Monty Tayloe

A contracting antenna industry may combine with the unintended consequences of relocating numerous stations to threaten the FCC’s timeline for repacking broadcast channels after the incentive auction, said several panelists at the commission’s TV Broadcast Relocation Fund Reimbursement workshop on Monday (http://fcc.us/1edUHXd). Although the workshop was ostensibly to gather information on the costs repacking will impose on broadcasters that they would then need to be reimbursed for, out of the $1.75 billion relocation fund, the repacking’s timing was the focus of panelists and other attendees. Panelists said a shortage of crews that do large-scale antenna work, the legal and technical complications of altering existing towers, and the uncertainty preventing the industry from getting ready for those challenges are going to make the repacking very difficult to complete on time. “Until we know the real channel that people are going to occupy, we can do a lot of hocus pocus around what-ifs,” said Sinclair Broadcast Vice President-Advanced Technology Mark Aitken. “Three years isn’t enough -- it’s a five- to six-year transition, we need to be planning for that."

Comcast has 60 days to put Bloomberg’s standard definition business news channel alongside other SD news channels on all its headends in the top 35 DMAs, said the FCC Wednesday in an order affirming an earlier Media Bureau decision on a dispute between the two companies. All three commissioners approved the order (http://bit.ly/1dNbhcU), though Commissioner Ajit Pai also issued a partial dissent.

A focus on the competitiveness of the video market in recent court decisions could indicate FCC program carriage rules are in trouble, and put the Game Show Network at a disadvantage in its upcoming showdown with Cablevision in an FCC administrative law judge hearing over channel placement, said several cable attorneys in interviews. Because judges’ opinions in this month’s Time Warner Cable case (CD Sept 5 p4) and May’s Tennis Channel case (CD May 29 p1) both pointed to a cable provider’s power in the market as a factor in determining whether the FCC can compel it to carry or how to carry a channel, GSN will have to go farther to prove that not being carried on Cablevision’s basic tier harms its ability to compete, said several cable attorneys. “All of these cases are good for the cable operators,” said Cohn and Marks cable attorney Ron Siegel, not connected to any of the cases. “The market is more competitive and cable isn’t as much of a bottleneck -- if you don’t have market power, there’s no need for [program carriage] rules."

Creating new CableCARD and encoding rules that would apply only to cable operators would “hamstring” their ability to compete in the current video marketplace, said NCTA in comments responding to a TiVo petition (http://bit.ly/12VRaS) asking the FCC to reinstate the portions of the rules knocked down by the EchoStar decision (http://bit.ly/10nMM3E). CEA, Public Knowledge and the All-Vid Tech Company Alliance voiced support for the petition, while Verizon, cable providers and broadcasters opposed TiVo’s proposal, along with NCTA. “In such a dynamic and vibrant marketplace, there is no place for decade-old plug-and-play regulations premised on an entirely different competitive landscape” said NCTA.

The FCC should deny several transfers of control associated with Sinclair’s $985 million buy of Allbritton TV stations, said the American Cable Association and some public interest groups in three petitions to deny filed Monday. Sinclair’s plans to address market overlaps by transferring stations to third-party companies with which it has shared service agreements are intended to let Sinclair “simultaneously control multiple broadcast outlets in the same markets in a manner that defies the public interest and is prohibited by the Commission’s rules,” said Free Press and Put People First. ACA objects to the deal because it will allow “collusion” in retransmission consent negotiations. The FCC should examine the company’s right to be a broadcast licensee in administrative law court because of previous violations of ownership rules by Sinclair, said Rainbow/PUSH Coalition. “If there is any question the viewing public can fairly expect the FCC to address, it is whether the nation’s largest television broadcaster is -- or is not -- basically qualified to be a licensee,” said RPC.

Two chairs of House panels that oversee the FCC don’t want the elimination of the UHF discount to “punish business” by affecting existing ownership groups or pending transactions, they said in a letter to acting Chairwoman Mignon Clyburn Thursday (http://1.usa.gov/1aHA9VF). “Specifically, we are concerned that elimination of the UHF discount could inequitably harm those broadcast owners with pending transactions that were initiated under the existing UHF discount rule,” said House Commerce Committee Chairman Fred Upton, R-Mich., and Communications Subcommittee Chairman Greg Walden, R-Ore.

