11/28. The U.S. Court of Appeals (8thCir) issued its opinion [11 pages in PDF] in PCTV Gold v. SpeedNet, affirming the order of the District Court granting Sprint Nextel a preliminary injunction.

Sprint holds a Broadband Radio Service (BRS) license from the Federal Communications Commission (FCC) in the Saginaw, Michigan, area. PCTV Gold, Inc., is a subsidiary of Sprint. Clearwire Spectrum Holdings II, LLC is a competitor of Sprint.

SpeedNet, a wireless internet services provider, entered into a contract, titled "Market Operation Agreement" or MOA, with Sprint to lease licensed spectrum in Saginaw for a term of five years, with three five year options to renew. The contract includes a right of first offer (ROFO) clause.

SpeedNet and Clearwire later executed, without notice to Sprint, a Purchase Agreement under which Clearwire acquired SpeedNet's assets, including the spectrum lease contract.

Sprint's subsidiary filed a complaint in U.S. District Court (WDMO) against SpeedNet alleging breach of contract, and seeking injunctive relief and specific performance of the contract. It seeks to enforce its option to purchase SpeedNet.

The District Court issued an order granting a preliminary injunction that enjoins SpeedNet from "closing upon, transferring assets in furtherance of, or completing any portion of the transaction envisioned in the Purchase Agreement between SpeedNet and Clearwire".

SpeedNet brought the present interlocutory appeal. The Court of Appeals affirmed.

The Court of Appeals applied standard preliminary injunction principles -- likelihood of success on the merits, irreparable harm, balancing of harms, and public interest.

It concluded that Sprint had demonstrated a reasonable likelihood of success on the merits of its contract claim. It further found that Sprint might suffer irreparable harm, not compensable by monetary damages, if the transaction is not enjoined, because Clearwire might change the structure of the business.

With respect to the public interest analysis, the Court of Appeals wrote that the District Court "did not abuse its discretion by concluding its grant of a preliminary injunction promoted the public interest by protecting freedom to contract through enforcement of contractual rights and obligations".

This case is PCTV Gold, Inc. v. SpeedNet, LLC, U.S. Court of Appeals for the 8th Circuit, App. Ct. No. 07-2189, an appeal from the U.S. District Court for the Weastern District of Missouri, Judge Dean Whipple presiding. Judge Bye wrote the opinion of the Court of Appeals, in which Judges Benton and Shepherd joined.

11/27. The Federal Communications Commission (FCC) adopted, but did not release, a 13th annual report to the Congress on the status of competition in the market for delivery of video programming.

The FCC adopted its Twelfth Annual Report [161 pages in PDF] on February 10, 2006, and released on March 3, 2006. Hence, this 13th Report is late. See also, story titled "FCC Describes Annual Report on Video Competition" in TLJ Daily E-Mail Alert No. 1,308, February 13, 2006.

Also, the FCC has yet to release this 13th report. It has only issued a release [5 pages in PDF] that describes it. The five Commissioners each wrote statements.

The FCC's release states that the report addresses the 70/70 test, which Chairman Martin had sought to employ as the basis for imposing new regulations upon cable companies. Three of the five Commissioners (McDowell, Tate, and Adelstein) blocked Martin's initiative.

The FCC's release states that "This year we find that based on data from Warren Communications News, the second prong benchmark has been met at 71.4 percent. However, other data sources do not demonstrate that the second prong has been met. As a result, we conclude that the only way to accurately measure the 70/70 test is to collect data directly from the cable industry."

It adds that the FCC "requires each cable operator to submit the following information for 2006 within 60 days under penalty of perjury: 1) the total number of homes the cable operator currently passes; 2) the total number of homes the cable operator currently passes with 36 or more activated channels; 3) the total number of subscribers; and 4) the total number of subscribers with 36 or more activated channels."

The FCC also adopted, but did not release, a Notice of Inquiry (NOI) that requests comments to assist it in preparing its 14th annual report to Congress on the status of competition in the market for the delivery of video programming.

