Category: Industry Sectors

1
Restrictive Website Rules Found to Be Anticompetitive
2
FCC Launches Proceeding to Review AT&T Acquisition of T-Mobile and Answers Questions
3
U.S. Justice Department Raises Concerns Regarding Proposal to Limit Federal Government’s Access to ‘Cloud’ Data
4
Retransmission Consent Examined in Heated, Live Webcast Debate Among Broadcast, Cable, Programming, and Consumer Interests
5
House Votes to Overturn FCC’s Net Neutrality Order
6
FTC Continues to Flex Its Enforcement Muscle With Regard to Social Media Promotional Activity
7
Broadcaster, Cable, Programming, and Consumer interests to debate retransmission consent in live webcast, Thursday, April 7 at 1pm EDT
8
Court Dismisses Appeal Against FCC’s Net Neutrality Rules
9
Comcast/NBCU Joint Venture Telebriefing (3/29/11)
10
House E&C Committee Schedules Markup of Resolution to Reject FCC’s Net Neutrality

Restrictive Website Rules Found to Be Anticompetitive

By Scott M. Mendel and Michelle S. Taylon

In Realcomp II, Ltd. v. FTC (6th Cir. April 6, 2011), the Sixth Circuit upheld the Federal Trade Commission’s conclusion that Realcomp, a Detroit area multiple listing service, violated Section 5 of the Federal Trade Commission Act by adopting rules restricting the ability of its broker members to advertise discounted brokerage services. While none of Realcomp’s website restrictions eliminated discount brokerage services or information regarding such services, they made such information less accessible and more costly to obtain. That was enough for the court to conclude that Realcomp’s policies had an actual anticompetitive effect based on the decline in the share of listings accounted for by discount listings.

The Realcomp decision can have significant implications for businesses, especially joint ventures, considering rules that restrict the information that can be disseminated over their websites. Rules that prevent, restrict, or make more costly the dissemination of information relating to discounted services must be reviewed carefully to determine their potential for anticompetitive effects.

FCC Launches Proceeding to Review AT&T Acquisition of T-Mobile and Answers Questions

Today the FCC announced the opening of a docket and the issuance of a protective order related to AT&T’s proposed acquisition of T-Mobile USA. Presentations by interested parties before the FCC will be exempt from the agency’s ex parte procedures until the applications seeking FCC approval are filed. When filed, ex parte communications before the FCC must follow the "permit but disclose" ex parte procedures applicable to non-restricted proceedings, although it reserved the right to treat the proceeding as restricted.

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U.S. Justice Department Raises Concerns Regarding Proposal to Limit Federal Government’s Access to ‘Cloud’ Data

By Oded Green

On April 6, 2011, the Senate Judiciary Committee held a hearing regarding a proposed update to the Electronic Communications Privacy Act (ECPA) in light of cloud computing and other technological developments that have occurred since the statute was enacted more than two decades ago. The ECPA is comprised of three laws — the Wiretap Act, the Stored Communications Act, and the Pen Register Act — which govern when certain parties, including law enforcement and other governmental authorities, may access communications and related data and to whom they may disclose those communications and data.

According to Senate Judiciary Committee Chairman, Patrick Leahy, with the explosion of cloud computing, social networking sites and other new technologies, determining how to bring ECPA into the digital age is one of Congress’ greatest challenges. He added that ECPA is “hampered by conflicting standards that cause confusion for law enforcement, businesses and consumers.” For example, the content of a single e-mail could be subject to as many as four different levels of privacy protections under ECPA, depending on where it is stored, and when it is sent.

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Retransmission Consent Examined in Heated, Live Webcast Debate Among Broadcast, Cable, Programming, and Consumer Interests

A live webcast last week carried on Internet TV channel Broadband US TV examined all sides of the debate on whether rules governing the grant of retransmission consent by local broadcast stations to cable operators, DBS providers, and other multichannel video programming distributors (MVPDs), should be reformed.

Retransmission consent negotiations have become quite contentious in recent years, at times resulting in the temporary blackout of a local broadcast station in the face of an impasse between the MVPD and broadcaster.

The lively and, at times, raucous debate featured Toni Cook Bush of Skadden, Arps and John Hane of Pillsbury Winthrop Shaw Pittman for broadcasters, Ross Lieberman of the American Cable Association and Cristina Pauze of Time Warner Cable for cable operators, Gigi Sohn of Public Knowledge for consumer interests, and Richard Waysdorf, of Starz Entertainment for independent programmers. The program was moderated by Broadband US TV co-hosts Marty Stern of K&L Gates and Jim Baller of the Baller Herbst Law Group.

