The FCC plans to vote at its November meeting on a report and order (R&O) to speed up the program access, program carriage, and retransmission consent complaints.

There is currently a one-year statute of limitations, but it allows for a programming vendor to file a program carriage complaint against an MVPD at any time, including years later, with the one-year statute of limitations triggered when the vendor notifies the MVPD.

But FCC chairman Ajit Pai, in announcing the R&O vote, said that "undermines the fundamental purpose of a statute of limitations, which is to ensure the timely filing of complaints."

Pai said the R&O would clarify that the one-year limit is triggered "when an MVPD rejects or fails to acknowledge a request for program carriage or request to negotiate for program carriage."

It would also modify the effective dates for carriage decisions by its Administrative Law Judge to square with other ALJ decisions. It would also align rules for resolving complaints against program carriage, program access, retransmission consent, and open video systems (OVS).

"These changes would help to ensure an expeditious complaint process," said Pai.

A group of independent programmers has told the FCC it should be strengthening, not weakening, the program carriage rules and that its changes to the statute of limitations on complaints could foreclose some complaints and delay relief in others by years.  

That came in comments to the FCC from RIDE Television Network (“RIDE TV”), along with Newsmax TV, HDNet, LLC (AXS TV and HDNet Movies), KSE Outdoor Sportsman Group (Outdoor Channel, Sportsman Channel and World Fishing Network) and WeatherNation TV (collectively “Independent Programmers”). 

Back in March, the FCC voted unanimously to seek comment on some proposed changes to its program carriage rules. 

The item, which combined a Notice of Proposed Rulemaking and Further Notice of Proposed Rulemaking, sought comment on whether and how to modify the time limit requirements for filing program carriage complaints, specifically the statute of limitations for program carriage disputes and how the FCC's Administrative Law Judge reviews those disputes. 

The item proposed to hold that "in circumstances where a defendant multichannel video programming distributor has denied or failed to acknowledge a request for program carriage, the statute of limitations is triggered by that action, rather than notice of intent to file a complaint on that basis." It would do the same for the statute of limitations for "program access, open video system (OVS), and good-faith retransmission consent complaints." 

It also proposed to "harmonize" the process the FCC and ALJ use to review such complaints to help resolve those complaints faster. 

But the independent programmers argue the FCC is going in the wrong direction.  

"The daunting cost of program carriage litigation, coupled with the threat of retaliation and the lack of success of previous program carriage complaints, render the existing carriage rules toothless and more honored in the breach than in the observance," they said.  

Related: NCTA Backs Program Carriage, Access Rule Changes

But the FCC's proposed statute of limitation changes would make the rules even more ineffective and foreclose program carriage complaints in many cases, it says, and delay relief to programmers in others, making the rules "even more of a nullity." 

It told the FCC it should abandon its attempt to narrow the statute of limitations, and instead come up with rules for good faith programming negotiations that prevent most-favored-nation clauses and other "anti competitive tactics." 

NCTA-the Internet & Television Association, told the FCC it is on board with its proposed changes to rules governing program access, carriage, and good faith negotiations, saying it will clear up some ambiguity.

That came in comments on changes that NCTA said would "give greater certainty to parties, eliminate confusion, and provide a more consistent framework for adjudications."

Back in March, the FCC voted unanimously to seek comment on some proposed changes to its program carriage rules. 

The item, which combined a Notice of Proposed Rulemaking and Further Notice of Proposed Rulemaking, sought comment on whether and how to modify the time limit requirements for filing program carriage complaints, specifically the statute of limitations for program carriage disputes and how the FCC's Administrative Law Judge reviews those disputes. 

The item proposed to hold that "in circumstances where a defendant multichannel video programming distributor has denied or failed to acknowledge a request for program carriage, the statute of limitations is triggered by that action, rather than notice of intent to file a complaint on that basis." 

It would do the same for the statute of limitations for "program access, open video system (OVS), and good-faith retransmission consent complaints." 

It also proposed to "harmonize" the process the FCC and ALJ use to review such complaints to help resolve those complaints faster. 

The six-month impasse between Dish Network and HBO continues with scant hope a deal will be reached soon, after meetings between the two companies were unproductive.

Dish said in a statement that it had met with HBO officials earlier this week.

“We recently met with AT&T, but unfortunately they only offered different words with the same meaning,” Dish said in a statement. “AT&T wants Dish subscribers to pay for HBO, whether they want the channel or not. AT&T continues its anticompetitive behavior by forcing a lose-lose choice for our customers – switch to AT&T’s platforms or subsidize HBO so AT&T can give it away for free to its customers.”

