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The Supreme Court heard the oral arguments in the Aereo case yesterday, it has received all the briefs, and now we all just wait for a decision – to probably be released late in June before the Court’s summer recess.  The transcript of yesterday’s oral argument has been released and is available here.  It makes for interesting reading, as the questions from the Court seemed to be dubious of Aereo’s claims that it can retransmit the signal of a broadcast television station over the Internet, to the public for a fee, without the consent of or any payment to the stations.  While dubious about the Aereo service, the Court was also concerned about the potential impact of any decision against Aereo on cloud services and even on other distributors of media content.  Lots of issues came up during the course of the argument, and it will be very interesting to see how the Court resolves these in its final decision.  Keep reading, and I’ll make my prediction. 

While Court arguments can never be relied on to predict the decision, they can at least provide insight into the questions that the Justices are considering.  One question that recurred throughout the argument was raised by Justice Sotomayor in the first question that was asked – why wasn’t Aereo a cable system under Copyright law, as it retransmits television programming to consumers for a fee?  Counsel for both parties contended that it was not a cable system, though neither gave an entirely satisfactory reason for that position.  The definition of a cable system in Section 111 of the Copyright Act, which governs the compulsory license granted to cable systems to retransmit over-the-air TV stations and all of the content that they broadcast, defines a “cable system” as:

a facility…that in whole or in part receives signals transmitted or broadcast by one or more television stations licensed by the Federal Communications Commission, and makes secondary transmissions of such signals by wires, cables, microwave or other communications channels to subscribing members of the public who pay for such service.

As the Justices said, this sure looks like what Aereo is doing.  As we have written before, the FCC is looking at whether an IP based video-programming service should be classified as a cable system.  It might well have been easier for the attorney representing the broadcasters to concede that Aereo was very much like a cable system, as if it was so classified, it would have proved the argument that they broadcasters were trying to make – that its retransmission of television programming was a public performance that required the permission of the broadcaster.
Continue Reading Supreme Court Hears Oral Argument in the Aereo Case – A Summary of the Issues and a Prediction

The incentive auction by which the FCC will try to get some television stations to surrender their spectrum so that it can be sold to wireless broadband users is moving forward.  A vote on the general rules to implement the auction and to repack the television band are expected to be held at the Commission’s May 15 meeting.  We are now beginning to get a look at what the FCC is thinking, based on a post on the FCC’s blog on Friday by Chairman Wheeler, and a fact sheet released later that day (which does not appear to be available on the FCC website).  While not terribly detailed, the documents at least show that the Commission is planning a quick transition – looking for the repacking to be complete within 39 months from the end of the incentive auction – and perhaps sooner for some stations.

The blog post again reiterates the Chairman’s belief that the Incentive Auction process poses:

a once-in-a-lifetime opportunity to expand the benefits of mobile wireless coverage and competition to consumers across the Nation – particularly consumers in rural areas – offering more choices of wireless providers, lower prices, and higher quality mobile services

The post also suggests that TV stations, by agreeing to share television spectrum with another station in their market so that they can give up a channel to the auction have another “once in a lifetime” opportunity to get money from the government to pursue new business opportunities in new technologies, while still providing some broadcast service.  This is much the same message that the Chairman conveyed at the NAB Convention in Las Vegas a few weeks ago.  But for stations that do not take him up on his invitation to sell their spectrum, what is likely to happen?
Continue Reading FCC Gives a Peek at Some Details for the Incentive Auction – What’s Up for TV Stations?

Aereo finally lost a court decision.  The US District Court in Utah released a well-reasoned decision finding that the service, by transmitting via the Internet over-the-air TV programming to subscribers without any consent from the TV stations or their program suppliers, violated the copyrights that the stations have in their programming.  Specifically, the Court found that the transmissions were public performances, the very issue to be determined later this year by the US Supreme Court when it considers the decision of the Second Circuit Court of Appeals in New York finding that no public performance was involved in the Aereo transmissions.  (See our summary of the NY decision here).  The Utah Court issued an injunction preventing Aereo from operating in Utah until the issue is decided by the Supreme Court. 

This is the first case that Aereo itself has lost, also winning a favorable decision from a District Court in Boston which essentially followed the Second Circuits reasoning (see our summary of the Boston decision here).  But the Aereo copycat service, FilmOn X, which presented essentially the same legal issues to Courts, has lost two decisions, one in California and one in Washington DC (see our summary of the DC decision here), both courts finding that the public performance right was implicated by Aereo’s transmissions.  Oral arguments in the Supreme Court are to be held in April, with a decision in the case expected before the Court adjourns for its summer recess in July.  Does this Utah decision serve as a preview of the upcoming Supreme Court decision?
Continue Reading Utah Court Enjoins Aereo Service – A Preview of the Supreme Court Decision? Could It Find Aereo to Violate Copyright Law Without Overturning the Cablevision Decision?

