BLOGS: Communications, Tech & Media Review

Wednesday, February 7, 2018, 9:55 AM

Net Neutrality Order Deep-Dive: Open Internet Rules Repealed, Transparency Requirements Remain, FTC Role over Broadband Privacy Restored...For Now

By Carri Bennet, Michael Bennet, Rebecca Jacobs Goldman, Howard Shapiro and Marty Stern

In this Client Alert, we provide a deep dive on the FCC’s recent Declaratory Ruling, Report and Order, and Order,1 that largely repeals the so-called “Open Internet” regulatory framework implemented by the prior FCC Chairman in 2015.2 Few other proceedings have drawn the amount of public interest as the adoption, subsequent revision and now repeal of the FCC’s Open Internet rules. We also provide important background on the road to where we are today, including the status of the Federal Trade Commission’s jurisdiction over broadband consumer practices involving privacy and data security, which while restored by the recent reclassification order, remains at issue in a pending en banc review in the 9th Circuit.

Click here to read the full article.

1. In the Matter of Restoring Internet Freedom, WC Docket Nos. 17-108, Declaratory Ruling, Report and Order, and Order, FCC 17-166 (released January 4, 2018) (Internet Reclassification Order).
2. Protecting and Promoting the Open Internet, WC Docket No. 14-28, Report and Order on Remand, Declaratory Ruling, and Order, 30 FCC Rcd 5601 (2015) (Title II Order).

Thursday, January 11, 2018, 9:58 AM

FCC to Consider CAFII Auction Public Notice, CAFII Auction Slated to Begin July 24

By Carri Bennet and Erin P. Fitzgerald, Rural Wireless Association Regulatory Counsel

On January 9, the Federal Communications Commission (FCC or Commission) has released a fact sheet and draft Connect America Fund Phase II (CAFII) Auction Public Notice (Draft PN) an item the Commission will consider at its January Open Meeting.

The Draft PN, released on January 9, is scheduled for consideration at the Commission’s Open Meeting scheduled for January 30. The item would:

  • Timeline: Schedule the auction to commence on July 24, 2018, and establish a short-form application deadline of March 30, 2018.
  • Minimum geographic area for bidding: Adopt census block groups as the minimum geographic area in which areas eligible for support can be grouped for bidding in the auction. 
  • Bidding procedures. Adopt a multi-round, descending clock auction structure. As the clock descends, bidders will indicate whether they will bid to provide service to an area at a given performance tier and latency. Support will be assigned to no more than one bidder per area. The auction will end after the aggregate support amount of all bids is less than or equal to the total budget and there is no longer competition for support in any area.

The Draft PN also discusses short- and long-form application requirements and reserve price calculation methodology.

In late December 2017, the Commission released a Public Notice identifying the locations of nearly one million homes and small businesses in 48 states that are eligible for up to $2 billion in support for broadband deployment over the next decade. That Public Notice included a final list of census blocks eligible for the CAFII Auction, a list of the census block groups and associated reserve prices, and a map showing the eligible blocks within the census block groups. RWA members should review the map and eligible area lists carefully as they weigh whether or not to participate in Auction 903.

We will follow up with a detailed briefing upon formal adoption and release of the Draft PN after January 30, 2018.

Wednesday, December 27, 2017, 10:15 AM

John Garziglia Examines Fractional Music Licensing Issue & its Impact on Broadcasters in Radio Ink Article

On December 19, BMI, one of the nation’s two major performance rights organizations, won a 2nd Circuit Court of Appeals ruling upholding BMI’s right to offer fractional licensing of music. Fractional licensing involves songs with multiple songwriters in which BMI owns a portion of the rights, rather than having full ownership.

Broadcasters warn that such an arrangement would create problems for the radio industry, which long has relied on a blanket licensing model to allow stations to broadcast music.

Womble Bond Dickinson telecom lawyer John Garziglia discussed the latest developments with Radio Ink, saying fractional licensing “would put the onus on radio stations to ascertain whether a work licensed by BMI has the additional possibly multiple consents and licenses in order to be played on the air, rather than putting the onus on itself (BMI) to only hold out as theirs those works that radio stations can safely play without incurring significant copyright infringement liability.”

However, Garziglia warns that BMI’s stance on fractional licensing may backfire on the organization, particularly if the new arrangement proves unworkable for radio broadcasters.

“If BMI is saying it cannot be relied upon to license the songs it purports to license, then why should there be a statutory blanket license at all?” he tells Radio Ink.

Rebecca Jacobs Goldman Discusses FCC's Blue Alert with Radio Ink

Broadcasters and radio listeners have become familiar with Amber Alerts, which warn the public that a child is missing and presumed to be in danger, and Silver Alerts, which raise alarms about missing, endangered senior citizens. Now, the FCC’s Emergency Alert System is adding a new color to its spectrum—the Blue Alert.

As Womble Bond Dickinson’s Rebecca Jacobs Goldman explains in Radio Ink, the Blue Alert “will alert radio listeners and others to an imminent and credible threat involving the death or serious injury of a law enforcement officer, threats to cause death or serious injury to a law enforcement officer, or missing law enforcement officers, over the EAS and Wireless Emergency Alert system.” A Blue Alert alarm only is issued when a threat to a police officer is both credible and imminent, and the suspect remains at large.

Goldman explains that the Blue Alert plan was created by the 2015 federal Blue Alert Act, in which Congress directed the creation of such an alert in order to better protect law enforcement officers and the general public. Broadcasters must update and test their equipment and software to implement the new Blue Alert code within the next 12 months.