“Dish has made it apparent that they have no interest in carrying HBO," HBO said in a statement. "We have made extremely reasonable offers and received no true level of engagement in return. They harmed their subscribers by removing our services from their platforms, which is an unfortunate and damaging tactic that Dish resorts to time and time again. AT&T has not been involved in these talks and HBO would like nothing more than to restore HBO and Cinemax to our fans on Dish and Sling.”

HBO went dark to Dish subscribers in November.  The blackout continued through the premiere of the final season of hit series Game of Thrones, which attracted 17 million viewers last Sunday.

Dish said it was working with customers on a case-by-case basis, and that for those with sufficient broadband service, streaming service HBO Now could be an option. Dish recommended that interested customers visit https://www.mydish.com/hbonow for more information. 

The ongoing battle over retransmission fees and Liberman Broadcasting’s quest to gets its Estrella TV O&Os back on Comcast’s lineups in Denver, Houston, and Salt Lake City will continue minus any claims that the MSO is violating the Federal Communications Commission’s program-carriage rules.

The squabble will also come with squashed assertions by Liberman that Comcast was engaging in discriminatory practices by dumping the trio of stations.

The Federal Communications Commission in an Aug. 26 ruling shot down Liberman’s assertion that Comcast was in violation of FCC rules by “requiring Liberman to provide Comcast with a financial interest in Estrella TV’s digital rights as a condition of carriage.”

The FCC then nixed Liberman’s assertion that Estrella TV’s broadcast stations in Denver (KETD), Houston (KZJL) and Salt Lake City (KPNZ) were “video programming vendors.”

This amounts to a knockout punch for Liberman.

The FCC was rather terse in its decision, stating that Liberman had “failed to put forth sufficient evidence of its program carriage claims to establish a prima facie case.” Translation: Liberman lacks standing to bring such claims in front of the commission.

Now, it must pay the consequences for a change in status that has essentially back-fired for Estrella TV, which airs an array of programming largely produced by Liberman targeting first- and second-generation bilingual and Spanish-preferred Hispanic audiences.

Roughly two years ago, a consultant working for Liberman contacted Comcast to formally discuss a retransmission consent agreement for Estrella TV, according to the FCC's opinion and order.  The main motive behind the discussion was to obtain carriage and compensation that largely mirrored what NBCUniversal-owned Telemundo received from Comcast; Comcast is NBCU's corporate parent.

Liberman was aggressive in its request, seeking “carriage and compensation for all Estrella TV O&Os, carriage in markets where non-owned Estrella TV broadcast affiliates not otherwise carried by Comcast operate, and carriage and compensation in ‘white areas,’ ” otherwise known as DMAs where Estrella TV has no over-the-air presence. Liberman noted its “sustained ratings success” as impetus for the request.

Retransmission consent, as elected by Liberman, started Jan. 1, 2015 for a three-year cycle.

Following the discussions, on Feb. 19, 2015, Comcast remained steadfast in its refusal to add Estrella TV in more markets, or to compensate Liberman for carriage. Because Liberman had opted for retransmission consent rather than “must-carry” status for the Denver, Houston and Salt Lake City stations, Comcast dropped them.

Meanwhile, Comcast criticized Liberman for its actions, saying that an analysis discovered Estrella TV “was not a particularly popular network among Hispanic audiences.”

The FCC politely ignored that claim while siding with Comcast in its ruling against Liberman.

“We are pleased with the Media Bureau’s decision,” Comcast said in a prepared statement. “Liberman Broadcasting’s carriage complaint had no basis in law and was simply an attempt to extract carriage of Estrella TV and fees from Comcast that are in no way justified.”

Liberman’s fight isn’t over, as far as it is concerned.

In prepared remarks, the company said it was disappointed by the ruling, which

dismissed its complaint “on a narrow technicality relating to standing.”

Liberman is considering an appeal. “This technical decision in no way absolves Comcast of the underlying wrongdoing of discrimination against Estrella TV as an independent programmer,” the company said. “Every other major MVPD carries Estrella TV for the simple reason that it is popular with Hispanic viewers. Comcast differs from these other companies only in the fact that it owns competing networks. That type of blatant and obvious discrimination must not continue.”

Liberman has been vocal in its protests against Comcast. But, it hasn’t had much luck in gaining favor among federal decision-makers. Comcast in early June asked the FCC to dismiss the complaint; in late June, Liberman argued that Comcast failed to make a case for any dismissal of its carriage complaint.

Liberman filed the carriage complaint in early April. At the time, Comcast said, “Our decision not to pay the exorbitant price demanded by Liberman was a reasonable business judgment in the interest of our customers — and one that has been confirmed over the past year given the absence of any demand for Estrella TV in these markets.”

Now, the ball is in Liberman’s court, with its options yet to be revealed.