Monty Tayloe

Tennis Channel filed a cert petition asking the U.S. Supreme Court to overturn the U.S. Court of Appeals for the D.C. Circuit’s decision on the channel’s carriage complaint against Comcast, Tennis Channel said Wednesday. “The lower court strayed from longstanding federal discrimination law to invent an arbitrary and unfair standard for deciding cable carriage complaints,” said Tennis Channel in a news release. “The D.C. Circuit Court of Appeals has spoken emphatically and unanimously that Comcast did not discriminate against the Tennis Channel,” said a Comcast spokeswoman in an email. “We are confident that this ruling will continue to be upheld.” The D.C. Circuit ruled that the FCC -- which had decided in favor of the Tennis Channel complaint and was the defendant in the D.C. Circuit case -- had failed to show that Comcast unlawfully discriminated against the channel, and said the defendants hadn’t presented evidence to refute Comcast’s contention that the decision not to offer Tennis Channel on a sports tier wasn’t based on financial analysis (CD May 29 p1). Tennis Channel had sought an en banc review of the D.C. Circuit decision, but that request was denied in September. The ruling “misstated and misapplied” discrimination law, and “fundamentally changed” the future standard for discrimination cases, said Covington & Burling attorney Stephen Weiswasser, who represents Tennis Channel, in an interview. “Congress expressly charged the FCC with the responsibility to establish procedures and decide carriage discrimination complaints,” said the Tennis Channel release. “The court’s decision not only failed to recognize where that responsibility lies, but also rewrote a vital portion of Congress’ 1992 Cable Act and federal discrimination law.” Weiswasser said the cert petition also points to cases in the jurisdiction of the 2nd U.S. Circuit Court of Appeals where a different discrimination standard was applied, and argues that this means there is a split between the two circuits. A circuit split would make it more likely for the Supreme Court to get involved, said Fletcher Heald appellate attorney Harry Cole, who isn’t involved with the case. Both Cole and Weiswasser said the odds are long for any one case to be granted cert by the high court. “We think we have an important legal principle involving federal discrimination law and an important point of competition,” said Weiswasser. “But it’s always hard to know what’s going to happen.”

The FCC under Chairman Tom Wheeler should give the public context for its decisions, base rulings on market data and limit the effects of legacy regulations on industry, said panelists at a Phoenix Center event Tuesday. The commission should act as an expert agency, focused on providing information and technical policy, rather than on fuzzier “aspirational goals,” said former FCC National Broadband Plan Director Blair Levin in a panel on the role of the FCC. “It’s not the job of FCC to state aspirations."

The first tests of the FCC’s new openness to increased foreign ownership of broadcasters will likely be small transactions rather than outright purchases of whole stations, said Covington Burling broadcast attorney Mace Rosenstein, speaking at an FCBA event on foreign ownership Monday night. Rosenstein represented a coalition of broadcasters that asked the commission to clarify its stance on foreign ownership applications, leading to its declaratory ruling earlier this month (CD Nov 15 p3). Rosenstein said media attention had focused on the ruling’s ramifications for large transactions, but smaller deals involving a company’s ownership rising only slightly over the 25 percent threshold would be “the best cases to make law” and begin to establish the parameters of the FCC’s new stance on foreign ownership.

Though increasing competition and the scarcity of spectrum threaten the future of broadcasting, it’s likely to continue in some form, said panelists at a conference Friday at George Mason University. Preston Padden, former broadcast executive and director of the Expanding Opportunities for Broadcasters Coalition, challenged the idea that broadcasting is in trouble. “Broadcast networks stay with their local TV station partners not out of sentiment, but because those stations … overwhelmingly dominate consumer viewership,” said Padden.

As the media have become more consolidated and corporate, broadcasters do less to serve the public interest, said panelists Wednesday at a New America Foundation event. The event was centered around Broadcast Blues (http://bit.ly/rl7hWI), a 2009 film that blames a decline in journalism, increasingly divergent political parties and more indecency on TV on broadcast consolidation and lapses in FCC oversight.

A draft declaratory ruling that could increase foreign ownership of U.S. stations was opposed by Free Press, though officials from two other nonprofits that represent minority interests take a different stance. The draft might lead to international foreign language content squeezing out local content more relevant to foreign language speakers in America, said Free Press in an ex parte filing Friday (http://bit.ly/1aJI6ZT). “This concern is particularly relevant in Latino communities where, historically, foreign investors have ignored American-Latino issues and content in favor of programming from Latin countries.” Though the National Hispanic Media Coalition agrees with some of Free Press’s points, an official said the group doesn’t object to the proposed ruling, since it isn’t actually a rule change. Free Press didn’t provide any evidence for its argument, said Minority Media and Telecommunications Council President David Honig, who has pushed for the clarification for years. “Hispanic broadcasters overwhelmingly favor this policy change."