FCC Commissioner Robert McDowell offered his assessment of the events leading up to this point. He wrote in his statement [PDF] that "it appeared that the Commission was going to ignore a mountain of evidence from independent analysts and prior Commission findings to favor a solitary study. According to press accounts, sometime in October, this lonely study was solicited over the phone from Warren Communications by a FCC staffer. A day or two later, the draft Report was circulated and arrived at a conclusion that was a radical departure for the FCC: that the cable industry had surged past the 70/70 threshold outlined in Section 612(g) of the Act in just one short year."

He continued that "To reach this previously unattainable figure, the Commission was prepared to omit, or as some have said suppress, the FCC’s own data as gathered from cable operators on Form 325 in favor of a study that was inserted into the record just last month without the benefit of public notice, scrutiny or comment. The author of this suddenly dispositive analysis says that it should not be used for the 70/70 test due to large gaps in its evidentiary foundation. But the Commission was prepared to do so anyway because this flawed anomaly was the only fig leaf that could be found in an attempt to trigger an avalanche of unnecessary regulation to cascade down upon an otherwise competitive industry."

Commissioner Jonathan Adelstein joined with McDowell in opposing Chairman Martin's initiative. Adelstein wrote in his statement [PDF] that the FCC must base its market analysis on the facts, not policy objectives. "In order to base our decision on the facts, Commissioners need access to all the facts. Unfortunately, the most important data we have -- the FCC's own numbers -- were suppressed from the Commissioners until the last minute. I did not learn until after 7:00 pm last night that the FCC’s own 2006 survey found that only 54 percent of homes passed subscribe to cable. Similarly, the FCC's cable price survey came in at 55.2 percent penetration. Based on these newly unearthed facts and the conflicting evidence on the record, I am unable to support a finding that 70 percent of homes passed subscribe to cable at this time."

Martin wrote in his statement [PDF] that "I would have been comfortable relying on the data submitted by Warren". He wrote that "Several commenters, including CFA, MAP, and AT&T, argued that the test has been met. Others, primarily the cable industry, argue it has not been met."

FCC Commissioner Michael Copps backed Martin's play. He wrote in his statement that "I simply can't see how American consumers benefit when a handful of vertically-integrated media giants have so much control over so much content. This industry structure provides precious little space for the creative genius of independent content producers and artists. And it has led to prices that continue to rise far faster than inflation."

He added that "I have also been troubled by the approach of the FCC's annual video competition report, which I think has unreasonably minimized the harm that increased consolidation has visited upon the American consumer."

The report to the Congress is FCC 07-206 in MB Docket No. 06-189. The NOI is FCC 07-207 in MB Docket Number 07-269.

11/27. The Federal Communications Commission (FCC) adopted, but did not release, a Report and Order (R&O) and Further Notice of Proposed Rulemaking (FNPRM) in its proceeding titled "Leased Commercial Access; Development of Competition and Diversity in Video Programming Distribution and Carriage".

Cable operators provide video programming to their subscribers. Cable operators pay for programming. However, with leased access programmers pay cable operators to lease access to cable channels. The 1984 Act requires this, and the FCC regulates this leased access, including prices.

This item lowers rates for leased access, and imposes further requirements upon cable operators. The Commission split 3-2, with Martin, Copps and Adelstein forming the majority, and Tate and McDowell dissenting.

The FCC issued a short release that pertains to this item. This release asserts several benefits of the R&O, but provides little description of the contents of the R&O.

FCC Chairman Kevin Martin wrote in his statement [PDF] that this R&O "significantly reforms the Commission's leased access rules". He elaborated that it provides for an "expedited complaint process and a more rationale method for determining leased access rates".

FCC Commissioner Michael Copps wrote in his statement that "The express statutory purpose of leased access is to give independent programmers an opportunity to obtain cable carriage at reasonable rates in order to promote competition" and diversity of sources.

Unfortunately, wrote Copps, "those purposes have rarely been realized. In our most recent annual cable price survey, the Commission found that cable systems on average carry only 0.7 leased access channels. This Order tries to remove several obstacles that may be hindering the use of leased access capacity, including clarifying the information that cable operators must be prepared to provide in response to inquiries, and the time in which it must be provided."

