Matt Daneman

Whether the Supreme Court takes up FilmOn X's legal fight to be allowed to stream broadcast programming could hinge on a U.S. Court of Appeals for the D.C. Circuit or 7th Circuit ruling, now that the 9th Circuit on Tuesday reversed a lower court ruling that was in FilmOn's favor, legal experts told us. "The decision is a significant setback for streaming services," emailed Rodney Smolla, Delaware Law School dean and writer of an amicus brief in the case on behalf of the broadcaster and copyright holder plaintiffs. The 9th Circuit decision plus the Supreme Court's 2014 Aereo decision means "all the bargaining chips are now owned by the copyright owners, which is likely what Congress intended," he said.

Higher Ground (HG) doesn't understand possible interference issues arising from its planned satellite earth station network for various broadband applications, with its "deficiencies in the relevant physics and engineering" putting fixed services (FS) at risk, said the Fixed Wireless Communications Coalition in an FCC International Bureau filing Tuesday. FWCC said HG's promise to comply with out-of-band emissions limits -- in response to concerns raised about adjacent channel interference -- is "troubling" since those are different problems. The coalition said HG assertions that low signal strength and small likelihood of proximity to an FS station means low risk of adjacent channel interference have no analysis to back them up. It said HG shows deficient technical understanding when it tries to argue there won't be interference from unwanted reflections in the environment. The filing responded to an HG ex parte filing earlier this month on meetings between CEO Rob Reis and International, Wireless, Public Safety and Homeland Security bureau and Office of Engineering & Technology representatives about FCC authorization of its earth stations and the subsequent opposition (see 1702100055). The firm argued the earth station transmit power levels will be a hundredth of point-to-point microwave stations' and that its software will let an earth station transmit only if its emissions are at least 6 dB below thermal noise at an FS receiver in line of sight. The Tri-State Generation and Transmission Association in filings Monday (see here, here and here) said it opposed HG's use of 5925-6425 MHz band, which it said could interfere with 6 GHz microwave paths. HG outside counsel Adam Krinsky of Wilkinson Barker -- echoing language in HG's consolidated opposition to the applications for review filed by FWCC, Enterprise Wireless Alliance, Utilities Technology Council and APCO -- emailed us Tuesday that the FCC, after more than 18 months of dialogue with the company and numerous demonstrations, concluded its interference protection regime "provides necessary safeguards against harmful interference and granted Higher Ground’s application. The applications for review are based on ‘what if’ speculation, they don’t provide any technical analysis or support, and they disregard the Order’s finding.” FWCC in a reply Tuesday said the only proof HG's system will prevent interference comes from the firm's statements. With no one ever before having done unilateral coordination of mobile transmitters among fixed receivers, "the stakes here warrant the Commission asking for more in the way of assurance than a further repetition of HG's own claims," FWCC said.

The FCC under Chairman Ajit Pai almost surely will look to deregulate, or at least loosen, media ownership rules, but is unlikely to touch retransmission consent or other negotiation rules or to seek to extend agency authority over over-the-top provision, experts told us. Video regulation isn't a top priority for Pai, who seems much more focused on broadband deployment and on internal processes, TechFreedom policy counsel Tom Struble emailed us. Proof of that is Pai's removal of the set-top box order from circulation and that he hasn't taken up any video regulation matters since taking over, Struble said.

The FCC eighth floor could decide on a draft order removing the network overbuild condition on Charter Communications within a few weeks, Commissioner Mike O'Rielly told us Thursday. He said he hadn't voted on the order on circulation yet and was still reviewing it. O'Rielly was critical of the build-out condition in the 2016 order approving Charter's buys of Time Warner Cable and Bright House Networks (see 1605100050), and told us his focus is on the details of how to change the order. He didn't elaborate on specifics of the draft. American Cable Association, NTCA and the Competitive Enterprise Institute petitioned on Charter's overbuild condition (see 1606100043).

FCC Commissioner Mike O'Rielly said Chairman Ajit Pai put him in charge of a review and restructure of the 3.5 GHz shared band plan, with the aim of getting a workable band plan in place before making available nearby spectrum such as 3.6 GHz and 4.2 GHz. O'Rielly said the 3.5 GHz band rules need an overhaul (see 1703070018). The 3.6 GHz and 4.2 GHz spectrum "is a high priority" once the 3.5 GHz band rules are changed, O'Rielly told an International Wireless Industry Consortium meeting Thursday. Asked about the risks of a "land grab" in the 3.5 GHz spectrum by major carriers, O'Rielly said the bigger problem is the dysfunctional licensing regime. "You don't want a land grab, but you also don't want nobody entering," he said.

