The Supreme Court’s recent denial of a cert petition for Minority Television Project’s case against the FCC (CD Dec 3 p4) means broadcasters “will continue to bear the second-class First Amendment status to which they have been officially subjected for nearly 50 years,” said Fletcher Heald litigator Jon Markman on the firm’s blog (http://bit.ly/1ooZS9c). That status stems from the 1969 Red Lion decision, which upheld the FCC’s fairness doctrine, Markman said. The 9th U.S. Circuit Court of Appeals had ruled en banc against MTP that FCC rules barring non-commercial stations from airing commercials don’t violate the First Amendment because of the broadcasters’ special status under the amendment, Markman said. Though MTP sought cert from the high court for an appeal, “the Supremes declined to take the bait,” he said. “As is customary, no reason was given.” Supreme Court Justices Clarence Thomas and Ruth Bader Ginsberg indicated in past decisions that they believed Red Lion, which hinged on the singular power of broadcast TV, no longer applied, Markman said. “There was cause for optimism that the Supreme Court would be willing to review the case and, possibly, overrule Red Lion.”

The FCC should respond to the lack of diversity shown in its Form 323 broadcast ownership report (CD June 30 p6) by “implementing an aggressive slate of research projects” on the effects of media ownership rules, said National Hispanic Media Coalition General Counsel Jessica Gonzalez in a news release Tuesday. The research could help the FCC learn “whether or not its current media ownership rules are doing enough to advance its many objectives and statutory obligations when it comes to diversity,” said NHMC. The Form 323 report said that in 2013 Latinos, who comprise 17 percent of the U.S. population, owned 3 percent of full-power commercial TV stations, 3.2 percent of FM radio outlets and 5.2 percent of AMs, said NHMC. “Broadcast ownership by women, African Americans, Asian Americans, and American Indians remained similarly stagnant.” By strengthening media ownership rules to limit consolidation, the FCC could “create more opportunities for new entrants like women and people of color,” said NHMC.

Pandora filed a petition for declaratory ruling that it complies with FCC foreign ownership rules, in response to an American Society of Composers, Authors and Publishers objection to its attempted purchase of KXMZ(FM) Box Elder, South Dakota. The request would be the first test of the commission’s relaxed rules for foreign ownership of broadcasters (CD Nov 15 p3), attorneys told us. Pandora agreed to buy the station in June 2014 to qualify for the same publishing royalty rates as broadcasters to match Clear Channel-owned competitor iHeartRadio (CD June 17 p16). An FCC inquiry into Pandora’s ownership was prompted by ASCAP’s objections, leading Pandora to perform a survey of its shareholders, said the company’s petition. SEC policies on shareholder privacy are preventing the company from determining how many shareholders are foreign nationals, and an FCC rule that unknown shareholders should be treated as foreign means the company can’t prove it’s domestically owned, Pandora said. Because of those policies, the commission should permit Pandora to be up to 100 percent beneficially owned by foreign entities and for foreign entities to hold up to 49.9 percent of the aggregate voting authority over Pandora, said the petition. This would be “significantly more restrictive than the approach that the Commission has adopted with respect to common carrier wireless licensees,” and would mitigate historical concerns about foreign influence over broadcasters, Pandora said. Grant of the petition will enable Pandora to become a new entrant into the Rapid City radio market, where KXMZ is located, as well as facilitating the influx of new capital into the market, said the company. It said granting the petition would “bring a new business model to the mature broadcast radio industry, thereby furthering the Commission’s goal of fostering innovation."

The FCC should consider “advance” programming, clip caption quality and other matters on requiring closed captioning for IP-delivered video clips, Telecommunications for the Deaf and Hard of Hearing and other representatives of the deaf and blind communities said in an ex parte filing in docket 11-154 (http://bit.ly/1sSi542). The FCC should cover “advance” or “archival” clips under its rules, “rather than postponing doing so until later in this proceeding,” it said. The groups also urged the FCC to reject a proposal by Association of Public Television Stations and the Public Broadcasting Service to limit the coverage of video clips to only those clips that aren’t available in captioned full-length format. It shouldn’t be incumbent on viewers “who are deaf and hard of hearing seeking to view a clip to scour the Internet for the corresponding full-length program,” said the filing. It was on a series of meetings with staff from all the FCC commissioners’ offices, and the Consumer and Governmental Affairs Bureau.

