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Communications and Technology Law Projects

I. Appeal  in Support of Lower Telephone Rates for Prison Payphones

Over a decade ago, Martha Wright, a  grandmother from Washington, DC, along with a group of prisoners and former  prisoners, their family members, the D.C. Prisoners’ Legal Services Project,  Citizens United for Rehabilitation of Errants (CURE), and others (Wright  Petitioners) filed a petition for rulemaking with the FCC seeking relief from  excessively high rates and fees charged by companies providing Inmate Calling  Services (ICS).  After many years of  advocacy, the FCC finally adopted interim price caps for interstate calls in  2013.  The effect of this decision was to  substantially reduce the cost of making an interstate phone call to or from a  prison.

Several of the ICS providers and prison  facilities sought review of the FCC’s decision in the D.C. Circuit.  The pro  bono counsel for the Wright Petitioners was unable to handle the appeal, so  IPR agreed to take it over.

A. Opposition to Stay Motions of ICS Providers

In December 2013, IPR filed a motion for  the Wright Petitioners to intervene in the consolidated appeals.  Shortly thereafter, IPR filed an opposition  to the petitioners’ emergency motion to stay the FCC order.  The opposition argued that a stay would cause  financial harm to individuals and families relying on ICS, who are some of the  most economically disadvantaged in the nation.   The opposition cited examples of families forced to cut off contact with  an inmate incarcerated hundreds of miles from home because they could not  afford the phone bills.  The opposition  also pointed out the harms to the 2.7 million children from the lack of contact  with a parent who is in prison. 

The stay opposition also argued that the  public interest would suffer if the court stayed the FCC’s order.  The record showed that when families speak  with an imprisoned loved one more frequently, prisoners are more likely to be  successful upon reentry into the community and less likely to commit additional  crimes.  Reducing recidivism even by a  small percentage would result in millions of dollars in savings. 

The D.C. Circuit denied the stay in part,  allowing the interim price caps to take effect.   As a result, ICS providers generally may not charge customers more than  $0.21 per minute for prepaid/debit interstate calls or $0.25 per minute for  collect calls.  However, the Court stayed  parts of the FCC’s order that set a much lower “safe harbor” rate for calls and  required that ancillary fees be cost based.  

B. Merits Brief Supporting Commission’s Order

During the spring semester, a team of IPR  students worked on the brief in support of the FCC’s order.  The students dug through thousands of  comments to find overwhelming statistical and anecdotal evidence supporting the  FCC’s decision to lower ICS rates.  In  addition to conducting legal and factual research, they had to figure out what  arguments to make for the clients to best support the FCC, without duplicating  its arguments.  They produced multiple  drafts of both the Statement of the Case and the arguments. 

After the petitioners filed their briefs,  the Wright brief was revised to respond to their arguments.  The brief contends that the FCC’s action to  lower the costs of interstate ICS is a lawful and reasonable response to a  failed market and does not interfere with the day-to-day administration of  state and local prisons facilities.  It  also argues that the FCC acted lawfully and appropriately in requiring that  “ancillary fees” charged to customers be based on costs.  Ancillary fees are paid by consumers to set  up and maintain a pre-paid calling account and to add money to the account and  are necessary to be able to place or receive a call.  These fees can often double the cost of  calling.

II. Political  Broadcasting

Broadcast stations have long been  required to publicly disclose the sponsors of political advertisements as well  as other information about candidate and issue advertising.  That information was kept at the station’s  main studio, and members of the public generally had to visit the station in  person to view this information.  That  changed as a result of the advocacy of IPR and its client, the Public Interest  Public Airwaves Coalition (PIPAC).  In  2012, the Commission started requiring television stations to put their public  inspection files in an online database hosted by the FCC.  These files may be viewed at https://stations.fcc.gov/.

