Monty Tayloe

The draft order on rules for ATSC 3.0 distributed transmission systems (DTS) has three commissioner votes and is expected to be approved on circulation later this month (see 2012110052), said FCC and broadcast industry officials. The three votes are from the Republicans, and broadcast industry officials think there’s a chance Commissioners Jessica Rosenworcel and Geoffrey Starks could vote to approve or approve in part. Starks and Rosenworcel voted "concur" last month on another 3.0 item (see 2012100071). The final order is expected to be close to what NAB requested but include concessions to Microsoft’s concerns that the new rules would interfere with unlicensed use of the TV white spaces and rural broadband.

The FCC Enforcement Bureau went after owners of properties hosting pirate broadcasting operations, flexing new powers enabled by the Preventing Illegal Radio Abuse Through Enforcement Act. “It is unacceptable -- and plainly illegal under the new law -- for landlords and property managers to simply opt to ignore pirate radio operation,” Bureau Chief Rosemary Harold said Thursday. “Parties that knowingly facilitate illegal broadcasting on their property are liable for fines of up to $2 million.” The bureau sent out a new type of notice, called a notice of illegal pirate radio broadcasting, to two New York property managers. Bronstein Properties received one and Benedict Realty Group two (here and here), for three city buildings that the agency said host pirate radio operations. The notices give the companies 10 days to respond, warning that failure to do so could still lead to the determination that the companies knowingly allowed an unlicensed radio station to operate. The bureau released an order Thursday implementing provisions of the Pirate Act, including fines for property owners and a section allowing the agency to proceed immediately to skip the “notice of violation” stage. “We move directly to an order here because implementation of new section 511 entails no exercise of our administrative discretion and, therefore, notice and comment procedures are unnecessary,” the order said.

The FCC under Chairman Ajit Pai violated administrative procedure requirements when it used the same record as evidence for a 2017 reconsideration order loosening ownership rules that the prior commission had used to justify keeping them, said the public interest group respondents in a brief filed Wednesday in the broadcasters' and FCC's Supreme Court appeal of Prometheus IV (see 2011170057). The FCC “first concluded that largely retaining local rules was necessary for the public interest,” said groups including Prometheus Radio Project, Common Cause and the National Association of Black Owned Broadcasters. “One year later, upon reconsideration of the same record after a change in Commissioners, the Commission reversed course.” The brief countered broadcaster and FCC arguments that the 3rd U.S. Circuit Court of Appeals’ retention of jurisdiction has stalled broadcast deregulation for years. “Any purported ‘freezing’ of ownership rules is the Commission’s doing, not the Third Circuit’s,” the document said. "The Commission itself re-adopted most of its rules in 2008 and 2016. The Commission (until now) declined to repeal the newspaper/broadcast cross-ownership rule entirely, and the Commission took nearly ten years between this 'quadrennial' review and the last one." The respondents’ argument “isn’t so much about diversity as about the basic tenets of administrative law,” said University of Minnesota assistant professor-media law Christopher Terry. He said it’s hard to tell how the justices, some of whom seem focused on the question of judicial deference to federal agencies, will react. "The appellate court reviewed the FCC's work and found it failed the bare minimum for a federal agency,” said United Church of Christ Office of Communication attorney Cheryl Leanza on the office's website: “The lower court should clearly be upheld." The 3rd Circuit “rejected bad FCC media ownership rule changes four times because each time the agency ignored the Court’s demand for evidence and a reasoned explanation,” said former Commissioner Michael Copps, now special adviser to Common Cause, in a release. The FCC didn’t comment. Oral argument is Jan. 19.

The FCC has struggled for years to retain women, promote African Americans, hire Hispanics, and attract diverse engineers and economists, according to government data. Annual reports to the Equal Employment Opportunity Commission show the communications regulator is below the average of the U.S. workforce by such measures. President-elect Joe Biden is expected to make diversity a focus and to name the first permanent female FCC chair. Only one woman, then-Commissioner Mignon Clyburn, has been acting chair.

