When BMG's copyright infringement complaint against Cox Communications goes to trial -- again -- in an Alexandria, Virginia, federal courtroom next week (see 1808160006), the jury will see a notably different trial from the first, meaning it's tough to handicap whether BMG will again prevail, experts told us. The Cox internal email -- central in the first trial -- indicating the company's enforcement of its own policy of terminating subscribers for copyright violations was toothless “put [Cox] in a difficult position," said Electronic Frontier Foundation Senior Staff Attorney Mitch Stoltz. But the second trial will no longer focus on whether Cox satisfied the narrow statutory standard of Digital Millennium Copyright Act (DMCA) safe harbor protections but instead on almost a more philosophical question of whether it's responsible for the actions of its subscribers, he said. BMG sued Cox in 2015, alleging the ISP was contributorily liable for infringement of BMG’s copyrights by its subscribers pirating BMG's catalog via Torrents.
Odds are good the FCC will let cable operators opt for electronic notifications instead of the mail for some customer notifications, agency and industry officials told us. Unclear is how far the agency will go. How the agency will deal with the more contentious issue that's part of the same NPRM about carriage election notifications isn't clear, and the agency itself might not have a direction, they said.
Cable and leased programming access interests remain at odds and with very different views of the video distribution market, according to FCC docket 07-42 reply comments that were due Monday in response to a Further NPRM on a leased access rules update that includes rescinding a 2008 order that never took effect (see Notebook section 1806070021). None of the reasons Congress mandated a set-aside of channels for leasing by programmers unable otherwise to secure a spot on a cable system’s channel lineup still exist 34 years later, NCTA said, saying leased access advocates are ignoring "seismic shifts." It opposed any new leased access rules and said the agency should eliminate requirements on cable system operators. The American Cable Association backs NCTA's call for revisiting the rules on part-time leased access programming and said the FCC should vacate altogether the 2008 leased access order. Charter Communicators also opposed additional leased access requirements. Leased Access Programmers Association (LAPA) President Charlie Stogner said there's no good reason not to institute the 2008 order and said cable arguments about the difficulty dealing with part-time leased access run contrary to the fact, and ad inserts pose the same challenges. LAPA Vice President Duane Polich said the issues that spawned the 2008 order "remain true today," with barriers thrown up by cable operators the reason leased access use by video programmers dwindled. He said despite cable arguments alternative distribution routes are available to such programmers, "the internet is not cable" given the robustness and viewing ease of cable. Citing changed competitive dynamics, the George Mason University Technology Policy Program said the leased access rules "are likely no longer constitutional" because cable no longer has "bottleneck monopoly power" over TV content.
Public interest groups, think tanks and antitrust scholars are backing DOJ's appeal of the U.S. district court ruling letting AT&T buy Time Warner (see 1807120068), in amicus briefs filed Monday with the U.S. Court of Appeals for the D.C. Circuit. They follow DOJ's appellant brief filed last week (see 1808070025). New AT&T's appellee brief is due Sept. 20, with amicus briefs in support due Sept. 27. AT&T didn't comment Tuesday.
The FCC wants to dispose of NTCH petitions for reconsideration dealing with the agency allowing Dish Network to convert satellite spectrum for terrestrial wireless use, according to insiders and court documents. Related drafts were included in an array of items circulated at the agency last week (see here). NTCH had sought a writ of mandamus from the U.S. Court of Appeals for the D.C. Circuit over what it said were petitions trapped "in administrative limbo."
The Intelsat/SES/Intel plan for clearing a portion of the C-band could very well face disagreements among satellite operators, cable companies and wireless interests and their industry groups when comments start coming in on an order and NPRM approved 4-0 in July (see 1807120037), experts and insiders told us. The texts haven't been in the Federal Register. Intelsat CEO Stephen Spengler told us the coalition expects to gain support from incumbent C-band end users over time: "It will be recognition the approach we have made avoids the possibility of the worst outcome" of spectrum sharing.
