Citing concerns a "retaliatory motive is ... infecting regulatory enforcement decisions that affect the press," the Reporters Committee for Freedom of the Press asked the U.S. Court of Appeals for the D.C. Circuit as part of its handling of the AT&T/Time Warner appeal to clarify the standard for discovery where selective enforcement of antitrust laws could chill reporting. An amicus brief (in Pacer, docket 18-5214) Thursday in favor of neither DOJ nor AT&T/TW said the lower court -- in denying discovery on whether supposed White House animus toward TW's CNN resulted in DOJ opposition to AT&T/TW -- used an erroneous standard that makes it potentially impossible for news organizations to get discovery. DOJ didn't comment Friday.

Americans for Limited Government (ALG) is urging the House Commerce Committee to investigate anti-competitive effects of Comcast's buy of NBCUniversal, saying it expects the end result likely will be either a Comcast/NBCU breakup or reimposing the FCC conditions that expired in January (see 1801220030). In a letter to committee Chairman Greg Walden, R-Ore., and Vice Chairman Joe Barton, R-Texas, dated Monday and released Thursday, ALG said at the very least, Comcast/NBCU should be forced to submit to the same arbitration terms that AT&T has committed to in its buy of Time Warner. Comcast didn't comment.

Record company litigation alleging copyright infringement should be dismissed because it's outside the three-year statute of limitations and because any such infringement was "innocent and ... not willful," Cox Communications replied (in Pacer, docket 18-cv-00950) Monday in U.S. District Court in Alexandria, Virginia. Cox said the claims of contributory liability are barred because it didn't have knowledge of the alleged primary infringement by some subscribers and didn't cause or encourage it, nor did it materially contribute. The ISP said statutory damages sought are "unconstitutionally excessive" and out of proportion to actual damages. A counterclaim sought declaratory judgment that it's not liable for contributory infringement of the works in question and a declaratory judgment it's not vicariously liable for infringement by third parties of those works. Cox also moved (in Pacer) to transfer the venue to the U.S. District Court in Atlanta, saying the claims and plaintiffs have no particular tie to the Virginia court, but the suit was likely filed there because that court previously handled BMG v. Cox. Cox said the Atlanta court is where Cox is headquartered and where most relevant witnesses and evidence are. The music companies' outside counsel didn't comment Tuesday. Cox is seen facing a challenge in this latest suit after the BMG litigation (see 1808020009).

FCC commissioners approved the local franchise authority Further NPRM that was to be on Wednesday's meeting agenda (see 1809050056), the agency said Tuesday, deleting the item from the agenda. Commissioner Mike O'Rielly said that after last year's 6th U.S. Circuit Court of Appeals remand of the FCC ruling that local franchise authorities can't use cable franchising authority to regulate cable operators' mixed-use networks (see 1707120031), the NPRM looks to prevent franchise authority overreach. Otherwise, he said, "it’s hard to see any boundaries to the meddling of franchise authorities, creating the perverse circumstance in which such non-cable services could be regulated by multiple governmental layers, generating confusing and conflicting obligations." NCTA said the unanimous NPRM approval properly seeks to reinstate "clear limits on franchising authorities' ability to impose undue and unwarranted regulations and fees."

Gray Television and Raycom were “heavy on rhetoric but light on the facts” and offered “no serious rebuttal” in their joint response (see 1809130051) to comments about their proposed deal’s implications for retransmission consent, said Dish Network and the American Cable Association in replies posted Monday in docket 18-230. The deal would lead to an increase in retransmission consent fees, Dish and ACA said. Most of “the supposed benefits” Gray and Raycom said would come from the combination are “euphemisms for reducing or eliminating local content,” Dish said. “Even if it does not violate the national audience reach rules, the transaction will cause retransmission consent prices to rise,” said ACA. “Whether or not bigger broadcasters are ‘bad,’ the evidence shows that they charge MVPDs higher retransmission fees,” said Dish. Along with criticizing the deal’s retrans permutations, ACA praised Gray and Raycom for making it clear that Gray wouldn’t acquire the stations it's divesting, and so wouldn’t activate after-acquired clauses in their retransmission contracts. NCTA said the FCC should require companies seeking approval to own two top-four stations in the same market -- as Gray and Raycom are -- should have to demonstrate “the harms the Commission has recognized that are associated with common ownership are outweighed by unusual benefits.” Gray/Raycom “has not made such a showing regarding their Honolulu stations,” NCTA said. Gray didn't comment.

