Matt Daneman

Charter Communications is talking buildout plans with the FCC, apparently as part of discussions about conditions on its plans to buy Bright House Networks and Time Warner Cable. Meanwhile, an FCC decision on the deals seems close, experts said in interviews last week. Opponents are redoubling lobbying efforts against the deal. The FCC and Charter didn't comment.

Along with documenting carriage hurdles facing independent and diverse programmers, the FCC in a notice of inquiry approved Thursday is looking for input on possible actions it might take to boost independent programming sources, Media Bureau Chief Bill Lake said. The commissioners approved the NOI, which was mostly as expected (see 1601290047) and seeks comments in docket 16-41 after it's published in the Federal Register. Chairman Tom Wheeler didn't comment about actions the FCC could consider after the NOI, which Commissioner Mignon Clyburn sought as part of last year's OK of AT&T buying DirecTV.

The FCC effective competition presumption doesn't mean the agency abandoned its duty to make findings in individual franchise areas, and the changing video market indicates "it likely would have been arbitrary and capricious not to change the presumption," the American Cable Association and NCTA said in a joint intervenor brief filed Tuesday in U.S. Court of Appeals for the D.C. Circuit. NAB, NATOA and Northern Dakota County Cable Communications Commission in Minnesota, which are asking the D.C. Circuit to reject the agency's June effective competition order (see 1506020060), are due to submit reply briefs to the FCC (see 1602020038) and intervenor arguments by March 8. No oral argument is scheduled.

Though private-sector demand for federally used spectrum is growing, federal agency need for spectrum is also on the rise, and NTIA is increasingly looking at bidirectional sharing -- in which the federal government also gets access to nonfederal spectrum -- Paige Atkins, associate administrator, NTIA Office of Spectrum Management, said at an FCBA Wireless Telecommunications Committee brown bag lunch Wednesday. The agency no longer views private/public sector spectrum matters as a zero-sum game in which spectrum gained by one party means a loss for the other, she said: "We're trying not to think that way anymore.”

Charter Communications' handling of third-party device makers and cable apps is increasingly a bone of contention in FCC review of Charter's purchases of Bright House Networks and Time Warner Cable. The Computer and Communications Industry Association in a filing Friday in docket 15-149 joined Nvidia in criticizing Charter for its supposed blocking of third-party devices from accessing TV Everywhere apps. Charter and TWC dispute those claims. TWC said Nvidia "appears to misapprehend" how multichannel video programming distributor subscribers access programming via TVE.

Charter Communications is pushing back at critics of its proposed takeovers of Bright House Networks and Time Warner Cable, meeting with the FCC to rebut arguments raised against the deals. Separately, it received some ammunition in its arguments from Discovery Communications, which also met with the FCC to say claims that New Charter might try to use its power to keep Discovery content from rival multichannel video programming distributors are off base. In an ex parte filing posted Wednesday in docket 15-149, Charter said executives met with FCC staff including General Counsel Jon Sallet and Media Bureau Chief Bill Lake to address individual filings by such critics as Incompas, Nvidia, TiVo (see 1601220017) and Time Warner Inc. (see 1601140033). Incompas' arguments that cost savings that New Charter would enjoy could hurt broadband competition aren't backed by any evidence and depend "on the questionable assumption that a provider's decision to enter a particular market depends on the incumbent providers' costs," Charter said. It also said there's no basis for conditions requiring New Charter support of CableCARD since it plans "to purchase, distribute and service CableCARDs ... for years to come." And Charter said it "has been transparent and unequivocal" that it backs the rise of over-the-top services like HBO Now since they drive broadband demand, and thus has no motive to harm OTT. It also disputed Nvidia claims Charter has blocked access to TV Everywhere apps to disadvantage Nvidia's Shield TV device. Discovery, in a separate ex parte filing Thursday in the docket, said it told commission staff -- including Lake and Owen Kendler, who's heading the FCC working team overseeing the deals' review -- that it has no incentive to withhold programming from any MVPD and though John Malone and BHN owner Advance/Newhouse own equity stakes in both Discovery and Charter, the programmer "has made many deals with alternative distribution providers" and that it doesn't vary its pricing across regions in a given MVPD contract to target any overlapping Charter areas. Withholding its programming from a rival MVPD to benefit Charter would hurt Discovery's top line and would cause only limited switching to New Charter, it said. Given the decline in linear TV viewing and the growth of OTT platforms, "cutting back on reaching viewers through these platforms would harm [its] ability to evolve with the changing video marketplace," Discovery said. In ex parte filings Thursday in the docket on meetings they had with FCC officials (see here and here), Charter/TWC/BHN foes Stop Mega Cable coalition and the Writers Guild of America, West said the deals would give New Charter too big a hold on the U.S. broadband market and incentive to stifle growth in the online video market.

The 1996 Telecom Act couldn't happen in 2016, but a major rewrite doesn't seem needed either, numerous architects and implementers of the legislation said in interviews and on a pair of panels Thursday. "It's hard to imagine it being done today in the current political climate," said NCTA CEO Michael Powell at an FCBA luncheon for the act's 20th anniversary. "I don't think the political machinery is functioning all that well. It's hard to imagine the navigation process ... that would produce something more rational or sound" than the 1996 act, he said. Other panelists, a slew of online statements and the industry's law journal made similar observations this week (see 1602080062 and 1602090048).

The Wi-Fi Alliance issued the first of what it says will be several plans for tests to evaluate LTE-unlicensed's impact on a Wi-Fi network. The draft LTE-U test plan follows a Wi-Fi Alliance coexistence test workshop Wednesday in California involving what the group said in a statement was "dozens of industry players" discussing test regimen and agreeing it was "sufficiently mature to begin a validation exercise." Wi-Fi interests in the cable industry have been battling with wireless carriers over whether LTE-U will interfere with Wi-Fi.

Growing subscriber rolls at some cable TV providers, even as the over-the-top (OTT) market booms, indicate people "really like to watch TV," said Corie Wright, Netflix director-global public policy, Wednesday at Incompas' 2016 Policy Summit. "It's not an either/or proposition -- a price point for something like Netflix or [Amazon] Prime makes it easy to add onto your core package," she said on a panel on the streaming video content marketplace.

Analysts are skeptical of Viacom's plan to rebound from ratings declines at some of its biggest pay-TV networks, given the onslaught of newer media and online competition. Speaking as Viacom announced results Tuesday for FY Q1 that ended Dec. 31 that disappointed some analysts, CEO Philippe Dauman said the company would rebound, but analysts said they're not so sure. Investors, too, were cautious, with Viacom stock closing down 18 percent Tuesday and closing Wednesday down another 4.4 percent to $35.15.