FCC Commissioner Jonathan Adelstein elaborated on the content of the R&O in his statement [PDF]. "We first adopt uniform customer service standards to remedy the lack of a consistent and fair treatment of actual and interested leased access programmers. We then reduce the potential expense and burden on a programmer associated with filing a complaint with the Commission about an alleged violation. To ensure that we better monitor leased access practices and the effects of our rules, we adopt an annual reporting requirement for cable operators and we invite leased access programmers to comment on the information provided by cable operators."

Adelstein continued that this R&O provides that when leased access programmers request information from cable operators about rates, terms and conditions, the cable operator must provide certain specified information within three days.

With respect to the R&O's new rate methodology, Adelstein wrote that "I actually like the outcome", notwithstanding that it was "invented by staff out of whole cloth without sufficient public input, independent review or any transparency."

Commissioner Deborah Tate dissented. She wrote in her statement [PDF] that "we should ask that interested parties analyze the advantages and disadvantages of this new rate formula. We should also seek input on whether lowering the maximum allowable rate will increase the number of leased access programmers on cable’s systems. Because we fail to seek comment on these important changes, I respectfully dissent."

Commissioner Robert McDowell dissented too. He argued in his statement that a primary reason that leased access has not been more successful is that it may not be economically viable for the vast majority of programmers. That is, normally cable operators pay programmers for content. But with leased access, the programmers pay the cable operators. There is no business model, unless the programmer derives income from other sources, such as infomercial sales.

McDowell (at left) added that "the majority concludes that the new rate methodology will not apply to programmers that predominantly transmit sales presentations, or program-length commercials, and seeks additional public comment on related issues. This too is extremely problematic. I cannot fathom how distinguishing programmers based on the content they deliver can be constitutional."

McDowell also predicted that the result of these new rules "will be a loss in the diversity of programming as cable operators are forced to drop lesser-rated channels in favor of a flood of leased access requests seeking distribution distorted below cost and market rates."

This item is FCC 07-208 in MB Docket No. 07-42.

11/27. The Federal Communications Commission (FCC) adopted, but did not release, a Notice of Proposed Rulemaking (NPRM) seeking comment regarding extension of the current five year registration period for the Do Not Call Registry.

The FCC issued a short release [PDF] that states that the FCC "proposes making registrations permanent".

The Congress enacted the Do-Not-Call Implementation Act in 2003 to implement a Do Not Call Registry. It is Public Law No. 108-10. It is codified at 15 U.S.C. § 6101 note. Section 3 requires the FCC to adopt certain rules. The 2003 Act is silent on the subject of automatic expiration. However, the FCC wrote a five year expiration into its rules.

There is also legislation pending to preclude expiration of do not call registrations. On October 30, 2007, the House Commerce Committee (HCC) amended and approved HR 3541 [LOC | WW], the "Do-Not-Call Improvement Act of 2007". On the same day, the Senate Commerce Committee (SCC) amended and approved S 2096 [LOC | WW], the "Do-Not-Call Improvement Act of 2007".

See also, stories titled "House Commerce Committee Approves Bill to Preclude Expiration of Do Not Call Registrations" and "Senate Commerce Committee Approves Bill to Preclude Expiration of Do Not Call Registrations" in TLJ Daily E-Mail Alert No. 1,666, October 31, 2007. And see, story titled "Sen. Dorgan Introduces Bill to Prevent Automatic Expiration of Do Not Call Registrations" in TLJ Daily E-Mail Alert No. 1,648, October 1, 2007.

This NPRM is FCC 07-__ in CG Docket No. 02-278.

11/27. The Federal Communications Commission (FCC) adopted, but did not release, a Report and Order (R&O) regarding the local programming disclosure requirements for television broadcasters.

The FCC issued a short release [PDF] that states that this item "requires television broadcasters to provide more information on the local programming they are broadcasting and facilitate the public’s access to that information."

