All replies backed the FCC allowing waivers of foreign ownership caps of 25 percent on U.S. radio and TV stations. Several comments from broadcasters and their lawyers pointed to the agency’s order last month streamlining some policies for non-American ownership of some other types of licenses (CD April 19 p17). That commissioners Ajit Pai and Jessica Rosenworcel in approving that order mentioned the petition to allow waivers on which the replies commented is one reason to be optimistic that the request will be approved, a lawyer who backs the relief told us. That attorney, David Oxenford of Wilkinson Barker, said the agency can without engaging in a further rulemaking deem that ownership above 25 percent meets the public-interest threshold for such holdings in Section 310(b) of the Communications Act.
Fred Campbell, chief of the Wireless Bureau during the FCC’s 2008 auction of 700 MHz spectrum, said experience shows that imposing too many rules on an auction can have a chilling effect on bids. Campbell and other speakers discussed the pending incentive auction of broadcast TV spectrum during a webinar Thursday sponsored by his group, the Competitive Enterprise Institute’s Communications Liberty & Innovation Project, and law firm Wiley Rein.
Undecided Supreme Court case Fisher v. University of Texas could limit FCC efforts to encourage diversity in broadcasting, said a presentation to the commission’s Diversity Committee Thursday. Akin Gump lawyer Ruthanne Deutsch said she and others who follow the Supreme Court believe the court will hand down a decision striking down the University of Texas program that factors race into admissions, which she said would leave “a very very tiny tiny window” for government programs considering race. Minority Media and Telecommunications Counsel Executive Director David Honig said diversity in media law “flows from” education diversity law, and that such a decision “could affect a great deal” of what the commission might do to encourage diversity in the communications industry.
Former FCC Chairman Richard Wiley said current rulemaking procedures have to speed up to address the many regulatory challenges facing the commission. The new FCC chairman “has to make decisions; the commission has to set deadlines,” said Wiley at an American University law school symposium on broadcast regulation. “The commission has to move to a more effective manner of getting things done,” said Wiley.
The FCC did not act within its discretion when it determined InterCall’s services were “telecommunications” service and required the company to pay into the USF, Arent Fox attorney Ross Buntrock argued for The Conference Group. The agency also did not act properly in issuing the order through adjudication, rather than through the notice-and-comment rulemaking procedures it must follow under the Administrative Procedure Act, Buntrock said.
Questions continue to surround the pending nominations to replace outgoing FCC Chairman Julius Genachowski and Commissioner Robert McDowell, as lawmakers refused to say who, if anyone, had percolated to the top of the list. Senate Commerce Committee Chairman Jay Rockefeller, D-W.Va., continued to stump for FCC Commissioner Jessica Rosenworcel to replace outgoing Chairman Julius Genachowski as the top Democrat on the commission. Meanwhile, Senate Minority Whip John Cornyn, R-Texas, again declined to say whether he had endorsed his congressional aide, Michael O'Rielly, to replace outgoing Republican Commissioner Robert McDowell.
Congressional Democrats are interested in reforming the 1992 Cable Act provisions regarding retransmission consent, said Guggenheim Partners analyst Paul Gallant in an email Friday. Democrats believe consumers shouldn’t be “penalized when companies cannot agree on retrans prices,” Gallant said, citing comments from Democratic staffers who spoke at the Catholic University Law School communications policy symposium hosted by Wiley Rein last week. One Democratic staffer at the event said Senate Commerce Committee Chairman Jay Rockefeller, D-W.Va., is “concerned that video competition has not lowered pay TV rates” and the committee will “focus on examining how disruptive technologies could benefit consumers,” Gallant said. “Based on the comments we heard yesterday, we think Aereo -- as well as Google/Apple/Amazon if they decide to get involved -- may find a receptive audience among some in Congress for policy recommendations that would help [over-the-top] OTT emerge as an alternative to cable/satellite,” he wrote. Republican committee staffers at the event said there will be more hearings in the coming months to examine the issue and “argued that Congress should not rush into new regulation of the pay TV sector,” Gallant said. “The speakers reinforced our view that Congress is likely to give serious consideration in the next 12-15 months to revising the retrans law and exploring steps aimed at strengthening OTT firms like Aereo,” Gallant said.
Senate Minority Whip John Cornyn, R-Texas, praised his congressional aide, Michael O'Rielly, Wednesday but declined to say whether he would endorse O'Rielly as a candidate to replace outgoing FCC Commissioner Robert McDowell, according to Cornyn’s spokesman. “Mike’s a talented and valued member of my staff, and he has a bright future in whatever he chooses to do,” Cornyn said via his spokesman. Government and industry officials on Wednesday named O'Rielly as a likely candidate to replace McDowell, also mentioning House Commerce Committee aide Ray Baum; Neil Fried, chief counsel to the House Communications Subcommittee; and former State Department official David Gross, now at Wiley Rein (CD March 21 p1).
The “next great copyright act” will require “a few years of solid drafting and revision” to get right, Maria Pallante, U.S. Register of Copyrights, told the House Subcommittee on Intellectual Property during a hearing Wednesday. Pallante urged members of the subcommittee to write the law in a way that allows it to be flexible so the Copyright Office can adapt the law to keep up with changing technology. Debates over copyright law should “get out of Washington,” Pallante said. She suggested the debate’s participants “go somewhere like Nashville, where people make a living writing songs from their kitchen tables."
Commissioner Robert McDowell announced Wednesday he will leave the FCC in a matter of weeks, after seven years on the commission. Attention immediately focused on who will replace the Republican, with House Commerce Committee aide Ray Baum, a former chairman of the Oregon Public Utility Commission, and longtime congressional aide Michael O'Rielly, who now works for Sen. John Cornyn, R-Texas, early front runners in the view of government and industry officials. Also getting some mentions by lobbyists are Neil Fried, chief counsel to the House Communications Subcommittee, and former State Department official David Gross, now at Wiley Rein. One unknown is whether Senate Commerce Committee Ranking Member John Thune, R-S.D., will have a candidate of his own.