Emergency motions to stay and limit a nearly nationwide preliminary injunction against streaming TV service FilmOn X were denied in the U.S. District Court for the District of Columbia, said Judge Rosemary Collyer in an opinion filed Thursday. “The conduct prohibited by the Preliminary Injunction is uncompensated infringement of those holders’ exclusive right to public performance of their works, and the public interest is not harmed by requiring FilmOn X to cease infringement.” Collyer agreed with broadcasters that Aereo’s wins in the 2nd U.S. Circuit Court of Appeals don’t mean that FilmOn will win its D.C. case. “FilmOn X has simply recycled the same arguments that this Court rejected,” said the broadcasters’ opposition motion, pointing to FilmOn’s contentions that the injunction undercuts other courts and will harm its business. “The mere existence of two non-controlling, widely-criticized cases supporting FilmOnX does not create a strong likelihood that the D.C. Circuit will reverse the injunction.” FilmOn had argued that being enjoined throughout the nation -- except in the jurisdiction of the 2nd Circuit -- will cause it to lose customers to similar service Aereo, which isn’t enjoined anywhere. That’s “unsupportable” said the plaintiff filings: “FilmOnX’s argument boils down to the plea that it should be allowed to continue to infringe because there is another infringing service in operation.” Filings by FilmOn also show that it has a substantial international following that would be unaffected by the injunction, broadcasters said. The court should also reject FilmOn’s argument that the injunction bond the broadcasters are required to pay should be increased from $250,000 to $2.75 million, the filing said. FilmOn X hasn’t presented any evidence “beyond the mere say-so of counsel that $250,000 would not be sufficient to cover its potential losses, and Plaintiffs have more than sufficient resources in the unlikely event that the injunction was erroneously issued and FilmOn X incurs more than $250,000 in losses,” said Collyer. “It doesn’t really harm us,” FilmOn CEO Alki David told us in an email. His service has many agreements with independent channels that won’t be affected by the injunction, and will still be able to stream the major broadcasters in the 2nd Circuit, where the injunction doesn’t apply, he said. “The Networks are a must have to be a real pro service but we can wait to get them … no biggie.” David said he will wait for Aereo to win the copyright case brought against it by Hearst in Boston, where FilmOn already has an “antenna farm.” Fox praised the decision and said it fully expects to “continue to prevail,” in an email. David’s attorney Ryan Baker, of Baker Marquart, confirmed his client will abide by the court’s order to cease streaming copyrighted material, but will appeal the decision.

Cellphone users caught up in an emergency should use text messages rather than phone calls to let their loved ones know they're OK, said Len Pagano, president of Safe America, a nonprofit preparedness organization (http://bit.ly/P1plTA) working with the Federal Emergency Management Agency’s Integrated Public Alert and Warning System (IPAWS). Pagano spoke at a “strategic discussion” meeting Tuesday at FEMA about the nonprofit’s work with IPAWS. Text messages take up less bandwidth than phone calls, so widespread use of texting during emergencies could help alleviate the “communications logjams” that make calls difficult during incidents like the Boston Marathon bombings or the Sept. 11 attacks, he said. “Text first, talk second,” said Pagano, repeating Safe America’s motto for its emergency texting program. “In an emergency you shouldn’t expect to get on a cellphone and talk for an hour, you should be an efficient user of the space,” he said.

A draft FCC rulemaking notice proposing eliminating the UHF discount is being changed and may contain a softer stance on grandfathering pending transactions, said FCC officials in interviews. Earlier, when the NPRM was on circulation but before it was placed on the Sept. 26 meeting’s tentative agenda last week, it proposed letting existing ownership groups in under the old rule but applying a new nationwide ownership limit calculation to any deals pending between the rulemaking’s issuance and when an order is adopted (CD Aug 6 p1). Tribune’s deal to buy Local TV is pending, and would give the new company an ownership cap number of 42.7 percent without the UHF discount (CD Aug 14 p1). The FCC caps ownership at 39 percent of viewers nationwide.

The FCC is circulating an order that will maintain the Sept. 1, 2015, deadline for low-power TV to make the digital transition, an agency official told us Monday. Though the item is listed on the FCC website only as a proposed amendment to the rules for digital LPTV, the official said the proposed order is mainly a denial of a petition for reconsideration filed by Signal Above, licensee of WDCN-LP Fairfax, Va., and WDCO-LP Salisbury, Md. (http://bit.ly/1cZ525f). Signal had argued that any hard deadline for analog LPTV stations to cease analog transmission and shift to digital “will penalize the efficient and innovative use of spectrum the Commission is committed to fostering, and it will gratuitously and seriously erode existing public broadcasting services.” The order on circulation rejects that argument and preserves the existing deadline, said the FCC official.