John Eggerton

The Parents Television Council—which is based in Los Angeles—is calling on voters in California to oppose a ballot measure to legalize recreational marijuana use. But PTC's focus is on the provision allowing that use to be advertised on broadcast and cable TV, as well as other outlets.

Proposition 64 does require that the audience composition of the media where the ads can be placed average more than two-thirds over 21 years old, says PTC, but it says the wording will effectively allow the ads on "almost any TV program" at “almost any time of day." "Our nation rightly prohibits the marketing of tobacco products on television so as to protect children, and the marketing of marijuana should be held to no lesser of a standard," said PTC president Tim Winter. "Marijuana should not be advertised to children, and this measure opens the floodgates that would be impossible to close.” The relevant ad language in Proposition 64 is: “Any advertising or marketing placed in broadcast, cable, radio, print and digital communications shall only be displayed where at least 71.6 percent of the audience is reasonably expected to be 21 years of age or older, as determined by reliable, up-to-date audience composition data." There has been some dispute about whether or not marijuana can be advertised.

The National Association of Broadcasters says it is OK with the Federal Communications Commission's phased approach to transitioning TV stations to new channels after the incentive auction, calling it a reasonable approach to spreading out the work required and trying to avoid bottlenecks in the supply chain for a daisy chain of station moves. NAB called the FCC's post-spectrum auction repack proposal a "productive and critical step." It also said it agreed that there should be no more than 10 different phases, saying more than that would be overly complex.

But it also had a couple of suggestions for avoiding missteps. The first was to prioritize minimizing viewer disruptions. The second was to remain flexible about which phase stations were placed in—saying they should be considered "tentative" assignments—based on "facts on the ground....Weather conditions, delayed zoning approvals, supply chain issues, and unanticipated engineering complexity for some stations can and will create delays that will have cascading effects for other stations." NAB put a sharper point on its number two suggestion. "Unfortunately, while there is much promise in the proposed scheduling plan, the Commission’s continued insistence that the transition can be completed in 39 months has painted the Commission into a succession of unnecessary corners that ultimately threaten the transition’s viability," NAB said.

Republican presidential candidate Donald Trump, no fan of the media, tweeted over the weekend that he thought social media sites were suppressing the story about the new e-mails FBI Director James Comey had told Congress were being looked at in relation to Hillary Clinton's e-mail server. The story was getting plenty of play on cable news Oct 28, but Oct 30 Trump tweeted: "Wow, Twitter, Google and Facebook are burying the FBI criminal investigation of Clinton. Very dishonest media!" The tweet appeared to be in response to stories about how much attention the latest twist in the Clinton e-mail story was getting, or wasn't, on social media sites.

CenturyLink says the Federal Communications Commission's new business data services (BDS) proposal could mean crippling rate cuts while ignoring evidence of competition. The company accused the FCC of a flawed and dangerous approach that lacked transparency. The FCC Oct 27 scheduled a vote for the Nov 17 public meeting on FCC Chairman Tom Wheeler's BDS revamp.

Initially the proposal was to impose ex ante (before the fact) price regulation on incumbents according to a geographic approach, but that was changed to the case-by-case model. On Oct 28, CenturyLink, which was no fan of the initial proposal, slammed the latest proposal and its incumbent local exchange carrier (ILEC) price caps, saying there was no basis for cuts in ILEC rates, period, and that the FCC was lowballing the cuts it was proposing. The FCC based its new approach to business broadband (formerly called "special access) on several years of data-collection, but CenturyLink says the commission's new proposal "suggests an intent to ignore" evidence of competition and impose not only a phased-in rate reduction but in some cases an additional, initial, rate reduction.

Sen Ed Markey (D-MA) says the Federal Communications Commission should get to review the proposed AT&T-Time Warner merger. "[T]he FCC is our telecommunications cop on the beat, and we need it to ensure that marketplace actions don’t harm consumers, stifle innovation, or reduce competition," he said.

There has been talk that the companies might be able to avoid an FCC review by spinning off a TV station and some satellite licenses, which would mean the Department of Justice would review for antitrust issues, though likely with FCC input anyway. But Sen Markey says the deal "demands" a review by both parties. “A review by the FCC would help prevent pay-TV gatekeepers from favoring their own content providers, and blocking minority, diverse, and independent programmers from reaching America's living rooms," he said, echoing FCC Chairman Tom Wheeler's arguments for various regulatory efforts. "A review by the FCC would help ensure that Americans can continue to enjoy watching all the content that should be available to them, and that their right to privacy is maintained even when technologies change.” Sen Markey did not say he opposed, or supported, the deal. But he did say that an FCC review would give it a chance to either "apply pro-consumer, pro-competition conditions if the acquisition is not in the public interest or halt it altogether."

Federal Communications Commission lawyers agree a recent court decision could threaten the privacy partnership between the FCC and Federal Trade Commission necessitated by the reclassification of Internet service providers as Title II common carriers. The FCC filed an amicus brief with the US Court of Appeals for the Ninth Circuit supporting the FTC’s challenge of a ruling by a three-judge panel of that court that calls into question the FTC's ability to protect the privacy of web user's data or determine how it can be shared by edge providers—Google, Facebook. The FCC said the FTC had made a "compelling case" for an en banc (full court) rehearing.

