Making a Case for Court-Watching

Federal judgments could help decide the future of communications policy in 2013

Some of the biggest action in the communications policy sphere in 2013 could come from the federal courts as FCC regs and decisions are probed and the limits of the FCC’s authority are tested. Among the issues at stake are the status of overthe- top video, the FCC’s network neutrality rules, the commission’s first program-carriage complaint decision against a cable operator—Tennis Channel v. Comcast—and even the FCC’s ability to define its own authority.

Net Neutrality. All eyes will be on the oral argument in the Verizon/MetroPCS challenge to the FCC’s Open Internet order, which is expected to come sometime in the first quarter in the D.C. Circuit, according to attorneys, lobbyists and FCC officials past and present. If the FCC loses, which even some Open Internet order fans suggest could be the case, the commissioners will have to decide whether to use the fallback position of classifying Internet access as a Title II telecom service subject to mandatory access. That would be a poison pill to cable operators, which grudgingly did not publicly complain about the compromise order to which they were party. FCC chairman Julius Genachowski has refused to close the Title II docket, though it remains unclear whether he would have the three votes needed to impose that alternative.

Carriage, anyone?
The D.C. appeals court has scheduled Feb. 25 for oral argument in Comcast’s challenge to the FCC’s decision that the nation’s largest cable operator used discrimination by carrying NBC Sports Network (then called Versus) and Golf Channel on more widely viewed tiers than Tennis Channel. Comcast says the decision has implications for its First Amendment right to program its own channels. The MSO’s fortunes were buoyed by the three judges chosen to hear the appeal, according to knowledgeable court-watchers. Two were described by multiple sources familiar with the court as “conservative” and “anti-regulatory.” One source said, “They will be receptive to Comcast’s arguments, including its First Amendment claims.”

Aereo: At presstime, an appeals court had not ruled on whether it would turn over a lower court decision and enjoin Aereo from delivering overthe- air TV signals to customers without paying broadcasters for the transmissions— which broadcasters argue are retransmissions in violation of copyright. How those courts decide could determine whether broadcasters get compensated for in-market, over-the-top delivery of their signals, which could become the next retrans cash infusion if video moves online in a big way.

There are limits… The Supreme Court has taken a challenge by state regulators to the FCC’s power, citing rule change. The issue is not the rule itself, but whether the FCC has the power to de! ne its own authority. One FCC source suggested the D.C. Circuit might even wait to render its decision on network neutrality until the Supreme Court decided this case, particularly if the lower court had questions about the FCC’s authority to impose the Internet regs. But a veteran cable attorney didn’t think the D.C. Circuit would hold off. If the court reins in that authority, the FCC may have to go to Congress for help in clarifying it. And given Congress’ political divide, that “help” might be a very long time coming.

Also on the docket: At presstime, the FCC appeared to still be anticipating an early 2013 vote on media ownership despite pushback from minority groups and unions. The other big-ticket item is a framework for spectrum incentive auctions, which the commission is targeting for a midyear vote, though that timetable could be pushed back if Genachowski were to decide to exit in the spring, as many are predicting; the chairman has declined comment on the widespread speculation.

While the Congress is new, the political divide remains and will likely prevent any major communications-related bills from being enacted anytime soon. There could be hearings on media violence in the wake of the Sandy Hook shootings, and a bill could be passed authorizing a study on the impact of that media violence on kids.

There will almost certainly be more hearings on privacy and data security, perhaps follow-up hearings on spectrum incentive auctions as the FCC’s self-imposed deadline approaches, and talk about revising the Communications Act to get rid of those regulatory silos everybody is always dissing. But words will speak louder than actions if past is prologue, with Republicans trying to push for FCC reforms like shot clocks and restrictions on merger reviews and conditions and Dems pushing back.

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