The FCC’s administrative hearing process increasingly results in huge discovery requests that can be expensive for entities with matters before the agency’s administrative law judge and faces an uncertain future due to a host of recent administrative law cases, panelists said during a Federal Communications Bar Association virtual event Tuesday. Discovery is the most time-consuming part of the process, said FCC ALJ Jane Halprin. In addition, the expense of pursuing a lengthy case before the ALJ is sometimes more than many licensees can stomach, said Smithwick and Belendiuk attorney Arthur Belendiuk during a separate panel. “Even if you win, you might lose,” he said.
Rising opposition to diversity, equity and inclusion policies puts the latest iteration of the Communications, Equity and Diversity Council in a difficult position, said several CEDC members Wednesday during the group’s first meeting under its new charter. “We have always been challenged in our work, but I cannot remember a time that we have been so challenged,” said former FCC Commissioner Henry Rivera, who has served on every FCC diversity committee dating to the 1980s.
A combined $1.8 million proposed forfeiture for Nexstar and sidecar operation Mission broadcasting over Mission’s station WPIX New York will likely create uncertainty about similar arrangements that other broadcasters use, though attorneys and the FCC say Thursday’s notice of apparent liability is narrowly targeted. “We stress that the decision we reach today is limited to the facts before us and the relationship between Nexstar, Mission, and WPIX,” said the NAL. On the other hand, “If you’re a broadcaster with a sidecar, you’re saying ‘uh oh,’” said Holland & Knight attorney Charles Naftalin. Nexstar said it will dispute the enforcement action “vigorously.”
A draft order on circulation that would update the FCC’s foreign-sponsored content rules in response to a July 2022 U.S. Court of Appeals for the D.C. Circuit ruling against the agency could be interpreted to require that entities buying political issue ads must first show broadcasters they aren’t foreign agents, broadcast and FCC officials told us. That language could change before the item is approved, although when it will be voted on is unclear, FCC and industry officials said. The draft item “just creates more questions,” said Gray Television Senior Vice President Robert Folliard.
Trade groups critical of the FCC’s digital discrimination order disagreed Wednesday with members of its Communications Equity and Diversity Council about the order’s breadth. The order “covers every aspect” of an ISP’s service and could lead to companies slowing the rollout of service in some communities to avoid the appearance of discrimination, said Diana Eisner, USTelecom vice president-policy and advocacy, at an FCBA CLE. “Given the scope of the problem,” it was appropriate for the FCC to create a rule that could tackle multiple forms of discrimination, said Leo Fitzpatrick, policy analyst at The Utility Reform Network and a former CEDC member.
FCC Commissioner Anna Gomez received a waiver of her White House ethics pledge that will allow her to vote on agency enforcement items involving clients at her former employer, prominent telecom law firm Wiley.
FCC commissioners voted 3-2 Thursday, over dissents by Brendan Carr and Nathan Simington, to approve the agency's Telecom Act Section 706 report to Congress. The report concluded that broadband isn't deployed in a "reasonable and timely fashion," with about 24 million Americans lacking access to speeds of at least 100/20 Mbps. The two Republicans also dissented at the commissioners' open meeting on a proposed requirement that cable and satellite TV multichannel programming distributors display prominently the aggregate cost of video programming in ads and customer bills.
An FCC proposal prioritizing processing of applications from broadcasters that offer local programming (see 2401180074) won’t have much of an effect and doesn’t do enough, according to a wide swath of comments filed to docket 24-14 by Monday’s deadline.
An FCC proposal requiring that MVPDs reimburse customers for programming affected by retransmission consent blackouts (see 2401170072) is outside the agency’s authority, unworkable, and would lead to higher prices for subscribers, said MVPDs and MVPD trade groups in comments filed in docket 24-20 by Friday’s deadline. The rebate proposal would be an “unnecessary government intrusion into already difficult negotiations” and “disrupt the marketplace by placing the government’s thumb on the scale to the detriment of cable subscribers,” said NCTA.
An FCC draft NPRM proposing an emergency alert system code for missing adults is headed for unanimous approval with few changes at the commissioners' open meeting Thursday, agency and industry officials said (see 2402210066). The proposed Missing and Endangered Persons code (MEP) alert would be used for missing people older than 17 with special needs and circumstances or who are endangered, abducted or kidnapped. It is intended to fill a gap between Amber Alerts used for missing children and seniors' Silver Alerts. MEP would respond to the rising problem of missing and murdered indigenous people, said the draft NPRM. The item has drawn little ex parte activity since last month's circulation.