Comcast's read of the Federal Arbitration Act saving clause violates Supreme Court and 9th U.S. Circuit Court of Appeals precedent, plaintiff-appellees Charles Tillage and Joseph Loomis of California said Monday in opposition (in Pacer, docket 18-15288) to Comcast's petition for rehearing and rehearing en banc (see 1908120009). The Supreme Court has repeatedly rejected the idea arbitration agreements are immune to most general defenses available for other contracts, but it's that narrow interpretation Comcast wants to argue yet again, they said. Comcast asked the 9th Circuit to revisit its rejection of the cable company's appeal of a lower court decision denying Comcast's motion to compel arbitration in a complaint by the Comcast customers alleging false advertising of cable TV pricing. It didn't comment Tuesday.

Cable operators have made it increasingly difficult for subscribers to find and watch public, educational and government channels, and the Cable Act allows Maine to require cable operators to return PEG stations to their original channel numbers and include the channel information in programming guides. So said state Attorney General Aaron Frey in opposition Monday to NCTA's motion for preliminary injunction of a PEG law (see 1909160027). Maine filed in U.S. District Court in Bangor (in Pacer, docket 19-cv-00420) that Congress gave local governments broad authority over PEG service provision and that the cable industry's unlikely to succeed on the merits so the preliminary injunction should be denied. NCTA didn't comment.

BitTorrent traffic is rising, with the fragmented streaming video market seemingly a major cause, BroadbandGenie blogged Friday. It said increased streaming services with exclusive content are driving some to "cheaper and easier" piracy rather than paying multiple subscriptions. It said rather than being spurred by price, some are prompted by the need to use multiple interfaces and difficulty of finding particular content: Streaming services could retain some subscribers who might otherwise turn to piracy through use of a unified interface.

The 4th U.S. Circuit Court of Appeals upheld a U.S. District Court's dismissal of a Charter Communications customer's lawsuit against the MVPD over a rate hike. In a docket 19-1460 opinion Thursday, Judges James Wynn, Pamela Harris and William Traxler said U.S. District Judge Richard Gergel of Beaufort, South Carolina, didn't make a reversible error in dismissing the case after the plaintiff never responded to a Charter motion to dismiss. Plaintiff Heather Hoffman of Hilton Head Island, South Carolina, sued in 2018 alleging a cable and broadband rate hike was done without the required 30-day advance written notice.

The numerous MarkMonitor notices sent Cox Communications on alleged copyright infringement by its internet subscribers were "slipshod, incomplete, inaccurate and massively unreliable," but Cox "responded aggressively" to them, meaning secondary liability against the cable ISP can't be established. That according to Cox in an opposition (docket 18-cv-00950, in Pacer) filed Wednesday in U.S. District Court in Alexandria, Virginia, to music label plaintiffs' motion for summary judgment in their copyright infringement suit against it (see 1808020009). But in their opposition to a Cox motion for summary judgment, the music labels said Tuesday (in Pacer) Cox's contention there's no proof of direct infringement relies on believing that the tens of thousands of Cox subscribers identified in MarkMonitor infringement notices were all falsely accused. The plaintiffs in their summary judgment motion (in Pacer) said Cox's infringement enforcement is a "sham" and between Feb. 1, 2013, and Nov. 26, 2014, it received 163,148 notices about infringement on its network involving 57,679 subscribers, with some subscribers being the subject of 14 or more notices. The labels said only a fraction of those subscribers were cut off from internet service. Cox in its summary judgment motion (in Pacer) said there's no evidence any of the files being offered for sharing by Cox subscribers were actually copied by anyone and labels are seeking damages for works they can't prove were infringed while lacking evidence Cox had the practical ability to stop such infringement.

Massachusetts' Beld Internet is dropping cable TV service Dec. 2 and has launched a K.O. Cable campaign on its website explaining virtual MVPD streaming alternatives, it said Monday.

While backing Entertainment Studios Network (ESN) in its racial discrimination claim against Comcast, Issues4Life Foundation in a Supreme Court docket 18-1171 amicus brief Friday largely focused on Planned Parenthood. The anti-abortion advocacy group said upholding a "but-for" causation standard would allow a continuation of discrimination against African Americans that begins at conception. SCOTUS said in taking up Comcast's appeal of a 9th U.S. Circuit Court of Appeals reversal of a lower court's dismissal of ESN litigation it was considering only whether a claim of race discrimination under federal law fails in the absence of but-for causation (see 1906100024). Comcast outside counsel didn't comment Monday.

Roku shares closed down 19 percent Friday at $108.05 after a Pivotal Research sell rating, citing competition emerging for over-the-top video devices that will likely drive their cost “to zero,” while squeezing ad revenue. Jeffrey Wlodarczak highlighted Comcast’s Wednesday announcement that it's providing its Xfinity Flex OTT device to customers for free, which is “likely to be copied by other distributors.” The analyst credited Roku for creating the streaming media player market but said “everyone has realized the living room is too important” and companies with “massive leverage,” such as Comcast, are likely to make Roku growth “much more difficult.” Altice, Charter Communications and others that “control the dominant data pipe into the household” are coming up with their own ways to deliver streaming content and integrating it with broadband service, he noted. Roku didn't immediately comment.

Roku rolled out seven new players for its holiday lineup Thursday, touting a downsized Roku Express ($29), said to be 10 percent smaller than the model it replaces, and the $99 Roku Ultra. Roku Express Plus, exclusive to Walmart, adds a voice remote, said Roku. The company also announced a new operating system: Roku OS 9.2. It adds Roku Zones for searching by genre or subject; search by movie quote function; and ability to control multiple Roku devices with Amazon Alexa and Google Assistant.

Los Angeles and Portland, Oregon, joined Eugene, Oregon, in legally challenging the FCC's cable TV local franchise authority order. In a 9th U.S. Circuit Court of Appeals petition to be posted Thursday, L.A. and Portland -- plus plaintiffs Kirkland, Washington; the Sacramento Metropolitical Cable TV Commission; and Porland's Mount Hood Cable Regulatory Commission -- ask for a court review. After last month's Eugene petition, more plaintiffs were expected (see 1909120028). Similar to the Eugene challenge, the latest petition said the order was arbitrary and capricious and in violation of the Communications Act, FCC regulations and the Constitution. Portland and the others also asked to have the petition consolidated with Eugene's. The FCC didn't comment.