One thing seemingly everyone agrees on is American Cable Association's petition to the FCC urging it to rethink its New Charter broadband network overbuild condition, ACA said in a reply comment to be posted Tuesday in docket 15-149. "No one denies that, far from mitigating the merger-specific concerns raised by the Order, the overbuild condition would exacerbate them." ACA urged the FCC to strike the overbuild condition on the approval of Charter Communications buying Time Warner Cable and Bright House Networks: "Nor does anyone suggest that the Order anywhere addresses the harms the overbuild condition imposes." The group said it agreed with New Charter that if the FCC strikes the overbuild condition, the deal-related transfers still are in the public interest. ACA is one of several parties that petitioned for reconsideration of New Charter conditions, with some seeing the association planning to take the agency to court if administrative options are unsuccessful (see 1606100043).

The set-top compromise to build pay-TV apps on an open HTML5 standard is a "common-sense, technology-friendly replacement" plan, FCC Commissioner Mike O'Rielly said in a blog post. Noting the plan from NCTA and some pay-TV programmers and carriers (see 1606160059) has generated some criticisms -- that consumers aren't familiar enough with apps, they don't provide a unified search or fix unreliable equipment, and they won't drive down monthly rent prices -- O'Rielly then tackled them individually. Data shows apps are widely used, and customers wouldn't be required to go with apps because they could keep their set-tops, he said. Section 629 of the Communications Act has no unified search requirement, and users might not even care for that option, O'Rielly said: "Why obsess over a feature that may or may not have little to no consumer value?" Apps also will make the whole issue of equipment and its reliability moot, he said. O'Rielly called the prospect of having to pay monthly fees for apps "farfetched" but said the FCC could work with industry to ensure they're free. He has been critical of the FCC's own set-top proposal, including at a broadcasters conference last week, the remarks of which were posted online shortly Monday before his blog post (see 1606270066).

The National Labor Relations Board, when it decided CNN was the actual employer of Team Video Services (TVS) workers, violated administrative law principles by changing its legal standard without acknowledging it was doing so and applying that new legal standard retroactively, CNN said in a final brief (in Pacer) Friday filed with the U.S. Court of Appeals for the D.C. Circuit. In its own brief (in Pacer) Friday, NLRB said CNN met all the long-held criteria of being a joint employer, such as control over or participation in hiring, setting wages and day-to-day supervision, and TVS was following CNN policy regarding not hiring technicians who came from the network's competitors. Friday was the deadline for final briefs to the D.C. Circuit on an NLRB 2015 order requiring CNN to hire more than 100 laid-off TVS workers. Oral argument isn't scheduled. In its brief, CNN said the NLRB ruling changed the joint-employer analysis -- which had focused on whether a putative joint employer's control over employment matters was direct and immediate -- and the new standard can't be applied retroactively to the company, or the NLRB had to explain how it came to that new conclusion. In an intervenor brief (in Pacer), Communications Workers of America's National Association of Broadcast Employees and Technicians locals 11 and 31, which represented the laid-off workers, said CNN wasn't penalized by the NLRB order since it had to restore employment conditions only to the extent its changes hadn't resulted in improved terms and conditions of employment, and "any 'penalty' is the result of CNN's unlawful conduct." NLRB, in its brief, said CNN is mischaracterizing its "direct and immediate" standard. "No court has ever cited it, nor has any Board decision turned on that ... language or even treated it as an 'essential element,' " it said, and thus didn't retroactively apply a new joint-employer standard, but merely clarified it.

The FCC should give an additional six months, until Jan. 31, before it requires cable systems to be capable of retransmitting a national periodic test (NPT) event code, NCTA said in a petition for a limited waiver in docket 04-296 Monday. The agency's 2015 emergency alert system order specified the NPT event code as the test code for national EAS testing and said that by July 30 all EAS equipment must be capable of immediately retransmitting the NPT event code (see 1506040056). "This turned out to be a more daunting challenge than the industry anticipated or the Commission envisioned," NCTA said, pointing to remaining challenges of modifying IP infrastructure for delivering EAS alerts, upgrading legacy program guide systems and modifying legacy encoders and decoders. NCTA said cable operators plan to use the extra six months for finishing software and firmware testing and for purchasing and installation of new equipment.

