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  • Patrick McFadden 12:04 pm on February 5, 2016 Permalink  

    ATVA: What Acorn? 

    The American Television Alliance (ATVA) – the pay-TV industry’s leading voice these days – needs our collective help. It appears that our friends are suffering from a serious case of Chicken Little Syndrome. You remember Chicken Little, right? That’s the poor little chicken who believed that the sky was falling after she was hit on the head by an acorn falling from a nearby tree. Chicken Little was so alarmed she spread panic throughout the town – all because of an acorn.

    ATVA’s acorn is retransmission consent. When pay-TV companies seek to carry most local broadcast television stations, they have to negotiate with broadcasters for the right to do so. The overwhelming majority of these negotiations are uneventful and routine. They are business negotiations, conducted at arm’s length by sophisticated actors. As with any business negotiation, however, occasionally the parties struggle to come to terms. Infrequently, this results in a broadcast station’s removal from a particular pay-TV system until a deal can be reached.

    ATVA’s actions – and indeed its entire purpose – would make even Chicken Little blush. Unlike the unwitting Chicken Little, ATVA spends day and night fervently hoping that one of the many thousands of retransmission consent negotiations between TV broadcasters and multichannel video programming distributors go south and hit ATVA squarely on its head.

    You see, ATVA was conceived to create hysteria. ATVA’s strategy is to wait for an isolated example of a hiccup in negotiations – an acorn falling – and overreact in the most spectacular fashion possible. It’s as though ATVA has set up shop by the side of a busy road, just waiting for a car accident. Then, when an accident happens, ATVA sets off flares and air horns, and unfurls a banner triumphantly declaring, “SEE? I TOLD YOU THE HORSELESS CARRIAGE WOULD NEVER WORK!” ATVA wants you to ignore the hundreds of cars passing by without incident and focus only on that accident. If they make enough noise and sound scary enough, maybe someone will pay attention. That’s why, for ATVA, it’s not enough to turn a molehill into a mountain – the mountain always has to be Vesuvius and Pompeii always has to be on the cusp of being buried by ash.

    There are countless examples of ATVA’s strategy, including the recent impasse between Nexstar Broadcasting and Cox Cable. As the extended agreement between the parties expired, ATVA fired up its outrage machine (patent pending) and penned a Chicken Little letter to the Federal Communications Commission (FCC). ATVA claimed that, even though Cox isn’t an ATVA member and ATVA has no specific knowledge about the parties’ negotiations, ATVA nevertheless knew “exactly what is going on here,” and that Nexstar was engaged in a “shakedown.” ATVA claimed that FCC intervention in the market was urgently needed to protect the poor, tiny, helpless, cable company (that happens to be the third largest cable provider in the country).

    What ATVA doesn’t tell you is that Nexstar had, up to that point, successfully negotiated 1,200 retransmission consent agreements with pay-TV companies over the last 11 years. That’s right. 1,200 successful negotiations. But, when the 1,201st stumbles because a cable company holds out for lower rates or possibly even to trick regulators into action? The system is broken! Government intervention is desperately needed! The sky is falling!

    ATVA’s hysteria reflexes have to be razor sharp because it generally has only a narrow window of opportunity to put out exaggerated and misleading claims regarding these exceedingly rare disputes. In this case, ATVA didn’t have a moment to waste to stage its very public case of the vapors. Nexstar and Cox resolved their contractual impasse without great fanfare, despite ATVA’s convulsions. The parties reached an agreement without new heavy-handed government regulations, despite ATVA’s grandstanding. Good thing ATVA didn’t wait a day to see what happened – they would have wasted a perfectly good acorn.

    You might think that maintaining a constant, breathless stream of hyperbole would get exhausting after a while, but it’s the only real strategy ATVA has. After all, telling you the truth – that your cable company just doesn’t think it’s making enough money off of you – isn’t exactly a winner.

  • Zamir Ahmed 9:01 am on December 22, 2015 Permalink  

    Local TV Stations: Bastions of Investigative Journalism 

    In her New York Times column, “The Search for Local Investigative Reporting’s Future” (Dec. 5), Margaret Sullivan bemoans the uncertainty surrounding newspapers’ future investment in enterprise reporting that roots out corruption and exposes illicit behavior in local communities. What Ms. Sullivan should not forget is that local television broadcasters are picking up the mantle of serious investigative journalism as resources become limited at newspapers.

    In recent years, local TV stations have invested significant resources into building and expanding their investigative news teams both on-air and online. Some stations have even employed former newspaper reporters with extensive backgrounds in investigative journalism, such as Dispatch Broadcast Group’s WTHR Indianapolis, Block Communications’ WDRB Louisville and Capitol Broadcasting Company’s WRAL Raleigh.

    A few examples of broadcasters’ investment in investigative reporting locally and nationwide include:

    • Atlanta: In November, Meredith Corporation’s WGCL introduced an investigative news initiative featuring a team of reporters with over 100 combined years of television news reporting experience, including former The Washington Post reporter Art Harris;
    • St. Paul: Hubbard Broadcasting-owned KSTP recently hired as an executive producer of investigations and special projects Paul McEnroe, who was formerly The Star-Tribune’s most prominent investigative reporter;
    • Chicago: In July, NBCUniversal’s WSNS became the ninth Telemundo station to launch a dedicated news team to help consumers who have been wronged by local businesses;
    • Asheville: In May, Asheville Citizen-Times reporter Jon Ostendorff left the newspaper to join Sinclair Broadcast Group’s WLOS as an investigative reporter;
    • Washington, D.C.: Last December, Sinclair Broadcast Group-owned WJLA create an investigative unit focusing on rooting out government waste;
    • New York: Last year, Tribune Broadcasting’s WPIX brought together several award-winning journalists to form an investigative news team “to bring fraud and injustice to light…while protecting our viewers and keeping their families safe from harm.”

