The FCC Media Bureau wants Sinclair and its prospective purchase partner Tribune to provide information on the merger’s proposed top-four duopolies “for the Commission to review the applications and make the necessary public interest finding,” said Chief Michelle Carey in a letter to the broadcasters posted Tuesday in docket 17-179. The letter was issued along with Monday’s public notice calling for comments on amendments to the deal (see 1805210056). The bureau wants the broadcasters to provide numbers on retrans revenue, retrans fees, advertising revenue and Nielsen ratings data for the St. Louis and Indianapolis designated market areas, the markets where Sinclair seeks to own top-four duopolies. “Cheers to @FCC for now seeking some retrans data/info from Sinclair in markets where company could obtain a duopoly,” tweeted American Cable Association Senior Vice President Ross Lieberman. ACA has opposed the Sinclair deal over its projected effect on retrans rates. The agency chose “NOT to request such data in its last formal request (Sept. '17),” Lieberman said.

Antitrust law's consumer welfare standard can play a role in addressing competitive threats posed by new developments in technology such as digital markets and platforms, said DOJ Antitrust Division Chief Makan Delrahim Tuesday at the Jevons Institute Colloquium in Rome, according to prepared remarks. Outputs are difficult to measure for companies like social media networks, but other indicators of consumer welfare -- innovation, choice and quality -- deserve more attention in looking at digital markets' competitive effects, though they can be difficult to quantify, he said. Innovation is inherently disruptive, and competition policy should encourage existential threats to incumbents from new entrants, he said. Elimination of choice isn't inherently suspect, but a merger that would give the combined entity incentive and ability to undermine innovative competitors offering new product choices could be grounds for enforcement action, he said. When it comes to media and technology companies, quality "is best captured as the entire customer experience," he said. Delrahim said there should be consideration whether "net promoter score" -- the measurement of whether customers or users are likely to recommend or bad-mouth a product -- or other benchmarks can measure quality as a byproduct of competition.

The FTC should “break up Facebook’s monopoly” by forcing the social network to divest Instagram, WhatsApp and Messenger, a new campaign argued Monday. The Open Markets Institute, Public Citizen, Demand Progress and Content Creators Coalition were among organizations signing onto Freedom From Facebook. The campaign asks the FTC to “develop interoperability standards, so users will have the freedom to communicate between competing social networks” and to implement stronger privacy rules. The FTC "and other regulators and policy makers [should] confront the power of Facebook and the monopoly of online platforms," Demand Progress Executive Director David Segal said. The organization cited Treasury Secretary Steve Mnuchin calling for DOJ to investigate big tech concentration of ownership. A Facebook spokesman said people use it, Instagram, WhatsApp and Messenger because they find them valuable: "We support smart privacy regulation and efforts that make it easier for people to take their data to competing services. But rather than wait, we’ve simplified our privacy controls and introduced new ways for people to access and delete their data, or to take their data with them.” The FTC didn't comment. Computer & Communications Industry Association CEO Ed Black said the campaign is “misguided political fervor that ignores the economic facts, lacks evidence of competitive harm, and purposes an extreme resolution that would harm consumers and reduce innovation.”

U.K. Secretary of State-Digital, Culture, Media Matt Hancock said Monday his office is leaning toward not intervening in Comcast's proposed buy of Sky. He said the proposed deal doesn't raise public interest concerns enough to justify intervention. He said interested parties have until May 24 to submit written responses and a final decision on possible intervention will follow "shortly." Comcast in April made a formal bid for Sky, while Fox had a pending bid (see 1804250026), and Sky subsequently said it favored the Comcast offer (see 1804260008).

AT&T and Time Warner are battling an independent programmer's attempt to urge a federal court to block AT&T's buy of TW. In an opposition (in Pacer) filed Monday in U.S. District Court for the District of Columbia, AT&T/TW said Cinemoi's proposed amicus curiae brief opposing the merger is based on grounds -- harm to independent programmers -- the government isn't raising, and Cinemoi shouldn't be allowed to introduce after the close of evidence, a claim DOJ declined to assert. It said Cinemoi is trying to add factual assertions to the trial record that haven't been tested by deposition or trial examination. In its proposed docket 17-cv-02511-RJL amicus brief (in Pacer) filed Friday, Cinemoi said New AT&T's centralized power would exacerbate the uphill battle indie programmers have in getting carriage on MVPDs' systems since New AT&T would have even more motivation to restrict such indie networks' access to viewers so as to benefit TW programming. Cinemoi said the court should permanently enjoin AT&T/TW.