A station’s public inspection file  contains, among other things, applications, ownership reports, children’s  programming, issue-responsive programming, and a “political file,” containing  records concerning political broadcasting.   Section 315 of the Communications Act, as amended by the 2002  Bipartisan Campaign Reform Act, requires that broadcast stations  maintain records regarding any request to purchase broadcast time that  “communicates a message relating to any political matter of national  importance.”  These records must identify  the issue, candidate, and election referred to by the ad and the sponsor of the  ad.  The licensee must also disclose the  purchaser’s chief executive officers or members of the executive committee or  of the board of directors.

After the Supreme Court struck down  limits on campaign expenditures in Citizens  United and in McCutcheon v. Federal Election Commission, the amount of money being spent on candidate  and issue advertising on television has increased dramatically.  Yet, the public retains the right to know about the organizations and individuals seeking to influence their  vote through these ads.  Thus, it  is more important than ever for the public and journalists to have easy access  to television stations’ political files.

In summer 2013, IPR filed comments on behalf of PIPAC, the Sunlight  Foundation, and the Center for Effective Government, detailing the public  benefits from online disclosure, which at that time applied only to the major  network affiliates in the fifty largest markets.  The comments urged the FCC to proceed with plans  to require all television stations to upload their political files starting in  July 2014, which it did.  The comments  also recommended that the FCC adopt data standards and require television  stations to upload their political files in a machine-readable format to make the data easier to analyze and more  useful to the public.  The Commission has  not yet acted on this proposal.

A. Complaints filed against eleven television  stations for failing to make required disclosures

In May 2014, IPR filed complaints at the FCC on behalf of the  Campaign Legal Center and the Sunlight Foundation against eleven television stations.  The complaints were drafted by IPR students  who also reviewed many stations’ online political files.  The complaints indicated of widespread  noncompliance with the disclosure requirements without regard to the political  leanings of the sponsor, the geographic location, or the station’s network  affiliation.  For example, many stations  failed to identify the candidate to which the ad referred; the issue of  national importance to which the ad referred; and/or the chief executive  officer or board of directors of the sponsor.   In some cases, stations simply uploaded blank disclosure forms.  In others, stations filled in some, but not  all, of the required information.  The  FCC acted quickly.  Not only did FCC  Chairman Tom Wheeler release a statement in support of our complaints, but within  a month of filing, the FCC forwarded the complaints to the stations involved  for their response, and IPR filed replies to their responses. 

B. Complaints against television stations that  failed to properly identify sponsors of political ads

In July 2014, IPR filed complaints  at the FCC against two television stations on behalf of Campaign Legal Center,  Common Cause, and the Sunlight Foundation.   These stations had aired issue ads without disclosing the true identity  of the sponsor as required by Section 317 of the Communications Act. 

One of the stations, WJLA, in  Washington, D.C., ran ads purchased by the NextGen Climate Action Committee  (NextGen).  NextGen was founded, and at  the time solely funded, by Tom Steyer, a former hedge-fund manager worth  billions.  The complaint alleged that  Steyer, and not NextGen, was the true sponsor of the ad, and therefore the  station should have disclosed Tom Steyer’s name at the end of the ad rather  than the name of the committee.  It also  alleged that WJLA clearly failed to exercise “reasonable diligence” to  ascertain the true sponsor as required by the Communications Act.

The other complaint was against  Portland, OR television station KGW.  KGW  ran ads purchased by the American Principles Fund (APF).  At the time, APF was funded almost  exclusively by Sean Fieler, a hedge-fund manager.  The complaint alleged that Fieler was the  true sponsor of the ads, and therefore the station should have disclosed Sean  Fieler’s name at the end of the ad rather than “American Principles Fund.” It  also alleged that the station did not exercise “reasonable diligence” to  ascertain basic funding information for the group.

C. Petition for Rulemaking to extend online public  file requirements to cable and satellite

Because spending by political  candidates, Super PACs and “dark money” groups is not limited to broadcast  television stations, IPR filed a Petition for Rulemaking on behalf of Campaign  Legal Center, Sunlight Foundation and Common Cause in July 2014.  The petition asked the FCC to require that  cable and satellite operators, which currently make their public files  (including political files) available at certain physical locations, to upload  them into the online database currently used only for broadcast television  stations.  Putting the files online would  make it easier for the public to access the information.  Because political campaigns and outside  groups have substantially increased spending for advertisements on cable and  satellite channels, the public needs online access to obtain comprehensive data  on political ad spending.  The FCC, again  acting very quickly, put the petition out for public comment in August 2014.

