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FCC Seeks Comment on Key TCPA Issues

Posted in Broadcast Regulation, Broadcast Technology, Telephone Consumer Protection Act

The Federal Communications Commission (“FCC” or “Commission”) has taken its first step in addressing several key issues under the Telephone Consumer Protection Act (“TCPA”) that were raised by the recent D.C. Circuit decision that resolved an appeal of the Commission’s 2015 Omnibus TCPA Order. Specifically, the D.C. Circuit’s March decision in ACA International v. FCC vacated the Commission’s overly broad definition of an autodialer and the Commission’s approach to reassigned numbers, and affirmed the Commission’s approach to revocation of consent. On May 14, the Commission’s Consumer and Governmental Affairs Bureau issued a Public Notice in light of the decision.

The Public Notice seeks comment on several key TCPA issues, including:

  • Definition of an Autodialer: Whether equipment is an autodialer or not determines whether TCPA consent requirements apply to calls to wireless numbers. Accordingly, how the FCC interprets the term autodialer directly effects the reach of the TCPA. The D.C. Circuit determined that the interpretation from the 2015 Omnibus TCPA Order—which swept into the definition smart phones and tablets—was overly broad. Accordingly, the Public Notice explicitly asks how the Commission might “more narrowly interpret the word ‘capacity’ [a key word in the relevant statutory definition] to better comport with the congressional findings and the intended reach of the statute.”
  • Reassigned Numbers: The 2015 Omnibus TCPA Order created a one call safe harbor for calls to reassigned numbers. The D.C. Circuit struck down that approach, so now, the Public Notice asks generally how the Commission should treat calls to reassigned numbers. This inquiry includes questions about how to define the term “called party,” whether a safe harbor is necessary, and how the reassigned number database that the Commission has proposed in a separate proceeding should affect its interpretation.
  • Revocation of Consent: The Public Notice asks for input on how consumers may revoke consent that they previously gave to receive calls. The Public Notice seeks comment on specific opt-out methods.

The issues raised by the Public Notice are of importance to all entities – including media companies – that use modern calling equipment as part of their businesses. Comments on the Public Notice are due June 13 and reply comments are due June 28.

Transitioning TV Stations Should Be Mindful of Notification Requirements

Posted in Broadcast Regulation

With the first phase of the post-incentive auction repack rapidly approaching, licensees of full power and Class A television stations should be mindful of upcoming deadlines for notifications to multichannel video programming distributors (MVPDs), medical facilities, and viewers.  The requirements apply both to stations that submitted a successful bid to change bands and to stations that are changing channels due to the repack.

For your reference, we have included a brief summary of these requirements below.

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Wiley Rein to Sponsor Startup World Cup 2018 Grand Finale Supporting Next Wave of Leading Entrepreneurs

Posted in Broadcast Technology

Wiley Rein is pleased to sponsor the Startup World Cup 2018 Grand Finale on May 11, a major event that brings together the world’s leading startups and top entrepreneurs to compete for a $1 million grand prize of investment in their company. The day-long program, held at the San Francisco Marriott Marquis, features conversations with high-profile speakers and concludes with a pitch competition among regional champions from around the globe.

“We are excited to support the Startup World Cup Grand Finale and partner with these extraordinary entrepreneurs and future business leaders,” said Wiley Rein Managing Partner Peter D. Shields. “It’s a great opportunity for us to connect with the Silicon Valley community and share how startups can proactively engage with Washington, DC, to meet their strategic policy goals. We congratulate all of the finalists, whose innovations represent the next wave of successful business ventures and new technologies.”

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FCC Seeks Comment on Proposal to Streamline Assignment/Transfer of TV Satellite Stations

Posted in Broadcast Attribution, Broadcast Regulation

FCCUPDATE 4/12/2018:  Comments are due on May 11, 2018 and reply comments are due on May 29, 2018.

The FCC wants to know whether and how it should revise the process for applying to assign or transfer control of a television satellite station.

