Monty Tayloe

It is “past time” for the FCC to enforce the conditions of the Comcast/NBCUniversal deal order and make Comcast place the Bloomberg TV network in the same neighborhood as other news networks, said the cable programmer in a filing Tuesday (http://bit.ly/1cnx7ky). “After more than 29 months, over two years longer than the 180 days provided to the Commission to review the Merger, Bloomberg respectfully requests that the Commission enforce the Condition and issue a final decision on Bloomberg’s complaint.” Though Bloomberg has argued that Comcast should have to put Bloomberg’s standard-definition networks next to other news channels, Comcast has said it should only be required to put Bloomberg TV’s HD feed there (CD Oct 11/12 p12). Bloomberg pointed out that the deal order that contains the disputed neighborhood condition expires in just over four years. “That is to say that nearly 36 percent of the time required for the conditions has been allowed to run without full and meaningful implementation by Comcast of the news neighborhood condition,” said the filing. Bloomberg said the pleading cycle ended eight months ago on a Media Bureau decision to delay enforcing the condition until after an FCC review, but the commission has yet to take the matter. The FCC website listed a matter related to the companies as “on circulation” as of February. Comcast declined to comment. An FCC official said it’s not clear if acting Chairwoman Mignon Clyburn has a different take on the dispute than former Chairman Julius Genachowski, who was in control when the matter initially came before the agency. The Bloomberg filing may indicate that the company doesn’t want to wait for the commission’s current leadership transition, said public interest lawyer Andrew Schwartzman. “Waiting is costing Bloomberg money.” Schwartzman pointed out that it could be several months before FCC Chairman nominee Tom Wheeler takes office.

The FCC is ignoring a potential interference problem in the incentive auction and failing to drive consensus, said NAB Executive Vice President Rick Kaplan in a blog post Tuesday (http://bit.ly/17AeYn2). In response to a blog post by Wireless Bureau Chief Ruth Milkman (CD June 24 p1) endorsing a variable band plan -- in which wireless and broadcast operate use the same spectrum in different areas -- Kaplan said the FCC is not considering the widely held “consensus” belief that such a plan would lead to crippling co-channel interference. “Most notably, in [the FCC’s] unyielding quest and determination for reclaiming variable amounts of spectrum in different markets, the inherent interference consequences of a variable approach are simply being ignored,” said Kaplan. “The staff steadfastly refuses to study the issue with any rigor, model it or even ask a single question about it."

The FCC’s indecency rules are too vague to survive court challenges or provide a clear definition of what constitutes a violation, said a host of filings from trade associations, broadcasters, affiliates and public interest groups on Wednesday,the deadline for comments on the commission’s indecency public notice. The Family Research Council said the commission has never defined “egregious,” while the Radio Television Digital News Association said the commission’s indecency policy is “unknown and unknowable to broadcasters, journalists, and program producers alike.” The commission must “step back from substituting its own editorial and artistic judgment for that of broadcasters and the creative community,” NAB said. “The Commission should decline to act absent a significant abuse of discretion."

The U.S. Supreme Court’s Arlington ruling won’t have as strong an effect on court challenges to the authority of government agencies as expected, said several former FCC attorneys at an FCBA event on administrative law Wednesday. Last month’s ruling (CD May 24 p1) that government agencies should receive deference from courts in interpreting ambiguous laws about their own jurisdiction “won’t have the seismic significance some people give it,” said Wilmer Hale attorney Jonathan Nuecterlein. He was formerly an FCC deputy general counsel and recently named FTC general counsel. While the ruling ostensibly expands the authority of agencies like the FCC, determined courts will be able to work around it, he said. “When courts want to second-guess agencies’ interpretation of their jurisdiction, they're going to."

FCC indecency rules are doomed to be struck down by the Supreme Court, said a group of public interest organizations that often disagree on other policies and their staff in follow-up interviews. Public Knowledge, the Center for Democracy and Technology, Electronic Frontier Foundation and TechFreedom’s filing (http://bit.ly/13TElLx) came Wednesday, when several other organizations also commented on the last day for comments on the commission’s proposed “egregious” standard for enforcing indecency rules (CD April 2 p1). “Anything the FCC does will be tied up in court so long there won’t be any broadcasters by the time it’s done,” said Berin Szoka, president of TechFreedom. “Indecency regulations should be something parents do, not the FCC.”

Sinclair agreed to buy the assets of Dielectric, the largest U.S. antenna manufacturer, as “insurance” that the broadcaster’s TV stations can continue operating, said Sinclair Vice President-Advanced Technology Mark Aitken in an interview Tuesday. Dielectric parent company SPX announced the shuttering of the antenna manufacturer in April (CD May 7 p4). Aitken said his company paid an “immaterial and leverage neutral price” of “less than $5 million” for Dielectric, which will continue operations as a wholly owned subsidiary of Sinclair, and remain in its Raymond, Maine, headquarters. Though Dielectric had stopped taking new orders, Aitken said the company had been scheduled to continue operating into July before the sale. Aitken said over 120 of Sinclair’s 140 stations use Dielectric antennas.

Federal government spectrum users can’t easily be relocated to make way for commercial uses, said NTIA Office of Spectrum Management Associate Administrator Karl Nebbia Tuesday. “These systems can’t just be uprooted.” Government and commercial uses would have to learn to share the same spectrum, Nebbia said in a Washington Post-organized panel. “Sharing is the new reality."

An FCC reconsideration of IP closed captioning rules released Friday encourages captions for video clips but wouldn’t require them. As expected (CD May 17 p3), it would delay implementing caption rules for DVD or Blu-Ray players. The order was approved by all three commissioners, though Commissioner Ajit Pai approved in part and concurred in part. Pai said the commission should not impose IP closed captioning rules on “removable media.”

Gannett and Belo may have to get FCC waivers to get approval for their deal (CD June 14 p7), said several communications attorneys in interviews Friday. The companies have market overlaps in five cities, their executives said on a conference call with investors Thursday. In Louisville, Ky., and Phoenix, Gannett would be acquiring Belo TV stations in markets where it already owns newspapers, which would put the merger squarely afoul of FCC cross-ownership rules, noted lawyers who both back consolidation generally and those opposed to it. “They're taking a very aggressive approach that is very likely to spark a challenge,” said public interest lawyer Andrew Schwartzman, who has represented Free Press in the FCC’s media-ownership review.

Gannett’s agreement to buy Belo Corp. for $1.5 billion likely will be approved by the FCC, said analysts we asked about prospects for the deal disclosed Thursday. It will give Gannett control over 43 TV stations. CEO Grace Martore said in a conference call with investors that the deal will make the “super-group” the “largest player in the top-25 broadcast markets.” Though Gannett and Belo said there are potential overlaps in five markets, the companies said the ownership of those stations would be restructured to comply with those rules. Wells Fargo’s Marci Ryvikker said in an email to investors that the restructuring would take the form of shared service agreements (SSA).