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.
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.
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.
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.
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:
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.
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.
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.
In August 2012, the Coalition for Broadcast Investment (“CBI”), a group comprising national broadcast networks, radio and television station licensees, and community and consumer organizations, filed a letter with the FCC requesting clarification of the foreign ownership rules contained in Section 310(b)(4) of the Communications Act. Specifically, CBI requested clarification that “the FCC will conduct a substantive, facts, and circumstances evaluation of proposals for foreign investment in excess of 25 percent in the parent company of a broadcast licensee.…” If adopted, this approach would represent a marked change of course for the FCC, which has in the past “categorically refused” to consider transactions involving investment in broadcasters above the 25% benchmark, according to CBI.
Following up on an important FCC Law Blog item, entities subject to the Twenty-First Century Communications and Video Accessibility Act (“CVAA”) should be aware that the April 1, 2013 deadline to electronically file the first annual recordkeeping certification is less than a week away.