III. Media  Ownership

The FCC’s regulation of broadcast  station ownership continues to be a major focus of IPR’s advocacy on behalf of  the Office of Communication, Inc. of the United Church of Christ, National  Organization for Women Foundation, Common Cause, Prometheus Radio Project and  other organizations.  The FCC rules are  intended to promote diversity of viewpoints, diversity of ownership,  competition, and the provision of local news and other local programming by  limiting the number of television and radio stations that may be commonly owned  within a market, as well as common ownership of newspapers and broadcast  stations.

Under the Telecommunications Act of  1996, the FCC must review whether the ownership limits continue to serve the  public interest every four years.  In  addition, the Commission may only approve the assignment or transfer of  broadcast licenses where it is consistent with the limits, or the applicants  make an affirmative showing that the public interest would be served by waiving  the limit.

IPR’s clients successfully  challenged previous decisions by the FCC in its 2002 and 2006 reviews to relax  its ownership limits.  Both appeals were  heard by the US Court of Appeals for the Third Circuit.  In both decisions, which are known as Prometheus I and Prometheus II, the Court in large part agreed with IPR’s arguments,  reversed parts of the FCC’s orders, and remanded for further FCC review.   While the appeal of the 2006 Quadrennial Review was still pending, the  FCC began its 2010 Quadrennial Review.

IPR filed multiple comments and made  numerous ex parte presentations in  the 2010 Quadrennial Review.   Most recently, IPR’s advocacy efforts focused on two objectives.  First, we urged the FCC to take action to  stop television stations from evading local ownership limits by entering into  “shared services agreements” (SSAs).  The  local television rule prohibits common control of two or more television  stations in all but the largest markets as well as common control of two top-four  ranked television stations (usually the CBS, NBC, ABC and Fox affiliates).  An SSA may allow one station to provide all  local news for another television station, to sell advertising on that station,  and to control most of its operations.   IPR’s clients sought to require the disclosure of all such sharing  agreements.  In addition, they wanted the  FCC to amend its “attribution rules,” which identify the types of ownership  interests that are counted for purposes of the ownership limits, to attribute ownership  where an SSA gave a station substantial influence over another station in the  same market.

Second, IPR’s  clients wanted to make sure that the FCC complied with the Court’s order in Prometheus II that the FCC take certain  steps to promote broadcast station ownership by women and people of color.  Our many filings showed wide disparities in  station ownership by women and people of color as compared to white men.  The comments also suggested research and  other concrete steps that the Commission could take to advance the goal of  increasing ownership diversity. 

In April 2014, the FCC issued a  combination Order and Further Notice of Proposed Rulemaking in the 2010  Quadrennial Review (2014 Quadrennial Review).   In the Order, the FCC amended its “attribution rules,” which identify  the types of ownership interests that are counted for purposes of the ownership  limits, to include Joint Sales Agreements (JSAs).  JSAs are agreements in which a station sells  advertising time on another station in the same market.  JSAs are similar to SSAs in that they both  confer substantial control to another in-market station owner and may be used  to evade violations of the media ownership limits.  

In the Further Notice, the FCC  combined the ongoing 2010 Quadrennial Review with the new 2014 Quadrennial  Review.  The Further Notice sought  comment on whether to retain or amend its ownership limits, how to respond to  the Prometheus II remand regarding  racial and gender diversity in station ownership, and whether to require that  stations disclose SSAs.

A. Petitions regarding the FCC’s Action and  Inaction in the 2010 Quadrennial Review

IPR filed a petition for review of  the 2014 Quadrennial Review on behalf of Prometheus Radio Project, et al. in the Third Circuit.  The petition asserted that the FCC failed to  satisfy the Third Circuit’s remand instructions in Prometheus II.  Specifically,  it alleged that the FCC failed to collect and analyze the data and conduct  studies necessary to promote station ownership by women and people of  color.  Further, the petition alleged  that the FCC acted arbitrarily in attributing one type of sharing agreement  between broadcast television stations (JSAs) while not requiring that a  different type of sharing agreement raising similar concerns (SSAs) even be  disclosed.

