A key FCC priority in its independent/diverse programming proceeding should be determining the agency's ultimate policy goals in those directions and whether they should include maintaining the existing number of such programmers and/or ensuring more programming diversity, Goodfriend Government Affairs said in meetings with Media Bureau and commissioner staffers, according to an ex parte filing posted Wednesday in docket 16-41. Goodfriend in the meetings also presented a list of questions that, if incorporated in any programming diversity NPRM, "would send a positive signal" both to indie programmers and the capital markets the FCC is committed to preserving and promoting such programming and diverse ownership and content. The questions include whether the FCC should set a goal for survival of indie programmers and what policy actions it could take to achieve that goal; how the agency would define "independent programmer"; whether its diversity goals should include race, ethnicity, religion, gender or other demographic characteristics; and whether channel set-asides and nondiscrimination requirements help increase programming diversity. According to the filing, Goodfriend spoke with Commissioner Mignon Clyburn's chief of staff and media policy adviser, David Grossman, and separately met with multiple Media Bureau staffers including Policy Division Chief Martha Heller. Goodfriend has represented indie programmers.

With Charter Communications having satisfied all the requirements of the Antitrust Procedures and Penalties Act, DOJ asked the U.S. District Court for the District of Columbia to enter final judgment in its civil antitrust proceeding against Charter. As part of its Aug. 31 motion (in Pacer) with the court asking for final judgment, DOJ included a notice of compliance (in Pacer) saying Charter, Time Warner Cable and Bright House Networks complied with the act's requirements. DOJ sued Charter/TWC/BHN in April, while simultaneously proposing a settlement that would limit Charter's use of most-favored-nation provisions and ban it from retaliating against programmers for licensing to online video distributors (see 1604250039). The case received one comment in the 60-day period, and DOJ said that dissatisfied customer's concerns fall outside the antitrust issues raised in the settlement (see 1608170016).

Univision's distribution contract with Time Warner Cable remains operative, even though TWC is now part of Charter Communications, since Charter's contract with Univision expired in June, Charter said in a motion to dismiss in New York State Supreme Court in Manhattan. Univision is suing Charter, claiming license fees in its TWC agreement apply only to the legacy systems and through this year (see 1607080022). Charter said Friday the structure of New Charter and the language of the TWC contract back its argument the TWC contract applies to all of New Charter. Univision didn't comment Tuesday. Typically, such contractual disagreements settle before becoming litigation, a sign numerous such programmer/New Charter disputes may have come up since the close of the TWC and Bright House Networks deals in May, one cable lawyer who has been active in retransmission consent and program access negotiations told us Tuesday. The language in programmer/cable distributor agreements is sometimes unclear on merger/acquisition transactions, and language in such agreements can vary significantly by deal, the lawyer said. Charter undoubtedly pursued the TWC deal in part because of the acquired company's lower-priced programming agreements, with TWC having been an effective procurer of programming rights, the lawyer said. Charter didn't comment Tuesday. Its reply in a similar suit brought by Fox News Network (see 1607200065) is due Friday in the Manhattan court. Charter said Univision's twin breach of contract claims -- that it applied the wrong rate to the legacy Charter systems after the Charter contract expired and it hasn't negotiated a new contract or agreed it can't apply the TWC contract to any New Charter cable system starting in 2017 -- fail to state a contract claim as a matter of New York law. Univision hasn't pointed to any part of the New Charter contract entitling it to negotiate a new contract, Charter said. Charter said it wasn't seeking dismissal of Univision's declaratory judgment claim. While acknowledging it and Univision disagree about when the TWC contract ends -- end of this year or in 2022 -- Charter said Univision showed no breach of contract: "If Univision does not want to accept payments pursuant to that contract after year-end, then it can terminate the signal on Defendant's cable systems at that point."

