Rather than another "failed experiment" memoranda of understanding such as on the order on Comcast's buying control of NBCUniversal, the FCC should ensure Charter Communications' buys of Bright House Networks and Time Warner Cable safeguard independent sports programmers through "meaningful, effective, practical means," beIN Sports and the Sports Fan Coalition (SFC) told Commissioner Mignon Clyburn Chief of Staff David Grossman, said an ex parte filing Friday in docket 15-149. BeIN and SFC said at the meeting they cited some of the competitive dangers Charter/TWC/BHN poses by its ability to force below-market terms on independent programing providers or to restrict distribution of their content on competing over-the-top platforms. They also said in the case of sports programming, even if an independent such as beIN can match bids of cable-owned sports programmers for distribution rights, the cable-owned programmer still has upper hand through being able to offer better distribution and promotion of its own programming service. Charter didn't comment Friday.

The injunction against TVEyes' blocking subscribers from emailing, downloading or running date-time searches on TV clips should be vacated, it said. Those functions are equally fair use as the functions that are permitted -- namely searching, viewing and archiving -- the media monitoring service said in a brief filed Thursday in the 2nd U.S. Circuit Court of Appeals. The U.S. District Court in Manhattan was wrong when, in crafting its injunction, it asked which TVEyes research functions were an integral part of its service, because that test has no basis in the Copyright Act or court precedent, the company said. TVEyes also can't be held liable for its subscribers' emailing, downloading and date/time searches, and the court's injunction improperly failed to apply the four-factor test for issuing an injunction set up in the Supreme Court's 2006 eBay v. MercExchange decision, the company said. Fox News Network sued TVEyes in 2013, alleging copyright infringement. The Manhattan court issued an order in 2015 that the company's archiving function is fair use but that emailing, downloading and date/time searches are not, and subsequently issued an injunction. Those functions are in fact fair use since they're transformative uses, letting subscribers "fulfill purposes that differ from the original news and entertainment purposes of the broadcasts," and there's no evidence those functions harm the market for those works, TVEyes said. Even if an injunction could properly be issued in the case, the company said, the Manhattan court's injunction is overly broad because "it extends to any and all conceivable future Fox programming" and injunctions should be strictly for the specific legal violations.

California residents living in a home where Comcast provided cable, Internet and TV service aren't themselves customers and thus can't sue for allowing information about them to be accessed by third parties, the company said in a reply filed Thursday U.S. District Court in Sacramento in support of its motion to dismiss or compel arbitration. Laurie Montoya and others sued Comcast in 2015 after hackers allegedly used their residence's IP address to place VoIP calls that resulted in Sheriff's Department, ambulance and SWAT team responses to the Montoya home and in money taken from one of the Montoyas' PayPal accounts. Comcast said in its reply that the relevant statutes "make no sense if the word ‘subscriber’ is redefined to include others who may use the services." While the Montoyas "lived in a house where some other person is the subscriber who purchased Comcast services ... the statutes do not apply to all roommates and guests of Comcast's subscribers," the company said, saying the claims must be dismissed. Even if the plaintiffs were entitled to the same benefits as subscribers, Comcast said, "equity requires they be treated the same as Comcast's actual subscribers and ... should be required to arbitrate," the company said. The Comcast subscriber is not part of the suit. The plaintiffs didn't comment Friday.

Representatives of AT&T, Comcast, MPAA and NCTA met with FCC Media Bureau Chief Bill Lake, bureau staff and FCC Chief Technologist Scott Jordan Tuesday at the bureau's request to discuss set-top box proposals, said an ex parte filing in docket 16-42 Thursday. The officials discussed copyright licensing agreements, the timing and nature of possible set-top standards, privacy, and whether the commission is contemplating licenses, agreements “or other means of enforcement,” the ex parte said. It was filed for a lawyer for NCTA.

