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The U.S. Supreme Court today announced that it is declining to hear Cablevision’s challenge to the must-carry rules, letting stand a Second Circuit ruling upholding the validity of the 1992 rules. Approximately 40% of broadcast stations rely on must-carry to ensure carriage on their local cable systems, with the remainder electing to negotiate retransmission terms for carriage. A closely divided Supreme Court affirmed the validity of the must-carry rules over a decade ago, but Cablevision sought to argue that things have changed since the days of cable monopolies, and that the rules can’t be justified in a world where cable now competes with satellite and other providers for subscribers. However, the real change that Cablevision was banking on was the change in the composition of the Court, with two of the five justices that voted to affirm must-carry in 1997 having left the court, and a third affirming vote, Justice Stevens, having now announced his impending retirement.

Cablevision therefore had reason to think that its appeal, which in many regards was just a “do over” of the earlier unsuccessful challenge, had a chance with the Court’s new mix of justices. What is interesting, and reassuring for broadcasters, is that for the Supreme Court to agree to hear an appeal requires the votes of only four justices, rather than a majority of the nine justices. Declining to hear the appeal means that not even four justices, much less a majority of the court, were interested in reviewing the Second Circuit’s affirmation of the must-carry rules.

So what does that mean? Well, a true optimist from the broadcasters’ perspective would hope it means that three or less justices question the validity of the must-carry rules, and that future appeals will have a very uphill battle to claim five votes in favor of overturning the rules. An optimist for the cable industry would argue that a lot of factors go into determining whether the Court should grant certiorari, only one of which is the likelihood of a resulting decision reversing the lower court. The truth, of course, lies somewhere in the middle, and we may never find out whether the Court’s decision to deny certiorari was a hard-fought internal battle over the merits of the appeal, or merely a simple vote where the justices expressed no appetite for revisiting the issue for any number of reasons.

In the meantime, must-carry remains the law of the land, and it will likely be a while before another appeal can work its way up through the system to reach the Supreme Court. As a result, broadcasters relying on must-carry rights can breath a sigh of relief, at least for now.

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Call it just a recessionary recess, but radio stations strapped by the tough (but finally improving) advertising market breathed a sigh of relief today. In a continuing battle between the Radio Music License Committee (RMLC) and ASCAP over the music license fees paid by radio stations to the composers represented by ASCAP, US District Court Judge Denise Cote ruled that while the dispute is being resolved, the interim payments due ASCAP will be reduced by some $40 million dollars compared to the 2009 ASCAP fees.

The seeds of the dispute were first planted years ago, in economic boom days, when ASCAP fees were based upon a percentage of a radio station’s revenues. The radio industry sought to slow the rapid rise in ASCAP fees resulting from economic growth in the radio industry. To accomplish this, the RMLC and ASCAP ultimately agreed on a flat rate fee structure not directly connected to station revenues.

You can guess what happened next. The economy plummeted, radio revenues plummeted, but the ASCAP flat rate fees did not. Suddenly those fees represented an ever larger percentage of station revenue, with the result that playing music was becoming a very pricey part of station operations. There are also additional complications in a digital world. Does your ASCAP license cover your station’s audio stream on the Internet and elsewhere? How about those new HD multicast streams you’re now transmitting?

With the hope of addressing the growing impact of ASCAP fees, as well as these related issues, the RMLC and ASCAP entered negotiations over the fees to be paid by radio stations in 2010 and beyond. When no agreement could be reached, the RMLC commenced a rate proceeding in the US District Court. While it may be years before that proceeding is concluded, the interim rate set by Judge Cote represents the rate that will apply going forward. It supersedes the temporary 7% rate reduction agreed to by the RMLC and ASCAP earlier, but is not retroactive to January 1, 2010. It will continue to apply until the rate proceeding is concluded and a new rate is established, at which point the new rate will be applied retroactive to January 1, 2010, and any upward or downward adjustment for fees already paid will be made.

