Monty Tayloe

The FCC should take action against Comcast’s use of data caps in “test markets” and start monitoring usage-based pricing, Public Knowledge said Thursday in a letter to acting Chairwoman Mignon Clyburn (http://bit.ly/150H1EE) and in a blog post(http://bit.ly/17NjeLl). Video viewed online as part of Comcast’s Xfinity service on an Xbox 360 or TiVo doesn’t count against Comcast’s data caps, said Public Knowledge Vice President Michael Weinberg in an interview Thursday. That violates conditions of the Comcast/NBCU merger designed to protect competition in online video and undermines “the ability of video providers unaffiliated with ISPs to compete with those video providers that are also ISPs,” said Public Knowledge’s letter. In the letter, Weinberg asked the FCC to take action on a Public Knowledge petition filed on the matter a year ago (CD Aug 12 p2). “The FCC has a responsibility to at least investigate if their merger conditions are being violated,” Weinberg told us.

The FCC doesn’t have to wait for a full rulemaking proceeding on shared services agreements (SSAs) to rule against the ones associated with the Gannett/Belo merger, said the American Cable Association, Time Warner Cable, DirecTV and multiple public interest groups in reply comments filed in docket 13-189 Tuesday. To avoid overlaps that would conflict with media ownership rules, the terms of the merger call for some TV stations involved in the transaction to be transferred to other companies but still share services with Gannett under SSAs (CD July 26 p1).

An ownership discount for VHF TV stations could encourage participation in the incentive auction, said a broadcast attorney and a broadcast engineer in interviews Thursday. Such a discount is among the items the commission would seek comment on in a draft NPRM on eliminating the existing UHF discount for calculating the 39 percent national ownership cap (CD Aug. 14 p1). Since UHF stations became more desirable for broadcasting than VHF stations following the DTV transition, and freeing up UHF spectrum is one of the incentive auction’s goals, a VHF discount might be intended to encourage more stations to participate in the auction, said Fletcher Heald broadcast attorney Frank Jazzo. An ownership discount for VHF stations “could make it a lot more desirable for stations to move to VHF,” said Bob du Treil, president of engineering firm du Treil Lundin.

A draft FCC NPRM on the UHF discount proposes grandfathering existing companies but applying a new nationwide ownership limit calculation to any deals pending between the rulemaking’s issuance and when an order is adopted, FCC officials told us Tuesday. Deals pending now with Tribune’s buying Local TV and Sinclair’s buying Allbritton’s TV stations could put those companies close to or over the 39 percent nationwide ownership cap on U.S. viewers reached by a broadcaster, said market research firm BIA/Kelsey. Tribune/Local TV would be at 42.7 percent, while Sinclair would be just under the cap at 38.2 percent, said BIA/Kelsey. If the rule is approved in the form proposed in the NPRM (CD Aug 6 p1), it could affect Tribune/Local TV and others coming down the pike, said SNL Kagan analyst Robin Flynn. “This sounds like changing the rules in midstream."

Industry interest is high in an NPRM on circulation that would end the UHF discount for broadcast ownership, but attempts to lobby the FCC on one side or the other haven’t yet begun, said agency and industry officials. Although the eighth floor has received many phone calls for information about the item, there hasn’t been any substantive advocacy, said an FCC official. If the discount is revoked, large broadcasters such as Sinclair could find themselves close to the 39 percent national ownership cap, and a pending purchase by Tribune of Local Broadcasting would leave the new company at 44 percent, public interest groups have said (CD July 2 p2). Large companies that could be affected by the deal are likely waiting for an NPRM to be issued with specific language, said a longtime industry official who lobbies the FCC. The status of existing broadcast operations and pending transactions is one of the questions asked in the NPRM (CD Aug 6 p1). Companies may be “keeping their powder dry” until they have something to respond to, said the lobbyist.

Petitions asking the FCC to reject a proposed $1.5 billion deal between Gannett and Belo because it depends on shared service agreements (SSAs) are an effort to “hijack” the transaction to “advance broader policy goals,” said Gannett in an opposition comment. It was filed alongside similar ones from Belo and affiliated companies Sander Operating Co. and Tucker Operating Co. in docket 13-189 Friday. Under the terms of the Belo’s purchase by Gannett, some of the stations involved in the transaction will be transferred to Sander and Tucker but still share services with Gannett under SSAs (CD July 26 p1). The American Cable Association, Time Warner Cable and DirecTV asked the commission to deny the deal to keep retransmission consent fees down, while a host of public interest groups filed a petition arguing that the FCC should stop companies from using SSAs to get around cross-ownership rules. The petitions are a “stale and overblown rehash of policy positions” from the 2010 Quadrennial Review and the retrans proceeding, said Belo’s filing.

Trade associations and consumer groups continued to argue over proposed accessibility rules for user interfaces and program guides, in filings in docket 12-108 Wednesday, the last day for reply comments to be filed in the rulemaking to implement section 204 and 205 of the 21st Century Communications and Video Accessibility Act (CVAA).

A study on the impact of newspaper-broadcast cross ownership on minority and female media owners by the Minority & Media Telecommunications Council may be based on outdated and inaccurate information, said Free Press in filings submitted to the FCC Tuesday in response to a Media Bureau request for comment on the study (http://bit.ly/176c9oM). Using information on the study’s participants submitted to the commission by MMTC under a protective order to secure survey respondents’ identities (CD July 29 p11), Free Press found that MMTC may have “erroneously identified certain stations as female and/or minority owned” and could have had business relationships with some of the respondents. The council’s reply comment on its study included a footnote (http://bit.ly/1cw6bUg) that said Free Press’s new allegations are “false and frankly outrageous” and “have no merit.” MMTC had no further comment Wednesday.

The FCC should reform the way it receives and processes indecency complaints, said several broadcasters, associations and other groups in replies to the commission’s public notice on proposed changes to its indecency policy and in follow-up interviews. Using a “community standard” for indecency is “inherently unreliable” when organizations “can send out an e-blast resulting in several thousand of its base submitting an electronic complaint to the FCC,” said the Writers Guild of America. A group that encourages members to file indecency complaints said otherwise. Every indecency complaint “comes from the affirmative action and efforts of an individual American citizen who enjoys full ownership of the broadcast airwaves and thus has a right to a say in how they are used,” said the Parents Television Council (PTC).

A draft rulemaking notice that could lead to elimination of the UHF TV ownership discount listed as on circulation at the FCC may partially be a reaction to a recent spate of broadcasting mergers, said broadcast attorneys in interviews Monday. They said the change in the value of UHF stations since the DTV transition also could be a reason for the FCC to nix the discount. With the Sinclair/Allbritton and Tribune/Local TV deals brushing against or even exceeding the 39 percent ownership cap without the discount, according to Free Press, the commission may be trying to eliminate the UHF discount in advance of ruling on those mergers, said Fletcher Heald broadcast attorney Peter Tannenwald.