NTCH urged the FCC to ensure that the FCC order streamlining tower construction rules near AM stations prohibits retroactive rule application. The order was approved by commissioners this year (CD Aug 20 p4). The order has changed the legal landscape for existing tower owners and operators “by promoting unlawfully retroactive application of the new rules in certain situations,” said NTCH in a petition for reconsideration posted Thursday in docket 93-177 (http://bit.ly/1dxstCq). The FCC’s retroactive action injects a potentially massive new cost into the tower financial equation “that could never have been anticipated by either the tower owners or the tenants on the towers; the entire basis of the economic relationship will have been upset,” it said. “Neither NTCH nor the public at large was provided notice of the potential for retroactive application of the new protection scheme.” The FCC had no comment.

Time Warner Cable petitioned to be exempted from municipal-video rate regulation in six California communities. The Media Bureau should find the operator’s systems in Indio, Palm Desert, Rancho Mirage and elsewhere face sufficient video competition because of rival services from both U.S. DBS companies and Verizon, said the request posted Thursday in docket 12-1 (http://bit.ly/1kGQV6H). It said the communities had about 90,000 occupied households total as of the 2010 census.

Aereo’s decision not to oppose broadcasters’ attempt to seek review by the U.S. Supreme Court of their case against the streaming TV service increases the possibility that the court will review the case, said Stifel Nicolaus analysts. Broadcasters filed a cert petition asking the high court to overturn a 2nd U.S. Circuit Court of Appeals decision that rejected a preliminary injunction against Aereo (CD Oct 15 p15). “We believe the justices are generally reluctant to review appeals of preliminary injunction decisions and so far there is no circuit split, which can invite high court review,” Stifel said in a research note (http://bit.ly/1jY0Hnl). This may change if the 9th U.S. Circuit Court of Appeals soon upholds a district court decision to grant broadcasters a preliminary injunction against FilmOn X, an Aereo-like service, said the analysts. These actions could spur retransmission consent changes next year, they said. If the broadcasters don’t shoot down Aereo’s service in court, “they could start to push hard for Congress to write new legislation to ensure they receive Internet video provider payments for their programming,” they said. The “largely-unaddressed ‘copying’ element of broadcasters’ lawsuit makes this case too early-stage for Supreme Court review,” said Guggenheim Partners analyst Paul Gallant. The courts have barely begun addressing broadcasters’ argument that Aereo’s system makes unlawful copies of broadcasters’ shows, he said in a research note. If the Supreme Court is going to rule on Aereo next year, “it probably needs to announce by January that it will hear the case,” he said. If broadcasters win, the Aereo threat is extinguished, he said. “If broadcasters lose, they can seek legislative change by Congress, where they would likely have the upper hand.” FilmOn X asked the 9th Circuit to overturn a preliminary injunction against it (CD Aug 29 p5). A similar appeal in the U.S. Court of Appeals for the D.C. Circuit also is pending (CD Sept 13 p22). Public Knowledge, Electronic Frontier Foundation and Engine Advocacy urged the U.S. Court of Appeals for the D.C. Circuit to overturn a decision by the U.S. District Court in Washington. The law doesn’t grant copyright holders complete control over the distribution and quality of their works, they said in a friend-of-the-court brief (http://bit.ly/1dxK5hx). “Fair use allows the public to make copies of varying quality in many circumstances, including home recordings of TV programs.” The existence of a service like FilmOn X “does not appreciably increase the risk of a broadcast program being redistributed illegally on the Internet by third parties,” it said. In a separate brief, the Computer & Communications Industry Association, Center for Democracy and Technology and other groups asked the court to approach the case in a way that preserves the holding and principles of the Cablevision case, during which an appeals court found that Cablevision doesn’t infringe copyright by launching a DVR service. The court should avoid any legal theories “that would cast a pall over wide swaths of the modern technological landscape, including the burgeoning cloud computing industry,” they said. CTIA, USTelecom and the Internet Infrastructure Coalition filed along with CCIA and CDT. The groups aren’t taking a stance on either party, they said.

