Monty Tayloe

Wednesday’s 2nd U.S. Circuit Court of Appeals decision in Time Warner Cable, NCTA v. FCC (CD Sept 5 p4) vacating the standstill rule on procedural grounds indicated the agency would be within its rights to resurrect it, experts said. But the FCC might face a steep court battle in doing so, said foes of the rule including the then-commissioner who voted against it, in interviews last week. The standstill rule, created in a 2011 order, let commission staff authorize continued carriage of a channel involved in a program carriage complaint while a decision is pending (CD Oct 4 p3).

The FCC should tell Congress it would be “premature” to expand requirements for video description for video delivered by TV and the Internet, said NCTA in comments filed in docket 11-43 Wednesday in response to a Media Bureau public notice issued in June (CD June 27 p22). The public notice sought comment on “the status, benefits, and costs of video description on television and Internet-provided video programming” for a July 1 report to Congress required under the 21st Century Communications and Video Accessibility Act (CVAA). Any report to Congress should reflect “the technical and operational issues to be overcome and the costs imposed to achieve carriage of video description in programming delivered via IP,” said DirecTV.

Though the rise of over-the-top (OTT) video services has forced broadcasters, content producers and video providers to embrace new ways of distributing their products, companies such as Netflix and Aereo aren’t yet a threat to the incumbents, said representatives from 21st Century Fox, Viacom, NBCUniversal, Charter Communications, Starz and others on panels Tuesday at the University of Colorado’s Silicon Flatirons conference on video programming.

Hulu and Sony’s streaming TV services are unlikely to survive for long, said David Bonderman, founder of private equity firm TPG, part owner of Univision, at the opening of the University of Colorado’s Silicon Flatirons Center conference on monetizing video programming Tuesday. Bonderman said investing in content is safer than investing in any particular form of delivering that content. “The tech is gonna continue to shift, but what isn’t gonna shift is people’s attachment to certain kinds of content,” he said. Bonderman said a recent attempt to sell Hulu failed because investors were “skeptical” that content providers would allow the streaming TV service to survive as an independent entity. “In the long term the odds are against success,” said Bonderman.

An appeals judge hearing oral arguments in online TV retransmission service FilmOn X’s appeal of a preliminary injunction brought by broadcasters in California suggested that if broadcasters want existing copyright policy changed, they should look to Congress rather than the courts. “In the end, isn’t this really a problem for Congress?” asked Judge Diarmuid O'Scannlain in a recording on the 9th Circuit U.S. Court of Appeals website. He was speaking to Baker Marquardt attorney Ryan Baker, who represented FilmOn X -- formerly Aereokiller. Broadcasters sought the injunction against FilmOn for retransmitting Los Angeles broadcast TV stations over the Internet without their consent, which the broadcasters said violates copyright law. The injunction was granted in a U.S. District Court in California, but appealed by FilmOn. “So long as we can determine that your client has come within the terms of existing copyright act, that’s enough,” O'Scannlain told Baker Tuesday.

The FCC should give smaller stations an election cycle under requirements to post political ad sales information online before deciding whether to reconsider the rule, NAB commented Monday, the last day for replies on the agency’s public notice on the rule. The requirement is already in effect for the Big Four network affiliates in the top 50 markets, and set to apply to all broadcasters starting in July. A group of broadcasters has asked the FCC to reconsider and relax the requirements, and in June the commission asked for comments on possible changes (CD June 27 p20).

Providing emergency description for video accessed over Internet Protocol on mobile devices would present “tremendous technical challenges,” said NAB and other industry groups in reply comments filed Thursday. The comments responded to the commission’s rulemaking on emergency video description, released with the video description order in April (CD April 10 p6) as part of the agency’s implementation of the 21st Century Communications and Video Accessibility Act. The industry groups also challenged the FCC’s right to make the proposed mobile device rules. “The CVAA authorized the commission to reinstate its previous video description rules, but not to extend those rules to include IP-delivered video programming of any type,” said the Entertainment Software Association.

The FCC should take action against Comcast’s use of data caps in “test markets” and start monitoring usage-based pricing, Public Knowledge said Thursday in a letter to acting Chairwoman Mignon Clyburn (http://bit.ly/150H1EE) and in a blog post(http://bit.ly/17NjeLl). Video viewed online as part of Comcast’s Xfinity service on an Xbox 360 or TiVo doesn’t count against Comcast’s data caps, said Public Knowledge Vice President Michael Weinberg in an interview Thursday. That violates conditions of the Comcast/NBCU merger designed to protect competition in online video and undermines “the ability of video providers unaffiliated with ISPs to compete with those video providers that are also ISPs,” said Public Knowledge’s letter. In the letter, Weinberg asked the FCC to take action on a Public Knowledge petition filed on the matter a year ago (CD Aug 12 p2). “The FCC has a responsibility to at least investigate if their merger conditions are being violated,” Weinberg told us.

The FCC doesn’t have to wait for a full rulemaking proceeding on shared services agreements (SSAs) to rule against the ones associated with the Gannett/Belo merger, said the American Cable Association, Time Warner Cable, DirecTV and multiple public interest groups in reply comments filed in docket 13-189 Tuesday. To avoid overlaps that would conflict with media ownership rules, the terms of the merger call for some TV stations involved in the transaction to be transferred to other companies but still share services with Gannett under SSAs (CD July 26 p1).

An ownership discount for VHF TV stations could encourage participation in the incentive auction, said a broadcast attorney and a broadcast engineer in interviews Thursday. Such a discount is among the items the commission would seek comment on in a draft NPRM on eliminating the existing UHF discount for calculating the 39 percent national ownership cap (CD Aug. 14 p1). Since UHF stations became more desirable for broadcasting than VHF stations following the DTV transition, and freeing up UHF spectrum is one of the incentive auction’s goals, a VHF discount might be intended to encourage more stations to participate in the auction, said Fletcher Heald broadcast attorney Frank Jazzo. An ownership discount for VHF stations “could make it a lot more desirable for stations to move to VHF,” said Bob du Treil, president of engineering firm du Treil Lundin.