There has been some positive movement in talks on a treaty updating broadcasting protections, a World Intellectual Property Organization official told us Tuesday. At the end of the March 13-17 meeting of the Standing Committee on Copyright and Related Rights, however, several observers cited continuing unresolved key issues and not much progress (see 2303170003). But Copyright Law Division Director Michele Woods noted the secretariat is in the hands of the member states and is ready to support their efforts to reduce their differences. Based on their statements, the talks "progressed in terms of refining the compromise text that many delegations said could serve as the basis for moving forward," and while acknowledging the work that remains to be done, many "reiterated that they want the treaty to move forward." Woods said the document under discussion at the meeting is a compromise in the sense it would grant exclusive rights at some level (fixation), while also giving governments the possibility of implementing the treaty obligations through other adequate and effective legal means. Previous drafts had always contained alternative proposals, but "this time we heard multiple statements suggesting that the compromise is a good basis to move forward." A committee chair's summary noted delegations had different views on whether the treaty should offer some minimum level of protection for broadcasting over computer networks. Asked whether the issue of including webcasting in the treaty had long since been settled (the consensus was not to), Woods said the question of broadcasting over computer networks may be a similar issue, but the choice of terminology is significant. According to the explanation from the drafters, the term "computer networks" was used in an effort to be technology neutral and future-proof, she said: At the same time, the discussion and positions of various delegations have changed over time as the broadcasting industry has evolved.

Andrew Schwartzman is senior counselor for the Benton Institute for Broadband & Society (see 2303090064)

The FCC should continue to make progress on ATSC 3.0, support AM radio, and relax broadcast ownership rules, the Florida Association of Broadcasters said in ex parte calls with FCC Commissioners Brendan Carr and Nathan Simington March 1, according to nearly identical ex parte filings in docket 22-459. “Protecting and revitalizing the AM band serves the public interest by maintaining the public safety, news, and entertainment content provided by AM stations,” the filings said. “Ensuring the industry remains economically viable will allow broadcasters to continue serving the public interest by delivering local news, public safety information, and entertainment to their audiences.”

A conservative watchdog group that opposed the nomination of Gigi Sohn to the FCC is seeking information on “partisan political influences” on the agency over the Standard/Tegna deal, said a news release Thursday. The American Accountability Foundation (AAF) filed a Freedom of Information Act request seeking records of communications between FCC Media Bureau Chief Holly Saurer and deal opponents such as Sen. Elizabeth Warren, D-Mass., Rep. Nancy Pelosi, D-Calif., and Andrew Schwartzman, Benton Foundation Institute for Broadband and Society senior counselor, who represents unions in the proceeding. “Let’s hope our nation’s television airwaves aren’t for sale to politically connected media moguls and disingenuous lawyers who failed to disclose multiple conflicts of interest,” said AAF President Tom Jones in the release. AAF opposed several nominations by President Joe Biden, and paid for a billboard in Las Vegas opposing Sohn, who withdrew from the nomination process this week. The FCC didn’t comment.

Extensions for the ATSC 3.0 substantially similar and A/322 physical layer sunsets shouldn’t be open-ended, said the NAB in an ex parte call with an aide to FCC Commissioner Geoffrey Starks, according to a filing posted in docket 16-142 Wednesday. In a separate letter to Chairwoman Jessica Rosenworcel, the National Religious Broadcasters said continuing to require broadcasters to transmit in both 1.0 and 3.0 is “financially wasteful and unsustainable.” An open-ended extension of the substantially similar requirement would be "a dramatic shift from the Commission’s previous approach for no reason at all,” NAB said, arguing market incentives will keep broadcasters from transitioning in a way that leaves their viewers unable to receive their signals. Letting the market control the transition is how the FCC treats the wireless and tech industries, NAB said. “This process should not be different simply because a different bureau within the Commission is currently responsible for shepherding the transition.” An “overly prolonged transition would be a failed transition, and may prove fatal for OTA television broadcasting, particularly for smaller broadcasters,” said NRB, seconding NAB’s call for an FCC ATSC 3.0 task force (see 2302160056). For ATSC 3.0 multicast hosting, the agency should require only in limited circumstances that broadcasters submit showings that they aren’t using more capacity than they could transmit on their own, NAB said. Such showing should be required only in response to a commission inquiry or a complaint from a cable operator “that made a prima facie case the Commission deems worthy of a response,” the filing said. The full FCC temporarily stayed the sunset of the ATSC 3.0 A/322 physical layer requirement Monday, said an order. The requirement was to expire that day. A report and order on the physical layer sunset and the 3.0 substantially similar requirement was circulated to the 10th floor last week (see 2303030064), and the stay will last while that item is pending, Monday’s order said. NAB said in the ex parte filing that it doesn’t object to an extension for the physical layer standard if it isn’t open-ended. “We find the public interest is best served by preserving the status quo during this brief period of time in order to consider this open question,” said the order.