In the meantime, radio stations should begin seeing reductions in their ASCAP bills in the coming months, which will provide a welcome bit of relief to cash-strapped stations.

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Given that low power television (LPTV) stations have been trying unsuccessfully for many years to obtain must-carry rights comparable to those enjoyed by full-power stations, it is often overlooked that some LPTVs do, in fact, have carriage rights. However, these must-carry rights are available only to a select few LPTV stations.

Specifically, an LPTV station is “qualified” for mandatory carriage only if: 1) it broadcasts at least the minimum number of hours required of full-power stations by the FCC’s rules; 2) it meets all the obligations applicable to full-power television stations including, among other things, with respect to non-entertainment programming, and provides local news, informational and children’s programming that addresses local needs that are not being met by full-power stations; 3) it complies with interference restrictions consistent with its secondary status; 4) it is located no more than 35 miles from the cable system’s principal headend and delivers a good quality signal to that headend; 5) the community of license of the station and the franchise area of the cable system were both located outside the largest 160 markets on June 30, 1990 and the population of the community of license was not larger than 35,000 as of that date; and 6) there is no full power television station licensed to any community within the county served by the cable system.

The last two criteria are typically the most difficult obstacles for LPTV licensees to overcome, as cable systems are only required to carry LPTVs in the smallest of markets and, even in those areas, only when there is a dearth of full-power stations in the area. While the restrictions are difficult for most LPTV stations to meet, a recent FCC decision shows that it is not impossible. In that case (found here), digital LPTV station WRTN-LD, located just outside of Nashville, Tennessee, was able to convince the FCC, over the objections of Comcast, that the station is a “qualified” LPTV station entitled to must-carry rights on Comcast’s cable system. While Comcast argued that the station is part of the Nashville market and therefore ineligible for must-carry rights, the station was able to demonstrate that its service area was outside the Nashville market and that it met the other qualifying criteria.

This case serves as a reminder to all licensees to investigate options and not merely presume that no help is available at the FCC or elsewhere. For LPTV licensees in particular, a quick review of the LPTV carriage criteria above with respect to their own situation is well worth the effort involved.

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While the FCC has traditionally steered clear of copyright issues, that has grown more difficult as the preferred method of content protection shifts from court actions to copyright protection built into the hardware. The FCC therefore found itself in the middle when Hollywood insisted that cable and satellite set-top boxes be designed so that programming could be embedded with code preventing the box from outputting the programming through any output unsecured against copying (principally analog outputs). Consumers and consumer electronics manufacturers fought back, noting that early generation DTV sets only had analog inputs, and that allowing programming to be restricted to the digital outputs of set-top boxes would deprive those early adopters of programming unless they bought new DTV sets.

In balancing the desire of Hollywood for an ironclad grip over its programming, and the adverse impact upon consumers just as the FCC was trying to persuade them to transition to digital television, the FCC prohibited the use of Selectable Output Control (SOC), but did not prohibit set-top boxes from being manufactured with SOC capability. The idea was that the FCC might later be presented with a business model requiring the use of SOC, and the FCC did not rule out the possibility of granting a waiver if the applicant could demonstrate that consumers would not be harmed by the use of SOC.

The FCC today released a decision partially granting a waiver request from the MPAA that would allow cable and satellite companies, at the request of the program provider, to use SOC to prevent set-top boxes from outputting recent theatrical HD movies over “unsecured” outputs. The business model proposed in the waiver request is the release of movies through Video on Demand services while those movies are potentially still in theaters, and long before they become available on DVD or Blu-Ray disc. The MPAA persuaded the FCC that studios would never release their content to home viewing this early in a film’s marketing life unless assured that it wouldn’t result in the content immediately being pirated over the analog outputs of set-top boxes.

