Monty Tayloe

Instituting a rebuttable presumption that all cable companies face effective competition could have consequences for what's offered on cable’s basic tier and goes beyond congressional intent in the Satellite Television Extension and Localism Act Reauthorization, broadcast industry officials and public interest group Public Knowledge told us. The proposal was put forward by the FCC in an NPRM last week (see 1503260037). “While Congress’s directive is limited, procedural in nature and focused specifically on small cable operators, the Commission’s NPRM is wide-ranging and has the potential to have a seismic impact on consumers throughout the country,” said Public Knowledge and NAB in a filing asking the FCC for more time to comment on the NPRM.

The FCC unanimously approved a notice of proposed rulemaking Thursday seeking comment on allowing broadcast designated market areas (DMAs) to be modified “to enable satellite subscribers to gain access to in-state news and other programming that they currently are unable to receive,” a commission news release said. The NPRM was triggered by Section 102 of the Satellite Television Extension and Localism Act Reauthorization, and though the NPRM merely seeks comment on how the rule should be implemented, STELAR requires the FCC to approve final rules by September, FCC officials said. Since a similar rule already exists for cable, the rule change is designed to create "regulatory parity between satellite and cable television providers,” the FCC release said.

Broadcasters overwhelmingly support a rule change letting contest rules be disclosed online instead of on-air, but want flexibility over how often the online location should be broadcast and how specific the announcement of the Web address should be, according to replies in docket 14-226. Only iHeartMedia, the state broadcast associations of North Carolina, Ohio and Virginia and Clarke Broadcasting replied. “Announcement of a short, branded home page URL address makes more sense than announcement of a lengthy URL address containing backslashes and potentially unusual characters because the short home page address is almost always more memorable and understandable,” said the broadcast associations, echoed by iHeartMedia. Requiring stations to recite long, specific Web addresses on air is “unnecessary given consumers’ familiarity with website addresses and how to enter them into their browsers,” iHeartMedia said. Stations should be able to decide how often to mention the Web address, commenters agreed. “It would be bad programming to follow each 'mention' of one of these contests with an announcement that the contest terms are available on our website,” said Clarke. “The announcement itself would disrupt the normal programming flow and quickly begin to irritate our listeners, who are very familiar with these long-running contests.” Broadcasters were similarly supportive in initial comments, with several referring to the change as a rare FCC action where everyone agrees (see 1502200035).

Disagreement over whether a future downloadable security platform should account for over-the-top (OTT) content, use CableCARD as a baseline, or take the form of an app dominated the second meeting of the congressionally mandated Downloadable Security Technical Advisory Committee (DSTAC) Tuesday. Formed under a provision of the Satellite Television Extension and Localism Act Reauthorization, the committee of representatives from companies, trade groups and public interest organizations appeared to be divided along lines going back to the CableCARD regime they're trying to replace.

The FCC proposed a fine of $325,000 -- the maximum allowed -- against Schurz Communications-owned WDBJ Roanoke, Virginia, for broadcasting explicit video from an adult film website on a news broadcast, said a notice of apparent liability (NAL) released Monday. It's “self-evident” that “the stroking of an erect penis on a broadcast program is shocking,” said the NAL. “Our action here sends a clear signal that there are severe consequences for TV stations that air sexually explicit images when children are likely to be watching,” said Enforcement Bureau Chief Travis LeBlanc in a statement. The offending images' inclusion in the broadcast was “purely unintentional” and was visible only on some televisions for less than three seconds, said WDBJ in a statement. The station plans to oppose the fine, it said.

A draft FCC rulemaking notice seeking comment on permitting modification of TV markets for satellite carriage is being watched closely by broadcasters, several broadcast attorneys told us. On the agenda for Thursday's FCC meeting, the NPRM seeks comment on how the FCC should implement Section 102 of the 2014 Satellite Television Extension and Localism Act Reauthorization. Though satellite industry officials told us they expect the measure to be noncontroversial, broadcast industry attorneys said the item has the potential to affect retransmission consent negotiations.

