You’re hearing a big sigh of relief from broadcasters today. New FCC Chairman Tom Wheeler said in a blog post that he wants to postpone the voluntary auction that will enable wireless broadband providers to use airwaves now controlled by TV stations. It originally was planned for 2014, but Wheeler says he believes “we can conduct a successful auction in the middle of 2015.” It’s easy to imagine that his decision was influenced by the troubled web rollout for the Affordable Care Act. “I have often defined the complexity of this multi-part simultaneous [auction] process as being like a Rubik’s cube,” Wheeler says. “As part of our auction system development, we will check and recheck the auction software and system components against the auction requirements, and under a variety of scenarios replicating real life conditions. … Only when our software and systems are technically ready, user friendly, and thoroughly tested, will we start the auction.” Wheeler also has to make a controversial policy decision about whether the government should limit how much spectrum might go to wireless giants Verizon and AT&T.
The independent pay TV service wants the justices to reverse decisions by the U.S. Court of Appeals in DC that overturned an FCC ruling last year. Regulators said that Comcast had to take Tennis Channel off of an extra-fee sports tier so it could compete more equally with the cable giant’s Golf Channel and NBC Sports Network. The FCC said that Comcast had used its market power to discriminate against Tennis Channel. But the Appeals Court said that the FCC offered no evidence to refute Comcast’s position that it made a simple financial judgment that few subscribers wanted to watch tennis. The Appeals Court ruling “strayed from longstanding federal discrimination law to invent an arbitrary and unfair standard for deciding cable carriage complaints,” the Tennis Channel says today. “The ruling ignores Congress’ intent to ensure a diverse, competitive media marketplace and eviscerates the FCC’s congressionally assigned responsibility to regulate program network competition in the public interest.” The Appeals Court overturned the FCC in May, and in September denied Tennis Channel’s dual request for an en banc rehearing or a panel rehearing. Comcast says that the court “has spoken emphatically and unanimously that Comcast did not discriminate against the Tennis Channel.” The company adds that it’s “confident that this ruling will continue to be upheld.”
Tom Wheeler gave students at Ohio State University a lesson in political savvy today in his first policy speech since he became FCC chairman last month. His address alternately preached the virtues of small government, and public interest advocacy — especially on the controversial question of the FCC’s role in regulating the Web. “What the Internet does is an activity where policy makers must be judiciously prudent and should not be involved,” he says. But the longtime industry lawyer and former lobbyist left the FCC a lot of wiggle room to advance what he calls the “Network Compact” to promote communications accessibility, interconnection, and public safety and security. His idea of accessibility “means the ability of [Internet] users to access all lawful content on a network,” he says — adding that’s why the FCC “adopted enforceable rules to preserve the Open Internet.” The FCC needs to be the public’s representative in a transition to what he calls “the fourth network revolution” following the development of the printing press, railroads, and the telegraph. The Internet “is not a law-free zone. It depends upon standards of conduct. And it depends on the ability of the government to intervene in the event of aggravated circumstances.”
This should temporarily quiet those who feared that Tom Wheeler would be in the pocket of the wireless phone industry, which he used to represent. The new FCC chairman sent a letter today to CTIA, the wireless industry’s trade group, saying that “enough time has passed” and it’s time for service providers to unlock their devices “voluntarily or for the FCC to regulate.” He wants a “full unlocking rights policy” to appear in the CTIA Consumer Code “before the December holiday season.” The goal is to clear the way for consumers to use any mobile phone or tablet with any service provider. FCC staff have been working with CTIA to develop a new policy. The letter says the two sides now disagree on one thing: whether service providers should notify customers when their devices are eligible for unlocking, or simply unlock them, without a fee. “Absent the consumer’s right to be informed about unlocking eligibility, any voluntary program would be a hollow shell,” Wheeler writes.
Related: FCC Relaxes Foreign Ownership Rules
In new Chairman Tom Wheeler’s first open FCC meeting since his confirmation late last month, the commission today eased the rules on foreign ownership of broadcast stations. Dispensing with the old 25% cap, now overseas companies can invest more than that in American outlets. Of course, it isn’t an automatic process. In its vote Thursday, the commission said will assess on an individual basis each such investment. The change came as no real surprise: It was introduced in late October by then-Acting Chair Mignon Clyburn. Today, the change passed unanimously with all five commissioners voting for it. The new rule was widely supported by the likes of NAB to the Minority Media & Telecommunications Council, which had pushed for such easing.
