Matt Daneman

A point of agreement between independent and diverse programmers and major content companies was that many parties in the FCC indie programming notice of inquiry have cited practices like bundling as inimical to a fair and competitive market. Otherwise, the programmers and content companies diverge sharply, with CBS, Time Warner, 21st Century Fox, Viacom and Walt Disney calling such arguments "a rehash," while a number of indie programmers and allies said it was clear those programmers face an uphill struggle getting onto multichannel video programming distributors' channels. "There is widespread agreement that independent programmers face significant obstacles in reaching consumers," RFD-TV said in a filing posted Wednesday in docket 16-41.

While Stream TV -- Dish Network's foray into over-the-top video service -- was first in the pay-TV universe to look at market segmentation as a business model, Dish's interests longer term lie in being "a connectivity company ... through satellite or wireless," CEO Charlie Ergen said Wednesday during the company's Q1 earnings call. Executives were largely mum about the company's spectrum strategy, citing the quiet period of the upcoming incentive auction, including whether it plans to take part in the auction. But, Ergen said, "We think we're positioned to participate in all kinds of connectivity -- cars are just one of them." He said the company sees connectivity revenue opportunities in IoT.

The FCC is seeing some push to follow up its notice of inquiry on independent and diverse programming with action. Tuesday was the deadline for replies in docket 16-41, and the FCC's filing systems were partly down. While numerous large conglomerates have argued that the video market is too competitive for them to have any real gatekeeping power, and that they also provide wide programming diversity in their lineups, indie programmers see the opposite, the American Cable Association said in comments to be filed in the docket. Indie programmers' comments also show that forced bundling is a problem since it constrains capacity on multichannel video programming distributors' systems, that penetration requirements often relegate indie programming to higher tiers, and that most-favored-nation clauses end up preventing carriage of indie networks, ACA said. It said the FCC at some point should move to a diversity rulemaking, and it "can and should act now" through addressing bundling involving stations via its current proposed retransmission consent rules changes and by updating its program access rules to let the National Cable TV Cooperative bring complaints. The FCC also could use its authority under Telecom Act Section 706, which allows for regulating practices -- including video service provision -- if they hinder broadband deployment, it said. The FCC's focus needs to not be on surface issues like what genres of networks are on an MVPD's channel lineup, but on ownership diversity and making sure indie networks have access to those linear platforms, One World Sports (OWS) said Tuesday in the docket. MVPDs often don't have the bandwidth and programming dollars to add such networks because of such practices as forced bundling by large media conglomerates, OWS said, saying the agency's next step should be an NPRM on a prohibition of or limits on forced bundling and tying of programming. Not every indie programmer is seeking an FCC fix. National Religious Broadcasters bemoaned the difficulties indie programmers have in getting carriage but cautioned against "a [regulatory] move in the name of diversity towards a subjective, government-favored content regime or so-called 'fairness' censorship on video programmers or any other form of electronic media." Instead, it said in a filing that it hopes the NOI will lead to programmer talks with MVPDs that result in their being more interested in carriage "for the valuable faith and family programming of religious channels."

Comcast's announced plans to expand its TV Everywhere offerings had numerous critics of the FCC set-top box proposal pointing to those plans Wednesday as proof the agency is headed in the wrong regulatory direction. The FCC is "rushing forward with a regulatory proceeding that will upset a marketplace that is undergoing such a dramatic transformation and achieving the goals that it seeks [and] should study these developments and reconsider the path it appears to be on," NCTA said in a statement.

Dish Network is clashing with the FTC, DOJ and four states over an October hearing on a permanent telemarketing injunction that Dish says "would have grave consequences" for its and its retailers' businesses. The U.S. is misstating Dish's decision to decline supplemental discovery, it said, and Dish won't use documents in 2015 supplemental discovery disclosures, but it's "not barred from presenting, and will present, other evidence" against the injunctive relief, Dish said in opposition (in Pacer) filed Monday in U.S. District Court in Springfield, Illinois. The filing was in response to an FTC and Justice Department motion (in Pacer) filed in March seeking to cancel the Oct. 24 hearing. The mandatory injunction issue was bifurcated from the rest of the trial that ended Feb. 24 of robocall allegations brought by the FTC, California, Illinois, North Carolina and Ohio (see 0903260144). Dish said in its filing it originally intended to present evidence during the Phase I trial dealing with the permanent injunction, but the court ordered that the scope of discovery would include nearly six years of call records, which would take a couple of years of discovery, so it opted "to decline to engage in that exercise." Dish said it plans in a permanent injunction hearing to introduce testimony and other evidence from witnesses "that will demonstrate the impracticability of the specific terms of the requested injunction, the adverse impact that it would have on Dish's business and the business of its retailers, and its excessive scope." The FTC and DOJ in their motion said that by choosing not to engage in discovery, the satellite company is waiving reliance on any compliance evidence that would postdate March 2010, the last date of call records it produced in discovery. It also said Dish had plenty of time at the four-week trial that ended Feb. 24 to present compliance evidence and "there is nothing new that Dish can offer at the October hearing except oral testimony about information that was turned over during discovery." In a separate response (in Pacer) Friday, the state plaintiffs said they support the U.S. request, citing Dish declining additional discovery and withdrawing its previously offered analysis. The states also asked that the court keep the Oct. 24 date open for other issues that may come up in discovery that Dish is scheduled to produce April 25.