A win for the FCC in its Court of Appeals battle with content companies over releasing confidential programming and retransmission consent contracts could push back a decision in the Comcast/Time Warner Cable and AT&T/DirecTV transactions, said communications attorneys on both sides of the dispute. Oral argument in CBS et al v. FCC was Feb. 20 (see 1502200051). “They would have to give parties a chance to review the information,” said American Cable Association Senior Vice President-Government Affairs Ross Lieberman. ACA supported the FCC in filings with the U.S. Court of Appeals for the D.C. Circuit, and Lieberman was blocked from access to the Video Programming Confidential Information (VPCI) at the request of the content company petitioners, which include CBS, Disney, Time Warner and Univision.

The FCC shouldn't stop broadcasters from pre-empting political advertisers using last-in, first-out (LIFO) policies, broadcast companies, associations and affiliate groups said in reply comments in docket 15-24, responding to Canal Partners Media’s request that the commission do so. “The law requires that stations treat candidates as well as they treat their best commercial advertisers -- but stations certainly are not required to provide candidates with better treatment than their best commercial advertisers,” said Media General, echoing NAB, Sinclair and every other entity that filed reply comments. It would be “a mistake” for the FCC to start dictating the way stations sell advertising time, said the ABC affiliates. CBS and NBC affiliate groups also opposed Canal in their reply comments, and nearly all endorsed NAB’s position opposing the change. NAB has acknowledged that the LIFO policies favor commercial advertisers over political candidates, Canal said, pointing to an NAB publication called The Political Broadcast Catechism. Canal also said TV stations haven't been disclosing their LIFO policies to political ad buyers, and disputed that blocking LIFO policies would elevate candidates over other advertisers. “Until someone becomes a “legally qualified candidate,” that person "cannot get in line to establish a position in the LIFO pecking order,” Canal said. “But commercial advertisers can get in the LIFO line whenever they want.”

Cable associations, direct broadcast satellite companies, public interest groups and broadcasters support extending online political file rules to cable and satellite providers and commercial radio stations, according to reply comments posted Tuesday in docket 14-127. But the groups differ on the threshold for exempting smaller entities, the timing for phasing in new rules, and the formatting requirements for online files. The lone category of regulated entity opposed to falling under online political file requirements is noncommercial radio stations, an exemption supported by nearly all broadcast commenters. In a joint filing, the Campaign Legal Center, Common Cause and the Sunlight Foundation said the FCC should be in a hurry to extend the filing obligations. “It is imperative that all new entities required to upload political files to the online database are doing so as soon as possible, and at least before the next general election in 2016,” the reply comments said.

The FCC paused 180-day shot clocks for the AT&T/DirecTV and Comcast/Time Warner Cable transactions while it waits for the U.S. Court of Appeals for the D.C. Circuit to issue an opinion on a petition for review brought against the agency by a group of content companies over the release of contract information. It’s “prudent” to pause the transaction clocks because the FCC “would be advantaged” by knowing the court’s decision before the clocks run out, “which both are slated to do by the end of March,” the FCC said in a public notice Friday. The Comcast clock is stopped at Day 165 while the AT&T clock is stopped at Day 170, said the FCC transaction webpages. Though the public notice points to the court case as the rationale for stopping the clock, Georgetown Law Institute for Public Representation Senior Counselor Andrew Schwartzman said it’s likely the FCC also has other reasons. At least on Comcast/TWC, the transaction review team sent out information requests that have been fulfilled only recently, and they may not have been in a position to meet the deadline even without the court delay. The FCC had no comment. Comcast said it's fine with the pause. "We understand the FCC's decision to pause the informal review clock while the court continues to review a procedural matter related to the transaction,” Comcast said. “A decision is expected shortly.” The FCC “appears to be making significant progress in the review of our transaction in order to bring it to a conclusion,” Comcast said. The commission was more measured. “The clock carries with it no procedural or substantive rights or obligations but merely represents an informal benchmark,” the PN said. Oral argument was heard in the case Feb. 20 (see 1502200051), and it’s not clear when a decision in the matter could be issued, Schwartzman told us. Though the court usually tries to keep within a 120-day time limit, expedited cases such as the FCC’s are on a faster track, and could arrive much sooner, he said. The D.C. Circuit could also issue an order in one side’s favor or another and then follow it with a written opinion much later, Schwartzman said. Representatives for the content company petitioners, which include CBS, Disney and Viacom, declined to comment. AT&T expects "issues surrounding the litigation between the FCC and the programmers to be resolved quickly so the FCC can complete its review of our transaction," a company spokesman emailed. "We continue to look forward to closing our deal in the first half of the year."