The FCC needs to take a closer look at Charter Communications' anticompetitive practices on over-the-top services (OTT), and consider conditions to protect against discriminatory behavior, Herring Networks said in an ex parte filing posted Monday in docket 15-149. In the filing on a meeting between Herring President Charles Herring and staff from the Office of the General Counsel and from Chairman Tom Wheeler's office, Herring said its AWE channel has run into problems with Charter because its affiliation agreement with the cable company included a prohibited alternative distribution method provision banning Herring from showing a linear feed of AW over any OTT device or service, leading to a slowed deployment of AWE via OTT. Charter declined to negotiate out that provision, Herring said. But after sending formal notice of termination of the existing affiliation agreement and pointing out concerns about the provision -- "especially while seeking merger approval from the Department of Justice and the Federal Communications Commission" -- Charter modified the language, Herring said. Charter -- in the process of buying Bright House Networks and Time Warner Cable -- still refuses to review third-party set-top box numbers AWE provided or to review Herring's America News Network channel, Herring said, saying that is a lack of good faith negotiating. Charter has "a fundamental lack of respect for independent programmers, even with proven performance value in the marketplace," Herring said. "If this is suggestive of how Charter treats an independent network pre-merger, we are highly concerned about the treatment in store for independent networks post-merger." In a statement Monday, Charter said it's "committed to ensuring its customers have access to independent and diverse programming and we are gratified by the support we have received to date from independent programmers including TV One, BabyFirst, One World Sports, Crown Media, RFD-TV and The Blaze.” It also said of online video distributors, "there is no more friendly broadband provider ... than Charter. Charter’s slowest speed is 60 Mbps, we have no data caps, no contracts and no modem fees. Also, Netflix, which strongly opposed to the Comcast/TWC transaction, supports the Charter, TWC and Bright House transactions.”

An appeal is planned after a federal judge overturned a $6.31 million jury verdict against Cox Communications for its set-top box rental policies. "We feel confident that the Tenth Circuit will reverse the decision and reinstate the verdict," Todd Schneider of Schneider Wallace, lead plaintiff's attorney in the case, told us in an email Friday. U.S. District Judge Robin Cauthron of Oklahoma City ruled Thursday that despite the jury verdict to the contrary earlier this month (see 1511020048), the class-action complainants failed to offer evidence that would show that the tying of a Cox Premium Cable subscription to renting of a Cox set-top box "foreclosed a substantial volume of commerce in Oklahoma City to other sellers or potential sellers of set-top boxes in the market for set-top boxes." That was one of the five elements set out in the jury instructions in order for it to find against Cox, the judge's order said. It said class-action plaintiffs Richard Healy et al "failed to offer evidence from which a jury could determine that any other manufacturer wished to sell set-top boxes at retail or that Cox had acted in a manner to prevent any other manufacturer from selling set-top boxes at retail." The plaintiffs also failed to prove, as also set out in the jury instructions, that there was any loss or injury from that tying arrangement, the judge said. Cauthron's order followed a motion by Cox to have the jury verdict overturned. In a statement Friday, Cox said its "primary goal is to provide its customers with high value video services and this victory ensures that Cox will be free to continue to provide those services in the future. We are pleased that the Court has recognized that Cox’s conduct did not violate the antitrust laws."

The FCC needs to investigate why cable companies set data caps -- including whether they are just a revenue stream or also designed to stifle competition by preventing cord cutters from further favoring online video -- and the levels at which they are set, said Public Knowledge Staff Attorney John Bergmayer in a blog Tuesday. Pointing to Public Knowledge's 2011 request for such an investigation, Bergmayer said Comcast's expanding its metered data usage trial is likely a rate hike by another name for cord cutters and their broadband use. Broadband price hikes make sense because there generally are fewer options for changing providers than there are for video service, Bergmayer said. "Hidden price hikes are nothing new for the cable industry. Below-the-line hidden fees, bogus equipment charges, and so on have been standard practice for years." Comcast has said the various data usage plans it has rolled out in different markets are experiments in finding what it has called "flexible and fair" broadband offerings (see 1511040057). Different broadband subscribers paying different amounts "is not objectionable," Bergmayer said, saying different speed tiers are the norm. "The question is what the secondary effects are of a usage-based model, and how the level at which any data caps are set can affect this," he said. Comcast didn't comment Tuesday.

