Entertainment Studios Networks (ESN) and the National Association of African American-Owned Media (NAAAOM) are seeking $10 billion in damages from Charter Communications, plus an injunction against the FCC to stop "its practice of facilitating sham 'diversity' agreements/MOUs," they said in a lawsuit filed Wednesday in U.S. District Court in Los Angeles. The suit said Charter racially discriminated against African American-owned media companies -- including ESN -- by withholding carriage, despite ESN being carried on a number of other multichannel video programming distributors, including AT&T U-Verse and DirecTV. Those MVPDs now are part of the same company. Pointing to Charter buying Bright House Networks and Time Warner Cable, the complaint also said the FCC "works hand-in-hand with these merging television distribution companies to enable and facilitate their civil rights violations." It criticized pledges Charter made to improve its board and employee diversity as part of Charter/TWC/BHN (see 1601150017), calling those pledges "nothing more than a ploy to garner FCC support for and approval of its merger." In a statement Thursday, Charter said the suit "is a desperate tactic that this programmer has used before with other distributors. We will not comment further at this time." ESN and NAAAOM sued Comcast and Time Warner Cable in 2015, making similar allegations; that suit was dismissed (see 1508100017). A similar complaint in 2014 against AT&T was voluntarily dismissed in December. The FCC didn't comment Thursday.

Time Warner Cable customer Derek Gubala's complaint that the cable company illegally keeps former customers' personal information such as Social Security and credit card numbers fails to plead facts that are necessary to state a claim, TWC said in a reply brief filed Wednesday in U.S. District Court in Milwaukee in support of its motion to dismiss his complaint. "Although [Gubala] knew his claim was subject to a binding arbitration clause, he filed this case in federal court seeking money damages," TWC said. "Despite amending his complaint twice, [he] still fails to plead the essential elements for injunctive relief." Gubala sued in 2015, claiming TWC was violating the Cable Communications Policy Act, which requires destruction of that personal data, and seeking class-action status. Gubala's counsel didn't comment Thursday.

California Public Utilities Commission review of Charter Communications' buying Bright House Networks and Time Warner Cable potentially "can be accelerated," TWC CEO Rob Marcus said in a conference call Thursday as the company announced earnings. On regulatory approval of the $89.1 billion pair of deals, Marcus said TWC and Charter are "working constructively with FCC, and DOJ to ensure that they are in a position to approve the deal expeditiously," though he said he couldn't give a timetable for closing. California has said it's on track to make a decision in June on the deals (see 1601130060). Marcus also said TWC is beta testing in New York City an IP video product "that eliminates the need for a leased set-top box." For the year, TWC said it spent $5.82 billion on programming and content, up nearly 10 percent from 2014. Marcus said the cable industry is in the "very early days" of offering content a la carte -- a trend that could shift leverage and lead to slower programing cost growth. When asked about Verizon's small-bundle Custom TV package, Marcus said, "The only reason that we haven't run headlong into a custom TV-type solution is that we've really made a great effort to simplify our offerings as we tried to turn our residential business around, and keeping things simple," with that approach helping in the company's customer numbers -- ending the year up 32,000 video customers.

Dish Network and Fox Entertainment may settle a 2012 complaint against the satellite company for its PrimeTime Anytime VOD service. In a joint status report filed Monday in U.S. District Court in Los Angeles, the two said they "are presently engaged in business negotiations which include discussions about settlement of this case." Barring a settlement, Dish and Fox said they proposed a Sept. 6 trial date. Fox argued in its 2012 lawsuit that PrimeTime Anytime and its AutoHop service, which strips out commercials from network programming, was an "attempt to camouflage" copyright infringement (see report in the Aug. 28, 2012, issue).

Committing to "clear and consistent" copyright infringement policies should be a condition before Charter Communications gets regulatory approval to buy Bright House Networks and Time Warner Cable, the National Music Publishers' Association (NMPA) said in a filing posted Wednesday in docket 15-149. While TWC is taking part in the Copyright Alert System developed by some ISPs and copyright holders to tackle infringement on their networks, "recent litigation has raised serious doubts about other ISPs' commitment to complying with the law." New Charter should be required to take part in the Copyright Alert System "and pledge to work with copyright owners to address infringement on its network," NMPA said. Charter didn't comment.

A Virginia federal judge will hear oral argument Feb. 26 on motions by BMG Rights Management and Cox Communications, including a motion by the cable operator for a new trial in the copyright infringement complaints brought by BMG. Both Cox and BMG filed motions and briefs Tuesday in U.S. District Court in Alexandria. BMG renewed a previous motion for judgment as a matter of law for vicarious infringement and also seeking a permanent injunction. A jury in December awarded BMG and Round Hill Music $25 million in their lawsuit against Cox for the cable company's failure to penalize its Internet customers who repeatedly infringed copyrighted materials via BitTorrent (see 1512180012). More than a month later, BMG said in a brief in support of its permanent injunction motion, "Cox's network continues to be the site of a massive, ongoing infringement of BMG's copyrights." The cable ISP in its motion for judgment as a matter of law or, alternately, a new trial, said BMG failed to prove Cox's liability and that the court erred in jury instructions on such issues as contributory infringement and willfulness and that it didn't instruct the jury on innocent infringement. "Any one of the errors ... would justify a new trial," it said in its motion. "Taken together, however, they create a compelling basis for a new trial." Cox also filed a motion seeking an order sealing some exhibits it previously had submitted, citing their containing of confidential business information.