    Broadcasters’ investment in enterprise journalism has not gone unnoticed. Last July, Broadcasting & Cable ran a cover story about the increase in new and expanding investigative news teams at local TV stations. The article noted that attendance at the recent Investigative Reporters and Editors convention exceeded 1,650, significantly more than the 1,250 from the 2013 convention and a new record.

    Local TV stations’ investigations have also paid numerous dividends for viewers by uncovering corruption and illegality in local communities, carrying out broadcasters’ mission of serving the public interest. These investigations have also garnered prestigious national and local awards for their in-depth reporting, and prompted local governments to take action to correct the wrongs exposed. Just a small handful of the many investigations that broadcasters have undertaken include:

    • Tampa: Following a year-round investigation, in September TEGNA’s WTSP aired a five-minute news broadcast examining the influence wielded by a private PR consultant in local politics, potentially in violation of local and state ethics laws. The station supplemented that broadcast with a 6,000-word online article, extensive links to public records and online-only videos, a convergence of elements that earned the project kudos from the Columbia Journalism Review.
    • St. Louis: Meredith Corporation’s KMOV earned a 2016 Alfred I. duPont-Columbia University Award after launching an investigation of the area’s criminal justice system in wake of the shooting death of Michael Brown and subsequent civil unrest. Through more than 40 stories, the investigation revealed a system of mandated ticket quotas, speed traps, and fines to help small municipal courts make money. The reports prompted one local police department to end its ticket quota system, a judge being forced to resign and the firing of a police officer.
    • Baltimore: Hearst Television-owned WBAL received a 2016 Alfred I. duPont-Columbia University Award for its in-depth, breaking news reporting on what happened to Freddie Gray, the Baltimore man who was critically injured while in police custody and subsequently died a week later. The investigation into his death raised questions about police procedure and prompted major protests in the city and around the country.
    • Raleigh: Capitol Broadcasting Company’s WRAL produced a documentary from the Rio Grande Valley on the tens of thousands of unaccompanied minors illegally immigrating into the U.S. from Mexico and its impact on North Carolina. The report was credited as an “excellent example of local reporting” when it was cited for a 2016 Alfred I. duPont-Columbia University Award.
    • Dallas: NBCUniversal-owned KXAS, which partnered with the Dallas Morning News, was honored with the 2015 Gannett Foundation Al Neuharth Award for Investigative Journalism. The station looked into claims by injured U.S. Army soldiers, particularly those with mental wounds, that they were often mistreated, belittled and even ordered to do things that jeopardized their medical care by commanders. The report prompted changes to the Army Warrior Transition Units and sparked investigations and hearings by the U.S. House of Representatives.
    • “Full Measure”: Debuting in October, this Sinclair Broadcast Group-produced half-hour news program airs every Sunday on 162 television stations in 79 markets. The show focuses on investigative, original and accountability reporting and is hosted by Sharyl Attkisson, a five-time Emmy Award winner and Edward R. Murrow award winner for investigative reporting at CBS News.
    • New Orleans: Hearst Television’s WDSU continues to investigate questionable hiring practices by the district attorney in one of Louisiana’s most populous parishes, who recently brought onboard two employees that raised ethical questions. One new employee was tied to a federal corruption case involving a kickback scheme at the parish courthouse, while the other retired in order to collect a pension and was subsequently rehired in a part-time position.
    • Louisiana: An investigation by TEGNA’s WWL, in partnership with USA Today and other TEGNA newspapers, found that the state’s backlog of untested sexual assault kits may have only accounted for a fraction of outstanding kits. The investigation found that while a new state law requires law enforcement agencies to report how many untested sexual assault kits they had, only half of the agencies did and others reported lower numbers than was actually the case.
    • Rochester: Nexstar Broadcasting Group’s WROC aired a special report in February that exposed how teachers under investigation for misconduct were sent to the Alternative Work Location, dubbed “The Rubber Room.” In the spring of 2014, the 15 teachers and administrators sent to the Alternative Work Location received their salary but were not given any work assignments, the report revealed.
    • Arizona: In January, all Arizona television stations aired “Hooked: Tracking Heroin’s Hold on Arizona,” an investigative report produced in English and Spanish by students at Arizona State University’s Walter Cronkite School of Journalism and Mass Communication in partnership with the Arizona Broadcasters Association (ABA). The program focused on the growing perils of heroin and opioid use in Arizona.
    • Detroit: Graham Media Group’s WDIV examined the school-issued helmets that several local high school football teams were using and tested their ability to prevent concussions. The station’s investigation found one in four helmets that were being used by the Detroit Public School System held one- or two-star ratings on a scale of five.
    • Denver: E. W. Scripps Company’s KMGH won a Peabody Award for its “Investigating the Fire” series, which examined a controlled fire set by the Colorado State Forest Service that expanded into an out-of-control forest fire that cost three lives and damaged 22 homes. Producing more than two dozen reports, two town hall meetings and a 30-minute special, the investigation uncovered negligence on the part of the Forest Service and prompted state lawmakers to take action to compensate victims.
    • Columbus: In a series called “Investigating the IRS,” Dispatch Broadcast Group-owned WTHR uncovered massive fraud caused by mismanagement and lack of oversight inside the Internal Revenue Service that cost American taxpayers billions of dollars. The investigation earned the station a Peabody Award and prompted the IRS to institute permanent changes in agency practices and policies.

    The questions Ms. Sullivan asks are the right ones: Where will local investigative journalism come from? Who will expose corruption and defend the taxpayer? Who is going to hold people accountable?