Broadcaster resistance to online video distributor (OVD) carriage of full local broadcast signals without compensation in the absence of any online distributor version of retransmission consent, and lack of a compulsory copyright licensing mechanism for online distribution of local broadcast signals, are the two big hurdles to OVD offering local broadcast content, the Telletopia Foundation said in an FCC ex parte filing posted Monday in docket 14-261. The nonprofit with an over-the-top (OTT) video service said it met with Commissioner Ajit Pai's chief of staff, Matthew Berry, on the proposed extension of the definition of multichannel video programming distributors (MVPD) to include types of OVD. While Telletopia plans to pay broadcasters, it said, there's no framework aside from MVPD retrans. Station owners and broadcast networks themselves, meanwhile, "are unable to solve the complex copyright licensing problems associated with bringing the full 24-hour live stream of local broadcast content to the Internet," Telletopia said. Expanding the MVPD umbrella to cover some OVDs, as well as OVD protections safeguarding against discriminatory licensing practices, "will remove the first roadblock," it said: Doing away with copyright hurdles could involve the Copyright Office, Congress and legal action, and "could take months -- even years -- to accomplish." But doing away with the retrans hurdle, Telletopia as a nonprofit would be able to take advantage of the nonprofit exemption in the Copyright Act and could start online delivery of stations to IP-enabled devices, it said. In a news release unveiling its proposed browser-based OTT service, Telletopia said it plans to begin in major U.S. cities in 2016, pending the FCC decision. NAB didn't comment Tuesday.

Comments are due by Dec. 7 in Altice's proposed purchase of Cablevision, and replies Dec. 22, the FCC Wireless Bureau said in a public notice in docket 15-257 and in Friday's Daily Digest. The $17.7 billion transaction isn't expected to face major regulatory difficulties (see 1509170015). In its application filed in October, the companies said the deal "improves the competitive prospects for Cablevision in this market and poses no anticompetitive issues of vertical or horizontal consolidation in the domestic cable or broadband market" and would give Cablevision the benefits of increased scale "without the deleterious effect of substantial increased domestic consolidation in cable or broadband."

A federal judge rejected a proposed $15.5 million settlement in a class-action lawsuit against Comcast, saying it lacks "a reliable and administratively feasible mechanism" for figuring out who falls within the class definition. U.S. District Judge Anita Brody in Philadelphia Thursday denied a Comcast motion for certification of a settlement class and preliminary approval of class-action settlement. Comcast lacks records for most former subscribers, including any before 2010, and it needs a better model for screening out people who don't belong in the class than the one proposed, Brody said in her order. The multidistrict litigation is a combination of 24 civil actions against Comcast consolidated in 2009 and alleging the cable company wrongfully tied subscribing to its Premium Cable tier to rental of a Comcast set-top box. The proposed settlement would include all people who lived in and subscribed to Premium Cable in California, Washington or West Virginia in the class period or who subscribed to Premium Cable in any state during the class period and opted out of Comcast's arbitration clause and who paid Comcast a set-top box rental fee. The class period is Jan. 1, 2005, up to the point of the court's giving preliminary approval to a settlement agreement. While Comcast's proposed settlement includes a variety of ways for determining whether former subscribers fall within the class definition, such as use of canceled checks or old bills or credit card receipts, Brody said it was "implausible" that such evidence would show a person was both a Premium subscriber and had rented a set-top box. And relying on sworn statements alone has been previously rejected in a 3rd U.S. Circuit Court of Appeals decision, Brody said. Comcast didn't comment Friday.