The CBS board voted to dilute National Amusements Inc.’s ownership stake Thursday, and now the Delaware Court of Chancery will decide, CBS said in a release that evening. The vote “was pure pretext,” NAI said (see 1805170038). “CBS management and the special committee cannot wish away the reality that CBS has a controlling shareholder.” The CBS board dividend was approved by all CBS board members unaffiliated with NAI, and if issued, would dilute the voting interest from about 79 percent to about 20 percent, CBS said. NAI Wednesday changed the CBS board’s bylaws to require a supermajority vote for matters such as the dividend. That was “plainly necessary,” given the vote Thursday, NAI said. “The written consents delivered by NAI purporting to amend the Company’s bylaws are neither valid nor effective,” CBS said. The vote is conditioned on a final determination by the Delaware court, including on whether the dividend is permissible, CBS said. The same court Thursday rejected a CBS motion for a temporary restraining order against NAI. CBS said the vote to dilute NAI’s stock was needed to keep NAI and its head, Shari Redstone, from compelling CBS to combine with the NAI-controlled Viacom. “As National Amusements has repeatedly stated, it has no intention of forcing a merger that is not supported by both CBS and Viacom,” NAI said. CBS also voted Thursday to delay its 2018 annual meeting of stockholders, which had been set for Friday. “The Board will determine shortly a new record date for the meeting,” CBS said. “The postponement will provide all constituents with additional time to consider all pertinent matters before the annual meeting.” S&P Global Ratings placed CBS on “CreditWatch with negative implications,” it said in an email Thursday evening. “Considerable uncertainty surrounds the control and management of CBS."

RCN and the American Cable Association are wrong about whether behavioral conditions are an appropriate remedy for antitrust concerns raised by AT&T's proposed buy of Time Warner, DOJ said in a docket 17-cv-02511-RJL response (in Pacer) filed Wednesday in U.S. District Court for the District of Columbia. RCN and ACA seek to file an amici brief proposing modified Turner arbitration terms (see 1805150002). Justice said the RCN/ACA proposal does at least give alternative remedies, which the court had requested, and AT&T/TW opposition to it runs contrary to that request. AT&T/TW outside counsel didn't comment Thursday.

The Delaware Court of Chancery denied a request from CBS and a special committee of its board for a temporary restraining order, said an order issued Thursday, the day the board voted later on a proposal to dilute the voting interest of controlling stockholder National Amusements Inc. “We are pleased by the court’s decision to deny CBS and its special committee’s unprecedented motion to try to deprive a shareholder of its fundamental voting rights,” said NAI. The Shari Redstone-controlled National Amusements also owns Viacom, and the dispute with the CBS board stems from that body’s rejection of a Redstone-backed combination with Viacom. Wednesday, NAI amended CBS bylaws (see 1805160037) so dividends such as the proposed dilution have to be approved by 90 percent of the 14 member board, three of which are NAI designees. In a release Thursday, CBS said directors will still consider a dividend redistributing the stock to “more closely align economic and voting interests of CBS stockholders without diluting the economic interests of any stockholder.” CBS remains confident it will “prevail” in the lawsuit against NAI that accompanied the motion for a temporary restraining order. The court said Thursday that CBS’ allegations about Redstone and National Amusements “are sufficient to state a colorable claim for breach of fiduciary duty” but rejected the restraining order. “No precedent has been identified, however, in which the court has ever entertained, much less sanctioned, the type of request for relief that plaintiffs make here,” said the order. “A truly extraordinary set of circumstances would be necessary.” Those circumstances aren’t present because board decisions aren’t irreversible and CBS has recourse in court, it said. Judicial review “can afford full relief” to “vindicate the interests of CBS and its stockholders,” the court said. “The ruling clearly recognizes that we may bring further legal action to challenge any actions by NAI that we consider to be unlawful, and we will,” CBS said. “As we intend to demonstrate as the case proceeds, the actions of CBS and its special committee amount to a grievous breach of fiduciary duties and show no regard for the significant risk posed to CBS and its investors,” said NAI.

CBS majority shareholder National Amusements Inc. delivered written consents to amend the broadcaster's bylaws “to safeguard against unlawful action by CBS and its special committee,” National Amusements said Wednesday. The CBS board filed a lawsuit and motion for a restraining order Monday to keep NAI from intervening in plans to dilute NAI stock and take away majority control (see 1805140044). “The amendment principally requires that certain board actions with respect to dividends and changes to CBS’ bylaws be approved by a supermajority of the CBS Board,” the NAI release said. The “irresponsible action" poses “significant risk” to the network, the investor said. “NAI was compelled to take this measured step to protect its position while also mitigating further disruption.” CBS didn’t comment.

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. 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.