The 10th U.S. Circuit Court of Appeals upheld a U.S. District Court decision to send a pair of putative class-action complaints against Cox Communications regarding set-top box policies to arbitration. Citing "a strong presumption the dispute is arbitrable" due to the Federal Arbitration Act, the three-judge panel said in an opinion (in Pacer) Friday there's no basis for inferring that the plaintiffs must have believed the arbitration language in the subscriber agreements didn't encompass a set-top dispute or else they would have consulted counsel. The appellate court rejected plaintiffs' arguments Cox waived its right to arbitration, saying Cox actions in the two cases "were consistent with an intent to arbitrate." That waiver argument seems to be based on Cox's agreement to stay the litigation while the bellwether Healy v. Cox Communications case proceeded, the 10th Circuit said, adding that the preference to litigate one case "does not mean it will want to litigate a future case." The court also rejected the plaintiffs' argument the Cox arbitration clause was unenforceable because language in it seems to indicate Cox could change the agreement terms at any time, since that argument challenges the contract as a whole should be decided in arbitration. The twin lawsuits claimed Cox violated antitrust law by tying its premium cable service to set-top rental. The panel's judges were Harris Hartz, Gregory Phillips and Nancy Moritz, with Hartz writing the opinion.

Referencing quantum theory, the CERN Large Hedron Collider and 1960s sitcom Bewitched, Mediacom criticized FCC Chairman Tom Wheeler's opting not to reform retransmission consent rules as "doom[ing] consumers to continued pummeling from the double whammy that congress unambiguously directed the Commission to prevent" service interruption and significant increases in subscriber costs at unprecedented rates. The 12-page filing Friday in docket 15-216 by Mediacom General Counsel Joseph Young likened Wheeler to Bewitched's Samantha and her evil, nearly identical cousin Serena: "The dramatic inconsistency between the Commission's recent actions and the expectations created by Chairman Wheeler's early pronouncements on policy and process suggests the possibility of distinct Chairman Wheelers -- the equivalents of Samantha and Serena." Touching on Don Quixote and the psychological phenomenon of inattentional blindness, Mediacom decried the set-top box and ISP privacy proceedings as "correcting problems that either don't really exist or are of no real consequence to the vast majority of Americans." But much of its critique involved the agency's totality of circumstances test review and subsequent decision not to amend a rule (see 1607140047). While one of the Wheelers -- Chairman 1 -- expressed sympathy for pay-TV subscribers, Mediacom said, "Chairman 2 ... turned the policies articulated by Chairman 1 on their head" by ignoring the need for addressing retrans. "If the rules are really adequate for the job, then why, as the Chairman himself noted in his March 6, 2014, blog entry, are blackouts continuing to occur and prices continuing to rise without abatement?" Mediacom said. "All of this suggests that Chairman 1 has, indeed, gone missing. We need to get him back." The FCC didn't comment.

Any NPRM on programming diversity should seek comment about the effects of forced bundling and penetration requirements and potential restrictions on those practices, the American Cable Association told FCC staff in a meeting, said an ex parte filing posted Monday in docket 16-41. The agency also should seek comment about most-favored nation (MFN) language aimed at online providers and multichannel video programming distributors, the definition of "independent" programming and sources of FCC authority for action, ACA said. Bundling and penetration questions ACA wants to be asked include ascertaining the prevalence of such practices and how they inhibit MVPDs from carrying indie programming, and whether penetration requirements hinder cord shaving, which hurts broadband deployment, ACA said. The group said the FCC should seek comment on such possible sources of agency authority as Communications Act sections 257(b), about promotion of diverse media voices, 616(a), regarding establishment of rules governing program carriage agreements, 628(b), banning unfairly hindering competition in favor of affiliated programming, 325(c)(3), covering broadcast retransmission consent, and Telecom Act Section 706, directing the FCC to take action when telco capability is being deployed inefficiently. The meeting attendees included ACA Senior Vice President-Government Affairs Ross Lieberman and Media Bureau Chief Bill Lake. Bundling and MFN language was the subject of indie programmer vitriol in the agency's programming diversity notice of inquiry proceeding earlier this year (see 1603310044).

Fox Sports’ Go live streaming platform launched on Apple TV Friday bringing Multiview Display for up to four streams of Fox Sports live content along with a 60-frame-per-second streaming rate, said the network in a Friday announcement. Owners of fourth-generation Apple TVs in the U.S., who receive Fox Sports TV networks as part of a pay-TV subscription, can access Fox Sports, FS1, FS2, Fox Sports Regional Networks, Fox College Sports, Fox Deportes and Fox Soccer Plus through the Fox Sports Go app on Apple TV, it said. More than 95 million U.S. users have access to Fox Sports GO through participating pay-TV providers, said Fox.

