Microsoft representatives met separately with FCC’s Wireline and Media Bureaus Mon. to urge adoption of High Tech Broadband Coalition’s “connectivity” principles in wireline and cable broadband access proceedings. Microsoft counsel Scott Harris said in ex parte letter explaining meeting: “The content, applications and devices that have proliferated as the Internet has become a mass-market medium have proliferated in large measure because innovators have been able to rely on the fact that, in the dial-up world, the provider of the underlying facility does not -- and indeed cannot -- discriminate against the types of information traversing its system or the devices that are attached to that system.” Letter said it was “not clear that those norms -- and thus the benefits that flow from them -- will prevail in the broadband world envisioned by the Commission’s [rulemaking proposals].”
Draft bill circulated by Reps. Tauzin (R-La.) and Dingell (D-Mich.) would require broadcasters to cease analog TV service and operate in digital only by Dec. 31, 2006, and do so without dual must-carry. Bill, if passed, would impose 2006 date originally intended by Congress when it mandated that broadcasters return their analog spectrum and effectively shut down analog broadcasting for good. Under current law, TV station doesn’t have to return its analog spectrum until 85% of local market can receive DTV signal, but new bill draws hard-and-fast line at Dec. 31, 2006 -- 85% or not.
FCC began most comprehensive look at media ownership regulation it ever has undertaken, Chmn. Powell proclaimed, by examining virtually all rules limiting broadcast ownership. At Thurs. meeting, item passed 3-0, with Comr. Martin concurring in part and Comr. Copps concurring but not voting in favor of item. Copps said he believed “tone” of Notice of Proposed Rulemaking (NPRM) indicated Commission had prejudged situation in favor of deregulation. Powell denied that, telling reporters after meeting that he was keeping “an open mind.”
Gearing up for new round of retransmission consent talks, to begin Oct. 1, small cable operators say they're ready to take on broadcast networks at FCC and in Congress. American Cable Assn. (ACA), in FCC filing that’s still in draft form, is asking Commission to initiate either inquiry or rulemaking investigating tactics major broadcast networks have used in securing retransmission consent from small cable operators in each of last 3 rounds of retransmission consent talks, in 1999, 1996 and 1993. ACA board also is drafting proposed legislation to address retransmission consent and other issues small operators believe are driving up monthly cable bills and giving consumers fewer viewing choices. ACA has been in touch with Sen. McCain (R-Ariz.) and others in House and Senate about those issues and believes legislation will be introduced this year, officials said.
FCC established public comment cycle on order reconsidering certain aspects of previous Notice of Proposed Rulemaking (NPRM) and order on cable rates. Original order and NPRM, released in June, proposed to update FCC’s cable TV rate regulations to reflect end of its jurisdiction over rates for cable programming services and to update its rules on rate regulation of basic service tier rates and related equipment by local franchising authorities. In Aug., FCC issued another order, this time reconsidering some of changes it was proposing. NPRM and order were published in Federal Register Sept. 5, so FCC said comments on item (MB 02-144) would be due Nov. 4, replies Dec. 4.
FCC in recent weeks has been virtually overrun by lobbyists seeking to convince commissioners and their staffs that “primary video” means either single video programming stream or as many as 6 streams of video, data and other material. Whether agency is poised to make decision remains unclear. Question could land Commission in Supreme Court, which is why commissioners are weighing arguments so carefully, FCC sources said. Sources said Commission may soon put issue out for public comment in new rulemaking in order to further spur DTV transition, but it couldn’t be determined at our deadline whether it would be on Sept. 12 meeting agenda. Issue centers on “must-carry” in digital world, where broadcasters will have 6 MHz of digital spectrum at their disposal. Although FCC already has decided broadcasters have right to carriage on cable systems, cable MSOs are fighting idea that stations have right to carriage of however many streams they can pack into that 6 MHz using digital compression technology.
FCC at Sept. 12 agenda meeting is likely to make final decision on question of dual must-carry, concluding once and for all that it’s unconstitutional, sources tell us. Commission had made that decision tentatively in Jan. 2001 (CD Jan 24/01 p3), believing that forcing cable operators to carry both analog and digital signals of broadcasters would violate cable operators’ First Amendment rights. In its decision -- released in last week of then FCC Chmn. William Kennard’s tenure -- Commission said station’s primary channel entitled to mandatory cable carriage included “a single programming stream and other program-related content” -- but not necessarily full multiplex of separate programs carried on single digital channel. FCC already has said broadcasters are entitled to digital must-carry by cable operators after DTV transition, so decision Sept. 12 would mean that once 85% of U.S. population has digital access, under congressional plan, broadcasters must turn off their analog signal and switch entirely to digital. But remaining questions about what must be carried by cable operators will be explored in new rulemaking, also tentatively on docket for Sept. 12, sources said. That item would focus on issue of multicasting and what constitutes primary video signal in 6 MHz of spectrum broadcasters have been given. NAB and NCTA in recent weeks have been lobbying furiously on issue, with NAB contending broadcasters have right to have all programming, data and services on their 6 MHz carried by cable. NCTA has argued that, too, would constitute impingement on cable operators’ First Amendment rights. Also tentatively on docket, we're told, is omnibus rulemaking on broadcast ownership rules in context of FCC’s biennial review. That proceeding would formalize Commission’s exploration of those issues, as detailed by Media Bureau Chief Kenneth Ferree earlier this year(CD June 18 p1), sources said.
