Comments are due Nov. 27, replies Dec. 4 on Fox’s request for a permanent waiver of the newspaper/broadcast cross-ownership rule, said an FCC Media Bureau public notice in Monday’s Daily Digest. Fox was repeatedly granted temporary waivers of the rule for its WWOR-TV Secaucus, New Jersey, starting in 2001, but the FCC didn’t grant one in 2018 because the NBCO rule was eliminated. The 3rd U.S. Circuit Court of Appeals Prometheus IV ruling brought it back, and though an FCC appeal of that decision is pending at the Supreme Court, Fox requested a permanent waiver to provide certainty and preserve the status quo (see 2010060032). It has a similar permanent waiver for WNYW New York. The comment period is “exceedingly short,” Free Press said Monday. “The outgoing FCC could attempt to issue a decision before the agency transfers leadership to a Democratic majority following the swearing in of the Biden administration in January,” despite congressional calls for the agency to avoid controversial matters during the lame-duck period. Chairman Ajit Pai "wants to give more favors to media giants before he likely departs the FCC for good,” said the group. “The Trump FCC’s decision to grant a permanent waiver to Fox’s New Jersey and New York stations is part of a pattern of bending over backward to put industry interests before those of the people Pai and his GOP colleagues swore to serve.” The agency didn't immediately comment.
Section 230
Huge changes to broadcast ownership regulation aren’t expected under the next FCC, with the pending U.S. Supreme Court decision on Prometheus IV the likely driver for any changes that do happen, said associations, broadcasters and broadcast attorneys in interviews. “I’m not terribly concerned that things are going to change drastically under a Biden administration,” said Graham Media CEO Emily Barr, chair of NAB’s TV Board. FCC and NAB briefs in the case are due Monday.
Challengers of the C-band clearing order (see 2007220003) and a panel of federal judges discussed whether the FCC did enough by ensuring 200 remaining megahertz are enough for incumbent satellite operators' future needs, in oral argument Wednesday. With the FCC auction in December, there's a hope and expectation that the expedited argument will mean the U.S. Court of Appeals for the D.C. Circuit will rule by then, though the court hasn't signaled any specific timing, a lawyer involved in the legal challenge told us.
FCC Chairman Ajit Pai said Tuesday the agency thinks it's on a strong legal foundation for whatever challenge may come after its 3-2 approval of a net neutrality remand order, despite an expected legal challenge or reconsideration petition (see 2010150026). The two Democratic commissioners dissented. There also were full or partial dissents to decisions ending some ILEC unbundling and resale requirements with varying transition periods for different network elements, a robocalls enforcement order wireless infrastructure rules and the 5G Fund creation (see 2010270034). But there was no clash on other orders. No approved order texts were released Tuesday.
Give Fox a permanent waiver of the newspaper/broadcast cross ownership (NBCO) rule for WWOR-TV Secaucus, New Jersey, the company asked the FCC in an undocketed letter posted Tuesday. The permanent waiver would dispel “a cloud of regulatory uncertainty” hanging over the station since the 3rd U.S. Circuit Court of Appeals Prometheus IV ruling resurrected the NBCO rule, Fox said. The station -- which falls under the rule because of Fox’s ownership of the New York Post -- had received a series of such waivers beginning in 2001. In 2018, the FCC renewed WWOR’s license without the waiver because the NBCO was eliminated in 2017. The 2019 Prometheus IV ruling brought the rule back, though the Supreme Court last week granted certiorari in FCC and NAB appeals (see 2010020059). The FCC “has an opportunity to act now to provide immediate relief from a rule that was appropriately repealed and should never have been reinstated,” Fox said. It has a permanent NBCO waiver for WNYW New York, the broadcaster said: The agency has repeatedly found the NBCO rule isn’t in the public interest, but the 3rd Circuit has reinstated it every time.
The U.S. Supreme Court’s grant of certiorari in the FCC’s and NAB’s appeals of the 3rd U.S. Circuit Court of Appeals Prometheus IV case (see 2004170065) could indicate the court has concerns about the 3rd Circuit’s 17-year retention of the broadcast ownership case, said academics and broadcast and public interest attorneys in interviews Friday. The high court issued an order Friday saying it will take up the matter, consolidating the NAB and FCC cases into one and setting one hour for oral argument. That argument could take place early in 2021 or hold off until spring, attorneys said.