    Broadcasters understand our role as Americans’ most-trusted, top-choice news source and our power to drive local conversations.  That’s why many TV stations have invested in investigative journalism to fill the gap left by a declining print industry. I believe we have answered Ms. Sullivan’s questions. Broadcasters have already assumed the important role of the watchdogs of our democracy.

  • Rick Kaplan 12:08 pm on September 23, 2015 Permalink

    Revisionist History, Cable Goodies and Still Nothing for Consumers 

    On Tuesday, Federal Communications Commission (FCC) Chairman Tom Wheeler’s Media Bureau chief, Bill Lake, took to the blogosphere in an attempt to reverse the palpable lack of enthusiasm for the Chairman’s plan to eliminate the broadcast TV exclusivity rules. Unfortunately, Mr. Lake’s written defense of the Chairman’s proposal is fatally flawed and obscures the larger questions surrounding the Chairman’s recent efforts.

    There are many reasons why Chairman Wheeler’s self-generated push to eliminate the Commission’s network and syndicated exclusivity rules is misguided. As the National Association of Broadcasters (NAB) has detailed in numerous filings, the exclusivity rules enhance localism without granting new substantive rights. They also create a significant marketplace efficiency by preventing protracted and expensive litigation over private marketplace deals. They are part of a larger comprehensive system developed and reworked by Congress over the last several decades and serve as an important deterrent against cable operator mischief of the sort that industry typically reserves for its customers.

    Since the Chairman first circulated his proposal in August, broadcasters across the country have reminded the FCC that Congress already has in place a carefully constructed framework that includes exclusivity protections at its core. As Mr. Lake acknowledges for the first time, Congress, the White House and the FCC forged an agreement among stakeholders in 1971 that would lead to cable’s compulsory license, content owners’ compensation and broadcasters’ bargained-for exclusivity protection at the FCC. Notably, the cable industry received a hefty government subsidy in the copyright deal, as the government and not the market continues to set the rates cable companies pay for the underlying content they re-sell to consumers.

    Mr. Lake argues that despite this agreement, subsequent events nullify the need for the FCC to uphold the part of the system that promotes local broadcast TV service. Specifically, Mr. Lake asserts that because Congress instituted the retransmission consent regime in 1992, there is no longer a need for the FCC to preserve local exclusivity. The thinking goes that broadcasters need not worry about the importation of distant signals because retransmission consent makes it more difficult for cable companies to obtain the rights to import signals from third-party stations.

    This argument, however, is not only inaccurate, but also completely misses the point. When enacting the retransmission consent regime in 1992, Congress stated expressly:

    [T]he Committee has relied on the protections which are afforded local stations by the FCC’s network non-duplication and syndicated exclusivity rules. Amendments or deletions of these rules in a manner which would allow distant stations to be submitted on cable systems for carriage or local stations carrying the same programming would, in the Committee’s view, be inconsistent with the regulatory structure [adopted in the 1992 Cable Act].

    Contrary to Mr. Lake’s central claim, Congress was well aware of the importance of the exclusivity rules when it granted retransmission consent rights to broadcasters. The “major piece[] of the intervening history” (i.e., the 1992 Cable Act) that Mr. Lake identifies in his blog itself recognized that exclusivity is part and parcel of the copyright/retransmission consent framework. It is awfully difficult to claim that an intervening event fundamentally altered an initial deal when the authors of that event stated that they were incorporating all of the elements of the original agreement.

    But even if those pages of intervening history were lost, one could simply look to the satellite reauthorization bill Congress passed just last year to see how hollow Mr. Lake’s claim rings. In reauthorizing the satellite distant signal license, Congress yet again preserved local exclusivity for satellite viewers. Therefore, even if somehow one could claim that Congress didn’t understand the potential impact of retransmission consent on exclusivity in 1992, no one can plausibly claim that Congress was so blind as to miss the implications of local exclusivity in 2014. And does Mr. Lake seriously think that Congress meant to create a mechanism for broadcasters to enforce their exclusivity rights against satellite, but not against their cable competitors?

    Moreover, missing in all of this historical rewriting is that neither the Chairman nor Mr. Lake even attempt to suggest that consumers may benefit from the Chairman’s proposal or that eliminating the rules will alleviate some burden that the Commission currently faces. Their central premise is simply that the rules are “old” and “unnecessary.”

    As NAB has highlighted elsewhere, if age were the measure of a regulation’s validity, why is the Chairman wasting his time with the relatively recent exclusivity rules, when the World War II-era media ownership rules are comparatively low-hanging fruit? The beauty of the Commission’s oversight of the ownership rules is that, unlike the exclusivity rules, Congress actually requires the FCC to review them every four years to see if they are still operating in the public interest. This raises the question of why consideration of the exclusivity rules has vaulted ahead of a meaningful review of the ownership rules, which have been subject to an ongoing proceeding since 2009 with no end in sight.

    It can be a tough pill to swallow to pull back a proposal one has made to his or her colleagues. In this case, however, it appears that no one but the Chairman and Mr. Lake believe that eliminating the exclusivity rules is a good idea, or even, at best, should be a Commission priority. Even the American Cable Association (ACA) only supports the change insofar as it leads to the Commission outlawing exclusive broadcaster arrangements altogether. With history and common sense as a guide, it’s time to shelve this proposal and move on to more important matters that preserve localism, competition and diversity for the benefit of consumers.