Three other petitions for review  were filed in the DC Circuit by industry parties.  The National Association of Broadcasters  (NAB) challenged the FCC’s failure to relax or repeal any rules, while two  others challenged the decision to attribute JSAs.  Because petitions of the same order were  filed in different courts, initial jurisdiction was determined by lottery.  After the DC Circuit was selected, Prometheus et al. filed a motion to transfer the  case to the Third Circuit, which had retained jurisdiction over the remanded  portions of Prometheus II.

B. Intervention in NAB’s Appeal of a Public Notice  regarding SSAs

In March 2014, shortly before the  FCC issued the Quadrennial Review, the FCC’s Media Bureau, which is charged  with reviewing proposed license transfers to determine whether they are in the  public interest, issued a Public Notice to provide guidance concerning its  processing of applications involving SSAs and contingent or financial  interests.  The NAB sought review of this  action in the D.C. Circuit.  The FCC  filed a motion to dismiss the petition on the grounds that the Media Bureau’s  public notice was not a final agency action.   IPR filed a motion on behalf of Prometheus et al. supporting the motion to dismiss, and requesting that if the  case is not dismissed that it be consolidated with the other petitions for  review of the 2010/2014 Notice/Order because it presented legal and factual  issues in common.

C. Challenges to Mergers involving SSAs to  Circumvent Ownership Limits

2013 was a blockbuster year at the  FCC for media mergers.  IPR represented  organizations challenging license transfers or assignments that involved SSAs  designed to get around ownership limits. 

1. Gannett-Belo

As described in last year’s annual report, IPR filed a petition to deny in June  2013 opposing Gannett Company’s proposed acquisition of twenty television  stations from Belo Corp. for $2.2 billion.   The petition, which was filed on behalf of Communications Workers of  America (both NABET and the Newspaper Guild), National Hispanic Media  Coalition, Common Cause, Office of Communication, Inc. and Free Press, argued  that the acquisition was not in the public interest because Gannett was  proposing to use SSAs to circumvent the FCC media ownership limits.

In December,  after Gannett agreed to sell one of the stations pursuant to a consent decree  with the Department of Justice, the FCC’s Media Bureau denied IPR’s petition  and approved the license transfers.  In  January 2014, IPR filed an application for review asking the full Commission to  reverse the Media Bureau decision for three reasons.  First, the approval of the assignments  involving sharing arrangements to evade the newspaper-broadcast-ownership rule  presented a novel question of law, fact, and policy that should be decided by  the full Commission.  Second, the Bureau’s  decision was incorrect because the assignment of licenses was contrary to the  Communications Act, which permits assignments only where they serve the public  interest.  Finally, failure to reverse  this decision and the previously unreviewed Bureau precedents on which it  relied would result the increased use of such sharing agreements to further  evade the FCC’s media ownership rules.

2. Tribune-Local TV transaction

In January 2014, IPR also filed an  application for review of the Media Bureau’s approval of Tribune Co.’s  acquisition of nineteen television stations licensed to Local TV.  Because outright acquisition of some of the  Local TV stations would have violated the Commission’s cross-ownership limits,  Tribune entered into various SSAs with a “sidecar “company Dreamcatcher.  The application for review, which was filed  on behalf of Free Press, made arguments similar to those made in application  for review of the Gannett-Belo transaction.

3. Transfer of KFVE

In February 2014, IPR filed a  petition to deny the transfer of television station KFVE, Honolulu, on behalf  of the Media Council Hawai`i (MCH).  As  described in prior annual reports, IPR has represented MCH since 2009 in  an effort to diversity ownership and local news coverage in Honolulu.  Specifically, Media Council Hawai`i (MCH)  challenged a transaction through which Raycom, one of the largest broadcasting  companies in the US, acquired direct control over two major network affiliates  in Honolulu (KHNL and KGMB), as well as indirect control over KFVE, through the  use of various sharing arrangements.   While the Media Bureau agreed that the original 2009 transaction was  inconsistent with the local television ownership rules, it nonetheless declined  to take action because it had no transfer application before it.  MCH filed an application for review of the  Bureau’s decision in December 2011, which remains pending. 