In addition to the traditional opposition from consumer electronics manufacturers, who will face the wrath of consumers unable to get their components to work with the restricted outputs, the National Association of Theatre Owners (NATO) also objected. They argued that such an early release model would undercut their business, and that “instant availability of films will reduce choice and limit the ability to develop ‘sleeper’ hits in movie theaters.” Similarly, the Independent Film and Television Association (IFTA) asserted that SOC would reduce access to independently produced films.

The FCC chose, however, to grant a waiver, stating its belief that “home viewing will complement the services that NATO and IFTA members offer and provide access to motion pictures to those consumers who cannot or do not want to visit movie theaters.” While the FCC has long claimed not to be in the business of picking winners and losers in its technology decisions, that loud groan you hear is theater owners concerned that they are about to be “complemented” out of business by an ever-improving (and now speedier) home viewing experience.

In an effort to prevent SOC from being abused, however, the FCC did not grant the open-ended waiver sought by the MPAA. For example, the FCC limited the time during which SOC restrictions can be applied to 90 days, or whenever the movie becomes available on prerecorded media, whichever comes first. It also prohibited SOC from being used to promote proprietary connections (by blocking output to acknowledged copyright-secure connections on retail devices in favor of a Hollywood-preferred connection). The FCC also made clear that if “companies taking advantage of this waiver market their offering in a deceptive or unpredictable manner that does not allow consumers to ‘truly understand when, how, and why SOC is employed in a particular case’,” the FCC “will not hesitate to revoke this waiver.”

Finally, to prevent MPAA members from gaining an unfair advantage over other movie producers, the FCC is making the waiver available to any provider of first-run theatrical content that files an “Election to Participate” with the FCC. Such providers will be required to submit a detailed report to the FCC on their use of SOC two years from commencing use of SOC under the waiver so that the FCC can later assess whether the waiver needs to be modified or terminated. Whether the FCC will actually revisit the decision remains to be seen, but keeping its options open is likely a wise idea, as this is a decision that could well have cascading unintended consequences for all involved.

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The press is buzzing with news, leaked late yesterday and announced today in a document entitled The Third Way: A Narrowly Tailored Broadband Framework, that FCC Chairman Genachowski is proposing to reclassify the transmission component of broadband Internet access as a “telecommunications service” subject to FCC regulation. As almost everyone in the telecom world knows, the US Court of Appeals recently found that the FCC does not have direct jurisdiction to impose “network neutrality” rules as long as it classifies broadband as just an “information service.”

With the Chairman’s support, three of the five FCC Commissioners now favor reclassifying broadband as a telecommunications service, a first step towards adopting network neutrality rules.

For broadcasters, the net effect of net neutrality rules isn’t as easy to assess as it may at first seem. As producers and distributors of broadband and mobile services, net neutrality rules should assure broadcasters that their content will not be blocked or unfairly degraded by broadband network operators. Broadcasters that provide mobile news apps and operate rich media web sites have the same general interest in nondiscriminatory network access as do Internet behemoths like Google, Amazon and eBay.

On the other hand, broadband providers have argued convincingly that their networks are extremely expensive to build and that they must have flexibility to manage Internet traffic on their networks to assure a good quality of service to their subscribers. If the FCC limits broadband operators’ ability to manage traffic, those operators may have to upgrade their infrastructure, raising costs to web publishers and end users alike.

Mobile network operators assert that network neutrality rules could have proportionally greater adverse effects on them. Mobile network capacity is generally more costly and less robust than that of copper and fiber networks. If network neutrality rules increase the load on mobile networks and limit the ability of network operators to manage that traffic, their arguments that they need more spectrum to meet growing demand may be more convincing.

At this stage, no one knows how any proposed network neutrality rules would treat mobile broadband operators. However, it is plausible that aggressive network neutrality rules could increase the load on mobile networks, and mobile operators are sure to argue that they will need more spectrum to respond.

With broadcast spectrum already squarely in the sights of the same FCC that is now proposing to impose network neutrality rules, broadcasters should pay close attention to this debate.