  • Patrick McFadden 12:24 pm on September 11, 2015 Permalink
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    Some Changes for a More Balanced Auction 

    Yesterday, NAB filed a limited petition for reconsideration of the Federal Communications Commission’s (FCC) recent “Procedures Public Notice” laying out additional details concerning the forthcoming broadcast spectrum incentive auction. First, we’re asking the Commission to reconsider its decision to relocate TV stations in the duplex gap, which eliminates the only remaining exclusive use spectrum available for wireless microphones broadcasters use to cover breaking news and emergencies. Second, we’re asking the Commission to reconsider the level of market variability it will permit in light of recent progress made in international coordination with Canada and Mexico. We’re limiting our request for reconsideration to those two issues primarily because they are subject to quick fixes. The Commission could grant our request without in any way threatening its target March 29, 2016 start date for the auction.

    Separately, we are also seeking clarification as to whether the FCC’s current incentive auction design is consistent with the Spectrum Act’s requirement that the incentive auction be voluntary for broadcasters – or whether the FCC’s chosen mechanism will effectively nudge broadcasters into participating.

    Here’s the issue. The natural consequence of the FCC’s variable band plan is that some broadcasters will be assigned channels that are in the new wireless band – that is, they will be operating on channels that are used by wireless carriers in other markets. For a long time, the FCC had been suggesting that broadcasters would be randomly selected to be placed into the wireless band, and it would not be based on whether and to what extent they participated in the auction. Obviously, it would be alarming if the FCC made judgments based on participation.

    The recent Procedures Public Notice, however, could be read to suggest the FCC has decided that only non-participating stations will be placed in the wireless band if the auction successfully closes at the initial clearing target. In addition, it appears that the only other stations that could be added to that list are broadcasters who participate but drop out in one stage, only to see the auction move on to another stage because it could not close. In other words, if the auction fails to close at that initial stage, the only additional stations that can be relocated to the wireless bands are stations that drop out because their asking price is too high. This doesn’t exactly sound “voluntary” to most broadcasters.

    While the Commission doesn’t seem to believe there is any harm to broadcasters if they are assigned a channel in the wireless band because they will receive the same protections in the repacking process as other stations, no broadcaster would voluntarily choose relocation there.

    Television stations operating co- or adjacent channel to new wireless licensees will be extremely limited in terms of their ability to expand their facilities after the auction. As a practical matter, this may constrain their ability to relocate, increase their service area or even innovate. Further, broadcasters, as well as the Commission itself, are all too familiar with the uncertainty and disputes surrounding television stations operating on channel 51 and wireless carriers operating in the 700 MHz Lower A Block. Stations on channel 51 are protected by the Commission’s rules, just as the Commission is now promising to protect stations stranded in the 600 MHz band. Those protections, however, have not prevented costly and time-consuming disputes. Similarly, a broadcaster that has a station relocated in the 600 MHz band will have to factor the prospect of ongoing inter-service interference issues into its business plans.

    The bottom line is that a broadcaster placed in the wireless band will be surrounded by wireless operations that are incompatible with, and hostile to, the broadcaster’s continued operations. It would be as if one’s home was forcibly relocated to a commercially-zoned neighborhood; the home might be identical, but it would not be as comfortable, and certainly not as valuable.

    Our hope is that the confusion emerging from the Procedures PN is just that and that broadcasters do not now have to factor in their participation decision the potential penalty of being shipped to the wireless band. The incentive auction can be a tremendous success as a voluntary auction and broadcasters – not just the speculators – are eager to keep the process moving swiftly.

  • jmago2014 10:23 am on September 8, 2015 Permalink  

    Program Exclusivity, Part III: Haven’t We All Seen This Movie Before? 

    An old adage says that those who do not study history are doomed to repeat it. In the world of communications, I would posit a variation on that adage: Those who have lived through regulatory controversies are doomed to repeat them – forever. As one who has witnessed many regulatory controversies since 1978, I am one of the doomed.

    The current controversy over network non-duplication and syndicated exclusivity provides a prime example. I first encountered this controversy in 1980, when, as a very young litigation attorney for the FCC, I was tapped to help write a brief defending the FCC’s repeal of the syndicated exclusivity rule. Cable operators – and the National Cable & Telecommunications Association (NCTA), which was led by Federal Communications Commission Chairman Tom Wheeler at the time – had contended that the rule was unnecessary and harmful to them, while broadcasters argued they had bargained for the right to attract viewers with popular programming so they could earn the revenues to serve their communities. The rules provided a practical enforcement tool to prevent cable operators from siphoning local stations’ audience share with duplicating programming. In a split vote, the FCC repealed the rule.

    I remember that writing the brief wasn’t easy. I spent many long hours pouring over the record to find every nugget to support the decision. In the end, the Second Circuit deferred to the expert agency’s judgment because the FCC was able to point to two extensive staff reports, multiple studies and several years of investigation to justify the rule’s repeal.

    That could have been the end of the matter, but it was not. Just eight years later, in light of actual competitive damage to broadcasters and real world experience, the FCC reversed course. It reinstated the syndicated exclusivity rule, finding that it served the public interest. This time the cable operators went to court.

    I had less of a role in this second case, but when you read the decision, the agency’s line of defense clearly was very similar. The FCC pointed to new studies and an extensive record to support its new decision. Of course, it was harder, because the Commission was reversing itself – there is a much higher burden for the agency in those situations. But, they were able to meet that burden because they had substantial data to rely on.

    This brings me to the current debate. To reverse itself again (not just on syndicated exclusivity, but now network non-duplication as well) the Commission will need to have a very strong record to show that the rules are unnecessary and/or harmful. I don’t see that here.

