MVPDs Pushing Back Against Broadcaster, Programmer Arguments

Disney's claim bundling is generally pro-competitive and pro-consumer, ACA said antitrust law and competition policy look at it under a per se analysis, and certain elements in a tying agreement could add up to an antitrust violation. ACA also defended a Disney-criticized analysis by Columbia University professor Michael Riordan, saying Disney didn't put up any alternative assertions that would lead to different conclusions from Riordan's that bundling raises prices. ACA also said Disney is right that Riordan's analysis involves the idea programmers are monopolists or have market power, "but it does not in the least undermine ACA's case" since there is no good content substitute for the top four-rated broadcast stations and regional sports programming. Disney didn't comment Tuesday. Meanwhile, Mediacom -- in a filing Monday in the docket in response to an NAB ex parte filing (see 1606210044) -- called the NAB's arguments about FCC authority to order interim carriage "a misreading of relevant law" and a mischaracterization of the rule changes Mediacom and others suggested. Mediacom said NAB's assertion the FCC ordering interim carriage would conflict with the right of broadcasters to control their signals under Communications Act Section 325 would force the FCC to adopt "a non-existent limitation" on its own regulatory authority for retransmission consent negotiations. A broadcaster's control of its signals "is not 'unqualified'" under Section 325 and the FCC isn't barred from ordering a station to grant retrans consent for an interim period, Mediacom said. It also disputed NAB arguments against making online blocking during a retransmission consent blackout contrary to good-faith negotiating, with Mediacom saying online blocking rules are unrelated to public performance rules under the Copyright Act cited by NAB, and restricting any online blocking is to protect consumers, not multichannel video programming distributors. In a statement, NAB -- pointing to Consumer Reports’ recent rankings -- said Mediacom should "address its well-known customer service issues rather than seek special regulatory favors from the FCC. The fact is that broadcasters have intellectual property rights in the valuable programming that pay TV companies re-sell for a profit. Mediacom would do well to acknowledge those rights, stop the retransmission consent game playing, and improve its woeful treatment of consumers.”