The hundreds of broadcast station retransmission consent negotiations that happen yearly without any blackout of service to multichannel video programming distributor subscribers are proof the retrans market doesn't need changes in the totality of circumstances test for good-faith negotiations, the NBC TV Affiliates Association told FCC staff, said an ex parte filing Monday in docket 15-216. The few blackouts that occur involve a handful of national satellite and cable companies, the affiliates said, and the retrans consent proceeding "only serves to encourage these and other MVPDs" to try to use such blackouts to gain regulatory advantage. The affiliates also repeated their case the FCC doesn't have statutory authority to require interim carriage during retrans disputes (see 1601150015). They also said any FCC change of retrans rules that handicaps the negotiating power of stations would only accelerate the trend of top-rated sports and entertainment programming to jump ship from over-the-air broadcast stations to subscription-based pay-TV providers. And the affiliates said MVPD complaints about retrans fee increases are "repetitive whining," especially since monthly subscription fees for different pay-TV services "clearly dwarf the most aggressive broadcast retransmission consent fees paid by MVPDs for significantly more popular local broadcast stations." The ex parte filing recapped a meeting between affiliates representatives including Chairman Ralph Oakley and such FCC staff as Commissioner Mike O'Rielly and Media Bureau Chief Bill Lake.

Gray Television -- which is angling for its KVLY-TV Fargo to get Channel 4 carriage on Cable One in that North Dakota market -- is trying to squash competition from Parker Broadcasting of Dakota License by opposing Parker's must-carry complaint trying to get KRDK-TV Valley City on Channel 4 (see 1603040033), Parker said Thursday in FCC docket 16-69 in a response to Gray's opposition to the complaint (see 1603230024). Parker said Gray claims its understanding was that KRDK -- which it once owned -- wouldn't seek Channel 4 carriage after that sale, but "this was never the understanding of Parker's current owner, nor was any such agreement ever a part of the purchase documents." As "a large, sophisticated broadcaster, one would have expected that if channel positioning were so critical to Gray, it would have incorporated this provision into the purchase documents," Parker said. The broadcaster also said Gray's argument that the Parker complaint is time-barred because it was filed more than 60 days after Cable One denied carriage is off-base because Cable One didn't deny carriage until Feb. 11. Parker bought the station from Gray in 2014 in a deal brokered by the Minority Media and Telecommunications Council (now known as the Multicultural Media, Telecom and Internet Council) and lauded by the FCC for increasing programming and ownership diversity (see 1408280050). Gray didn't comment Friday.

The 9th U.S. Circuit Court of Appeals should rule that streaming video service FilmOn X is entitled to a compulsory license under the Copyright Act, said amicus briefs from the Consumer Federation of America, the Electronic Frontier Foundation, the National Federation of the Blind and Public Knowledge. Section 111 of the Copyright Act, which governs such licenses, was intended by Congress to be technology neutral, Public Knowledge and the EFF said in a joint filing. Without a compulsory license and the accompanying right to retransmit broadcast content, a streaming service like FilmOn X can't be financially viable, the NFB said. If an FCC proposal to reclassify services like FilmOn X as multichannel video programming distributors comes to fruition, the new over-the-top MVPDs would have to comply with FCC rules requiring video description of their content, which would in turn be a great expansion of the online video that's accessible to the blind, NFB said. The 9th Circuit should find that FilmOn X is entitled to a statutory license because it would expand choice for all consumers, CFA said. Cable is now an incumbent in the video industry, and without the content granted by a compulsory license OTT carriers cannot compete, CFA said.

The 9th U.S. Circuit Court of Appeals shouldn't defer to the Copyright Office in the matter of whether FilmOn X's streaming service should be treated as a cable system, FilmOn said in a brief filed in the 9th Circuit last week. “No deference is warranted.” The court instead should "independently analyze” Section 111 of the Copyright Act, which governs the definition of cable systems and their right to a statutory license to retransmit broadcast content for a fee, the filing said. It's the latest attempt by FilmOn X to be declared a cable system by the courts. FilmOn X lost using similar arguments in federal courts in Washington last year, and two weeks ago in the U.S. District Court in Chicago (see 1512020060). Though it won in U.S. District Court in Los Angeles (see 1507200067), that case was appealed by broadcasters to the 9th Circuit, where it's still being briefed. The U.S. Supreme Court's comparison of the similar company Aereo to a cable system should inform the 9th Circuit, FilmOn X said, although it conceded that “Aereo did not set a binding precedent regarding statutory license eligibility.” FilmOn X has made similar arguments in its other cases for a statutory license. As FilmOn X loses in more and more lower courts, it makes it less likely that its case will ever be heard by the Supreme Court, Wilkinson Barker broadcast attorney David Oxenford said in a blog post. “Given the fact that more and more courts are lining up against FilmOn, the high court may never even need to resolve the issue if there ends up being unanimity among the lower courts.”

Cordillera Communications signed a new retransmission consent carriage agreement Thursday with Cox, covering three stations in Arizona, California and Louisiana, NAB said Friday. It and Cox separately said Cox's 13 local TV stations separately renegotiated retrans agreements with Dish. There were no disruptions for any station in both cases, NAB and Cox said.

