Monty Tayloe

Commissioner Mike O’Rielly’s departure from the FCC “looks to be on track for some point next week,” he said Friday in a goodbye email with an accompanying video message sent out to all FCC staff. In the video, O’Rielly said his “FCC end date is soon approaching in the days or weeks ahead.” His office said O’Rielly intends to serve the rest of his term, which could include Thursday’s commissioners’ meeting, depending on the confirmation status of his projected replacement, Nathan Simington. In the video, O’Rielly hinted at a future endeavor involving communications policy or lobbying the agency, and profusely thanked FCC staff. “Commissioners are temporary employees, merely visitors occupying a seat at the institution, until the next person arrives,” he said.

Commissioner Mike O’Rielly said his departure from the FCC “looks to be on track for some point next week,” in a goodbye email with an accompanying video message sent to FCC staff Friday. O’Rielly said his “FCC end date is soon approaching in the days or weeks ahead.” His office said O’Rielly intends to serve the rest of his term. Under the law governing FCC terms of office, a commissioner’s service doesn’t end until the individual's term has expired or a replacement takes the oath of office, an FCC spokesman confirmed.

The FCC approved an NPRM seeking comment on a proposal to change FM booster rules to allow geotargeted radio broadcasts (see 2010280062). The full commission OK'd the NPRM, released Tuesday. Commissioner Mike O’Rielly concurred. “The rollout of the Notice seems a bit hasty, given its substantial implications for reshaping FM radio policy,” O’Rielly said. “Any rulemaking that considers taking steps that rely on a proprietary technology should be done under a watchful and extremely skeptical eye.” Commissioner Geoffrey Starks, who has repeatedly endorsed the proceeding as a way to aid minority-owned broadcasters, did so again. GeoBroadcast Solutions’ advertising revenue sharing model would allow smaller stations to install the tech without having to acquire upfront capital, he said. “In the absence of more robust analysis, the assumption that these changes will promote diversity of voices, much less ownership, is incredibly premature,” said O’Rielly. Targeted ads could lead to some broadcasters receiving less advertising, he warned. Starks and Commissioner Brendan Carr said they partnered in support of the item. Getting this NPRM “across the finish line required more than a few oars in the water,” Carr said. As expected, the draft item hews closely to the proposal from GBS, which owns the zoned-broadcast technology enabling geotargeting. The item doesn’t seek comment on proposals from some broadcasters to allow content origination on FM translators. It doesn’t appear to contain any tentative conclusions, seeking broad comment on the technical aspects, how similar programming originating on an FM booster must be to a station’s primary stream, and whether the proposal would affect loyalism, diversity or competition. "The prospect of hyper-localizing over-the-air radio content has great potential for the industry in reaching underserved audiences, as well as providing news and alerts on a regional basis, and improving the advertising revenue for the stations,” emailed a company spokesperson. GBS is "optimistic" that rules for zoned broadcast coverage will be enacted in 2021, the spokesperson said. Starks rounded up supportive comments in a separate news release. "As we battle the COVID-19 pandemic, it is important for hyper-localized content, like news and emergency alerts to be delivered to the communities that need this tailored content the most," said Rep. Yvette Clarke, D-N.Y. "This undoubtedly would boost the ability of minority broadcasters to compete in a highly competitive marketplace and reach underserved audiences," said Clint Odom of the National Urban League. Among those also quoted: National Association of Black Owned Broadcasters President James Winston; Multicultural Media, Telecom and Internet Council President Maurita Coley; and Rep. Tony Cardenas, D-Calif.

Noncommercial educational radio broadcasters disagree about the FCC’s proposed 10-application limit for the upcoming 2021 application window (see 2011200052), in replies in docket 20-343. Low-power FM radio entity REC Networks and Common Frequency pushed for a five-application limit to discourage speculation. Educational Media Foundation wants a soft 10-application limit that would allow applicants to file for unlimited non-mutually exclusive applications in non-Nielsen markets after the initial 10. “Public interest goals of the FCC should also include providing service to rural areas to promote and preserve a diversity of broadcast services,” said EMF. “EMF’s proposal would encourage speculation and tax the Commission’s resources for processing applications,” said NPR, in support of the FCC’s initial proposal. “Given the scarcity of channels, a smaller filing cap should discourage mass filers,” said Common Frequency.

The U.S. Court of Appeals for the D.C. Circuit rejected the National Lifeline Association’s request for emergency stay of the FCC Wireline Bureau increasing the minimum service standard to 4.5 GB a month (see 2011250064), said an order (in Pacer) Monday. The increase takes effect Tuesday, and Lifeline providers say it's an existential threat. The lack of a stay "is disappointing," said NaLA attorney John Heitmann of Kelley Drye. Judges Patricia Millett, Neomi Rao and Cornelia Pillard said petitioners NaLA and Assist Wireless “have not satisfied the stringent requirements for a stay.” Benton Institute for Broadband & Society Senior Counselor Andrew Schwartzman called that D.C. Circuit “boilerplate” for stay rejections. He called it a positive sign for NaLA that the judges requested an FCC response to NaLA’s request for a writ of mandamus compelling the agency to act on reconsideration petitions against a 2016 Lifeline order. "NaLA will continue to work on multiple fronts to preserve free access for Lifeline-eligible consumers to mobile broadband, including by seeking commission review of the bureau’s waiver order," Heitmann said. The timing of Heitmann’s application for review could influence how it's received at the FCC, attorneys said. The current commission doesn't have enough likely yes votes to advance a draft order on the Lifeline increase (see 2011160051). The change in the White House, Pai's stepping down next month (see 2011300032), and the possibility of prospective commissioner Nathan Simington replacing Commissioner Mike O’Rielly (see 2011240061) could change that dynamic, attorneys said.

