Some of our recent significant engagements include:
BROADBAND AND CABLE TELEVISION
Net Neutrality / Open Internet
We represented Comcast in the FCC’s proceeding to reclassify broadband Internet access service as a Title I information service and to adopt a new framework for ensuring open Internet protections, and we continue to advise Comcast on potential changes to the FCC’s regulation of broadband. We also represent Comcast concerning the net neutrality policies and legislation under consideration and enacted in numerous states in the wake of the FCC’s rulemaking. Our work in this area has included drafting comments and other pleadings, analyzing and advising on the implications of executive orders and draft legislation, drafting talking points, hearing testimony, and memoranda, and working closely with state teams and other industry stakeholders in assessing litigation prospects.
Broadband Infrastructure and Deployment
We represent Comcast on various regulatory and legislative initiatives related to encouraging the deployment of broadband infrastructure. Our work has involved identification of strategic objectives, drafting comments and reply comments for FCC rulemakings, analyzing legislation (including various coronavirus relief packages and the bipartisan broadband infrastructure bill) and deployment grant requirements, monitoring litigation developments, and supporting Comcast’s efforts on the FCC’s Broadband Deployment Advisory Committee and in other venues.
Broadband Affordability and Adoption
We advise Comcast regarding participation in new multibillion-dollar federal broadband assistance programs, including the FCC’s Emergency Broadband Benefit Program, Affordable Connectivity Program, and Emergency Connectivity Fund. Our work in this area includes preparing regulatory filings required for participation in these programs; drafting comments regarding implementation of rules for these programs; and analysis of federal legislation regarding new broadband affordability programs.
Franchising/Section 621 Rulemaking
We represented Comcast and NCTA – The Internet & Television Association in a major FCC rulemaking relating to state and local regulation of franchised cable systems in which the FCC affirmed Cable Act restrictions on states and localities demanding non-monetary contributions (such as courtesy services and construction of specialized institutional networks) over and above the franchise fees they collect from cable operators, as well as prohibitions on state/local taxation and regulation of broadband and other non-cable services delivered over “mixed-use” franchised cable systems. We have also assisted with implementation of the order at the state and local levels and advised Comcast and NCTA on a wide variety of litigation and regulatory proceedings relating to the order. In addition, we are representing NBCUniversal in federal litigation brought by an Illinois city seeking to impose cable franchise fees and other regulatory requirements on NBCUniversal’s over-the-top streaming service, Peacock, as well as Netflix, Hulu, Disney+, HBO Max, and other streaming services.
We have represented Comcast in several proceedings before the California Public Utilities Commission (CPUC), including: a proceeding involving the CPUC’s effort to require that broadband providers supply their own backup power when the electric grid is unavailable, in which the CPUC adopted a solution that was significantly narrower than the plan it originally proposed; a multi-phase CPUC rulemaking proceeding to determine how best to accelerate broadband deployment and adoption in California, including how to allocate significant government subsidies; and a complaint brought by the Town of Paradise to underground Comcast’s facilities.
Comcast-NBCUniversal Transactions and Compliance, and Time Warner Cable Acquisition
We represented Comcast Corporation on the regulatory aspects of its $30 billion joint venture with General Electric to create NBCUniversal, LLC, in which Comcast held 51%. We also served as FCC regulatory counsel to Comcast in connection with its subsequent acquisition in 2013 of the remaining 49% common equity stake in NBCUniversal from GE. The firm has advised on the significant regulatory compliance aspects associated with the FCC Order approving the transaction. Additionally, we led the effort to secure FCC regulatory approval for Comcast’s approximately $45.2 billion proposed deal to acquire Time Warner Cable Inc., announced in 2014.
Program Carriage Victories
Willkie represented Comcast Corporation in a program carriage rulemaking at the FCC and several program carriage litigations. In each case, the positions and strategy we developed resulted in successful outcomes. Three different federal circuit courts of appeal agreed with Willkie’s advocacy—in reversing an FCC order in the Tennis Channel matter, rejecting an FCC program carriage rule as unlawful, and upholding an FCC order in the WealthTV matter.
CommScope: Representation Concerning Regulation of Consumer Video and Broadband Equipment
We represent CommScope and other equipment manufacturers in various regulatory and legislative proceedings relating to the regulation of cable set-top boxes, cable modems, and other consumer broadband equipment and provide strategic advice regarding regulatory compliance and business-planning issues surrounding such equipment. We also advise on trade policies affecting the manufacture and importation of devices, including recent China-related sanctions. We also have played a key role for the cable industry in pending federal rulemakings on energy conservation, encryption, and accessibility requirements for cable equipment.
Spectrum Law and Policy
Willkie provides strategic advice to clients on a wide range of spectrum policy issues before the FCC and Congress. This work includes advising clients on all aspects of the allocation and use of spectrum critical to the future of both broadband deployment and video distribution, including the groundbreaking Citizens Broadband Radio Service, C-Band, and broadcast incentive auctions and related transitions, as well as the FCC’s rulemaking to make frequencies in the 6 GHz band available for innovative new unlicensed uses. In this regard, we have drafted pleadings and other advocacy documents in FCC rulemaking proceedings and before federal courts of appeals, prepared testimony for clients appearing at congressional hearings, and counseled clients on the regulatory and commercial implications of their spectrum-based services and products. We also have extensive experience analyzing spectrum aggregation limits and advising on compliance with the FCC’s anti-collusion requirements for spectrum auctions.