    It is not enough to merely say that times have changed. While there may be more types of multichannel video providers today, that also means broadcasters face more competition for local audiences and more fragmentation of their advertising revenues. Nothing has undermined the Commission’s finding, when reinstating the syndex rule, that cable competes with free over-the-air television and has the incentive to erode the exclusivity a local station bargains for. The record shows that the incentive to undermine exclusivity is actually stronger today, because cable actively pursues and earns a greater share of local advertising dollars. And, why else would cable operators like Cablevision be asking not only to eliminate the current rules, but also to have the Commission prohibit broadcasters from even bargaining for local exclusivity? The Commission cannot conclude on this record that cable operators are unlikely to import duplicating distant signals harmful to local stations. That is going to be a problem for today’s FCC litigators if the Commission repeals these rules.

    Others assert that there is no reason for the FCC to enforce exclusivity, as broadcasters can fight for exclusivity through contracts. But stations cannot simply use the courts to enforce contractual rights to exclusivity. Court dockets are already overcrowded, leading to delays in deciding civil cases. Beyond that, it is not clear just what type of private action a station could bring. The likely party importing a duplicating signal, the cable operator, has access to a compulsory license and is not a party to the network/syndicator/station contract. It seems that the only way to stop the duplication would be for the network or syndicator to stop delivering its programming to the duplicating distant station. How would that serve the public? Everybody loses in that scenario.

    Even assuming a station could get into court, the cost of the litigation would be prohibitive. The median cost of civil litigation is around $91,000 and would likely be more here since stations would need lawyers with special expertise. That would drain most stations’ resources for hiring reporters or purchasing updated equipment (in addition to the investments the Commission either requires or urges stations to make to improve accessibility) and could break stations in small markets where revenue margins are very slim. If local service in those markets still matters, the exclusivity rules still matter. The FCC should retain these rules.

    Jane Mago retired as NAB’s General Counsel and Executive Vice President of Legal Affairs last year. She joined NAB in 2004 after a 26-year career at the Federal Communications Commission, where she held many high-level positions including general counsel, chief of the Office of Strategic Planning and Policy Analysis, deputy chief of the Enforcement Bureau and legal advisor to three commissioners.

  • NAB 11:33 am on August 28, 2015 Permalink  

    Attempting to Hold the FCC to the Law on Effective Competition 

    Scott Goodwin, associate general counsel, National Association of Broadcasters, joins guest blogger Steve Traylor, executive director and general counsel, National Association of Telecommunications Officers and Advisors.

    Today, our organizations – the National Association of Telecommunications Officers and Advisors (NATOA) and the National Association of Broadcasters (NAB) – along with a local franchise authority in Minnesota, filed a lawsuit in federal court challenging the FCC’s decision this past June to upend the way it determines whether cable communities are “effectively competitive.” In our view, the Commission’s decision – made over the objection of two commissioners – was bad for consumers and wrong on the law.

    Under the 1992 Cable Act, local franchise authorities may regulate a number of the ways in which cable operators interact with consumers in areas that are not deemed to be “effectively competitive.” If an area reaches a certain level of competition in pay TV services, however, the local authorities are stripped of many of their consumer protection tools and the local cable operator is free to bill and set terms of service pretty much as it pleases.

    Last December in the satellite reauthorization bill, Congress instructed the FCC to make limited administrative changes in the processing of effective competition petitions filed by small cable operators. Congress asked the FCC to complete this relatively simple task within six months of the bill’s passage. The notion was that small cable operators lacking in resources could benefit from a streamlined filing process without substantively changing their obligation to prove that they are operating in “effectively competitive” areas.

    Rather than swiftly tackling this uncontroversial task, FCC Chairman Tom Wheeler instead opted to push through an order that turned Congress’s directive on its head. Instead of mere administrative changes, the chairman proposed to deem the entire country effectively competitive – about as substantive a change as one could imagine. To make matters worse, Chairman Wheeler also proposed to make this change for all cable operators – big and small. So what should have been an insignificant adjustment ended up being a sand-shifter that cable’s biggest players could love.

    How does this change benefit consumers? It doesn’t. Literally not at all. No one could even muster a serious claim to that effect. The Commission could only tell the public that this new direction would cut down on the time it took for big cable operators to file effective competition petitions (even though an operator could file one petition covering thousands of areas) and for FCC staff to process those petitions.

    In fact, consumers are the big losers in this sea change. By deeming the nation effectively competitive, the FCC stripped from local franchise authorities across the country their longstanding roles as cops on the beat. Without the power to protect consumers, local authorities are being pushed aside to allow for higher cable prices – especially for basic cable service – more mysterious fees, higher equipment costs, and the potential disintegration of the basic tier of service, including the loss of Public, Educational and Governmental (PEG) channels.

    It’s no wonder that a large group of U.S. senators and representatives opposed the FCC’s decision. This group includes Sens. Barbara Mikulski (MD), Patrick Leahy (VT), Al Franken (MN), Amy Klobuchar (MN), Jeff Merkley (OR), Edward Markey (MA), Ron Wyden (OR), Bernard Sanders (VT), Jack Reed (RI), Tom Udall (NM), Sheldon Whitehouse (RI), Sherrod Brown (OH), Tammy Baldwin (WI), Martin Heinrich (NM), Elizabeth Warren (MA) and Rep. Frank Pallone Jr. (NJ-6).

    Unfortunately, this action appears to be only the first step that the Commission may take that gives cable operators – yes, cable operators – more leeway in and less oversight over their customer service. Not only did the FCC vote to disable an important check on cable companies at the local level, but now it is weighing whether to dismantle part of our nation’s localized system of broadcasting, which ensures that every local community has relevant news and information available to them. This trend is even more disturbing in light of cable’s rapid consolidation and truly dismal customer service record.

