Monty Tayloe

A draft rulemaking notice seeking comment on allowing broadcasters to communicate contest rule information online rather than over-the-air owes its presence on the FCC's November agenda partly to a June blog post by FCC Commissioner Michael O'Rielly, several broadcast attorneys and an FCC official told us Thursday. Proposed in a petition from Entercom Executive Vice President Jack Donlevie in 2012, the item has languished since, despite receiving no opposition. “Small changes to our Contest Rule could improve consumer notice and options for broadcaster compliance,” O'Rielly said in the post endorsing the rule change. The item is set for a vote at the Nov. 21 open meeting.

Aereo is cutting staff in its Boston and New York offices, Vice President-Communications and Government Relations Virginia Lam emailed us Thursday. “We are continuing to conserve resources while we chart our path,” Lam said. “This was a difficult, but necessary step in order to preserve the company.” In a letter to the company's Boston employees obtained by website Betaboston, Aereo CEO Chet Kanojia said the company has been unable to obtain outside investments since the recent nationwide injunction was granted against it by U.S. District Court in Manhattan Judge Alison Nathan. Lam said the company is looking for a way to continue. FCC Chairman Tom Wheeler and other commission officials have recently mentioned Aereo extensively in connection with a draft NPRM on classifying linear over-the-top video services as multichannel video programming distributors. The broadcasters' case against Aereo in New York has yet to be tried on the merits, and would likely continue in some form even if Aereo were to go out of business, Fletcher Heald attorneys Harry Cole and Kevin Goldberg told us. Though not involved in the case, Cole and Goldberg follow it for the firm's blog. Though broadcasters could pursue their case even if Aereo were to go out of business, the sort of default judgments that likely would occur with a defunct defendant are unlikely to further the broadcasters' legal agenda, said Cole and Goldberg. Fletcher Heald represents broadcasters, though not in any cases involving Aereo. Lam declined to comment further on the scope of the layoffs.

The FCC Media Bureau rejected most objections by content companies against lawyers looking at their confidential documents and will start the shot clock for AT&T's planned buy of DirecTV and Comcast/Time Warner Cable in five days, the Media Bureau said in several orders (here, here, here and here). The shot clock will turn back on Wednesday Nov. 12, a bureau spokeswoman told us. The bureau will also issue a public notice announcing new pleading cycles for the deals, the orders said. The orders rejected objections against 245 people being allowed to view confidential contract documents that had been filed by a group of content companies that include Disney, Viacom and 21st Century Fox (see 1410170055).

A Nexstar deal involving a joint sales agreement with Marshall Broadcasting was approved Friday only after the companies rearranged the financing on the transaction and withdrew a request for a JSA waiver, according to FCC documents, a broadcast attorney and documents filed with the commission. The deal involved the transfer of six stations from the estate of Milton Grant to Nexstar, and one station, KLJB Davenport, Iowa, to Marshall Broadcasting.

FCC TVStudy repacking software undervalues the coverage area of some Class A TV stations due to a flaw in how data on the stations is inputted, said the Expanding Opportunities for Broadcasters Coalition in an informal comment filed Friday. The incorrect data causes TVStudy to underpredict some Class A contours and interference, and would cause the affected stations to be undervalued in the auction or to experience interference issues on being repacked, EOBC Executive Director Preston Padden told us. It should not be hard for the FCC to correct the input error and fix the problem, and he expects that it will do so, Padden said. The EOBC's spotting an error in the software is an example of why the FCC has tried to be transparent about the incentive auction, an agency spokeswoman told us, saying the commission welcomed the EOBC filing.

A draft NPRM seeking comment on extending online political ad filing requirements to cable and direct broadcast satellite providers and satellite radio and terrestrial radio stations has been circulated among eighth-floor offices, FCC officials told us Thursday. The NPRM is in response to a petition (see 1409020036) for rulemaking from the Campaign Legal Center, Common Cause and the Sunlight Foundation seeking extension of the online filing rules, which already apply to TV stations. Though the petition only sought to extend the rule to cover pay-TV operators, a comment proceeding on the petition also floated the idea of extending the requirement to radio.

A draft rulemaking notice (NPRM) proposing classifying linear online video providers as multichannel video programming distributors wouldn’t immediately change much for over-the-top companies, said cable and content officials in interviews Wednesday. The NPRM, circulated late Tuesday according to an FCC official, would enable over-the-top services to take advantage of program access and retransmission consent rights to better offer competition to cable incumbents in the video market, said FCC Chairman Tom Wheeler in a blog post Tuesday (see 1410280053). Retrans rights would still leave OTT services unable to stream broadcast content without also negotiating for content rights, and program access rights apply only to negotiations with vertically integrated distributors, which in practice largely means Comcast, said industry officials.

FCC Chairman Tom Wheeler circulated a proposal Tuesday to change the definition of a multichannel video programming distributor to be “technology neutral,” he said in a blog post Tuesday. As expected (see 1410220044), the draft proposal would open the definition up to include providers of linear online video, the blog post said. The change would give the new MVPDs “the same access to programming owned by cable operators and the same ability to negotiate to carry broadcast TV stations that Congress gave to satellite systems in order to ensure competitive video markets,” Wheeler said, referring to program access and retransmission consent rules.

The incentive auction is “interesting” to broadcasters even if the values for stations involved are half the amounts projected in the FCC’s Greenhill & Co. price estimates (see 1410020029), said Meredith Local Media Group President Paul Karpowicz on Meredith’s earnings call Thursday. Though Karpowicz said he believed the auction would happen “no question,” Meredith CEO Stephen Lacy said he doubted the auction would happen during his working career and he wouldn’t hold his breath waiting for “bags of money” from the auction to come to Meredith. According to Karpowicz, the Greenhill estimates show a Meredith station in Phoenix as worth in the auction a fraction of the value of another Meredith station in Springfield, Massachusetts. Phoenix at No. 12 is a much bigger Nielsen market than the designated market area including Springfield (http://bit.ly/1xenP5R).

Oral argument in the court challenge against the FCC incentive auction order by NAB and Sinclair could be heard as early as March, said the briefing schedule released by the U.S. Court of Appeals for the D.C. Circuit Thursday. Final briefs are due Jan. 27, and oral argument is typically heard at least 45 days after the last briefs are filed, the order said. In an expedited case such as this one, oral argument is typically heard very soon after the final brief, an attorney experienced in such matters told us. The court’s schedule is very close to the one requested by all three parties to the case in a joint filing (see 1410060045), designed to allow the case to wrap up before the mid-2015 incentive auction. NAB and Sinclair asked to brief their cases separately, since their objections are focused on different sections of the auction order. NAB raised issues about the commission’s use of updated OET-69 software, while Sinclair argued that the FCC violated the law by requiring displaced licensees to cease operating on their old channels within 39 months of the auction even if their replacement facilities aren’t usable. The D.C. Circuit said petitioners will file their briefs jointly, limiting the amount of space each argument will have. Their initial brief is due Nov. 7.