REGULATORY TRANSACTIONAL / U.S. MARKET ENTRY
We advise long-established service providers, new entrants, investment funds, debtors, and creditors regarding FCC licensing, ownership regulation, and communications and media competition policy, including in the following areas: (1) the legal requirements and process for obtaining FCC licenses, including through spectrum auctions, assigning FCC licenses, transferring control of FCC licensees, and structuring transactions to meet or minimize the effect of these legal requirements; (2) FCC requirements for prior approval regarding the transfer of control of debtors holding FCC licenses in the context of bankruptcies; (3) attribution of ownership of FCC licenses and structuring transactions to avoid or minimize such attribution; (4) FCC ex ante ownership restrictions and reporting requirements, and related competition policy matters; (5) FCC and U.S. security agencies’ (i.e., Team Telecom) requirements for foreign ownership of certain FCC licensees and service providers; (6) due diligence in transactions involving targets that are subject to FCC regulation; and (7) regulatory compliance and business issues associated with entry to the U.S. mobile wireless, telecommunications, and media markets. We also represent these companies in transaction reviews before state public utilities commissions.
ForgeLight/Wade Davis Investment in Univision
We advised ForgeLight and its principal Wade Davis with respect to FCC and Team Telecom review of their investment in Univision in 2020 and the subsequent restructuring of Univision.
América Móvil Sale of TracFone
We are advising América Móvil and its subsidiary TracFone, the largest prepaid wireless provider in the U.S., regarding FCC and state public utilities commission approvals in connection with the sale of TracFone to Verizon Communications.
Level 3 Communications/CenturyLink
We represented Level 3 Communications before the FCC in connection with the transaction under which CenturyLink (now Lumen) acquired Level 3 in a cash and stock transaction valued at approximately $34 billion.
CenturyLink Note Offerings and Debt Refinancing
Willkie has represented CenturyLink (now Lumen) in the offering of Level 3 Financing senior secured notes and the refinancing of Level 3’s senior secured credit agreement, for which the Communications & Media Department obtained state public utilities commission approvals.
We are advising Loral Space & Communications Inc. regarding FCC and Team Telecom review of the proposed restructuring of Telesat Canada.
SpectrumCo’s Sale of Wireless Licenses to Verizon
We represented Comcast Corporation and SpectrumCo (a joint venture of Comcast, Time Warner Cable, and BrightHouse) in the sale of AWS spectrum to Verizon Wireless. The transaction also included cross-marketing agreements between the companies and the formation of a technology development joint venture. The legal and regulatory approvals for the transaction were obtained from the Justice Department and the Federal Communications Commission in August 2012.
Best Buy’s Strategic Wholesale Relationship with Clearwire
We assisted Best Buy Co., Inc. in the formation of a strategic wholesale relationship between its subsidiary Best Buy Connect, LLC and Clearwire Corporation, making Best Buy the first major wholesaler outside of Clearwire’s strategic investors to join Clearwire’s 4G “Network of Networks” and offer service under the Best Buy name.
We advise NBCUniversal on a host of FCC-related issues involving its NBC and Telemundo broadcast stations, including ownership, license transfer, spectrum, and other regulatory issues. We also advise and represent the client in connection with various broadcast-related conditions imposed by the FCC as part of the Comcast NBCUniversal transaction.
In addition, we assist NBCUniversal in retransmission consent proceedings and negotiations, and advise the client on a wide range of issues involving affiliate stations and MVPD and OVD licensing issues.
Representation of Competitive Local Exchange Carriers Concerning Local Competition and Related Issues
We have served as FCC counsel for the largest and most prominent competitive local exchange carriers (CLECs) in the country on rulemakings, adjudications, forbearance proceedings, merger review proceedings, and tariff review proceedings. Among other representations, we have advised these companies in FCC rulemakings concerning the IP technology transition, VoIP interconnection, business data services reform, intercarrier compensation and universal service reform, and broadband policy. We also advise these companies on compliance with FCC regulations and in challenges to FCC decisions before federal appeals courts.
The firm’s related litigation services have involved a vast array of cutting-edge issues and developments in the communications and media industries, including representing clients in:
- Litigations, arbitrations, and negotiations relating to programming licenses and renewals, for film, cable television networks, and regional sports networks, involving major cable television operators, satellite service providers, and online video distributors.
- Litigations, arbitrations, and negotiations relating to program carriage discrimination complaints, including representation of Comcast in three separate complaints brought by beIN Sports involving negotiations for potential beIN network carriage agreement renewals, each of which the FCC dismissed based on our advocacy.
- Retransmission consent negotiations and disputes involving broadcast programming, including representation of Comcast in litigation pending in federal district court in New York related to Comcast’s carriage agreements with Mission Broadcasting and Nexstar.
- Adjudicatory and complaint proceedings before the FCC, including Comcast’s petition for a declaratory ruling that Nexstar is attributed with WPIX, a TV station owned by a third party in the New York City market, in violation of the FCC’s national broadcast ownership cap and FCC conditions adopted as part of the order approving Nexstar’s acquisition of Tribune Media.
- Appeals of FCC rules and regulations, including representation of Comcast in broadband associations’ challenge to California’s net neutrality law (currently on appeal to the U.S. Court of Appeals for the Ninth Circuit, and also proceeding in federal district court); representation of NCTA – The Internet & Television Association as intervenor in support of the FCC in fixed wireless incumbents’ appeal of the FCC’s 6 GHz Order before the U.S. Court of Appeals for the D.C. Circuit; and representation of Comcast and NCTA in defending against consolidated challenges before the U.S. Court of Appeals for the Sixth Circuit to the FCC’s Section 621 Order relating to state and local regulation of franchised cable systems, key elements of which were upheld in May 2021.
- Complex commercial litigation.