Is Wheeler Gaga for Gigabit? The FCC Liberates 100 MHz of Spectrum for Unlicensed Wi-Fi

On April 1, the FCC took steps to remedy a small but growing annoyance of modern life:  poor Wi-Fi connectivity.  Removing restrictions that had been in place to protect the mobile satellite service uplinks of Globalstar, and by unanimous vote, the FCC’s First Report and Order on U-NII will free devices for both (i) outdoor operations; and (ii) operation at higher power levels in the 5.15 – 5.25 GHz band (also called the U-NII-1 band).[1]  The Report and Order also requires manufacturers to take steps to prevent unauthorized software changes to equipment in the U-NII bands, as well as to impose measures protecting weather and other radar systems in the band.

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The DMCA: Seeking Safe Harbor in a Sea of Troubles

Détente can be a beautiful thing.  However, as demonstrated by the recent settlement agreement between Mega-media giants Google and Viacom, achieving it can be very expensive.

In 2007, Viacom filed suit against YouTube (now owned by Google) in federal court in the Southern District of New York for more than a billion dollars in damages. The claim was that over 60,000 clips of Viacom programs were available on YouTube without authorization and that YouTube was aware of instances of copyright infringement, but failed to take appropriate action to stop it.  Google maintained it was immune from liability under the “safe harbor” provisions of the Digital Millennium Copyright Act (“DMCA”), which essentially provides that Internet Service Providers (“ISPs”) are not liable for infringing activity unless they had actual knowledge or the awareness of facts or circumstances demonstrating infringing activity (often referred to as “Red Flag” Knowledge) and failed to remove or block access to the material. Additionally, if the ISP receives a financial benefit directly attributable to the infringing activity where it has the “right and ability to control” such activity or, upon notification of claimed infringement (in the form of a “takedown notice”) fails to expeditiously remove or disable access to the claimed infringing material, the safe harbor is no longer available.

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Sleeper “Small” Cells: The Battle Over The FCC’s Wireless Infrastructure Proceeding

As policymakers and regulators struggle to keep pace with corporate deal makers (read Comcast-Time Warner Cable merger and Comcast-Netflix deal) and address the structures undergirding our Nation’s electronic communications laws, no two aspects of that undertaking (with the possible exception of cybersecurity) are more fundamental to economic vitality, competitiveness and “the pursuit of happiness” than spectrum and infrastructure.  Spectrum without the infrastructure – and, conversely, infrastructure without the spectrum – does little good.  We cannot use one without the other; they are two sides of the same coin. And while the focus on spectrum battles at times has been blinding, until recently at least, infrastructure has made few headlines.

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Regulatory Reminder: Annual CVAA Compliance Certifications due April 1

Following up on an important FCC Law Blog item from 2013, entities subject to the Twenty-First Century Communications and Video Accessibility Act (“CVAA”) should be aware that the April 1, 2014 deadline to electronically file the second annual recordkeeping certification is only a month away.  The CVAA is a far-reaching law designed to ensure that individuals with disabilities are able to fully utilize communications services and obtain better access to advanced communication systems and video programming.  Unsurprisingly, many different types of communications providers are required to file the annual certification, including (but not limited to): traditional wireline telephony operators; wireline equipment manufacturers; mobile network operators; wireless handset manufacturers; cable MSOs; and streaming entertainment device makers.

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Twice Bitten But Not Shy, The FCC Is Handed The DC Circuit’s Prescription for Internet Regulation

On Tuesday, January 14, 2014, the United States Court of Appeals for the D.C. Circuit struck down the FCC’s latest effort to mandate “net neutrality”– or promote internet “openness” – under the auspices of implementing the Communications Act.  At issue in the case is the Commission’s Open Internet Order, which imposed disclosure, anti-blocking, and anti-discrimination requirements on broadband providers.  These requirements were intended to promote investment in broadband deployment by guarding against possible anti-competitive conduct limiting consumer access to internet edge services (e.g., Amazon).  The Court, in a decision written by Judge David S. Tatel, noted the narrowness of the Court’s inquiry—not to assess the wisdom of the FCC’s net neutrality regulations, but to determine whether the Commission had proven that the rules were within the scope of the Commission’s statutory grant of authority. With that in mind, the Court invalidated all but the first (and least intrusive) FCC requirement: disclosure of internet traffic management practices.

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The Times They Are A Changin’ (Again): A How-To Guide Regarding Compliance With New FCC Regulations Mandating Prior Express Written Consent

The FCC has made significant changes to the prior express consent requirements under The Telephone Consumer Protection Act. Effective October 16, 2013, senders must obtain prior express written consent to send any text messages or to place any pre-recorded or automated calls to a residential or mobile device. Companies will also have to obtain written consent for those subscribers who opted-in to call or text campaigns before the effective date of the new regulations (essentially, those people will have to “re-sign up” but this time in writing). Notably, the prior express written consent requirement can be satisfied by any number of digital means including a web form, a text message or even a key press on a mobile device. We have prepared an article that discusses the change in the law, what it means for companies and tips and best practices going-forward. Click here to read the article, and please feel free to reach out with any questions.

Auction 96 – FCC Prepares for Upcoming H Block Spectrum Auction

The FCC – pursuant to a 2012 Congressional mandate – will be prepared to auction the recently-cleared H-block spectrum as early as January 14, 2014. The spectrum will be auctioned as 5 MHz pairs, with each license having a total of 10 MHz of bandwidth; 1915-1920 MHz for mobile and low power fixed (uplink) operations and 1995-2000 MHz for base station and fixed (downlink) operations. As a result of the significant expenses incurred by UTAM, Inc. and Sprint Nextel, Inc. in clearing incumbents from this band, all future H-block licensees will be subject to cost-sharing allocations apportioned on a pro rata basis against the relocation costs attributable to that particular band. For a graphical illustration, see the H-block band plan below:

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Film distributors will face new administrative hurdles in Argentina

Unexpectedly, the government of Argentina has decided to enforce law 23,316, enacted on May 23, 1986, regarding certain requirements for dubbing motion pictures and television programming (the “Dubbing Act”), which was only in the books and never implemented… until today. President Kirchner issued decree 933/2013, which after 27 years explains and expands the Dubbing Act (the “Decree”). Both regulations are full of confusing and contradictory clauses which will cause more than a headache to the film & TV industry and will be an invitation for litigation.

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Mexico’s Telecommunications’ reform ready to be signed by President Peña Nieto

On May 23, after the approval of 24 Mexican states (Aguascalientes, Baja California Sur, Campeche, Chiapas, Chihuahua, Coahuila, Colima, Durango, Guanajuato, Hidalgo, Jalisco, México, Morelos, Nayarit, Puebla, Querétaro, Quintana Roo, San Luis, Potosí, Sonora, Tamaulipas, Veracruz, Yucatán and Zacatecas) the president of the Permanent Commission (Comisión Permanente) has declared constitutional the Telecommunications’ Reform and sent the bill to President Peña Nieto for his signature and publication in the Official Gazette.

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Sheppard Mullin Washington, D.C. Adds Three Partner Communications Practice From Hogan Lovells

WASHINGTON, DC – Sheppard, Mullin, Richter & Hampton LLP has added three partners to the firm’s Business Trial practice group and Communications team: Gardner Gillespie, Dave Thomas, and Paul Werner. Gillespie, Thomas and Werner join Sheppard Mullin’s Washington, D.C. office from Hogan Lovells’ Washington office. To read the full press release click here.

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