The Consumer Video Choice Coalition still supports the original FCC set-top proposal, but said an app- based solution must preserve the same core ideas outlined in the NPRM, representatives from CVCC members Incompas, CCIA, Hauppauge, Public Knowledge, Vizio and TiVo relayed in a meeting Tuesday with aides to FCC Chairman Tom Wheeler and with FCC Chief Technologist Scott Jordan, according to an ex parte posted Friday in docket 16-42. They said an app-based set-top proposal needs to be available on a wide choice of platforms, offer the same services as multichannel video programming distributors and include universal search and an “open, independent UI [user interface]." The proposal would need to include rules preventing discriminatory treatment by MVPDs, and strong enforcement mechanisms, CVCC said. “Any solution adopted by the FCC should ensure that consumers can access all the content they have paid for on the device of their choosing.” NAB issued a warning on copyright related to the proceeding, also Friday in the docket (see 1609020032).

Private equity firm TPG Capital taking over cable ISPs RCN and Grande Networks should lead to stronger independent competition in markets "served by some of the nation’s largest providers ... including Comcast, Charter, Verizon, and AT&T," said Radiate Holdings, Yankee Cable and Grande Investment in a series of FCC International Bureau filings Thursday (for example, see here). The three asked for the transfer of RCN and Grande Networks Communications Act Section 214 authorizations to Radiate. Radiate is a holding company set up by TPG Capital, with minority partners in Radiate including Alphabet-owned Google Capital, an affiliate of Dragoneer Investment Group and some executives from Patriot Media Consulting. Patriot manages RCN and Grande for Yankee and Grande Investment, respectively, and will do the same for TPG after the close, said the filing. RCN has roughly 474,000 subscribers in Illinois, Massachusetts, Maryland, New York, Pennsylvania, Virginia and Washington, D.C., and Grande has more than 166,000 in Texas. The companies said RCN and Grande under one owner will bring "a single strategic focus," and Patriot "will be able to benefit from more favorable financing and programming arrangements and to achieve greater operational efficiencies." That eases such plans as a footprint-wide upgrade to DOCSIS 3.1, and makes them more competitive against larger rivals, it said. The RCN/Grande deals won't cut head-to-head competition in any market or give Radiant the incentive or ability to limit consumer access to online video distributor services, said the application. TPG's portfolio includes investments in Univision, Evolution Media and STX Filmworks, its website showed.

With the operative complaint having been torpedoed by the Ellis v. Cartoon Network decision that a user of a free app that gets free video content doesn't equal a customer (see 1511030020), CNN now faces a new "long shot" allegation -- that a user of its app who also subscribed to a cable package including CNN should be considered a CNN "subscriber" under the Video Privacy Protection Act (VPPA), the cable network said in a response brief (in Pacer) filed Thursday with the 11th U.S. Circuit Court of Appeals. Plaintiff Ryan Perry said subscribers can sue under VPPA for unlawful disclosure of data, but courts have been divided over the meaning of "subscriber" under VPPA (see 1607060016). CNN said the argument, introduced in Perry's appeal of a lower court dismissal of his suit, doesn't add any signifiers indicating a customer relationship with CNN, such as registration or payment commitment. "At best, [Perry's] proposed allegations dictate that he is a subscriber of his cable company -- not CNN, a single network in his cable bundle that the cable provider can remove at its discretion," the network said. The plaintiff arguments also fail because of lack of any allegation analytics provider Bango -- with which CNN shared data of its mobile app users -- actually identified him or any facts showing Bango could do so, CNN said. In an amicus brief (in Pacer) Wednesday backing the plaintiff, the Electronic Privacy Information Center said Congress deliberately construed "personal information" broadly under VPPA to cover myriad ways identifiers could link to an actual person, and the U.S. District Court ruling "got it exactly backwards" when it said techniques for linking online transactions to individuals didn't constitute personally identifiable information under VPPA. The lower court "also misunderstood the purpose and scope" of VPPA by ruling that people who get videos via a mobile app offered by a video service provider weren't consumers under VPPA.

