The FCC's planned Monday release of Video Programming Confidential Information in the Comcast/Time Warner Cable and AT&T/DirecTV merger proceedings was halted by an administrative stay issued Friday by the U.S. Court of Appeals for the D.C. Circuit. The stay followed an emergency motion filed by a group of content companies that includes Disney, Viacom and Univision Thursday. The stay is "to give the court sufficient opportunity to consider the merits of the motion for stay and should not be construed in any way as a ruling on the merits of that motion,” said the order. But the granting of the administrative stay is an indication that the court thinks the matter is serious enough that it needs time and a complete record to consider it, an attorney who represents programmers told us. The FCC is to respond by noon Monday, and the content companies are to respond on Wednesday, the order says.
A video industry shift toward over-the-top delivery could lead to unbundling of content and a decline in revenue for video providers, said Needham & Co. analyst Laura Martin at a Technology Policy Institute panel Friday. CBS's announced plan to offer OTT content (see 1410160058) will cause it to lose ad revenue and some of the money it receives as part of cable bundle, in exchange for the likely smaller amount of money customers will pay to watch its content online, Martin said. “It's a shitty trade.”
A draft NPRM to change the definition of a multichannel video programming distributor to include linear over-the-top video providers will receive broad bipartisan and “bi-industry” support, said FCC Special Counsel for External Affairs Gigi Sohn. The item appeals to broadcasters and cable providers because it will allow more retransmission consent deals and more options for cable companies to provide content, she told the Practising Law Institute's Communications Law in the Digital Age seminar Thursday. Sohn, NAB Executive Vice President Strategic Planning Rick Kaplan, Paul Hastings attorney Sherrese Smith and other panelists also discussed net neutrality, the commission's new rules for joint sales agreements, and the incentive auction.
Content companies seeking to prevent participants in the Comcast/Time Warner Cable and AT&T/DirecTV proceedings from having access to their programming contracts on Thursday filed a new emergency request for a stay pending judicial review and a petition for review with the U.S. Court of Appeals for the D.C. Circuit. The FCC is set to allow access on Monday to the programming documents to outside counsel who have followed procedures laid out in a series of protective orders (see 1411120029). The content companies, which include CBS, Disney, Scripps Networks and Univision, want the court to block the commission from doing so. “The Court should issue a stay to allow careful review of what the FCC has rushed through its gates,” the emergency motion said. The FCC, AT&T and Comcast didn't comment. However, Comcast filed a motion to intervene in the case late Thursday, arguing that any stay would further delay the merger review. "Petitioners' actions leading up to the release of the Commission Order have already caused undue delay in the transaction review proceeding," said Comcast's motion.
A court-ordered emergency stay preventing the FCC from releasing confidential programming and retransmission consent contract information to participants in the AT&T/DirecTV and Comcast/Time Warner transaction proceedings is likely to be granted by Monday, several communications attorneys involved in the proceedings told us. In an order issued Nov. 10 rejecting two applications for review and two emergency stay requests (see 1411070048) from a group of content companies that includes 21st Century Fox, CBS, Viacom and Disney, the FCC established Monday, Nov. 17 as the day it would release the video programming confidential information (VPCI) to outside counsel who have filed for confidential access.
Discussions with Canada and Mexico to coordinate spectrum use in advance of the incentive auction could lead to a regionally harmonized “band plan for the Americas” similar to what was tried with the 700 MHz band plan, said Incentive Auction Task Force Chairman Gary Epstein on a panel at the Americas Spectrum Management Conference Wednesday. Though wireless industry officials at the discussion endorsed a regional or global 600 MHz band plan as a positive, NAB Executive Vice President-Strategic Planning Rick Kaplan said it would be unlikely to succeed because the FCC's proposed variable band plan would be unattractive internationally. Because the plan involves “broadcast and wireless sharing the same yard,” it will be a hard sell outside the U.S., he said. “It's a bad plan.”
The FCC TV incentive auction order’s use of TVStudy repacking software and lack of protection for broadcaster coverage areas should be vacated, NAB and Sinclair said in a joint brief to the U.S Court of Appeals for the D.C. Circuit. Two other aspects of the order, the timeframe for repacked stations to move to their new assigned channel and the definition of competition among TV stations, are attacked in the brief by Sinclair alone, without NAB participation.
The Media Bureau “usurped” FCC authority by allowing access to video programming confidential information (VPCI) in the Comcast/Time Warner Cable and AT&T/DirecTV deals before an application for review against doing so had been considered by the full commission, said a group of programmers in an application for review and emergency stay request filed Friday. The content companies, which include CBS, Disney and Viacom, had filed an application for review and a stay request against the Media Bureau’s protective order for documents in the transaction proceedings. Friday's additional filings challenge the bureau’s Tuesday modification of that protective order and announcement that most of the programmer’s objections were being dismissed (see 1411050050).
Aereo is cutting staff in its Boston and New York offices, Vice President-Communications and Government Relations Virginia Lam emailed us Thursday. “We are continuing to conserve resources while we chart our path,” Lam said. “This was a difficult, but necessary step in order to preserve the company.” In a letter to the company's Boston employees obtained by website Betaboston, Aereo CEO Chet Kanojia said the company has been unable to obtain outside investments since the recent nationwide injunction was granted against it by U.S. District Court in Manhattan Judge Alison Nathan. Lam said the company is looking for a way to continue. FCC Chairman Tom Wheeler and other commission officials have recently mentioned Aereo extensively in connection with a draft NPRM on classifying linear over-the-top video services as multichannel video programming distributors. The broadcasters' case against Aereo in New York has yet to be tried on the merits, and would likely continue in some form even if Aereo were to go out of business, Fletcher Heald attorneys Harry Cole and Kevin Goldberg told us. Though not involved in the case, Cole and Goldberg follow it for the firm's blog. Though broadcasters could pursue their case even if Aereo were to go out of business, the sort of default judgments that likely would occur with a defunct defendant are unlikely to further the broadcasters' legal agenda, said Cole and Goldberg. Fletcher Heald represents broadcasters, though not in any cases involving Aereo. Lam declined to comment further on the scope of the layoffs.
A draft rulemaking notice seeking comment on allowing broadcasters to communicate contest rule information online rather than over-the-air owes its presence on the FCC's November agenda partly to a June blog post by FCC Commissioner Michael O'Rielly, several broadcast attorneys and an FCC official told us Thursday. Proposed in a petition from Entercom Executive Vice President Jack Donlevie in 2012, the item has languished since, despite receiving no opposition. “Small changes to our Contest Rule could improve consumer notice and options for broadcaster compliance,” O'Rielly said in the post endorsing the rule change. The item is set for a vote at the Nov. 21 open meeting.