Federal Election Commission should consider rewriting its proposed rulemaking on electioneering communications “so as to avoid the possibility of overbroad enforcement of the statute and constitutional challenge to it,” FCC said in comments to FEC. FEC is considering portion of Bipartisan Campaign Reform Act (BCRA) passed earlier this year involving political announcements on broadcast, cable and satellite systems. Act itself is under multiple constitutional challenges already, and several FEC commissioners said at hearing last week (CD Aug 29 p1) that much of their work in rulemaking might be rendered moot by court. FCC’s concern was fact that FEC was supposed to regulate only electioneering communications reaching more than 50,000 people. FCC Mass Media Bureau Chief Ken Ferree wrote that whenever data on potential viewership or listenership were “incomplete or ambiguous, the process should err on the side of permitting the communications to take place without restriction, rather than the opposite.” Otherwise, Ferree wrote, rule could be “deemed unconstitutionally overbroad.” His primary concern in his 3 pages of comments was burden FEC was looking at placing on FCC in terms of creating online database of electioneering communications. BCRA designates FCC for creating that database as part of agency’s Web site, but Ferree said he wanted “to make clear that this undertaking could be extraordinarily complex and will require the expenditure of substantial resources in terms of time, money and personnel.” Among burdens: (1) FCC would have to integrate population information, congressional and state boundary geographic information, and service area data for broadcast, cable and satellite systems. (2) New technology would have to be acquired to create database, as existing databases couldn’t be used because they contained much proprietary information that FCC couldn’t disclose. (3) New forms and electronic filing systems would be needed, which would “require spending significant funds.” Ferree said he was confident agency could meet BCRA requirement, but emphasized that FEC’s rulemaking must “simplify the task as much as possible.” He also said rulemaking sought comment on how to define reach of given communications, and asked that FCC be allowed to make that determination, “based upon our expertise and available data resources.”
Federal Election Commission held hearing Wed. on its rulemaking that would create carveouts from regulation of what Chmn. David Mason (R) called “a new term” -- “electioneering communications” -- despite fact that underlying law, Bipartisan Campaign Reform Act (BCRA) of 2002, is undergoing multiple court challenges. Under BCRA, any electioneering communication on broadcast, cable or satellite airing within 30 days of primary or 60 days of general election for federal office would have to meet strict rules. Any funder of such communication that spent more than $10,000 annually on such communications would need to disclose communication within 24 hours, and corporations and labor groups would be prevented from funding such communications during that window. Guidelines were inserted, according to BCRA’s authors -- Senate Commerce Committee Chmn. McCain (R-Ariz.) and Sen. Feingold (D-Wis.), Reps. Shays (R-Conn.) and Meehan (D-Mass.), and the electioneering communications authors, Sens. Snowe (R-Me.) and Jeffords (I- Vt.) -- to provide U.S. courts with bright line test to ensure law wasn’t overturned on First Amendment grounds. Hanging over FEC hearing, however, was very real possibility that BCRA rulemakings would in part or in whole be rendered moot by courts. FEC is expected to approve final rules on electioneering communications by Sept. 26.
Federal Election Commission (FEC) today (Wed.) and Thurs. will hold hearings on its Aug. 2 proposed rulemaking to regulate election communications. Although FEC chose in this round of rulemakings not to specifically examine use of Internet, its study of broadcast, cable and satellite communications in rulemaking were seen as precedential if FEC chose to impose regulations on e-mail or web sites. Hearings will be at FEC, 999 E St. NW, in 9th floor hearing room, beginning both days at 9:30 a.m. Today’s witnesses include Michael Malbin of Campaign Finance Institute, Donald McGahn of National Republican Congressional Committee, Glen Shor of Campaign and Media Legal Center, Heidi Abegg of American Taxpayer Alliance, Robert Alt of Claremont Institute, Lloyd Mayer of Independent Sector and Tim Mooney of Alliance for Justice. Hearing is scheduled to adjourn today at 3:30 p.m., Thurs at noon. Witnesses Thurs. include Larry Noble of Center for Responsive Politics, Paul Sanford of FEC Watch, Don Simon of Common Cause and Democracy 21, Kristina Wilfore of Ballot Initiative Strategy Center, and Kay Guinane of OMB Watch. FEC’s rulemaking would regulate communication for candidate for federal office whose communication would be airing within 60 days of general election or within 30 days of primary election. Public comments are due by Aug. 29.