Comcast/NBCU Attempted to Interfere With Start-Up OVD’s Licensing Deals, Project Concord Says
Comcast’s NBCUniversal broke the non-disclosure obligation in a program licensing arbitration with Project Concord Inc. (PCI), the startup online video distributor said in a pleading with the FCC. Project Concord had sought to license NBCU programming under the OVD program access conditions of the FCC’s Comcast-NBCU merger order, which required Comcast and NBCU to work with new distributors that had deals with peer media companies. But NBCU “blatantly violated the non-disclosure obligation ... by attempting to interfere with the peer deal through a third-party partner,” Project Concord said in a heavily redacted filing published Friday (http://xrl.us/bnk47r).
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NBCU denied the claims in a recent filing (http://xrl.us/bnky9k). A spokeswoman for the network declined to comment beyond its FCC filings. Both parties are seeking to overturn aspects of an arbitrator’s ruling involving Project Concord licensing NBCU content. Project Concord has sought to have NBCU cover its attorney’s fees during the arbitration.
"Not long after receiving Project Concord’s Notice of arbitration, the peer studio notified PCI that it had received a call from its [REDACTED] asking why the Peer Studio had done an [REDACTED] with [REDACTED],” the Project Concord filing said in a footnote that cited a declaration of Project Concord Counsel Jean MacHarg.
NBCU denied the allegations in a recent FCC filing. “In all events, the allegations of misconduct on NBCUniversal’s part are not true,” NBCU said in a redacted version of the filing that posted on the FCC’s website last week. “NBCUniversal rebutted these allegations before the arbitration, and did so again when PCI later reasserted them as part of its fee petition,” it said in a footnote. It also threw similar allegations back at Project Concord: “PCI has used the NDA ... as well as threats of additional litigation, to shield basic information about its economic model.” Furthermore, the arbitrator found that “besides acting ‘ethically’ NBCUniversal’s counsel acted ‘professionally’ and cooperated with PCI’s counsel throughout the proceedings."
Breaches of nondisclosure agreements (NDAs) are common in the world of program licensing, industry sources told us. “The licensing and distribution community is one of the leakiest groups in the business world,” said one person who has worked on video programming licensing deals. “They trade information constantly for corporate and personal advantage.” Non-disclosure agreements can help, but they're often not observed, the person said. “I often hear about my own meeting through third and fourth parties at other networks,” the person said. “Stuff as simple as ‘I heard you guys talked with so and so at CBS...’ to things as specific as ‘Yeah, my buddy at ABC said there’s no way they're going to do XYZ with you guys unless we get on board.'"
A lot of sensitive information travels among programmers and distributors that probably shouldn’t, a communications attorney said. “But it happens on both sides of the NDA,” the attorney said. Such breaches aren’t the norm but they're certainly not unusual, the attorney said. Parties to a contract are generally very careful about not disclosing the terms, the person said. But a lot of NDAs “will say ‘you can’t even disclose that we're having this conversation.’ Those sorts of provision are probably the least frequently honored.”