The Sports Fans Coalition again told the FCC the NFL can use private market negotiations rather than the sports blackout rule to achieve its business goals. Ending the rule would have no effect on the league’s decision to distribute games on broadcast TV “because the lost revenue from broadcast fees would dwarf any potential gains from selling a few thousand more game tickets,” it said in an ex parte filing in docket 12-3 (http://bit.ly/V3Wo1S). The NFL’s true motive in vigorously opposing an end to the rule has “everything to do with the league’s desire to maintain all of its myriad government subsidies, special-interest laws and regulations,” it said. The filing recounts a meeting with FCC Commissioners Ajit Pai and Mike O'Rielly.

The FCC will seek comment on emergency alert service (EAS) issues, including use of a national location code, national periodic test (NPT) code use, and video crawl and audio accessibility, it said in a rulemaking notice released last week (http://bit.ly/URszkY). The commission seeks comment on whether it should require the NPT to be activated like any other EAS alert, it said. Doing so would satisfy Federal Emergency Management Agency’s desire for a test in the near future, “and would do so in a manner that imposes minimal costs on EAS participants,” it said. The commission asks what might constitute “a speed that can be read by viewers,” and whether it should include a specific crawl speed in its rules, it said. The initial and reply comment deadlines are 30 days and 45 days from the Federal Register publication date respectively, it said.

A motion by public interest groups to consolidate several court challenges of new FCC policies on TV station sharing arrangements into one case should be granted, said the commission in a filing in the U.S. Court of Appeals for the D.C. Circuit. The FCC’s support of consolidating the cases applies only if an NAB challenge to the Media Bureau’s processing guidelines for deals involving sharing arrangements isn’t dismissed (CD June 16 p16), the commission said. The agency has said it requested the dismissal of that case because it doesn’t fall under the jurisdiction of the court. “We agree with the movants that consolidation of all these cases would serve the interest of judicial economy and efficiency,” the FCC said in D.C. Circuit docket 14-1072.

The FCC Enforcement Bureau proposed a $12,000 fine against Birach Broadcasting for allegedly failing to enclose the two antenna structures in Canonsburg, Pa., for its station WWCS(AM), within effective locked fences, it said in a notice of apparent liability (http://bit.ly/VrJFXf). Previous apparent violations raise concerns that Birach “may have a systemic compliance issue with the antenna structure fencing rules,” it said. The bureau ordered Birach to submit information regarding the current fencing of its antenna structures, as well as a timeline to fix any current violations, it said.

Fox Television Stations will swap its stations in the Memphis and Boston markets for two Cox stations in the San Francisco Bay area market. It will be the first time that Cox will have a media presence in Memphis and Boston, Cox said in a news release Tuesday (http://bit.ly/1lUgV45). FTS will acquire Fox affiliate KTVU Oakland and the independent KICU-TV San Jose, Cox said. Cox will gain Fox affiliates WHBQ Memphis and WFXT Boston. Fox will gain more leverage in negotiating carriage deals for National Football Conference games, said Wells Fargo analyst Marci Ryvicker. By buying KTVU, “the company will now have even more leverage to the NFC by getting San Francisco 49ers games,” she said in a research note. Cox will get more leverage to American Football Conference games via the New England Patriots and Tennessee Titans, she said.

A notice on the June 11 effective date for the FCC Media Bureau freeze on digital replacement translator applications and displacement applications appeared in the Federal Register Wednesday (http://1.usa.gov/1mfFAKG). The bureau issued a public notice this month on the effective date (CD June 12 p14).