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When the U.S. Supreme Court overturned various restrictions on political spending by corporations in the Citizens United decision, it set off a flurry of activity in Washington. Many, including famously the President in his State of the Union address, derided the decision as opening the political process to the corrupting influence of corporate cash. Many in Congress promised a swift legislative response to minimize the impact of the Court’s ruling. Regardless of where you stand on the Court’s decision, I have to say I was disturbed by a number of statements coming out of Capitol Hill afterwards which made clear that the speakers had no understanding of the laws already on the books relating to political advertising on electronic media. Some promised to change the law to what it actually already is (although they apparently didn’t know it), and others pointed out “problems” that would result from the Citizens United ruling that current law already prohibits from occurring.

Grandstanding without basis is, however, a well-established Washington tradition, and I presumed that when legislative staffers got together to draft the legislation, they would quickly figure out that these criticisms and unneeded solutions had been off-base. I apparently was too optimistic. Today, Senator Schumer of New York unveiled the Senate version of the legislation (Senate link not yet available) at a news conference on the steps of the Supreme Court. The President publicly applauded the legislation, and the House has promised hearings within a week on its version of the bill in hopes of enacting it quickly enough to govern this Fall’s elections. The DISCLOSE Act (the acronym for “Democracy Is Strengthened by Casting Light On Spending in Elections”), as its name indicates, requires ample disclosure when corporations or unions spend money on ads relating to a federal political campaign. Unfortunately, it does not stop there, and attempts to then rewrite political advertising laws contained in the Communications Act of 1934 that were not impacted by the Citizens United ruling. These changes appear to be an effort to require broadcasters, as well as cable and satellite operators, to subsidize the ads of not just candidates, but of their national political parties as well, in an effort to make their ad dollars go farther than those of a corporation exercising its rights under Citizens United.

Setting aside the wisdom or constitutionality of that approach, the rub is that the legislation was apparently drafted in such a rush that aspects of it quite literally make no sense. For example, the relevant section of the bill is entitled “TELEVISION MEDIA RATES”, but it then amends the political advertising provisions of the Communications Act that affect both television and radio. Even if the impact on radio was unintended, the matter is further confused by a requirement that the FCC perform random political audits during elections of at least 15 DMAs of various sizes, and that each DMA audit include “each of the 3 largest television broadcast networks, 1 independent television network, 1 cable network, 1 provider of satellite services, and 1 radio network.”

Similarly, the statutory exceptions to the requirement for providing equal time to a candidate’s opponents when the candidate appears on-air would be amended to exclude certain appearances by a candidate’s representative as a triggering event. However, since only the appearance of a candidate can trigger equal time in the first place, creating an exception for appearances by a candidate’s representative serves no purpose.

Further indicating that the bill is premised on a misunderstanding of the current law, the Reasonable Access provisions of the Communications Act would be amended so that instead of FCC licensees being required to provide federal candidates with “reasonable amounts of time,” they would be required to provide “reasonable amounts of time, including reasonable amounts of time purchased at the lowest unit charge ….” The premise of this change appears to be a lack of understanding that all time sold to a candidate in the 45 days before a primary and the 60 days before a general election must be sold at the lowest unit charge for that class of time. The broadcaster has no discretion to charge anything but the lowest unit charge during that time, making this change pointless as well.

A number of other odd provisions in the Senate version of the bill that would significantly impact media companies (and not just broadcasters) is discussed in an Advisory we issued to our clients earlier today. Two of particularly great concern would drastically reduce the lowest unit charge for political advertising while significantly expanding the pool of entities eligible to receive lowest unit charge. It is worth noting that none of these media-oriented provisions appear to be in the House version of the bill, so hopefully they will be excised from the Senate bill before any harm is done. Regardless, broadcasters, as well as cable and satellite providers, need to be vigilant to ensure that these provisions, if not eliminated outright, are at least heavily modified before any final bill emerges.

