NCTA v. FCC (CD Sept 5 p4) have said that cable’s decreasing market power is eroding the legal basis for many of the provisions from the 1992 Cable Act designed to protect broadcasters, Brill said. Along with recent program carriage cases, the FCBA event touched on Aereo’s case before the Supreme Court.