Broadcasting&Cable

The Federal Communications Commission is the target of a lawsuit related to allegations that FCC employees were repeatedly watching porn at work, creating a hostile work environment for a fellow employee. The suit stems from 2012. On Oct 19, both the FCC and the plaintiff were granted more time by the Washington, DC US District Court for discovery in the ongoing case, with the FCC planning to depose the plaintiff and the plaintiff planning to depose an additional FCC employee. That plaintiff, a 30-year vet of the agency, filed suit charging she had been subjected to a hostile work environment, gender discrimination and two counts of retaliation. In April of 2016, the court dismissed three of the five charges against the commission—the FCC wanted four of the five dismissed and a summary judgment in its favor on the fifth.

With the Federal Communications Commission preparing to vote Oct 27 on a proposal that could for the first time sweep web browsing and app use histories into an opt-in regime, disallowing the sharing of that info by Internet service providers unless consumers give affirmative permission, critics are pulling out the stops to stop it. The FCC released its agenda for the Oct. 27 meeting and broadband privacy was still teed up.

Advertising associations, which see the new regime as a definite damper on the online ads that underwrite all that free web content, offered up a proposal which was essentially that the FCC not make web browsing or app history sensitive information subject to opt-in requirements, except when it involves information otherwise classified as sensitive. The proposal would require opt-in for traditional (under the Federal Trade Commission regulatory regime that used to apply to broadband categories) sensitive information, geolocation, children’s information, health information (e.g., pharmaceutical prescriptions or medical), financial information, Social Security numbers, and the content of communications (emails, texts, etc).

Add USTelecom to those trying to get the Federal Communications Commission not to apply a broad opt-in regime to the use and sharing of web browsing and app use histories by Internet service providers. FCC Chairman Tom Wheeler, in pivoting from a blanket opt-in for most third party sharing of user info to what was billed as a more Federal Trade Commission-like sensitivity approach based on the kind of info being shared and used, added web browsing and app use to the information classified as sensitive and needing opt in.

USTelecom, advertisers and others are trying to get the FCC back off that approach and instead only require opt in for web browsing and apps that include other traditional categories of sensitive information—health, finance, kids, Social Security numbers, geolocation and content of communications. In meetings with FCC officials this week, USTelecom president Walter McCormick and other USTelecom executives said that it was "essential that government agencies speak with one voice," which means the FCC should harmonize its regulations with the Federal Trade Commission and "should not expand the definition of sensitive information to include such a broad area as all web-browsing history," according to an ex parte filing with the commission. "Any other approach contradicts the more flexible regime applicable to the rest of the digital advertising ecosystem and has not had thorough enough examination as to its broader economic impact to be mandated by rule at this time," they said.

Sen Ed Markey (D-MA) put in a last-minute push for the Federal Communications Commission's broadband privacy proposal, which is on the agenda for an Oct. 27 vote. Sen Markey joined various groups also pushing for the new regulations—Public Knowledge, Center for Digital Democracy, Color of Change, Consumer Federation of America—on a conference call with reporters to urge the FCC to proceed with that vote.

Sen Markey is also a big backer of set-top reforms that the FCC was also scheduled to vote on before the chairman pulled the item from Sept's meeting. Sen Markey several times said the FCC needs to stay on course for the Oct 27 vote, calling it a "critical moment" for privacy. The senator said that just as the country has to make sure Russia doesn't compromise our privacy, no one else should.

According to the Federal Communications Commission, the second stage of the forward portion of the FCC’s broadcast incentive auction went only one two-hour round, is now closed and the FCC will have to move to yet another round of reverse auction broadcasters bidding at a lower clearing target.

There was no one immediately available for comment, but the FCC's website said that "Bidding in the forward auction has concluded for Stage 2 without meeting the final stage rule and without meeting the conditions to trigger an extended round." That one round of the forward auction ended with only $21,519,907,210 bid. That is below the closing bid total for round one of the forward, not surprising given that there was less spectrum up for bid, though that could also have boosted the price if demand stayed the same given the reduction in supply. Clearly the $56.5 billion broadcasters were asking—this time 114 MHz (90 MHz minus the guard bands) down from 126 MHz (100 MHz minus guard bands)—was still too rich. Forward auction bidders weren't ready to up their bids from last time, and they took no time in making that clear.

