Matt Daneman

The Supreme Court is to meet Oct. 30 to decide whether to take up a pair of related DirecTV/Dish Network legal fights on sales taxes on their services versus how cable subscribers are taxed. But whether the justices opt to add the linked cases to their 2015-2016 docket is difficult to say, legal scholars told us.

Since Tennis Channel hasn't shown what new evidence it has or explained why it didn't present that evidence previously, the programmer's efforts to reopen its discrimination complaint against Comcast should be denied, the FCC said in a brief filed Wednesday in the U.S. Court of Appeals for the D.C. Circuit. Tennis Channel's original 2010 carriage complaint initially was held up by the FCC, but then vacated by the D.C. Circuit. After Tennis Channel re-petitioned the FCC, the agency in January issued an order denying both the original complaint and the re-petition (see 1501280059), and Tennis Channel in response petitioned for to vacate that order and remand the case. "Although the FCC claims that the Comcast decision left it no other choice, nothing in that opinion permits, let alone requires, the FCC to turn a blind eye to swaths of record evidence bearing directly on what have now become the dispositive factual issues in this case," Tennis Channel said in its own brief filed Sept. 21. The D.C. Circuit reversed the agency "because the evidence the agency relied upon was insufficient to support its decision. The Court did not -- and, under basic principles of administrative law, could not -- make definitive findings on factual issues the FCC never considered." However, in its brief, the FCC said it "faithfully adhered" to the appellate court's decision when it made its January decision, and "nothing in the Court's decision suggests that the Court anticipated or intended for the FCC to conduct further proceedings on remand." Meanwhile, the agency said, Tennis Channel "already received a full and fair opportunity to prosecute its program-carriage complaint, and it has not shown that the FCC in any way misled it or prevented it from submitting any relevant evidence. The interest in bringing this proceeding to a close outweighs any interest in giving Tennis Channel a second opportunity to litigate its complaint." No oral argument was scheduled in the petition, according to court paperwork.

The Department of Transportation's plan to test for interference between LightSquared's proposed wireless broadband network and GPS devices has a variety of backers and one big critic, said a series of DOT filings posted Tuesday. The comment period on the DOT plan closed Friday.

Nearly every small and/or new multichannel video programming distributor has difficulty obtaining reasonably priced video programming, with a large minority of them seeing retransmission consent fees more than doubling in recent years, according to a 2015 video competition survey put out Tuesday by NTCA and Incompas, the recently renamed Comptel (see 1510190061). The survey is from Networks for Competition and Choice -- made up of Incompas, ITTA, NTCA and Public Knowledge -- which are jointly pushing for video rules changes. The groups worked together to oppose now-abandoned Comcast/Time Warner Cable, and now are focusing on the video marketplace, members told us. "It sort of grew out of everyone noticing we're all saying the same thing and experiencing the same difficulties," said Jill Canfield, NTCA vice president-legal and industry.

The switch to the new FCC Electronic Comment Filing System (ECFS) (see 1510090048) should be in early December, with a "hard" cutover rather than a soft one because of the difficulty in keeping the old and new systems synched, said Stephen Vong, systems modernization adviser to FCC Chief Information Officer David Bray. A beta version of ECFS was demonstrated Monday to FCBA members. The beta has been changed markedly in recent months after feedback from users, said Jason Rademacher of Cooley, co-chairman of the FCBA Access to Government Committee.

The Department of Transportation's plans to test for interference between LightSquared's proposed wireless broadband network and GPS devices is so inherently flawed that there is no "rationale for proceeding," Roberson and Associates President Dennis Roberson said Friday. That day at 11:59 p.m. was DOT's deadline for accepting public comments on its draft test plan for GPS adjacent band compatibility. And at a news conference Friday, Roberson -- in the midst of conducting its own, LightSquared-sponsored testing for possible interference between LightSquared broadband uplink and downlink signals and neighboring spectrum GPS signals -- had numerous critiques of the DOT plan. DOT didn't comment.

While the Enforcement Bureau shot down Game Show Network's retiering complaint against Cablevision, it remains to be seen how Chief Administrative Law Judge Richard Sippel takes that into account in his own ruling. Sippel typically doesn't automatically follow bureau recommendations, but it's hard to say how much weight he might give the GSN/Cablevision comments, a lawyer with ALJ experience told us.

From extending its voluntary concessions for several more years to "synthetic bundles" of Charter Communications broadband with other providers' cable services, opponents of Charter's purchase of Bright House Networks and Time Warner Cable had plenty of suggestions on how to make the deal more palatable. The comment deadline on the FCC review was Tuesday, with replies due Nov. 2.

Any worries about price regulation under the Title II net neutrality order are "somewhat overblown," FTC General Counsel Jonathan Nuechterlein said Friday at The Future of Video Competition and Regulation conference. ISPs are barely any more regulated under Title II than they were prior, when there were other theoretical regulatory routes for price controls, he said. "The question of Title II or not Title II is not that relevant," he said at the event put on by the Duke University School of Law Center for Innovation Policy. FCC General Counsel Jonathan Sallet agreed Title II "doesn't regulate and won't regulate retail rates," much the same way it wasn't used to regulate voice pricing.

The FCC net neutrality order was seemingly the stimulus for an agreement ending the long-running Cogent/Time Warner Cable interconnection feud, and could motivate other companies to sign similar agreements, Cogent CEO Dave Schaeffer said Thursday, after the companies announced signing an interconnection agreement for their public IP networks. "Talks had been going on for a very long time, but they were going nowhere until there was a legal framework that had penalties for violating the open Internet order," Schaeffer told us. He said in past interviews that TWC was among those ISPs the Internet backbone company was considering filing a net neutrality complaint over (see 1505010033).