Television satellite stations are full power television stations that retransmit some or all of the programming of another television station and, as such, are exempt from the local and national television multiple ownership limits. Currently, the FCC evaluates proposals to qualify a station as a satellite station on an ad hoc basis, considering whether the satellite station serves an underserved area and whether there is an alternative operator who is ready and able to operate the satellite station as a full-service station. Upon application to assign or transfer the parent/satellite combination, the Commission requires the applicant to demonstrate that the conditions that initially warranted satellite status continue to exist. Continue Reading

LPTV, TV Translator, and FM Radio Stations to Benefit From New Repack Funding

Posted in Broadcast Regulation

On Friday, President Trump signed into law the Consolidated Appropriations Act, 2018 (H.R.1625), which includes an amended version of the Repack Airwaves Yielding Better Access for Users of Modern Services (RAY BAUM’S) Act of 2018 (H.R.4986), funding for the Federal Communications Commission (FCC), and funding for the National Telecommunications and Information Administration (NTIA).

While the $1.3 trillion spending bill covers a lot of ground, many broadcasters will be interested in the new funding designated to help not only full power television stations, but also LPTV, TV translator, and FM radio stations affected by the post-incentive auction repack.  The bill allocates $1 billion to the existing TV Broadcaster Relocation Fund ($600 million in fiscal year 2018 and $400 million in fiscal year 2019) to be used to reimburse relocation costs of eligible broadcaster and multichannel video programming distributors, television translator stations and low-power television stations, and FM broadcast radio stations.  The bill also authorizes the FCC to use up to $50 million from the TV Broadcaster Relocation Fund for consumer education. Continue Reading

Top 3 Takeaways for Media Companies from the D.C. Circuit’s TCPA Decision

Posted in Contests, Corporate/Business, Telephone Consumer Protection Act

The D.C. Circuit has now issued a long-awaited decision involving the Telephone Consumer Protection Act (TCPA), which has widespread implications for broadcasters and other media companies that rely on modern calling equipment (including text messaging) to reach their audiences. The decision resolves an appeal of the Federal Communications Commission’s (FCC’s) 2015 Omnibus TCPA Order with a unanimous panel but a split decision on the merits:  the Court affirmed the FCC on two issues and vacated on two others.  With respect to the three issues of interest to media companies, the Court vacated the FCC’s definition of “automatic telephone dialing system” (ATDS) and its approach to reassigned numbers, while affirming the agency’s approach to consumer revocation of consent to receive autodialed calls.

Three quick takeaways from the Court’s decision are as follows:

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Comment Dates Set on FCC Proposal to Eliminate Paper Contract Filing Requirement for Broadcasters

Posted in Broadcast Regulation

In another proceeding initiated as part of its effort to modernize the rules that apply to broadcasters, the Federal Communications Commission (FCC) is seeking comment on whether and how to update the requirement that licensees file paper copies of certain contracts and other documents with the agency within 30 days of their execution. As a result of the publication of the notice of proposed rulemaking (NPRM) in the Federal Register, comments are due on March 19, 2018, and reply comments are due on April 2, 2018.

Section 73.3613 of the FCC’s rules mandates that broadcasters file paper copies of documents related to ownership and control of a broadcast station with the FCC, and that licensees must also either place copies of, or a list of, such documents in their public inspection files. This requirement—originally adopted in the late 1930s—was intended to keep the FCC and the public informed about station ownership and control. The NPRM notes, however, that as of March 1, 2018 all broadcast stations will have transitioned to an online public file, which “enables greater public access to the contents of the files,” including documents filed under Section 73.3613.

As a result, the NPRM tentatively concludes that the FCC should eliminate the paper filing requirement for all broadcast stations, while leaving in place the obligation to include copies of, or a list of, contracts covered by Section 73.3613 in station public files. In addition, the FCC proposes to clarify that the public file must be kept updated regarding Section 73.3613 documents, and that broadcasters must provide copies to the FCC and the public within seven days of receiving a request. The NPRM seeks comment on these issues.

The FCC also asks how it might provide additional clarity under its rules concerning broadcaster documents related to ownership and control and broadcasters’ updating obligations with respect to such documents and whether, in the alternative, the agency should eliminate entirely Section 73.3613 and instead amend its public file rules to encompass broadcasters’ substantive obligations regarding ownership and control documents. Finally, the FCC asks how it should address the analogous obligations that apply to international broadcast stations—which are authorized on a seasonal basis and the transmissions of which are intended to be received outside of the United States—particularly given that these stations do not have public file obligations.

Fourth Circuit Orders New Trial in Online Copyright Liability Case

Posted in Copyright

In a highly anticipated decision for content owners and Internet service providers (ISPs), the U.S. Court of Appeals for the Fourth Circuit affirmed in part, reversed in part, and remanded for new trial a judgment of the U.S. District Court for the Eastern District of Virginia holding Cox liable for infringement of BMG’s copyrights by Cox customers.