In November 2013, an application was  filed with the FCC seeking approval of the transfer of KFVE to American Spirit  Media, LLC.  Raycom, which had initially  obtained an option to purchase KFVE in 2009 when it entered into the SSA, had  transferred the option to American Spirit.   American Spirit exercised the option, but needed FCC approval for the  transfer to proceed.

An IPR student drafted a petition  for MCH arguing that approval of the transfer would not serve the public  interest because it would undermine the purpose of the local television station  ownership limit and allow Raycom to continue to air virtually identical news  programs on three Honolulu stations.  The  petition included a side-by-side comparison of news programming on the three  stations over two days, which showed that the local news programs on KFVE were  almost identical to those on the two Raycom-owned stations. The petition also  argued that American Spirit appeared to have no independent existence apart  from holding licenses on behalf of Raycom, since all six of its stations were  operated by Raycom.  Finally, it urged  that the full Commission, rather than the Media Bureau, should review this  application because it concerned issues and facts almost identical to those  present in MCH's pending application for review.

IV. Children’s Online Privacy

The Children’s Online Privacy Protection Act  of 1998 (COPPA) generally requires website operators and online service  providers that target children under 13, or know a particular user is under 13,  to provide notice to parents and obtain verifiable parental consent (VPC)  before collecting, using, or disclosing personal information about  children.  The Federal Trade Commission  (FTC) is charged with implementing and enforcing COPPA.  Over the last few years, the FTC sought  comments on updating the COPPA through its own “COPPA Rule.”  IPR filed comments on behalf of the Center  for Digital Democracy (CDD) and a broad coalition of children’s and privacy  advocacy organizations.  The FTC  significantly revised the rule and made many changes in response to IPR’s  comments.
 
  The  revised COPPA Rule took effect in July 2013.   Over the past year, IPR students worked with CDD on projects to ensure  the revised rule is properly interpreted and enforced.

A. Requests for the FTC to investigate potential  COPPA Rule violations

In the fall semester, IPR students  reviewed children’s websites and mobile apps to assess compliance with the  revised COPPA Rule.  Based on this  analysis, they drafted two requests for investigation.  The students presented their findings to the  FTC staff and filed the requests for investigation in December 2013. 

1. Marvelkids.com

Marvelkids.com is a website owned by  Disney that features Marvel comic heroes games, video and activities for  children.  IPR found that the  Marvelkids.com’s privacy policy had not been updated to comply with the revised  COPPA Rule. The privacy policy described a number of practices prohibited under  the revised COPPA rule.  For example, it  stated that Marvelkids.com collected personal information from visitors to the  site (including IP addresses and the pages visited before and after visiting  Marvelkids.com), used this information to tailor communications to the visitor,  and disclosed information to third party ad companies and ad serving  companies.  Under the revised COPPA rule,  none of these activities are permitted without giving direct notice to parents  and obtaining prior verifiable consent.   Yet Marvel made no attempt to provide direct notice or to obtain  consent.

The request for  investigation was widely covered in the press.  Marvelkids.com  quickly changed its privacy policy to the overall Disney privacy policy.  In the spring semester, an IPR student  analyzed the Disney privacy policy and found that it too was not fully  compliant with the COPPA Rule.  Thus, in  February 2014, IPR filed a letter advising the FTC of those findings.

2. Hello Kitty Carnival

Hello Kitty Carnival is a mobile app  developed by Sanrio, a large Japanese firm that also markets a wide variety of  products based on the popular children’s character Hello Kitty.  The request for investigation alleged that Sanrio and third-party  advertising companies were collecting three types of personal information from  children via the Hello Kitty Carnival app−identifiers that are unique to the  mobile device, information regarding the mobile device’s physical location, and  photographs containing images of children.   Sanrio did not provide COPPA-compliant notice or gain verifiable  parental consent before collecting this information.  Sanrio’s privacy policy was not clearly and  understandably written and it contained confusing and contradictory material.