An old Conan promo that simulated the nails-on-chalkboard sounds of the Emergency Alert System looks have cost TBS $25,000. The Federal Communications Commission this week alerted TBS it is slapping the cable network with a fine in that amount over a 2012 Conan promo it telecast that used the well-known sounds intended to warn viewers of national emergencies.
The FCC — the government agency charged with fining those who misuse the distinctive EAS sounds — has given Turner notice of the fine for “the transmission of false distress signals,” unless it can dissuade the commission within 30 days.
The FCC this past February launched an investigation into a viewer complaint about a 2012 promo for TBS’s Conan O’Brien late-night show. Turner admitted, the FCC said, that it produced and distributed a promotion, for use prior to April 26, 2012, that included a “sound effect” in part derived from an online source, which the network insisted was not part of the actual EAS code, but did include a prerecorded “sound burst” followed by a “bars and tone” sound. Turner “admits that the promotion was not made in connection with an actual national, state or local emergency or authorized test of the EAS,” the FCC said. Turner also argued the promo was produced within such a “tight timeframe” that the production team never submitted it for S&P review. Since May of ’12, all promos for Conan’s show have undergone S&P scrutiny, TBS pledged, according to the FCC.
Turner declined comment on Wednesday.
I’m stunned by some of the appointments Tom Wheeler just announced as part of his plan to “hit the ground running.” He snagged Public Knowledge co-founder and CEO Gigi Sohn — one of the smartest advocates in the public interest community — to be Special Counsel for External Affairs. (Public Knowledge says that VP Michael Weinberg and COO Brooke Hunter will become Acting Co-Presidents.) The corporate community also has a tested ally at the new FCC with Philip Verveer, a longtime communications and antitrust lawyer who’ll be Senior Counsel. Verveer and his wife, Melanne, are long-time pals of Bill and Hillary Clinton. “With critical work to be accomplished for the American people and the Internet becoming ever more important in the lives of consumers and businesses across the nation, this team provides an excellent mix of governmental, private-sector and public-interest expertise,” Wheeler says. “They will join the many talented and dedicated professionals of the FCC, as we work to continue serving the public interest during an era of great technological change.”
Here’s the full list of changes from the FCC:
The FCC enacted the rules in 1975 to help broadcasters and the NFL: Regulators say that if a sports league requires a TV station to black out a game – usually a football match that isn’t sold out — then cable and satellite distributors can’t offer it in the community either. But that may not serve the public interest “at a time when high ticket prices and the economy make it difficult for many sports fans to attend games,” Acting Chairwoman Mignon Clyburn says today to explain why she circulated a Notice of Proposed Rulemaking to possibly scrap the rules. How much impact would that have? Possibly little. It wouldn’t prevent sports leagues, broadcasters and pay TV providers from “privately negotiating agreements to black out certain sports events,” she says. Indeed, the FCC notes on its website that the rules are “rarely involved in the sports blackouts you may have experienced” because they’re almost all due to contract terms between sports leagues and distributors.
Just hours after Sen. Ted Cruz pulled his hold on the nomination today, the Senate unanimously confirmed Tom Wheeler as the next chair of the FCC. The GOP senator from Texas had put a hold on the nomination under the premise he objected to Democrat Wheeler’s vague response to questions about whether the FCC should require TV stations and cable operators to disclose the identities of political advertisers. On Tuesday, Cruz said he’s met with Wheeler and discussed the issue to his satisfaction. Nonetheless, it was a confirmation a long time coming. President Obama picked the former cable and mobile phone industry lobbyist in May to replace Julius Genachowski as chairman. At the time Obama said he hoped for “a speedy confirmation process.” He didn’t get that wish but he did eventually get his guy.
