Arbitrator Sides with Project Concord in OVD Carriage of Some Comcast-Owned Programming
An arbitrator ruled in favor of startup online video provider Project Concord (PCI) in a dispute over terms of carrying some NBCUniversal programming online, documents filed with the FCC show (http://xrl.us/bngn5q). The company, which has yet to introduce its service, said in February it was having trouble accessing some NBCU programming under the online video distributor (OVD) condition of the Comcast-NBCU merger order (CD Feb 27 p5). An arbitrator found that Project Concord’s final offer “most closely approximates the fair market value of the programming carriage rights at issue.” But the arbitrator stopped short of finding that Comcast and NBCU acted unethically or deployed improper tactics in the dispute.
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Under the terms of the Comcast-NBCU order, OVDs are entitled access to NBCU programming if they show similar arrangements to carry peer programming. The heavily redacted version of the arbitration award notice reveals little about the amount of programming Project Concord can license from Comcast-NBCU or at what price but refers to current films and current TV titles repeatedly.
Project Concord said the company is pleased with the arbitrator’s decision. “It confirmed our view of the substantive issues and has cleared a path for us to work with NBCU for mutual benefit. We are excited to move forward with NBCU on that basis,” the company said. A spokesman for NBCU said the company is generally satisfied with the outcome.
"While the arbitrator chose Project Concord’s final offer, by the final phase of this proceeding, the differences between the parties’ offers had narrowed significantly,” the NBCU spokesman said. “We probably could have reached the same resolution earlier, without arbitration, but the process was somewhat bogged down because we were unable to see the peer deal with the other studio Project Concord was asking us to match,” he said.
Arbitrator Henry Silberberg wrote that he declined Project Concord’s request, supported by 62 pages of declarations from its lead counsel, that he hold NBCU responsible for all the “costs, expenses and attorneys’ fees incurred by PCI in connection with the arbitration.” “This was a complex, hard fought and time-pressured proceeding where both sides were represented by skilled and sophisticated counsel, and while they of course did not always agree with one another, the attorneys generally acted cooperatively, ethically and professionally,” he wrote.