A Media Bureau public notice Wednesday announcing that pending and future transactions that involve sharing arrangements and include right of first refusal purchasing options or loan guarantees will receive extra scrutiny (http://fcc.us/OoNg4k) is a message to broadcasters that such deals won’t be approved, several communications attorneys told us. The message comes from Chairman Tom Wheeler, who industry observers said is behind the PN, which was issued on delegated authority over the objections of two commissioners two weeks before the March 31 meeting at which a full rulemaking on the same topic is anticipated.

In just over four months as FCC chairman, Tom Wheeler has developed a reputation for mixing with staff, eating lunch in the commission lunchroom. Agency officials say he’s much quicker to head for another commissioner’s office for a meeting than was his immediate predecessor Julius Genachowski. He has also been willing in some cases to cut deals with the FCC’s two Republicans, Mike O'Rielly and Ajit Pai. But agency and industry officials tell us with huge issues looming, from media consolidation to spectrum aggregation, Wheeler is likely to also prove that on the issues most important to him, he’s not afraid of 3-2 votes.

Increased competition in the video industry may have undermined the basis for must-carry rules, argued Latham Watkins cable attorney Matthew Brill at a Federal Communications Bar Association continuing legal education event Monday evening. Recent federal court opinions in cable program carriage cases Comcast v. FCC (CD May 29 p1) and Time Warner, NCTA v. FCC (CD Sept 5 p4) have said that cable’s decreasing market power is eroding the legal basis for many of the provisions from the 1992 Cable Act designed to protect broadcasters, Brill said. Along with recent program carriage cases, the FCBA event touched on Aereo’s case before the Supreme Court.

An order to make TV-station joint sales agreements (JSAs) attributable for calculating ownership caps and to prohibit joint negotiation in retransmission consent agreements will go on circulation Monday, the FCC said. Also on circulation then will be an FNPRM seeking comment on shared services agreements (SSAs) and FCC ownership policies that kicks off the 2014 quadrennial review of media ownership, the commission also said Thursday. The FNPRM proposes retaining the current dual-network rule and the local radio rule, tentatively concludes that cross-ownership rules for newspapers and TV stations should remain, and asks whether to eliminate rules against newspaper/radio and the radio/TV combinations rule “in favor of reliance on the local radio and local television rules,” a senior commission official told reporters Thursday. Broadcasters criticized the draft order, while pay-TV interests seeking changes to retrans rules cheered it.

A Comcast purchase of Time Warner Cable is unlikely to lead to a resurrection of the horizontal ownership cap limiting the portion of national subscribers a cable company can serve, and any FCC move to bring back such a cap is unlikely to affect the $45 billion deal, said analysts, cable attorneys and public interest groups in interviews. The FCC’s former cap was twice struck down by the U.S. Court of Appeals for the D.C. Circuit, but Comcast raised the issue again when it said the terms of the proposed Time Warner Cable deal would include a voluntary divestiture of 3 million subscribers to stay under the old cap’s 30 percent threshold (CD Feb 14 p3). A Comcast spokeswoman told us Friday that the divestiture is intended to “assuage concerns” about the size of the new company.

Public interest attorney and former Media Access Project head Andrew Schwartzman will join Georgetown’s Institute for Public Representation (IPR) to lead the new Public Interest Communications Law Project, said the Benton Foundation and Georgetown Law in a news release Tuesday. The project is a joint creation of the foundation and school, and Schwartzman will be Benton senior counselor, funded through grants from the Alphawood Foundation, Ford Foundation and the Media Democracy Fund, the release said. Schwartzman’s appointment will “expand IPR’s capacity to provide public representation in such critical areas as the transition of traditional wireline telephone service to broadband (known ’the IP transition'), Universal Service Fund reform, particularly of Lifeline and E-Rate, Diversity of Media Ownership and Spectrum Policy,” he said. Schwartzman will be able to continue as senior adviser to other Washington-based public interest groups, along with his private law practice, the release said. “I have long sought to help create a new generation of public interest advocates able to promote the public’s First Amendment rights to have access to a diverse and vigorous debate on important issues,” said Schwartzman. “This position is an ideal way to continue and extend that mission."

FCC Chairman Tom Wheeler’s office had planned to circulate a draft order Thursday that would attribute TV joint sales agreements (JSAs) for the purposes of calculating ownership, but the item is expected to be delayed until March, an agency official told us. The order would have treated the attribution of TV JSAs the same way as for radio, counting as 15 percent toward ownership, the official said. It’s not clear why the item may be delayed. The item would also have included a further notice of proposed rulemaking on media cross-ownership, the official said.

FCC Chairman Tom Wheeler has a big decision ahead in coming months -- whether to seek en banc and, ultimately, Supreme Court review of Tuesday’s decision rejecting the agency’s 2010 net neutrality rules. Longtime FCC watchers disagree on the likelihood of an appeal. Some say an appeal carries a risk since the panel’s majority offered an expansive reading of FCC authority under Section 706 of the Communications Act. The decision is not the FCC’s alone to make because the solicitor general, not the commission, would have to file the appeal before the high court.

FCC Chairman Tom Wheeler has a big decision ahead in coming months -- whether to seek en banc and, ultimately, Supreme Court review of Tuesday’s decision rejecting the agency’s 2010 net neutrality rules. Longtime FCC watchers disagree on the likelihood of an appeal. Some say an appeal carries a risk since the panel’s majority offered an expansive reading of FCC authority under Section 706 of the Communications Act. The decision is not the FCC’s alone to make because the solicitor general, not the commission, would have to file the appeal before the high court.

An appeals court granted a partial stay of the FCC prison phone order (CD Aug 12 p1) Monday. The U.S. Court of Appeals for the D.C. Circuit kept in place the interim rate cap of 21 cents per minute for debit and prepaid calls, and 25 cents a minute for collect calls. It put on hold three other sections of the FCC’s rules: the requirement that rates and ancillary services be “cost-based”; low safe-harbor rates that presume charges are reasonable; and the annual reporting requirement.