    This hardly seems the time to put a thumb on the scale already favoring the cable industry. We filed this lawsuit because we’re hoping to preserve one of the last vestiges of active oversight against an industry that doesn’t treat its consumers as if it is subject to any, let alone effective, competition. While federal courts traditionally give agencies a great deal of leeway, we believe that this time, they’ll recognize that the FCC went way too far.

  • Jerianne Timmerman 10:15 am on August 20, 2015 Permalink

    The Mandatory “Upgrade” the FCC Forgot 

    In a blog last week claiming credit for “upgrading” the FCC’s “media rules” to reflect today’s marketplace, FCC Chairman Tom Wheeler neglected to even mention the mother of all media rules, the broadcast ownership restrictions. Unfortunately, this conspicuous omission should come as no surprise. Despite Congress expressly requiring the FCC to regularly update its ownership rules, the Commission has repeatedly – even serially – failed to modernize those restrictions.

    The FCC has strictly regulated the multiple ownership of broadcast outlets since the World War II era. The Commission prohibited in 1941 the licensing of a TV station under the same ownership as another station broadcasting in substantially the same area – and nearly 75 years later, the Commission still prohibits the common ownership of two TV stations in most markets. By comparison, other FCC ownership restrictions – such as the disco-era ban on common ownership of a newspaper and a single radio or TV station in the same market – are merely middle-aged, rather than senior citizens. If the FCC’s criteria for determining whether its rules should be eliminated depends primarily on their age – as the Chairman’s blog implied with regard to the “50-year old” program exclusivity rules – then the almost octogenarian ownership rules should be long gone from the FCC’s books.

    Much more importantly, the FCC’s failure to update its ownership rules flies in the face of Congress’ directive that the Commission must every four years “determine” whether its rules remain “necessary in the public interest as the result of competition” and “repeal or modify” those that are not. While the Commission may be fulfilling its obligations under the 2014 Satellite Television Extension and Localism Reauthorization Act, as the Chairman specifically noted, the FCC at the same time has cavalierly disregarded its obligation under the Telecommunications Act of 1996 to complete the 2010 quadrennial ownership review.

    As the D.C. Circuit Court of Appeals suggested in an earlier ownership case, the Commission’s failure to make the determinations required by statute for retaining its ownership rules indicates its inability to do so. Retaining the current newspaper/broadcast cross-ownership ban, for example, would require the Commission to show that competition and diversity in the media marketplace have not changed since 1975. Obviously, that is impossible to show, as the owners of newspapers, TV stations and radio stations have made clear starting in 1996 when the Commission first requested comment on reforming the cross-ownership ban. Despite last week’s story about updating FCC rules to “better reflect today’s media marketplace,” the cross-ownership prohibition stands unchanged, nearly two decades since the Commission began reexamining it.

    In irresponsibly delaying reform of its ownership rules, the Commission has had to deny the existence of competition to TV and radio stations and newspapers. For example, even though the FCC, according to Chairman Wheeler, is “updat[ing] the [broadcast] Contest Rule for the Internet age,” the agency – seemingly with a straight face – previously dismissed competition in the video marketplace from pay-TV and online sources as being of “limited relevance” for its review of the local broadcast TV ownership rule. And, as newspapers continue to disappear, the Commission effectively ignored the hundreds of millions of Americans that use the Internet, and dismissed evidence showing consumers moving away from newspapers to online news sources, because the Internet is not available to all Americans. So while the Internet, according to the Commission earlier this year, “drives” the U.S. economy and serves “every day” as a “critical tool” for Americans to “conduct commerce, communicate, educate, entertain, and engage in the world,” in the alternate universe of broadcast regulation, it merits only a change in the FCC’s contest disclosure rules (which, notably, apply only to over-the-air broadcasting and no other medium).

    For decades, NAB and its members have fought to truly modernize the FCC’s media rules by reforming unfair and inequitable broadcast ownership restrictions – rules that do not apply to broadcasters’ increasingly consolidated video and audio competitors, including cable, satellite and online. Rather than indulging in misplaced self-praise over eliminating rules that are as important as ever in the video marketplace, the Commission must stop willfully and blatantly ignoring its statutory duty to, borrowing a phrase from Chairman Wheeler, promote the “public interest” and “help ensure the continued viability” of free, over-the-air broadcast service. Particularly in an era of overpriced subscription services offered by companies with rock-bottom customer service ratings, American consumers deserve a viable – indeed, a thriving – free option.

  • Rick Kaplan 11:52 am on July 22, 2015 Permalink

    You Want Breaking News Coverage? Then Mind the Gap 

    When was the last time you turned to TV to follow details of breaking news as it unfolded – the real, on-the-ground coverage from reporters in the field? In the first half of this year alone, we learned firsthand about the civil unrest in Baltimore following the death of Freddie Gray, followed with bated breath the manhunt throughout local communities in upstate New York for two convicted murders who had escaped from prison, watched crowds of Americans gather on the South Carolina State House grounds to see a flag come down and heard from those rallying on the Supreme Court steps from local TV reporters at the scene.

    If you care about live, on-the-ground coverage of events that are shaping our world – then you care about something called the duplex gap.

    Last year, the FCC announced it would no longer reserve two channels in each market within the TV band for critical wireless microphone use, which is essential for broadcaster coverage of breaking news and emergencies. Instead, the FCC decided to set aside space for wireless microphones in the duplex gap, a vacant lot of spectrum located within the wireless band. Wireless mics’ new home in the duplex gap was by no means a perfect solution, but it was all the FCC said it could manage, and broadcasters have done their best over the past year to start figuring out exactly how to make these new digs work.