The FCC's release also states that this R&O provides that "television broadcasters must file a standardized programming form on a quarterly basis. This form will provide the public with easily accessible information in a standardized format on each television station’s efforts to serve its community. The form requires broadcasters to list various types of programming, including local civic programming, local electoral affairs programming, public service announcements, and independently produced programming, and also includes information about efforts that have been made to ascertain the programming needs of various segments of the community, and information regarding closed captioning and video described content. This form will replace the current issues/programs list, which required broadcasters to place in their public file on a quarterly basis a list of programs that have provided the station’s most significant treatment of community issues during the preceding three-month period."

The release also states that this R&O "requires television licensees to make their public inspection file (with the exception of their political file) available online if they have Internet websites and notify their audiences twice daily about the location of the station’s public file."

This R&O is FCC 07-205 in MM Docket No. 00-168 and MM Docket No. 00-44.

11/27. The Federal Communications Commission (FCC) adopted, but did not release, a 3rd Report and Order (R&O) and 2nd Further Notice of Proposed Rulemaking regarding low power FM (LPFM) service. The FCC issued a release that states that this item, among other things, "Allows the transfer of LFPM licenses subject to significant limitations", and "Limits the responsibility of LPFM stations to resolve interference caused to subsequently authorized full-service stations." This R&O is FCC 07-204 in MB Docket No. 99-25.

11/27. The Federal Communications Commission (FCC) tentative agenda [4 pages in PDF] for its event on November 27, 2007, titled "Open Commission Meeting" included adoption of a Report and Order (R&O) and 3rd Further Notice of Proposed Rulemaking (NPRM) regarding "initiatives designed to increase participation in the broadcasting industry by new entrants and small businesses, including minority- and women-owned businesses". The FCC did not adopt this item at its November 27 event. See also, notice of removal from agenda. FCC Commissioner Michael Copps wrote in a statement [PDF] that "I'm pleased that we have avoided a premature vote on minority and female ownership." Commissioner Jonathan Adelstein wrote in a statement [PDF] that "I'm pleased that the Commission has backed off its fig leaf attempt to address minority and female ownership. It was an obvious effort to provide cover for more media consolidation, which would only have take media outlets further out of the reach of women and minorities. It was designed to check the box and move on. It’s high time we create an independent, bipartisan panel that will look at these issues in a comprehensive and substantive fashion. Media sharecropping is no substitute for media ownership."

11/29. The Federal Communications Commission (FCC) released a Memorandum Opinion and Order (MO&O) in which it approved the sale by Clear Channel of its 35 television stations to Newport Television. The FCC approved the transfer of FCC licenses associated with this transaction.

This MO&O states that "Newport, which has been formed for the purposes of the proposed transaction, is wholly owned by investment funds that are commonly controlled affiliates of Providence Equity Partners, Inc."

Providence states in its web site that it is a private equity firm that focuses on media, entertainment, communications and information investments.

FCC Commissioner Michael Copps wrote in a separate statement [PDF] that this is not media deconsolidation. Rather, it is a transfer from "one media giant to another".

Commissioner Copps (at right) wrote that "After this transaction closes and all divestitures have occurred, Providence Equity Partners will have attributable interests in a whopping 86 television stations and 99 radio stations in the United States, as well as interests in media companies around the world such as MGM studios (largest shareholder), Yes Network, Hallmark Channel, and Warner Music Group. You will search this Order in vain, however, for any mention of the scope of Providence’s holdings or how they potentially affect our public interest analysis." (Parentheses in original.)

He also suggested that the FCC investigate private equity investments in communications.

The House will not meet. It will return from its Thanksgiving recess on Tuesday, December 4, 2007, at 2:00 PM.

The Senate will not meet.

8:30 AM -1:30 PM. The President's Committee on the National Medal of Science will hold a closed meeting selection of the 2007 National Medal of Science recipients. See, notice in the Federal Register, October 15, 2007, Vol. 72, No. 198, at Page 58338. Location: Room 1235, National Science Foundation, 4201 Wilson Blvd., Arlington, VA.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding its program access and retransmission consent rules and whether it may be appropriate to preclude the practice of programmers to tie desired programming with undesired programming. The FCC adopted this NPRM on September 11, 2007, and released the text [144 pages in PDF] on October 1, 2007. It is FCC 07-169, in MB Docket No. 07-198. See, notice in the Federal Register, October 31, 2007, Vol. 72, No. 210, at Pages 61590-61603. See also, story titled "FCC Adopts R&O and NPRM Regarding Program Access Rules" in TLJ Daily E-Mail Alert No. 1,640, September 17, 2007.

