Monty Tayloe

The NAB and Prometheus Radio Project each filed court challenges to new FCC rules on joint sales agreements (JSA) and its handling of the quadrennial review of media ownership rules, according to court documents and an NAB news release Friday (http://bit.ly/1o7ZMRY). The order barring JSAs where one station accounts for more than 15 percent of another’s ad sales (CD April 1 p4) without similarly attributing shared service agreements is “arbitrary and capricious,” public interest group Prometheus told the 3rd U.S. Circuit Court of Appeals. The JSA rule is against the public interest because it puts broadcasters at a competitive disadvantage, NAB told the U.S. Court of Appeals for the D.C. Circuit. “Ownership restrictions against free and local broadcasters are outdated in a world of national pay TV giants,” said an NAB spokesman in a written statement.

An order related to the Commercial Advertisement Loudness Mitigation Act rules listed as circulating among FCC members is a procedural update to the act’s loudness standards, an agency official told us. As explained in an FNPRM last year, the proposed update was prompted by changes to the Advanced Television Systems Committee algorithm used to calculate loudness (CD Nov 5 p18), according to the official. The legislation references the old ATSC standard, and the order would update the language with the new one, the official said. The FNPRM didn’t receive any opposing comments, according to the proceeding’s docket 11-93 (http://bit.ly/1trMIbw). NAB asked that stations be permitted flexibility and time extensions for updating their equipment to the new standard. The Media Bureau didn’t comment.

Consumer groups representing the hearing impaired and video programmers disagree with pay-TV distributors over who should be held responsible for the quality and other aspects of closed captions, according to reply comments filed Tuesday in docket 05-231 (http://bit.ly/1nCSvLs) in response to an FCC FNPRM on the issue (CD May 1 p9). Charter Communications, Comcast and DirecTV support a “burden shifting” model that puts the onus for quality on programmers, while CBS and Viacom, along with consumer groups like Telecommunications for the Deaf and Hard of Hearing, don’t think the current system holding video distributors responsible should be changed. Distributors are “in a better position to police the captioning practices” of programmers than the FCC, the consumer groups said.

Having to handle at once AT&T’s plan to buy DirecTV and Comcast/Time Warner Cable will tax regulators without overwhelming them, said former FCC officials, industry attorneys and analysts in interviews. While regulators will likely face the extra step of having to consider AT&T/DirecTV in light of Comcast/Time Warner Cable, the extra demand on staff in the deals each worth more than $65 billion is unlikely to substantively strain resources at the FCC or Department of Justice, said American Antitrust Institute Vice President Diana Moss. “You can’t stop the trains just because multiple deals come in,” said Moss. “You have to process them."

Broadcasters on the fence about participation in the incentive auction are unlikely to be encouraged to participate by Thursday’s auction order (CD May 16 p5), and aspects of the FCC’s repacking plans may lead to litigation before the auction, several broadcast attorneys told us. An NAB release immediately after the FCC vote criticized the commission’s handling of the $1.75 billion repacking reimbursement fund and commitment to the TVStudy auction software, and the attorneys said there’s widespread industry concern that the FCC deferred many of the auction decisions to later proceedings. That delay could force opponents to take the commission to court sooner rather than later, said Cooley broadcast attorney Jason Rademacher. It’s much easier for a court to prevent or change a repacking process that hasn’t happened yet rather than unwind one that’s already occurred, several attorneys pointed out. “By deciding just these major policy things they've put people in a strategic box,” Rademacher said.

The FCC shouldn’t include the TVStudy software planned for use in the incentive auction and repacking in its upcoming auction report and order, said NAB auction expert Rick Kaplan in an interview Friday. NAB commented Friday (http://bit.ly/1ghCXqp), urging the commission to use the original Office of Engineering and Technology-69 software instead, because even when running the same specifications as the original software, TVStudy produces different calculations for stations’ coverage area and population served. “Some stations lose and some stations gain, but Congress instructed the FCC to protect all stations,” Kaplan said. FCC officials and industry associations have said TVStudy has features the original OET-69 software doesn’t (CD June 3 p7), and it would be difficult to do the auction without them. “Not only does the new software improve upon the previous iteration, but it also contains features that will be necessary to conduct the incentive auction,” commented CTIA in docket 12-268.

Sinclair’s willingness to look outside Advanced Television Systems Committee 3.0 for a new TV standard friendlier to mobile uses caused disagreement among panelists and attendees at an ATSC conference Thursday. Sinclair’s plan (CD May 8 p7) to create a new platform that supports broadcasting across all media and then seek a standard for it could lead to two coexisting standards, said Jay Adrick, consultant to GatesAir. That would be “a disaster” for the industry, Adrick said. Other panelists praised Sinclair for investing in new technology but said they hoped the company’s efforts would end up being incorporated into ATSC 3.0. Offering two standards to the FCC would be “a bad idea,” said Lin Media Chief Technology Officer Brett Jenkins.

A new effort by Sinclair to bring about the creation of a new TV standard by designing technology to allow broadcasters to send their signals over wireless networks is not likely to capture the attention of an FCC consumed by the incentive auction, said several industry observers in interviews. “Once you get into a new standard it would delay everything,” while the FCC is focused on completing the auction on schedule, said broadcast engineer Don Everist, president of Cohen, Dippell.

The incentive auction rules to be issued at the FCC May 15 open meeting (CD May 6 p3) are more likely to face challenges on narrow issues such as reserving spectrum for wireless mics, rather than broad petitions for reconsideration of the entire order, said Drinker Biddle broadcast attorney Howard Liberman during a Digital Policy Institute webinar Tuesday. If petitions for recon are filed against specific aspects of the auction rules, it’s unlikely that it would slow the process of getting the auction off the ground, Liberman said. Protracted court challenges to the auction order also aren’t likely because the May 15 order can be termed an interim process, and only final decisions are subject to court appeal, Liberman said. “It will be difficult to appeal.”

FCC Chairman Tom Wheeler’s fellow commissioners weighed in on net neutrality at a Cable Show policy luncheon Thursday, but didn’t comment directly on whether they agreed with his proposal (CD May 1 p1). The commission should seek congressional guidance on how to proceed before taking action, said Commissioner Ajit Pai, who called the matter “a solution in search of a problem.” Commissioner Mike O'Rielly said he worries that the agency doesn’t have jurisdiction over the Internet, though he added that he would keep “an open mind.” Commissioners Jessica Rosenworcel and Mignon Clyburn said they support an open Internet, and that they were still considering Wheeler’s NPRM, which is currently circulating on the eighth floor. (See separate report above in this issue.) Clyburn said she is “still evaluating what the chairman circulated. Rosenworcel has “heard a lot from a lot of people” and said she will take “a hard look” at the proposal and the public perception of it.