Correction: The group of which Randolph May is president is the Free State Foundation (see 1602110054)

The FCC blocked three Class A broadcasters from participating in or receiving repacking protection during the incentive auction and disqualified an additional Class A broadcaster as expected, in a recon order issued Friday (see 1602090060). The order was approved 3-2, with Commissioner Ajit Pai dissenting and Commissioner Mike O’Rielly dissenting in part. The recon petition from Fifth Street Enterprises, Videohouse and WMTM was denied as being procedurally improper and because participation in the auction is up the FCC's discretion, said the recon order. Latina Broadcasters’ WDYB Daytona Beach, Florida, had been listed as included in the auction, but the FCC decided Latina missed the 2012 deadline to file for Class A status just as the other broadcasters did, the recon order said. The broadcasters behind the recon petition didn't file for Class A status in time for the 2012 deadline (see 1601250060) that was required for stations to be eligible for the incentive auction. Latina did file for Class A status in time but allowed the underlying construction permits to expire, and then filed a low-power TV application instead of a Class A one. That means Latina wasn't pursuing Class A status by the deadline, the recon order said. The decision to remove protection while maintaining it for a similarly situated Class A station which is included in the auction, is "utterly indefensible," said Pai in his dissent. "It is impossible to reconcile the Commission's ostensible support for promoting diversity with such shabby treatment of one of the few television stations owned by a Hispanic woman.”

Charter Communications is pushing back at critics of its proposed takeovers of Bright House Networks and Time Warner Cable, meeting with the FCC to rebut arguments raised against the deals. Separately, it received some ammunition in its arguments from Discovery Communications, which also met with the FCC to say claims that New Charter might try to use its power to keep Discovery content from rival multichannel video programming distributors are off base. In an ex parte filing posted Wednesday in docket 15-149, Charter said executives met with FCC staff including General Counsel Jon Sallet and Media Bureau Chief Bill Lake to address individual filings by such critics as Incompas, Nvidia, TiVo (see 1601220017) and Time Warner Inc. (see 1601140033). Incompas' arguments that cost savings that New Charter would enjoy could hurt broadband competition aren't backed by any evidence and depend "on the questionable assumption that a provider's decision to enter a particular market depends on the incumbent providers' costs," Charter said. It also said there's no basis for conditions requiring New Charter support of CableCARD since it plans "to purchase, distribute and service CableCARDs ... for years to come." And Charter said it "has been transparent and unequivocal" that it backs the rise of over-the-top services like HBO Now since they drive broadband demand, and thus has no motive to harm OTT. It also disputed Nvidia claims Charter has blocked access to TV Everywhere apps to disadvantage Nvidia's Shield TV device. Discovery, in a separate ex parte filing Thursday in the docket, said it told commission staff -- including Lake and Owen Kendler, who's heading the FCC working team overseeing the deals' review -- that it has no incentive to withhold programming from any MVPD and though John Malone and BHN owner Advance/Newhouse own equity stakes in both Discovery and Charter, the programmer "has made many deals with alternative distribution providers" and that it doesn't vary its pricing across regions in a given MVPD contract to target any overlapping Charter areas. Withholding its programming from a rival MVPD to benefit Charter would hurt Discovery's top line and would cause only limited switching to New Charter, it said. Given the decline in linear TV viewing and the growth of OTT platforms, "cutting back on reaching viewers through these platforms would harm [its] ability to evolve with the changing video marketplace," Discovery said. In ex parte filings Thursday in the docket on meetings they had with FCC officials (see here and here), Charter/TWC/BHN foes Stop Mega Cable coalition and the Writers Guild of America, West said the deals would give New Charter too big a hold on the U.S. broadband market and incentive to stifle growth in the online video market.

