John Eggerton

Federal Communications Commission Chairman Tom Wheeler is expected to circulate an order on its proposal to make changes to its local market spectrum aggregation screen, according to sources inside and outside the FCC.

The screen is not a cap, but triggers a deeper dive into whether that amount of concentration in a local market is in the public interest.

According to FCC sources, the screen is expected to draw a distinction between high- and low-band spectrum, which could affect how much low-band spectrum AT&T and Verizon can bid for in the auction since they already between them have the majority of that spectrum, which has long been considered beachfront Wi-Fi spectrum due to its propagation characteristics. There is expected to be a separate screen for spectrum below 1 GHz .

The American Cable Association and NTCA: The Rural Broadband Association, wrote the Senate Judiciary Committee in advance of the hearing on the proposed Comcast/TWC merger saying that as currently constituted it would cause harms to consumers and competition.

They say Comcast's public interest statement, which includes a number of voluntary conditions, many it would be extending from those in its NBCU deal, are not sufficient to address its concerns about the impact "downstream" on the MVPDs, "upstream" on the video programming industry via a combined company's 16 regional sports networks, and the combination of Comcast's programming assets and TWC's distribution assets, which include systems in New York and Los Angeles, the top two markets. They argue the deal has both horizontal and vertical components and that the deal needs to be vetted for both.

As for vertical issues, they say the merged company would have an incentive to disadvantage competing MVPDs by withholding programming. They concede Comcast has offered up conditions—which include nondiscriminatory access to online and video programming -- but they say that, while well intended, those are hardly sufficient to solve the problems in the deal.

The Senate Judiciary Committee has set the witness list for the April 9 hearing on the proposed Comcast/Time Warner Cable merger.

In addition to Comcast executive VP David Cohen, who already confirmed his participation, the witnesses are Arthur Minson, Jr., executive VP and CFO, Time Warner Cable; Gene Kimmelman, president, Public Knowledge; James Bosworth, chairman Back9Network; Richard Sherwin, CEO, Spot On Networks; and Christopher Yoo; University of Pennsylvania Law, Philadelphia.

It looks like all TV stations will have to start posting their political files -- records of their contracts for political ads, including prices -- beginning July 1, 2014.

The top four stations in the top 50 markets have been required to post those files to the Federal Communications Commission's searchable online database since August 2012, but other stations were given until July 1, 2014, to start posting them, unless the FCC found reason to change that. Apparently, the FCC has not found reason, despite broadcaster protestations that the filings gave their competitors sensitive pricing information. The contracts have been part of station public files, but those were a lot harder to access than an online database.

The National Association of Broadcasters had suggested that if the FCC was going to continue to require the online political file posting, it should ask the same of cable and satellite operators, particularly as it expands the requirement to all stations. "We note the particular disparity of requiring even the smallest television stations to disclose their most sensitive pricing data via the Internet, while pay TV operators with millions of subscribers and the largest online entities are not so required," NAB said in comments last August.

The Federal Communications Commission has issued the deadlines by which various parts of its Closed Captioning Quality Order become official.

That order included mandates for cable and broadcast caption quality, equipment, and various housekeeping items. April 30: Rule revisions on equipment monitoring, the treatment of multicast streams, filing for exemptions, and getting program distributors' e-mails correct. June 30: Rule revisions regarding use of Electronic Newsroom Technique (ENT) for captioning of live programing.

When the Office of Management and Budget approves them: Rules about maintaining records on monitoring and maintenance of the captioning system, informal complaint procedures regarding use of ENT techniques. Jan 15, 2015 or OMB approval, whichever comes first: Rule revisions relating to captioning quality standards and best practices. The FCC voted unanimously Feb 20 to require program creators and distributors to make their best efforts to improve the quality of closed captioning. While there were no quantitative standards, FCC chairman Tom Wheeler said this was not an "act it and forget it" item and the FCC wants to remind stakeholders of the upcoming deadlines for compliance.

Aereo definitely has friends in a trio of law professors who weighed in on its side with the Supreme Court.

Filing the brief were Warren Grimes is a professor of law at Southwestern Law School and co-author of The Law of Antitrust: An Integrated Handbook; Shubha Ghosh, law professor at University of Wisconsin Law School and cofounder of the American Antitrust Institute; and Joshua P. Davis, associate dean for academic affairs, professor and director, Center for Law and Ethics at the University of San Francisco School of Law.

In their amicus brief, the professors called Aereo a "healthy free-market response to a dysfunctional and anticompetitive television distribution system that raises prices, reduces output, and denies consumers meaningful choice." They say broadcasters have a responsibility to support the wide dissemination by Aereo of their free TV signals, a responsibility given their spectrum grants that trumps the pursuit of copyright payments. They point out that broadcasters have two limited government monopolies, access to free spectrum -- free except for the public interest standard--and certain exclusive copyright protections of a "fair return" for their creative investment in local programming.