The DOJ’s decision Monday to abandon its lawsuit to compel Apple to create security-defeating software for the iPhone (see 1603280054) was “a preferable outcome to a wide-reaching court decision,” CTA President Gary Shapiro said Tuesday in a statement. Americans “want every tool in the fight against terrorism, but we also want our privacy and many in the technology and national security industry world believe that secure devices are an important weapon against terrorism,” Shapiro said. Tech companies “will help fight the battle against terrorism through innovation,” he said. “They will develop predictive analytics combined with sensing devices that smell explosives, measure biometrics including voice, facial and other indicators of emotion or intent. They will create new tools, applications and measures which keep us all safe." But what tech firms "are reluctant to do" is allow government "to have unfettered tools" that are easily "obtainable by bad actors" to crack "the most private of interactions" conducted on consumers' devices, Shapiro said. Shapiro buys into the argument (see 1603290059) that DOJ’s withdrawal of the suit against Apple doesn’t resolve the larger questions on privacy vs. security, he said. “The national discussion on the balance between privacy and security can and must continue,” Shapiro said. “We look forward to working with law enforcement, Congress and our members to discuss the appropriate tradeoffs in this critical balance."

Nome and Prudhoe Bay, Alaska, could be linked by a new multistage high-capacity fiber system by Q1 2017, Quintillion Subsea Operations said in an FCC International Bureau application Thursday seeking authority to build and operate the system. That cable is expected to be the first stage of a larger submarine cable system that eventually will go international, Quintillion said. The proposed Alaska line will have six landing stations in the state, as the first fiber cable at five of them, and provide coastal communities in northern and northwest Alaska with fiber-based communications that connect with other carriers and providers at each landing site, Quintillion said, saying it hopes to have the network constructed by October. The first vessel transporting the cable is expected to leave port in France April 18, Quintillion said. Any license grant later than that "creates the very real potential to delay the coming-into-operation date until the third quarter of 2017 at the earliest, if not considerably longer," given the short Alaskan construction season, Quintillion said.

Echoing labor law terminology, American TV Alliance said carriage of a station's primary programming stream is the "mandatory subject" of retransmission consent negotiations, and broadcasters insisting on forced bundling provisions in retrans talks violate good-faith negotiating, in an ATVA filing Friday in docket 15-216. ATVA said its proposal to restrict forced bundling (see 1512010052) would still let broadcasters offer such terms; "it merely could not insist on such carriage over the objection" of a multichannel video programming distributor. Broadcasters also should be required to make a legitimate stand-alone offer, ATVA said, with the test of how bona fide that offer is including questions of whether the stand-alone offer is the same or higher than the bundled offer, whether the broadcaster provided any explanation for the stand-alone offer, whether anyone has ever accepted the stand-alone offer, and how that stand-alone offer's price compares with those of close substitutes. The coalition elaborated on its argument that the FCC has authority to adopt ATVA proposals and to order interim carriage despite NAB arguments otherwise (see 1603170056), citing language in the Communications Act. In a statement Friday, NAB said, "The FCC has no authority in this area, previous Commissions have concluded. We agree with those conclusions. No broadcaster has ever been found to have violated the good faith rules. Ever. The only violators of good faith rules have been -- wait for it -- pay TV providers." While Fox and Dish Network have settled the lawsuit regarding the latter's AutoHop ad-skipping service (see 1602110012), MVPDs remain concerned about broadcaster restrictions on technology functions, ATVA said, with one broadcaster in retrans negotiations demanding the MVPD not give subscribers any options for skipping or fast forwarding through ads, or carry ads of any such device or service. Some MVPDs said broadcasters also have sought restrictions on network DVRs, picture-in-picture and mosaic functionality, and search and recommendation functionality, ATVA said.

Any tech standards that comply with FCC-proposed rules for third-party set-top boxes should “provide for competitive interoperability across all" multichannel video programming distributor systems, said officials from the Computer & Communications Industry Association, Google, Hauppauge, Incompas, Public Knowledge and TiVo, representing the Consumer Video Choice Coalition in a meeting Tuesday with Media Bureau staff and FCC Chief Technology Officer Scott Jordan, said an ex parte filing posted Friday in docket 16-42. The CVCC representatives said device provider certifications are a “feasible” way to “affirm adherence” to rules on privacy, emergency alerting and children's programming. The FCC should act on a pending petition to reinstate encoding rules, the CVCC said. The FCC shouldn't wait for the completion of a diversity study to change the set-top rules, said GFNTV, National Black Programming Consortium, New England Broadband, Townsend Group and iSwop Networks in a letter to Chairman Tom Wheeler Tuesday. “Diverse programmers and cable networks have repeatedly made a compelling case that the current system of little to no minority ownership and programming is abhorrent and deserving of a solution such as that proposed in the NPRM,” the letter said.

Programmers are urging Georgia Gov. Nathan Deal (R) to veto HB-757, a bill to permit pastors to refuse to officiate at same-sex weddings and faith-based organizations to deny renting facilities due to moral objections. Time Warner said Thursday it strongly opposes "the discriminatory language and intent of Georgia's pending religious liberty bill." TW said its HBO, Turner and Warner Bros. "have business interests in Georgia." Viacom Wednesday said it has "enjoyed doing business in Georgia for many years and we urge Governor Deal to continue to resist and reject the patently discriminatory laws.” AMC Networks also opposed discrimination. MPAA said 21 movies -- including Ant-Man, Taken 3 and Magic Mike XXL -- and 52 TV series -- including AMC's The Walking Dead and Halt and Catch Fire -- were filmed in Georgia in 2014. In a statement Thursday, Deal's office said the governor "will assess the legislation during bill review."