Will Your TV Watch You? FCC Green Lights Targeted Advertising in Next Gen TV Broadcasting Standard

Last week, the Federal Communications Commission (FCC), in a 3-2 vote, approved an order allowing “television broadcasters to use the ‘Next Generation’ broadcast television (Next Gen TV) transmission standard, also called ‘ATSC 3.0.’”  Described in the Order “as the world’s first Internet Protocol (IP)-based broadcast transmission platform,” the Next Gen TV standard is expected to allow broadcasters to provide more targeted advertisements to individual viewers.  Some had expressed concerns over the collection of the demographic and consumer data necessary for Next Gen TV targeted advertising, and applicable privacy safeguards for the new standard.  At this stage though, the FCC majority took a wait and see approach to privacy concerns.

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Chairman Pai Set to Release Draft Net Neutrality Item

On November 21, 2017, FCC Chairman Ajit Pai issued a statement announcing that he had circulated his draft Restoring Internet Freedom Order to his fellow commissioners. The draft Order will largely undo the 2015 Open Internet Order and limit FCC jurisdiction over broadband Internet access services, although it appears that the order will retain a transparency requirement for broadband providers.  Fellow Republican FCC Commissioners Brendan Carr and Michael O’Rielly cheered the anticipated release, while Democratic Commissioners Mignon Clyburn and Jessica Rosenworcel opposed it.  Commissioners of the FTC—which could be the largest jurisdictional beneficiary of the Order, subject to a pending en banc proceeding in the Ninth Circuit—were similarly split down party lines in their reaction to the news.  Acting FTC Chairman Maureen Ohlhausen issued a statement expressing gratification that the FCC appeared to take the FTC Staff’s and Acting FTC Chairman’s public comments into consideration in formulating the draft Order.  The FCC will release the draft item on November 22nd, and is set to vote on the item on December 14th.  We will update you on the scope and implications of the draft Order when Chairman Pai releases it.

November 2017 FCC Meeting Recap: FCC Aims to Speed Wireless Deployment by Eliminating Historic Preservation Review When Replacing Utility Poles

Highlighting the need for rapid infrastructure deployment to meet growing consumer data demands and support future 5G services, the Federal Communications Commission (“FCC”) unanimously adopted a Report and Order at its November 16, 2017, meeting to eliminate historic preservation review of replacement utility poles under certain conditions. The FCC’s limited action marks the first decision to come out of the much broader FCC rulemaking proceeding initiated earlier this year to foster wireless infrastructure investment and deployment. The item also consolidates the FCC’s historic preservation review requirements into a single rule to aid compliance.

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Video Game Software Industry Seeks a Final Disabilities Access Waiver Extension

The Federal Communications Commission (“Commission” or “FCC”) recently released a Public Notice seeking comment on a petition filed by the Entertainment Software Association (“ESA”) seeking a one year final extension of its class waiver from the FCC’s accessibility requirements (“Petition”). Specifically, ESA seeks waiver from the 21st Century Communications and Video Accessibility Act’s (“CVAA”) requirement that advanced communications services (“ACS”), like voice and text communications, built into video game software be made accessible for people with disabilities. Comments on the Petition are due by December 1, 2017.

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FCC Equipment Authorization Rule Change Transitions Now in Effect

On November 2, 2017, the FCC’s revised equipment authorization rules were published in the Federal Register and took effect immediately.  Our advisory details those rule revisions.  The Office of Management and Budget (“OMB”) had earlier determined that the new rules included no changes to the existing information collection requirements that required further OMB review before they could take effect. Continue Reading

Partner John Heitmann to Host Armchair Discussion with Commissioner O’Rielly

Partner John Heitmann will host an armchair discussion with FCC Commissioner Michael O’Rielly on Wednesday, November 29 from 12:30 – 2:00 p.m. at the offices of Kelley Drye, 101 Park Avenue, 27th Floor, New York, NY 10178. The discussion will be followed by a “Meet and Greet” brown-bag luncheon, providing an opportunity for attendees to meet the Commissioner in person.

This event is open to FCBA members and non-members but seats are limited and reservations are required.

To register, go to www.fcba.org.

House Antitrust Subcommittee Explores the Role of Antitrust Law in Net Neutrality

On November 1, 2017 the House Antitrust Law Subcommittee held a hearing to discuss the role of federal agencies in preserving an open Internet.

The core question discussed at the hearing was whether current antitrust law is sufficient to ensure net neutrality absent FCC rules. The panelists—including FTC Acting Chairman Maureen Ohlhausen and Commissioner Terrell McSweeney; former FCC Commissioner Robert McDowell; and Michael Romano, NTCA Senior Vice President of Industry Affairs and Business Development—and committee members were generally divided down party lines, with Republicans arguing that FCC rules were both unnecessary and counterproductive and Democrats arguing that rules were necessary to ensure an open Internet, free expression, and innovation.   Continue Reading

October 2017 FCC Meeting Recap: FCC Proposes to Implement Nationwide Number Portability

The Federal Communications Commission (“FCC” or “Commission”) voted unanimously at its October Open Meeting to initiate a notice of proposed rulemaking (“NPRM”) and a notice of inquiry (“NOI”) on how to facilitate nationwide number portability (“NNP”), an issue it last addressed after the passage of the 1996 Telecommunications Act (the “Act”).  According to the Commission, allowing a consumer to keep their current phone number when changing providers, regardless of the size or type of service, will increase competition. Comments on the NPRM and NOI will be due 30 days after publication in the Federal Register and reply comments will be due 60 days after publication.

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Honesty is the Best Policy: FCC Imposes $1.7 Million Fine for Submitting Misleading Information in Inmate Calling Services Deal

Stressing the importance of receiving truthful and accurate information, the Federal Communications Commission (“FCC”) reached a $1.7 million settlement with inmate calling services provider Securus Technologies, Inc. and related entities (“Securus”) to resolve allegations that Securus submitted misleading information to the FCC in support of a pending transfer of control.  Although the settlement cleared the way for the transfer’s approval, the FCC held up the deal for months while it investigated statements made by Securus representatives.  As a result, the FCC’s action supports the adage that “haste often makes waste” in telecommunications-related deals and that submitting misleading information to the FCC can come with significant consequences.

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October 2017 FCC Meeting Recap: Can We Be Better PALs? The FCC Seeks to Modify the Two-Year-Old Rules in the 3.5 GHz Band Citing the Need to Bolster Investment Incentives.

At its Open Meeting on October 24, the FCC took a major step in recrafting the licensing and other rules for the Citizens Broadband Radio Service (“CBRS”) in the 3550-3700 MHz band (the “3.5 GHz band”) and promote 5G rollouts.  Early in his tenure as FCC Chair which began in January of this year, Ajit Pai tasked Commissioner Michael O’Reilly with reexamining the regulatory framework in the band adopted in 2015, particularly as it applied to Priority Access Licenses (“PALs”).  Within months, CTIA and T-Mobile filed petitions for rulemaking to make the licensing rules, from commercial wireless’s perspective more investment friendly.  Now the Commission has moved ultra-rapidly to act on those petitions and issue a Notice of Proposed Rulemaking (“NPRM”) to consider making rule changes largely consistent with those sought by those proponents.  The Commission hopes to bolster commercial investment and deployment in the band convinced that, for large scale 5G deployments, providers need greater certainty than the Wheeler-era rules afford. Continue Reading

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