The FCC has struggled for years to retain women, promote African Americans, hire Hispanics, and attract diverse engineers and economists, according to government data. Annual reports to the Equal Employment Opportunity Commission show the communications regulator is below the average of the U.S. workforce by such measures. President-elect Joe Biden is expected to make diversity a focus and to name the first permanent female FCC chair. Only one woman, then-Commissioner Mignon Clyburn, has been acting chair.

New FCC Commissioner Nathan Simington was sworn in at 9 a.m. Monday by Chairman Ajit Pai via videoconference (see 2012140021), an agency spokesperson confirmed. Simingon’s oath of office officially ends the term of his predecessor, Commissioner Mike O’Rielly, who noted the change on his Twitter account Monday: “Excitingly, I am a private citizen and not an FCC Commissioner.” The commission tweeted a photo with a split screen of Pai and Simington side by side, apparently in the midst of the ceremony. Simington’s name and photo also replaced O’Rielly's in the FCC’s online list of commissioners. He has a brief biography page on the FCC’s website, along with a link to his new email address. He didn’t respond to a request for comment directed there. The bio page also lists Simington’s new official FCC Twitter account, which doesn’t appear to have ever tweeted and by Monday afternoon was following only other official FCC accounts. Simington’s bio describes him as having "private and public-sector experience” with the NTIA and Brightstar and as an attorney in private practice. Senate Majority Whip John Thune, R-S.D., Commissioner Brendan Carr and others tweeted congratulations to Simington Monday. “I know Nathan will follow in [O’Rielly’s] footsteps to champion rural broadband and support America in the race to 5G,” said Thune. The Senate confirmed Simington last week (see 2012080067).

Newly minted FCC Commissioner Nathan Simington was sworn in Monday morning, officially ending predecessor Mike O’Rielly's term. Simington was confirmed last week. The FCC tweeted that Simington was sworn in “moments ago” at 9:52 a.m. but didn’t immediately respond to requests for additional information about the nature of the ceremony. Former Commissioner Robert McDowell has said FCC Chairman Ajit Pai can administer the oath of office to new commissioners.

The FCC voted 5-0 to approve an order on ATSC 3.0 datacasting, but Democratic Commissioners Jessica Rosenworcel and Geoffrey Starks concurred over concerns about consumer costs. “There comes a point -- and I think we’re getting there fast -- where we can no longer afford to ignore this issue,” said Rosenworcel. “We need to do more to figure out how we can help viewers reach this next generation of television technology.”

The FCC has repeatedly ruled that Fox’s common ownership of WWOR Secaucus, New Jersey, and the New York Post is in the public interest, and “there is no evidence that that conclusion is any less true today,” said Fox in a reply filing in docket 20-378 posted Wednesday (see 2012020058). Free Press submitted 9,779 signatures urging the FCC to deny Fox’s request. “Murdoch’s media empire is a cancer on American democracy and this lame-duck administration must not be allowed to grant favors for their patrons,” wrote signatory Ken Stewart, of Purcellville, Virginia. “Free Press’s attempt to delay consideration of Fox’s waiver request should be rejected,” said Fox. The request doesn’t depend on the Prometheus IV challenge before the Supreme Court or the quadrennial review, so it doesn’t need to be delayed to account for them, Fox said. The FCC ban on newspaper/broadcast cross-ownership is “an outmoded relic” that “has no place in today’s competitive media marketplace,” said the News Media Alliance.

The final version of the draft order on ATSC 3.0 datacasting is expected to be changed from the draft version to be more palatable to the agency’s Democrats, FCC and broadcast industry officials told us. One other media item added recently to the Dec. 10 agenda -- on a noncommercial educational station’s petition for reconsideration -- has already been voted on, and another on electronic Media Bureau fees isn’t considered controversial, an FCC official said.