Ericsson's cloud-based MediaFirst TV Platform will be integrated into Google's Android TV set-top operating system, opening the door to bringing MediaFirst services such as 4K Ultra HD live TV channels, VOD and cloud DVR to more users, Ericsson said in a news release Thursday. Ericsson said the deal will allow pay-TV operators to work with Android TV set-tops for new functionality and to offer additional applications.

Boxing fans may be disappointed by the May 2015 bout between Floyd Mayweather and Emmanuel Pacquiao watched widely on pay-per-view, but various state laws don't provide a remedy for disappointed PPV viewers, and the various class-action suits against Mayweather, Pacquiao and HBO don't allege any cognizable injury to a legally protected right or interest, Mayweather said a motion (in Pacer) to dismiss Tuesday in U.S. District Court in Los Angeles. The plaintiffs' PPV and ticket purchases "at most gave them a right to see (or show) a fight at a specific time and place, which all admittedly received," defendants Pacquiao and HBO, said in a similar but separate motion (in Pacer) for a dismissal order Tuesday. All claims of fraud under various state statutes regarding nondisclosure of an existing Pacquiao injury lack an actionable omission or misrepresentation, Pacquiao/HBO said. They said the plaintiffs never showed a causal link between their purported harm and the alleged misrepresentations. Fifteen separate class-action complaints were brought against the boxers and HBO by PPV customers in 12 states and by Puerto Rico, PPV commercial entities nationally and live attendees of the event. Defendants also include boxing promotion company Top Rank, two of its corporate officers and a Pacquiao business manager. The Mayweather motion said the claims are made up of "conclusory allegation and unsupported inferences" and haven't pleaded facts with specificity to meet the pleading requirements of fraud-based claims. It said arguments of false advertising violations fail since the plaintiffs aren't in the "zone of interests" of the Lanham Act (which governs unfair competition) and Mayweather's statements are non-actionable and protected by the First Amendment. "Both the Pacquiao and Mayweather defendants’ motions to dismiss miss the central point that consumers were induced to purchase the PPV based on facts that were known to the Defendants well before the fight but were purposely withheld from the public in order to drive PPV sales to record levels," lead plaintiffs' counsel Hart Robinovitch of Zimmerman Reed emailed us Wednesday. "Mr. Pacquiao was obligated to disclose his shoulder injury on the pre-fight medical questionnaire but answered it untruthfully under penalty of perjury. Reasonable consumers would have wanted to know this important fact before making the decision to part with $100 to see the fight. Numerous commentators voiced outrage following the fight, supporting plaintiffs’ position that consumers buying the fight were duped. Plaintiffs in the Pacquiao litigation are quite confident that they will be able to demonstrate that the arguments Defendants present in their motions to dismiss are misplaced and that the motions will be denied."

A key FCC priority in its independent/diverse programming proceeding should be determining the agency's ultimate policy goals in those directions and whether they should include maintaining the existing number of such programmers and/or ensuring more programming diversity, Goodfriend Government Affairs said in meetings with Media Bureau and commissioner staffers, according to an ex parte filing posted Wednesday in docket 16-41. Goodfriend in the meetings also presented a list of questions that, if incorporated in any programming diversity NPRM, "would send a positive signal" both to indie programmers and the capital markets the FCC is committed to preserving and promoting such programming and diverse ownership and content. The questions include whether the FCC should set a goal for survival of indie programmers and what policy actions it could take to achieve that goal; how the agency would define "independent programmer"; whether its diversity goals should include race, ethnicity, religion, gender or other demographic characteristics; and whether channel set-asides and nondiscrimination requirements help increase programming diversity. According to the filing, Goodfriend spoke with Commissioner Mignon Clyburn's chief of staff and media policy adviser, David Grossman, and separately met with multiple Media Bureau staffers including Policy Division Chief Martha Heller. Goodfriend has represented indie programmers.

With Charter Communications having satisfied all the requirements of the Antitrust Procedures and Penalties Act, DOJ asked the U.S. District Court for the District of Columbia to enter final judgment in its civil antitrust proceeding against Charter. As part of its Aug. 31 motion (in Pacer) with the court asking for final judgment, DOJ included a notice of compliance (in Pacer) saying Charter, Time Warner Cable and Bright House Networks complied with the act's requirements. DOJ sued Charter/TWC/BHN in April, while simultaneously proposing a settlement that would limit Charter's use of most-favored-nation provisions and ban it from retaliating against programmers for licensing to online video distributors (see 1604250039). The case received one comment in the 60-day period, and DOJ said that dissatisfied customer's concerns fall outside the antitrust issues raised in the settlement (see 1608170016).