Deadline to submit comments to the Copyright Royalty Judges regarding proposed regulations that set the rates and terms for the use of sound recordings by preexisting subscription services for the period January 1, 2008, through December 31, 2012. See, notice in the Federal Register, October 31, 2007, Vol. 72, No. 210, at Pages 61585-61588.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its SP 800-82 [157 pages in PDF] titled "2nd Draft Special Publication 800-82, Guide to Industrial Control Systems (ICS) Security".

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its Draft NIST IR 7328 [51 pages in PDF], titled "Security Assessment Provider Requirements and Customer Responsibilities: Building a Security Assessment Credentialing Program for Federal Information Systems".

Extended deadline to submit to the Federal Communications Commission (FCC) nominations for seven positions on the Board of Directors of the FCC's Universal Service Administrative Company (USAC). See, notice [PDF].

The House will not meet.

The Senate will meet in pro forma session only.

Deadline for states, territories and the District of Columbia to submit to the Department of Commerce's (DOC) National Telecommunications and Information Administration (NTIA) their Statewide Communications Interoperability Plans and Investment Justification under the PSIC Grant Program. See, notice in the Federal Register, August 20, 2007, Vol. 72, No. 160, at Pages 46442-46444. See also, story titled "Public Safety Interoperable Communications Grant Applications Due in 30 Days" in TLJ Daily E-Mail Alert No. 1,612, July 19, 2007, and story titled "NTIA Clarifies Deadlines for PSIC Grant Applications" in TLJ Daily E-Mail Alert No. 1,625, August 21, 2007.

2:00 PM. Deadline for respondent (LG Electronics) to file its opposition brief with the Supreme Court of the US (SCUS) in Quanta Computer v. LG Electronics, a patent infringement case. See, story titled "Supreme Court Grants Certiorari in Patent Exhaustion Case" in TLJ Daily E-Mail Alert No. 1,647, September 27, 2007.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding the Emergency Alert System (EAS). The FCC adopted this NPRM on May 31, 2007, and released the text [75 pages in PDF] on July 12, 2007. It is FCC 07-109 in EB Docket No. 04-296. See, notice in the Federal Register, November 2, 2007, Vol. 72, No. 212, at Pages 62195-62198. See also, story titled "FCC Expands EAS Program" in TLJ Daily E-Mail Alert No. 1,589, May 31, 2007.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding post-reconfiguration 800 MHz band plans for the U.S.-Canada border regions. This FNPRM is DA 07-4489 in WT Docket No. 02-55. See, notice in the Federal Register, November 13, 2007, Vol. 72, No. 218, at Pages 63869-63871.

Hanukkah begins at sundown.

The House will return from its Thanksgiving recess at 2:00 PM.

10:00 AM. The Department of Commerce's (DOC) International Trade Administration (ITA) President's Export Council will meet. See, notice in the Federal Register, November 8, 2007, Vol. 72, No. 216, at Page 63164. Location: DOC, Room 4830, 1401 Constitution Ave., NW.

10:00 AM. The Center for Democracy and Technology (CDT) will host a news briefing on FISA reform legislation. For more information, contact Brook Meeks at 202-637-9800 ext. 114. Location: CDT conference room, 11th floor, 1634 I St., NW.

12:00 NOON - 4:00 PM. The DC Bar Association will host an event titled "Resolving Commercial Disputes with Chinese Parties: Trends in International Arbitration and WTO". The lunch speaker will be Yu Jianlong, Secretary-General of the China International Economic and Trade Arbitration Commission (CCPIT). There will be a panel discussion of arbitration. The speakers will be Mu Zili (Deputy Secretary-General of CCPIT), Fei Ning (Haiwen & Partners), Patrick Norton (Steptoe & Johnson), and Jean Kalicki (Arnold & Porter). There will also be a panel discussion on the WTO. The speakers will be Claire Reade (Chief Counsel for China Trade Enforcement, USTR), Matthew Yeo (Steptoe & Johnson), Lucille Barale (Georgetown University Law Center), and Mary Michel (McKenna Long & Aldridge). The price to attend ranges from $5 to $35. For more information, call 202-626-3488. See, notice. Location: Arnold & Porter, 555 12th St., NW.

