On December 4, 2015, the FCC’s integration ban officially sunset.  Repeal of the integration ban for set-top boxes was part of the STELA Reauthorization Act of 2014 (“STELAR”), signed into law by President Obama last December.

The former integration ban had prohibited cable operators from deploying set-top boxes that had decryption technology integrated into the set-top box.  Instead, set-top boxes leased from cable operators were forced to use a separate piece of hardware – a CableCARD – to separate the surfing and security functions in set-top boxes.  The FCC originally adopted the integration ban in 1998 in the hope that it would promote a competitive retail set-top box market.

In conjunction with the sunset of the integration ban, STELAR directed the FCC to establish a “working group of technical experts” to identify and report on downloadable security design options that are not unduly burdensome and that promote competition with respect to the availability of navigation devices.  The FCC’s committee formed to accomplish this, the Downloadable Security Technology Advisory Committee (“DSTAC”), provided its recommendations to the FCC in August 2015.  However, the FCC is still considering how to proceed.

If you have any questions about the sunset of the integration ban, the DSTAC Committee, or set-top boxes in general, please contact Bruce Beard at (314) 394-1535 or bbeard@cinnamonmueller.com.

FAA Adopts New Antenna Structure Marking and Lighting Requirements

On December 4, 2015, the Federal Aviation Administration (“FAA”) released an Advisory Circular amending its tower lighting and marking requirements.  This new Advisory Circular effectively amends the lighting requirements applicable to towers that must be registered in the FCC’s Antenna Structure Registration (“ASR”) system. 

In conjunction with the FAA’s release, the FCC issued a Public Notice on December 7, 2015 highlighting some of the significant changes stemming from the Advisory Circular.

Background.  The FCC and the FAA regulate towers and other antenna structures to prevent towers from becoming a hazard to air travel.  In general, owners of antenna structures over 200 feet above ground level (“AGL”) or situated near airports must receive a no hazard determination from the FAA, register the structure in the FCC’s ASR system, and light and mark the structure consistent with FAA lighting and marking requirements.  The new FAA lighting and marking requirements are intended to reduce the effects of antenna structures and lights on migratory birds.

New Requirements.  The FAA made a number of changes to its lighting and marking requirements.  As highlighted by the FCC, two of the changes are especially pertinent for owners of towers that must be registered in the FCC’s ARS System:

• Effective Immediately:  All new or altered communications towers over 350 feet AGL that use Lighting Styles A, E, and F may not use steady burning L-810 side lights.  These structures must use only flashing obstruction lights. 

• Effective September 15, 2016:  All new or altered communications towers between 151 and 350 feet AGL that use Lighting Styles A, E, and F must use flashing L-810 lights and may not use L-810 steady lights.

Importantly, prior to changing the lighting on an existing antenna structure, the tower owner must(i) request a New No Hazard Determination from the FAA and (ii) then must electronically file FCC Form 854 to amend its antenna structure registration to reflect the new lighting. 

If you have questions about the antenna structure requirements, please contact Scott Friedman or Jake Baldwin at (312) 372-3930 or sfriedman@cinnamonmueller.com or jbaldwin@cinnamonmueller.com.

Copyright Monitoring Firm Wins Victory Over ISP in Federal District Court

On December 1, 2015, a Federal District Court Judge for the Eastern District of Virginia released an Opinion finding that Cox Communications was not protected by the Digital Millennium Copyright Act’s (“DMCA”) “safe harbor” provisions in an ongoing lawsuit originally filed in 2014 by two music publishers.  In their lawsuit, the music publishers, relying on data by Rightscorp, a copyright monitoring company, alleged that Cox, as an Internet Service Provider (“ISP”), repeatedly turned a blind eye to its subscribers’ illegal downloading activity and failed to terminate the accounts of repeat infringers. 

The Case is now expected to move toward trial to determine Cox’s liability for the copyright infringement of its subscribers.

Background.  For ISPs, the DMCA is an important federal law.  The DMCA includes the Online Copyright Infringement Liability Limitation Act, which offers ISPs significant protection from copyright infringement claims.  ISPs are exposed to infringement claims arising from copyrighted material illegally placed on their network by a user.  The DMCA establishes procedures through which the ISP can obtain immunity from these infringement claims.

To obtain the protection provided by the DMCA, cable operators must fulfill several compliance obligations, including registering an agent to receive infringement complaints, adopting and posting a repeat infringer policy, and responding to infringement complaints appropriately. 

According to the 2014 complaint filed by the two music publishers, BMG Rights Management and Round Hill Music, Cox failed to terminate the accounts of repeat infringers.  The plaintiff music publishers alleged that 200,000 Cox subscribers committed seven million separate acts of copyright infringement and Cox had knowledge of these repeated infringements but continued to provide Internet access service to these users “without consequence.”

The questions raised by this lawsuit are:  (i) at what point do ISPs have to shut down the accounts of subscribers that repeatedly violate copyright laws; and (ii) are the notices sent by the music publishers’ partner Rightscorp sufficient to establish that a Cox user is a repeat infringer? Cox, for instance, maintains a Graduated Response Program to address infringement claims, under which the company warns subscribers that they have received notice of illegal activity from their IP address and directs them to contact Cox’s Customer Safety Department.  This approach to addressing repeat infringers is more flexible than the Copyright Alert System (i.e., the Six Strike Program) adopted by other major ISPs.  According to the music companies in this lawsuit, Cox’s Graduated Response policy “precludes Cox from relying on the safe harbor protections of the DMCA” because “Cox subscribers do not face any realistic threat of account termination.”

Ruling Against Cox.  The Court held that Cox did not “reasonably implement” its own repeat infringer policy.  Rightscorp, the plaintiffs’ agent, provided data to support the plaintiffs’ claims that Cox failed to accept, address, and forward to its users copyright infringement notices from Rightscorp.  The Court found that Cox failed to terminate access of repeat infringers in accordance with the DMCA. 

Cox argued that termination of an account should be ordered by a Court, and should not be the legal obligation of the ISP.  The Court disagreed, explaining that it is the responsibility of the ISP to terminate accounts of repeat infringers where appropriate.  Consequently, because the Court found Cox did not terminate the accounts, it ruled that Cox is not eligible to invoke the protections of the DMCA safe harbor provisions as the case moves toward trial. 

This judgment serves as an important reminder to ISPs to create and follow a repeat infringer policy.  The DMCA’s safe harbor provisions are designed to protect ISPs from monetary liability for copyright infringement by users, but are only available to ISPs who comply with the requirements set forth in the Act.

If you have questions about repeat infringer policies or DMCA compliance, please contact Jake Baldwin or Madeleine Goldfarb at (312) 372-3930 or jbaldwin@cinnamonmueller.com or mgoldfarb@cinnamonmueller.com.