The National Lifeline Association and Assist Wireless haven’t shown (see 2011190054) Lifeline providers will be irreparably harmed by the Wireline Bureau’s minimum service standard order and won’t succeed in their legal challenge against it, the FCC responded (in Pacer) Tuesday pushing the U.S. Court of Appeals for the D.C. Circuit to reject NaLA’s call for an emergency stay. Lifeline provider arguments that raising the MSS from its current 3 GB per month to 4.5 GB per month on Dec. 1 will force companies to charge low-income consumers copays they can’t afford “are of no value without proof,” said the agency. “The Bureau had good reason to be skeptical of arguments that a modest increase in the minimum service standard would render service unaffordable or require providers to impose a co-pay.” Customers will be irreparably harmed by the order “disconnecting them from vital and essential services,” said Judson Hill, who represents Lifeline provider TruConnect. “There’s no evidence of any harm to anybody by staying or enjoining and freezing in place.” The FCC brushed aside NaLA complaints that T-Mobile -- the sole provider to endorse the MSS order’s increase to 4.5 GB, and the only one that owns its own spectrum -- is differently situated from other Lifeline providers. “Whether or not” T-Mobile’s commitment to the FCC to offer a 4.5 GB plan extends to NaLA members, “it provides record evidence that it is possible for a Lifeline provider to offer a service plan without a co-pay that complies with the 4.5 GB per month standard,” the agency said. CTIA and NaLA declined to comment, and T-Mobile didn’t respond to a comment request. NaLA has to respond by Wednesday, the court said. NaLA asked for a ruling on the emergency stay by Monday.

Amicus briefs Monday supporting the FCC’s Supreme Court appeal of the 3rd U.S. Court of Appeals' Prometheus IV decision focused on the impact to the broadcast industry, judicial deference and Section 230 of the Communications Decency Act (see 2011170057). Amici supporting the 3rd Circuit are due Dec. 23, a week after the date for the brief from the public interest group winners from Prometheus. “Local media ownership rules must reflect the realities of the modern media marketplace,” filed network affiliate groups for Fox, CBS, ABC and NBC: “Television broadcasters cannot maintain healthy, economically viable businesses in that hyper-competitive marketplace if a single panel of the Third Circuit is allowed to continue to unfairly hamstring local journalism.” Gray Television said the 3rd Circuit’s ruling “harms small and midsized communities around the nation by depriving them of the benefits of the FCC’s modernized rules.” The court “stymied the Commission’s efforts to modernize its media ownership rules as directed by Congress,” said The Phoenix Center. “Regardless of where this Court may draw the precise line between overly deferential and unduly strict judicial review of agency actions, the Third Circuit’s decision in this case was inappropriate.” The ruling runs afoul of the First and Fifth amendments, said the Southeastern Legal Foundation. “Give the public interest standard its appropriate, narrower meaning.” TechFreedom said SCOTUS should reverse the court because the ruling hurts the system of courts deferring to agencies. When courts don’t defer to valid agency interpretations of the law, “the resulting regulatory gridlock strengthens the arguments of those judges, scholars, and experts who favor allowing less delegation by Congress and less deference to agencies,” TechFreedom said. The Americans for Prosperity Foundation argued the 3rd Circuit overreached by not following the statute, but also that FCC calls for deference are “misguided.” AFPF cited the pending FCC action on Section 230 as an example of the agency’s “problematic” interaction with judicial deference. “While the proper interpretation of Section 230 is beyond the scope of this case, AFPF wishes to alert this Court to potential collision course the FCC may be on with the U.S. Constitution and separation of powers.”

Political ad spending in 2024 is likely to exceed 2020's record $8.5 billion, and it's conceivable -- if unlikely -- that spending in the Senate runoff in Georgia alone could reach $1 billion, Gray Television President Pat LaPlatney told the Media Institute. LaPlatney said most projections for the runoff are $200 million, but “it’s 2020; anything can happen.” Numbers that seemed “aggressive” before the 2020 race “have all been exceeded,” he said Monday.

Opening salvos Monday from the FCC and broadcasters in their Supreme Court appeal of the 3rd U.S. Circuit Court of Appeals Prometheus IV decision (see 2010020059) focused on showing the 3rd Circuit overreached by repeatedly knocking down FCC quadrennial reviews and retaining jurisdiction, and that the court should have deferred to the agency. The 3rd Circuit “flouts well-established principles of judicial deference to the Commission’s reasonable policy judgments” and “freezes in place” outdated rules, said the FCC brief.

The National Lifeline Association plans to take the FCC to court over Monday’s Lifeline minimum service standard order from the Wireline Bureau (see 2011160056), emailed NaLA attorney John Heitmann of Kelley Drye. “That T-Mobile evidently was persuaded by the Chairman’s office to commit to providing 4.5 GB for free to its Assurance-branded retail Lifeline customers” is “inadequate” justification for an MSS requirement “that will leave wireless resellers and their customers in a position where co-pays will be imposed on consumers who cannot afford them,” Heitmann said. “NaLA intends to seek relief soon from the D.C. Circuit.”