Monday, November 27, 2017, 9:51 AM

Marty Stern Talks TCPA with Radio World, Advises Caution for Radio Stations Conducting Texting Campaigns

WASHINGTON, D.C.—Providing local news and community information always has been strengths of the radio industry. Now, stations are supplementing these services with texting campaigns, reaching out directly to listeners to provide information they want and need. However, there are important legal considerations for broadcasters to consider before hitting “Send.”
Womble Bond Dickinson communications, technology and media lawyer Marty Stern explored this topic recently with Radio World.

“The Telephone Consumer Protection Act (TCPA) governs text campaigns. It is implemented in FCC rules and regulations, and enforced by the FCC, and in the courts through class-action litigation,” Stern said. Violations of the TCPA can result in damages of $500 per-call, trebled to $1500 per call for knowing or willful violations.  With texting campaigns involving thousands of calls, potential exposure can quickly add up.

“There is also an aggressive TCPA class-action plaintiff’s bar, which files cases in federal courts nationwide. Seven-figure settlements for TCPA violations are not uncommon,” Stern said.
Some of the legal considerations radio stations must consider in informational text messaging campaigns involving such things as local news, sports scores, and weather alerts, include:
  • Obtaining prior express consent before texting. Stations need to have a process in place to both obtain that permission and document it.   (While not covered in the Radio World article, promotional texting involves a stricter form of consent known as “prior express written consent.”)
  • Appropriately scrubbing texting lists of contacts that have revoked permission.
  • Removing texting list contacts when the provided mobile number has been transferred to a different customer.
Simply hiring a texting service isn’t sufficient. Stern tells Radio World that the courts have held media outlets responsible when third-party telemarketers violate the TCPA. Any radio station texting plan should be reviewed by legal counsel before being implemented, he said.


Thursday, November 9, 2017, 1:34 PM

Is the DOJ's Approval of AT&T's Acquisition of Time Warner Conditioned on the sale of CNN?

By Jason Hicks

Cartoon tweeted by President Trump in August 2017
According to several news outlets, the Department of Justice has called on AT&T and Time Warner to sell DirectTV or Turner Broadcasting, which includes CNN, in order to gain approval of AT&T's $84.5 billion acquisition of Time Warner.

The New York Times reports that executives at AT&T and Time Warner are bewildered at the request because the proposed deal is a vertical merger.  When approving Comcast's similar acquisition of NBC Universal, under the Obama administration, the DOJ and FCC imposed several conditions on Comcast's business practices to prevent Comcast from withholding content from rivals.  The New York Times explains that these "behavioral remedies" are typical in vertical mergers, but "[t]he Justice Department's demands for divestitures would be a major change in antitrust policy..."

Reuters reports: "Trump, who has accused Time Warner's CNN and other media outlets of being unfair to him, criticized the deal on the deal on the campaign trial last year and vowed that as president his Justice Department would block it."

The Financial Times reports: "'Its all about CNN,' said one person with direct knowledge of the talks between the company and the DOJ, adding that the regulator made it clear to AT&T that if it sold CNN the deal would go through."

An unnamed source is quoted by Politico as saying: "The only reason you would divest CNN would be to kowtow to the president because he doesn't like the coverage.  It would send a chilling message to every news organization in the country."

In July, the New York Times reported that White House advisers had discussed using the deal as "a potential point of leverage over their adversary" CNN.  This reporting prompted Democratic Senators to warn against political intervention.  "Any political interference in antitrust enforcement is unacceptable" wrote Senator Amy Klobuchar to Attorney General Jeff Sessions, according to a CBS story.  Her Minnesota colleague Al Franken stated "The Trump Administration's war against the media must not influence the fate of the transaction."

On Sunday, Kellyanne Conway said that the Trump administration is not interfering with the Justice Department's review of the deal.

To make matters more complicated, today DOJ sources apparently told Fox News that it was AT&T who offered to divest CNN, but that the DOJ rejected this offer.  But according to CNN, the AT&T CEO denies this, stating: "Throughout this process, I have never offered to sell CNN and have no intention of doing so."

Apart from the "he said, she said" reporting, there are obvious political and First Amendment implications to this story, as well as antitrust concerns.  This will be the first major decision for Makan Delrahim, the newly appointed antitrust chief at DOJ.  Delrahim voiced tentative support for the deal prior to his nomination, but is said to be looking at it more closely now that he is in office.  Even before the news came out today, analysts said that the AT&T/TimeWarner deal "could be an early test of Delrahim's public perception as an independent official."

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Tuesday, July 25, 2017, 4:08 PM

Does GDPR Apply to You?

By Ted Claypoole

10 Months To Go

The EU’s General Data Protection Regulation goes into effect on May 25, 2018. GDPR replaces the EU Data Protection Directive. GDPR can apply to US-based businesses even if they do not have offices or employees in the EU. It can also reach activities conducted outside the EU.
The Directive did not regulate US businesses unless the collection or processing occurred within the EU (e.g., if a US-based company had a data center in the EU). Now GDPR clearly has stronger extraterritorial reach than its predecessor.

Businesses collecting and using personal data should know their GDPR obligations. Violators of GDPR face steep penalties. Regulators can fine a company up to 20,000,000 euros or 4% of worldwide annual turnover, whichever is higher.

Follow our three-question flowchart to see if GDPR applies to your company.
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