B. Comments on proposed COPPA safe harbor programs

COPPA includes a provision enabling  companies to join an approved safe harbor program.  A member of a safe harbor that abides by the  safe harbor’s guidelines is deemed to be in compliance with COPPA.  To become an approved safe harbor, an  organization must to apply to the FTC and meet certain criteria.  Applications for "safe harbor"  status are published in the Federal Register to allow public comment on whether  they meet criteria set forth in the COPPA Rule.   IPR worked with CDD to comment on two such requests.

1. iKeepSafe

CDD opposed iKeepSafe’s safe harbor  application because the company in charge of enforcement did not seem to have  sufficient staff to effectively enforce the iKeepSafe rules.  CDD also objected that iKeepSafe’s guidelines  used permissive language when the COPPA Rule required mandatory language and  thus, did not provide as much protection for children as the COPPA Rule.  The FTC recently approved iKeepSafe  contingent on the company changing some of the permissive language to mandatory  language, as requested by CDD.

2. kidSAFE+

CDD opposed the  kidSAFE+ safe harbor application on a variety of grounds.  In particular, it objected to kidSAFE’s plan  to use a logo for its COPPA safe harbor seal, “kidSAFE+,” that looked very  similar to its “kidSAFE” seal, which denotes that the online service complies  with certain safety criteria, because it would likely be confusing to parents. The  comments also objected that the kidSafe+ guidelines did not provide protection  that was equal or greater to the protections in the COPPA Rule and that the  application failed to provide (or redacted) information necessary to determine  whether the safe harbor program met the relevant criteria

C. Comments on proposed verifiable parental consent  mechanisms

The COPPA Rule  prohibits websites and apps from collecting, disclosing, and using personal  information from children without first obtaining verifiable parental consent  (VPC).  To obtain consent, companies can  use “verifiable parental consent mechanisms.” Companies offering VPC mechanisms  may apply for FTC approval.  IPR worked  with CDD on comments opposing two such applications.

1. AssertID

AssertID proposed a verification  system that used Facebook to verify that the person granting permission was in  fact the child’s parent.  CDD commented  that this untested system could be gamed easily with fake Facebook  accounts.  Further, this mechanism  required parents and children to disclose substantial amounts of information  about themselves to AssertID.  Citing  CDD’s comments, the FTC rejected this application.

2. Imperium

Imperium proposed a knowledge-based  authentication system (KBA).  KBA, which  is used by some financial institutions, verifies identity by asking a few  “out-of-wallet” questions about things likely to be known only by that  individual.  CDD commented that the  proposal was insufficient in that it did not describe how its methods would be  effective at verifying parental consent.   Moreover, Imperium had not shown that a KBA system would work in the VPC  context where the goal is to ensure the responding person is the child’s parent rather than to verify  identify. 

D. Freedom of Information Act requests

On behalf of CDD, IPR has filed two  requests under the Freedom of Information Act (FOIA) to obtain information  concerning children’s privacy.  Under the  revised COPPA Rule, safe harbor programs must file an annual report with the  FTC starting in July 2014, detailing the number of complaints filed against  member companies and the type of enforcement the safe harbor used to fix the  problems.  The FOIA request seeks to have  those reports made public.

Another FOIA request seeks documents  from the National Institute of Standards and Technology (NIST), which recently  granted $1.6 million to Privacy Vaults Online, Inc. (PRIVO) and Verizon for the  creation of a VPC mechanism.  The FOIA  request seeks to obtain PRIVO’s grant application and other related information  about the request from PRIVO.

