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Issue Watch

2017 Issue Watch

Ninth Circuit Reverses FilmOn X Decision

In a victory for broadcasters, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit has reversed a lower court decision that FilmOn X was eligible for the same compulsory license to TV programming as cable operators have.

In the decision, released Tuesday, the appeals court held that "a service that captures copyrighted works broadcast over the air, and then retransmits them to paying subscribers over the Internet without the consent of the copyright holders, is not a 'cable system' eligible for a compulsory license under the Copyright Act."

Broadcasters led by Fox had challenged the lower court ruling.

That came only days after FilmOn X argued in the U.S. Court of Appeals for the D.C. Circuit that another lower court decision denying them the license should be overturned.

The Ninth Circuit essentially deferred to the Copyright Office's conclusion that internet-based retransmission services are not eligible for the blanket license, indicating the status of FilmOn X's eligibility was hardly cut-and-dried. » Read More

FCC’s Pai: Media Are Not Enemy of the People

In a response to Senate Democrats that was short on elaboration, Republican FCC chairman Ajit Pai said he did not believe the media was the enemy of the people and promised to exercise his media regulatory authority impartially.

“As Chairman of the FCC, I take my oath to defend and protect the Constitution seriously, and the preservation of the First Amendment is the foundation of that commitment,” Pai said.

That came in response to Senate Democrats concerned by his answers in an oversight hearing regarding President Donald Trump’s attacks on the media and characterization of them as the enemies of the people.

At a March 8 FCC oversight hearing, when asked by Senate Democrats whether he agreed or disagreed with President Donald Trump’s characterization of the media as the enemies of the American people, Pai would not say yes or no, saying he did not want to get into that political debate and deferred to the White House about what he might have discussed during meetings with the President.

In response to a letter from Senate Commerce Committee ranking member Bill Nelson (D-Fla.), Pai also said that he would not act in a manner that stifles or penalizes free speech “even if requested by the Administration.” He also said he did not commit to any member of that Administration to do so in exchange for getting the FCC post and committed to respect the “absolute independence” of his agency from the White House. » Read More

Judges Probe FilmOn X, Networks on Copyright Issue

To be or not to be defined as an MVPD, that is the question.

A federal appeals court Friday heard argument in the long-running court battle between TV station content providers and FilmOn X, and, according to an attorney at the lively and lengthy oral argument, bothsides had their adherents.

FilmOn X says it is the online equivalent of a cable system/MVPD and should be eligible for a blanket compulsory copyright license to stream TV content. Fox and the other Big Four TV networks – with the support of the National Association of Broadcasters – have said FilmOn X is not entitled to the license and cannot stream TV content without individually negotiating for the rights.

Hearing the case, Fox Television Stations, Inc. v. FilmOn.TV Networks Inc., was a three-judge panel of the court comprising Chief Judge Merrick Garland and judges Brett Kavanaugh and Patricia Ann Millett.

According to Cory Andrews, senior litigation counsel with the Washington Legal Foundation who was at the argument (WLF filed an amicus brief supporting Fox et al.), the argument went long – almost two hours – and included some lively questioning. » Read More

NCTA's Powell: Cable Is Still in Powerful Place

Michael Powell, president of NCTA: The Internet & Television Association, says that while churn is inevitable, doom and gloom scenarios are not. "As long as Internet is the foundation of all of the opportunities and choices, that still provides a pretty powerful place for cable in the home."

Powell was being interviewed for The Communicators series on C-SPAN, which is a public service backed by cable operators nationwide.

He signaled that the new FCC chairman was a visionary in that he sees the need for light-touch regs and for treating both networks and edge providers as important to the internet ecosystem's virtuous cycle of investment and innovation.

Powell covered a range of topics, including net neutrality and the impact of a new administration and FCC chairman, Powell is a former Republican chairman himself. » Read More

Rep. Blackburn Unveils Broadband Rule Smackdown Resolution

Republicans are going after the FCC's broadband privacy rules with both barrels.

Marsha Blackburn (R-Tenn.), chair of the House Communications Subcommittee, has introduced her version of a Congressional Review Act resolution invalidating the FCC's Oct. 27 order. That follows a similar CRA resolution introduced this week by Sen, Jeff Flake of Arizona.

The CRA allows a simple majority of Congress members to invalidate recent regulations, in this case rules approved by the FCC back in October.

Like the Flake resolution, H.J.Res. 86 "provides congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the Federal Communications Commission relating to "Protecting the Privacy of Customers of Broadband and Other Telecommunications Services." » Read More

Trump Meets With FCC's Pai in Oval Office

President Donald Trump met with FCC chairman Ajit Pai Monday afternoon in the Oval Office, according to the White House. The meeting was confirmed afterwards by an FCC spokesperson.

