March 2011

Lawmakers from both sides of the aisle traded jabs this week over a controversial Department of Homeland Security program some have likened to an attempt to create a national ID card.

The 2005 REAL ID Act established rigid standards for states issuing digitized licenses and identity cards, but many federal and state officials have complained the law isn't realistic and constitutes an unfunded mandate. At least 24 state legislatures have voted to reject its requirements. The law was set to take effect May 11, but Homeland Security Secretary Janet Napolitano has indicated recently she plans to delay the deadline for states to comply until at least January 2013. House Republicans wrote to Napolitano this week expressing their displeasure at the delay.

[Commentary] The Federal communications Commission launched a review of its retransmission consent rules that proposes eliminating network non-duplication and syndicated exclusivity rules. The rules, in essence, give stations a means of enforcing the local exclusivity that they get from their networks and syndicators.

This is no small matter. Without non-dupe and syndex, the negotiating position of stations would be dramatically eroded. Unable to come to terms with a local ABC affiliate, a cable system could simply import an affiliate from the next market over with impunity, assuming the system had, one way or another, obtained retrans consent from the out-of-market station. Sure, viewers would lose the local news of the local stations, but even in the smallest markets there are still one or two local news alternatives. The FCC rulemaking suggests that the rules may no longer be necessary since stations can enforce their local exclusivity rights in court. But independent TV-Fox-ABC-Disney lobbyist emeritus Preston Padden, who now teaches at the University of Colorado, points out that that simply is not true. In fact, he says in a missive he sent to broadcast lawyers and lobbyists following the FCC vote, broadcasters would find little help in court because of the compulsory license, which goes back to 1976 and which allows cable and satellite operators to import out-of-market signals without infringing anybody’s copyright.

House Commerce Committee Chairman Fred Upton (R-MI) along with Communications Subcommittee Chairman Greg Walden (R-OR) and Rep Lee Terry (R-Nebraska) wrote Federal Communications Commission Chairman Julius Genachowski asking for the economic analysis behind imposing new network neutrality regulations. They requested an answer by Monday, March 7. In addition to that analysis, the congressmen are looking for an answer on whether the FCC will close its open proceeding on classifying broadband as a Title II telecommunications service.