Monty Tayloe

A GAO report on broadcaster sharing agreements issued last week (http://1.usa.gov/1nOn1nv) could be used to support arguments both for and against FCC regulation of those arrangements, public interest and broadcast attorneys told us. The report concluded that the FCC has little data on the prevalence of such agreements, and that the agency needs to decide if it must have that information to regulate them (CD July 29 p14). “Without data and a fact-based analysis of how agreements are used, FCC cannot ensure that its current and future policies on broadcaster agreements serve the public interest,” said GAO. The FCC’s lack of information on such arrangements could be used to challenge the foundation for limits on joint sales arrangements, or could serve the interests of public interest groups challenging the FCC closure of the 2010 quadrennial review, attorneys told us.

Journal Communications and E.W. Scripps will combine their broadcast operations into one company and spin off and merge their newspapers into another, they said. The all-stock transactions will result in Scripps owning 34 TV stations and 35 radio stations while newly created Journal Media Group will cover 14 markets with the combined newspaper properties, the companies said. Though there are no “market ownership conflicts” between the two companies according to Scripps CEO Rich Boehne, Journal has existing TV and radio duopolies in some markets and may brush up against FCC radio ownership limits in others. Though Boehne said the stations involved were “immaterial” to the deal, he said the companies would try to work with the FCC to hold on to them: “We hope we'll prevail and keep them all."

A federal judge’s finding that FilmOn and CEO Alki David are in contempt of court may not bode well for competing service Aereo’s attempt to be treated as a cable system and obtain a compulsory copyright license (CD July 11 p10), several broadcast attorneys told us in interviews Friday. Judge Naomi Buchwald of U.S District Court in Manhattan fined FilmOn $90,000 for violating a federal injunction by streaming copyrighted broadcast content for nine days after the U.S. Supreme Court’s ABC v. Aereo decision.

The FCC Media Bureau approved Sinclair’s $963 million buy of Allbritton’s TV stations Thursday evening (http://bit.ly/1lAXiJr). Though commissioner offices are typically notified of Media Bureau actions on delegated authority 48 hours before they're announced, word of the Sinclair/Allbritton approval was not disseminated until the middle of the day Thursday, according to FCC officials. Industry officials have expected the deal to be approved this week since the Department of Justice signed off on it with a consent decree last week (CD July 22 p4). Although the approval was announced after our deadline, FCC officials told us the order accepts the concessions previously announced by Sinclair to come into compliance with the FCC’s rules on sharing arrangements, and conditions the deal on the same single station divestiture to Media General required by DOJ. The deal’s approval had a July 27 deadline that would have allowed either Sinclair or Allbritton to abandon the transaction.

A Mediacom petition urging the FCC to restrict programmers -- including broadcasters -- from requiring bundling and other concessions during content negotiations may find favor with FCC Chairman Tom Wheeler but is unlikely to be acted on soon, several cable attorneys and industry officials told us in interviews Wednesday. “It would take a very courageous Commission to follow this approach,” said Andrew Schwartzman, senior counselor at Georgetown Law’s Institute for Public Representation. Though Wheeler’s support of rules banning joint retransmission consent negotiations by broadcasters indicates he might agree with some of Mediacom’s points, its petition is likely to be crowded out by the ongoing net neutrality and incentive auction proceedings and the host of large scale mergers facing the commission, numerous industry attorneys told us.

FCC approval of the $963 million purchase by Sinclair Broadcast of Allbritton Communications’ TV stations is expected to come by way of a Media Bureau decision on delegated authority this week, broadcast attorneys and public interest officials told us. The Department of Justice filed a consent decree announcing its conditional support for the deal last week (CD July 16 p8), and the FCC traditionally issues its decisions on deals after DOJ weighs in, several broadcast attorneys said in interviews Monday. Sinclair has asked the bureau to issue a decision before July 27, because the purchase agreement allows either party to terminate the deal on or after July 28 (CD May 30 p1). It’s unlikely that the Media Bureau would allow the clock on the deal to run out without weighing in, and the time limit makes it doubtful that the decision would be a full commission vote, the attorneys told us. The FCC’s next open meeting is August 8.

The makeup of the FCC review team that will oversee Comcast’s proposed buy of Time Warner Cable (CD July 8 p1) seems designed to show that the commission will be taking extra care with the transaction, but doesn’t indicate the direction the regulatory approval process will take, said industry officials in recent interviews. The inclusion of Northwestern University economists William Rogerson and Shane Greenstein on the task force indicates the commission is planning a “deep dive” on Comcast/Time Warner Cable, said BakerHostetler cable attorney Gary Lutzker. It’s not unusual for the FCC to seek high-level help on such a massive, important transaction, said Fletcher Heald attorney Tom Dougherty, who handles many communications deals. Comments on such a deal are likely to be voluminous and complicated, and that requires expert staff, Dougherty said.

Comcast and TiVo reached a voluntary agreement under which the operator will abide by CableCARD rules vacated by the U.S. Court of Appeals for the D.C. Circuit and work with TiVo to develop a two-way non-CableCARD security solution to replace CableCARD, the companies told the FCC (http://bit.ly/1wuQG4I). TiVo will use the solution developed by Comcast in its set-top boxes. CEA, which has aligned with TiVo against cable interests in past efforts to protect CableCARD rules, said it was “supportive” of the companies’ efforts to find a successor to CableCARDs. Last year, the D.C. Circuit vacated some encryption rules in EchoStar v. FCC but not the entire CableCARD regime, leading TiVo to petition the FCC to confirm the rules still applied.

Aereo’s request that a federal court issue it a compulsory copyright license under 1976 Copyright Act Section 111 isn’t a clear path to survival for the streaming TV service, industry and public interest attorneys told us Thursday. The Supreme Court ruling that Aereo should be treated as a cable system when it retransmits content because it resembles one (CD June 26 p1) also means Aereo should be granted the same type of copyright licenses as cable systems, Aereo said in a joint status letter with broadcasters (http://bit.ly/1sDoJY3) to U.S. District Judge Alison Nathan in New York. That also means an injunction that broadcasters are seeking against Aereo’s business shouldn’t be granted, Aereo said in Wednesday’s filing. If Aereo is a cable system, “the transmissions Plaintiffs have sought to enjoin do not infringe Plaintiffs’ rights,” Aereo said. The question of whether it should be granted a compulsory license is “inextricably intertwined” with the question of the injunction, said the company.

The FCC should cap the total interference that TV stations will experience as a result of the TV incentive auction repacking, said NAB, affiliates of Block Communications and consulting engineering firm Cohen Dippell in comments on a public notice (CD June 4 p17) on how much interference broadcasters are likely to see as a result of the repack. Though the incentive auction order proposed that stations’ new interference reception would be limited to 0.5 percent per station repacked, commenters all proposed solutions that would limit the total new interference any station could receive, rather than the total per repacked station.