Rebecca Day

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.

Office of U.S. Trade Representative promotes Demetrios Marantis to acting USTR, replacing USTR Ron Kirk, whose last day was Thursday … Wiley Rein hires Richard Beaird, ex-State Department’s Office of International Communications and Information Policy, as senior international policy adviser, international telecom practice … Porter Novelli hired Brian Frederick, ex-Sports Fan Coalition executive director, in January as vice president-public affairs, and he’s now on the coalition’s board … BSA-The Software Alliance President and CEO Robert Holleyman stepping down to be senior adviser to group’s Chairman Pascal Di Fronzo, effective end of April … Changes in office of EU Digital Agenda Commissioner Neelie Kroes: Head Of Cabinet Anthony Whelan moves to DG CONNECT as adviser to Director General Robert Madelin and with “special responsibilities” to Deputy Director General Roberto Viola, succeeded by Constantijn Van Oranje-Nassau, being promoted, effective April 2, when cabinet member Thibaut Kleiner will also start acting as Kroes’ senior adviser; Oranje-Nassau being replaced by Pearse O'Donohue, now DG Connect head of unit, effective April 15 … Covington & Burling hired earlier this month, to work in global public policy and government affairs practice: Ex-Sen. Jon Kyl, R-Ariz.; and ex-Rep. Howard Berman, D-Calif. … Lobbyist registration: Digital 4th data-privacy rights group, Jochum Shore, effective Jan. 28.

The FCC should start the incentive spectrum auction process by first identifying repacking scenarios, the NAB said in an executive summary of its reply comments on the proposed rulemaking notice. “This will help the Commission determine in what markets it needs volunteers, and how many of them, to produce a workable and efficient nationwide plan,” it said (http://bit.ly/13TKJ7I). That would let the FCC project what it can expect to raise in auction proceeds, the NAB said. Finally, it can direct its resources to providing incentives to stations in markets where it “truly requires volunteers,” it said. The trade association argued against adopting a variable or split band plan and urged the FCC not to use the repacking as a “pretext for a straight, government-directed reallocation,” of spectrum. In other replies that were posted to the FCC’s website before our deadline Tuesday other broadcasters addressed their concerns with ideas raised in the first round of comments. An anonymous broadcaster in “one of the largest -- and for the purposes of the incentive auction, most important -- markets” and represented by former FCC Chairman Richard Wiley urged the FCC to allow stations who choose to share channels to change their city of license while staying within a designated market area (DMA). Initial comments showed that the FCC’s tentative proposal to require sharing stations to meet existing community of license service obligations would prevent stations from entering into such arrangements, it said (http://bit.ly/ZxD3kl). “Due to the location of stations’ transmission facilities and their communities of license in the DMA, [the] Broadcaster does not appear to have a viable partner” whose facilities it could operate from, or who could operate from its facilities, it said. That would force “otherwise willing stations in the nation’s most important markets ... to sit on the sidelines rather than participate in the auction.” The operator of several affiliates of the ABC, CBS and NBC networks focused its comments on protecting stations that do not participate in the auction (http://bit.ly/YqdEYV). It also urged the agency to coordinate interference issues with Canada and Mexico. “The commission should take the time to analyze, and prepare appropriately flexible rules in response to the international coordination ... rather than straining to get underway quickly,” they said. An owner of Class A stations urged the FCC to set a future date, such as the commencement of the reverse auction, by which stations’ repacking protections would be calculated (http://bit.ly/ZxDtr3). Failure to do that would violate the Fifth Amendment, Venture Technologies Group said. “Arbitrarily cutting off repacking protection rights as for Feb. 22, 2012 would interfere with stations’ reasonable investment-backed expectations and amount to an impermissible regulatory taking,” it said. Spectrum Evolution, a Low-Power TV (LPTV) station operator, said the auction would lead to a “disastrous fate” for the LPTV industry unless the FCC gives it more attention. “What small business or new entrants would be foolish enough to invest in spectrum technology in the future when their fate would be governed by an agency that seems willing to sweep them aside, take resources they have worked so hard to develop and sell those resources to the wealthiest available buyer without a nod or nickel to those from whom the resources were taken” it said (http://bit.ly/ZxEkrC).

The FCC appointed members to the re-chartered FCC Diversity Committee. Chairman Julius Genachowski re-chartered the committee in December “to extend the terms of the current members and to ensure that they have adequate time to continue their important work,” the commission said in a public notice (http://bit.ly/12J2mrh). The committee will continue to work on unlicensed spectrum opportunities for diverse communities and entrepreneurs, reviewing past initiatives that have positively impacted ownership diversity “and determining how these initiatives can be incorporated in the commission’s current diversity agenda” and other issues, it said. The first meeting will be April 25 at the FCC. Wiley Rein attorney and former FCC Commissioner Henry Rivera was reappointed chairman, it said. Members include Comcast Senior Director Rudy Brioche, NAB Deputy General Counsel Erin Dozier and Loris Ann Taylor, Native Public Media CEO. Commissioner Mignon Clyburn applauded the chairman for re-constituting the committee and the appointees. “Their findings and advice continue to guide my office in its decision-making and their ability to weigh in on issues that the commission is considering is invaluable to the agency,” she said in a statement.

