A U.S. District judge's dismissal of a complaint alleging racism in Comcast's carriage decisions (see 1610060002) "erroneously imposed a heightened pleading standard" and wrongly drew inferences favoring Comcast's alternative explanations. That was the major thrust of the Entertainment Studios Networks (ESN) and the National Association of African American Owned Media (NAAAOM) opening brief (in Pacer) filed Friday with the 9th U.S. Circuit Court of Appeals. ESN/NAAAOM said their allegations showed plenty of evidence that undermined Comcast explanations, such as the numerous, obscure white-owned networks Comcast added to its lineup since 2010 while claiming bandwidth restrictions kept it from adding popular ESN networks. ESN/NAAAOM also said Comcast's claim of benign motive isn't presumed true at the pleading stage, meaning the plaintiff isn't required to present compelling evidence to rebut it. And ESN/NAAAOM also said Comcast violated Section 1981 of the Civil Rights Act, which governs equality in contractual relationships, if it was motivated by race as well as by business when not contracting for ESN content, and its racial discrimination claim and Comcast's arguments about viewer demand and bandwidth restrictions "do not present mutually exclusive explanations." Comcast didn't comment Monday.

Fox News Network is dropping some of its complaints in its affiliation lawsuit against Charter Communications, FNN said in a letter posted Thursday in New York Supreme Court. FNN said the move to discontinue the six claims subject to a Charter motion to dismiss is aimed at "streamlin[ing] this proceeding and in contemplation of promptly filing a motion for summary judgment on the core contract issue in dispute -- the question of which agreement governs Defendants' distribution of FNN programming following Charter's acquisition" of Time Warner Cable. While dropping the declaratory judgment, breach of obligation of good faith and fair dealing, unjust enrichment, indemnity, estoppel and fraud claims, the programmer said "the language is plain and unambiguous" on the remaining breach of contract claim. FNN also said Charter indicated it plans to bring a counterclaim arguing the programmer breached its agreement with the MVPD "by failing, in some unspecified way, to comply with its obligations under a most favored nation provision ... of the contract." FNN said the court should settle the issue of which contract -- Charter or TWC -- governs before any counterclaim proceedings in order to avoid wasting time and resources. Charter didn't comment Friday.

Being a Cablevision subscriber doesn't warrant U.S. Magistrate Judge Kathleen Tomlinson of Central Islip, New York, recusing herself from Cablevision litigation, said counsel for defendants Cablevision and owner Altice and for plaintiff Paul Jensen of Brooklyn in a letter (in Pacer) Wednesday to the judge. Jensen -- who alleges Computer Fraud and Abuse Act and New York state law violations by Cablevision in its public Wi-Fi hot spot business practices (see 1704070024) -- said in the letter he "wishes to waive any conflict and to continue to have the Court preside over this matter."

Charter Communications and NCTA are pushing the FCC to seek comment on right-of-way fees charged by local governments on cable ISPs. In an ex parte filing Wednesday in docket 17-84, Charter and NCTA recapped a meeting with aides to Chairman Ajit Pai and Commissioner Mignon Clyburn to ask the agency to get input on the broadband infrastructure NPRM on the agenda for the April 20 meeting on the lawfulness of such fees. The cable parties said the FCC needs to ensure the NPRM doesn't create confusion about the agency's pole attachment rate regulations. The agency has tried to harmonize rates through the cable rate formula and telecom rate formula, but a third, "commingled" services formula "could introduce uncertainty," they said. Attendees were NCTA Associate General Counsel Steve Morris and Charter Vice President-Regulatory Affairs Christianna Barnhart. Charter also met with Pai aide Nick Degani to discuss municipal fees on broadband operations and how they affect broadband deployment, said a separate ex parte filing Wednesday.

Hyperlocal content could be the competitive offering that helps bolster small MVPDs caught between escalating TV channel licensing expenses and increased competition from online services, said nScreenMedia analyst Colin Dixon in a blog post Tuesday. It said one panel at this week's IP Vision Conference & Expo discussed the strong desirability local content still has, with such ideas being suggested as video from local events or trying to better partner with local broadcasters largely ignored by the major MVPDs. "Bundling these channels inside a video service could be a win for everyone concerned," nScreenMedia said.

