California's McGill rule impedes or precludes bilateral arbitration, and thus conflicts with federal law and is pre-empted by the Federal Arbitration Act, appellant Comcast said in a docket 18-15288 reply brief (in Pacer) Wednesday with the 9th U.S. Circuit Court of Appeals. Comcast is appealing lower court denial of its motion to compel arbitration of subscriber claims it fails to properly disclose the true pricing of cable packages (see 1808030047). It said the McGill rule -- which voids contracts that deny consumers their non-waivable rights to pursue claims for public injunctive relief -- makes unenforceable individual contract provisions but doesn't provide grounds to revoke a contract. It said McGill doesn't apply in this case since the subscribers had an opportunity to opt out of arbitration and chose not to. Appellee counsel didn't comment.

Comcast's not reaching an interconnect agreement with advertising spot representation firm Viamedia isn't a form of anticompetitive conduct, said U.S. Circuit Judge Amy St. Eve, sitting by designation, in a U.S. District Court docket 16-cv-05486 ruling (in Pacer) in Chicago last week, agreeing with Comcast's motion for summary judgment in Viamedia's complaint. Viamedia sued in 2016, charging monopolization behavior by Comcast in markets where it operated interconnects (see 1607250037). The judge said Comcast didn't allow Viamedia access to the Chicago, Detroit and Hartford, Connecticut, interconnects, but it had no duty to deal with Viamedia and there's no evidence it was active in tying, exclusive dealing or other exclusionary conduct. Viamedia outside counsel didn't comment Tuesday.

The FCC continues to ask the 6th U.S. Circuit Court of Appeals to hold in abeyance NCTA's appeal of the agency's 2008 cable leased access order. In a docket 08-3369 status report (in Pacer) filed Monday, the FCC said if the agency ultimately decides to vacate the order being challenged, the appeal "will become moot." Commissioners in June adopted a Further NPRM proposing to vacate the order (see 1806070021).

Charter Communications has entered into all interconnection agreements with qualified parties as required by the FCC order allowing its buys of Time Warner Cable and Bright House Networks, Charter said in its latest annual interconnection report, posted Thursday in docket 16-197. All such interconnection agreements have been submitted to the FCC, it said.

Gracenote's new mobile video analytics tool gives MVPDs, video streaming services and hardware makers visibility into performance of mobile video streaming applications and how it affects user behavior and engagement with their platforms and competitors, said the unit of Nielsen formerly owned by Tribune (see 1612200022). It shows wireless providers areas of network congestion.

Growing virtual MVPD services like Sling TV and DirecTV Now helped mitigate some subscriber defections of traditional MVPDs in Q2, Kagan said Thursday. Cable, direct broadcast satellite and telcos lost 860,640 video subscribers, for 89.4 million residential customers and 92.2 million overall. DBS had its second-largest quarterly decline, at 478,000. AT&T's DirecTV Now and Dish Networks affiliate Sling TV numbers cut overall quarterly subscription losses about 45 percent and raised the residential figure to 93.5 million. Residential MVPD penetration is 75 percent, when including Sling TV and DirecTV Now. The quarter had the second largest Q2 video subscriber drop for cable since 2015, bringing year-to-date losses to 685,790. Telco video losses improved, with the industry losing 56,000 subs, a fraction of its typical quarterly losses the past two years. Others have also said vMVPDs offset some traditional MVPD customer losses (see 1808150010).

BMG won't be barred from referring to copyright infringement as stealing, theft or some similar term when issues remanded to U.S. District Court in Alexandria, Virginia, are retried, Judge Liam O'Grady said in a docket 14-cv-01611-LO-JFA order (in Pacer) Tuesday. The judge said such a bar, as requested by Cox (see here, in Pacer), wouldn't be appropriate since such language is "not unduly prejudicial" to the company. The ISP argued such argumentative statements "risk confusing the jury" and asked that BMG counsel be ordered to use instead such language as "alleged infringement of BMG's Copyright rights." The 4th U.S. Circuit Court of Appeals in February reaffirmed the lower court's denial of a safe harbor defense for Cox in BMG's copyright infringement complaint and remanded the case for a new trial because of jury instruction errors (see 1802010026). That is scheduled to begin Aug. 28.

While traditional pay-TV operators continue to lose subscribers, it's likely that if virtual MVPD subscriber numbers were available and counted, pay-TV subs increased in Q2, nScreenMedia analyst Colin Dixon blogged. Moderating pay-TV subscriber losses would be uplifting news for programmers, many of which are cheering the rise of vMVPDs, he said: Those same content companies undoubtedly "will show no restraint" when seeking price increases from vMVPDs and are all busy building direct-to-consumer offerings in anticipation of "the pay TV party ... com[ing] to an end." Another Tuesday report also said over-the-top viewers are watching more vMVPD content (see 1808140014 or 1808140011).

Over-the-top viewers are spending more time watching virtual MVPDs, blogged comScore Tuesday. Nearly half the time spent by OTT households with a vMVPD such as Sling TV, DirecTV Now, PlayStation Vue, Fubo, Philo, YouTube TV and Hulu Live is spent with that service, said analyst Susan Engleson. OTT adoption rose 17 percent year on year, said the firm. VMVPDs “are a prime example of viewers utilizing digital mediums to watch live content formerly only available on linear TV,” Engleson said. Though penetration is at 5 percent of U.S. households, it rose 58 percent. The average OTT household with a vMVPD service uses 1.5 times more over-the-top services than the average OTT household. Engleson sees those numbers accelerating due to competitive price points and low barriers to entry for consumers because no installation is required: “We will continue to see significant growth in virtual MVPDs in the years to come.” Other providers are testing or have announced plans for a vMVPD offering, “indicating that they take this trend seriously,” she said. With cable companies adding the ability to access Netflix via a set-top box, “it may be that future generations do not distinguish between a streaming box and a cable box at all -- there will just be one place consumers go for their entertainment,” she said.

Cable officials pressed the FCC to prevent duplicative state and local regulations and fees and other regulatory barriers hindering cable operator deployment of facilities and services. The agency should "address ongoing efforts by local franchising authorities to subject non-cable services delivered over cable systems to duplicative regulations and fees," said a filing on a meeting officials of NCTA, Comcast, Charter Communications and Cox Communications had with Matthew Berry, Chairman Ajit Pai's chief of staff, posted Tuesday in docket 17-84 on accelerating wireline broadband rollout.