A new Communications Act would be a nice thing to have, but “it’s going to be very difficult to achieve,” former FCC Chairman Richard Wiley told a Hudson Institute event in a wide-ranging discussion Tuesday (http://bit.ly/Xj9V2P). Smaller pieces of legislation are more likely, although a “big new statute” would “make sense for the country,” he said. Siloed regulations don’t make sense anymore, he said: Broadcasters are regulated as public trustees; telcos as common carriers; and multichannel video programming distributors, cable and satellite are somewhere in between. “As we see in the marketplace today, all of them are providing functionally equivalent digital services,” Wiley said. He supported proposals to eliminate cross-ownership restrictions that prevent broadcasters from owning newspapers in the same market. “It would be great to have the journalistic tradition -- more news and local affairs -- available to radio stations,” he said. “People have come out of the woodwork” to say that lax cross-ownership rules are “going to end Western civilization as we know it,” he said. “I don’t think so. I think it would be very good.” Wiley criticized commission plans to crack down on joint sales agreements in TV as the agency has in radio. A draft order would attribute such ownership to the TV station doing the brokering, when it brokers more than 15 percent of another station’s ads (CD Nov 15 p1). That attribution is unfortunate, Wiley said, because those agreements help bring news into smaller markets where stations otherwise don’t have the independent financial ability to provide the news. Wiley’s law firm, Wiley Rein, represents some media companies supportive (http://bit.ly/15t0663) of ending the newspaper/broadcast cross-ownership ban (http://bit.ly/12J7Fpx). He lamented the “relatively low minority ownership of broadcast stations” in the country, pushing for “incubator programs” and tax deferment for minority ownership, that “could help minorities get started.” Wiley said the definition of MVPD -- and whether it applies to online providers -- is an important one that can’t be decided in a single complaint brought by Sky Angel. It’s such an important issue because so much programming is going to be delivered on the Internet, he said, pointing to Netflix outbidding the big networks for access to House of Cards. “It’s obvious there’s a new force out there,” Wiley said. “Over-the-top online programming and the carriage of programming is going to be increasingly important.”

An FCC waiver for a broadcaster that won the last two TV stations auctioned to change the community of license within Delaware of the one outlet the company hasn’t built out, “would serve the public interest,” said a Media Bureau rulemaking notice Wednesday. Waiving the agency’s freeze on such DTV channel changes wouldn’t require “additional technical changes,” said the notice seeking comment on Western Pacific Broadcast’s request to move WMDE from Seaford to Dover. Western Pacific also owns WACP Atlantic City, N.J., seeking guaranteed pay-TV system carriage in the Philadelphia area and, unlike WMDE, on air. An order (http://fcc.us/12AhUbb) also from the bureau’s Video Division denied the Broadcast Maximization Committee’s request to undo the 2010 allotment of Channel 5 in Delaware to Seaford. BMC wants that channel and channel 6 used for radio, not DTV. The section of the Communications Act the allotment was meant to address, that there be a commercial VHF station in every state, “poses a somewhat unique circumstance compared to other allocations,” said the order signed by Division Chief Barbara Kreisman. “To the extent that a proposed allocation of this sort is unusual, BMC does not identify any impropriety or legal barrier to the adoption of a new approach.” Western Pacific and PMCM, which unsuccessfully sought to move two western U.S. TV stations to Delaware and New Jersey so the commission would comport with that section of the act after the DTV transition, both are represented by the Fletcher Heald law firm. PMCM in December won a U.S. Court of Appeals for the D.C. Circuit ruling that reversed the agency’s denial of that cross-country community of license move (CD Dec 17 p4). BMC hasn’t decided whether to sue the FCC in an appeals court over the denial of its petition for reconsideration, said Mark Lipp of Wiley Rein, representing the council. Lawyers for PMCM and Western Pacific had no comment right away. Comments are due in 30 days after the rulemaking appears in the Federal Register, replies 15 days later, the notice said (http://fcc.us/X4rSkj).

Spectrum availability and ensuring that a regulatory framework supports use of broadband will continue to take top priority at the FCC, said commissioners Mignon Clyburn and Ajit Pai Thursday at the Minority Media & Telecom Council conference. They said FCC action from last year helped advance the goal of fostering broadband availability. In 2012, the commission took up universal service reform, Clyburn said, and everyone recognized that the communications ecosystem continues to change at exponential speed and that “we needed a framework that had the capacity to keep up with the times,” she said. Clyburn said she’s proudest of having moved that along on a bipartisan basis.

LAS VEGAS -- Internet governance and recent actions by the ITU to play a bigger role in overseeing the Internet have to be watched closely in the aftermath of the World Conference on International Telecommunications, said House Judiciary Committee Chairman Bob Goodlatte, R-Va., at CES. But Goodlatte and others said the U.S. has too much at stake to abandon the ITU entirely.