The Supreme Court on Friday announced that is has decided to review the decision of a US Appeals Court in New York finding that the Aereo service of retransmitting over the Internet the signals of local television stations, without permission from or payment to those stations, was legal.  We wrote about the Second Circuit Court of Appeals decision in the Aereo case here.  The Supreme Court’s decision to hear the case, which may signal that the case will be decided before the Court adjourns its term in June, was supported not only by the television stations who had sought to block the Aereo service and the program suppliers to those television stations (including many of the sports leagues), but also by Aereo itself.  As Aereo and its copycat service FilmOn X were being sued in every jurisdiction where they started to do business, the desire to get a quick and final resolution of the legality of their services is a natural one.  This is especially true as the Courts have been reaching different decisions, as demonstrated by the two cases decided only a month apart, one in Boston finding Aereo to be legal, and one in DC finding FilmOn X to be infringing on the copyrights of the TV stations who brought the lawsuit.  So what issues will the Supreme Court be deciding?

One newspaper editorial, from the Los Angeles Times, has suggested that this is a Betamax case for the 21st century.  The Betamax case, officially known as Sony Corp. v Universal City Studios, was the case that declared the VCR to be legal, and found that its original manufacturer, Sony, was not contributorily infringing on the copyrights held by Universal and other studios that brought the case.  But that comparison really does not hold up, as the Betamax decision was premised on several findings that simply cannot be made here.  First, the Court in the Betamax case found that the VCR was not in and of itself an infringing service, as it had substantial legal uses.  In fact, there was testimony in the record that many copyright holders actually were not opposed to the use of a Betamax to copy their programs for time shifting and other purposes.  In the Aereo cases, copyright holders are for the most part universally opposed to the service and, other than retransmitting copyrighted programs without consent, there does not appear to be another use for the service.
Continue Reading Supreme Court Decides to Review Aereo – Why This is Not the New Betamax Case

It is the beginning of another year – and a time to look ahead to look ahead at what broadcasters should expect from Washington in the coming year.  With so many issues on the table, we’ll divide the issues into two parts – talking about FCC issues today, and issues from Capitol Hill and elsewhere in Washington’s alphabet soup of regulatory agencies in the near future.  In addition, watch these pages for our calendar of regulatory deadlines for broadcasters in the next few days.

Each January, we publish a list of issues for the coming year, and it is not always the case that these issues make it to the top of various piles (literal or figurative) that sit in various offices at the FCC.  As set forth below, there are a number of FCC proceedings that remain open, and could be resolved this year.  But just as often, a good number of these issues sit unresolved to be included, once again, on our list of issues for next year.  While some issues are almost guaranteed to be considered, others are a crap shoot as to whether they will in fact bubble up to the top of the FCC’s long list of pending items. So this list should not be seen as a definitive list of what will be considered by the FCC this year, but instead as an alert as to what might be coming your way this year. Issues unique to radio and TV, and those that could affect the broadcast industry generally, are addressed below.
Continue Reading What’s Up in Washington For Broadcasters in 2014? — Part 1, FCC Issues

Closed captioning of video programming repurposed to the Internet has been an obligation of television stations for over a year.  Thus far, most stations have been able to comply with the requirements – as those requirements have only applied to full programs that were captioned when broadcast over the air, and then carried over to the Internet, either in whole or in segments that comprise essentially all of the program.  Now, the FCC is asking if any program excerpt should be captioned when transmitted over the Internet.  In a Public Notice released this week, the FCC asked whether the obligation to caption television programming transmitted through IP technologies should be extended to clips of such programming as well.

In asking for comments, the FCC noted that, when Congress adopted the Twenty-First Century Communications and Video Accessibility Act, which gave the FCC authority to mandate Internet captioning of TV programs, Congress required only the captioning of full programs, but it said that the limitation to full programs was intended only “at this time,” suggesting that the FCC could extend the requirements to clips at some point in the future.  Thus, the Commission is asking if this is the time to look at an extension of the obligations.  In undertaking this examination, the FCC is posing numerous requests for information from interested parties.
Continue Reading Mandatory Captioning of IP Delivered Clips of TV Programs? The FCC Seeks Information About Extending Internet Video Captioning Obligations

While we were sidetracked by the government shutdown in posting reminders about regulatory deadlines for broadcasters during the last two months, it’s about time to put that behind us, and to resume our monthly practice. While everyone may be looking forward to the holidays, they need to remember that December does bring a number of regulatory obligations for broadcasters across the country.  For instance, license renewals are due on December 2 (as the 1st is a Sunday) for the following station groups: Commercial and Noncommercial Full-Power and Class A Television Stations, TV Translators, and LPTV Stations in Colorado, Minnesota, Montana, North Dakota and South Dakota; Commercial and Noncommercial AM and FM Radio Stations, FM Translators, and LPFM Stations in Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont.

