John Eggerton

FilmOn X on April 6 sought a full-court re-hearing in the Ninth Circuit Court of Appeals after a three-judge panel of that court in March reversed a lower court decision that FilmOn X was eligible for the same compulsory license to TV programming as cable operators have. The appeals court panel held that "a service that captures copyrighted works broadcast over the air, and then retransmits them to paying subscribers over the Internet without the consent of the copyright holders, is not a 'cable system' eligible for a compulsory license under the Copyright Act."

Broadcasters led by Fox had challenged the lower court ruling after US District Court judge George Wu sided with FilmOn X. The company argues that the Copyright Office has been inconsistent on the license, granting one to U-verse and FiOS as substantially similar to cable, for example, while denying ones to FilmOn X and others that also use IP technology. It also says Congress meant for the definition of cable to be able to encompass new technologies like FilmOn X.

The House Communications Subcommittee held a hearing on wireless spectrum and the economy, but it had to wait for Democratic and Republican lawmakers to air out their grievances over the passage last week of the Congressional Review Act (CRA) resolution rolling back Federal Communications Commission broadband privacy regulations. The back-and-forth was particularly heated and even personal, illustrating the widening political divide on Capitol Hill.

Subcommittee Ranking Member Mike Doyle (D-PA) and full Committee Ranking Member Frank Pallone (D-NJ) used their opening statements to weigh in on Republicans "ramming" the CRA down the "public's throat," as Rep Doyle put it. Rep Doyle also called out CTIA (though not by name)—a CTIA witness, the only association witness, was at the table—for supporting the CRA, saying the industry association had acted in a "selfish and irresponsible way." He said he expected more from it and its members, and the American people did as well. Saying that CTIA's support for the CRA meant that there were no privacy protections, Rep Doyle said: "Believe me, my constituents and your customers are not happy about this." House Commerce Committee Chairman Greg Walden (R-OR) shot back that the issue had been "horribly spun" and that the FCC created the problem when it reclassified ISPs under Title II and took over regulation of broadband privacy form the Federal Trade Commission.

House Democrats have released a suite of "connectivity" bills April 5 that would, among other things, prevent the Federal Communications Commission from targeting broadcasters "or anyone else" on the basis of viewpoint, toughen FCC political ad disclosure rules, and boost broadcast diversity.

The Protecting Dissenting Viewpoints and Voices Act (HR 1574), introduced by Rep Ben Jay Luján (D-NM), stems from FCC Chairman Ajit Pai's decision not to weigh in on President Donald Trump's branding of news outlets as "fake news" and in the shadow of the President's ongoing threats, or perceived threats, including invoking potential changes in libel laws or, as a candidate, suggesting his Administration should bock a deal involving Time Warner, which owns one of his main targets, CNN. The bill would prevent the FCC from revoking any license, denying a license transfer, or taking action against an individual for their viewpoints on issues of public importance. The bill would also prevent the President from directing an agency from retaliating over a broadcast viewpoint.

The Keeping Our Campaigns Honest (KOCH) Act (HR 1439), whose name is a reference to the Koch brothers, who are big Republican donors, was introduced by Reps John Yarmuth (D-KY), Peter Welch (D-VT) and Luján. It would "direct the FCC to revise its sponsorship identification rules to require that the true identity of individuals behind anonymous campaign ads be disclosed."

The Expanding Broadcast Ownership Opportunities Act, introduced by Rep GK Butterfield (D-NC) would boost data and reporting requirements for ownership diversity, restore the tax certificate program and establish a minority incubator program (see separate story).

The Connected Government Act which would require government websites to be optimized for mobile.

The Family Telephone Connection Protection Act (HR 1184) which would require the FCC to regulate prison phone rates.

The nullification of the Federal Communications Commission's broadband privacy rules at the stroke of the President Donald Trump's pen drew a big audience in Washington, most of them either to weigh in on one side or the other of the contentious issue.

House Commerce Committee Ranking Member Frank Pallone (D-NJ) said, “Once again, the American people lose out at the hands of President Trump and the Republican Congress. The Republicans thought they could jam through this harmful law without anyone noticing. But despite their effort to hide this latest corporate giveaway, Americans of all political stripes spoke out loud and clear to say that they wanted to keep their personal information private and secure. Despite this setback, the fight is not over, and I will work to restore privacy protections for the American people.”