The American Cable Association urged the National Institute of Standards and Technology to clarify its approach to developing metrics as part of the agency’s work to update the 2014 Cybersecurity Framework, in comments released Tuesday. NIST collected feedback through Monday on its draft v1.1 framework update, which included metrics language aimed at starting a conversation on how to effectively measure use of the framework (see 1701100084). Other commenters urged NIST to be cautious about metrics development and urged inclusion of language in the framework on vulnerability disclosure guidelines and cybersecurity insurance (see 1704110045). The metrics language in NIST’s draft v1.1 “is confusing, and in some respects contradictory,” ACA said. “It is not nearly ready for adoption,” in part because ACA said it “fails to convey clear, definitional guidance, and this lack of clarity is likely to frustrate small operators and may lead some to give up on the Framework altogether. Moreover, based on the proposed changes, those that do attempt to implement the entire Framework, including its recommendations on measurement, may end up relying overmuch on a one-size-fits all checklist assessment created by third party consultants or auditors, rather than making the type of inward-looking, individualized approach to cybersecurity risk management that the Framework otherwise encourages.” NIST should instead “continue to work with the private sector to develop a clearer and more useful approach,” ACA said.

Altice USA is planning an initial public offering of an undetermined number of Class A shares of common stock, it said in a prospectus filed Tuesday with the SEC. Altice said that since its 2015 acquisition of Suddenlink and 2016 acquisition of Cablevision, it has made a number of operational changes for greater efficiency, upgraded its networks and expanded its 1 Gbps broadband service to about 60 percent of the Suddenlink footprint, compared to about 40 percent prior to the acquisition. It said it started its five-year fiber to the home (FTTH) buildout, which will bring speeds of more than 10 Gbps to its Cablevision footprint and part of its Suddenlink footprint. The firm said it plans to introduce a new home communications hub in Q2 that incorporates a set-top box, internet router and cable modem. In a note to investors, Pivotal Research Group analyst Jeff Wlodarczak said Altice's U.S. operations are showing "solid operating momentum" that should ratchet further upward by the FTTH move.

The deadline for selected cable operators to submit price survey data for the FCC's annual cable TV statistical report is June 2, the Media Bureau said in an order Monday in docket 92-266. The bureau said cable operators selected will have to provide information regarding average basic cable service, cable programming service and equipment rates effective Jan. 1, 2016, and Jan. 1, 2017.

CBS and some production companies are nearing private resolution of a lawsuit over alleged unpaid overtime wages brought by parking production attendants. In a joint status report (in Pacer) filed Friday in U.S. District Court in Manhattan, counsel for both sides said they hoped to have a proposed case management plan submitted by May 18. CBS TV Studios, CBS Broadcasting, Eye Productions and Possible Productions are being sued by attendants responsible for securing lots and streets during productions being shot in the New York City area (see 1607280059).

The roughly 90,000 pages of documents, 35 interrogatories and seven depositions generated in discovery in Paul Jensen's 2015 lawsuit against Cablevision should be treated as if they were in response to his 2017 purported class-action suit against Cablevision and Altice, counsel for both sides said in a proposed joint discovery plan (in Pacer) filed Thursday in U.S. District Court in Manhattan. According to the plan, discovery from the 2015 suit "sufficiently addressed all merits- and class-certification-based issues ... and that further discovery does not need to be conducted," and counsel asked the court to enter a protective order similar to the one it entered in the 2015 case. Plaintiff's counsel said further discovery might be needed on the business relationship between Altice and Cablevision, while Altice/Cablevision counsel said they're considering limited additional discovery on a claim of violations of the Computer Fraud and Abuse Act (CFAA) , which the plaintiff voluntarily dismissed in the 2015 litigation. Jensen, of Brooklyn, alleges Altice's Optimum Online Service -- by making residential broadband routers also work as a public Wi-Fi hot spot without customer authorization -- is violating CFAA and New York state law. Three counts of Jensen's 2015 complaint against Cablevision were dropped voluntarily in December, and a federal court in January dismissed the remaining count -- a violation of New York state law -- saying it no longer had jurisdiction.