Windstream wants to broaden its Kinetic TV fiber-based video offering footprint to more than 50,000 homes in North Carolina. The company said in a news release Thursday it submitted a formal bid to the North Carolina secretary of state for a cable TV franchise covering 13 communities primarily in and around the Charlotte area. The telco said North Carolina would become the fourth Kinetic market since the service's 2015 launch in Nebraska (see 1410030050), joining Kentucky and Texas. In its application, Windstream said it expects to start service Oct. 3.

"Cord stackers," who subscribe to a traditional multichannel video programming distributor as well as to a streaming video service, have highest overall satisfaction of streaming video consumers, according to J.D. Power's 2016 Streaming Video Satisfaction Study, the company said in a news release Thursday. The company's first such study of satisfaction among customers who used a subscription VOD service or pay-per-view streaming within the past six months found that most streaming video customers still buy an MVPD service atop a streaming video service. J.D. Power said 60 percent of streaming customers are cord stackers, 23 percent are cord shavers, 13 percent are cord cutters and 4 percent are cord nevers. The survey said cord-cutter satisfaction is lowest. Netflix was ranked highest among streaming video brands, J.D. Power said, followed by Hulu, Vudu, Apple iTunes and Amazon Video. J.D. Power said the study was based on responses from 3,928 customers received in June and July.

Since its 2011 launch, Comcast's Internet Essentials program has connected 750,000 families, or 3 million low-income Americans, the company said in a news release Wednesday. Residents of public housing and those receiving Department of Housing and Urban Development assistance who live in Comcast's service territory recently became eligible for the IE program (see 1607150018).

TV Everywhere is increasingly the norm as a majority of TV watchers have viewed content on devices other than TV sets, NCTA said in a blog post Wednesday. Pointing to NCTA-commissioned poll results, it said 61 percent of respondents reported using a computer, tablet or smartphone to watch TV at least once monthly, and 46 percent said they have watched TV via an app. Thirty-four percent said they watched Netflix on a mobile device in the past year, more than any other app on a mobile device. When asked about live programming, 54 percent said news is most important to watch live, with sports following at 24 percent. NCTA also said most Americans "have access to ample broadband for streaming" video content as evidenced by 85 percent of those surveyed saying their wired internet service is adequate for streaming, downloading and other online services. NCTA said the poll, conducted earlier this month by Morning Consult, was of 2,001 registered voters.

The 5th U.S. Circuit Court of Appeals upheld a U.S. District Court decision that The Golf Channel (TGC) needn't pay back $5.9 million it received in advertising fees from what turned out to be a financial fraud. In an opinion Monday, the 5th Circuit said that based on the Texas Supreme Court's read of what "value" means under the Texas Uniform Fraudulent Transfer Act, it's upholding a 2013 decision by a federal judge in Dallas to toss out a lawsuit brought by Ralph Janvey, the court-appointed receiver of Stanford International Bank -- a decision the 5th Circuit initially overturned in 2015 and then reversed as it sought clarification from the Texas Supreme court (see 1507010036). In that clarification issued earlier this year, the court said the law's broad definitions mean the programmer provided value to Stafford at the time of the transaction, supporting TGC's good-faith affirmative defense (see 1604040045). Janvey sued the channel in 2011, trying to claw back the money spent by Stanford, a title sponsor of a PGA Tour event and the focal point of what the 5th Circuit called an "undisputed ... multi-billion-dollar Ponzi scheme."

The latest claims that Comcast racially discriminates in the content it carries are "the same insufficient allegations" Entertainment Studios Networks and the National Association of African American Owned Media (ESN/NAAAOM) made in their original and amended complaint, Comcast said in support of its motion to dismiss the second amended complaint. In the reply memorandum (in Pacer) filed Monday in U.S. District Court in Los Angeles, Comcast said ESN/NAAAOM's second amended complaint (SAC) "rehash[es] argument and contentions this Court has already considered and rejected." The memorandum itself gives an alternate explanation for Comcast's not carrying ESN programming: lack of consumer demand, coupled with Comcast's bandwidth restraints. "When the SAC is stripped away of speculation and supposition, there are no facts that show race played any role ... in the carriage decision," Comcast said. ESN/NAAAOM are pursuing similar litigation against Charter Communications, with that company earlier this month opposing the filing of an amended complaint (see 1608120028). "The complaint is more than adequately pleaded and should go forward," plaintiffs' counsel Skip Miller of Miller Barondess told us Wednesday.