Univision's distribution contract with Time Warner Cable remains operative, even though TWC is now part of Charter Communications, since Charter's contract with Univision expired in June, Charter said in a motion to dismiss in New York State Supreme Court in Manhattan. Univision is suing Charter, claiming license fees in its TWC agreement apply only to the legacy systems and through this year (see 1607080022). Charter said Friday the structure of New Charter and the language of the TWC contract back its argument the TWC contract applies to all of New Charter. Univision didn't comment Tuesday. Typically, such contractual disagreements settle before becoming litigation, a sign numerous such programmer/New Charter disputes may have come up since the close of the TWC and Bright House Networks deals in May, one cable lawyer who has been active in retransmission consent and program access negotiations told us Tuesday. The language in programmer/cable distributor agreements is sometimes unclear on merger/acquisition transactions, and language in such agreements can vary significantly by deal, the lawyer said. Charter undoubtedly pursued the TWC deal in part because of the acquired company's lower-priced programming agreements, with TWC having been an effective procurer of programming rights, the lawyer said. Charter didn't comment Tuesday. Its reply in a similar suit brought by Fox News Network (see 1607200065) is due Friday in the Manhattan court. Charter said Univision's twin breach of contract claims -- that it applied the wrong rate to the legacy Charter systems after the Charter contract expired and it hasn't negotiated a new contract or agreed it can't apply the TWC contract to any New Charter cable system starting in 2017 -- fail to state a contract claim as a matter of New York law. Univision hasn't pointed to any part of the New Charter contract entitling it to negotiate a new contract, Charter said. Charter said it wasn't seeking dismissal of Univision's declaratory judgment claim. While acknowledging it and Univision disagree about when the TWC contract ends -- end of this year or in 2022 -- Charter said Univision showed no breach of contract: "If Univision does not want to accept payments pursuant to that contract after year-end, then it can terminate the signal on Defendant's cable systems at that point."

The Consumer Video Choice Coalition still supports the original FCC set-top proposal, but said an app- based solution must preserve the same core ideas outlined in the NPRM, representatives from CVCC members Incompas, CCIA, Hauppauge, Public Knowledge, Vizio and TiVo relayed in a meeting Tuesday with aides to FCC Chairman Tom Wheeler and with FCC Chief Technologist Scott Jordan, according to an ex parte posted Friday in docket 16-42. They said an app-based set-top proposal needs to be available on a wide choice of platforms, offer the same services as multichannel video programming distributors and include universal search and an “open, independent UI [user interface]." The proposal would need to include rules preventing discriminatory treatment by MVPDs, and strong enforcement mechanisms, CVCC said. “Any solution adopted by the FCC should ensure that consumers can access all the content they have paid for on the device of their choosing.” NAB issued a warning on copyright related to the proceeding, also Friday in the docket (see 1609020032).

Private equity firm TPG Capital taking over cable ISPs RCN and Grande Networks should lead to stronger independent competition in markets "served by some of the nation’s largest providers ... including Comcast, Charter, Verizon, and AT&T," said Radiate Holdings, Yankee Cable and Grande Investment in a series of FCC International Bureau filings Thursday (for example, see here). The three asked for the transfer of RCN and Grande Networks Communications Act Section 214 authorizations to Radiate. Radiate is a holding company set up by TPG Capital, with minority partners in Radiate including Alphabet-owned Google Capital, an affiliate of Dragoneer Investment Group and some executives from Patriot Media Consulting. Patriot manages RCN and Grande for Yankee and Grande Investment, respectively, and will do the same for TPG after the close, said the filing. RCN has roughly 474,000 subscribers in Illinois, Massachusetts, Maryland, New York, Pennsylvania, Virginia and Washington, D.C., and Grande has more than 166,000 in Texas. The companies said RCN and Grande under one owner will bring "a single strategic focus," and Patriot "will be able to benefit from more favorable financing and programming arrangements and to achieve greater operational efficiencies." That eases such plans as a footprint-wide upgrade to DOCSIS 3.1, and makes them more competitive against larger rivals, it said. The RCN/Grande deals won't cut head-to-head competition in any market or give Radiant the incentive or ability to limit consumer access to online video distributor services, said the application. TPG's portfolio includes investments in Univision, Evolution Media and STX Filmworks, its website showed.