Courts do not frequently grant such requests but could win this case given the regulatory gap the decision appears to create. The filing, which was made before the FCC’s Oct 27 vote on its new rules, pointed out that vote was coming and that rules did not apply to edge privacy, including websites owned by broadband providers. "By restricting the FTC’s authority over non-common-carrier offerings of entities that also provide common carrier services, the panel’s decision creates uncertainty regarding the agencies’ collaborative efforts to protect the public interest, and potentially undermines those efforts," the FCC said. That is because the FCC and FTC have to take a sort of Jack Spratt approach given the bifurcated authority over ISPs and edge providers. For instance, the FCC regulates Google Fiber sub data privacy, while the FTC regulates Google search engine surfer data privacy, with different regimes and levels of protection for each.

The Federal Communications Commission released "Section 257 Triennial Report to Congress Identifying and Eliminating Market Entry Barriers For Entrepreneurs and other Small Businesses." The FCC under Chairman Tom Wheeler says it has created "unprecedented opportunities for new and diverse media voices to find audiences," primarily through Open Internet policies like Title II reclassification of Internet service providers. The FCC was asked by Congress to give a status report every three years and to make recommendations for legislative changes that would further the goals of "1) diversity of media voices, 2) vigorous economic competition, 3) technological advancement, and 4) promotion of the public convenience and necessity."

One of the changes the FCC is looking for, while Congress is asking, is more time to investigate complaints, saying that the current one-year statute of limitations should be tripled to three years, arguing that would "strengthen its ability to enforce its rules, "including its activities to protect small businesses." While it says it has acted on numerous fronts, the most important has been "the development of an open, interconnected broadband ecosystem that has given small firms access to marketing and production capabilities that were once available only to large and established firms." "Our Open Internet Order protects entrepreneurs and small businesses’ free and open access to the Internet, enabling innovation without permission," said FCC Chairman Tom Wheeler. "We all know the stories of young entrepreneurs who used the open Internet to start companies in dorm-rooms and garages that would eventually topple incumbents to become world-leading companies. But fast, fair, and open networks don’t just offer a platform to build web-based companies, they also help small brick-and-mortar businesses grow." The report argues that high-speed access has "radically" lowered small business entry costs, and has also "taken action to create new opportunities for small companies to acquire crucial inputs such as wireless spectrum and broadcast licenses" and has "reduced paperwork requirements for small firms."

Federal Communications Commission Chairman Tom Wheeler isn't talking about the potential for the FCC to be reviewing the proposed AT&T/Time Warner merger. He was asked to weigh in after the FCC's public meeting Oct 27. Commissioners historically don't talk about merger reviews before the agency, but the merger application has yet to be filed.

Chairman Wheeler was not talking about it anyway, pointing out there was no deal before him, though there might be, and almost certainly he won't comment on it then either. "Nothing has been presented to us right now and if something is presented, we will make a decision based on the public interest," he said. He brushed off as hypotheticals general questions about his view on vertical integration, the efficacy of behavioral versus structural conditions, or what an FCC "advisory" role might be in the deal. Chairman Wheeler never answers questions he defines as hypothetical. However, in terms of whether he thought vertical integration was healthy for competition, he said: "I don't think there is any doubt about my stand on 'competition, competition, competition.'" Asked if the FCC's hands were tied if the AT&T/Time Warner merger did not include any license transfers, Chairman Wheeler said: "We ought to see how things develop. I'm not going to stand here and hip shoot one way or another."

Federal Communications Commission Chairman Tom Wheeler says that the FCC's Open Internet order does give Internet service providers the ability to deal with the distributed denial-of-service (DDoS) attacks like the one that hit Twitter, Netflix and other sites Oct 21.

At a press conference following the Oct. 27 public meeting, Chairman Wheeler said that given that the order allows for reasonable network management, ISPs "clearly" have leeway "to deal with issues like this." That came in response to a letter from Sen Mark Warner (D-VA)—Chairman Wheeler also said he would be officially responding—raising concerns that the Open Internet order might restrict that response, particularly given the proliferation of Internet of Things (IoT) connected devices. FCC Commissioner Ajit Pai, speaking after the Chairman, said he would be willing to work with Sen Warner's staff to "try to get to the bottom of this" but said he thought the FCC's role on cybersecurity should primarily be as a consultant.

Three members of the Congressional Black Caucus have urged the Federal Communications Commission to give "strong consideration" to ruling on the Nexstar-Media General merger, saying delay could hurt diversity. The companies did not file requests to transfer the licenses until after the deadline for doing so if the deal involved stations eligible for the incentive auction, which it did. They have asked for a waiver, but the FCC has yet to act on that request. In a letter to FCC Chairman Tom Wheeler, Reps Yvette Clarke (D-NY), Sheila Jackson Lee (D-TX) and Cedric Richmond (D-LA) cited the fact that the deal includes spin-offs of Fox and NBC affiliates to a third broadcaster, Bayou City, which they say is the only African-American broadcaster in the country owning, operating and managing "every aspect" of its TV stations. "We are concerned about the possible unintended impacts the moratorium could have on diversity in broadcast ownership," they said. Given that, they told Chairman Wheeler in a letter, "We strongly urge the Commission give full consideration to the request being filed by Nexstar Broadcasting Group and Media General seeking a limited waiver of the auction rules allowing them to close the merger and related transactions," Bayou City being one of the latter.

The National Association of Black Owned Broadcasters (NABOB) and the Multicultural Media, Telecom and Internet Council (MMTC) have also asked the FCC to grant Nexstar’s waiver request so its deal to buy Media General can close without having to wait for the broadcast incentive auction to do likewise. They argue that delaying the merger until the auction is over is having a significant adverse financial impact on Bayou.