12:00 NOON - 2:00 PM. The DC Bar Association will host a panel discussion titled "Survey to Win! How to Successfully Use Surveys in Trademark Litigations". The speakers will be Michael Mazis (American University) and Danny Awdeh (Finnegan, Henderson). The price to attend ranges from $20 to $30. For more information, call 202-626-3463. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

1:00 - 3:00 PM. The Architectural and Transportation Barriers Compliance Board's (ATBCB) Telecommunications and Electronic and Information Technology Advisory Committee will meet by teleconference. See, notice in the Federal Register, November 1, 2007, Vol. 72, No. 211, at Pages 61827-61828.

2:30 PM. The Senate Commerce Committee (SCC) will hold an executive business meeting. The agenda includes consideration of S 2332 [LOC | WW], the "Media Ownership Act of 2007". See, notice. Location: Room 253, Russell Building.

First day of Hanukkah.

8:00 PM. The American Enterprise Institute (AEI) will host a dinner. Chris Cox, Chairman of the Securities and Exchange Commission (SEC), will give a speech titled "The Rise of the Sovereign Business". See, notice. Location: Ronald Reagan Building & International Trade Center, Pavilion Room, 1300 Pennsylvania Ave., NW.

9:30 AM. The House Commerce Committee's (HCC) Subcommittee on Telecommunications and the Internet will hold a hearing titled "Oversight of the Federal Communications Commission: Media Ownwership". The hearing will be webcast by the HCC. Location: Room 2322, Rayburn Building.

The Federal Communications Bar Association (FCBA) will host a dinner. The speaker will be FCC Chairman Kevin Martin. Location: Washington Hilton Hotel.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Further Notice of Proposed Rulemaking (FNPRM) regarding potential interference unique to the reverse band operating environment in the 17/24 GHz BSS. This FNPRM is FCC 07-76 in IB Docket No. 06-123. See, notice in the Federal Register, August 22, 2007, Vol. 72, No. 162, at Pages 46939-46949.

10:00 AM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. The agenda includes consideration of three internet related bills: S 1829 [LOC | WW], the "Protect Our Children First Act of 2007", S 431 [LOC | WW], the "Keeping the Internet Devoid of Sexual Predators Act of 2007", and S 2344 [LOC | WW], the "Internet Safety Education Act of 2007". The agenda also includes consideration of S 352 [LOC | WW], the "Sunshine in the Courtroom Act of 2007", S 344 [LOC | WW], a bill to require the Supreme Court to permit television coverage of all open events, except in cases where it would violated the due process rights of a party, and S 1638 [LOC | WW], the "Federal Judicial Salary Restoration Act of 2007". The SJC rarely follows its published agendas. Location: Room 226, Dirksen Building.

12:30 - 2:00 PM. The Federal Communications Bar Association's (FCBA) International Telecommunications Practice Committee will host a brown bag lunch titled "Outcome of the 2007 ITU World Radio Conference (WRC)". The speakers will be Richard Russell and Richard Beaird of the Department of State. For more information, contact Fiona Alexander at falexander at ntia dot doc dot gov. Location: Verizon Communications, 1300 I Street, NW.

1:30 - 4:30 PM. The National Telecommunications and Information Administration's (NTIA) Commerce Spectrum Management Advisory Committee will meet. See, notice. Location: Room 4830, 1401 Constitution Ave. NW.

6:00 - 8:15 PM. The DC Bar Association will host a continuing legal education (CLE) program titled "Export Controls and Economic Sanctions 2007". The speakers will be Thomas Scott and Carol Kalinoski. The price to attend ranges from $80 to $115. For more information, call 202-626-3488. See, notice. Location: DC Bar Conference Center, B-1 Level, 1250 H St., NW.

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