Aereo v. ABC remains too close to call (CD April 21 p3) after oral argument at the U.S. Supreme Court Tuesday, said several communications attorneys who attended the hearing in follow-up interviews. They said a decision, which may be 5-4, seems likely to hinge on what’s safest for the cloud computing industry.
The U.S. Supreme Court’s questions and responses to oral arguments Tuesday in ABC v. Aereo will provide some insight into whether the court will side with broadcasters or streaming TV service Aereo when it issues a decision this summer, said several attorneys, one of whom is involved in the case. Because broadcasters sued Aereo and similar competing service FilmOn in many venues all over the country, multiple lower courts have had the chance to issue rulings based on the same information the Supreme Court will use in its decision, and those rulings have varied widely, said Fletcher Heald appellate attorney Harry Cole. The courts have issued “complete differences of opinion based on essentially the same facts,” Cole said in a webinar examining the case on Fletcher Heald’s CommLaw Blog (http://bit.ly/1eIRjVg). That makes it hard to predict the case now, but the questions the justices will ask may shed some light on how they view the case, several attorneys said.
Those seeking to keep their joint sales agreements under the FCC’s new ownership attribution rules for JSAs will have to either show that their JSA doesn’t give one company undue control or influence over another, or accept attribution and ask for a waiver of the local ownership rule, according to an FCC official and the text of the commission’s media ownership item (http://fcc.us/1eKtYmt). Though approved at the March 31 meeting, the text of the item -- making attributable for ownership cap purposes JSAs that cover more than 15 percent of a station’s sales -- wasn’t released until Tuesday. Much attention in the intervening two weeks has focused on the specifics of the waiver policy included in the order (CD April 1 p4), with public interest groups concerned it might provide a way to get around the new rules, and FCC Chairman Tom Wheeler saying it would allow JSAs that serve the public interest to remain in place.
LAS VEGAS -- The Media Bureau will recommend the FCC issue a rulemaking on the effects of the incentive auction on low-power TV after the auction report and order is issued this spring, bureau Chief Bill Lake told low-power broadcasters at an information session Monday at the 2014 NAB Show. The proposed rulemaking notice is designed to answer questions about the impact of the auction on LPTV that the bureau can’t, Lake said. It would consider extending DTV transition deadlines for LPTV, propose authorizing voluntary LP-channel sharing, seek comment on creating digital replacement translators for full-power stations affected by the auction, and discuss offering LP stations the chance to use the FCC’s repacking software to find new channels, Lake said.
The FCC new 2014 quadrennial review doesn’t appear likely to lead to much change in broadcast ownership rules, said several broadcast attorneys, public interest officials and a broadcast executive in interviews. Though the actual text of Monday’s further rulemaking notice launching the review hasn’t been released, the information released by the FCC makes it look to many industry observers as though Chairman Tom Wheeler is kicking the can down the road on issues like cross-ownership, several told us. “The FNPRM for the 2014 quadrennial review recommends retaining the FCC’s existing ownership rules virtually intact,” said blog of the Wiley Rein law firm.
Opponents of a draft order to make joint sales agreements (JSAs) attributable have zeroed in on Commissioner Mignon Clyburn as their best chance for limiting the effects of the eventual JSA rule, set for the FCC’s March 31 (CD March 18 p5) agenda, several broadcast attorneys told us. There’s a widespread industry perception that Clyburn is torn between limiting abuse of sharing arrangements and keeping them alive as a tool for encouraging minority ownership. Industry attorneys and public interest officials said the order was likely to be passed in some form by a 3-2 vote, with Clyburn’s support.
Increased competition in the video industry may have undermined the basis for must-carry rules, argued Latham Watkins cable attorney Matthew Brill at a Federal Communications Bar Association continuing legal education event Monday evening. Recent federal court opinions in cable program carriage cases Comcast v. FCC (CD May 29 p1) and Time Warner, NCTA v. FCC (CD Sept 5 p4) have said that cable’s decreasing market power is eroding the legal basis for many of the provisions from the 1992 Cable Act designed to protect broadcasters, Brill said. Along with recent program carriage cases, the FCBA event touched on Aereo’s case before the Supreme Court.
FCC Chairman Tom Wheeler likely has the votes to get approved the draft order to tighten restrictions on sharing arrangements and limit joint negotiation of retransmission consent agreements, said several communications attorneys and industry observers in interviews Friday. It’s unlikely that Wheeler would have rolled out the planned regulation on Thursday (CD March 6 p7), several days before the required “white copy” date, without believing he had the Democratic commissioners’ votes needed to pass the rules, the industry observers said. Republican commissioners Mike O'Rielly and Ajit Pai have both indicated that they oppose rule changes to make sharing arrangements attributable, and industry officials said they expect no votes.
An order to make TV-station joint sales agreements (JSAs) attributable for calculating ownership caps and to prohibit joint negotiation in retransmission consent agreements will go on circulation Monday, the FCC said. Also on circulation then will be an FNPRM seeking comment on shared services agreements (SSAs) and FCC ownership policies that kicks off the 2014 quadrennial review of media ownership, the commission also said Thursday. The FNPRM proposes retaining the current dual-network rule and the local radio rule, tentatively concludes that cross-ownership rules for newspapers and TV stations should remain, and asks whether to eliminate rules against newspaper/radio and the radio/TV combinations rule “in favor of reliance on the local radio and local television rules,” a senior commission official told reporters Thursday. Broadcasters criticized the draft order, while pay-TV interests seeking changes to retrans rules cheered it.
Commissioner Ajit Pa highlighting a joint sales agreement’s (JSA) beneficial effect on a noncommercial TV station owned by an historically black college is a message to the commission’s Democratic members, said several broadcast attorneys in interviews Wednesday. Their clients don’t want the FCC to make attributable for ownership quotas JSAs. Chairman Tom Wheeler is said to be likely to seek such attribution in an order that might circulate Monday in time for the March 31 commissioner meeting (CD Feb 25 p1).