V. Low-Power FM Radio

IPR represents Prometheus Radio Project,  a nonprofit organization committed to developing and supporting community based  radio in communities across the United States.   Prometheus was the leading force behind the drafting and passage of the  Local Community Radio Act (LCRA) in 2010, which opened up the airwaves for  hundreds of new low-power radio stations across the country.  In the wake of the LCRA’s passage, the  Commission began a series of rulemakings that culminated in the creation of a  low-power FM (LPFM) application window in late 2013.  LPFM stations have a limited broadcast radius  of only a few miles, meaning that they are highly local service that is  designed to serve communities.  In the  fall 2013 application window, nearly 3,000 organizations applied for radio  licenses to broadcast in their communities.

A. Advising LPFM Applicants

During the fall semester, IPR students  helped nearly 60 applicants apply for low-power FM stations.  The applicants included community justice  organizations, social/health programs, and Native American tribes.  The students reviewed each organization’s  application to ensure it met the Commission’s minimum requirements and that the  applicant had maximized its chances of obtaining a radio license.  After the application window closed, the  Commission awarded licenses to about a dozen applicants that faced no  competitor. These stations are expected to be on the air before the end of 2014  or in early 2015.

B. Creating a Guide for Organizations that Applied for LPFM Licenses

Other applicants advised by IPR applied  for frequencies where they faced competition from other applicants, a situation  that the Commission refers to as mutually exclusive (MX) applications.  The Commission developed a point system for  choosing among MX applications.  However,  because many groups were expected to claim the maximum number of points, the  Commission also allowed applicants with the most points to team up with one or  more other applicants in an effort to win the channel.  This process, known as voluntary timesharing,  allows applicants to aggregate their points and the group with the most points  gets the license. 

In spring 2014, an IPR student wrote a  comprehensive guide for LPFM applicants working with Prometheus to explain the  Commission’s selection process and provide practical advice.  The guide included a detailed breakdown of  all the various scenarios applicants could encounter after learning that they  were in an MX group.  The guide discussed  how applicants might negotiate with other groups to create universal or  voluntary settlements.  It also provided  practical tips on the type of information that had to be included in settlement  agreements, including a template for the agreements and an example of a  hypothetical agreement between two applicants.   Prometheus distributed the guide to the LPFM applicants it supported.

C. Supporting the LPFM Service in Commission  Pleadings

Full-power FM radio owners have long  fought the establishment of the LPFM service due to concerns about the  interference they might cause to full-power FM stations.  Despite a Congressional study demonstrating  that the concerns of full-power stations were unfounded, full-power FMs  continue to try to limit the ability of LPFM stations to get on the air.  IPR has represented Prometheus in various  efforts to defend the LPFM service in the face of challenges by full-powered  stations.

1. LPFM Applicant Process Theatre Inc.

In spring 2014, IPR filed an amicus curiae statement in support of  Process Theatre, Inc., an LPFM applicant in the Sacramento, California  market.  AMFM Texas Licenses, LLC, which  owns a full-power station in Sacramento, filed a petition to deny Process Theatre’s  LPFM application, arguing that the LPFM applicant had not used an accurate  engineering model to show there would not be interference.  In particular, AMFM argued that because its  engineering study — which used a different method than the one required by the  LPFM rules — predicted interference, the application should be dismissed.  IPR responded that because Process Theatre  used a process approved by the Commission to demonstrate a lack of interference,  AMFM’s arguments should be rejected.  The  statement also argued that allowing a full-power station’s engineering study to  trump an LPFM applicant’s interference study put LPFM applicants at a distinct  disadvantage.

2. LPFM Applicants in the LA Market

In summer 2014, IPR filed an opposition  on behalf of Prometheus to a clarification of the LPFM rules sought by KYLA, a  full-power FM station in Los Angeles.   The rules allow an LPFM applicant to show that no interference will  occur to adjacent channels by showing that its proposed transmitter is located  consistent with certain minimum distance requirements.  LPFM applicants had to conduct engineering  studies showing a lack of interference with such channels.  The opposition argued that requiring LPFM  applicants to conduct additional engineering studies would be cost prohibitive  for most applicants, since they are usually small, community-based nonprofit  organizations.  Further, requiring such  studies after the fact could jeopardize hundreds of LPFM applicants that did  not conduct the studies requested by KYLA because they were not required to do  so by the FCC’s rules.