The FCC improved administrative efficiency and advanced policy goals last year, Chairman Tom Wheeler said in the agency's FY 2015 Annual Performance Report released Thursday. "We are making decisions faster, improving speed of disposal on routine matters, expanding electronic filing and distribution, decreasing backlogs, and improving responsiveness to consumers," Wheeler said. On policy, he said FCC decisions continue to "help American consumers, enhance U.S. competitiveness, and improve our innovation economy." He highlighted FCC actions to make more spectrum available for broadband, uphold net neutrality, revamp USF subsidy mechanisms, approve AT&T's buy of DirecTV with conditions, help the disabled use communications technologies and protect consumers from unwanted phone calls. The report said the commission met its speed of disposal (SOD) goals 98 percent of the time, processing 853,415 applications and complaints in FY 2015. The Office of Engineering and Technology led with a 99.9 percent SOD success rate, followed by the Wireline Bureau at 99.3 percent. Wheeler said the commission adopted an Enforcement Bureau "modernization plan" to concentrate "reduced" resources where they're needed the most, in "areas with the greatest spectrum density." The plan "refocuses field staff on the resolution of public safety and other interference issues. Once implemented, this plan will save millions of dollars annually. We will apply these savings to modernize the equipment used by the field so they can handle the interference issues in the new shared spectrum environment," he said. On the controversial scaling back and closure of Enforcement Bureau field offices, the report said the bureau, Office of Managing Director and "expert outside consultants conducted a thorough, data-driven analysis of the agency’s field operations to maximize the effectiveness of those operations, align them to the overall mission and priorities of the FCC, improve equipment and advanced technologies for field agents, and ensure the most efficient use of the agency’s resources." A Communications Daily Special Report: "Portrait of the FCC in a Partisan Era" said some believe unauthorized "pirate" radio operations are flouting rules because the scaled-back bureau downgraded the importance of such interference enforcement (see 1512150014). As discussed elsewhere in the Special Report (see 1512150040), some bureaus lagged FCC goals by not keeping backlogs low. Last fiscal year, the new report said, the Media Bureau met SOD goals 85 percent of the time, and the International Bureau 76 percent, though the latter's performance was affected by consultations with the executive branch over foreign ownership.

Technology companies such as Apple and Google are in the Newspaper Association of America crosshairs over use of advertising blockers and fair-use copyright issues, NAA CEO David Chavern said at a Media Institute lunch Wednesday. Chavern said NAA is talking to Apple about its use of ad blockers in Apple News, and plans similar conversations with other companies. "You've got to keep letting my guys make money," Chavern said. "That keeps the reporting coming. ... At some point, we've got to get back to talking about fair use for my members." Apple didn't comment. Chavern became CEO in October and said a good portion of his job has been to evangelize about the traditional news business. "Facebook isn't going to interview the quarterback," he said. "Google's not going to interview the mayor. They don't want to." A key reason, Chavern said, is the difficulty in creating a newsroom: "That's going to be really, really expensive. Incumbency has its advantages." Despite woes about the state of the newspaper industry, Chavern said, "It's not the coal industry, it's not travel agents. People want the product." Newspapers, even with declining print circulations, are somewhat the envy of digital businesses, Chavern said, because those print operations still are profit generators -- something digital businesses find elusive. But he said the decades of enjoying 35-plus percent profit margins are gone, and newspaper companies must resign themselves to that. "It may not ever get to that again," he said. "It doesn't have to be that [level]." Given that all of the 2,000 newspapers that make up NAA are "experimenting like crazy" and generally don't compete much among one another, Chavern said, "there's an incredible opportunity for knowledge sharing," with that being one NAA goal. He previously spent nine years as U.S. Chamber of Commerce chief operating officer, and spent part of his talk discussing the ins and outs of lobbying. "This is a tough environment for advocacy," Chavern said, saying much of the job involves laying the groundwork for when legislative action has a better likelihood of passage.

Google Fiber's choice of Kansas City, Kansas, for its first fiber project taught Sen. Jerry Moran, R-Kansas, that his job is to take actions that help "keep barriers low and costs less" for industry innovators, he said. That recipe is what convinced Google to pick Kansas City for its fiber deployment, said Moran, a Commerce Committee member, speaking at the Incompas conference Wednesday. Google Vice President-Access Services Milo Medin said Google was looking for "a place that's easy, not just from a construction standpoint" but that would "work with us and get things done." He said Google looked at Kansas City's permitting rules, pole-attachment policies and other "boring things" that really matter, and decided it was the best choice among 1,100 communities that competed for the company's initial fiber foray, which was followed soon thereafter by Kansas City, Missouri, and by moves in Austin and some other cities. He said one of the keys was a "demand model" that invited consumers to commit to the fiber service, and thereby aggregate demand. Medin, who worked on the Kansas City project, said he's now working more on wireless issues. He said much of the industry's focus is on using low-band frequencies for broad coverage and building penetration but higher-band frequencies for making smaller cells that allow spectrum to be re-used. He lauded the FCC's 3.5 GHz band effort to find ways to share government spectrum with private users. He said most of that spectrum traditionally was used for naval radar, and specifically aircraft carrier air-traffic control. "Have you ever seen an aircraft carrier in Kansas?" he kidded Moran. Medin said sharing arrangements were an innovative way to avoid the traditional, protracted battles where industry seeks to take over government spectrum. He said the sharing arrangements can actually be a "win-win" because they allow government communications users to better "leverage" commercial innovations that had escaped them.

