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TMT Perspectives Insight & Commentary on Business, Legal and Policy Developments Affecting the Telecom, Media, and Technology Sectors

Category Archives: Legal Developments

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Celebrities Rule—But the FTC Has Endorsement Rules

Posted in FTC, Legal Developments

Perhaps because it is pervasive, there is a growing presumption that social media communications are unregulated. That is not accurate where endorsements are concerned. So before you blog or tweet about a product under circumstances in which you are getting compensated, it is worth figuring out whether your communication complies with the Federal Trade Commission’s… Continue Reading

Retransmission Consent Reform—The “Must Haves” for Cable and Satellite Companies

Posted in FCC, Legal Developments

Retransmission consent refers to the system by which pay TV providers (principally cable and satellite companies, which for convenience we will call “CableCos” and which FCCers call MVPDs) pay broadcast TV stations to carry the programming they broadcast. Years ago the payments were marginal or non-existent. Today the payments are growing, in part because increasingly… Continue Reading

Netflix v. Rovi–and Today’s Software Patent Debate

Posted in Intellectual Property, Lawsuits, Legal Developments

Netflix sued Rovi (formerly Macrovision) in federal court in California seeking a declaratory judgement of non-infringement and invalidity of five Rovi patents. Rovi recently lost and the patents were invalidated. The battle between Netflix and Rovi mirrors battles that are being fought daily throughout corporate America. The topic: the validity of software patents after the 2014… Continue Reading

FilmOn: (Alki) David Stuns Goliath in On-Demand and Mobile TV Victory

Posted in FCC, Intellectual Property, Legal Developments

Last week FilmOn quietly obtained a very important, preliminary decision from a California federal District Court that found that non-traditional, on-demand and mobile TV companies (the “Internet TV” providers) are entitled to a compulsory license under the Copyright Act. If upheld, this ruling will allow Internet TV providers to compete effectively with traditional cable and satellite… Continue Reading

First Circuit: Puerto Rico’s Recovery Act Preempted, Ball in Congress’s Court—But a Curious Concurrence Too

Posted in Finance, Lawsuits, Legal Developments

On Monday, July 6, in a significant victory for objecting bondholders, the United States Court of Appeals for the First Circuit held that the Puerto Rico Public Corporation Debt Enforcement and Recovery Act (the “Recovery Act”) was fully preempted by Federal bankruptcy law. The Act, which was signed into law by Puerto Rico’s governor in… Continue Reading

FCC Proposes to Fine AT&T Significantly

Posted in FCC, Legal Developments, Net Neutrality

Today the FCC proposes to fine AT&T US$100 million for its practice of selling its customers “unlimited” data plans which it subsequently limited by throttling back data speeds as much as 90% (sometimes, to dial-up levels) without being clear about the extent of the throttling. This proposed fine is based upon the FCC’s “Open Internet Transparency… Continue Reading

FCC Commissioner Pai Asks Congress to Partly Defund Agency

Posted in Antitrust and Competition Policy, FCC, Legal Developments, Net Neutrality

Yesterday FCC Commissioner Ajit Pai testified before the House Appropriations Committee, and in his lengthy statement, asked that Congress defund the FCC–or at least that part of the FCC that would implement the FCC’s recent net neutrality decision. There is a certain irony here. Commissioner Pai’s objection to the net neutrality decision stemmed from his… Continue Reading

Just Do It: Air Jordan, Raging Bull, and Resurrecting Copyright Infringement Claims

Posted in Intellectual Property, Lawsuits, Legal Developments

A new copyright lawsuit against Nike may signal a new wave of claims for infringement that began decades in the past. Last week, more than 30 years after he created the iconic image of  Michael Jordan elegantly soaring through the air, photographer Jacobus Rentmeester sued Nike for using that image as the logo for the… Continue Reading

U.S. Supreme Court Clarifies Standard of Review for Appeal of Patent Claim Construction

Posted in Intellectual Property, Lawsuits, Legal Developments

In a 7-2 decision handed down on January 20th, the U.S. Supreme Court held that while the ultimate determination of what a patent claim means is still a question of law subject to de novo review at the Federal Circuit, a district court’s resolution of subsidiary factual findings made during claim construction should be set aside… Continue Reading

Net Neutrality–FCC’s Pai Disdainful of Netflix

Posted in Antitrust and Competition Policy, FCC, Legal Developments, Net Neutrality