CEA and Telecommunications for the Deaf and Hard of Hearing (TDI) differ at the FCC on whether device manufacturers should be required to make products that synchronize closed captions with video delivered over the Internet and DVD and Blu-ray players that render captions, according to comments filed in docket 11-154 (http://bit.ly/1bWbMzp). A manufacturer requirement is the last step to making sure every link in the supply chain of closed captions is held responsible for making them work, said TDI. Video programming distributors are already required to maintain timing data, and the commission has an open proceeding on quality standards for TV closed captions. “The Commission should complete the chain of accountability for synchronization problems by requiring apparatuses to render captions according to the timing data included with video,” said TDI. “If every step of the delivery chain is covered by a synchronization requirement, consumers will finally be able to seek remedies when problems occur.” CEA said such rules would improperly assign the blame for caption sync problems to manufacturers. “A synchronization requirement for apparatus would implicitly assume that consumer devices somehow introduce synchronization issues into caption decoding, but CEA is unaware of any such behavior,” said CEA. If the commission does pass a rule, it should require devices to render captions according to the timing data included with the video programming, said CEA. “This ‘do no harm’ standard would mean that if a device receives properly captioned content, then it would have to appropriately decode and display, or pass through, the content and captions.” Improperly timed captions wouldn’t function on such devices, CEA said. “Viewing media with unsynchronized captions is as disruptive for a viewer who is deaf or hard of hearing as watching media with an unsynchronized audio track is for a hearing viewer,” said TDI. The consumer group said caption rules for removable media players are necessary because such devices are increasingly reliant on HDMI connections. “Because the current HDMI standard does not support the pass-through of caption data, captions cannot be viewed using an HDMI-only player if the player does not render the captions,” said TDI. However, CEA said DVD and Blu-ray already support subtitles for the deaf and hard of hearing, and therefore already comply with the 21st Century Communications and Video Accessibility Act. “Because streamed media is increasingly prominent in the consumer marketplace, additional regulations on removable media players will simply raise costs for consumers and hasten the decline of removable media technology,” said CEA. The association and copy protection company Advanced Access Content System Licensing Administrator both also argued against a proposal in the FNPRM that would require removable media players to include an analog connection to properly display captions.

An FCC open to more foreign investment in broadcasting could be a boon for foreign language stations, media brokers, broadcast attorneys and investment analysts told us in interviews last week. Broadcasters from Spanish-speaking countries have long shown an interest in acquiring U.S. Spanish-language TV and radio stations, and were barred from doing so by the 25 percent cap on foreign ownership, several brokers said. There’s also been interest from Asia in Chinese-language stations, said the brokers. With a draft declaratory ruling in the works that could lead to deals over the cap being approved on case-by-case basis (CD Oct 25 p5), those broadcasters would “absolutely” be interested in buying bigger portions in such stations, said Media Services Group-Chicago Director Robert Heymann. “There are just many cities where there’s a sizable, substantial market of people who want information in their own language,” said Minority Media and Telecommunications Council President David Honig.

The FCC’s new accessibility rules for user interfaces, program guides and other functions are “probably the most difficult statutory provisions” Commissioner Ajit Pai has encountered during his tenure with the commission, he said in a statement released with the order implementing sections 204 and 205 of the 21st Century Communications and Video Accessibility Act, which was adopted Tuesday. The order classifies all navigation devices that use CableCARDs -- such as cable set-top boxes or TiVo boxes -- under the more narrow requirements of Section 205, which requires accessible program guides. All other digital apparatus, such as non-CableCARD TVs and some mobile devices, fall under Section 204, and will be required to have certain “essential” functions that are accessible.

Accessibility rules for user interfaces and program guides were adopted Tuesday so the FCC could come as close as possible to the missed Oct. 8 deadline to finish implementing the 21st Century Communications and Video Accessibility Act (CVAA), an agency official told us. The deadline occurred during the partial federal government shutdown. Though the rules were adopted Tuesday, commissioners are still working on statements to be released along with the rules, an FCC official told us the next day. Acting Chairwoman Mignon Clyburn and Commissioner Jessica Rosenworcel voted to approve the rules implementing sections 204 and 205 of CVAA while Commissioner Ajit Pai approved in part and concurred in part, said an FCC release Tuesday. All three commissioners are issuing written statements, the release said. The new rules will require devices to make “essential functions” accessible and classify devices that have conditional access to content as navigation devices, an FCC official had said (CD Oct 30 p15). The item includes a three-year implementation deadline, but cable operators with fewer than 400,000 subscribers will be granted an additional two years to subscribe, the official said. Other details about the rules, and what might be contained in a further notice of proposed rulemaking mentioned in the release, remain unclear. American Foundation for the Blind Senior Policy Director Mark Richert said he’s particularly concerned about proposed rules on how those in need of accessible equipment will be able to request it from providers. He said the details of what equipment operators can provide to meet accessibility requirements are important. “How broad is that? What kind of alternatives are they allowed to provide?” asked Richert. Although few details were contained in the commission’s release, Richert said he’s optimistic that the rules will be a positive change. “Once these rules take effect, people who are blind or visually impaired will be able to quickly find a news channel during an emergency or tune in to their favorite show as readily as sighted people,” said Clyburn.