The 2nd U.S. Circuit Court of Appeals upheld a lower court decision to throw out a lawsuit alleging Time Warner Cable tied some services to leasing of a set-top box. The three-judge panel was split, with Judges Ralph Winter and Denny Chin in their decision (in Pacer) saying the plaintiffs failed to prove the set-tops and the premium programming they transmit are separate products under antitrust law and that TWC had enough market power to force an illegal tie-in. In a dissent (in Pacer), Judge Christopher Droney said the plaintiffs made a plausible case that set-tops and premium cable service constitute separate products in the eyes of consumers because even if subscribers were able to buy cable boxes directly from the manufacturer, TWC wouldn't allow them to receive premium cable service without leasing one from it. "The FCC’s failed efforts to disaggregate set-top cable boxes from cable services reinforce, rather than undermine, Plaintiffs’ claim," Droney said, saying FCC efforts to create an alternative to set-tops shows the agency sees the boxes and cable service as distinct products. The judge said he disagreed with the majority when they concluded the plaintiffs conflated the markets for basic and premium cable service, and while the plaintiff allegations are based largely on nationwide data for basic services, those numbers are relevant to TWC premium market share as well. Charter Communications now owns TWC. Charter didn't comment. Class-action lawyer Michael Pospisil of Edgar Law Firm, who represented the plaintiffs, said they're disappointed by the verdict and "looking at all options.”

The FCC original set-top proposal, as explained in its NPRM, “remains the most effective way” of creating a competitive set-top market, said Writer's Guild of America, West in a letter posted in docket 16-42 Thursday. IT said the apps-based proposals now being considered by the FCC should still contain many of the features outlined in the NPRM, including parity of content between pay-TV and third-party devices, universal search, over-the-top programming integrated with pay-TV programming, and DVR functionality. “These requirements will ensure a level playing field for navigation device competitors,” WGAW said. The FCC should also “recognize the critical role oversight and enforcement must play to ensure compliance under an app-based model,” WGAW said. Multichannel video programming distributors "have every incentive to undermine the effective operation of a competitive device market. It is therefore critical that, as an initial matter, the Commission deploy every regulatory and enforcement tool available at the outset,” WGAW said. Others want the proposal changed, citing copyright and other concerns (see 1609010084).

TVEyes acknowledges the public benefit of TV news, but is asking the court "to distort copyright law and ... reach a result that is anything but fair," Fox News said in a reply brief (in Pacer) entered Wednesday in the 2nd U.S. Circuit Court of Appeals. TVEyes failed to establish fair use because mass digitization that delivers unauthorized copies isn't fair use, Fox said. It said TVEyes' subscribers' uses of the service and their convenience doesn't equal transformative use, and the substantiveness of TVEyes' taking comes from what the Content Delivery Features make available and not what the company's customers actually accessed. It's TVEyes' burden to prove fair use, but it can't do so, Fox said: "Its response is merely smoke and mirrors, obscuring a simple case with legal and factual mumbo-jumbo." Fox said TVEyes argues subscribers use the service for research, which falls under fair use, but TVEyes itself doesn't do that research, it just provides content. The programmer said TVEyes users are predominantly PR professionals, that being a market the company targeted. Fox doesn't challenge the idea TVEyes engages in fair use capturing the text of its broadcasts for inclusion in a database or providing text to users for research, but somehow sees the same use of audiovisual components as infringing, TVEyes said in its reply brief (in Pacer) last month. Since research is a paradigmic fair-use purpose under copyright statute, letting users do meaningful research on Fox broadcasts requires audiovisual as well as text content, TVEyes said. The broadcaster raises red flags about potential misuse of the service that could hurt Fox's market for its content, but it hasn't shown any evidence of TVEyes users' misuse. Even if TVEyes uses weren't fair use, there's no justification for an injunction since Fox didn't show TVEyes had a volitional role in its users' conduct as would be needed for direct liability. Fox is appealing a U.S. District Court decision that TVEyes' archiving function is fair use, but emailing, downloading and date/time searches aren't, and TVEyes is appealing a subsequent injunction (see 1603180007).

Fact discovery in twin affiliation agreement lawsuits brought against Charter Communications by Fox News Network and Univision is to be complete by March 24, New York State Supreme Court Judge Peter Sherwood of Manhattan said in orders (see here and here) Tuesday. Expert discovery in the two cases is to close by May 26, he said.