The Republican senator from Texas has put a hold on the nomination of Tom Wheeler as the new chairman of the FCC, stopping the confirmation process that had been on the fast-track as late as last night. Ted Cruz — fresh off his 21-hour CSPAN-friendly speech on the Senate floor that railed against Obamacare — objects to Wheeler’s vague response to questions about whether the FCC should require TV stations and cable operators to disclose the identities of political advertisers. The senator had questioned Wheeler about the issue during his June confirmation hearings. Cruz objects to additional disclosure, saying it could inhibit free speech, and adds that the matter was settled when Congress failed to pass a bill that would have required more disclosure. Wheeler said he needed to examine the issue more before weighing in. Cruz’s office told The Hill today that “Mr. Wheeler had previously declined to give specific answers, but as he’s now expressed his readiness to revisit the senator’s questions, the senator hopes to communicate with him soon.” The move halts confirmation action on Wheeler and Republican FCC nominee Michael O’Rielly. It’s customary to pair appointments from different parties to prevent such holds. The Senate will reconvene on October 28 and no action is expected before then. The FCC is still getting up to speed after its website was shuttered during the just-ended government shutdown, with the agency saying today that it …
Here’s where media companies will feel the impact of the federal government shutdown most immediately and, for now, acutely. The FCC said this morning that it has suspended the 180-day clock it informally gives itself to determine whether pending deals comply with its rules and serve the public interest. That likely will affect Gannett’s $1.5B acquisition of Belo and Tribune’s $2.7B purchase of Local TV. The clock will restart on the business day after the government returns to what the FCC calls “normal operations.” If the budget impasse continues, the FCC might have to postpone the October 15-29 window for those who want to apply for low power FM radio licenses. The agency said last week that 98% of its 1,754 employees would be furloughed. It said today, though, that even during the shutdown it will have people who can be contacted “in the case of an emergency affecting the safety of life or the protection of property.”
UPDATED 5:34 PM: Comcast has issued a statement on the FCC’s decision. “We are disappointed that the FCC failed to constrain the Media Bureau’s overly broad construction of the News Neighborhooding Condition,” says Sena Fitzmaurice, the company’s VP Government Communications. “As it is currently being interpreted, the condition goes well beyond the express language of the FCC’s Comcast-NBCUniversal Order and what is justified by the evidence in that case. The FCC’s interpretation very likely will lead to significant and unwarranted burdens on us, our customers, and other programming networks. We are evaluating our options.”
PREVIOUSLY: Bloomberg TV prevailed on the main points in its multi-year dispute with Comcast, although it didn’t win everything it wanted. Regulators upheld an order from their Media Bureau last year that established Bloomberg’s right to be grouped with other news channels on the dials of Comcast’s cable systems in the 35 largest TV markets. The FCC decision hearkens to an agreement that Comcast made in 2011 when it was eager to win FCC approval for its deal to control NBCUniversal. The cable giant said it wouldn’t discriminate against competitors. Bloomberg TV said that’s exactly what Comcast did when it maintained the business news channel’s position far from CNBC — which Comcast acquired with the NBCU deal.
Regulators voted today to consider a change in its media ownership rules in a way that has irked station owners, but cheered public interest activists. In a 2-to-1 vote, the FCC approved a Notice of Proposed Rulemaking that might scrap a 30-year-old provision called the UHF discount. It relates to the law Congress passed in 2004 that bars a company from controlling stations that reach more than 39% of all households. For the purpose of that calculation, the discount requires the agency to just count half of the audience reached by UHF stations. The outlets used to transmit weaker signals than other stations on the VHF band, which included channels 2-to-13. That distinction became virtually meaningless after 2009 when stations replaced their analog signals with digital ones. So, a simple change? Nope. Broadcasters including Univision and ION feared that they might find themselves over the 39% cap — or so close that they couldn’t participate in the torrid deal market for TV stations. The FCC appears to have addressed their biggest concerns by grandfathering station groups that might find themselves above the cap, and those that applied to the FCC for approval of a deal before today’s vote. ”The Commission and the television industry have anticipated the elimination of this discount for well over a decade,” Acting Chairwoman Mignon Clyburn says. “It is our task as regulators to ensure that our rules reflect current market realities.”