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One of the benefits of practicing law in a multifaceted law firm is the opportunity to work with lawyers in every area of law. It is always a good learning experience, as you get to explore the often hazy areas of law that dwell at the nexus of multiple practice areas. For example, many communications facilities, and particularly towers, create both environmental and communications law issues. Over the years, we have worked on numerous matters involving RF radiation and bird strike issues at transmission tower sites. Issues like that involve multiple governmental agencies and protocols, and it is great to have a mix of lawyers with the right experience to address the various aspects of such a problem.

I therefore read with interest an Advisory published today by Pillsbury Intellectual Property lawyers Jim Gatto, Cydney Tune, and Jenna Leavitt. While not directed specifically at communications companies, it discusses an IP matter that is certainly relevant to such companies. Like most businesses, those in the communications sector use a lot of off the shelf software. However, communications companies also license a lot of specialized software (e.g., traffic systems for ad placement), and often have to hire coders to adapt the software to their specific needs or to create entirely new software for highly specialized tasks. Sometimes, such entities have new software created because they are not satisfied with what is commercially available.

As a general rule, when you hire a contractor to produce a “work for hire”, the copyright in that work remains with you rather than the contractor. However, in their Advisory with the catchy title Work Made for Hire Doctrine Does Not Generally Apply to Computer Software, the authors note that software does not fall under the types of works considered work for hire. As a result, the copyright in the software would remain with the contractor (even if the parties had agreed it would be a “work for hire”) unless proper contracts are put in place to alter that result. The Advisory goes into detail on how this works and what the implications are, but suffice it to say that many communications companies may be surprised to learn that they don’t hold the copyright in their own software.

This is not just an issue for large companies with complex computer systems and extensive programming. It applies just as readily to a small market radio station that asks a college student to design its website. Without the proper agreements in place, the copyright would remain with the student rather than the radio station. Now might be a good time to consider what software you have had contractors produce for your operation, and whether you know who actually owns it.

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For those tired of having their dinner conversations interrupted by others’ cell phone calls, or watching movies in a theater by the light coming off the screens of nearby texters, technology has provided a solution. Unfortunately it is illegal.

In a recent decision, the FCC fined a company called Phonejammer.com $25,000 for marketing jamming equipment in the U.S. through its website, www.Phonejammer.com. The FCC discovered the violations when its field agents, responding to complaints from a cellphone service provider in Dallas, and a County’s Sheriff’s office in Florida, traced the interference in each case to a local business, and discovered that the proprietor had purchased and was operating a Phonejammer unit acquired through the website. Unfortunately, the FCC’s decision does not indicate the type of businesses that were using the Phonejammer, so it is not clear if they were restaurants, theaters, or just businesses tired of their employees texting their friends all day.

Under the Communications Act, it is illegal to sell jamming equipment because of the harm done, both intentionally and otherwise, to electronic communications. While putting an end to loud cell phone calls in upscale restaurants, or to students texting in class, might sound appealing to managers of such places, the interference to communications cannot easily be confined to just that location. Of course, the problems with jamming are not limited to just unintentional interference to nearby areas. There are similar issues affecting the business location seeking to jam calls. You can imagine what would happen if a patron had a heart attack on the premises and the emergency response was delayed when other patrons’ cell phone calls to 911 couldn’t get through.

Because of these concerns, the U.S. has always strictly prohibited the marketing of jamming devices, and not even police are permitted to use jammers. To appreciate the extent of the government’s concern with jamming, note that jamming equipment is not permitted even in prisons, where smuggled cellphones have caused unrelenting headaches for prison officials, with some inmates continuing to manage criminal enterprises via cell phone while still in prison.