Sinclair plans to buy the Tennis Channel for $350 million, it said in a news release Wednesday. Sinclair said it expects to close on the purchase of the cable network/online video distributor in Q1. It also said it has negotiated contracts with a number of multichannel video programming distributors that would make Tennis Channel available in roughly 50 million households, up from 30 million today. In a statement, Sinclair General Counsel Barry Faber said the broadcaster anticipates other upcoming MVPD negotiations "to result in further carriage and Tennis subscriber penetration." The channel for years has unsuccessfully sought at the FCC and in court wider carriage on Comcast.

The Rural Broadband Alliance (RBA) joined the Stop Mega Cable Coalition opposing regulatory approval of Charter Communications buying Bright House Networks and Time Warner Cable (see [Ref:1601210028]), the coalition said in a news release Tuesday. In a statement, RBA Chief Counsel Steve Kraskin called Charter/TWC/BHN “a ‘lose, lose’ for rural communities." “Ongoing consolidation and the dominance of a handful of companies in the cable and broadband marketplace has dramatically reduced the bargaining power of small and rural entities to obtain must-have video content, undermined their ability to compete, much less remain economically viable, and diluted the diversity of service options available to consumers in rural areas," Kraskin said. "Mega Cable would further tip the balance against these smaller providers and their customers." In a statement, Charter called itself "a different type of cable company -- committed to creating American jobs, offering the most innovative products, delivering fast internet speeds, preserving an open internet and advancing online video friendly policies including no data caps and no modem fees. ... It should come as no surprise that Dish and other parties seeking to use the regulatory review process to extract concessions are also engaging in tired PR tactics to further their self-interests. Their arguments against the pending transactions are baseless. The facts are that New Charter has received significant and broad support from leading [online video] provider Netflix because of its online video friendly practices, independent programmers including Fuse Media and RFD-TV due to its commitment to diverse programming, national multicultural organizations like National Urban League, National Action Network and the League of United Latin American Citizens with whom it is collaborating to expand diversity and inclusion, and from the State of New York which recently approved the merger. These parties have taken a close and honest look at the benefits of these transactions and have all come to the same conclusion: they are in the public interest.” Stop Mega Cable members include Consumers Union, Dish Network, ITTA, Public Knowledge and USTelecom.

The FCC Media Bureau agreed with Time Warner Cable that TWC is subject to effective competition in 27 New York communities. In an order released Thursday, the Media Bureau revoked any certifications to regulate basic cable service for those 27. Maybrook, southwest of Poughkeepsie, filed an objection to TWC's petition. The village argued TWC hadn't provided any proof that Maybrook households "are reasonably aware of [direct broadcast service] providers' service availability," but the bureau said "reasonable awareness" of the availability of DirecTV and Dish Network is presumed. The bureau also dismissed Maybrook arguments that multichannel video programming distributor subscription rates in the village might not exceed 15 percent of the households in the franchise area -- that being the minimum penetration in the competing provider test. While TWC also had originally asked that the Village of Red Hook be part of its petition, it subsequently asked for consideration of that community to be withdrawn, which the bureau granted. The agency also has before it a variety of other TWC, Comcast and Mediacom petitions seeking declarations that various communities in Florida, Maryland, Massachusetts, Minnesota, New Jersey, Ohio, Wisconsin and Washington are subject to effective competition.

Altice's buying Cablevision will result in more corporate debt and numerous staff cuts and thus "fewer financial and human resources to invest in the network and provide quality service to customers," the Communication Workers of America told FCC staff in a meeting. In an ex parte filing posted Friday in docket 15-257 on the meeting between CWA representatives and Media Bureau, Office of General Counsel and Wireline Bureau staff, CWA said the proposed deal "will result in significant public interest harm with few, if any, offsetting public interest benefits." Citing a Moody's analysis, CWA said about half of the $900 million in synergies Altice expects to see from the deal will come from annual reductions in the first two to three years, and cuts of that size "cannot be made without impacting service." Barring blocking the transaction, the FCC should impose public interest-protecting conditions, CWA said. Those commitments should include broadband expansion, service quality, capital and operating expenses, employment stability or growth, and "reasonable limits on 'upstreaming of dividends' to parent Altice," the union said. It also said the agency should seek details from Altice about such issues as its broadband deployment plans and timetables through 2017, capital structure and financing, Cablevision's five-year financial forecast, expected synergies, employment impacts and retail service quality. Altice didn't comment.