Looking to light a fire under the Federal Communications Commission, a group of 76 organizations have written FCC Chairman Tom Wheeler and the other commissioners to urge them to take action on three items and issues currently before the commission. Those are the set-top box proposal, broadband privacy and the zero-rating plan investigation. The groups asked the commission to "liberate" consumers from the set-top "monopoly", "promulgate rules that foster trust in the integrity of broadband privacy", and "prohibit abusive data caps and zero rating plans that violate net neutrality." The letter reads, "Each of these issues has been discussed by policymakers fo ryears, if not decades. Further delay would put internet users' privacy in jeopardy and undermine longstanding efforts." Among the many signatories to the letter, which was dated Oct 17, are Public Knowledge, Free Press, Demand Progress, the Center for Digital Democracy, and the Benton Foundation.

UltraViolet Action, a women's advocacy organization fighting sexism, says it has collected over 115,000 signatures on its own petition demanding that MGM and NBC release tapes of the Republican presidential nominee Donald Trump on reality show The Apprentice. The petition was launched Oct 10—MoveOn has launched a similar petition—and, according to the group, had 30,000 signatures in less than four hours.

UltraViolet Action cited a Huffington Post story featuring alleged transcripts from The Apprentice in 2010 where Trump is commenting on a music star's makeover and saying insulting things about her skin quality, suggesting he is a "skin man." Trump has been on the defensive since last week, when The Washington Post reported on tapes of his misogynistic conversation with then Access Hollywood's Billy Bush. Trump has said he was not proud of the comments but repeatedly dismissed them as "locker-room" talk rather than actual conduct.

The National Association of Broadcasters has joined with a number of diversity groups in asking the Federal Communications Commission not to wait until after the incentive auction is over, which is likely a couple months away at least and perhaps more, to act on the Nexstar/Media General merger request. NAB said that given that the Justice Department has already approved the deal subject to some station spin-offs including to a minority owner, which would boost diverse ownership, and the fact that the FCC has exceeded the 180-day informal shot clock for the deals, it told the FCC it needed to "fulfill its duty to process the transaction immediately."

The FCC said it would not act on license transfers sought by stations participating in the auction unless the transaction were filed by a date certain, which Nexstar and Media General missed by only a few days. Since Media General had indicated it would be participating in the auction—it was allowed by the FCC to signal, and did signal, that it was applying to be eligible—-FCC action on the transfer could provide more specific information about the auction, which is potentially in violation of the FCC’s rule against public disclosures. Nexstar and Media General sought a waiver of that Prohibited Communications Rule in hopes the deal approval would not have to wait until the end of the auction for a decision.

When asked by reporters about reports from state Emergency Alert System (EAS) coordinators that some of the emergency alerts sent out during the recent national test of the EAS system did not go through in Spanish, Admiral David Simpson, chief of the Federal Communications Commission's Public Safety & Homeland Security Bureau, said that illustrated the value of the test. The FCC was conducting the test in coordination with the Federal Emergency Management Agency (FEMA), with a focus on FEMA’s Integrated Public Alert and Warning System (IPAWS) that disseminates the alerts to the various participants. "That's exactly the kind of thing we wanted to test," Simpson told reporters following the test. "We believe this will give us the data necessary to refine the transmission of that second-language version of the same alert."

Asked whether he thought the test was more successful than one in 2011, Simpson said it was hard to compare given the work it took to achieve that first test. But he did say that the recent test had "built upon" that foundation. "We were in a better place to capture results, not just from broadcasters themselves but from disability rights organizations as well as communities in general." He said if it was better, it was only because the previous test had laid the table for them. Simpson said that over 22,000 stations had reported back with info on the test (as required), and the FCC was massaging the data along with FEMA, stakeholders and state commissions.

In a petition to the Federal Communications Commission, 19 civil rights groups including the NAACP, National Action Network, and the Multicultural Media, Telecom and Internet Council (MMTC) have asked that FCC Chairman Tom Wheeler lift the "sunshine rule" restrictions on outside parties contacting FCC decisionmakers about the set-top box revamp. Chairman Wheeler pulled the item from a planned public meeting vote last week and placed it on circulation—where it could be voted outside a public meeting—but invoked sunshine prohibitions on outside contacts as work continued on the item. The groups pointed out that sunshine restrictions are usually lifted when an item is pulled.

The same groups also want the FCC to release the text of the latest proposal and allow for further public comment and included that in their petition. "Chairman Wheeler’s refusal to release the new plan for public comment makes a mockery of the process and violates the most basic principles of transparency," said National Urban League president Marc Morial. "And his decision to impose rules that silence our voices, while decisions impacting our communities are settled behind closed doors, is unacceptable. The FCC must ‘unlock the plan’ and allow for meaningful feedback.”