The American Cable Association and Wireless Internet Service Provider Association proposed alternative criteria the FCC could use to identify banks that could issue acceptable letters of credit (LoC) for "smaller experience service providers" (SESPs) seeking to participate in a planned reverse auction of Connect America Fund Phase II broadband/voice subsidies for rural areas traditionally served by price-cap carriers. "The bank should be [Federal Deposit Insurance Corp.] or [Federal Credit System Insurance Corp.]-insured and should meet the 'Well-Capitalized' Prompt Corrective Action threshold under Base III Capital Adequacy Standards," ACA and WISPA said in a filing Tuesday in docket 10-90. The groups said the alternative criteria would expand the base of potential banks issuing acceptable LoC from 63 under the FCC proposals to 6,195 "and provide more reliable and verifiable indicators of bank viability." The groups said they are concerned the FCC financial requirements for bidding "will deter, if not preclude" SESPs from participating in the auction.

As next Thursday's FCC meeting approaches where a set-top box NPRM may be considered on making it easier for consumers to get encrypted TV content carried through the boxes without getting one from their multichannel video programming distributor, MVPDs with concerns about any rules and NPRM backers are lobbying the agency. That is according to ex parte filings posted Tuesday and Wednesday in docket 15-64. If the FCC moves forward with its proposals for the set-top market, it should seek comment on possible exceptions for smaller cable operators, said the American Cable Association in meetings with aides to Chairman Tom Wheeler and Commissioners Jessica Rosenworcel, Ajit Pai and Mike O’Rielly. “At a minimum,” the FCC should “tentatively conclude that all-analog systems should be exempt from any new requirements,” ACA said. The agency's proposals would “directly interfere with and jeopardize” its ability to provide programming for Latino viewers, programmer Hola TV wrote Wheeler. “The proposal would allow some large Internet companies to unilaterally take our content without our approval, or compensation, disassociate it from existing negotiated channel placements, and enable those entities to sell intrusive advertising absent a mechanism to share any revenue with programmers." Dish and EchoStar don’t oppose “exploration of the [Downloadable Security Technology Advisory Committee]’s recommendations regarding adoption of competitive navigation devices,” they said jointly. The FCC shouldn’t adopt “overly simplistic solutions that could damage competition and hinder innovation,” Dish and Echostar said in a meeting with staff from Clyburn’s office. Pai should vote for the NPRM, said the Consumer Video Choice Coalition in a meeting with him, according to an ex parte filing. “The Coalition has proven that competition holds the technology solution for ending the era of forced set-top box leasing from large incumbent" multichannel video programing distributors, said the filing. By moving forward with the NPRM, the FCC “will be fulfilling its mandate” in Section 629 of the Communications Act to “ensure that consumers have access to competitive devices that are interoperable with MVPD networks,” the CVCC said. Coalition members include Google, Incompas, Public Knowledge and TiVo, its website said. Another group, begun the day FCC Chairman Tom Wheeler said he would circulate the NPRM (see 1601270064), includes ACA, Dish, MPAA and NCTA, its website said.

Cable and broadcast interests lobbied the FCC on the Telephone Consumer Protection Act, from which they and others have been seeking exemptions so their routine communications won't run afoul of TCPA, said filings posted Tuesday in docket 02-278. The law shouldn't apply to informational, noncommercial, nonadvertising and nontelemarketing autodialed and prerecorded messages sent by educational institutions because those calls are made for “emergency purposes," said Hubbard Broadcasting of its meeting with Commissioner Mignon Clyburn and others at the FCC in support of Blackboard's request along those lines. The FCC should ensure that any relief granted isn't limited only to certain schools, but also extends to all schools that utilize the services of any entity that performs the same critical messaging function as Blackboard, the broadcaster said. For example, the relief should extend to service providers like broadcasters that work directly with schools to send critical school-related public safety announcements, such as school closings, it said. NAB and NCTA, meanwhile, said their lawyers met with Consumer & Governmental Affairs Bureau staffers urging the commission to act on waiver petitions to address concerns members have about the TCPA. NCTA and NAB members face uncertainty about TCPA compliance issues and litigation arising under the current interpretation of the law "when a company had written prior express consent that, due to the confusion recognized in the 2015 Order, may not have met all of the requirements for a 'writing' as specified in the rules as amended by the 2012 TCPA Order," they said. NCTA is among those that have sought a waiver (see 1511040051) from the TCPA, which covers what are sometimes called junk calls to consumers who don't want the marketing messages.

The first FCC Technical Advisory Council meeting of 2016 will be March 9, with TAC scheduled to discuss its proposed work program for the year, the agency said in a notice in the Federal Register Tuesday. The meeting will be 12:30-4 p.m. at agency headquarters and also transmitted live with open captioning over the Internet at www.fcc.gov/live/, the FCC said. TAC in 2015 recommended the FCC expand its Measuring Broadband America program to also consider quality of service and quality of experience measurements in addition to measuring connection speeds (see 1512090067).