That may be about to change, however. The Senate last year passed S.251, the Safe Prisons Communications Act of 2009, to permit targeted jamming of cell phone service within prisons. While it has not yet been approved by the House of Representatives, support for the idea has been strong. As with most well-intentioned ideas, however, the question is what unintended consequences will be involved, particularly if the jammers are not carefully monitored and regulated. For example, will a highway that passes a prison inevitably be a cellular dead zone for passing commuters, or will the technology, once permitted, be refined to largely eliminate unintended interference (if that is possible)? Again, it may be a minor annoyance to lose a call when driving by a prison, but a serious traffic accident in that area can make reliable cell phone service a life and death issue.

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Last week, we listened to FCC Chairman Julius Genachowski speak at the National Association of Broadcasters convention in Las Vegas. One topic he made a point to discuss was the recent Petition filed by cable and satellite companies arguing that the retransmission consent process is unfair, and asking the government to intervene in private contractual disputes to decide how broadcasters can and cannot negotiate carriage deals, including mandating arbitration of disputes and requiring stations to permit “interim carriage” of their programming while negotiations are ongoing. However, the issue is not stations “yanking” their signals from cable and satellite operators while negotiations drag on, but the failure of operators to secure the right to retransmit the programming when their current retransmission agreement expires, as the Communications Act requires. Indeed, it is the same basic contractual process that cable and satellite operators go through when seeking to extend carriage of non-broadcast networks, except that non-broadcast networks wield nationwide control over access to their programming, whereas broadcasters wield such control only in individual markets.

While the Chairman did say in his speech that the marketplace is the “preferred method” for resolving disputes that come up during negotiations, he also referenced the Petition’s claim that broadcasters were to blame for a rise in cable fees, stating: “Some ask: Is free TV really free when cable rates go up because of retransmission fees?”
However, that rhetorical question is just that — rhetorical. Free TV can only survive as free TV if it is financially able to produce/compete for the programming also sought by non-broadcast networks. The only way that is possible in a 500-channel world is for broadcast stations to have the dual revenue stream (advertising and retransmission fees) enjoyed by their non-broadcast competitors. Only by being financially viable can broadcast stations remain as a free alternative for those wishing to “cut the cable” or “dump the dish.” In fact, as digital multicasting allows stations to deliver multiple free programming streams, free TV becomes a more attractive option and a more effective check on rising cable rates.

Unlike a cable network, a broadcaster can never “yank its signal” from the public when retransmission negotiations falter and what often seems to be missing from the debate is that the public does not “lose” a TV station’s signal when it is dropped by a cable system during a retransmission consent dispute because the signal is available to viewers for free over the air. The law merely prohibits a cable or satellite operator from reselling broadcast programming to viewers if the operator itself is unwilling to pay the going rate for it. In that regard, it is no different than any other business transaction, except that the public can always choose to “avoid the middleman” and obtain the programming directly from the television station (for free) by using an antenna. In this context, and particularly in light of the extreme rarity of program disruptions occurring during retransmission negotiations, cable and satellite operators have a difficult challenge making the case that carriage negotiations with broadcast stations are significantly different than carriage negotiations with cable networks.

The fundamental difference between these negotiations is mostly one of degree — broadcast programming tends to regularly be among the most popular programming, making it more valuable to those wishing to resell it to their subscribers. However, broadcast programming will only remain popular if broadcasters continue to earn the revenues necessary to produce and purchase such programming. A cynical observer might therefore conclude that the desire to prevent broadcasters from receiving a share of subscription revenues commensurate with audience ratings is only partially about reducing cable and satellite systems’ operating costs, and just as much about keeping those revenues out of the hands of those who compete with cable and satellite for ad sales and audience. Systems overpaying for fringe cable networks while underpaying for far more popular broadcast programming harms free local TV without any countervailing benefit (unless you are the owner of a fringe cable network).

