Former Fox News host Gretchen Carlson and former Fox News CEO Roger Ailes are accusing one another of forum shopping in their fight over whether Carlson's sexual harassment claim against Ailes should be arbitrated or go to court. Carlson "is engaged in the ultimate forum shopping" by filing her sexual harassment claim in New Jersey state court, even though neither she nor Ailes lives there, and citing New York City law, while being required to bring claims to arbitration at the American Arbitration Association in New York City, Ailes said in a memorandum in opposition to Carlson's application for a temporary restraining order. Preliminary injunctive relief should be denied since Carlson can't demonstrate a likelihood of success on the merits, irreparable harm if she doesn't get injunctive relief, a balance of hardship tipped in her favor or that such an injunction is in the public interest, Ailes said in the filing (in Pacer) Tuesday in U.S. District Court in Newark, New Jersey. Carlson, in her application (in Pacer) for order to show cause filed earlier this month, asked the court to restrain Ailes from pursuing the petition under the Federal Arbitration Act he filed in U.S. District Court in Manhattan (see 1607180019). In that application, Carlson said that Ailes waived venue issues in his motion to compel arbitration when he omitted any claim the venue was more properly New York than New Jersey and that his filing in New York "amounts to prohibited judge-shopping and forum shopping."

Expect continuing rate increases and broadcaster-led blackouts with FCC Chairman Tom Wheeler's decision earlier this month to end its consideration of changes to the totality of circumstances test in good faith negotiating, panelists said Tuesday at the Independent Show, co-hosted by the American Cable Association (ACA) and the National Cable Television Cooperative in Orlando. An ACA news release said Shentel Vice President-Industry Relations and Regulatory Chris Kyle said small multichannel video programming distributors (MVPD) must begin educating consumers and regulators about broadcast stations' increase fee demands before next fall's round of retransmission consent negotiations. "There will be more blackouts," ACA President Matthew Polka said. "There will be more price gouging by broadcasters. Government will have no choice but to enter this discussion whether they like it or not and we're going to make sure that happens." MVPDs and allies expressed dismay when Wheeler said the agency wasn't making any retrans rule changes (see 1607140047).

NTCA is continuing its eighth-floor lobbying against the FCC's residential overbuild condition for New Charter. In an ex parte filing posted Friday in docket 15-149, NTCA recapped a meeting between its CEO, Shirley Bloomfield, and Commissioner Jessica Rosenworcel, at which the group repeated the case it made earlier this month in ex parte meetings with Commissioners Mike O’Rielly’s and Ajit Pai’s offices for reconsidering that broadband buildout requirement (see 1607080048). NTCA, the American Cable Association and Competitive Enterprise Institute have all petitioned the FCC to reconsider the overbuild conditions (see 1606100043).

Axis Insurance is responsible for defending and indemnifying Maryland's Ellicott City Cable in its legal fight against DirecTV, U.S. District Judge Richard Bennett of Baltimore ruled in a memorandum opinion (in Pacer) Friday. DirecTV sued Sky Cable, Ellicott and their owners in 2013, alleging DirecTV agent Sky Cable was fraudulently using the DirecTV Multiple Dwelling Unit Bulk Program to get discounted subscription rates for clients including Ellicott; that case settled in November 2015. After Ellicott notified Axis about the suit, the insurer denied coverage on the grounds the underlying action came from Ellicott's alleged intentional unauthorized use of DirecTV programming and is within the exclusions of the liability policies it issued, Bennett said. In the opinion, the judge dismissed a pair of arguments Axis made about those exclusions, denying an Axis motion for dismissal and granting an Ellicott cross-motion for partial summary judgment. Axis didn't comment Monday.

Viamedia's legal fight with Comcast is based on legally untenable theory -- that not dealing with a competitor is a violation of antitrust laws -- Comcast said Friday in a motion to dismiss in U.S. District Court in Chicago. Viamedia sued Comcast in May, alleging in its complaint (in Pacer) Comcast used its control of interconnects in certain Spot Cable Advertising Representation markets to elbow out ad services competition from Viamedia in such markets as Detroit and Chicago, while also using its interconnects control to lure away former Viamedia cable company clients such as RCN and WideOpenWest. Comcast in its motion (in Pacer) to dismiss said when its contract with Viamedia to support ad representative services in Chicago and Detroit expired in 2012, Comcast exercised its right to compete for cable companies' business in those markets. But Comcast said "it long has been settled that the antitrust laws do not compel a business to deal with its competitors," saying it and Viamedia "had an established pattern of competing, not cooperating, outside of Chicago and Detroit." Instead, it said, Viamedia is trying to use the court to put in place a perpetual contract, "but the antitrust laws require no such result, which would plainly reward complacency rather than industry." Viamedia didn't comment Monday.