A proposed five-year cap on smallsat on-orbit lifespans and the idea of requiring those satellites to have active maneuvering capability when deployed higher than 400 kilometers (249 miles) got disagreement among satellite interests in docket 18-86 reply comments Wednesday. The FCC's proposed streamlining of authorizations for small-satellite operators also hasn't received clear consensus on what constitutes a smallsat (see 1807100014). A five-year cap restricts launch opportunities and could make the streamlined process "commercially impracticable," the Commercial Smallsat Spectrum Management Association (CSSMA) said. It said on-orbit lifetime limits should apply on a satellite-by-satellite basis and not cover all satellites on a given license because of launch delays and launch spacing. But SES/O3b said the cap, starting when the satellite is in its authorized orbit, will create incentives to limit constellation sizes only to what's necessary. And Iridium said a cap, paired with rules letting the FCC terminate authorizations due to in-orbit satellite failures, could help ensure there won't be "a mushrooming accumulation" of space debris. Audacy criticized the proposed five-year on-orbit lifetime and said the agency should allow three-year extensions atop that. Multiple parties argued against excluding from the streamlined process applicants without propulsion capability that want to deploy higher than the International Space Station. SpaceX said there could be new smallsat maneuvering strategies or technology changes that make propulsion more commonplace. But Iridium said the fact some smallsats will deploy maneuvering techniques that don't rely on propulsion doesn't mean all of them will. Multiple parties also agreed propulsion shouldn't be a requirement for going through the streamlined process, with CSSMA saying there are other issues beyond altitude -- such as spatial density and relative velocity -- that also define the risk of a constellation. There was also lack of agreement on limits on the number of applications an individual entity can file under the streamlined process, with multiple parties backing the idea of no limit, but Orbcomm said that in turn raises risk of collision or harmful interference that makes the streamlined treatment inappropriate. Audacy backed limiting the number of satellites under the streamlined process to 10 per license, which the Commercial Spaceflight Federation opposed (see here). Audacy also said small satellites should be exempt from processing round procedures and bond requirements for streamlined process applicants, but SES/O3b disagreed with eliminating the bond requirement. And Iridium argued against allowing smallsat uplinks in the 1616-1626.5 MHz band, which it uses for service links. The Radio Amateur Satellite Corp. said evaluating authorization of an amateur radio service mission shouldn't need to look at issues like ownership or mission funding sources.
OneWeb's request to increase the size of its proposed V-band constellation and add spectrum segments outside the V-band (see 1801050002) is facing opposition from multiple rival satellite operators. Meanwhile, pointing to International Bureau Filing System (IBFS) technical problems, OneWeb is asking the FCC to extend until Aug. 27 the comments deadlines on its V-band petition and on a separate request to greatly expand its non-geostationary (NGSO) satellite constellation granted U.S. market access in June (see 1803200002). In its petition for a time extension Tuesday, OneWeb said it has received via U.S. mail filings that aren't reflected in the IBFS. The FCC didn't comment Wednesday.
The odds are seemingly long on DOJ's appeal of a U.S. District Court decision allowing AT&T's buy of Time Warner, with antitrust experts telling us the agency's arguments -- laid out in its appellant brief this week -- face a high burden of proof and typical appellate court deference to lower courts on their reads of the facts. Since it's the trial court that sees witnesses and can best establish their validity, DOJ's challenging of what it considers faulty findings "is a really uphill battle," said Daniel Lyons, Boston College associate law professor.
Globalstar, having abandoned an effort to merge with FiberLight (see 1808010014), doesn't anticipate pursuing another transaction with FiberLight holding company Thermo Acquisitions. The satellite company still hopes to lease or otherwise monetize its 2.4 GHz band spectrum to handle its financial shortfall, said CEO Jay Monroe, also Thermo controlling shareholder, in a Q2 call Thursday evening. He said Globalstar and Thermo mutually called off the deal, including because of the expected cost of litigation to defend it, uncertainty about closing such as timing, stock price volatility and expectations the deal would be "a prolonged distraction" to management. He said Globalstar has been having talks with cable, wireless and telecom companies since 2013 as it tries to monetize its spectrum, and the FiberLight deal was envisioned in 2017 as a backup route to covering its capital needs in case no deal with a third party occurred. He said Globalstar ended its Thermo talks in September and at the same time had formal discussions with senior officers of 20 major cable and telecom companies, but no one expressed interest in a deal or in licensing the spectrum or in its other bands. Discussions about a Globalstar/Thermo deal rekindled this year, he said. He said lack of outside interest in the spectrum wasn't due to the company asking too high a price because it never received an offer, and instead the spectrum might be overshadowed by industry focus on the 3.5 GHz band, 5G "and this, that and the other thing." He said what happens in the 3.7-4.2 GHz band "will inform" what the company does with its C-band spectrum in the 7 GHz block. The company said it's facing roughly a $50 million gap every six months for the next two years due to debt financing obligations. Monroe said getting international regulatory approvals for terrestrial use of its 2483.5-2500 MHz band spectrum, like the FCC granted in 2016 (see 1612230060), is taking longer than expected. He said it's focused on approvals in 27 countries and hopes to get at least some OKs within the next few months.