Radio and television stations in all of those states, plus those in Alabama and Georgia, that have 5 or more full-time employees in their station employment groups, also have the obligation to complete their Annual EEO Public Inspection File Report, and to place that report into their public file (for TV stations, that would be their online pubic file).  The deadline for those reports to be complete and posted is December 1.  Radio stations in these states also need to post the most recent report on their websites, if they have a website. 
Continue Reading December Regulatory Deadlines For Broadcasters – Renewals, Ownership Reports, CALM Act, and TV Form 317

At long last, it appears that we will soon have a complete FCC, as the Senate has approved the nomination of Tom Wheeler to be the next FCC Chairman, and Michael O’Rielly for the other vacancy on the FCC.  The nomination of Mr. Wheeler had been held up by Senator Ted Cruz on grounds that he feared the FCC taking action to implement provisions of the Disclose Act (which we wrote about here).  Senator Cruz was particularly concerned that a new FCC might adopt rules that would require disclosure not just of a political ads sponsor, but also of the chief financing sources of the sponsor.  Mr. Wheeler apparently assured Senator Cruz that the adoption of such a rule was not high on his agenda, the hold on the nomination was dropped, and the new Chairman was confirmed.  He should take office very soon – with press reports suggesting that it will be on Monday.  What issues should broadcasters expect the new FCC to tackle?

There are many big issues for broadcasters that are under consideration but not decided, and we would expect that the new FCC chair would want to quickly start to deal with them.  The biggest issue is no doubt the Incentive Auctions – looking at the reclaiming of spectrum from TV broadcasters to allow it to be re-sold to wireless companies for wireless broadband and other uses.  We last wrote about that incredibly complex proceeding here.  The FCC under Chairman Genachowski had looked to have rules in place before the end of this year to reclaim the spectrum and to sell it to the wireless companies.  The former chair had hoped to have the auction itself occur in 2014.  With the delays in the confirmation of the Chairman, and the recent government shutdown, many observers are expecting the rules will be pushed back to next year, and the auction itself to the year after – but all that remains to be seen.
Continue Reading Tom Wheeler Confirmed As FCC Chair – What Broadcast Issues Will the New FCC be Addressing?

The battle over services that record and stream over-the-air TV without compensation to TV broadcasters has become even more confusing, with a US District Court judge in Boston denying an injunction to stop the Aereo service in Massachusetts in a suit brought by Hearst Corporation, which owns a local TV station. This decision comes on the heels of a decision the decision by the US District Court in Washington DC finding that Aereo-like service FilmOn X was violating the copyrights of TV stations by operating a similar service in the DC area (see our discussion of that decision here). Joining decisions in NY favoring the streaming services (a decision we initially wrote about here), and one is California favoring broadcasters, the decision appears to be headed to an ultimate resolution before the Supreme Court to reflect these conflicting points of view. In fact, TV broadcasters have already announced the likelihood of their filing a Supreme Court petition asking the Court to resolve the matter. 

Of course, the decisions outside of NY have been by District Courts, not US Appeals Courts. All except the NY decision are subject to review by the US Court of Appeals in the Circuits in which these District Courts lie. It is possible that the appeals could come out differently than the decisions by the District Courts, and either increase or decrease the likelihood of Supreme Court review, depending on whether the other appellate courts rule for Aereo or FilmOn X (decreasing the likelihood of Supreme Court review if the Circuits agree on the outcome) or against it (increasing the likelihood of review as the Court would be faced with conflicts among the circuits which is a usual ground for Supreme Court review). The Boston decision, while not as comprehensive as some of the other decisions on the topic, does raise some interesting issues that will no doubt be considered on appeal.Continue Reading The Courts Continue To Split on Streaming TV Services – As Boston Court Denies TV Broadcasters Request for an Injunction Against Aereo

The FCC denied reconsideration on the last phase of the digital television transition – requiring that all LPTV stations and TV translators cease analog operations and be operating digitally by September 1, 2015. See our summary of the original ruling on the digital conversion of LPTV and TV translator stations here. In denying reconsideration, the FCC determined that the September 1, 2015 date will hold – denying requests that the final decision be postponed while the FCC considers the repacking of the television band as part of the incentive auction process to clear part of the TV spectrum for wireless broadband purposes. The FCC also noted that some parties wanted to keep operating in an analog mode on TV channel 6, as the audio can be received by FM receivers (so-called "Franken FMs"). The Commission determined that using Channel 6 to provide an audio service this was not a sufficient reason to keep analog operations on TV channels alive past the deadline that they have established. (See our articles about these hybrid LPTV/FM stations, which take advantage of the fact that Channel 6 is adjacent to the FM band and that analog TV used an FM audio system, here).

The Commission did note that, in response to some petitions for reconsideration, that any LPTV station or translator moving to Channel 6 for digital operations be required to protect noncommercial FM stations that would be operating on adjacent frequencies. While the Commission does not expect that such interference will occur frequently, they made clear that LPTV and TV translators are secondary services, and they cannot continue to operate if they cause interference to primary services, including primary noncommercial FM stations.Continue Reading No Relief on LPTV/TV Translator Digital Conversion Deadline – 2015 Deadline for End of Analog Operations Upheld on Reconsideration