With the operative complaint having been torpedoed by the Ellis v. Cartoon Network decision that a user of a free app that gets free video content doesn't equal a customer (see 1511030020), CNN now faces a new "long shot" allegation -- that a user of its app who also subscribed to a cable package including CNN should be considered a CNN "subscriber" under the Video Privacy Protection Act (VPPA), the cable network said in a response brief (in Pacer) filed Thursday with the 11th U.S. Circuit Court of Appeals. Plaintiff Ryan Perry said subscribers can sue under VPPA for unlawful disclosure of data, but courts have been divided over the meaning of "subscriber" under VPPA (see 1607060016). CNN said the argument, introduced in Perry's appeal of a lower court dismissal of his suit, doesn't add any signifiers indicating a customer relationship with CNN, such as registration or payment commitment. "At best, [Perry's] proposed allegations dictate that he is a subscriber of his cable company -- not CNN, a single network in his cable bundle that the cable provider can remove at its discretion," the network said. The plaintiff arguments also fail because of lack of any allegation analytics provider Bango -- with which CNN shared data of its mobile app users -- actually identified him or any facts showing Bango could do so, CNN said. In an amicus brief (in Pacer) Wednesday backing the plaintiff, the Electronic Privacy Information Center said Congress deliberately construed "personal information" broadly under VPPA to cover myriad ways identifiers could link to an actual person, and the U.S. District Court ruling "got it exactly backwards" when it said techniques for linking online transactions to individuals didn't constitute personally identifiable information under VPPA. The lower court "also misunderstood the purpose and scope" of VPPA by ruling that people who get videos via a mobile app offered by a video service provider weren't consumers under VPPA.

The 2nd U.S. Circuit Court of Appeals upheld a lower court decision to throw out a lawsuit alleging Time Warner Cable tied some services to leasing of a set-top box. The three-judge panel was split, with Judges Ralph Winter and Denny Chin in their decision (in Pacer) saying the plaintiffs failed to prove the set-tops and the premium programming they transmit are separate products under antitrust law and that TWC had enough market power to force an illegal tie-in. In a dissent (in Pacer), Judge Christopher Droney said the plaintiffs made a plausible case that set-tops and premium cable service constitute separate products in the eyes of consumers because even if subscribers were able to buy cable boxes directly from the manufacturer, TWC wouldn't allow them to receive premium cable service without leasing one from it. "The FCC’s failed efforts to disaggregate set-top cable boxes from cable services reinforce, rather than undermine, Plaintiffs’ claim," Droney said, saying FCC efforts to create an alternative to set-tops shows the agency sees the boxes and cable service as distinct products. The judge said he disagreed with the majority when they concluded the plaintiffs conflated the markets for basic and premium cable service, and while the plaintiff allegations are based largely on nationwide data for basic services, those numbers are relevant to TWC premium market share as well. Charter Communications now owns TWC. Charter didn't comment. Class-action lawyer Michael Pospisil of Edgar Law Firm, who represented the plaintiffs, said they're disappointed by the verdict and "looking at all options.”

The FCC original set-top proposal, as explained in its NPRM, “remains the most effective way” of creating a competitive set-top market, said Writer's Guild of America, West in a letter posted in docket 16-42 Thursday. IT said the apps-based proposals now being considered by the FCC should still contain many of the features outlined in the NPRM, including parity of content between pay-TV and third-party devices, universal search, over-the-top programming integrated with pay-TV programming, and DVR functionality. “These requirements will ensure a level playing field for navigation device competitors,” WGAW said. The FCC should also “recognize the critical role oversight and enforcement must play to ensure compliance under an app-based model,” WGAW said. Multichannel video programming distributors "have every incentive to undermine the effective operation of a competitive device market. It is therefore critical that, as an initial matter, the Commission deploy every regulatory and enforcement tool available at the outset,” WGAW said. Others want the proposal changed, citing copyright and other concerns (see 1609010084).