But the academics argue broadcasters undermine their public interest obligation to free, over-the-air TV by invoking copyright law. They say Aereo simplifies access to those over-the-air signals, signals that already ensure a fair return to broadcasters through ad revenue. Granting broadcasters the relief from Aereo they seek would "decrease the output of local television broadcasting and leave consumers with very limited, technologically deficient and expensive choices for obtaining local programming," they say.

The Massachusetts Department of Telecommunications and Cable told the Federal Communications Commission it should limit how much low-band spectrum a bidder can get in the upcoming broadcast incentive auctions.

That could principally affect Verizon and AT&T's participation -- they already have the majority of low band, which most put at about 70%, but Massachusetts' telecom department says is more like 85% on a 1-MHz-per-person population basis.

In a filing at the commission in the incentive auction docket, the department said it allied itself with the comments of the Department of Justice, which has already said the FCC should come up with some "competition-focused" rules on spectrum acquisitions, particularly auctions, including taking into account the differing propagation qualities of different spectrum bands that make one more valuable than another.

Separate from the auctions, the FCC has asked for input on how and whether it should adjust its local market spectrum concentration screens, which are not hard caps, but trigger further review of whether such concentration is in the public interest.

With the outcome a pretty much a foregone conclusion, reaction was swift to the Federal Communications Commission's vote (3-2 along party lines) to make joint sales agreements (JSAs) above 15% of ad sales attributable under FCC ownership rules, as they have been in radio since the 1990s.

Broadcasters were smarting, but most of the comment came from public advocacy groups celebrating the new regulations and hoping for more.

National Association of Broadcasters president Gordon Smith has already suggested NAB might take the FCC to court over that call, and the statement by spokesman Dennis Wharton after the vote did not take anything from that potential hardball.

"It's disappointing the FCC would take this action without first completing its 2010 statutorily mandated media ownership review. As the record before the Commission clearly shows, the public interest will not be served by this arbitrary and capricious decision."

Both commissioner Republicans were on the same page as NAB, as was House Communications Subcommittee Chair Greg Walden (R-OR), according to a committee source. Commissioner Pai particularly suggested the decision was not based on the record and suggested the court should step in.

The Federal Communications Commission's unanimous vote to ban coordinated retransmission negotiations among the top four TV stations in a market was treated with cheers by their satellite, cable and telecommunications video competitors who must negotiate those agreements.

The American Cable Association, arguably the point-association on the issue along with the American Television Alliance (ATVA) of which it is a main member, was ecstatic, and said as much. “ACA salutes Federal Communications Commission Chairman Tom Wheeler for leading the effort to put teeth into the regulations that require broadcasters to negotiate retransmission consent with cable and satellite TV providers in good faith. Adoption of the order extracts from a broadcaster’s bite one of several practices that most obviously harm consumers and competition. ACA members are ecstatic that the FCC is finally banning coordinated retransmission consent negotiation between two separately owned, top-rated stations in the same market."

DirecTV, also a member of ATVA, added its two hands clapping. “The FCC’s decision today is a win for consumers," it said. "By restricting broadcasters' ability to collude in retransmission consent negotiations, the FCC took an important first step to protect consumers from local channel blackouts and higher prices. DirecTV appreciates the FCC’s efforts and hopes to work together for additional reform in the near future.” DirecTV and other ATVA members would, among other things, like to see the FCC step in to end blackouts and mandate arbitration in impasses.

Even the Independent Telephone and Telecommunications Alliance (representing mid-sized telecom carriers) felt compelled to weigh in to celebrate the move. “ITTA applauds the FCC’s efforts to reform the outdated retransmission consent rules," said ITTA president Genny Morelli. "We have long argued that the FCC has the legal authority to adopt reforms that would restore balance to the retransmission consent marketplace and we are pleased to see the Commission move forward on these important issues."

Federal Communications Commission Chairman Tom Wheeler indicated on March 31 that the FCC has assembled its team to review the proposed Comcast/NBCU transaction, that it will be headed by someone internally, and that it has been and will be coordinating closely with the Department of Justice.

At a press conference following the FCC's March public meeting, Chairman Wheeler said that while the FCC had gone outside the agency for someone to review the Comcast/NBCU merger, he had the in-house talent to handle the job.

"We are frequently in touch with the Justice Department and we have put together a task force on Comcast/Time Warner. We will bring in the necessary external help," he said, but added that "We have not gone outside to hire someone to run that task force. We'd rather have someone who is well experienced in the...issues."