Be wary of unintended consequences when considering expanding the definition of multichannel video programming (MVPD) distributors to include aspects of over-the-top (OTT), Amazon said in an FCC ex parte filing posted Thursday in docket 14-261. It recapped meetings between a variety of Amazon executives -- including Brian Huseman, director-public policy, and Bradley Beale, vice president-content acquisition -- and Media Bureau representatives and staffers from the offices of Chairman Tom Wheeler and Commissioners Mignon Clyburn, Michael O'Rielly and Jessica Rosenworcel. At those meetings, Amazon said the expanded MVPD definition could even include Amazon since it owns live streaming video gaming service Twitch.tv, which could be considered a channel under the OTT-as-MVPD NPRM, which would make it subject to programming access regulation. "Such unintended consequences could be highly damaging, inadvertently causing the government to significantly distort a new and alternative video segment that is growing and flourishing without any government intervention," Amazon said. That NPRM isn't likely to lead to an order anytime soon, as the proceeding is seen as stalled (see 1510230025).

Cable One expects its 1 GB residential broadband service, GigaONE, to be available to most of its customers by the end of 2016, CEO Thomas Might said Thursday as the company announced its Q3 2015 financial results and unveiled GigaONE. The broadband service is part of the company's plans announced in 2012 to move from phone and video service to growing, higher-margin data business, Might said. "We could straddle and try to do both, but we do not believe in straddling," he said. Residential voice revenue was down 21.1 percent and residential video down 6.9 percent, while residential data was up 10.2 percent, Cable One said.

Suddenlink still expects its purchase by Altice to close by year’s end as it makes "steady progress" on regulatory approvals, CEO Jerry Kent said Thursday, announcing its Q3 results. Transition planning is underway, with the new management team to be announced at closing, Kent said, saying he wouldn't remain with the company. The company didn’t take any questions on the $9.1 billion takeover by Altice, which many don't expect to face substantial regulatory hurdles (see 1509170015). The company has increased broadband speeds in 104 markets, with its upgrade to a new flagship speed of 50 Mbps largely complete, it said. As of Sept. 1, 13 Suddenlink markets offer 1 Gbps speeds, and another 15 will by year's end, it said. In response to a question about over-the-top video growth, Kent said it will lead to some unbundling of video packages due to the rapidly rising costs of video. Meanwhile, the cable industry is unlikely to look at overage charges as a sizable revenue stream because that could quickly lead to more customer churn, he said. In response to a question about the importance of wireless to the cable industry, Kent said it plays a bigger potential role with companies with a national footprint. "For a company like us, it's going to be difficult to mesh in wireless," he said, saying he was curious what AT&T/DirecTV does. But a quadruple-play offering "will definitely be something offered by the really large operators in this space," he said.

Tennis Channel's view of the law would mean countless FCC cases would go on forever because courts would never be able to conclude that the record shows that the party with the burden of proof has failed to meet that burden, Comcast said in a brief filed Thursday in U.S. Court of Appeals for the D.C. Circuit. The network is trying to reopen its discrimination complaint against the cable company (see 1510220019). Tennis Channel's original 2010 carriage complaint against Comcast was supported by the FCC, but then vacated by the D.C. Circuit in 2013. After Tennis Channel re-petitioned the commission, the agency in January issued an order denying both the original complaint and the re-petition, and Tennis Channel in response petitioned the D.C. Circuit to vacate that order and remand the case. In its filing, Comcast called Tennis Channel's argument "an impermissible attack" on the 2013 ruling and said FCC was right when it decided that ruling was a rejection of Tennis Channel's discrimination claim and it precluded any FCC revisiting of the merits of that claim. Tennis Channel's argument that the D.C. Circuit decision didn't resolve the merits of the claim and only set up new standards "is a naked assault on the Court's opinion" as it was applying the FCC's existing interpretation of Section 616 of the Communications Act, Comcast said. The 2013 court decision conclusively held there was not enough evidence in the record to support the discrimination claim, and that ruling clearly "did not contemplate a do-over before the agency" -- especially because there was no language in the ruling saying the case was remanded to the FCC, Comcast said. The court can't review the FCC refusal to reopen the case since Tennis Channel hasn't shown any new evidence or circumstances, Comcast said. But it said even if it did, Tennis Channel hasn't shown the FCC abused its discretion. Tennis Channel didn't comment.