Much of Sky Angel's legal fight with Discovery and its Animal Planet network may involve what Discovery knew about how Sky Angel distributed content and when did it know its signals were being carried online to Sky Angel subscribers. In dueling briefs filed Tuesday in the 4th U.S. Circuit Court of Appeals (see here and here, in Pacer), Sky Angel cited emails and other communications with Discovery since 2007 that noted its internet distribution, while Discovery/Animal Planet said that throughout dealings with Sky Angel, it never knowingly allowed distribution of its linear networks over the internet, regardless of the distributor. Sky Angel is appealing a 2016 verdict in favor of Discovery (see 1609120042) after the former over-the-top MVPD's 2013 suit claiming breach of contract after Discovery ended their affiliation agreement (see 1303070045). Sky Angel, which now distributes via Dish Network, in 2010 filed a still-open program access complaint against Discovery. The lower court verdict wrongly focused on Discovery's view of the contract rather than on agreed-upon language, as well as whether the programmer was dissatisfied, Sky Angel said in its opening appellant brief. Thus the lower court ruling focused on Discovery internal policy "rather than on any information of which Sky Angel would have been aware," it said. It said U.S. District Court in Greenbelt, Maryland, erred when it found the phrase "high-speed data connection" in the affiliation agreement to be ambiguous. Such a connection "need not be the public Internet, [but] that is an obvious possibility," Sky Angel said in a reply brief (in Pacer) also filed Tuesday. It said Discovery doesn't explain how such a term "can be interpreted to exclude 'the public Internet.'" The lower court's finding "is only reviewable for clear error, and Sky Angel's appeal never comes close to -- or could come close to -- the clear error standard," Discovery/Animal Planet said in an appellee brief. It said Sky Angel, faced with sizable evidence the termination right was exercised in good faith, "takes the Court through a maze of detours and dead-end turns" by arguing for de novo review that gives no deference to the lower court's previous ruling, instead of clear error review. Discovery/Animal Planet said it hadn't allowed any distributor at that time to distribute via IPTV in part because it didn't have internet distribution rights for some licensed content, and due to security and signal quality concerns, and that letting any distributor do so could trigger most-favored nation obligations to other distributors.
The record $280 million decision against Dish Network for Do Not Call violations could prompt similarly situated companies to pay much closer attention to the practices of third-party marketers they hire, Telephone Consumer Protection Act compliance lawyer Christine Reilly of Manatt Phelps told us Tuesday. Dish said it plans to appeal, while government enforcers said the penalty should cause other lawbreakers to take notice. The litigation brought by the FTC and several states and now the "catastrophic" amount of penalties and damages signal to companies using third-party agents to make telemarketing calls that they "need to be careful about what it is they're doing," Reilly said.
The Federal Aviation Administration hasn't decided whether it will employ satellite-based automatic dependent surveillance-broadcast alongside its terrestrial radar and ADS-B systems for monitoring aircraft positions, and it's not clear when, or whether, it will do so, experts told us. "It's -- no pun intended -- up in the air," said Brattle Group consultant Kevin Neels, who co-wrote a white paper earlier this year about the economic case for space-based ADS-B.
Direct broadcast satellite operators likely will return to familiar arguments -- that they don't require as much oversight or impose as big a regulatory burden as other MVPDs -- in opposition to the FCC's proposed DBS regulatory fee hike, lawyers with satellite experience told us Monday. Comments on the NPRM are due June 22, replies July 7, said a notice to in Tuesday's Federal Register.
Cable TV "as a business is failing" on rocketing costs of sports and broadcast programming, said American Cable Association President Matt Polka in an interview with C-SPAN's The Communicators. Mediacom Group Senior Vice President-Legal and Public Affairs Tom Larsen hopes programmers will become more sensible about pricing: "It has been a great ride for all of us for a lot of years; let's not end it now. Let's try to make this work." NCTA didn't comment Thursday.
Public safety items will dominate the FCC's June 22 meeting. Commissioners tentatively will vote on a special emergency alert system code for imminent threats against law enforcement and changes to caller ID rules to allow those receiving threatening calls and law enforcement to get identification information quickly. Such items focus on "help[ing] law enforcement and first responders," Chairman Ajit Pai blogged Thursday.
Proliferation of comments to the FCC on net neutrality -- particularly those generated by dubious means -- is raising the likelihood the agency will give public comments even less weight than it does in other proceedings, agency watchers told us. There have been calls for the FCC to investigate filings not actually made by the people whose names are attached (see 1705250064). The source is largely moot, since such comments are more akin to bumper sticker statements than what the agency would look for, said cable consultant Steve Effros.
The sometimes-acrimonious rhetoric between FCC GOP Chairman Ajit Pai and Free Press on net neutrality could be a harbinger of how the debate plays out, experts tell us. Pai's attack last month on the group that often backs regulation and President Craig Aaron, (see 1704260054) might indicate some concerns the chairman might lose the debate, said consultant Jerry Mechling, formerly a vice president at Gartner and faculty member at Harvard's Kennedy School.
Growing demand for in-flight connectivity could affect how both airlines and satellite operators view obsolescence, industry insiders said at a Washington Space Business Roundtable event Thursday. Moves to wider channels and increased interest in the V- and Q-band mean obsolescence for installed in-flight connectivity systems will come sooner from changing technology than from problems with parts, said Bill Milroy, chief technology officer at antenna maker ThinKom. ViaSat Vice President-Space and Satellite Broadband Richard VanderMeulen said satellite operators are trying to provide LTE-like service today and expect to have to provide 5G-level service in the near future, and airlines ultimately will have to decide whether to prioritize the customer experience or eking out extra life of aircraft. As in-flight connectivity offerings follow the same 4G-to-5G trend of higher speed and capacity, "we're going to have to change our expectations about obsolescence," said Inmarsat Vice President-Enterprise Tim Johnson. SmartSky Networks Vice President-Digital Aviation Bruce Holmes said that beyond in-flight connectivity, an increased number of worldwide broadband networks will lead to "the Holy Grail of air space management" -- pre-computed flight plans avoiding any conflicts of flight paths and maximizing fuel and time efficiency. VanderMeulen said growth of those global networks could also lead to the point where airline passengers have choices of multiple data providers on a flight. He said the Department of Homeland Security laptop ban will have minimal effect on in-flight connectivity demand, since phones are the leading consumers of data on flights. Johnson expects carriers disproportionately affected by such a ban would find work-around for high-value customers, like providing tablets. Asked about typical per-customer connection speeds on a flight, operators largely demurred, saying the focus was on optimized service. Milroy said ThinKom often sees spectral efficiency that can work out to 250 Mbps per aircraft. While for many operators that averages out to 150-200 Kbps per passenger, "of course that number is going up and up," he said. Euroconsult earlier this month predicted more than 17,000 commercial aircraft will offer in-flight connectivity by 2021, up from 6,500 in 2016 and that as of the start of the year, more than 80 airlines installed or committed to in-flight connectivity.
Prompted in part by last week's manhandling of a reporter at an FCC meeting, the National Press Club told us Thursday it plans to organize "a summit" among news, public affairs and security interests to discuss best practices or possible new models for media access to government agencies. "We have had too many of these incidents happen," said NPC Journalism Institute Freedom Fellow Kathy Kiely. "Having a conversation might be helpful" in balancing security concerns with maximizing openness, she said. Kiely said the FCC has been invited to participate. The agency didn't comment.