Cable interests continue lobbying the FCC's eighth floor to push for changes to local franchise authorities' authority. NCTA, Charter Communications, Comcast and Cox representatives met with aides to Chairman Ajit Pai and Commissioners Mike O'Rielly, Jessica Rosenworcel and Brendan Carr about the Further NPRM on this week's agenda, according to a docket 05-311 ex parte posting Friday, and to ask that the NPRM seek further comment on the applicable scope of the proposed rules. Those cable interests have made repeat visits regarding the LFA NPRM (see 1809200010). NCTA in a separate docket posting recapped calls with aides to Pai and O'Rielly and with Media Bureau Chief Michelle Carey at which cable urged that the NPRM seek further comment on the applicability of the proposed rules to state franchising authorities as well as local ones. NCTA also said regulation of non-cable services over franchise cable systems and of facilities and equipment that offer those services is pre-empted by law. It said the NPRM should point to those actions when discussing pre-emption. Thursday, Free State Foundation Senior Fellow Seth Cooper said the draft NPRM correctly recognizes LFA regulation of broadband would run contrary to the "light-touch information service framework" the FCC pointed to in its Communications Act Title II regulatory rollback.

Comcast failed to make a “plausible” claim that its free speech right was violated when the Vermont Public Utility Commission required the company to expand cable TV services, a judge said last week in an order (in Pacer) issued at U.S. District Court in Rutland. The court allowed Comcast’s federal pre-emption claims under the Cable Act and didn’t let the VPUC claim sovereign immunity to other counts. Comcast said the VPUC exceeded authority by requiring the company in a cable franchise agreement to build 550 miles of new cable and enhance support for public, educational and government channels (see 1712190036). The company argued that violated the First Amendment. Chief Judge Geoffrey Crawford disagreed: “Even giving Comcast the benefit of all reasonable doubts and inferences ... Comcast has failed to plausibly allege that the line extension conditions are a means of exercising a content preference." Requiring Comcast to extend cable deployment doesn’t “favor or disfavor any particular message or view,” Crawford said. Vermont has an important interest -- expanding cable TV services -- unrelated to speech suppression, he wrote. Even if right that the expansion requirements impose bigger burdens on its speech than on other operators, “none of Comcast's allegations plausibly suggest that the burdens are substantially greater than necessary to further Vermont's important interests.” He allowed Comcast federal pre-emption claims, saying it may have statutory cause of action under the judicial review provision of the Cable Act. "Vermont has waived any sovereign immunity that the VPUC might enjoy when acting as the franchising authority for cable television,” Crawford wrote. “Judicial review in state or federal court is an essential part of the package of state regulation conducted pursuant to federal legislation. Vermont voluntarily accepted the offer by electing to regulate under the Cable Act.” A Comcast spokesperson praised “the thoroughness of the Court’s ruling, which only dismisses a single count and allows Comcast to proceed on its challenges to all of the disputed franchise conditions under the remaining eight counts.” The VPUC didn’t comment.

Reporting burdens imposed by FCC Form 325 outweigh benefits of the data it collects, the American Cable Association said in a docket 17-105 posting Thursday. Manually filling it out "is surprisingly onerous," and collecting the data requires going to different business segments that typically don't interact, ACA said. It backs the draft order on next week's commissioners' meeting agenda that would eliminate the form (see 1809040058).

The pace at which cable ISPs are upgrading to offer 1 GB speeds is accelerating, and history indicates they could start offering 10 GB speeds by 2024, CableLabs Director-Technology Policy Mark Walker blogged Thursday. Only 4 percent of U.S. households had access to 1 GB by the end of 2016, and by March 58 percent of such households -- or 66 percent of the cable broadband footprint -- had access to 1 GB or better from their local cable operator, CableLabs said. It said deployment of DOCSIS 3.1 across cable networks will accelerate that trend. So will full duplex DOCSIS 3.1, which will let cable operators provide symmetric gigabit service; coherent optic technologies that can increase the per-strand capacity in cable networks by orders of magnitude; and protocols for Wi-Fi proactive network maintenance that will address connectivity problems and increase wireless bandwidth, it said.

NCTA, Comcast, Charter and Cox -- meeting an aide to FCC Commissioner Brendan Carr -- complained that franchising authorities at the state and local levels keep demanding multiple franchises for services offered over the same cable system and for fees exceeding 5 percent of gross cable revenue, said a docket 05-311 posting Wednesday. They said franchising authorities keep demanding "substantial" noncash contributions that run contrary to the limits instituted by Congress. FreedomWorks Foundation, backing the local franchise authority Further NPRM on September's agenda (see 1809050056), said LFAs are susceptible to and often guilty of regulatory capture and rent-seeking through their controls of rights of way. It said the NPRM would help ensure LFAs don't abuse their authority by excluding non-cable TV services provided by cable companies from oversight.