Monty Tayloe

A three-judge panel of the U.S. Court of Appeals gave few hints of how it is leaning during oral argument Thursday on NAB and Sinclair’s challenge of the FCC’s incentive auction rules, several attorneys who watched the event told us. Though the judges allowed NAB’s advocate, Gibson Dunn attorney Miguel Estrada, to speak for more than 15 minutes beyond his allotted time with relatively few interruptions, both sides were asked roughly a similar number of questions. The judges didn’t noticeably seem to favor the arguments of either side, several attorneys connected to both sides of the case told us on background. “This is a really hard one to predict from oral argument,” said Jack Goodman, a former NAB attorney who attended the hearing but wasn’t participating. Though each side was allotted 20 minutes, the judges allowed oral argument to go on for an hour and seven minutes.

A group of broadcast companies worked together to hamper Aereo’s ability to sell its assets at auction after it declared bankruptcy, the now-defunct streaming TV service said in a complaint filed in U.S. Bankruptcy Court in New York Monday. ABC, CBS, Univision, WNET and numerous other broadcasters argued in a series of court filings that Aereo’s network of antennas and other equipment could only be used to infringe broadcast copyrights, the complaint said. The broadcasters ran a "concerted campaign of tortious conduct" that had a “substantial chilling effect” on the sale of those assets in February, the complaint said. During the lead-up to the auction, several prospective purchasers “expressed concern regarding the consequences of purchasing the Debtor’s content-delivery assets given the Broadcasters’ conduct,” Aereo said. Instead of Aereo’s technology being bought by an online video distributor service that could have made use of it, Aereo’s tech was sold “piecemeal” the complaint said. “The Debtor’s patents were sold to RPX Corp., a company specializing in defensive patent acquisitions, for $225,000; the Debtor’s trademarks, domain names and customer lists were sold to TiVo Inc. for $1,000,000; and portions of Aereo’s equipment was sold to Alliance Technology Solutions, Inc. for $320,000.” The value of Aereo’s patents “is highest when owned by an entity actually practicing the technology disclosed in those patents,” the complaint said. The piecemeal sale “forced by the lack of bidders, severely reduced their overall value,” said Aereo. The defunct company is seeking damages to be determined at trial, the complaint said. The Supreme Court found against Aereo in a case concerning its right to retransmit broadcast content, prompting its shutdown and bankruptcy filing (see 1406260071). Several broadcasters contacted for comment on the Aereo complaint declined to respond. NAB declined comment on the complaint.

The FCC likely will try to highlight the most complicated aspects of the incentive auction as it defends its auction policies from challenges by NAB and Sinclair Broadcast Group during oral argument at the U.S. Court of Appeals for the D.C. Circuit Thursday, several broadcast attorneys told us. Emphasizing the technically challenging aspects of the auction makes it more likely that the three-judge panel hearing the case will defer to the FCC as an expert federal agency and uphold the auction order, the attorneys told us. Attorneys for NAB and Sinclair will in turn try to present their issues in as simple terms as possible, an attorney who represents broadcasters told us. The FCC, NAB and Sinclair all declined to comment on their strategies for the court proceeding.

Incumbent online video distributor AT&T and relative new entrant FilmOn X disagree whether the FCC should consider online video distributors (OVDs) as multichannel video programming distributors, but agree federal regulation could be bad for the emerging business, in comments filed Tuesday in docket 14-261. Applying the “anachronistic” rules that burden MVPDs to over-the-top (OTT) services could have negative consequences, AT&T said. “Given the rapid development of the unregulated online video marketplace, it is unclear why the Commission believes it necessary -- or even wise -- to extend its regulatory authority into this space,” said Discovery, taking a similar stance. FilmOn, the Electronic Frontier Foundation and Public Knowledge see the MVPD designation as an opportunity to boost the OTT industry, if “a light regulatory touch” is used, according to FilmOn.

The FCC intentionally ignored edge providers and content companies blocking ISP customers in its new net neutrality rules, said ACA Board Chairman Robert Gessner in a press conference at the association's Summit 2015. FCC officials had acknowledged the issue as a problem that could be addressed by the commission but abandoned that stance after President Barack Obama supported Communications Act Title II regulation, ACA President Matt Polka said. ACA representatives and speakers at the event Wednesday also discussed the Comcast/Time Warner Cable merger and future FCC policies on retransmission consent and program carriage.

Pay-TV providers, broadcasters and their associations don't agree on whether the term multichannel video programming distributor (MVPD) and its obligations should apply to over-the-top (OTT) video services, according to comments filed in docket 14-261 Tuesday. Though NAB said it supports extending MVPD rules to cover OTT services, it wants online video distributors (OVDs) to be bound by the must-carry and other rules that apply to current MVPDs. CCIA, DirecTV and others expressed concern that the MVPD designation would harm innovation in the OTT sphere, while NCTA opposed the definition change entirely. “That definition cannot be squared with how Congress defined the term in 1992, nor is it consistent with the policies Congress sought to achieve when it adopted rules conferring benefits and imposing obligations on MVPDs,” NCTA said.

Despite its dramatic effect on the cable industry, Thursday's open Internet order isn't much of an omen for how FCC review of Comcast's planned buy of Time Warner Cable will play out, analysts, cable attorneys and ex-commission officials said in interviews Monday. Though the order addresses some of the concerns raised by opponents of the deal, it's not enough to protect consumers and new entrants from Comcast/TWC, said Dish Network Deputy General Counsel Jeffrey Blum and Public Knowledge Senior Staff Attorney John Bergmayer, representing the Stop MegaComcast Coalition, on a news media call Monday. The net neutrality order “doesn't come close” to addressing all of the ways a combined cable giant could hurt over-the-top video entrants and video competition, Blum said. “Our filings have shown consistently that consumers will lose no broadband choices in this transaction,” Comcast said in an email.

ISPs will battle FCC reclassification of broadband service under Communications Act Title II in the courts, on Capitol Hill and possibly through pressure on a successor executive branch and FCC, Mediacom CEO Rocco Commisso told us in an interview shortly after Thursday’s commission meeting (see 1502260043). The interview will be shown on C-SPAN's The Communicators. The FCC and the courts are likely to take “a long time” to resolve the likely challenges to net neutrality rules, Commisso said. Though he didn’t say Mediacom would sue over the new rules, he said it was a possibility and he was sure many entities would. The FCC’s open Internet order will create such a windfall for Washington attorneys that they’ll be able to take yearlong vacations, he told us.

The FCC’s focus on tough protections against online blocking and throttling and its current proceeding on extending multichannel video programming distributor (MVPD) privileges to online video companies show that FCC Chairman Tom Wheeler is interested in the future of online video, said Dish Deputy General Counsel Jeffrey Blum at The Federalist Society's Telecommunications & Media Practice Group Future of Media conference Wednesday. Speakers at the event discussed the permutations of the over-the-top/MVPD notice of proposed rulemaking and the FCC’s looming net neutrality rulemaking, set for Thursday’s FCC meeting.

Debate about the scope of the FCC’s Downloadable Security Technological Advisory Committee's effort to recommend a replacement technology for CableCARD dominated its first meeting Monday. While committee members representing Google, Public Knowledge and others discussed replacement technology that could include a user interface and other outputs, cable company officials such as Cablevision Senior Vice President-Engineering and New Technologies Bob Clyne said the committee's recommendation should focus on downloadable security.