Showtime's class-action waiver in its terms of use is "buried" behind hyperlinks on the company's website, with none indicating the user is agreeing to a class waiver, plaintiff Victor Mallh said in a docket 1:17-cv-06549 memorandum (in Pacer) filed Friday in U.S. District Court in Manhattan. Mallh, of New York, filed the putative class-action complaint in August after paying to watch the Mayweather vs. McGregor pay-per-view boxing match, unable to watch much due to Showtime technical problems. The memo, in opposition to Showtime's motion (in Pacer) earlier this month to compel arbitration, said the hyperlinks were all gray on a black background and indistinguishable from the rest of the site, and the class waiver doesn't appear until the 15th page of a hyperlink. The programmer didn't comment. It's facing similar litigation in federal courts in Oregon (see 1708280046) and California.

The nondiscrimination condition put on the Comcast/NBCUniversal deal, like FCC program carriage rules, requires a video programming vendor make a prima facie case of unlawful Comcast behavior, the Media Bureau said in an order in docket 17-166 Friday, rejecting a The Word Network (TWN) program carriage complaint. Many thought TWN's complaint faced long odds (see 1706090031). TWN argued the merger approval conditions obviated it from having to make a prima facie case of discrimination. The bureau said TWN didn't make the case of Comcast discrimination via reduced TWN distribution or by demands for exclusive digital programming rights since it didn't show Comcast acted due to TWN not being affiliated with the MVPD. It said TWN arguments that compare its network with Impact, another independent network, don't work as circumstantial evidence of discrimination, and arguments pointing to Comcast-affiliated networks like Syfy fall short since those networks aren't similarly situated in content to TWN. The bureau also said grant of exclusive digital rights wouldn't create a Comcast/TWN affiliation for purposes of the nondiscrimination condition. TWN outside counsel didn't comment.

CableLabs released the Full Duplex DOCSIS 3.1 specification that it announced earlier this month it had completed (see 1710110061), Belal Hamzeh, vice president-research and development, wireless technologies, blogged Thursday.

The racial discrimination complaint against Charter Communications survives only due to lower court errors, such as not requiring plaintiffs Entertainment Studios Networks (ESN) and National Association of African American Owned Media to plead but-for causation, appellant Charter said in a 9th U.S. Circuit Court of Appeals docket 17-55723 brief (in Pacer) Wednesday. The company is appealing a U.S. District Court 2016 rejection of Charter's bid to have the lawsuit tossed out (see 1610260069). Charter said the complaint must be dismissed on First Amendment grounds since it would have the court judge the cable operator's editorial decisions on network carriage. ESN outside counsel Skip Miller of Miller Barondess said Charter is "making light" of a serious issue of racial discrimination and called the First Amendment defense "a tortured use" of free speech rights. The lower court case is on stay during the appeal, he said.

Many analysts don't see virtual MVPDs as a significant threat to pay TV, but that misses how such services expect to be paired with other subscription VOD services, and that aggregation could be a big threat, nScreenMedia's Colin Dixon blogged Tuesday. Unlike traditional MVPDs, virtual ones don't try to provide all the TV content a customer might want and instead are customizing, targeting smaller niches rather than the general population, the analyst said. Dixon said the biggest threat to pay TV could be Amazon Channels, especially as it's beginning to add linear TV channels and as it's likely to next create targeted bundles of linear and on-demand channels.

Cox Communications CEO Pat Esser pushed FCC commissioners on the company's "fair path" proposal for resolving retransmission consent disputes (see 1401290066), according to a docket 15-216 filing posted Tuesday. In meetings with Chairman Ajit Pai and Commissioners Brendan Carr, Mike O'Rielly and Jessica Rosenworcel, Cox said fair path involves mandatory, nonbinding mediation and that could be triggered by either side within 30 days of a contract expiration, and during mediation broadcasters can't pull signals or discontinue online access to content. Cox said under its fair path plan, if mediation doesn't produce an agreement, both parties' last best offers would be made public.

CNN and the National Labor Relations Board are still hammering out terms of a proposed judgment on the hiring of former Team Video Services employees at its Washington, D.C., and New York City bureaus. CNN in a docket 15-1112 response (in Pacer) filed Friday with the U.S. Court of Appeals for the D.C. Circuit suggested four modifications to a proposed judgment (in Pacer) submitted the previous day by the NLRB, including that the judgment explicitly refer to numerous issues being remanded to the board, and that CNN shouldn't be ordered to restore any bargaining unit work without any time frame limitations. The D.C. Circuit was split in August on enforcing the NLRB action against CNN (see 1708040050).

The FCC should increase ancillary service fees for broadcasters using ATSC 3.0 to provide wireless bandwidth and examine whether such uses still constitute broadcasting, said Charter Communications in a letter to the FCC posted in docket 16-142. If the FCC decides “interactive television services are not ‘broadcasting’ then the Commission should clarify that broadcasters may not compel MVPDs to carry such non-broadcasting services as a condition of granting ATSC 3.0 retransmission consent,” said Charter. The FCC should increase the ancillary services fees to reflect “the dramatic increase in the value of spectrum licenses” since the fee was last set 18 years ago and account for the lucrative uses ATSC 3.0 will allow, Charter said. Charter also asked the FCC to restrict how much a simulcast ATSC 1.0 signal is allowed to differ from a 3.0 signal, to restrict low-power stations from “flash-cutting” to the new standard, and to bar broadcasters from making carriage of a 1.0 signal contingent on MVPDs agreeing to carry a 3.0 signal, Charter said. NCTA also said broadcasters should be prevented from requiring carriage of 3.0 in retransmission consent negotiations, in a Wednesday meeting with Media Bureau Chief Michelle Carey, according to an ex parte filing. The FCC shouldn’t let simulcast rules for the new standard sunset after three years as NAB requested, NCTA said. “The Commission must continue to require simulcasting until it determines that conditions warrant allowing a broadcaster to no longer provide an ATSC 1.0 signal.”

The FCC should prevent broadcasters from making MVPDs carry ATSC 3.0 as a condition of carrying their 1.0 signal, said Verizon in a meeting with aides to Commissioner Jessica Rosenworcel Wednesday, said a filing the next day in docket 16-142. The FCC should “impose a one-year ‘quiet’ period prior to the expiration of a retransmission consent agreement for an ATSC 1.0 signal, during which time the broadcast station cannot negotiate for the first-time carriage of an ATSC 3.0 signal,” Verizon said. A draft order predicted to be circulated soon isn't expected to contain provisions on 3.0 in retrans negotiations, and isn’t expected to receive Rosenworcel’s vote (see 1710170048). Protections are necessary so MVPDs aren't forced to make expenditures to allow them to transmit 3.0, Verizon said. The carrier endorsed requiring broadcasts to simulcast both standards, and said the agency should require broadcasters to air “the same programming as the ATSC 3.0 broadcast, with approximately the same geographic coverage, in the same format (high definition or standard definition) and at the same bitrate as the broadcast station’s current DTV over-the-air broadcast.”

AT&T should modify or end some claims it makes in advertising its fiber-to-the-home AT&T Fiber product, the National Advertising Division said Thursday, noting AT&T plans to appeal the finding to the National Advertising Review Board. NAD said the AT&T claims were challenged by Charter Communications, which also will appeal two of its findings. The companies didn't comment.