    But just as mics were getting ready to settle into their new home, the FCC just last month said there was one more catch: this real estate would not be available everywhere, as the FCC will place TV stations themselves in the duplex gap in certain markets after the spectrum auction. When a TV station sets up shop in the gap, no other service can use it, including the mics used by reporters rushing to cover tragedy, weather emergencies and other critical events on the ground.

    This was quite a change from the FCC’s initial promise, so many parties, including FCC commissioners, asked Commission staff to explain why this about-face was necessary. In producing its information, the staff revealed that it had only done an analysis of one possible scenario for each of three spectrum recovery targets, but staff argued that data showed that in certain markets the FCC needed to put stations in the duplex gap. Chairman Wheeler has said that the number of affected markets would be no more than six. This proposed change is very bad news for newsgatherers who rely on wireless mics to report the news, for viewers who depend upon local and national reporters to get in the middle of a story and public safety officials, who work hand-in-hand with local broadcasters to keep the public and first responders safe.

    But the FCC staff is insistent on undoing the original compromise and broadcasters are now in a pickle. We support the auction and want to see it succeed. But we also know we need wireless microphone technology to ably cover the news and keep our communities safe.

    So yesterday NAB proposed a new compromise (or “recompromise”) – one that is far from ideal for us – but one that at least holds the Commission to its (new) word, and asks that no more than one station in each of six markets (if necessary) are put in the duplex gap to avoid widespread elimination of wireless microphone use to cover local news. Six markets is damage enough, especially if one of them is the second-largest. But if that’s the number, then let’s agree to it, figure out alternative solutions in those markets for wireless mics and go forward.

    If the answer, however, is that it’s potentially more than six markets, the FCC has a major credibility problem. If the goalposts move again, we should all be wary of what’s in store for this auction. For it to be successful, we all need to be able to trust the FCC.

    Broadcasters have met the FCC far more than halfway. Now let’s put it in ink and move on to the auction and better solutions for broadcasters, their viewers and public safety.

  • Patrick McFadden 11:04 am on April 30, 2015 Permalink
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    What to Expect When You Are Expecting (TV White Spaces Comments) 

    Last month, NAB filed a petition asking the Federal Communications Commission (FCC) to amend certain rules governing the use of TV White Spaces (TVWS) devices. In particular, we asked the FCC to require fixed TVWS devices to eliminate the illusory notion of “professional installation,” an undefined concept that allows an installer to enter the location of a device in the TVWS database. We’re asking the FCC to require automatic geolocation capability, and to hold database administrators accountable for falsified information entered into the database.

    While oppositions and comments on our petition are not due until tomorrow, the responses are predictable, and, in the public interest we thought we’d provide a little primer to what you are likely to see from TV white space proponents and their proxies.

    TVWS COMMENT #1: “NAB cannot identify a single instance of harmful interference caused by an unlicensed device.”

    This is a personal favorite, because it’s misleading on so many different levels. First, it’s a little like saying you shouldn’t wear a seatbelt because you haven’t yet had a car accident, or you shouldn’t have homeowners insurance because your house hasn’t yet burned down. No adult uses this approach in real life. Instead, we take reasonable precautions, precisely to avoid bad outcomes we can clearly anticipate. Second, there’s no surefire way to know if there has been harmful interference to licensed services from unlicensed devices. If a television viewer can’t receive a particular channel, she has no way of knowing if that’s due to a neighbor’s use of a TVWS device; she may just assume she can’t receive that channel and give up. Third, there are less than 600 TVWS devices operating nationwide right now. Yes, in the entire United States. Saying TVWS devices haven’t yet caused interference is a little like saying you haven’t yet been attacked by Bigfoot. It’s a true statement, but it doesn’t prove anything, and you probably don’t want to brag about it in public.

    TVWS COMMENT #2: “Problem? What problem? The FCC has cleaned up the database.”

    Not long after NAB filed its petition, the FCC went to work to clean up the database. TVWS enthusiasts are likely to say that the database has now been thoroughly scrubbed and polished and, as a result, there is no longer a problem. This is the equivalent of a teenager telling his parents he cleaned his room when all he did was shovel everything into the closet and slam the door. What you won’t hear is that anyone – yes, even you! – can register a TVWS device in the database right now, using a falsified location, and get access to channels you should not be able to use. Are you in Washington, D.C. and stuck without a single vacant TVWS channel? Don’t worry! You can easily register your device and enter its location as rural Montana to get access to channels that are currently occupied by local licensed users. This is the result of an obviously broken system destined to lead to interference problems.

    TVWS COMMENT #3: “TV White Spaces are really, really cool.”

    They may try to distract you. Because they don’t want to acknowledge the problem, and because they can’t deny the risk of interference, one or more TVWS enthusiasts will point at a really shiny object, and hope you look. They’ll wax poetic about the untapped, limitless benefits of more unlicensed spectrum for their corporate financiers. They’ll promise “Super WiFi,” “WiFi on steroids,” increased broadband competition, and expanded rural service. Of course, they won’t acknowledge that there are only a few hundred of these devices operating right now, five years and counting after the FCC approved the current rules.

    TVWS COMMENT #4: “NAB’s petition is premature. Don’t worry.”

    Kicking the can down the road is a great way to try to outlast the opposition. Some will argue that, even if there is a problem, the FCC can easily fix it later. This is, of course, shortsighted; rumor has it horses are really hard to chase down once they’ve been let out of the barn. Instead, a more reasonable approach is to establish clear rules of the road and allow manufacturers to start incorporating automatic geolocation capability in new devices before the market heats up. If, and it’s a big if, white spaces technology ever actually does live up to the rather large promises its proponents have been making, retrofitting thousands or hundreds of thousands of devices to incorporate geolocation capability will be costly and disruptive. That’s exactly the outcome NAB is trying to avoid.

