Monty Tayloe

Creating merger conditions to address the effects on programmers of Comcast’s proposed $45.2 billion buy of Time Warner Cable would likely be difficult for regulators, said several cable attorneys and analysts Friday. The leverage the merger would give the new cable giant in programming negotiations is likely to be an important front in the antitrust debate over the transaction (CD Feb 14 p1), they said.

Comcast’s proposed $45.2 billion dollar deal to buy Time Warner Cable is likely to face serious regulatory hurdles but could still be approved, said analysts and attorneys Thursday. “There will be those who fear the sky is falling,” said Comcast Executive Vice President David Cohen Thursday in a media conference call on the regulatory implications of the proposed deal. Cohen said Comcast and TWC’s businesses don’t overlap, and the deal isn’t substantially different from other cable transactions. “This merger is pro consumer and pro competition,” Cohen said.

A plan for proposed changes to the rules governing joint service agreements (JSAs) by FCC Chairman Tom Wheeler’s office has been shared only with the offices of his fellow Democratic commissioners, Jessica Rosenworcel and Mignon Clyburn, said several FCC officials. Republican commissioners Mike O'Rielly and Ajit Pai were “kept out of the loop,” one FCC official said. It’s not uncommon for a chairman’s office to work on items without giving a heads-up to commissioners of the opposing party, several former FCC officials said. It can breed animosity, one former eighth-floor official said. Such partisan inclusion in the drafting process was said to have happened under then-Chairman Julius Genachowski, as staff developed conditions to allow Comcast to buy control of NBCUniversal (CD Jan 18/11 p1).

The specter of changes to the FCC’s rules for joint sales agreements among TV station owners could complicate its response to public interest objections to Gannett’s $2.73 billion purchase of Belo, said broadcast attorneys in interviews Friday. Gannett and two companies with which it is involved in such arrangements responded Friday to an application for review filed last month by Free Press and Georgetown University’s Institute for Public Representation. The public interest application for review “invites the Commission to remove any certainty that the Commission’s ownership rules (and presumably other rules, as well) will be enforced in a fair and uniform way,” said Tucker Operating Co. It and Sander Media are the two companies involved in sharing agreements with Gannett under the Belo deal.

An upcoming FCC order on closed caption quality will broadly require TV stations and multichannel video programming distributors to have high-quality captions on all captioned programming, but will defer the question of quantitative standards for measuring compliance to a further rulemaking, said an agency official and a public interest official. The action on closed caption quality is tentatively set for the FCC’s Feb. 20 meeting (CD Feb 6 p5). Putting off the imposition of the numerical standards suggested by consumer groups is in line with broadcasters’ filing on the issue, but deferring quantitative standards wouldn’t keep new captioning rules from having “a substantial impact” on the industry, said Assistant Clinical Professor Blake Reid of the University of Colorado’s Samuelson-Glushko Technology Law & Policy Clinic, which is representing Telecommunications for the Deaf and Hearing Impaired (TDI). The increased attention to captioning due to such a rulemaking would be a huge improvement, he said.

Consumer groups representing the hearing impaired don’t agree with NAB, NCTA and others on the technical challenges posed by a proposal to require closed captioning for video clips, according to comments filed in response to a Media Bureau public notice on the topic. The notice was issued after consumer groups filed a petition of reconsideration against the FCC’s IP closed captioning order because it didn’t include rules for captioning clips (CD April 19 p11). Since many local and national video programming distributors (VPDs) caption all their news clips, there’s little reason to expect others to face “technical barriers” doing so, said Telecommunications for the Deaf and Hard of Hearing Inc. (TDI) and seven other consumer groups in a joint filing. The FCC shouldn’t “undermine the success of its IP closed captioning rules by imposing a video clips captioning requirement that would match or exceed the complexity and cost of captioning full-length programming,” said the Digital Media Association.

An FCC move to make TV joint services agreements (JSAs) attributable at the same level they are in radio would be unpopular with broadcasters but is unlikely to cause widespread divestitures or end the practice of using pacts like JSAs to get around ownership rules, said broadcast attorneys in interviews Friday. Such a rule “would be a good first step” for the public interest groups that oppose such sharing arrangements, said Free Press Policy Counsel Lauren Wilson. “We wouldn’t see that as the end."

A report and order establishing the framework of the incentive auction will be presented to the FCC this spring, announced the Incentive Auction Task Force in its update presentation at Thursday’s open commission meeting. The R&O will be followed by two public notices and comment periods to finalize every aspect of the auction, applications from prospective bidders will begin to be accepted in early 2015, and the auction itself will be held in mid-2015, said task force’s Chairman Gary Epstein. The NAB and CTIA praised the commission’s timeline, though some broadcast attorneys told us they're concerned about a lack of specificity and the commission’s plans for reaching out to broadcasters. “We are on course at speed to get this thing done,” said FCC Chairman Tom Wheeler.

FCC Chairman Tom Wheeler’s office had planned to circulate a draft order Thursday that would attribute TV joint sales agreements (JSAs) for the purposes of calculating ownership, but the item is expected to be delayed until March, an agency official told us. The order would have treated the attribution of TV JSAs the same way as for radio, counting as 15 percent toward ownership, the official said. It’s not clear why the item may be delayed. The item would also have included a further notice of proposed rulemaking on media cross-ownership, the official said.

The FCC shouldn’t appeal the U.S. Court of Appeals for the D.C. Circuit decision that struck down most of the agency’s net neutrality order (CD Jan 15 p1), said Commissioner Ajit Pai. The “better course” would be to let Congress clarify the scope of FCC authority over the Internet, he said. Pai also discussed during the appearance to be shown this weekend on C-SPAN the FCC incentive auction and repacking, broadcaster sharing agreements and hotel phone problems with dialing 911.