Both sides in a dispute involving alleged violations of good faith retransmission consent rules between Nexstar and Hawaiian Telecom want the full FCC to overturn aspects of a Media Bureau $720,000 notice of apparent liability issued against Nexstar last month. In the NAL, the bureau agreed with Hawaiian Telecom that Nexstar violated FCC rules by proposing renewal terms that would have barred HT from filing complaints with the FCC, but rejected as being outside the FCC’s authority HT’s initial claims that the broadcaster also violated the rules by refusing to extend an existing retrans agreement. The FCC can’t order a broadcaster to grant retransmission consent, the NAL said. “The Bureau’s decision incorrectly concludes that in the absence of authority to order a broadcaster to grant retransmission consent, the Commission cannot review bad faith conduct that results in a blackout,” HT said in its application for review Thursday. That decision “will serve as dangerous precedent” that “will likely lead to more frequent blackouts because the very existence of a blackout will exempt the broadcaster’s conduct from Commission scrutiny,” HT said. In its own application for review filed Friday, Nexstar argued the bureau shouldn’t have found any good faith violations and said the proposed $720,000 forfeiture is too high and should be canceled or reduced. The provisions against filing complaints with the FCC were part of Nexstar’s proposal to settle HT’s initial good faith dispute concerning Nexstar’s refusal to extend an existing retrans agreement, Nexstar said. That proposal was “eminently reasonable, and any such settlement would have been deficient without a prohibition on further litigation of the matter,” the broadcaster said. The proposed forfeiture “far exceeds the Bureau’s delegated authority” was arrived at in an “illogical way” by treating a contract proposal as a continuing violation from the date it was first proposed until the date the contract was executed, Nexstar said. Such a policy “perversely incents future parties to delay negotiations in the interest of elevating the potential liability to their counter-parties,” Nexstar said. The NAL also increased the forfeiture using “a draconian upward adjustment that is based on no apparent rationale other than that Nexstar is a large and successful broadcaster,” the filing said. “Even if the Bureau could justify a conclusion that a violation occurred,” the proposed forfeiture “far exceeds the gravity of the conduct, not to mention the Bureau’s delegated authority and notions of reasoned decisionmaking,” said Nexstar.

ACA Connects "will take a serious look" at challenging the FCC's "all-in" video pricing rules, which are set for a vote during the commissioners' March 14 open meeting (see 2402210057), ACA President Grant Spellmeyer said. Commissioner Geoffrey Starks in an address Wednesday at the ACA Connects policy summit (see 2403060005) mentioned the all-in pricing draft order, saying it would curb the “indecipherable asterisks and fine print” that make comparison shopping difficult. Starks said the order is consistent with the TV Viewer Protection Act, which requires that MVPDs disclose the all-in price at the point of sale and within 24 hours of sign-up and let customers cancel without penalty. The item is part of a larger agenda with broad support against junk fees and favors greater transparency for consumers, said Best Best's Cheryl Leanza. She noted the Ticket Act (HR-3950), requiring greater transparency in prices for event tickets, and the No Hidden Fees Act, (HR-6543), which prompts greater transparency in hotel and motel costs. Leanza represented local government clients in the proceeding. Cable and satellite TV promotional materials and bills would prominently display an all-in price that covers programming-related costs, including broadcast retransmission consent fees and regional sports programming charges, under the draft order. The requirement would be only for ads where price is mentioned, according to the draft. Operators would have nine months to comply after the approved order is released. In advertising for bundled services, providers should have the option to either provide the full price of the bundle, including video fees, or separately list the bundle's all-in video portion, NCTA told aides to the five FCC commissioners and FCC Media Bureau staffers, according to a docket 23-203 filing Thursday. NCTA urged that franchise fees and public, educational and government programming fees be excluded from the all-in pricing. It also urged that the commission to give providers a year to implement the all-in rules. Joining NCTA in the meetings were representatives of Comcast, Charter Communications and Cox. In meetings with aides to Chairwoman Jessica Rosenworcel and Commissioners Anna Gomez and Geoffrey Starks, Verizon reiterated its argument for exempting legacy plans no longer marketed or offered to consumers from the all-in pricing rule (see 2308010028). Pointing to existing federal transparency requirements as well as market forces, state cable associations said in a docket filing this week that the proposed all-in rules "rest on unsound legal footing, are unnecessary, and would produce results contrary to the Commission’s goals." Behind the filing were the Florida Internet & Television Association, Missouri Internet & Television Association, Ohio Cable Telecommunications Association and Texas Cable Association.

Some pay-TV providers are telling the FCC that a ban on early-termination fees (ETF) and a requirement for prorated refunds should be limited to residential subscribers, not business subs, and shouldn't be applied retroactively to existing contracts, according to reply comments this week in docket 23-405. FCC commissioners voted 3-2 in December to adopt the video service fees NPRM, which proposes banning ETFs and requires prorated refunds when service is canceled (see 2312130019). Verizon said that while only a small portion of its subscriber base is potentially subject to ETFs, a ban on them should be done prospectively, as eliminating the fees in existing contracts "would improperly upset the economic bargains reflected in those contracts and would impose an undue administrative burden on Verizon." It defended keeping ETFs for business customers, calling them "sophisticated actors who may individually negotiate their contracts with Verizon." Altice urged similarly for business subs and for not applying a ban on existing contracts. NCTA said a ban on "unjust" ETFs should apply only to practices that don't transparently disclose them or give consumers the option to go on a month-to-month plan without such fees. It argued against letting state and local governments apply other ETF and whole-month billing requirements to cable service. "A patchwork of state and local regulations would be unduly burdensome" and make competition with satellite TV and online video distributors a chore, it said. Dish Network also defended ETFs and said they need to be clearly and prominently disclosed. It called for transparency standards in the billing and onboarding process. Opposing the FCC proposal on ETFs and prorated refunds, NTCA said the FCC can accomplish its objectives via its all-in pricing proceeding "without the unintended consequences to consumers or impermissible rate regulation." The FCC proposal received some support. The pay-TV industry argument that ETFs and billing cycle fees benefit consumers "may shock some observers, who have come to know the pay TV industry as a reliable advocate for the Commission imposing new regulations on behalf of consumers," a sarcastic NAB said. Local governments, including Boston, the District of Columbia and Fairfax County, Virginia, said eliminating fees won't drive up prices. Instead, they said competition that enhances consumer choice "will promote lower prices and will permit consumers to choose the highest value products for their budgets."

