The Internet Association and other industry groups cited a range of “cross-cutting issues” they believe would weaken U.S. entities’ IP rights internationally, in filings Thursday to the Office of the U.S. Trade Representative. IA included EU member states’ adoption of “ancillary copyright laws” seen as a tax on use of snippets. Tech sector groups noted concerns about ancillary copyright laws during USTR's 2016 Special 301 proceeding (see 1603010060). Such laws also have factored into U.S. stakeholders' opposition to a European Commission copyright law revamp proposal (see 1608290062). USTR collected comments through midnight Thursday on its annual Special 301 review on the global status of IP rights enforcement.
Notable CROSS rulings
NAB lawyers met with Media Bureau front office and other staff to press for FCC ownership deregulation. "Expeditiously reinstate the UHF discount," which was "arbitrary and capricious for the Commission to eliminate," representatives including General Counsel Rick Kaplan told acting bureau Chief Michelle Carey and others, according to the association. That discount may soon be brought back (see 1701110067). The broadcaster group also sought grant of its petition for reconsideration of media ownership rules (see 1702060053). "Remove the eight-voices test from the local TV rule and reform the top four prohibition by allowing a single entity to own up to two of the top four-ranked stations in a local market; reverse the joint sales agreement attribution and shared services agreement disclosure requirements; and eliminate the newspaper/broadcast and radio/television cross-ownership rules," NAB said in a filing posted Thursday in docket 14-50. Others oppose such deregulation (see 1701260018).
The Irish High Court Tuesday will begin hearing a case involving Facebook's use of standard contractual clauses (SCCs) that could potentially have ramifications for EU-U.S. trade and the privacy rights of European citizens. In a move similar to the challenge against safe harbor, the Office of the Irish Data Protection Commissioner (DPC) is questioning whether SCCs, which many companies use to transfer people's personal data across the Atlantic, provide adequate protection of information (see 1607060009). Tuesday's hearing will focus on whether the court should refer the case on the validity of SCCs to the European Court of Justice (ECJ). Several experts Monday said they expect the case will be heard by the EU's high court.
Chairman Ajit Pai will further change the way the FCC releases information to the news media and public, he said in a statement Monday, vowing not to release items publicly or to the news media until all commissioners have seen them. “During the past few years, the Chairman’s Office often briefed reporters or issued a blog about matters to be voted upon at the FCC’s monthly meetings before sharing those matters with Commissioners,” Pai said in a statement. “As a Commissioner, I thought that actions like these were inappropriate and disrespectful of other Commissioners.”
Toyota raised concerns about the testing process on sharing between anti-crash, dedicated short-range communications (DSRC) systems being deployed by automakers and Wi-Fi in the 5.9 GHz band. The FCC has been testing 5.9 GHz Wi-Fi devices since the summer with an eye toward sharing (see 1608010044). Toyota officials filed in docket 13-49 on meeting with Office of Engineering and Technology Chief Julius Knapp and others from OET. There are “clear limitations to the testing that can be accomplished with the re-channelization prototype devices that have been supplied,” the company said. “The re-channelization devices submitted for testing do not fully support the re-channelization proposal because they do not implement any sharing mechanism for the portion of the band that is expected to be shared between U-NII [unlicensed] and DSRC. As a result, while the devices can be used to test cross-channel interference from U-NII to DSRC, they cannot be used to test co-channel U-NII-to-DSRC interference.” DSRC would suffer if the 5.9 GHz band is rechannelized and safety systems restricted to the upper 30 MHz, as some Wi-Fi advocates urge, Toyota said. “DSRC communications in the overlapping portion of the band would be required to use 20 MHz channels, which has been shown to be inferior to 10 MHz channels for DSRC services.” A Wi-Fi advocate countered the Toyota arguments. “The auto industry continues to suggest that the use of DSRC for safety-of-life will stretch across all of the seven 10 MHz channels,” said Michael Calabrese, director of New America’s Wireless Future Project. “In reality, even if the Trump administration decides to impose this $10 billion vehicle-to-vehicle DSRC mandate on consumers, the Department of Transportation’s rule requires that all time-critical V2V safety signaling use a single, dedicated 10 MHz channel. Automakers hope to use the remainder of the band for display advertising and other commercial use that can readily share with Wi-Fi. The only issue is whether the safety channel should be moved to exclusive-use spectrum at the top of the band, which would promote both safety and shared use.”
FTC Commissioner Terrell McSweeny told reporters Wednesday it's too soon to tell how a Republican-dominated commission will operate, but didn't foresee much change in the direction of the agency or any problems working with Acting Chairwoman Maureen Ohlhausen. “She is conservative and I am progressive and we do have differences in some areas but where we have differences we’ve just articulated them," McSweeny told us after a Brookings Institution event with FCC Commissioner Mignon Clyburn, a Democrat. Participants discussed net neutrality, commissioners' agendas and agency independence in the new political climate.