    NAB is eager to create an environment in which TV White Spaces can be used effectively while protecting existing licensed users. That’s why we have proposed only modest rule changes to help make White Spaces work for everyone. The rules already require some TVWS devices to have automatic geolocation capability – we’re merely asking the FCC to extend that requirement to fixed devices, which transmit at high power. We’re also asking the FCC to take the simple step of incorporating some basic accountability into its database administrator rules, so as to avoid the next batch of John Q. Public registrations with addresses in Anytown, USA, and phone numbers of 867-5309. These changes aren’t complicated, and they aren’t costly. Let’s get this done.

  • Bob Weller 10:24 am on March 30, 2015 Permalink

    Defanging a Paper Tiger 

    Every broadcaster dreads a visit by a Federal Communications Commission (FCC) inspector, but broadcasters also know that the presence of the “Highway Patrol of the Airwaves” helps keep the playing field level and the participants honest. Violators of the FCC’s rules risk detection and know that a fine (or worse) may result.

    For longer than the FCC itself has existed, a network of field offices has been key to maintaining order on the airwaves by resolving interference disputes, shutting down unlicensed operators and providing valuable and dispassionate advice on the FCC’s rules and policies that help minimize ongoing spectrum conflicts. The FCC’s own website observes that its field offices are its “eyes and ears” on the ground. Unfortunately, FCC Chairman Tom Wheeler is now circulating an order that effectively leaves the FCC in the dark.

    Earlier this month, Chairman Wheeler proposed to his colleagues to close more than half of the FCC’s field offices and cut field enforcement staff by almost two-thirds. New York City, Atlanta, Miami, Los Angeles, San Francisco, Chicago, Dallas and Columbia, Maryland: that’s the entire list of offices that would remain open. Slated for closure are offices near major cities like Seattle, Denver, Boston, Philadelphia and Houston.

    GPS outage in Honolulu? Chairman Wheeler says he’ll send a “Tiger Team” from Columbia, Maryland, to work on it. Sheriff department radios getting jammed in Tampa? Someone will be there within 24 hours, he told Rep. Gus Bilirakis (FL-12). All technical enforcement for the entire nation will be handled by a cadre of just 33 FCC agents spread across only eight offices.

    As it stands today, most of the field offices already operate with only a skeleton crew. In 1995, the FCC automated its monitoring station operations, resulting in the closure of more than a dozen field offices with a commensurate reduction in staffing. Some of the remaining offices were converted to “Resident Agencies,” a euphemism for a one- or two-person office with no support staff. At that time, the FCC offered early retirement and a humane personnel relocation program. Increased training, improved technology and a reasonable travel budget were offered as assurances that no reduction in enforcement effectiveness would result.

    In the past couple of weeks, the FCC’s Enforcement Bureau informed stakeholders that there would be no reduction in enforcement effectiveness because there would be increased training for the remaining agents, improved technology and an increase in travel funds. Do those assurances sound familiar? Even if all of the promises are kept about new training and new equipment and more money for gasoline, and even if the FCC continues to largely ignore all complaints except for interference to public safety (as they do today), the proposed staffing numbers just don’t add up. People take leave, training takes time, on-scene investigations mean in-office paperwork. So, the actual number of field agents available for assignment on a typical day might be half the total, or 16. Sixteen pairs of boots on the ground, doing field investigations for the FCC for the entire country. Think about that.

    In 1935, shortly after the FCC was established, there were about 50,000 FCC-licensed stations, including two-way, broadcast, amateur and marine. Unlicensed devices, such as WiFi, microwave ovens and garage door openers did not exist. Today, there are hundreds of thousands of licensed stations and hundreds of millions of unlicensed devices. How can the FCC reasonably expect to keep on top of all these transmitters and ensure the safety of Americans with a day-to-day crew of perhaps 16 field agents nationwide?

    The problems with the FCC’s spectrum enforcement plan will only be compounded by its intention to promote additional spectrum sharing. NAB supports the concept of spectrum sharing, but a robust mechanism for enforcement is critical to ensure that devices operate only on the frequencies they are authorized. Even if a fraction of a percent of devices have incorrect data or malfunction, widespread interference – including interference to safety-of-life services – will result. That means disrupted emergency and AMBER Alerts, unreliable police and fire communications, riskier air travel and a host of other scary possibilities.

    Just last week, NAB filed an emergency petition for rulemaking asking the FCC to fix its broken white space database. One-third or more of the database entries contain errors, many of them serious enough to obscure the location and/or ownership of the actual transmitters, which are required to register in a database so that they can be shut down if interference occurs. The FCC is now proposing to expand use of white spaces in part because of the purported sparkling quality and wild success of the database system. Further, the agency proposes to use the white space database system as a model for frequency-sharing in other bands, including some used by Department of Defense radars and weak-signal satellite downlinks.

    The unauthorized use of devices can, and has in the past, caused widespread interference – including interference to safety-of-life services. FCC field staff are uniquely qualified with training, equipment and authority to locate and shut down such devices. Even if the affected user is able to identify the source of the problem, there is no right of private action in the Communications Act that could force the source shut down. State and local law enforcement are reluctant to take on interference or unauthorized transmitter cases due, understandably, to lack of expertise. FCC field staff possess the expertise and have sole authority to investigate and enforce laws relating to radio.

    Fortunately, there is still time for the FCC to reverse course and rethink its proposal to gut the field offices. Perhaps it took the proposal itself to help the agency realize just how valuable those who use radio frequencies believe the field offices to be. Most of all, at a time when it the FCC is pursuing policies that will inevitably create an environment where interference is more likely to occur, it must not devastate its field enforcement resources.

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