If the U.S. Court of Appeals for the D.C. Circuit reopens Tennis Channel's complaint against Comcast, the sports programmer would likely produce expert evidence to the FCC showing all the business pain the cable company has endured in order to stifle competition to affiliated programming, from advertising revenue to audience interest in content, said Stephen Weiswasser of Covington & Burling, representing the channel, during oral argument Monday. Tennis Channel is appealing a 2015 FCC decision denying a program carriage complaint (see 1501280059) that mirrored a 2013 U.S. Court of Appeals for the D.C. Circuit decision, after the commission previously found in favor of the independent programmer. The three-judge panel's decision likely will come in two to three months, lawyers told us.

Considering the amount of time and money it takes to clear spectrum bands, the next White House administration likely won't deviate far from the current spectrum sharing approach, Satellite Industry Association President Tom Stroup said during an FCBA CLE Thursday: "There may be some tweaking, but I don't expect a major shift." Speakers all indicated the questions about spectrum sharing involve its degree and how to implement it, because the question of whether it will happen is settled.

The broadcaster/pay-TV war of words escalated over possible changes to the FCC threshold for determining if either side in a retransmission consent agreement failed to act in good faith. Affiliate groups of the big four broadcast networks jointly wrote the agency to oppose the totality of the circumstances tweaks sought by multichannel video programming distributors. Meanwhile, Mediacom, which backs retrans changes, clarified its request to the FCC, and a retrans-reform group of many MVPDs including the company hit back at the network affiliates.

The joint AT&T/EchoStar plan for sharing satellite spectrum with 5G applications won't be the final word because other sharing proposals are in the works, said industry officials and wireless and satellite companies. But the wireless industry could have an easier time finding consensus than satellite operators, industry officials said in interviews this week. FCC Chairman Tom Wheeler criticized the industry for "intransigence" at the World Radiocommunication Conference last month on studying spectrum sharing with 5G (see 1603090057).

An AT&T/EchoStar proposal for satellite/wireless sharing of the 28, 37 and 39 GHz bands might work for some satellite network operators, but it might preclude launches of future satellite networks needing broader access to those bands for increased broadband capacity and throughput, Boeing said in an FCC filing Tuesday in docket 14-177. The satellite industry needs more time for discussions with terrestrial 5G backers about spectrum sharing, since such talks "will identify innovative and effective measures to enable real-time sharing," Boeing said. The joint AT&T/EchoStar proposal (see 1604070059) "could be improved," Boeing said, citing its setting aside densely populated urban cores for 5G services, "limiting satellite access to the band to individually licensed earth stations, often on a secondary unprotected basis." The proposal also is sketchy on how co-primary sharing would be accomplished, Boeing said. The proposal "provides only a single viewpoint on the potential use of the 28 and 37/39 GHz bands, and does not represent a consensus of the satellite industry," Boeing said, saying the FCC should allow time for satellite industry technical efforts "to reach a resolution." ViaSat, in a filing posted Wednesday in docket 10-112, also was critical of the joint proposal, saying it didn't have satellite industry consensus. It also "only partially addresses one aspect of the sharing environment under consideration, was offered before technical details were provided by the 5G industry, has critical details to be resolved, and in fact appears to meet the needs of only one or two satellite operators," ViaSat said. It said EchoStar has a conflict because the millimeter wave frequency band licenses it holds through Alta Wireless "will become much more valuable and could be a key in blocking competitors from accessing spectrum." In a statement Wednesday, EchoStar said that “as noted in our joint filing, we recognize there are still open issues to be resolved and we look forward to the input of other satellite operators and the terrestrial industry.” AT&T didn't comment.