RCN, ACA Clash With AT&T Over Modifying Turner Arbitration Terms
All New AT&T content, including HBO, should be part of any court-ordered arbitration terms on AT&T's proposed buy of Time Warner, RCN and the American Cable Association told the federal judge overseeing DOJ's attempt to block AT&T/TW. AT&T is opposed.…
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RCN and ACA, in a docket 17-cv-02511-RJL proposed amici brief (in Pacer) posted Monday in U.S. District Court in the District of Columbia, said Turner's current arbitration offer (see 1711280063) is "completely insufficient to address the harms and would produce a worse outcome than DOJ’s preferred structural remedy." They said if the court finds competitive harms to the deal, rather than blocking the takeover as DOJ has argued or going with the Turner-offered arbitration terms, the court has the authority to offer its own behavioral conditions. RCN and ACA said shortcomings of the Turner arbitration offer include HBO not being part of the arbitration terms and not authorizing smaller MVPDs to use a bargaining agent in arbitration or to be compensated for arbitration costs. They said the Turner offer doesn't tackle the information asymmetry that gives the advantage in the arbitration process to a vertically integrated programmer when the MVPD doesn't know what other MVPDs pay Turner. RCN and ACA said anti-competitive issues with AT&T/TW could be addressed by the Turner arbitration terms including the requirement smaller distributors be expressly allowed to use a bargaining agent like the National Cable TV Cooperative to negotiate programming rights. They recommended confidential exchange of programming agreement information, including rates and terms, before making final arbitration offers, and a prohibition on New AT&T blocking an MVPD's broadband subscribers from having access to content that other broadband subscribers have access to online. AT&T/TW called (in Pacer) the proposal "unsworn, untested, and unmeritorious." Since RCN CEO James Holanda testified, the proposed brief "is an impermissible effort to expand the factual record, while shielding its newly-stated opinions and criticisms from the clarifying scrutiny of cross-examination," the combining companies said. DOJ didn't comment Tuesday; RCN and ACA said DOJ hadn't objected to the proposed amici brief.