BMG v. Cox involved the question of under what circumstances an ISP acting as a conduit for Internet traffic may be held liable for customers’ copyright infringement. Cox argued that it was entitled to a safe harbor under Section 512(a) of the Digital Millennium Copyright Act (DMCA) because it transmitted or routed material at the direction of customers without modification. To qualify for any of the Section 512 safe harbors, a service provider must demonstrate that it “adopted and reasonably implemented … a policy that provides for the termination in appropriate circumstances of subscribers … who are repeat infringers.” 17 U.S.C. § 512(i)(1)(A). Cox’s repeat infringer policy called for increasingly stringent actions in response to subsequent notices of infringement until the 13th notice, at which point the subscriber was to be suspended and considered for termination. BMG alleged that Cox failed to implement a reasonable termination policy when it failed to fully terminate customers and ignored electronically generated notices from Rightscorp, Inc. alleging Cox’s customers used BitTorrent file-sharing programs to infringe BMG’s copyrights. Continue Reading

When the Commission Says Certified Mail, It Means Certified Mail

Posted in Broadcast Regulation, MVPD Regulation

As lawyers, we frequently receive questions along the lines of, “I know the rule says [x], but what if I do [y] instead?  That’s consistent with the spirit of the rule, right?”  We now have further proof that complying with the “spirit of the rule” may not be good enough.  In a recent decision, the Commission rejected Minority Television Project Inc.’s (MTP) must carry complaint against DISH Network L.L.C. (DISH) because MTP sent its otherwise valid election request for station KMTP-TV via Priority Express Mail rather than certified mail, return receipt requested.

In a letter to DISH dated September 27, 2017, MTP timely elected mandatory carriage for the election cycle that commenced on January 1, 2018.  The letter included all of the information required by Section 76.66(d)(1) of the Commission’s rules, but was sent by Priority Express Mail.  Despite having received the letter, DISH rejected MTP’s carriage election because “pursuant to federal regulations, elections for mandatory carriage must be sent by certified mail, return receipt requested. Your letter was sent to DISH by United States Postal Service Priority Mail, and therefore is not a valid election. As such, your election is rejected based on the foregoing.”  MTP subsequently filed a must carry complaint against DISH, arguing that “Certified Mail is a lesser included service to Priority Express Mail,” and therefore is compliant with the Commission’s rules.

The Commission sided with DISH, reasoning that Section 76.66(d)(1)(ii) of its rules “provides one specific mailing method for carriage elections: certified mail, return receipt requested. The provision does not indicate that this is a suggested method, or a preferred method…. Because KMTP failed to send its carriage election by the method required under our rules, we must deny its complaint.”  The Commission acknowledged that the reason for specifying certified mail, return receipt requested in its rules was to “ensure that the broadcast stations are able to demonstrate that they submitted their elections by the required deadline, and that the satellite carrier received them.”  The fact that Priority Mail provides the same assurances, however, was not enough to sway the Commission in favor of MTP.

President Trump’s “S&!%hole” Remark Shines New Light on FCC’s Ambiguous Policy on Profanity/Indecency

Posted in Broadcast Regulation, First Amendment

The Reporter's NotebookBroadcasters found themselves facing a conundrum on Thursday when President Trump, in a meeting with Congressional leaders about immigration, reportedly referred to Haiti and certain African countries as “shithole countries.”  24-hour cable networks immediately reported on the President’s comments, repeating the crass term and even including it on their lower-thirds.  Unlike their cable, newspaper, online and print brethren, however, broadcasters were forced to wrestle with the significant risk associated with the FCC’s still muddy indecency standards in relating the newsworthy incident to the public.

A quick refresher on the indecency laws applicable to broadcasters is in order.  Title 18 of the United States Code, Section 1464, prohibits the utterance of any obscene, indecent or profane language by means of radio communication.  For material to be indecent, it must “depict sexual or excretory organs or activities and be patently offensive as measured by contemporary community standards for the broadcast medium.”  The Commission’s rules prohibit the broadcast of indecent and profane material between the hours of 6 a.m. and 10 p.m.  Broadcasters violating the federal indecency laws face fines of up to $397,251 per violation or each day of a continuing violation, up to $3,666,930 for any single act or failure to act.  Newspapers, cable networks, and Internet website providers are not subject to the FCC’s indecency laws.

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