Last Friday FCC Commissioner Ajit Pai issued a statement that is worth studying. Its context is net neutrality, though that term is not referenced. In the short statement, Commissioner Pai describes “allegations” against Netflix (which frankly, we don’t fully understand) and notes that he met with Netflix about these allegations. Pai’s statement complains that Netflix would… Continue Reading

Droning On: News Agencies Team with FAA to Spur Drone Regs

Posted in Administrative Law, Drones, Legal Developments, Media

As we wrote last month, with the FAA’s promised regulations still years away, don’t expect to see commercial drones zipping across the sky any time soon.  However, recent FAA actions indicate that American companies may not be completely grounded while the FAA develops its new regulations. The FAA has already issued a number of permits to… Continue Reading

Droning On: FAA Delays Drone Regulations Until 2017

Posted in Administrative Law, Drones, Legal Developments

The Federal Aviation Administration’s (FAA) recently-announced delay in implementing a policy to address the increasing popularity and availability of drones, or Unmanned Aircraft Systems (UAS), threatens to further hinder expansion of drones beyond hobbyists to commercial uses and to drive American companies’ UAS technology R&D overseas. The FAA Modernization and Reform Act of 2012 contains language… Continue Reading

EU Legislators Vote To Break Up Google

Posted in Antitrust and Competition Policy, Intellectual Property, Legal Developments, Media

The European Parliament has voted to break up Google. The resolution is non-binding. But even if the Commission does pursue a breakup, it’s unclear how the EU could affect the decision. Google is an American company, and the US antitrust authorities have declined to prosecute Google for monopolization under US antitrust laws. I doubt an… Continue Reading

Software Patents: What Software Is Eligible for a Patent?

Posted in Intellectual Property, Lawsuits, Legal Developments

Note: This blog is largely for our friends in the legal community. Increasingly, the court system is opposed to enforcing patents where the subject of the patent is an abstract idea. This has led to cases that undercut protections for software and “business method” patents. One such decision was the Supreme Court’s June 2014 decision… Continue Reading

Zero-Rated Data Plans and Net Neutrality

Posted in Antitrust and Competition Policy, Legal Developments, Net Neutrality

We’ve written repeatedly about net neutrality. The debate is very theoretical. So let’s tackle a concrete issue. “Zero rating” is when your mobile data provider doesn’t count the data used in accessing a certain type of application against your monthly data plan. Let’s imagine a simple example. Imagine that Netflix is zero rated by AT&T… Continue Reading

Summary Judgment in Copyright Infringement Cases: Shall I Compare Thee to a Scented Wax-Warmer Product?

Posted in Intellectual Property, Lawsuits, Legal Developments

In an unpublished decision last week, Scentsy Inc. v. Harmony Brands, the United States Court of Appeals for the Ninth Circuit reaffirmed that subjective comparisons of a copyrighted visual work (in this case scented wax and wax-warmer products) to an allegedly infringing work should be left to a jury—not decided on summary judgment. To establish… Continue Reading

Twitpic Is Dead, but Was It Twitter’s Fault?

Posted in Lawsuits, Legal Developments

Twitpic, the once-popular, photo-sharing add-on to Twitter, initially announced that it was shutting down on September 25, 2014, because it was unable to fight Twitter’s opposition to Twitpic’s trademark applications. Several days later, Twitpic announced that it was being acquired and that the service would live on. After almost a month of silence, Twitpic released… Continue Reading

Net Neutrality: Back to Basics – Blocking Access to the Internet Can Be Entirely Rational

Posted in Antitrust and Competition Policy, FCC, Legal Developments, Net Neutrality

The debate over net neutrality has been marked by extreme rhetoric. Those that support regulation designed to keep the Internet “free” and “open” assert that Internet access providers left to their own devices will interfere in the marketplace, thereby stifling innovation and competition. This is a legitimate concern. A free and open marketplace will generally… Continue Reading

Dollar General Goes Hostile – Manipulating Antitrust in High-Stakes Mergers

Posted in Antitrust and Competition Policy, FTC, Legal Developments, Transactions

On Friday, September 5, 2014, Family Dollar issued a press release that effectively foreclosed a friendly deal with Dollar General. On Wednesday, September 10, 2014, Dollar General said it would initiate a cash tender offer for Family Dollar. Dollar General has gone hostile. (See our previous blog on this matter.) In Family Dollar’s release, Family… Continue Reading