With marketers increasingly fed up with different audience measurement standards used by different platforms, TV programmers Fox Networks Group, Turner and Viacom are looking to fill that gap and get ahead of the issue with the announced launch Wednesday of their OpenAp consortium, Syracuse University advertising associate professor Beth Egan said. Better audience targeting "doesn't need to be that complicated," Fox and others said, saying adoption of better audience targeting has been stymied by the lack of transparency and consistency in audience buying. They said the OpenAP standard audience targeting platform will open the door to more transparency in audience buying by being a standard for cross-publisher audience targeting and independent measurement. The OpenAP announcement didn't include some details, including who the independent auditor will be. Nielsen in a statement said it backs OpenAP efforts "to create a clearinghouse to audit the audience-based advertising delivery of its members" and to give audited and verified data on ad delivery. "This is an important part of what is needed to create openness and transparency in ad buying and selling," it said, saying its own ratings data will underpin the consortium data. OpenAP should make buying across different media owners easier, removing some friction, Pivotal Research Group analyst Brian Wieser said. He said it's significant that NBCUniversal isn't part of the consortium since it, along with Viacom and Turner, are among the major suppliers in the alternative ad data market. Procter & Gamble Chief Brand Officer Marc Pritchard in an address earlier this year at the Internet Advertising Bureau was critical of digital companies like Facebook and said more third-party auditing of and transparency around its ad data is needed, Egan noted. That may have influenced the timing of the OpenAP announcement, Egan said. In their announcement, Fox and the other programmers said OpenAP will bring "consistently designed audience targets [that] can be activated across any OpenAP member publisher" as well as independent measurement and an open platform backing industry-standard data and measurements.

Inmarsat, which operates as a commercial accounting authority between earth or coast stations and ships engaged in international maritime mobile communications, is backing an FCC proposal to end its role as an accounting authority, though the Coast Guard raised some questions about the commission ending that role. Tuesday was the deadline for comments on a Further NPRM about accounting authority (see 1701030002), with replies due April 13. Inmarsat in comments posted Wednesday in docket 98-96 said any FCC move might require longer than a one-year transition and that the agency needs to eschew any new regulations on commercial entities that still operate as accounting authorities. It said current FCC rules on private accounting authorities about nondiscrimination among customers and reasonability of fees have been enough to ensure accounting authority services have been widely available and competitive. It said the FCC shouldn't make service provider and accounting authorities let users designate an accounting authority on a per-call or per-message basis if their systems can't accommodate such activities. The Coast Guard agreed with the FCC presumption that most maritime mobile satellite users can accommodate such a change but said it's unclear how the communications agency will accommodate those unaware of commission plans. It said the one-year transition suggested by the FCC "may be the absolute minimum of time necessary to properly notify all affected users," and there should be some disclosure of how the regulator plans to convey its plan to such interested parties as those that don't have contractual arrangements with Inmarsat or other private accounting authorities. The Coast Guard said there's little evidence a competitive market exists for accounting services in the maritime sector, raising concerns about possible anticompetitive conduct. It said the FCC should lay out procedures for mariners to file complaints on issues like discriminatory practices and unreasonably high costs.

It's unclear whether other emerging space launch companies will enter the dispute between SpaceX and Lockheed Martin over possible spectrum allocation for commercial space launch operations, at least in the near term, satellite industry experts told us. But the growing volume of space launches expected in coming years will bring increased calls on the FCC to make space launch spectrum available, said Richard Rocket, CEO of commercial space consulting firm NewSpace Global.

Dish Network's IoT plans have bought more time for the company to use its AWS-4 and lower 700 MHz E block spectrum, but whether that ultimately is how the satellite-TV provider uses it remains a big question, company watchers told us. Some are skeptical of an IoT network business plan and see a strong likelihood Dish will end up either partnering with a third party on such a network or selling its spectrum. Dish earlier this week told the FCC it expected to have a NarrowBand (NB) IoT network in operation by March 2020 (see 1703080026). Dish didn't comment. It announced Friday plans to perhaps buy additional spectrum.

Closing the rural broadband gap is going to require looking at more network tools, such as satellite delivery of broadband service, NCTA CEO Michael Powell said in a segment of C-SPAN's The Communicators that's to be televised starting Saturday (and to be available here). Powell said discussion of a national infrastructure plan is overdue, but that broadband -- which has been attracting sizable private investment -- should be looked at differently from needs like crumbling bridges and roads.