Monty Tayloe

A draft NPRM that would seek comment on broadening the definition of what the FCC considers a multichannel video programming distributor to include linear over-the-top video providers (see 1410010086) is being shared among some offices on the FCC's eighth floor, and Media Bureau staff has been reaching out to OTT and cable companies to discuss it, said commission officials and industry officials in interviews. Remarks by FCC Chairman Tom Wheeler and a recent speech by General Counsel Jonathan Sallet (see 1410170039) indicated an interest in the item at the commission's highest levels. Officials at the FCC, in OTT video companies and in the cable industry told us it's not clear if the item is intended to bring online programming into the FCC's purview, provide regulatory certainty for OTT companies like Aereo or increase competition for large cable companies such as Comcast.

The FCC Media Bureau suspended the pleading schedules for both the AT&T/DirecTV and Comcast/Time Warner Cable deals until it rules on a stream of objections filed by a group of programmers to prevent their contracts with providers from being viewed, said an order issued Wednesday (http://bit.ly/ZO1D80). The order also stops the 180-day shot clock for the AT&T deal. The Comcast shot clock had already been put on hold (see 1410070029). The stoppage is a response to a joint request (see 1410210042) from several commenters on the deal -- including Dish Network -- to extend the reply comment period for Comcast/TWC in part because the programmers -- which include Viacom, Disney, CBS and Scripps -- have filed objections to every request from any party to view confidential documents filed in both transactions. “We agree with these commenters that their current inability to review Highly Confidential Information … significantly hampers their ability to meaningfully comment and participate in these proceedings,” said the order.

Ion, Meredith Corp. and Turner Broadcasting oppose broadcaster PMCM’s plan to occupy the same program and system information protocol (PSIP) channel as Meredith‘s WFSB Hartford, Connecticut, while using a virtual channel number that PMCM’s opponents say should be associated with WFSB (see 1409160043). WFSB uses RF Channel 33, while PMCM’s WJLP Middletown, New Jersey, uses RF 3. The stations’ signals overlap, and WJLP is broadcasting on virtual channel 3.10, while WFSB has long used channel 3.1 and its associated subchannels, Meredith said in comments on its request for a declaratory ruling in FCC docket 14-150 (http://bit.ly/ZLWbCz). Though PMCM has the New Jersey Broadcasters Association's support (http://bit.ly/1FsKa5B) and said in its own comments that it has found hundreds of situations in which overlapping stations occupy the same PSIP, Meredith said the request is without precedent. PMCM hasn’t shown any examples where the FCC “subdivided a major channel number to assign separate chunks of the channel to separately owned stations for concurrent use in the same area," Meredith said.

The FCC voted 5-0 in an order not to adopt a cap on the amount of aggregate interference that broadcasters can receive after the post-incentive auction repacking (http://bit.ly/1sRxY97). The item had been set for the commission’s Friday open meeting, but was deleted from the agenda after being approved, officials said. Along with declining to adopt the cap requested by numerous broadcast commenters (see 1407080021), the item included an order adopting a methodology – called the ISIX methodology -- for calculating the interference broadcasters would receive from wireless carriers after the auction, and a Further NPRM seeking comment on that methodology once the FCC has learned from carriers how their networks will be deployed.

Modified FCC confidentiality orders protecting documents in the AT&T/DirecTV and Comcast/Time Warner Cable transactions aren’t enough for sensitive contract data, said CBS, Viacom and other content companies in a joint application for review (http://bit.ly/1voV5ZV) and a request for an emergency stay (http://bit.ly/1rJO7bt) posted Friday. “The Orders were promulgated in the face of both substantial public comment opposing disclosure and the Commission’s historical recognition that disclosure of these programming contracts would cause substantial competitive harm,” said the emergency stay, also filed on behalf of Disney, Discovery Communications, Scripps Networks, Time Warner Inc., TV One, 21st Century Fox and Univision. A similar application for review from a group of broadcasters objecting to the orders is likely to be filed soon, an attorney connected with the proceeding told us.

Rulemaking notices seeking comment on preserving white space channels and on the mechanics of the incentive auction are next “in the immediate pipeline” in the FCC’s march toward the auction, auction Task Force Chairman Gary Epstein said at an FCBA brown-bag lunch Thursday. Though Epstein and Incentive Auction Vice Chair Howard Symons said no specific dates are available for when the items would be issued, Epstein suggested the items would be out “this fall” and affirmed that they were still working toward holding the auction in 2015. The task force heads also discussed their upcoming “road show” outreach effort to induce broadcasters to participate in the auction, which is also expected to begin soon. “We won’t have an auction unless broadcasters come to participate,” Epstein said.

Aereo is likely to face some form of preliminary injunction against its streaming TV service, after oral argument on the matter in U.S. District Court in Manhattan Wednesday, said attorneys and attendees at the roughly hourlong hearing in interviews. U.S. District Court Judge Alison Nathan didn’t issue a decision on the nationwide preliminary injunction against Aereo requested by broadcasters, but said she would rule on the matter soon, noted officials connected with the case. Aereo some broadcaster plaintiffs declined to comment on the oral argument, which wasn't webcast.

Though the FCC’s announcement Friday of two actions to ease the effects of the incentive auction on LPTV is encouraging, the commission didn’t go far enough and may have raised more questions than it answered, said LPTV attorneys and advocacy groups in interviews Tuesday. As the LPTV industry requested 1409050029, the FCC suspended construction permit deadlines for new digital LPTV stations, and issued an NPRM seeking comment on what the incentive auction will do to LPTV. However, LPTV advocates said FCC proposals in the NPRM on LPTV channel sharing aren’t viable, criticized the deadline suspension for punting the issue down the road, and said the NPRM avoids the critical issue of LPTV participation in the auction. “They could have sought comment on protecting LPTV in the repacking process,” said LPTV attorney Aaron Shainis of Shainis & Peltzman.

The FCC largely clearing out pending Enforcement Bureau complaints that were holding up almost 700 license renewals bodes well for broadcasters trying to get deals done, said broadcast attorneys in interviews Friday. The cleared pending complaints, announced in a blog post on fcc.gov Thursday (CD Oct 10 p14), were likely nearly all invalid indecency complaints, said broadcast attorneys with clients among those receiving the 700 renewed licenses sent out last week. With the licenses renewed, the application process to have deals approved should become more streamlined for many stations, broadcast attorneys said. The application delays caused by such complaints “were far worse than any fine the FCC might levy,” said Pillsbury Winthrop broadcast attorney Scott Flick in a blog post (http://bit.ly/1rlHkVa) Thursday. The FCC didn’t comment on the nature of the cleared pending complaints.

Access to broadband Internet is critical to “full and fair participation” in society and the economy, and not having access to it is comparable to not having access to broadcast TV in the 1960s, said FCC Chairman Tom Wheeler in the United Church of Christ’s 32nd Annual Everett C. Parker Ethics in Telecommunications Lecture Tuesday (http://fcc.us/1twSQyM). The lecture is named for the UCC Office of Communication founder, who successfully battled with the FCC to increase access to the broadcasting industry for African Americans.