The FCC found Intelsat apparently liable for a $112,500 fine by permitting another entity to assume its position in the processing queue for a geostationary orbit-like satellite license. Intelsat failed “to maintain the continuing accuracy and completeness of information furnished in an application pending before the commission,” said a notice of apparent liability (http://bit.ly/JgG1sE). The NAL pertains to a first-in-line application of the Galaxy 28 satellite and the proposed Galaxy KA satellite. Commissioner Ajit Pai who dissented said he is skeptical of the FCC’s conclusion. The FCC alleges that Intelsat violated rules by taking action to “transfer, assign, or otherwise permit ViaSat to assume its place in the GSO-like satellite licensing queue in apparent violation of the rules,” he said (http://bit.ly/1gwjUg7). However, any such action took place “no later than March 2, 2010, when Intelsat amended its application for the Galaxy KA satellite, thus moving ViaSat to the head of the queue,” he said. Since more than one year elapsed since that date, “I do not believe that the commission may impose a forfeiture penalty,” he said.

The FCC should try out important rule changes in small-scale “policy sandboxes” before issuing decisions, incentivize efficient use of spectrum, and take steps to attract up-and-coming engineers, Commissioner Jessica Rosenworcel told the IEEE at its Global Communications Conference Wednesday (http://bit.ly/1gt0OYa). “What if instead of always relying on the big reveal, we set up small-scale policy experiments?” asked Rosenworcel. “What if we examined the effects of new rules before unleashing them all at once?” The commissioner pointed to experimental spectrum licenses as an area where the FCC is already encouraging trial phases for new ideas and said the concept might also expedite the authorization process for new radio equipment. “Because the number of devices in this process is expanding, our systems deserve an update to meet this demand,” said Rosenworcel. “By moving new devices through our approval process more quickly we can move them from sandbox to market much faster.” Small-scale policy experiments could also “kick-start” the IP transition, Rosenworcel said. “After all, big issues are at stake -- how to foster deployment, how to spur investment, and how to best serve consumers,” she said. The FCC should work with carriers to come up with location-specific and service-specific IP trials, she said. “Trying them out on a small scale just makes sense.” To increase the efficiency of spectrum, the FCC should hold a contest, with a prize of 10 MHz of mobile broadband spectrum to be awarded to the first person to make spectrum use below 5 GHz 50 times more efficient over the next decade, Rosenworcel said. “Think of it as [White House education incentive program] Race to the Top, the Spectrum Edition,” she said. The prize is worthwhile, because “if the winner can truly use spectrum 50 times more efficiently, they can make their 10 MHz do the work of 500 MHz,” she said. Rosenworcel also said the FCC could benefit from an influx of engineering talent. The commission should establish an engineering analog to its honors attorney program, she said. “By mixing young men -- and women -- with experienced engineers already on staff, the FCC could be better prepared to face the challenges of next generation communications networks,” said Rosenworcel.

The FCC admonishment stands against the receiver of WHNR(AM) Cypress Gardens, Fla. (CD April 10 p23), said a Media Bureau decision Thursday (http://bit.ly/1aZYwI5). An April request of George Reed to nix the admonishment was dismissed, said the order, signed by Audio Division Chief Peter Doyle. Also, “the April Petition is based on facts that were in existence and known by Reed at the time of his last opportunity to present such matters,” wrote Doyle. Reed had been admonished for not giving the commission a copy of an order about such a transfer of control from a Florida court (CD July 5 p7).

The “the unacceptable number of senior level vacancies” currently within the Department of Homeland Security are a “serious threat” to the department’s ability to complete its mission on issues that include cybersecurity, former Homeland Security Secretary Tom Ridge told the House Homeland Security Committee Thursday. More than 40 percent of DHS’s senior leadership positions are vacant or are being filled by a temporary replacement. Nominees for some positions, including Homeland Security Secretary nominee Jeh Johnson, await confirmation in the Senate. The Senate could vote on Johnson’s nomination this week. Homeland Security Committee Chairman Michael McCaul, R-Texas, said during the hearing that these vacancies “have a negative impact on mission effectiveness and employee morale.” The Government Accountability Office has found that morale is low across the agency’s departments. Morale within the National Protection and Programs Directorate, which leads DHS’s cybersecurity efforts, scored below the government-wide average, said David Maurer, GAO director-Homeland Security and Justice Issues. Ridge said the White House needs to “better anticipate” vacancies within DHS and vet possible candidates in a “thorough but timely manner,” while the Senate needs to consider nominees “in a timely manner” and not use the confirmation process for “political gamesmanship.” The hearing was a day after McCaul and committee ranking member Bennie Thompson, D-Miss., introduced the National Cybersecurity and Critical Infrastructure Protection Act (HR-3696), which would codify DHS’s existing collaboration efforts with the private sector, including information sharing regarding cyberthreats, but would not give the agency new powers. House Cybersecurity Subcommittee Chairman Pat Meehan, R-Pa., and subcommittee ranking member Yvette Clarke, D-N.Y., were original cosponsors of the bill (http://1.usa.gov/1gthI9g).