The FCC changed its rules for administrative hearings to streamline the process and facilitate more hearings being conducted on entirely paper, said an order Monday. “Trial-type hearings are costly and impose significant burdens and delays on both applicants and the agency that may not be necessary.” The rules will allow the presiding officer -- which under the revised rules could be an administrative law judge, the commission or a commissioner -- to designate matters for hearing on a written record whenever a dispute can be solved that way. “Alternatively, the Commission will order a hearing with live testimony and/or cross-examination when it is appropriate,” the order said. Parties can request live hearings, but the decision is up to the presiding officer. The FCC will determine in each hearing designation order whether a case will be overseen by an ALJ or the commission. Having the FCC preside could ameliorate case backlogs due to the agency's having only one ALJ, the order said. “We reject any claim that the independence and objectivity of the presiding officer can be assured only if an administrative law judge serves as the presiding officer.” Commissioners must recuse themselves from matters in which they aren’t impartial, and ALJ decisions are ultimately subject to FCC review, the order said. When the FCC is the presiding officer, it can delegate authority to a commission-appointed case manager to perform some presiding officer functions, including ruling on discovery options “and other interlocutory matters,” the order said. The new rules include a new, more lenient evidence standard for such hearings, based on the Administrative Procedure Act. The previous evidence rules had been based on the federal rules of evidence.
Satellite and wireless interests remain at odds over FCC International Bureau guidance for deploying earth stations in bands higher than 24 GHz, in docket 17-172 replies Wednesday. The guidance got satellite opposition and heavy lobbying (see 2008060055). The Satellite Industry Association said there's general agreement the FCC contradicted itself on the definition of roads and on contour guidance: The only voices otherwise "are a small cadre of wireless commenters [using] the Bureau’s inaccurate and unlawful 'guidance' in an effort to impede broadband deployment by competitive satellite operators." Viasat said the guidance's assertion satellite operators have to account for state road determinations when siting earth stations is unlawful and the spectrum frontiers order "left no room for interpretation or need for 'guidance.'” The company said wireless interests "are simply wrong" about Transportation Department regulations, which clearly say it's the federal government, not states, that decides which state roads are treated as highways. Amazon's Kuiper said wireless interests try to brush off the significance of guidance about roadways that earth station contours can't cross, but it's "not a small change" and the approach wireless advocates are backing "would impose a considerable burden that substantially increases the difficulty" for a fixed satellite service trying to find earth station sites. OneWeb backed SIA. Defending the guidance and urging dismissal of SIA's petition, T-Mobile said arguments it goes beyond or contradicts FCC rules ignore the agency's intent and are unreasonable in interpretation of spectrum frontiers decisions. Verizon said no SIA backers identify where the guidance is contrary to rules, instead they focus on not getting more flexibility. Wireless operators have spent billions of dollars on millimeter wave spectrum and satellite operators had the option of buying exclusive use licenses in areas where they planned earth stations, but opted not to bid, it said.
U.S. and EU officials started talks for a potential “enhanced EU-U.S. Privacy Shield framework,” Commerce Secretary Wilbur Ross and European Commissioner for Justice Didier Reynders announced Monday (see 2007240031): “The European Union and the United States recognize the vital importance of data protection and the significance of cross-border data transfers to our citizens and economies.” The two sides are committed to privacy and rule of law and have collaborated for decades, they said.
A lower court "got it just right" in its interpretation of federal statute allowing the federal judiciary to charge reasonable Pacer fees, a U.S. Court of Appeals for the Federal Circuit panel ordered Thursday, rejecting interlocutory cross-appeals by plaintiff-appellants National Veterans Legal Services Program, National Consumer Law Center and Alliance for Justice and by DOJ. The ruling (docket 19-1081) by Judges Todd Hughes, Alan Lourie and Raymond Clevenger, penned by Hughes, rejected the government's argument for vacating the lower court's summary judgment order because of a lack of jurisdiction under the Little Tucker Act. And it rejected both sides' read of statutory limits on Pacer fees and concurred with the lower court interpretation that the Pacer fees are limited to the amount needed to cover expenses incurred in services providing public access to federal court electronic docketing information. It remanded the case to U.S. District Court for the District of Columbia. Counsel for the plaintiff-appellants didn't comment. Oral argument was in February (see 2002030021).