John Eggerton

According to the National Association of Broadcasters, the US Court of Appeals for the DC Circuit has been chosen to hear both its and Prometheus' challenges to the Federal Communications Commission's media ownership rule review vote.

NAB had filed suit in that circuit, while Prometheus chose the Third Circuit, which remanded the original rules back to the FCC. In that case, there is a lottery to see which court gets the case (held by the US Judicial Panel on Multidistrict Ligitation). And DC won, as did NAB, which prefers that venue.

NAB is challenging the FCC's decision to make joint sales agreements of over 15% attributable as ownership interests, saying the decision was arbitrary and capricious. Prometheus says that decision was arbitrary and capricious, too, but because the FCC did not explain why 15% was the magic number, and because it did nothing to rein in other sharing arrangements.

The challenges extend beyond JSA's and sharing agreements to broader ownership issues, including the FCC's decision not to loosen the newspaper/broadcast crossownership ban.

The Department of Justice and Federal Trade Commission want to hear from stakeholders on the pros and cons of the bundled-pricing model that has become the cable industry's -- make that the cable, broadband, wireless, phone, home security industry's -- bread and butter.

The agencies are teaming on a June 24 joint workshop on "conditional pricing practices." They say the goal is to understand the harms and benefits of conditional pricing, including bundled pricing, and to look at how they are treated under antitrust laws.

Former Federal Communications Commission chairman Julius Genachowski has been elected to the board of MasterCard, the company said.

Genachowski was one of two newly elected members, rounding out the 13-member board. It is a one-year term.

Genachowski exited the FCC in 2013, joining The Carlyle Group in January 2004 as managing director of telecom and media in the Washington office, focused on acquisitions and media and telecom investments.

Zomboo's House of Horror Movies, Your Sunday Worship and the Norm Prouty Real Estate Show are just some of the programs that the Federal Communications Commission has given 90 days to closed caption.

The FCC June 2 dismissed 16 petitions by program producers, mostly of religious programming, who had asked to be exempted from requirements that they closed caption their programming. Closed captions are ones that can be turned on and off. The FCC provides an exemption from the rules if the captioning would be "economically burdensome."

Sen Al Franken (D-MN), chairman of the Judiciary Privacy Subcommittee, will hold a hearing on his bill to end stalking apps. In March, Sen Franken reintroduced a location privacy bill, the Location Privacy Protection Act of 2014 that would outlaw so-called GPS "stalking apps" and give smart phone users control over very sensitive location information.

The bill also requires companies to get consumers permission -- an opt-in regime -- before collecting location data from smartphones, tablets and other devices. It would also require permission to share that information with third parties.

Witnesses at the hearing are Bea Hanson, Office on Violence Against Women, Department of Justice; Jessica Rich, director, Bureau of Consumer Protection, Federal Trade Commission; Mark Goldstein, director, physical infrastructure issues, US Government Accountability Office; Sally Greenberg, executive director, National Consumers League; Detective Brian Hill, Anoka County Sheriff’s Office, Criminal Investigation Division, Andover, Minn.; and Cindy Southworth, VP, development and innovation, National Network to End Domestic Violence.

The Expanding Opportunities for Broadcasters Coalition (EOBC) found reason to applaud the FCC's just-released incentive auction framework order. Coalition executive director Preston Padden praised the effort of the staff in producing what he called a "milestone."

He was also pleased by some of the substance. "The Coalition appreciates the assurance that sharing stations may change their city of license and that the FCC will not score stations based on enterprise value."

The coalition comprises stations, likely mostly independents in major markets -- their identities are guarded for competitive reasons -- who could put spectrum up for auction if the price is right, which includes valuing stations for the value of their spectrum in clearing and repacking, not for their value as TV station operations.

Seth Cooper, a senior adjunct fellow at the Free State Foundation, has some suggestions for how the Federal Communications Commission should, and should not, vet the proposed Comcast/Time Warner Cable merger if it is to conduct a consumer-focused and "principled" review and that includes not rejecting it on the "big is bad" theory.

In a new paper for the free market think tank, Cooper concedes it is possible that an economic examination of deal could produce anticompetitive concerns, but there needs to be "unmistakable" evidence.

The FCC's due diligence in that examination of the deal, Cooper says, must "disregard pleas for it to reject Comcast/TWC out of hand, based on appeals to emotional incredulity or 'big is bad' sloganeering; Stand firm against calls that, under the guise of protecting consumers, the agency impose conditions in order to protect market rivals...; reject dragging out its review process...; and avoid the imposition of any conditions on the merger unrelated to demonstrable concerns over market power and anticompetitive conduct."

The Newspaper Association of America is urging the Senate to bring a shield law bill to the floor for a vote after the Supreme Court declined to review New York Times' journalist James Risen's appeal of a court ruling that he had no right to refuse to reveal confidential sources.

The Free Flow of Information Act has twice passed the House, only to get bogged down in the Senate. But a Senate version passed out of the Judiciary committee for the first time last fall in the shadow of the NSA information-gathering revelation, attendant WikiLeaks government data drops and Justice's subpoenas of reporter phone records, leading to hope that a federal shield law -- to match that in 49 states -- might finally pass.

The Free Flow of Information Act (S.987) is sponsored by Sens Charles Schumer (D-NY) and Lindsey Graham (R-SC), and was pushed for years by the late Pennsylvania Republican (and former Democratic) Senator Arlen Specter. It would protect reporters from being forced to identify sources by overzealous government officials, with carve-outs for national security, imminent threat of death or bodily harm, destruction of critical infrastructure, and other special circumstances. The bill also covers government efforts to obtain information from Internet service providers or ISPs.

The Federal Communications Commission asked for input on former FCC Chairman Julius Genachowski's proposed "Third Way" approach to legally justifying open Internet rules that was part of the docket in the initial Open Internet order proceeding.

The 'Third Way' was short of straight reclassification, instead combining applying some Title II regulations and forbearing others. Comment deadlines are July 15 for initial comments and Sept 10 for replies.

Essentially the notice opens a new pleading cycle for comments on that 2010 "'third way' approach that would apply a limited set of Title II obligations to broadband providers," the FCC Wireline Competition Bureau said. "Today’s Public Notice establishes a comment cycle by which members of the public can update the record in that proceeding in light of marketplace and legal developments over the last four years."

Despite calls from cable operators, Genachowski declined to close the Title II docket after his decision not to reclassify, and FCC Chairman Tom Wheeler declined to close it in the run-up to his 706 proposal. Now Chairman Wheeler is affirmatively seeking more input on that 'Third Way' approach given changes in the marketplace and various legal developments since 2010.

According to various sources, the Federal Communications Commission is not likely to release the final order on its incentive auction framework order until next week.

Broadcasters had been looking for the 400-plus page order to be released by May 30, 2014, but it is now looking like June 2 at the earliest.

The FCC voted on the order May 15, but it was a split 3-2 decision along party lines. Broadcasters will be going over the order with a fine-tooth comb. They are already contemplating taking the FCC to court over its decision to use new OET-69 data and/or methodology (there is a dispute between the FCC and NAB over which it is) to calculate TV station contours for the purposes of repacking after the auction.

In their dissents, both Republicans said the item was manipulating the market by limiting wireless bidders, was not necessarily holding broadcasters harmless in the band plan, and may not even be legal.