Fox News Network has shown the "extraordinary circumstance" that would warrant more time to file a reply brief in its litigation against TVEyes, though if the court grants that extension, it should give TVEyes more time for its reply brief due Aug. 15 and for filing the deferred appendix, TVEyes said in opposition (in Pacer) filed Thursday in the 2nd U.S. Circuit Court of Appeals. Fox in its motion (in Pacer) filed earlier this month sought to move the deadline for its reply in support of its cross-appeal from Aug. 29 to Sept. 15; in it, Fox cited the importance and complexity of the issues in the case, the interests of parity and the summer holiday season. With 13 amicus briefs having been filed in the appeal of a U.S. District Court decision that TVEyes' archiving function is fair use, but emailing, downloading and date/time searches aren't, and with a subsequent injunction (see 1606230036), Fox said, "the parties' appellate briefs are, and necessarily must be, lengthy and unusually meticulous as they parse nuanced issues of copyright law and the technology involved," thus requiring more time. TVEyes in its opposition said none of those cited issues is on par with the "extraordinary circumstances" spelled out in Local Rule 27.1(f). "Most cases to come before this court involve 'important' (and often 'complex') issues with fully developed records," TVEyes said.

The HTML5 101 document that NCTA and AT&T gave the FCC should help spell out why the pay-TV backed set-top box plan "offers a more productive path forward ... when it comes to competition, content diversity, copyright protection, and consumer welfare" than the NPRM before the agency, NCTA said in a blog post Friday. The apps proposal will obviate the need for set-tops, but "what it will not and should not do is to permit third parties to ignore copyright law and the decision of content creators as to how their content is packaged and presented to consumers," NCTA said. It also lashed out at unnamed critics as taking an "extreme position ... that the FCC must go further to 'unbundle the app.'" The HTML5 explainer -- posted Friday in docket 16-42 -- says what HTML5 is: the latest version of World Wide Web Consortium standards. Along with the 33-page primer, NCTA/AT&T provided an index of questions the FCC asked about the plan (see 1607110042 and 1607210044) and referred to various sections in the document that address them. For example, on the question of whether such HTML5 apps would be free and usable without additional multichannel video programming distributor-provided equipment, the index pointed to page 24 of the filing, where NCTA/AT&T said MVPDs "would license the HTML5 apps without charge to manufacturers of third-party navigation devices for their app stores, provided that the device manufactures and stores do not impose any fee or surcharge on MVPDs or consumers for providing or using the app or for transactions enabled through the MVPD service." On page 13, it said consumers would download the app from an app store associated with whatever device they're using and not require any new cable gateway device. Other questions in the index include whether the functions of an MVPD set-top and of the described app be identical and whether license terms will let a device's universal search include third-party apps on an equal and non-discriminatory basis alongside MVPDs' apps. The filing directly answers some questions, but other answers were left vague, such as whether all the content available via a set-top will be equally available to consumers in an app regime, Public Knowledge Senior Staff Attorney John Bergmayer told us. The HTML5 approach still raises some concerns such as that such universal apps often are "lowest common denominator" and don't take advantage of the full functionality of devices, Bergmayer said. Meanwhile, pay-TV programmers continue to push back against the FCC's original set-top proposal. The plan "concerns programmers because of the lack of sufficient mechanisms to respect and enforce the myriad provisions of the contractual agreements between programmers and MVPDs," said an ex parte filing posted Friday in docket 16-42 on a meeting between programmers and FCC staff. Because of that contractual provision concern, the programmers said they "would continue to have concerns with any proposal (app-based or otherwise) that would not honor this threshold element." Meeting were Viacom Senior Vice President-Government Relations and Regulatory Counsel Keith Murphy, 21st Century Fox Senior Vice President Jared Sher, Time Warner Vice President-Public Policy Kyle Dixon, Disney Vice President-Government Relations Susan Fox, Scripps Networks Vice President-Legal and Government Affairs Kimberly Hulsey, CBS Senior Vice President-Regulatory Policy Anne Lucey and FCC staffers including Gigi Sohn, Louisa Terrell and Jessica Almond from Chairman Tom Wheeler's office.

Comcast will roll out a pay-as-you-go TV and Internet service in four states in 2016 and nationwide in 2017, the company said in a news release. Xfinity Prepaid Services will let consumers sign-up for TV or Internet service and refill their subscription for seven or 30 day increments "any time they like," the cable ISP said. The initial rollout will be in Michigan, Georgia, Florida and Indiana, it said. Comcast will also offer the service at Boost Mobile locations, the company said.

Fifty-nine percent of U.S. households have a subscription VOD service, up from 47 percent in 2014, Leichtman Research Group said in a news release Wednesday. SVODs are particularly popular among cord-cutters and cord-nevers, with 70 percent of households without a pay-TV subscription having an SVOD, compared with 57 percent of pay-TV subscribers, Leichtman said. Among those who have an SVOD service, 47 percent subscribe to more than one, Leichtman said. It said 41 percent of adults watch video on non-TV devices such as home computers and mobile devices on a daily basis, and 62 percent do so weekly, with those numbers up from 27 percent daily and 53 percent weekly three years ago. The data are based on surveying 1,209 households nationwide. “SVOD services are in the majority of U.S. households, and along with video to non-TV devices, have become core components in allowing pay TV non-subscribers to cobble together a variety of viewing options,” said President Bruce Leichtman. The report is based on a survey of 1,209 U.S. adults done by phone in May-June 2016.

The number of cable ISP-provided Wi-Fi hot spots has reached 500,000 nationwide, NCTA said in a blog post Wednesday, citing the Cable WiFi Alliance. Saying that number has doubled in the past two years, NCTA said "that means more customers can experience near-ubiquitous broadband connectivity, and communities benefit knowing there is secure, reliable internet access already built out."