“Chairman Pai had a warm meeting with President Trump this afternoon, in which they reconnected for the first time since Chairman Pai was elevated to head the FCC," said the spokesman. "No proceedings pending at the FCC were discussed.”

It will be a busy week outside of the FCC for the chairman, who in addition to heading to the White House will be on Capitol Hill Wednesday along with the other commissioners for a Senate Commerce Committee oversight hearing.

The President, as a candidate, talked about blocking the AT&T-Time Warner deal, but the FCC's role in that deal will likely be limited to advising the Justice Department since the companies say the deal won't have to be submitted for a public interest review with the FCC.

Pai has been actively targeting some of former FCC chairman Tom Wheeler's signature regulatory moves, including a broadband privacy framework he plans to recraft and an expansion of Lifeline subsidies he has put on hold, arguing the FCC first needs to get a better handle on preventing waste, fraud and abuse.

Pai has pledged to take a weed whacker to unneeded regs, which fits with the President's promise to get rid of "job-killing" regulations. » Read More

RTDNA, Other Press Groups Accuse Trump of Undermining Democracy

The Radio Television Digital News Association (RTDNA) along with the American Society of Newspaper Editors, Reporters Committee for Freedom of the Press, the ACLU and more than 70 others accused President Donald Trump and his administration of trying to "undermine democracy" by marginalizing the media as an independent watchdog on government power.

That came in a joint statement following Trump's drumbeat of attacks on the mainstream media as disgraceful, purveyors of fake news, liars, and even the enemies of the people.

In the letter, the groups said "The effort to delegitimize the press undermines democracy, and officials who challenge the value of an independent press or question its legitimacy betray the country’s most cherished values and undercut one of its most significant strengths."

The groups signing on to the letter said a free press is a "safeguard against tyranny." » Read More

Durbin: Broadcasters Are Key Defense Against Press Threats

Sen. Dick Durbin (D-Ill.) took aim at President Donald Trump's attacks on the mainstream media Tuesday, signaling they were part of an assault on the media from without and within that threatened "the survival of journalism as a critical pillar of Democracy."

He branded the President's attacks on media as enemies as the tactics of strongmen to maintain power by silencing their critics.

Durbin was speaking to a roomful of radio and TV broadcasters at the National Association of Broadcasters State Leadership Conference in Washington, D.C. He drew a standing ovation for his remarks, which were sharply critical of the President.

"The kinds of attacks on the media that we are seeing in America today would have seemed familiar 30 years ago in Ukraine or the Baltics, when those nations were still under Soviet occupation," he said. "And they would seem familiar today in authoritarian states like Russia, Venezuela, Cuba, Turkey or Hungary. Turning reporters into enemies – not just adversaries, but enemies – is a strategy that strongmen use to silence critics and maintain power.

"Their goal is to discredit the messenger. That way, when there is bad news, or news that contradicts the official line, people won’t believe it. Soon enough, people start to lose faith … not just in the media, but in all of the institutions that hold a society together. They lose faith in the power of debate and elections to change anything.

"They become cynical and apathetic. Democracies can’t survive in a universe of 'alternative facts.' American democracy depends on informed citizens debating our choices vigorously choosing a path forward." » Read More

FCC's Pai: Regulatory Torch Passes to Light-Touch Generation

FCC chairman Ajit Pai told a Mobile World Congress audience in Barcelona Tuesday that Title II reclassification was a mistake made under the previous generation that he expects to be corrected in this one.

He signaled to the international audience that the FCC would not be a zero reg zone but a light-touch reg zone where pro-competition policies were promoted, barriers lifted, and investments made in deploying broadband.

According to a copy of his speech, Pai told his audience that in the 1990s, policymakers had forged a "historic consensus" that the internet should be free of heavy handed regulation, which is what spurred innovation, the kind of environment that would be needed to spur 5G in the coming years.

But he said that two years ago – two years ago this week, in fact – the nation "deviated from our successful, light-touch approach," deciding instead to "apply last-century, utility-style regulation to today’s broadband networks."

That was the reclassification of ISPs as common carriers.

He said that was not done to solve any problems in the face of a "digital dystopia." Instead, he said, that previous light-touch approach "had produced both a free and open internet and strong incentives for private investment in broadband infrastructure."

Pai said that Title II move was clearly a mistake, injecting uncertainty into the market, which he called the enemy of growth. » Read More

Sen. Hatch Makes Reg-Free & Open Net a Tech Priority

Sen. Orrin Hatch (R-Utah), who chairs the Senate Republican High-Tech Task Force, has released what the task force billed as an Innovation Agenda for the new Congress and it backs a free an open internet: Free of burdensome government regs and open for business.

