NCTA, eager to use the 5.9 GHz band for Wi-Fi, met with Daudeline Meme, aide to Commissioner Mignon Clyburn, to discuss a pending public notice to refresh the record in the proceeding. “We encouraged the Commission to seek comment on both sense-and-avoid and re-channelization sharing approaches, the appropriate sharing approaches for both crash-avoidance and other Dedicated Short Range Communications (DSRC) applications, and whether policies and assumptions the Commission made regarding DSRC in 1999 remain valid seventeen years later,” NCTA said. The filing was posted in FCC docket 13-49. Chairman Tom Wheeler is expected to push forward on rules allowing shared use of the band before the end of his chairmanship (see 1604280043).

"No good deed goes unpunished," the good deed in this case being serving as local counsel and filing an objection to a proposed settlement in a class-action lawsuit against Comcast, DirecTV, Major League Baseball and some regional sports networks (see 1604120066), said David Stein of Samuel & Stein in opposition (in Pacer) Wednesday to a motion by plaintiffs seeking sanctions against him. Class counsel, upset with the initial objection, "decided to make an example" by seeking sanctions against Stein and his firm for a routine class-action objection similar to those filed by other objectors in the case, Stein said in the objection in U.S. District Court in Manhattan. Stein said the objection, for Texas attorney Christopher Bandas, was done as a courtesy, and the firm subsequently moved to remove itself because it didn't have sufficient time to get up to speed for the April 25 fairness hearing at which the court approved the settlement. "Their argument boils down to 'Christopher Bandas is a professional objector; professional objectors are terrible; David Stein is associated with Christopher Bandas; therefore, David Stein is also terrible,'" Stein said, saying the objection itself "was not objectively unreasonable." The plaintiffs, in their motion (in Pacer) in April seeking sanctions, argued the Stein-filed objection -- by complaining about the failure to obtain damages for class members -- ignores that the class was certified for injunctive relief only; ignores that reducing attorneys' fees wouldn't benefit class members because the fee is separate from class relief; and "is being presented for improper purposes, including to harass, cause unnecessary delay, and needlessly to increase the cost of litigation." The settlement ended litigation brought in 2012 by various baseball fans against MLB, the multichannel video programming distributors and individual MLB teams, with the plaintiffs claiming MLB's deal with the MVPDs for distribution of games online and on TV was an "illegal cartel," stifling competition (see 1601210032).

Charter Communications will pay a $640,000 settlement and set up a three-year compliance plan that widens the variety of third-party cable modems it accepts on its network, the FCC Media Bureau said in an order and consent decree Tuesday. The order follows a bureau investigation of Charter that it said sprung from Zoom Telephonics' petition to deny FCC approval of Charter's buying of Bright House Networks and Time Warner Cable, with the cable modem maker alleging Charter infringed on the rights of subscribers to use non-harmful third-party cable modems (see 1510130054). The bureau said its investigation found that from 2012 to 2014, Charter told subscribers that they no longer could attach customer-owned modems and then provided a list of authorized third-party modems that required testing for issues not relating to network harm or theft of service. Under the order, Charter also is revising its cable modem testing regime so compliance testing will take no more than three weeks. Also, it is required under the order to appoint a senior corporate manager as compliance officer for implementing the compliance plan. Under the order, Charter can reject only certain cable modems, such as those that don't support DOCSIS 3.0 or higher. In a statement Wednesday, Charter said it is "pleased to be able to continue to give our customers the choice to use a modem provided by Charter for free or purchase an approved third party modem." "Zoom is pleased with much of the Commission’s action, including its requirement for much faster certification testing for cable modems and appropriate limits on tests," Zoom counsel Andrew Schwartzman said in an email to us Wednesday. "This is a major victory, and we hope other cable service providers will act consistent with the clear wishes of the FCC." Around the time the Charter settlement was released, the FCC also issued the text of the commissioners' order approving Charter/TWC/BHN (see 1605100050).

Arguments that an FCC proposal on set-top boxes would disrupt copyright protection for content are “a misdirection,” Public Knowledge representatives said in a meeting with aides to Commissioner Mignon Clyburn, according to an ex parte filing posted Tuesday in docket 97-80. The practices multichannel video programming distributors are concerned about already are illegal, PK said. “It is hard to see how giving consumers greater access to lawful content would increase their appetite for unlawful content.” Content companies CBS, Disney, Scripps, 21st Century Fox and Viacom visited the FCC last week to argue the set-top proposal does threaten their copyrighted content, said an ex parte filing.

