The FCC continues to ask the 6th U.S. Circuit Court of Appeals to hold in abeyance NCTA's appeal of the agency's 2008 cable leased access order. In a docket 08-3369 status report (in Pacer) filed Monday, the FCC said if the agency ultimately decides to vacate the order being challenged, the appeal "will become moot." Commissioners in June adopted a Further NPRM proposing to vacate the order (see 1806070021).

Charter Communications has entered into all interconnection agreements with qualified parties as required by the FCC order allowing its buys of Time Warner Cable and Bright House Networks, Charter said in its latest annual interconnection report, posted Thursday in docket 16-197. All such interconnection agreements have been submitted to the FCC, it said.

Gracenote's new mobile video analytics tool gives MVPDs, video streaming services and hardware makers visibility into performance of mobile video streaming applications and how it affects user behavior and engagement with their platforms and competitors, said the unit of Nielsen formerly owned by Tribune (see 1612200022). It shows wireless providers areas of network congestion.

Growing virtual MVPD services like Sling TV and DirecTV Now helped mitigate some subscriber defections of traditional MVPDs in Q2, Kagan said Thursday. Cable, direct broadcast satellite and telcos lost 860,640 video subscribers, for 89.4 million residential customers and 92.2 million overall. DBS had its second-largest quarterly decline, at 478,000. AT&T's DirecTV Now and Dish Networks affiliate Sling TV numbers cut overall quarterly subscription losses about 45 percent and raised the residential figure to 93.5 million. Residential MVPD penetration is 75 percent, when including Sling TV and DirecTV Now. The quarter had the second largest Q2 video subscriber drop for cable since 2015, bringing year-to-date losses to 685,790. Telco video losses improved, with the industry losing 56,000 subs, a fraction of its typical quarterly losses the past two years. Others have also said vMVPDs offset some traditional MVPD customer losses (see 1808150010).

BMG won't be barred from referring to copyright infringement as stealing, theft or some similar term when issues remanded to U.S. District Court in Alexandria, Virginia, are retried, Judge Liam O'Grady said in a docket 14-cv-01611-LO-JFA order (in Pacer) Tuesday. The judge said such a bar, as requested by Cox (see here, in Pacer), wouldn't be appropriate since such language is "not unduly prejudicial" to the company. The ISP argued such argumentative statements "risk confusing the jury" and asked that BMG counsel be ordered to use instead such language as "alleged infringement of BMG's Copyright rights." The 4th U.S. Circuit Court of Appeals in February reaffirmed the lower court's denial of a safe harbor defense for Cox in BMG's copyright infringement complaint and remanded the case for a new trial because of jury instruction errors (see 1802010026). That is scheduled to begin Aug. 28.

While traditional pay-TV operators continue to lose subscribers, it's likely that if virtual MVPD subscriber numbers were available and counted, pay-TV subs increased in Q2, nScreenMedia analyst Colin Dixon blogged. Moderating pay-TV subscriber losses would be uplifting news for programmers, many of which are cheering the rise of vMVPDs, he said: Those same content companies undoubtedly "will show no restraint" when seeking price increases from vMVPDs and are all busy building direct-to-consumer offerings in anticipation of "the pay TV party ... com[ing] to an end." Another Tuesday report also said over-the-top viewers are watching more vMVPD content (see 1808140014 or 1808140011).

Over-the-top viewers are spending more time watching virtual MVPDs, blogged comScore Tuesday. Nearly half the time spent by OTT households with a vMVPD such as Sling TV, DirecTV Now, PlayStation Vue, Fubo, Philo, YouTube TV and Hulu Live is spent with that service, said analyst Susan Engleson. OTT adoption rose 17 percent year on year, said the firm. VMVPDs “are a prime example of viewers utilizing digital mediums to watch live content formerly only available on linear TV,” Engleson said. Though penetration is at 5 percent of U.S. households, it rose 58 percent. The average OTT household with a vMVPD service uses 1.5 times more over-the-top services than the average OTT household. Engleson sees those numbers accelerating due to competitive price points and low barriers to entry for consumers because no installation is required: “We will continue to see significant growth in virtual MVPDs in the years to come.” Other providers are testing or have announced plans for a vMVPD offering, “indicating that they take this trend seriously,” she said. With cable companies adding the ability to access Netflix via a set-top box, “it may be that future generations do not distinguish between a streaming box and a cable box at all -- there will just be one place consumers go for their entertainment,” she said.

Cable officials pressed the FCC to prevent duplicative state and local regulations and fees and other regulatory barriers hindering cable operator deployment of facilities and services. The agency should "address ongoing efforts by local franchising authorities to subject non-cable services delivered over cable systems to duplicative regulations and fees," said a filing on a meeting officials of NCTA, Comcast, Charter Communications and Cox Communications had with Matthew Berry, Chairman Ajit Pai's chief of staff, posted Tuesday in docket 17-84 on accelerating wireline broadband rollout.

The FCC Office of Engineering and Technology signed off on Altice USA plans for a variety of both indoor and outdoor wireless citizens broadband radio service product trials in the 3.5 GHz band in anticipation of a planned mobile service to rollout in 2019. In applications for special temporary authority, approved last month, last week and Tuesday (see here, here and here), Altice said it plans testing for six months in the 3650-3700 MHz band in two sections of Long Island, New York, and in the 3550-3700 MHz band in Arkansas. CEO Dexter Goei, in an earnings call with analysts this month, said the CBRS testing "may be a good complementary capacity" to its own WiFi network and MVNO partner Sprint's network, as Altice remains on track to launch a mobile service in 2019. The company didn't comment Tuesday.

Cable and leased programming access interests remain at odds and with very different views of the video distribution market, according to FCC docket 07-42 reply comments that were due Monday in response to a Further NPRM on a leased access rules update that includes rescinding a 2008 order that never took effect (see Notebook section 1806070021). None of the reasons Congress mandated a set-aside of channels for leasing by programmers unable otherwise to secure a spot on a cable system’s channel lineup still exist 34 years later, NCTA said, saying leased access advocates are ignoring "seismic shifts." It opposed any new leased access rules and said the agency should eliminate requirements on cable system operators. The American Cable Association backs NCTA's call for revisiting the rules on part-time leased access programming and said the FCC should vacate altogether the 2008 leased access order. Charter Communicators also opposed additional leased access requirements. Leased Access Programmers Association (LAPA) President Charlie Stogner said there's no good reason not to institute the 2008 order and said cable arguments about the difficulty dealing with part-time leased access run contrary to the fact, and ad inserts pose the same challenges. LAPA Vice President Duane Polich said the issues that spawned the 2008 order "remain true today," with barriers thrown up by cable operators the reason leased access use by video programmers dwindled. He said despite cable arguments alternative distribution routes are available to such programmers, "the internet is not cable" given the robustness and viewing ease of cable. Citing changed competitive dynamics, the George Mason University Technology Policy Program said the leased access rules "are likely no longer constitutional" because cable no longer has "bottleneck monopoly power" over TV content.