Miley Cyrus and her headline-grabbing twerk routine helped the MTV VMAs reach 10.1M viewers on August 25. It also prompted 150 irate official complaint filings over at the FCC, according to documents received by The Smoking Gun. Some compare it to the Janet Jackson Super Bowl Nipple-gate of 2004 on CBS in an MTV-produced halftime show and led to a $550,000 fine. Many of the FCC complaints term Cyrus’s grinding on singer Robin Thicke as “obscene” and “indecent” with one saying, “Had I wanted my family to see a hooker perform a live sex show, I would have taken them to Tijuana.” Others call for FCC fines to MTV, Cyrus, and even Thicke for being the guy who got twerked on. Unfortunately for outraged tsk-tskers, Cyrus’s MTV stunt was broadcast on the cable network – so the FCC can’t touch it.
UPDATE, 1:15 PM: Reactions are starting to come it to FCC Acting Chairwoman Mignon Clyburn’s warning that she might step in if the stalemate between CBS and Time Warner Cable continues. The cable company says it agrees that “consumers are being adversely affected,” and hopes that CBS “soon will come to a reasonable agreement with us.” A coalition of cable programmers and distributors, the American Television Alliance, says the FCC “has sat on the sidelines for too long” to fix a system that is “clearly broken.” But Medley Global Advisors’ Jeffrey Silva says Clyburn probably won’t do more than jawbone. “Lawmakers tend to think twice before getting into a scrap with broadcasters, finding their presence in Washington and their home states/districts a potential existential threat.”
PREVIOUS, 11:32 AM: It’s still a vague threat, but FCC Acting Chairwoman Mignon Clyburn told reporters today that she’s ”ready to consider appropriate action” if CBS and Time Warner Cable don’t settle the weeklong contract dispute that has left millions of TWC subscribers unable to watch CBS and Showtime. “Quite frankly I am deeply disappointed that the parties seem to be unable to reach a retransmission agreement,” Clyburn said according to Broadcasting & Cable. “I am really distressed that consumers and viewers are being adversely affected, and my primary concern remains with them. We will continue to …
The long-rumored frontrunner for the Republican-held FCC post left open when Robert McDowell departed in April is now officially the nominee. The White house said today that Michael O’Rielly, a top policy adviser with current Senate Republican Whip John Cornyn, will be recommended for confirmation. O’Rielly has worked in the GOP Whip’s Office since 2010, and he was previously Deputy Chief of Staff and Policy Director to Sen Jon Kyl. O’Rielly’s communications experience includes work in the Senate as a Policy Analyst for Banking, Technology, Transportation, Trade, and Commerce issues, as a staffer on the House Committee on Energy and Commerce, and as a Telecommunications Policy Analyst in the mid-1990s. Usually when there’s an opening for a Democrat and a Republican on the FCC — as there was as of the beginning of the week — the custom is to approve both nominees together. FCC Chairman nominee Tom Wheeler, a Democrat, was endorsed earlier this week in the Senate after Commerce Committee chair Jay Rockefeller decided he’d waited long enough for his GOP colleagues to come up with a name to replace McDowell. FCC commissioner Mignon Clyburn is currently acting chair — and the first women to run the regulatory agency — taking over for outgoing chief Julius Genachowski until Wheeler and now likely O’Rielly are officially confirmed. Until then there are one Republicans and two Democrats running things at the commission.
When there’s an opening for a Democrat and a Republican on the FCC — as there is now — the custom is to approve both nominees together. But Senate Commerce Committee Chairman Jay Rockefeller (D-W. VA) decided he’d waited long enough for his GOP colleagues to come up with a name to recommend to President Obama to replace Robert McDowell, who left in April. The committee voted today to approve Tom Wheeler, the former cable and mobile phone industry lobbyist the president chose to replace Julius Genachowski as chairman. Texas Republican Ted Cruz opposed Wheeler, fearing that he might require TV stations to disclose additional info about political advertisers — a decision that many members of Congress say that they should make, not the FCC. And Florida’s Marco Rubio said he may decide later to oppose Wheeler if he’s not satisfied that the nominee will crack down on indecent TV programming. National Cable & Telecommunications Association CEO Michael Powell, a former FCC chair, praised today’s vote saying that Wheeler’s “significant private sector experience and his deep understanding of economic issues that drive investment and innovation will serve him well in promoting a forward-looking agenda that encourages continued innovation and growth.”