VI. Accessibility to Telecommunications by Persons  with Disabilities

IPR has continued to represent Telecommunications for the Deaf and Hard  of Hearing, Inc. (TDI), a nonprofit organization that advocates for improved  access to telecommunications, media, and information technology for Americans  who are deaf or hard of hearing.  In  addition to representing TDI, IPR worked closely with a coalition of deaf and  hard of hearing consumer advocacy groups, including the National Association of  the Deaf (NAD), the Hearing Loss Association of America (HLAA), the Association  of Late-Deafened Adults (ALDA), the Deaf and Hard of Hearing Consumer Advocacy  Network (DHHCAN), and the Cerebral Palsy and Deaf Organization (CPADO).

A. Closed Captions on Television

IPR has worked to ensure that all  broadcast, cable, satellite, and other television programming is accessible by  means of closed captions as required by the Communications Act and the  Commission’s captioning rules.  Under the  Commission’s rules, programmers are required to caption their content unless  one of the handful of exemptions in the rules applies.  In particular, a programmer can petition for  an exemption from closed captioning if it can show that captioning would be  economically burdensome.  In spring 2014,  an IPR student analyzed exemption petitions and drafted comments opposing  thirteen, primarily on the ground that the petitioner failed to make a  sufficient showing.  In August 2014, the  Consumer and Governmental Affairs Bureau acted on two pending petitions,  denying one that TDI had opposed and granting another that TDI did not  oppose.  The Bureau also summarily  dismissed dozens of pending captioning petitions that TDI had previously  opposed on the grounds that the petitioners failed to provide the information  required for a waiver.

Two petitioners whose applications were  dismissed as incomplete sought Commission review of the Bureau’s action.  Both applications involved requests to exempt  religious services recorded for broadcast from closed captioning and raised the  same legal arguments.  IPR drafted and  filed oppositions on behalf of TDI and the other organizations. 

B. Improving Commission Processes for Handling  Captioning Petitions

In fall 2013, Tom Wheeler was confirmed  as the new FCC Chairman.  One of his  first actions was to seek public comment on how the Commission could improve  its procedures to be more responsive to the public.  IPR had long been frustrated by the delays  and difficulties caused by the Commission’s requirement that petitions for  exemption from closed captioning as well as comments on those petitions be  filed in paper at the FCC’s headquarters.   Most other FCC proceedings allow electronic filing.  IPR drafted comments for TDI and the other  consumer groups asking that parties seeking or opposing closed-captioning  waivers be able to file electronically.   In spring 2014, the FCC adopted an order to allow electronic  filing.  The comments also asked the  Commission to process dozens of pending closed-captioning waiver requests.  Subsequently, the FCC summarily dismissed  dozens of pending waiver petitions that failed to provide sufficient  information.

C. Closed Captioning Controls and User Interfaces

IPR worked with TDI, NAD, and other deaf  and hard of hearing consumer advocacy groups to draft comments filed with the  FCC related to implementation of the Twenty-First Century Communications and  Video Accessibility Act (CVAA).  The  comments sought to make closed-captioning controls and other accessibility  features on televisions, set-top boxes, and other devices more accessible and  easy to use.  IPR drafted a section of  the comments demonstrating that the Commission had ample legal authority under  the CVAA to require that accessibility features be readily available on all  devices.

VII. Supporting Robust Network Neutrality

IPR drafted comments for the Benton  Foundation filed in the FCC’s network neutrality proceeding in April 2014.  The comments argued that preserving an open  Internet was a vital policy goal because vulnerable populations such as seniors  and persons with disabilities rely on an open internet to access services  designed to help them.  They further  argued that the proposal to impose network neutrality rules that allowed for  “commercial reasonable” practices would be insufficient to protect a vibrant open  Internet.  Benton was concerned that such  case-by-case enforcement would create uncertainty for Internet users, startups,  and other companies.  Instead, the  comments urged the FCC to reclassify the transmission portion of the Internet  under Title II of the Communications Act, which would allow the FCC to impose  non-discrimination requirements on data transmission, while leaving the content  layer of the Internet largely unregulated.

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