Wiley Rein promotions to partner: Claire Evans in Communications, Appellate and Intellectual Property Practices, and Brian Pandya in Intellectual Property and Litigation Practices;
The FCC survived a critical challenge to its regulatory authority under Title III of the Communications Act, with the U.S. Court of Appeals for the D.C. Circuit upholding the commission’s April 7, 2011, data roaming order over a challenge from Verizon Wireless. The case was widely viewed as a key test of FCC jurisdiction. Another big test awaits, with the D.C. Circuit slated to consider arguments on the commission’s 2010 net neutrality rules next year.
Lobbying for and against media ownership deregulation continued, docket 09-182 shows (http://xrl.us/bnzhva). FCC Chairman Julius Genachowski is expected to circulate an order this week allowing waivers for common ownership of radio or TV stations and a daily newspaper in the same major market, and ending limits on common ownership of a radio and TV station in a market (CD Nov 13 p1). Genachowski hadn’t circulated an order as of Tuesday, agency officials told us. A coalition of 200 groups including AARP, Common Cause, National Council of La Raza and unions (http://xrl.us/bnzhvr) asked the agency to not allow more broadcaster consolidation without the data its letter said the 3rd U.S. Circuit Court of Appeals last summer required “analyzing the impact of media consolidation on communities of color and women.” Any change in ownership rules “should take place only after the Commission collects, releases, and subjects to public comment complete data and analysis of broadcast ownership data,” the Leadership Conference on Civil and Human Rights wrote. The Media Bureau hadn’t planned to release for public comment broadcast ownership Form 323s, though the bureau prepared a report and agency and industry officials said it’s still expected to release it (CD Oct 18 p1). It’s “a grave disservice to the constituencies represented by The Leadership Conference to attempt to push through a change in media ownership rules at the last minute without an opportunity for our members to sift through the data and engage in substantive debate about its import,” the group wrote (http://xrl.us/bnzhu6). A bureau spokeswoman had no comment. Bonneville International, Morris Communications and Scranton Times LP were among those asking the FCC to end limits on common ownership of radio stations and dailies in the same market. Former FCC Chairman Richard Wiley of Wiley Rein and Morris CEO William Morris met with commissioners Robert McDowell, Ajit Pai and Jessica Rosenworcel, with aides to Genachowski and with Chief Bill Lake and others in the bureau. “Absent relief from the newspaper/radio cross-ownership rule, the high level of local news and informational programming offered by existing newspaper/radio combinations” such as Morris owns in Amarillo, Texas, and Topeka, Kan., “would likely be lost,” the company said (http://xrl.us/bnzhwf). Newspaper/broadcast cross-ownership rules are a “regulatory relic,” the Newspaper Association of America wrote (http://xrl.us/bnzhww). The cross-ownership ban “suppresses crucial investment in local journalism,” NAA said. The commission has been given “no factual foundation, or even serious legal argument, for keeping the newspaper/radio restriction,” lawyers for Bonneville and Scranton Times told an aide to Commissioner Mignon Clyburn (http://xrl.us/bnzhw8). Multichannel video programming distributors seeking changes to retransmission consent regulations again asked the agency to make it a retrans rule violation when separately owned TV stations coordinate carriage talks. “The Commission should clarify that any agreement, formal or informal and however styled, that directly or indirectly gives a third party the right to negotiate retransmission consent for that station constitutes a ’transfer of control'” needing FCC approval and/or being considered an attributable ownership interest, MVPDs reported telling Pai. American Cable Association, Cablevision, DirecTV, Dish Network, Time Warner Cable and USTelecom executives attended (http://xrl.us/bnzhxt).
Nov. 5 Practising Law Institute “talk like a geek” webcast, 9 a.m. -- http://xrl.us/bnudjr
The presidential campaigns of President Barack Obama and former Gov. Mitt Romney have begun efforts to select candidates for their administrations’ top communications positions, whichever candidate wins Nov. 6. Such efforts include preliminary plans for who might replace any outgoing administration officials, if Obama is reelected, and if Romney becomes president, determine who would be nominated for high-level telecom positions in the new administration. We recently interviewed former and current Democratic and Republican government officials to understand who will likely help each candidate make the necessary agency appointments if his campaign wins next Tuesday. The campaigns declined to comment, as did those said to be directly involved in the early-on planning efforts.
Oct. 29 FCBA Intellectual Property Committee brown bag lunch on Internet Radio Fairness Act, 12:15 p.m., Wilkinson Barker, 2300 N St. NW, Suite 7 -- http://xrl.us/bimfn6
FCC Commissioner Ajit Pai pushed for creation of an Internet Protocol transition task force to help modernize the commission’s “anachronistic laws” and accelerate the technological changes in the communications industry. “We need to adopt a holistic approach to confronting this challenge instead of addressing issues on a piecemeal basis as they happen to pop up,” Pai said Tuesday at an event on Internet transformation hosted by the Competitive Enterprise Institute’s Communications Liberty and Innovation Project (CLIP). “The work of the task force will be as daunting as it is necessary, for we simply cannot not import the broken, burdensome economic regulations of the PSTN [public switched telephone network] into an all-IP world."
Judges seemed skeptical that the FCC’s mandatory data roaming order imposed common carrier obligations on Verizon Wireless and other carriers, in oral argument Thursday at the U.S. Court of Appeals for the D.C. Circuit. Wiley Rein attorney Helgi Walker, arguing for Verizon, said the order opened up a “vast new frontier” of Title III authority. The FCC argued it had plain authority to enact the rules under the licensing provision in Section 303(b) of the Communications Act. A divided commission approved the measure last year, requiring carriers to offer data roaming on “commercially reasonable” terms and conditions, as proposed in the National Broadband Plan (CD April 8/11 p1). Verizon quickly appealed.
Opting out of any first-ever ITU Internet regulation may cause as many problems as proposals for Internet Protocol traffic’s cost to be borne by sending parties -- an idea some countries are pursuing at the World Conference on International Telecom, U.S. and industry officials said Wednesday. They discussed a scenario of nations or private parties sitting out International Telecom Regulations to be discussed in December when the update to the 1988 ITR is considered at a WCIT meeting in Dubai. The practical effect of what could amount to a boycott by some players, on the Internet and devices connected to Web networks, would be similar to the negative effect the regulations some developing and European countries are seeking could have on such systems. That’s according to speakers at a Media Institute event in Washington. A scenario where debate on a new ITR sees some countries escape the treaty entirely would “lead to fragmentation,” said Sally Wentworth of the Internet Society, an ITU “sector member."
CTIA and carriers won a victory at the Federal Election Commission, which handed down an advisory order saying carriers are not responsible for enforcing election laws when they lease smart codes used to make contributions to a political campaign. Jan Baran, an election law expert at Wiley Rein who represented CTIA on the issue, called it a “good decision” that allows carriers to move forward on working with campaigns to process electronic contributions.