Matt Daneman

The FCC should have asked Congress to act on effective competition rather than "defy the statute," said a joint brief by NAB, NATOA and the Northern Dakota County (Minnesota) Cable Communications Commission to the U.S. Court of Appeals for the D.C. Circuit in their appeal of the agency's 2015 effective competition order (see 1506020060). But the industry is wrong in its argument the FCC can't terminate any local franchise authority's certification without a party first petitioning for that revocation (see 1603090021), the FCC responded in its own brief.

Alternative distribution method and most-favored-nation language in carriage contracts are emerging as a major point of contention in the FCC's notice of inquiry on carriage hurdles faced by independent and diverse programmers (see 1602180044). The deadline for comments in docket 16-41 was Wednesday, with indie programmers and allies raising ADMs and MFNs as problematic, while Comcast and its NBCUniversal defended them.

The Computer & Communications Industry Association, the Electronic Frontier Foundation, Google, Microsoft, Public Knowledge, several intellectual property law professors, library associations and others supported TVEyes' appeal of a 2015 federal court decision. Several amici curiae briefs were filed Wednesday with the 2nd U.S. Circuit Court of Appeals in TVEyes' appeal of a U.S. District Court decision that the company's archiving function is fair use, but emailing, downloading and date/time searches aren't, and a subsequent injunction (see 1603180007). Fox News Network, which sued TVEyes in 2013, has a June 15 deadline for its brief in the appeal.

Of the 160,000-plus brief comments to the FCC on Charter Communications' proposed takeovers of Bright House Networks and Time Warner Cable, Herring Networks is claiming credit for close to a third due to its campaign targeting its viewers and potential subscribers. Whether those submissions carry any weight is debatable. Attorneys told us such comments are largely whistling in the wind because the FCC mainly looks at substantive statements that add to the analysis, and brief comments almost always are anything but.

The video bundle either has long legs or is on its last legs, speakers said Monday at an FCC-hosted workshop on the state of the video market.

Canadian cable viewers now have increased cable programming choices with a la carte regulations -- which U.S. cable programmers had strongly opposed -- just taking effect there. A similar regulatory approach seems unlikely in the U.S., industry officials said.

One of the biggest challengers of Charter Communications' plans to buy Bright House Networks and Time Warner Cable still hopes for conditions on the deals, amid indications the FCC could be nearing a decision. The Stop Mega Cable coalition said a report in the Wall Street Journal Tuesday night that Chairman Tom Wheeler is close to circulating a draft order on approval of the deals "gloss[es] over the difficult questions that still must be addressed." The group, which has made its case about harms of the deal before the FCC multiple times (see 1603110048, 1602240030 and 1602110045), said New Charter "profoundly threatens competition and choice in the cable-and-broadband marketplace. This FCC and DOJ have made clear that these problems are a top priority and have a track record to back it up. This all suggests that the deal will not be approved without strong, enforceable and long-lasting conditions that protect consumers. The Stop Mega Cable Coalition will continue its efforts to ensure that this deal does not get approved until its many harms are addressed." The FCC declined to comment Wednesday except to say the deals remained under review. The agency's unofficial 180-day shot clock for that review stood Wednesday at 172. Charter also didn't comment. In a statement Wednesday, David Segal, executive director of activist organization Demand Progress, said New Charter approval would mean "Big Cable will see even bigger profits while American consumers will be stuck with higher prices and fewer options. Chairman Wheeler has talked a good game about supporting competition in the broadband market, and whether he rejects the Charter merger will put his words to the test." Free Press President Craig Aaron said much the same when he called Charter/TWC/BHN "a waste" considering the costs involved. "This same money could be spent to build new competitive broadband options for tens of millions of people," he said. "If this deal gets approved, however, these billions won’t help build anything. They’ll merely be a payoff to Time Warner Cable’s shareholders and executives. CEO Rob Marcus will get a $100 million golden parachute for his troubles, while cable customers will be stuck with the tab." Aaron said New Charter and Comcast "would have unprecedented control over our cable and Internet connections," resulting in fewer choices, higher prices and lessened competition. "No conditions can mitigate this merger’s many public interest harms or lower the monthly bills for those who’ll be hit hardest by these rate hikes: people in low-income communities and on the wrong side of the digital divide," he said, adding that Wheeler "needs to block this disastrous deal and get back to protecting the public interest."

Public Knowledge and Comcast are 180 degrees apart on whether Stream TV is a cable service or an over-the-top Internet service. Making that determination could be challenging given the hazy distinction between the two, legal experts told us. The statutes defining the two, and their differences, are vague enough that they could be read to indicate Comcast is in violation or the opposite, said Adam Candeub, director-Intellectual Property, Information & Communications Law Program at Michigan State University.

Spectrum allocation disagreements between the satellite industry and terrestrial wireless providers will be the norm for the foreseeable future, satellite officials said Thursday on a Satellite 2016 panel on the future of the satellite broadcast industry. November's World Radiocommunication Conference deferred several decisions, and frequency allocation issues will likely be on the agenda for WRC-23, said Gary Thatcher, U.S. International Broadcasting Bureau associate director: "I can't imagine everything will be resolved at WRC-19."

Whether the 1993 presumption of no effective competition in local cable markets stays or goes is beside the point because the legal challenge to the FCC's 2015 effective competition order involves ensuring the agency follows the statute through evidence-based findings of effective competition in each franchise area, said NAB, NATOA and Northern Dakota County (Minnesota) Cable Communications Commission in a reply brief filed Tuesday in U.S. Court of Appeals for the D.C. Circuit in their challenge of the agency's June order (see 1506020060). "Rulemakings do not provide a vehicle to rewrite statutes, even if the Commission regards the statutory scheme as anachronistic or inconvenient," the filing said, and any remedy "lies with Congress." Oral argument hasn't been scheduled. Final briefs are due March 29.