In the section on fostering a "modern and competitive and open internet," the agenda cites promoting private-sector broadband deployment and connectivity, increasing mobile access to licensed and unlicensed spectrum, and freeing the internet by “preserv[ing] the open, competitive nature of the internet against unnecessary government regulation while promoting continued development of innovative online services."

Among many other things, it calls for patent reform, reforming of the Electronic Communications Privacy Act to require a warrant for emails, protecting cross-border data flows, allowing high-skilled immigrants into the country, and a healthy helping of regulatory humility, which includes encouraging self-regulation.

The plan drew plenty of praise from the industry.

"We commend Sen. Hatch on his strong, bold and broad proposal to ensure our nation remains the global leader in innovation," said Consumer Technology Association President Gary Shapiro. "We are at a crossroads where we need a national strategy recognizing that innovation drives our economy and global leadership. Chairman Hatch's plan recognizes that innovation depends on nurturing, getting and keeping the best and brightest and a legal and regulatory system encouraging creativity and entrepreneurship.” » Read More

FCC's Pai on Broadcast TV: ‘Keep It Clean’

Ajit Pai gave his first TV interview as chairman of the FCC to Fox Business Network and said he would investigate indecency complaints against CBS, NBC or anyone else if they were presented to him.

Pai appeared Thursday on the 2 p.m. hour of The Intelligence Report with Trish Regan.

Regan cited an F-bomb on Saturday Night Live and Adele's F-bomb on the Grammys and asked if the FCC would be investigating them for "this kind of stuff."

"If we are presented with complaints, we are duty bound to enforce the law," he said, "and the law that is on the books today requires that broadcasters keep it clean so to speak." Pai said he took that FCC obligation seriously.

Actually, broadcasters are only required to do so at times when the FCC has determined that children are most likely to be in the audience, which is 6 a.m. to 10 p.m.

But Pai did suggest he would be watching what broadcasters say on air, per FCC indecency rules on the books, adding: "[A]s a parent, I want to make sure that my kids have a wholesome experience when they are watching programs like that."

If the FCC did investigate those, it would likely not take any action given that (1) SNL airs after 10 p.m., when broadcasters can air profanity and nudity without repercussions beyond the input of their viewers, the latter of which is likely the reason broadcasters don't suddenly act like cable nets from 10 p.m. to 6 a.m. when indecent content is not actionable, and (2) CBS spokesfolk told B&C that while Adele did indeed swear on the awards show, their tape delay caught it and it did not go over the airwaves. » Read More

Net Neutrality Is FCC's Third Busiest Docket

To establish a baseline for a promised flood of network neutrality comments to the FCC, as of Thursday, the proceeding was listed as the third most active proceeding in terms of comments with 178 comments in the past 30 days. Universal Service Fund comments and Lifeline subsidy compliance forms are the busiest dockets with over a thousand in each.

At a press conference this week, Senate Democrats urged fans of the FCC's Title II-based Open Internet order to flood the FCC with new comments in support given that Republican chairman Ajit Pai is a strong opponent of that reclassification.

The FCC received more than four million comments when the FCC was coming up with the last Open Internet order, a stat Democrats often cite in arguing that the rules have broad support and should not be rolled back. Sen. Ed Markey (D-Mass.) said this week that given the new threat to the rules by Republicans, the new public outcry would make that look minuscule. » Read More

Pai: Commissioners Will Vote on Consent Decrees

FCC chairman Ajit Pai says the Enforcement Bureau will no longer get to sign off on consent decrees settling proposed forfeitures without the commissioners voting on them.

That was the latest in a series of process reforms the new chairman is implementing in his first few weeks in the center seat.

"I have instructed the Enforcement Bureau that starting today, any consent decree settling a Notice of Apparent Liability or Forfeiture Order issued by the full Commission must now be approved by a vote of the full Commission," said Pai. "This will help promote Commissioners’ involvement in and accountability for important enforcement decisions."

Pai said that over "the past few years" — that would be under a Democratic chair or chairs — rather than the full commission voting, the bureau chief has been signing off on the settlements at the direction of the chairman's office. Most recently that would have been chairman Tom Wheeler and Enforcement Bureau chief Travis LeBlanc.

"That process ends now," he said, by which he meant more than rhetorically. Pai said the reform was in force immediately. In fact, he said the bureau had just Wednesday circulated a consent decree for the commissioners' consideration that would conclude an investigation approved by the full commission. » Read More