Also, the problem with forcing interim carriage during negotiations (aside from the fact that its a violation of the Communications Act) is that the continued availability of a station’s programming for retransmission is not, as cable/satellite operators frequently claim, an unfair “bargaining chip” used by broadcasters in retransmission negotiations — it is the entire point of the negotiation. Requiring that broadcast programming continue to be made available at last year’s rate during negotiations, as the Petition urges, provides cable operators with an obvious incentive to drag out the negotiations as long as possible rather than bring them to a rapid conclusion and begin paying the current rate. Imposing an interim carriage requirement would actually destabilize retransmission negotiations, as broadcasters would be forced to declare the negotiations terminated in order to end the interim carriage and hopefully force the cable/satellite operator back to a serious negotiation. Encouraging cable/satellite operators to delay negotiations long past the expiration of their existing retransmission agreements, and then forcing broadcasters to declare an official end to the negotiations as the only way of ending lower cost interim carriage and forcing a serious offer from the cable/satellite operator, is inherently more likely to result in carriage disruptions than the current process.

Like homeowners in a buyer’s market, cable and satellite operators are no doubt unhappy that market conditions are currently less in their favor compared to the “good old days”, but that hardly makes the market “broken” or “unfair.” Trying to fix something that isn’t broken is a surefire way to break it badly, and it is the public that would be forced to pick up the pieces.

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Blair Levin, who headed the FCC’s Omnibus Broadband Initiative (OBI) for the past year and who was the principle architect of the National Broadband Plan, announced yesterday that he’s leaving the FCC on May 7 to join the Aspen Institute, a large and prestigious think tank.

Levin created the OBI from scratch. He moved in to the FCC, but he hired many new staff. He adopted new procedures for gathering public input, including blogging, “staff workshops”, and what amounted to frequent cold calls to people in business and academia to solicit views and information. The OBI was not your father’s FCC proceeding!

Levin also drew a dauntingly broad scope for the effort, and the OBI staff continued to expand that scope almost until the last minute. The proceeding, and the Plan, addressed broadband technology, deployment, services, adoption, financing, and usage. It asked how broadband affects other institutions and industries, from broadcasting, cable, wireless, and voice services to education, politics, energy and the environment, to name just a few.

Levin’s efforts drew enthusiastic support from some quarters and criticism from others. Some disliked his unorthodox procedural approach and others welcomed it. Some who agreed with his positions questioned his procedures, and vice versa. Whatever one thinks of the procedure or the recommendations, the National Broadband Plan is a remarkable document – comprehensive, polished and beautifully written and presented.

The most polarizing issue was a proposal to reallocate broadcast spectrum for wireless broadband use. I’ve questioned some aspects of the broadband plan, especially whether proponents of more broadband spectrum have really made their case. But I’ve been awed by Levin’s ability to “shake things up” in a town where the status quo can last for decades.

Reactions to Levin’s announcement have been as mixed as views of the National Broadband Plan. I’m disappointed to see him go. Levin is one of the smartest, hardest working, most effective, and best-intentioned people to work at the FCC (and that’s a big club). I disagree with some of his views, but I’ve never doubted his sincerity or the honesty of his motives.

Levin didn’t start the debate over broadcast spectrum – that began in the 1980s – and it won’t end on May 7. But he focused the issue and gave it legs. The country is now having a debate about the future of broadcasting that would have seemed unthinkable a year ago.

I’m an optimist — perhaps a delusional optimist. But if downsizing the nation’s broadcasting service is suddenly thinkable today, maybe real deregulation of broadcasting, including much-needed ownership reform, is also thinkable. The FCC’s Future of Media proceeding essentially asks that question.

I’ve harbored hope that ongoing engagement on “the spectrum issue” will eventually lead to grounds-up rethinking of the broadcast ownership rules. Broadcast regulation needs some serious shaking up, and the constituencies around many of those regulations are honed in the art of the status quo. Levin demonstrated an uncanny ability to reset people’s conceptions about what is and isn’t achievable. Broadcasters could use some of that energy focused on ownership rules which artificially limit their participation in a digital broadband future. He’s leaving, but perhaps someone will learn from Levin how to pull off something as ambitious as repealing anachronistic broadcast regulations. I hope so. And I hope the Aspen Institute knows what it’s getting into!