The cord-cutting trend dipped in Q4, with 17.5 percent of people without a pay-TV service reporting they cut cable in the past 12 months, compared with more than 19 percent answering that way in Q3, a Digitalsmiths report released Thursday said. When asked if they planned to make a change in their multichannel video programming distributor in the next 12 months, 5.6 percent of respondents said they plan to cut altogether, 6.6 percent said they plan to change providers, 2.4 percent said they plan to go with an online app or rental service, Digitalsmiths said. All those numbers were up from the Q4 2013 and Q4 2012 responses, Digitalsmiths said. Nearly 74 percent of respondents said they were interested in a la carte video packages, which is down for the fourth quarter in a row, Digitalsmiths said. The most-desired channels for stand-alone service are Discovery Channel, ABC, CBS, History and NBC, and the average price respondents want to pay for a la carte service is $40.56 per month, or $3.63 per channel per month, it said. Digitalsmiths said the growth of over-the-top offerings and skinny bundle packages is likely leading to the declining interest in a la carte MVPD offerings, though those interested still are a sizable population. Today, it said, "almost all major Pay-TV providers have a package with 50-70 channels for roughly $49 or less." The survey, done by a third party, was of 3,120 adult consumers across the U.S. and Canada.

Seven Washington state communities can't regulate Comcast basic cable rates because the company is subject to effective competition there, the FCC Media Bureau said in an order Thursday. It rejected opposition from the cities of Burien and Kent that direct broadcast satellite doesn't affect the rates of cable providers and the FCC should look at its policies on DBS competition, saying the cities are ignoring both statute and years of agency precedent. It also rejected the cities' arguments that DBS providers aren't comparable to cable since they lack public, educational and governmental access channels, saying the comparable programming test of competing providers doesn't include a PEG requirement. The bureau rejected the cities' argument that the Comcast petition failed to demonstrate it was in the public interest, saying a public interest showing isn't required. The order covers roughly 120,000 households, with the largest communities being Federal Way and Kent.

Looking to shore up its argument that New Charter won't have any reason not to throttle over-the-top competition, Dish Network submitted additional broadband customer churn data analysis Wednesday to FCC docket 15-149. The filing supplemented a Charter/Time Warner Cable/Bright House Networks churn rate analysis in which William Zarakas of economics consulting firm Brattle Group argued the companies didn't suffer worse churn rates due to past Netflix throttling (see 1601200043). New regression analyses reinforce and strengthen that finding, Zarakas said in the new, heavily redacted Dish filing. Charter has said online video distributors are a complement to its broadband business, which flies in the face of the Dish argument, and also noted Netflix supports Charter/TWC/BHN.

AT&T and Univision were to continue the cease-fire in their retransmission consent dispute, with access to the Univision network and some other stations -- which was brought back onto U-verse for last week's Democratic presidential debate (see 1603080045) -- extended to 1 a.m. Thursday, Univision said in a news release Tuesday. Univision's other remaining networks would remain unavailable, it said.

American TV Alliance repeated its case the FCC can and should change the rules for good-faith negotiation of retransmission consent, submitting a 292-page filing Wednesday in docket 15-216 that includes a collection of submissions from members and ATVA arguments on the FCC's authority to make changes and reasons it should back ATVA ideas for such changes. Pointing to the authority given the FCC in the Communications Act and under the Satellite Television Extension and Localism Act Reauthorization Act of 2014, and related Copyright Act provisions, ATVA said none of its proposals for good-faith rules changes (see 1512010052) violate federal statute. In its filing, ATVA explained some of its proposed changes, saying broadcasters are inaccurately characterizing its proposed prohibition of blocking the transmission of content to certain viewers that they otherwise make broadly available for free online. It also said there's no First Amendment barrier to rules "banning such anticompetitive and anti-consumer conduct." ATVA similarly said there are no Copyright Act barriers because the proposed rule wouldn't force broadcasters to license their programming, but would apply only to programming already licensed or arranged to be distributed over the Internet. The ATVA filing includes past filings by the American Cable Association, Mediacom and Time Warner Cable.

Alternative distribution method (ADM) clauses in carriage agreements are anticompetitive, hurt the video market and require FCC action "to negate the harmful effects [on] competition and diversity," Ride TV CEO Michael Fletcher said in a filing Monday in docket 15-149. Ride said independent networks like it need relief from practices like ADMs because multichannel video programming distributors "have no right to restrict programmers from distributing their programming via all distribution methods so long as the programmer honors the 'most favored nations' clause of their agreement." Ride said it's not carried on Bright House Networks, Charter Communications or Time Warner Cable systems, but it supports conditions on Charter/TWC/BHN as called for by Herring Networks (see 1603090028).