Upstart OVD Wants to Enter Arbitration With NBCU Over Access to Programming
NBCUniversal may face an arbitration request from an upstart online video distributor (OVD). It could seek a programming deal with the company under terms of an FCC order approving Comcast’s purchase of control in NBCU that gives OVDs the rights to buy some content accords if they strike distribution deals with other programmers. Project Concord Inc.’s request may be the first such instance of an OVD intending to seek arbitration to get access to shows from Comcast’s cable channels or the NBC broadcast-TV network to distribute them online, consumer advocates who opposed the NBCUniversal deal told us. The OVD’s request was made public in an FCC filing last week. It asked the agency not to pause issuance of a protective order to keep programming contracts confidential while it reviews Comcast’s request to change a condition in the 2011 order (CD Feb 22 p4).
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Project Concord asked the Media Bureau to immediately issue a protective order, so video programming deals can be shared with outside lawyers and consultants. A filing posted in docket 10-56 (http://xrl.us/bmuwia) said that’s part of the OVD’s October notice to NBCUniversal that it about its intent to request arbitration as a “Qualified Online Video Distributor” that’s reached deals with other programmers. Comcast spokespeople had no comment.
Project Concord is offering a “new, more convenient way to experience your favorite TV shows on demand, without having to reach into your wallet,” the company’s website said. The site isn’t open to the public for programming. The company plans a service with “legal access” to “top movies and TV shows,” it said (http://xrl.us/bmuwm2). Project Concord executives had no comment.
No other OVDs have publicly said they want to arbitrate programming deals involving Comcast or NBCUniversal, said officials at nonprofits that asked the FCC not to approve Comcast/NBCU. “I am not surprised by it -- and I won’t be surprised if there are more complaints in the future,” said Senior Policy Counsel Corie Wright of Free Press. “The merger conditions are finally coming home to roost. It was just a matter of time."
The FCC shouldn’t let Comcast “re-litigate the terms of the Commission-issued Model Protective Order” the agency approved for such disputes, Project Concord said. “NBCU seeks to expand disclosure of this highly confidential peer agreement” to internal company lawyers and executives who negotiate licensing deals, the OVD noted. “Such a controversial and significant proposed change to the terms of the Commission issued Model Protective Order may not be made at the Bureau level.” The now-merged companies said in a Feb. 17 FCC filing that OVDs refused to disclose licensing pacts with other major networks when seeking access to Comcast/NBCUniversal content.
The bureau shouldn’t wait to decide on that request, Project Concord said. “The NBCU request to adopt a new protective order inconsistent with the Commission-approved Model Protective Order should not in any way be used as an excuse to delay arbitration proceedings,” the OVD said. “PCI respectfully requests that the Bureau specifically emphasizes that any arbitration proceedings should not be delayed based on the pendency of NBCU’s proposal. Further, the Bureau should confirm that the authority of the arbitrators under the Conditions to enter into the Commission-approved Model Protective Order remains in place.”