The Federal Communications Commission has voted to modify the Charter-Time Warner Cable deal conditions by removing the requirement that Charter overbuild a million internet access customers who could already get high-speed access from another provider, apparently. The idea of the condition, imposed under former FCC Chairman Tom Wheeler, was to promote price and speed competition.

New FCC chairman Ajit Pai circulated the item in March, after which it was widely expected to be approved. The buildout requirement remains, but according to the item that could now all be buildouts to currently unserved homes, with no overbuilding. However, Charter could still choose to overbuild those one million, they are just no longer required to do so. Charter in 2016 said it intended to focus its overbuild activity against teleommunication broadband providers, not other cable companies.

The Tom Wheeler Federal Communications Commission suffered another defeat in the opt-out advertising category March 31 as a three-judge panel of the US Court of Appeals—in a 2-1 decision—overturned a ruling regarding faxed advertisements, saying the FCC had exceeded its authority. The FCC in 2014 upheld a previous conclusion that its rule implementing The Junk Fax Prevention Act of 2005 required opt-out notices not only on unsolicited faxed ads but solicited ones as well. That was more than an academic exercise since the FCC was responding to a 2010 request for a declaratory ruling by a drug company, Anda, that wanted the FCC to find the rule didn't apply to solicited faxes—since that meant the recipient had agreed to get them. Anda was being sued for $150 million by pharmacies that claimed, even though they had agreed to get the faxes, there should have still been an opt-out option. The FCC agreed; the court panel did not.

Federal Communications Commission Chairman Ajit Pai's proposal to deregulate business data service (BDS) rates—credit card readers, ATMs—of incumbent carriers and not to impose potential new price regulations on competitors including cable operators was drawing a lot of attention in Washington after the chairman signaled the FCC would vote on his BDS item at the April meeting. Former chairman Tom Wheeler ran out of time and support for his BDS revamp, which Pai had issues with. A notice of proposed rulemaking (NPRM) under Wheeler was adopted along party lines, but the order was never voted. Pai’s item would be an order based on what he said was lengthy data collection and the input into that NPRM, though critics of his plan were suggesting it was sufficiently different from the NPRM that it should be put out for new comment.

The Commerce Department's announcement that AT&T had been awarded the contract to build and maintain FirstNet, the interoperable broadband communications network suggested after first responder communications failures on 9/11, drew praise from various quarters. "This step was part of the 9/11 Commission’s recommendations on improving the ability of our police, fire, and emergency medical personnel to communicate seamlessly across jurisdictions, which is critical to their missions," said White House press secretary Sean Spicer. "It’s also a sign of the incredible ability of public-private partnerships to drive innovation and solve some of our biggest problems while also creating jobs and growing the economy."

Federal Communications Commission Chairman Ajit Pai said that broadband is the infrastructure challenge of our time, and he sees cable operators not as an enemy of that effort but as partners in better enabling citizens to reap the benefits of the digital revolution. Former Chairman Tom Wheeler often framed Internet service providers as gatekeepers and potential snakes in the virtuous garden in need of minding.

American Cable Association president Matthew Polka, who interviewed the chairman at the American Cable Association annual summit, called Pai's a "refreshing take"—to applause from members. Chairman Pai was speaking in advance of their visits around Washington (DC) to make the case on Capitol Hill and elsewhere for the important role of small and medium sized telecoms/cable operators and the need to recognize their particular challenges. Polka pointed to the active agenda of the new chairman, and that came even before he had announced a busy meeting agenda for April that includes a revamp of business data services (BDS) that is not expected to include potential new price regs on cable operators ISPs, as his predecessor had proposed. Chairman Pai said that his short-term goals include promoting infrastructure investment and whether any regulations currently on the books are impeding that—the April agenda includes some proposals to speed that deployment by removing regulatory barriers.

President Donald Trump has renewed his suggestion that libel laws might need to be tightened so he could pursue news outlets whose stories he feels are wrong or unjustified attacks. In a tweet March 30, the President once again took aim at one of the mainstays of the mainstream media. "The failing @nytimes has disgraced the media world," he wrote. "Gotten me wrong for two solid years. Change libel laws?" That followed a tweet from March 29: "Remember when the failing @nytimes apologized to its subscribers, right after the election, because their coverage was so wrong. Now worse!"