Small cable operators and groups opposed to media consolidation on one side, and media allies on the other disagreed whether the FCC should reconsider newspaper/broadcast cross-ownership and other media-holdings restrictions as NAB wants. The association and Nexstar petitioned for reconsideration, which the American Cable Association opposed (see 1701250054). About a dozen groups including unions and led by the United Church of Christ opposed such deregulation, but it was backed by Cox Media Group and the News Media Alliance (NMA). Filings were posted Tuesday and Wednesday in docket 14-50 and the subject of an NMA news release Thursday. The UCC, Communications Workers of America, National Association of Broadcast Employees and Technicians, Prometheus Radio Project and others said broadcasters raised no new facts not already considered by the regulator. "The US Court of Appeals, which has retained jurisdiction over the remand in Prometheus III [the court case is named after that group] directed the Commission to assess the impact of any repeal or modification of an ownership rule on opportunities for station ownership by women and minorities. The Commission has conducted no such assessment" here, said the consolidation foes. "Neither petition mentions, much less challenges, the Commission’s threshold determination that it is premature to change the media ownership rules before it has had a chance to evaluate the 'dramatic effect' that spectrum auctions will have on the broadcast marketplace." Comments related to FCC plans for shuffling TV stations after the incentive auction were the subject of separate filings posted this week (see 1701260033). Cox Media sees the rules retaining long-time hurdles to one company owning a broadcaster and daily paper in the same market as a "veritable museum of the way things used to be." When the 1996 Telecom Act mandated periodic review of media ownership rules, Congress didn't "expect the endless cycle of delay, court appeals, and regulatory inertia that have characterized the past two decades of biennial and then quadrennial reviews," said the broadcaster. Nix "this analog-era rule once and for all," wrote NMA. "In the remarkable seven years it took the FCC to conduct its 2014 quadrennial review, the Commission compiled a record clearly demonstrating that the cross-ownership ban is a musty anachronism that undermines the very values for which it was promulgated. Yet, inexplicably, the Commission concluded its review in August 2016 by deciding to retain the rule in essentially the same form in which it was adopted in 1975."
Elevating Ajit Pai to chairman, as expected (see 1701200051), means the FCC can proceed directly into its new agenda under President Donald Trump, without complications of an interim chairmanship and a long waiting period for a new chairman to arrive. Pai’s positions are already well known -- he has been a commissioner since May 2012, a nearly five-year track record -- so there's relatively little uncertainty on where he stands on many issues. Before he was a commissioner, Pai worked for the FCC Office of General Counsel.
Outgoing FCC Chairman Tom Wheeler warned against attempts to "gut" the agency, including by moving core telecom oversight functions to the FTC. He also defended the commission's actions on net neutrality, broadband reclassification, privacy, zero rating, the incentive auction, USF changes and other issues. He was interviewed on C-SPAN's The Communicators (scheduled to air Saturday and Monday and posted here), the latest in a series of exit interviews and farewell appearances (see 1701190069 and 1701130064) before Donald Trump's inauguration as president on Friday, Wheeler's last day at the agency.
Commerce Secretary Penny Pritzker's "exit memo" outlined accomplishments on cybersecurity, an open internet and trade during the Obama administration, but warned the government "is currently not properly organized to face the challenges posed by the 21st century digital economy." She said the government should focus on five issues: access, cybersecurity, free internet, emerging technologies and workforce issues. Policies and incentives are needed to encourage investment in broadband access. Pritzker said a there's a "growing global cybersecurity crisis" at the hands of criminals and nation-states and the incoming administration should work to promote strong cybersecurity policies, baseline privacy rules and use of encryption as well as government access to data. The President's Commission on Enhancing National Cybersecurity (see 1612020050) recently delivered recommendations to improve cyber defenses and raise cyber awareness. Pritzker said trade agreements and other policies to "protect cross-border data flows, discourage digital protectionism, and ensure open digital markets" should be pursued. She underscored transfer of the Internet Assigned Numbers Authority functions to a multistakeholder, nongovernment group (see 1610030042), completion of the EU-U.S. Privacy Shield to ensure that the transfer of Europeans' personal data is protected (see 1602020040), and creation of the Digital Economy Board of Advisors (see 1612150069) and digital trade attaches program (see 1612120018). Artificial intelligence, autonomous vehicles and IoT are some emerging technologies that should be encouraged and the department should be an "evangelist" to break down barriers to innovation, she said.