The FCC Enforcement Bureau and the broadcast parties to the Standard/Tegna deal are grappling over a deadline extension for the broadcasters' appeal of the hearing proceeding (see 2303070081) before FCC Administrative Law Judge Jane Halprin, according to dueling filings posted Wednesday. The EB asked the ALJ to give it and the other parties in the case -- Common Cause, the United Church of Christ Media Justice Office and two unions -- until March 20 to respond to the broadcasters’ motion to certify the matter to the full commission, while the broadcasters said responses should be due Thursday. “While the matters raised by the Motion to Certify are set forth in a concentrated manner, they represent complex issues that will require additional time and effort,” the EB said. “The May 22, 2023 expiration date for the underlying merger agreement and financing commitments of more than a dozen lenders is fast-approaching,” said the broadcasters. Further delay in the proceeding will “exacerbate the harms” caused by the HDO, they said. The FCC rules governing this unusual set of circumstances aren’t clear on when the deadline should be, according to the bureau. The only deadline for this sort of filing specified in the regulations gives the appealing party just five days to file an application for review, the Standard/Tegna filing said: “It is inappropriate for the Enforcement Bureau to take sides and seek to extend the deadline for oppositions expressly set by FCC rules in order to further delay action on this matter.” The Communications Workers of America's NewsGuild and National Association of Broadcast Engineers and Technicians sectors said Wednesday they don't oppose the EB's extension request.

The FCC’s administrative law judge should immediately certify to the full FCC an application for review of the Media Bureau order designating Standard/Tegna for hearing, said Standard, Tegna and Cox Media group in a motion Friday. “At a minimum, no hearing should proceed before the Commission can rule on the Media Bureau’s mistaken premise,” the motion said. Several attorneys told us that under FCC rules, hearing designation orders can’t be appealed to the full FCC until the ALJ has made a final ruling in the matter, but the broadcast parties disagree. “Subjecting the Applications to a full evidentiary hearing effectively is a denial of the Applications and, therefore, the Media Bureau’s issuance of the HDO is a “final” agency action masquerading under the guise of an interlocutory decision,” said the filing’s final footnote. The motion questions the authority of the Media Bureau to block the deal over retransmission consent and staffing concerns and emphasizes that action must be taken quickly. The deal’s May 22 “final extension date” “will come and go long before a full evidentiary hearing could be completed. The Applicants have no ability to extend that deadline,” the motion said. “If the FCC fails to grant the Applications before that date, the financing obligations of more than a dozen lenders helping to fund the transactions will expire as well.” The filing also questions the constitutionality of the FCC’s ALJ, raising points based on recent U.S. Court of Appeals ruling and U.S. Supreme Court arguments. “There is a controlling question of law as to whether an FCC ALJ is even permitted to make rulings in this matter as required by the Media Bureau’s HDO,” the motion said. “The Commission should have the opportunity to decide whether it wants to avoid a constitutional challenge to its ALJ before this matter proceeds further.” The broadcasters intend to file for relief directly with the FCC March 17 if their request is still pending and, “if necessary, subsequently to seek judicial review,” the motion said.

A report and order and further notice on sunsetting certain aspects of the ATSC 3.0 rules was circulated to the FCC's 10th-floor offices, according to Friday’s circulation list. The draft item would extend the sunset dates for the requirements that broadcasters’ 3.0 and 1.0 programming streams be substantially similar (see 2209070048) and transmit their primary 3.0 video streams in compliance with ATSC's A/322 physical layer protocol standard, industry officials told us. Without FCC action, the substantially similar requirement would end in June, and the A/322 requirement will expire Monday (2208090040). The item is also expected to include language clarifying the agency’s stance on ATSC 3.0 multicasting, which broadcasters requested (see 2302020075).

The FCC Media Bureau granted Gray Television’s channel substitution request to shift KOSA-TV Odessa, Texas, from Channel 7 to 31, said an order Wednesday. The bureau seeks comment in docket 23-79 on Sinclair Media’s request to change KCFW-TV Kalispell, Montana, from 9 to 17. The bureau also is seeking comment in docket 23-78 on Reno Licensee’s request to shift KENV-DT Elko, Nevada, from Channel 10 to 20.

Broadcasters should act now on data privacy concerns about ATSC 3.0, before the tech gets too far along, FCC Commissioner Geoffrey Starks told public TV officials at the America’s Public Television Stations Public Media Summit Tuesday. Since 3.0 will allow broadcasters to collect data on their viewers in ways they haven’t been able to do previously, broadcasters should ensure they will be “good actors” with private data, he said. Unlike MVPDs, broadcasters don’t have a contractual relationship with their viewers, which complicates privacy concerns since viewers don't have an opportunity to opt in or out of data collection, he said. Starks said he’s concerned about the possible sale of viewer data, such as real-time location information. APTS CEO Patrick Butler said in an interview Tuesday that public TV stations support protecting consumer privacy in 2.0 and have no plans to sell consumer data. Starks said industry and the FCC should work together on the issue, but he stopped short of endorsing NAB’s call for an FCC ATSC 3.0 task force (see 2302160056). “Figuring out the right mechanism to make sure that [ATSC 3.0] gets going is something that I'm working on,” Starks said in response to a question about the task force proposal.