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House Votes to Overturn FCC’s Net Neutrality Order

In a setback to one of the FCC’s key policy proposals, the House of Representative today voted in favor of a Resolution of Disapproval under the Congressional Review Act aimed at invalidating the Commission’s Net Neutrality Order adopted late last year. The vote follows months of heated industry and Congressional debate, including sharply partisan debate  about the Resolution’s merits, court challenges brought by wireless carriers, and procedural delays in bringing the Resolution to the House floor. While the Resolution seeks to overturn the FCC’s new anti-blocking, network management transparency, and traffic discrimination rules, it faces an uphill battle to become law. The Resolution would need to get passed by the Democrat-controlled Senate and get signed by the President. The White House recently said it plans to veto any measure overturning the FCC’s Net Neutrality Order.

FTC Continues to Flex Its Enforcement Muscle With Regard to Social Media Promotional Activity

by Ann M. Begley, Lawrence C. Lanpher and Carolina M. Heavner

The Federal Trade Commission’s (“FTC”) recent action against a company and its owner in connection with the allegedly deceptive promotion of music teaching tools signals FTC’s continued intention to keep social media promotional activity as an enforcement priority. In its third public investigation and second enforcement action since issuing its revised Guides Concerning the Use of Endorsements and Testimonials in Advertising[1] (hereafter, FTC Endorsement/Testimonial Guides) in December 2009, FTC continues to expand advertisers’ responsibility to monitor third party interactive media communications containing endorsements of advertisers’ products.

In finding the advertiser and its owner, an individual, responsible for assuring that endorsers adequately disclose any material connections with the advertiser, FTC states that an advertiser agreement that requires endorsers to comply with FTC guidelines and disclosures is insufficient in the absence of an advertiser monitoring program that ensures clear and prominent disclosure of the relationship with the advertiser.[2]

Thus, in addition to a $250,000 penalty against the company and its owner, FTC has required a far-reaching monitoring program – a potentially expensive and burdensome commitment for the future.

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Broadcaster, Cable, Programming, and Consumer interests to debate retransmission consent in live webcast, Thursday, April 7 at 1pm EDT

Broadband US TV will feature a live webcast debate on retransmission consent this Thursday, April 7 at 1pm EDT.

Register for free by clicking here.

Every season, viewers and sports fans seem to get caught in the middle of disputes between broadcasters and cable and DBS providers over the terms of carriage of broadcast stations and affiliated programming. This program will examine the real issues underlying retransmission consent disputes and the economics and politics driving these issues.

This is an especially important question now, because thousands of carriage agreements will be up for renewal this year, as the FCC continues to examine these issues in an ongoing rulemaking proceeding.
 

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Court Dismisses Appeal Against FCC’s Net Neutrality Rules

Today the FCC prevailed in the continuing skirmish over Net Neutrality in Washington. The U.S. Court of Appeals for the District of Columbia dismissed the lawsuits filed last January by Verizon and Metro PCS seeking to overturn the FCC’s Net Neutrality order adopted in December. The court found that the two wireless carriers filed their challenges too early and should have waited until the Net Neutrality order was published in the Federal Register. Both wireless carriers have indicated they will re-file their appeals.

Comcast/NBCU Joint Venture Telebriefing (3/29/11)

K&L Gates partner Marty Stern will be moderating a Law Seminars International telebriefing on the Comcast/NBCU joint venture Tuesday, March 29 at 3 p.m. ET.  Further information and registration details for the event are available by clicking here.  Also participating in the telebriefing will be Jordan Goldstein of Comcast Corporation, Parul Desai of the Consumers Union, and Ross Lieberman of the American Cable Association. The panel will cover the implications of the merger, including its likely impacts on industry, the conditions imposed by the Government, competitive concerns raised by the transaction, and the benefits offered by the parties. Click here for our recent blog post discussing our analysis of the FCC order approving the transaction, with conditions.

House E&C Committee Schedules Markup of Resolution to Reject FCC’s Net Neutrality

Yesterday the Communications and Technology Subcommittee of the House Energy and Commerce adopted a disapproval resolution (H.J. Res. 37) of the FCC’s 2010 Net Neutrality Order by a party-line vote. Today, the Energy and Commerce Committee issued a markup notice for the disapproval resolution of Monday, March 14 at 3:00 p.m. Assuming it is approved that same day (a likely outcome), it could be ready for House floor action fairly quickly (depending on the legislative priorities of the House majority leadership). 

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