The 1st U.S. Circuit Court of Appeals' April decision in Yershov v. Gannett Satellite Information Network shouldn't play any role in the 3rd Circuit's handling of an appeal of an unsuccessful Video Privacy Protection Act (VPPA) complaint brought against Viacom and Google, the companies said in 3rd Circuit filings (see here and here, in Pacer) Friday. The Yershov decision focused on VPPA definitions of "consumer" and "personally identifiable information," neither of which has bearing on the VPPA claims against Google, that company said. It said Yershov included "unwarranted broadening of the statutory text" when it said GPS coordinates could constitute personally identifiable information under the VPPA. Viacom similarly contrasted the case with Yershov, saying the disclosures at play in the VPPA complaint against it and Google consist of IP addresses and cookie identifiers, not GPS data, and the plaintiffs haven't offered a strong argument how that could lead to identification. "The disclosures in this case do not state a VPPA claim even under Yershov," Viacom said. The original lawsuit brought on behalf of a putative class of minors whose data was tracked when they went to various Nickelodeon websites was dismissed in 2015 by a U.S. District judge in Newark, New Jersey (see 1501220056), and the plaintiffs said in a 3rd Circuit filing (in Pacer) Thursday that the Viacom/Google disclosures included "even more detailed information than what was alleged in Yershov." The 1st Circuit with Yershov "became the first federal appellate court to determine whether unique computing device identifiers constitute [personally identifiable information] under the VPPA," the plaintiffs said, saying the 3rd Circuit should "adopt the well-reasoned logic of Yershov" and reverse the Newark court's decision. The 1st Circuit in Yershov reversed a U.S. District Court decision that Gannett did disclose information about a USA Today Mobile App user to a third party, but that user Alexander Yershov wasn't a consumer under VPPA.

Correction: The FCC Media Bureau rejected an appeal by the New Jersey Division of Rate Counsel of Comcast cable equipment rates set by the Board of Public Utilities (see 1605040061).

Last year's order approving Altice's takeover of Suddenlink Communications (see 1512180035) was modified to include compliance with the letter of agreement (LOA) between Altice, Cablevision, Suddenlink and the Justice Department. In an order in Thursday's Daily Digest, the International, Media, Wireless and Wireline bureaus said the national security conditions in the December order would be incorporated into the LOA that was part of the approval process for Altice's buying Cablevision.

The FCC sided with the New Jersey Division of Rate Counsel in its appeal of a New Jersey Board of Public Utilities order approving cable equipment rates. In an order Wednesday, the FCC Media Bureau said the Rate Counsel was right that the BPU shouldn't have approved a 50 cents per month digital TV adapter (DTA) fee that Comcast charged customers who use analog TVs and subscribe to a digital basic service tier, thus requiring such adapters, plus a $1.99 per month digital outlet fee that includes the DTA because those rates exceed what Comcast calculated they would be, discriminate among tiers in Comcast's DTA charges, and include excessive maintenance and repair costs.

The FCC's draft order approving Charter Communications' buys of Bright House Networks and Time Warner Cable (see 1604250039) lacks some key conditions that should be imposed to remedy what Stop Mega Cable sees as anti-competitive harms inherent in the deals, coalition members told Commissioner Mignon Clyburn and an aide to Commissioner Jessica Rosenworcel in meetings, according to an ex parte filing Wednesday in docket 15-149. The needed conditions include requiring that a stand-alone broadband service be offered with a minimum 60 Mbps download/4 Mbps upload speed and never slower than any broadband service it offers bundled, coalition members said. They also told the FCC that there needs to be a condition on programming diversity stronger than a memorandum of understanding, as MOUs "have proven to be ineffective for the most part," with Charter's MOU "even lighter than most" as it has renewal of one African American-oriented programming service. In a statement, Charter said it appreciates "the careful consideration by the Commissioners since the Chairman circulated his approval order" and expects approval "soon." The ex parte filing recapped meetings involving coalition members representing beIN Sports, Common Cause, Consumers Union, Dish Network and Public Knowledge. It was expected that Clyburn and Rosenworcel in particular would be the targets of lobbying efforts by parties trying to influence or strengthen the conditions in the draft order (see 1604260046).

Comcast "cannot wish away" commitments made to NBC TV affiliates when it bought NBCUniversal, which is what it's trying to do in its motion to dismiss WHDH Boston's lawsuit (see 1604130058), the station said in an opposition (in Pacer) filed Monday in U.S. District Court in Boston. WHDH said the problems in Comcast's legal argument include "an unduly narrow reading" of the binding commitments it made affiliates and "a constrained application" of antitrust principles. It said it "easily meets" the standards for filing a claim under Massachusetts General Laws Chapter 93A because that broad law doesn't specifically define the "unfair" and "deceptive" acts it prohibits, and it likewise has properly alleged Comcast has breached contractual obligations, which "is sufficient to survive a motion to dismiss," and antitrust claims. Comcast didn't comment Tuesday. The station is suing Comcast, alleging it violated an agreement with NBC affiliates made as part of Comcast's buy of NBCUniversal by planning to switch the NBC affiliation from WHDH to an owned-and-operated station (see 1603110031).