The FCC proposal that video subscribers get rebates for programming blackouts due to retransmission consent negotiation loggerheads "looks to be a fool’s errand that may end up doing more harm than good," International Center for Law & Economics Senior Scholar Eric Fruits blogged Wednesday. The FCC commissioners adopted a retransmission consent blackout rebate NPRM 3-2 in January (see 2401100026). Fruits said the idea might seem fair, as consumers shouldn't pay for programming they can't access. However, he said, it's unclear what party -- programmers or multichannel programming video distributors -- is more responsible for blackouts. Yet the proposal indicates the FCC thinks MVPDs are to blame, he said. That could bolster cord cutting and incentivize MVPDs offering lower compensation to broadcasters to offset the rebate costs, hurting smaller or local programmers that rely on retrans fees, he said.

Fox Corp. CEO Lachlan Murdoch said Monday he's unconcerned that the Fox/ESPN/Warner Bros. Discovery streaming joint venture (see 2402070006) could face regulatory challenges. At a Morgan Stanley conference Monday, he said the JV is "pro-consumer" and focused on an audience segment of cord cutters and cord nevers not currently served. The pricing will be "at the higher ranges" of estimates that have floated around and should have 5 million subscribers within five years, said Murdoch. He said over time the streaming platform could add capabilities such as betting.

New Jersey's Cable TV Act (CTA) doesn't imply a right of action for municipalities on their own to enforce the law's fee provision, the 3rd U.S. Circuit Court of Appeals said last week. The decision was in response to an appeal by Longport and Irvington, which are seeking to charge cable franchise fees to streamers Netflix and Hulu -- an effort a lower court rejected in 2022 on grounds it violates the CTA (see 2205230028). In a docket 22-2139 opinion, a 3rd Circuit panel said there's no evidence the state legislature intended to create a private right of action for municipalities, as it expressly gave all enforcement authority to the state Board of Public Utilities. Deciding were Judges Michael Fisher, Jane Roth and Patty Shwartz, with Roth penning the decision.

Fubo will launch a free tier later this year, and it sees the streaming platform turning profitable in 2025. In a call Friday with analysts as Fubo announced its Q4 2023 financial results, CEO David Gandler said the company was in "a duel to the death" with the forthcoming ESPN/Fox/Warner Bros. Discovery sports streaming joint venture (see 2402070006). Fubo fielded numerous analyst questions during the call about its lawsuit against the JV (see 2402210007). Gandler called the JV "just the latest example of the sports cartels' attempt to block and steal Fubo's vision of what a sports streaming bundle should look like, resulting in billions of dollars in damages to our business." The defendants' "pernicious contractual terms and other anticompetitive practices [are] borderline racketeering," he said, adding that those programmers have charged Fubo 30% to 50% more for content than other distributors, while also forcing it to take content it doesn't want. He said the forthcoming free tier will include the nearly 160 free, ad-supported channels the streamer has launched since 2022. Fubo reported Q4 2023 revenue of $401 million, up from $312 million a year earlier, and 1.54 million North American subscribers, an increase from 1.4 million in Q4 2022.

Fox News, ESPN and MSNBC are exempt from FCC audio description rules governing the top-five national nonbroadcast networks, the FCC Media Bureau said in an order in Thursday's Daily Digest. The three provide less than 50 hours per quarter of prime-time programming that isn't live or near-live, the bureau said. Effective July 1, the top-five national nonbroadcast networks subject to the audio description requirements will be: HGTV, Hallmark, TLC, TNT and TBS, it added.

Paramount Global management is pulling the right levers toward 2024 growth, such as cutting costs in its linear TV business and focusing on streaming average revenue per user, Deutsche Bank's Bryan Kraft said in a note Thursday. The company announced Q4 2023 earnings after the market's close Wednesday. Kraft also applauded management's focus on "leveraging Paramount's best content to the nth degree." The carriage agreement between Paramount and Charter Communications likely expires this year, and a deal that includes Paramount+ access for Charter cable's subscribers -- similar to the Charter/Disney agreement (see 2309110034) -- could boost Paramount+ subscriber count, Kraft said. In addition, it could help Paramount+'s churn and advertising revenue. Paramount said Paramount+ in Q4 reached 67.5 million subscribers and should be profitable domestically in 2025. It said streaming revenue, at $1.87 billion in Q4, rose from $1.4 billion the same quarter a year prior. A soft advertising market globally hurt TV revenue -- $5.2 billion for the quarter, down $700 million year over year -- Paramount said.

Streaming-related revenue will surpass pay-TV subscription revenue in the U.S. this year, Ampere Analysis blogged Monday. That tipping point comes as streaming continues growing and traditional pay TV declines. In addition, the value of pay TV in 2028 is expected to be half of the value of its 2017 peak, Ampere said. Streaming subs overtook pay-TV subs in 2016 in the U.S., but streaming has far lower average revenue per user, meaning streaming revenue is only now catching up, it said. Ampere said streaming revenue benefited recently from password-sharing crackdowns and hybrid advertising tiers.