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Tuesday, May 31, 2016, 10:17 AM

John Garziglia Writes on FCC Radio Ownership Restrictions, Prometheus III Case at Radio Ink

Posted by: Bruce Buchanan

WASHINGTON, D.C.—Womble Carlyle Telecom attorney John Garziglia compares FCC radio ownership restrictions to zoning laws. While excessive regulation can be burdensome, a complete loosening of restrictions creates its own set of problems.
“If total radio consolidation occurs, it would likely break the community bonds and rapport that until now have been the core of radio’s exceptionality,” Garziglia writes in the lead story of the March 26th edition of Radio Ink. “The very nature of radio could be forever and irredeemably altered if all ownership restrictions were jettisoned.”
The article stems from a recent U.S. Court of Appeals decision in the Prometheus III case. In the decision the Appeals Court ruled that complete elimination of broadcast ownership rules “would invite chaos”.
John Garziglia represents radio and television broadcasters, offering personalized assistance in all areas of communications and telecommunications law including transactional and contract negotiations for broadcast station mergers and acquisitions, the securing of financing, governmental auctions of new frequencies, license renewals, new stations applications, facility changes, facility upgrades, licensing, and compliance with FCC rules, regulations and policies.
Follow John Garziglia on Twitter at @JohnGarziglia.

Wednesday, May 25, 2016, 9:14 PM

FCC Issues Tariff Investigation Order and NPRM Which Proposes to Substantially Revise and Expand the Regulation of Business Data Services

Posted by: Rebecca Jacobs

In May, 2016, the FCC moved forward with its decade-overdue reform of the $45 Billion per year dedicated business data services (“BDS”) market. BDS providers, including major incumbent telecommunications companies and now even cable television companies offering dedicated BDS services on the one hand, and major BDS customers, including wireless carriers, competitive wireline carriers, and enterprise business customers on the other, will all be substantially impacted by the FCC’s Tariff Investigation Order (“Order”) and Further Notice of Proposed Rulemaking (“NPRM”).

The Commission found unjust and unreasonable 18 existing BDS tariff plans offered by AT&T, Verizon, CenturyLink and Frontier, including “all or nothing” provisions, and certain shortfall and early termination charge provisions of volume/term BDS pricing plans that lock up customers and prevent them from transitioning services from traditional incumbent LEC TDM services to more scalable and cost-effective Ethernet and other packet-based BDS Services which represent the technological future of BDS services.
In its rulemaking, the Commission recognizes that its prior regulation of BDS or special access markets were based on an imprecise competitive trigger, which it now seeks to correct. The client alert summarizes the key takeaways of the Order and NPRM, such as the FCC’s proposed new requirements for the provision of BDS in competitive and non-competitive markets, and preserving of price cap regulation for non-competitive markets. The Commission seeks comment on a Competitive Market Test that applies new criteria of (a) business density and (b) number of facilities-based competitors in a given area to determine whether a relevant, geographic market is competitive. It also requests comment on other reforms and approaches to make BDS markets competitive and to promote the ability of customers to transition from traditional copper-based TDM special access services to IP-based, packet-switched BDS services such as Ethernet. Comments in this significant rulemaking are due June 28, 2016.


Click here to read a more detailed alert on this rulemaking.

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Friday, May 13, 2016, 9:03 AM

FDA New e-Cig Rules Raise Issues for Traditional and Digital Ad Platforms

Posted by: Bruce Buchanan

By Gregg P. Skall
The long awaited FDA regulations “deeming” e-cigarettes a tobacco product have, at last been issued and were published in the Federal Register earlier this week.  While they may have answered some questions, they also leave many unanswered.  With the ink barely dry, the first court challenge has already been filed.
The regulations “deem” e-cigarettes to be like tobacco and, therefore, subject to FDA regulation.  Electronic cigarettes are battery-operated products designed to deliver nicotine, flavor and other chemicals. They turn nicotine, which is considered to be highly addictive, and other chemicals into a vapor that is inhaled by the user.
In addition to e-cigarettes, the FDA has now extended its regulatory authority to cover all other products “deemed” tobacco, including vaporizers, vape pens, hookah pens, e-pipes, and all other Electronic Nicotine Delivery Systems, or “ENDS.”  It will now regulate the manufacture, import, packaging, labeling, sale, distribution, and critical to broadcasters, cable and other advertising platforms, the advertising and promotion, of ENDS.
The new rules prohibit the sale of ENDS to individuals under the age of 18 and require the display of a specific, graphic health warning on product packages and in advertisements.  Advertisements will be required to bear a new textual warning statement with specific black and white and border style requirements.
The rule provides that the warnings must accompany all advertising. The report specifically mentions most of the media, new and old, including Internet Web pages, television, electronic mail, messaging by mobile telephone, smartphone, microblog, social media Web site, or other communication tool, including any other programs that allow for the sharing of audio, video, or photography files or promotions.  So in addition to traditional media, the rule specifically targets digital media, as well.
Furthermore, the health warnings must occupy 20 percent of the area of any advertisement with a visual component and utilize at least a 12-point font in Helvetica or Arial.  It cannot be minimized, and must occupy “the greatest possible portion of the warning area set aside for the required text.”  It must be in English, unless it appears in non-English language media, in which case it must appear in the primary language used for the medium’s non-sponsored content.
The FDA noted that it expects the broad range of advertising covered by the new graphic warning rules will create “additional complexities” that will require additional compliance information for a complete understanding. Given the time and resources it will take to achieve compliance, the proposed health warning rules will become effective 24 months after publication, by May 10, 2018.
The FDA devoted a separate section to banning the use of descriptors like Low, Light, and Mild, and Other Unauthorized Modified Risk Claims.
Finally, because the regulations prohibit sales to anyone under the age of 18, for the federal rules, advertising platforms must be careful to screen any otherwise compliant ENDS advertising to be sure it would not appear to be targeting anyone under the age of 18.
More to come as the rules become effective and the FDA issues further guidance.

This column is provided for general information purposes only and should not be relied upon as legal advice pertaining to any specific factual situation. Legal decisions should be made only after proper consultation with a legal professional of your choosing.
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