FCC Chairman Julius Genachowski may lack a way to avoid reclassifying broadband while still requiring net neutrality, said numerous commission and industry officials not involved in internal deliberations on Comcast v. FCC. Losing the case at the U.S. Appeals Court for the D.C. Circuit on statutory grounds Tuesday (CD April 8 p1) leaves Genachowski with few choices that appear palatable to him, they said. One likely outcome if the FCC doesn’t appeal is deeming broadband a common carrier and not an information service.

FCC staffers are thought to be reviewing two batches of program access complaints against cable operators in light of how a January order on the subject that became effective Friday affects the cases, industry and commission officials said. The Media Bureau seems to be taking the lead in reviewing complaints by AT&T (CD April 7 p12) and Verizon against Cablevision for withholding HD versions of two regional sports networks, they said. It’s also believed to be involved in reviewing an AT&T challenge to the bureau’s 2009 dismissal of the telco’s complaint against Cox Communications for withholding access to a channel featuring San Diego Padres baseball games.

The FCC is likely to change its approach to net neutrality after losing a case Tuesday where enforcement of 2005 principles of ISP conduct was at issue, advocates for and opponents of new mandates told us. The U.S. Court of Appeals for the D.C. Circuit ruled that the commission lacked ancillary authority to censure Comcast’s network management practice of blocking peer-to-peer transmissions, as was expected (CD Feb 3 p2). The D.C. Circuit said it was unpersuaded by commission arguments that Sections 1, 230(b), 623, 706 and other parts of the Communications Act made the 2008 order within the scope of its congressional authority. Congress’ role is to facilitate “fresh” discussion on net neutrality, get consensus among all stakeholders and write a law, said House Communications Subcommittee Chairman Rick Boucher, D-Va.

The terrestrial radio industry is a ways off from returning to revenue of past years despite improving ad sales, said an industry researcher who helped write a report cited by a group seeking performance royalties (CD April 5 p3) . The $16 billion expected by BIA/Kelsey in 2014 compares with the annual revenue of $18 billion-$19 billion of years past, Vice President Mark Fratrik said in an interview. “Radio stations still have tremendous challenges [though] they're still an important part of local advertising. It’s not easy street.” Executive Director David Honig of the Minority Media and Telecommunications Council, an opponent of performance royalties, said last week’s letter from the Commerce Department supporting them puts the department at odds with its goal of creating jobs. If such legislation were passed, one-third of minority-owned radio stations would go bankrupt, he told us. “I hope the department will reconsider its position.”

Two draft items to be voted on at the FCC’s April 21 meeting would take different approaches to making it easier for pay-TV subscribers to use devices not supplied directly from those companies to get video, Web and other content, numerous commission and industry officials said. A CableCARD rulemaking notice for all cable operators, with a partial exemption for small systems, deals with ways subscribers can use CableCARDs with plug-and-play devices, the officials said. An inquiry on all-video devices would have cable, satellite and telco-TV providers offer small, inexpensive devices so subscribers could connect to their networks using third-party gear, they said. The devices would contain the proprietary information to connect to the network of a particular provider, they said.

Prospects for passage of legislation requiring terrestrial radio stations to pay a royalty to performers for the music they broadcast seem little changed after the administration backed it (CD April 2 p10), said six broadcast industry officials we surveyed. Music label representatives said they're hopeful that the Performance Royalty Act (H-848 and S-379) will pass this Congress or that their industry and broadcasters will agree on a framework for royalties. Discussions have taken place between industry representatives, said people from both businesses. The Commerce Department Thursday offered “strong” support for performance royalties and said the Office of Management and Budget didn’t object to that view as reflecting the administration of President Barack Obama’s “program."

The goal the FCC set to wrap up its media-ownership review this year will be tough to meet, said commission, industry and public-interest figures we surveyed. The FCC hasn’t issued notices of inquiry or rulemaking and must deal with a legal challenge to the previous review. Issuing a notice of proposed rulemaking (NPRM) soon with proposed rules, rather than starting with a notice of inquiry (NOI), would speed up the work, the officials agreed. They said time is tight for the commission to wrap it up this year, a goal apparently shared by Chairman Julius Genachowski, Media Bureau Chief Bill Lake and others. Congress mandated the reviews every four years, including 2010.

Five items might well be voted on at the FCC meeting April 21, moved up a day because of a schedule conflict, an official said. At the meeting, an item from the Media Bureau on fixes to CableCARDs and one on developing a gateway device to connect plug-and-play devices to any pay-TV provider and the Internet likely will be voted on, as expected (CD March 24 p5). An item related to a Universal Service Fund cost study that will be referred to the federal-state joint board also will probably get a vote, said industry and commission officials. Two items from the Public Safety Bureau probably will be decided, a commission official said. A Media Bureau spokeswoman declined to comment on any items from that bureau, and an FCC spokesman didn’t reply to a message. The original meeting date, April 22, is Take Our Daughters and Sons to Work Day.

A draft order upholding an earlier FCC decision is a step along a path for new low-power FM stations because the translators dealt with in the current item are limited for each applicant, commission officials said. The order is likely to be approved without much eighth-floor controversy and outside a commission meeting, an official said. It upholds an earlier order limiting to 10 the number of applications from any entity that will be granted in Auction No. 83, several commission and industry officials said.

Public hearings requested by an Asian American organization on Comcast’s plan to buy control of NBC Universal would bring FCC review “to a halt just days after it has formally begun,” the companies said. “Applicants are aware of no Commission precedent in the past ten years” for “granting such an extraordinary request to stay the transaction review process prior to the initial pleading cycle to allow for public hearings,” NBC Universal, parent General Electric and Comcast said in an undated filing posted Friday by the FCC in docket 10-56. The Mabuhay Alliance, which sought the hearings (CD March 26 p7), cited no precedent, the companies said: “The dilatory and obstructionist tactics proposed here should be rejected.” Alliance President Faith Bautista said Commissioner Michael Copps, who was among those at the FCC that the group recently met with, expressed some support for holding informational hearings. “We're actually trying to do here what we did in California” in getting that state’s Public Utility Commission to hold public hearings in 2005 on the AT&T-SBC deal, Bautista said in an interview Monday. “We're trying to find the leverage in this merger” to promote programming for minorities and others, she said. “There’s going to be a lot more community groups that are going to do a filing against the merger” at the FCC, she said. The alliance, Black Economic Council and Latino Business Chamber of Greater Los Angeles will discuss their concerns on Comcast-NBC Universal on a conference call with Justice Department lawyers, she said. Democrat Tyrone Ellis, the majority leader of Mississippi’s House, Friday wrote FCC Chairman Julius Genachowski that he’s “impressed” with Comcast’s “dedication to promoting diversity in its programming.” That makes “the Comcast-NBCU joint venture a great opportunity for the African-American community in Mississippi and across the country.”