Under a pay-TV compromise set-top box proposal (see 1606160059), carriers would license their video apps to third-party box makers without charging them, said representatives from NCTA and AT&T in a meeting with FCC Media Bureau Chief Bill Lake, FCC Chief Technologist Scott Jordan and staff from the bureau and Office of General Counsel Thursday. Since the pay-TV carriers wouldn't charge for the license, the proposal would include provisions preventing others from charging customers to use it, NCTA said in docket 16-42 Monday. The license also would include provisions protecting privacy, copyright, advertising and the “technical integrity of the app” for content security, it said. Commissioner Mike O’Rielly chastised the FCC set-top plan, in a speech released Monday (see 1606270066).

The International Trade Commission voted to begin a Section 337 Tariff Act investigation into allegations that imports of semiconductor devices made by Broadcom and included in a range of downstream products are infringing patents held by Tessera, the ITC said last week. In its May 23, complaint, Tessera alleged Broadcom is copying its patented designs for chips used in network devices and set-top boxes. It alleged infringing chips are included in devices made by Arista Networks, Arris, Asus, Comcast, HTC, Netgear and Technicolor. The ITC will consider whether to issue a limited exclusion order and cease and desist orders against those companies. Those companies declined to comment or didn't comment right away Friday.

The assertion that Cox violated antitrust laws with set-top box rental policies "rests on sleight of hand," equating that customers in Oklahoma City couldn't access two-way cable services without a two-way set-top to a refusal by Cox to sell such services, Cox said in a reply brief (in Pacer) Thursday in the 10th U.S. Circuit Court of Appeals. Class-action plaintiffs Richard Healy et al. are appealing (see 1603010016) a U.S. District judge's 2015 overturning of a $6.31 million jury verdict against Cox for its set-top rental policies (see 1511130005). The company said the District Court erred in rejecting its proposed jury instructions that would have focused on whether the firm deprived consumers of any choices they otherwise would have had in the set-top market and in giving instructions requested by the plaintiff letting the jury find coercion and foreclosure "purely on the basis that a two-way [set-top] is technologically necessary to access certain cable services." Cox said if the court reverses the District Court's decision, it should be entitled to a new trial using proper instructions. Counsel for Healy and the others didn't comment Friday. Oral argument isn't scheduled.

Pushing for increased competition in the program navigation market is the right move, but any industry agreement on a standardized approach will take years, with implementing that standard nationwide taking even longer, said the TV Neutrality Alliance (TVNA) in an ex parte filing Thursday in FCC docket 14-261. The FCC should focus on a "bigger, more viable prize" -- creating competition in multichannel video programming distribution by moving on its proposal to classify some types of over-the-top as MVPDs, the group told Media Bureau officials including Chief Bill Lake and aides to Chairman Tom Wheeler and Commissioners Mike O'Rielly and Ajit Pai. Since online video distributors don't have the same capital expenditure hurdles that cable and satellite operators do, that regulatory change "can open the door to a wave of new entrants that are poised to bring innovative services, navigation tools and 'skinny bundles' to consumers today," said TVNA members Pi Omni Media, Telletopia Foundation and BitTorrent. TVNA has been actively lobbying (see 1606140018) on the OTT-as-MVPD proposal that was seen as largely dormant (see 1606060033). MVPD interests have proposed a compromise plan on Wheeler's unlock the set-top box initiative (see 1606200048).

Viacom is expanding its subscription VOD footprint with the unveiling Wednesday of BET Play, which provides direct mobile access to BET's TV series, documentaries and award shows, it said in a news release. The BET Play app and content "significantly expands the brand's geographic availability by making it available direct to consumer in many markets where it has not previously had an established presence on TV,” said Michael Armstrong, general manager-International Brand Development at Viacom International Media Networks. The programmer said it now offers Viacom Play Plex mobile TV apps for each of its major international TV channel brands.

The FTC signed off on Comcast's acquisition of DreamWorks Animation, the agency said in an early termination notice Monday. Comcast has said it expects to conclude the $3.8 billion deal by year's end (see 1604280010).