EU law requiring storage of e-communications traffic data seriously interferes with citizens’ fundamental right to privacy and should be suspended until it’s fixed, said European Court of Justice (ECJ) Advocate General (AG) Pedro Cruz Villalón Thursday in an opinion (http://bit.ly/18nKR2G). The ECJ isn’t bound by its advisors’ opinions but generally follows them. The case involves challenges in Ireland and Austria to those countries’ versions of the EU data retention directive, which their respective high courts referred to the ECJ. Taken as whole, the measure is incompatible with the requirement in the EU Charter of Fundamental Rights that any limitation on the exercise of such a right must be provided for by law, the AG said. Use of retained data could make it possible to create a faithful map of much of a person’s conduct or even a complete picture of his private identity, and it could also increase the risk that the data may be used for unlawful purposes, he said. The directive doesn’t require that the data be retained in the territory of an EU country, so it could be held anywhere in cyberspace, he said. Given its serious impact on privacy rights, the legislation should have defined the fundamental principles on which access to the data collected and held would be based, instead of leaving that task to each individual country, he said. Another problem is that the law requires EU members to ensure that data is kept for up to two years when evidence showed here’s insufficient justification for such a long period, the AG said. Instead of advising the ECJ to strike down the law, however, he recommended that it be suspended until the EU remedies the problems. Digital Rights Ireland (DRI), which brought one of the challenges, said it’s happy with the opinion but would have preferred that the AG find the directive unlawful in principle, which he didn’t do, Chairman TJ McIntyre told us. If the ECJ upholds the opinion, it will strike down the directive, he said. The AG wants governments to have a grace period in which to change their laws, but DRI hopes that, given the political climate surrounding former U.S. NSA contractor Edward Snowden’s revelations, there’s enough political opposition to data retention for the law to die, he said. When DRI launched its challenge seven years ago data storage wasn’t a big issue, but the political scene is different now, he said.

Getting information needed for effective sharing of spectrum between government and commercial users “will be more difficult in some cases then others,” said the Commerce Spectrum Management Advisory Committee’s Spectrum Management via Databases Working Group in an interim report posted by NTIA. The report is to be discussed by CSMAC Friday. The working group found that the information that will be needed to protect federal agencies is “likely substantially less” than that required to protect secondary users. “Protecting Federal users via a database system likely means we only need receive (Rx) information not information on transit (Tx) characteristics,” the report said (http://1.usa.gov/1bzW1j6). “Rx information is often less sensitive then Tx information.” The report concluded that all sharing scenarios are not the same. “There is no one size fits all solution for what information needs to be shared,” it said. “In fact for some systems, it will be difficult to share at all due to nature of systems. ... We should focus on the most solvable scenarios first.” The key question the working group is considering is: “How can sensitive and government classified operations be included and protected using a database-driven sharing approach, particularly one that strives toward real-time responses?” the report said. “The group agreed to address this question in general to the extent possible but also look at this in context specifically of the 3.5 GHz band.” CSMAC will also get an update from its Bi-Directional Sharing Working Group. The group needs “more specific NTIA instruction (on time period, size of area, demographics, spectrum required, and nature of use) to recommend best possible options,” said a document posted by NTIA (http://1.usa.gov/18FJxpR). “Bi-directional sharing is likely to increase in visibility as the commercial auctions are completed, the opportunities will require a comprehensive ruleset based on best practices."

The EU and media industry launched a pilot to enable more use of digital content, they said Thursday. The Rights Data Integration (RDI) project will implement work by the Linked Content Coalition on a technical framework to help copyright owners and users manage and trade rights for all kinds of usage of all types of content and protected works in all media, they said. That will move the content industry closer to figuring out how to assert ownership and communicate copyright terms and conditions in the digital arena in a way machines and people can understand, they said. RDI is an early pilot for the “copyright hub” strategy under development in the U.K. and under consideration in Europe and the U.S., they said. It will use a “hub and spoke” architecture that lets users find and access information from rightsholders via a central transformation hub, they said. The hub will transform the data into a common format and then into a format accepted by exchanges that provide the interface for users, they said. RDI doesn’t directly affect copyright laws and agreements but makes it possible to process the results of those contracts in a more highly automatable way, they said. The project will run for 27 months, they said. Media participants include Elsevier, Getty Images and the International Federation of Reproduction Rights Organizations.