Comcast, Project Concord Each Seek Review of Media Bureau Arbitration Decision
A long-running dispute over what content and on what terms Comcast must license to a would-be online video distributor continues to play out at the FCC. Project Concord and Comcast/NBCUniversal each asked the commission to review aspects of a Media Bureau decision that denied Project Concord attorney’s fees that resulted from an arbitration that began in October 2011. The bureau also found Project Concord was entitled to Paramount-produced movies in the first year after they are released under a condition of the Comcast-NBCU merger order. And, in a reversal of the arbitration’s outcome, the bureau said NBCU showed its other contracts prevented it from licensing certain programming to Project Concord (CD Nov 15 p9). Part of the dispute appears to be over whether Project Concord’s business model is ad-supported.
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Comcast argued the bureau was wrong to say Project Concord could license first-year films under the Benchmark Condition to the FCC’s order approving the Comcast-NBCU transaction. Both the FCC and the Justice Department excluded first-year films from the condition in their approvals, it said. “The plain and identical language used by both agencies in their parallel definitions of Video Programming .... speaks for itself and accurately reflects the express understandings and agreements reached during the transaction review process,” Comcast said (http://xrl.us/boaeja).
In a heavily-redacted application for review, Project Concord argued that the commission should reverse the bureau on another point. It asked the commission to review the bureau’s finding that licensing programming to Project Concord would breach Comcast/NBCU with other parties. Part of the dispute is over precisely what type of service Project Concord will provide when it begins operating (http://xrl.us/boaeqc).
Project Concord says it will operate a transactional VOD or electronic sell-through business, though much of the evidence to support that claim is redacted from its filing. Also redacted is the type of business model the bureau found, which would presumably put it in conflict with Comcast/NBCU’s other contracts. “An [redacted] model has very different characteristics,” Project Concord said in the filing. The filing goes on to discuss “in stream” video elements that can’t be skipped, terms that typically describe advertising. A footnote to the FCC’s order approving the Comcast-NBCU transaction cites a Comcast argument that many of its MVPD affiliate agreements “state that Comcast’s networks cannot allow full episodes of current programming to stream online on ad-supported services on an unauthenticated basis.” Comcast declined to comment and Project Concord did not immediately respond to our query regarding the OVD’s business model.
Project Concord also asked the commission to set up a formal process by which its outside counsel can review Comcast/NBCU’s third-party contracts. “If the terms of such contracts are not already included in the Arbitration record, the Bureau’s conclusion would place Project Concord in the untenable position of simply having to take NBCU at its word as to the restrictions contained in other contracts,” it said.