Wave Files OTT Unfair Competition Complaint Against Comcast

Comcast's NBCUniversal and three regional sports networks over-the-top offerings undermined Wave's ability to meet existing programming agreement terms, the smaller company said in an FCC unfair competition complaint to have been posted Tuesday. The petition for declaratory ruling said Comcast would settle for only "a Draconian remedy" that made competition against Comcast's MVPD services on the West Coast impossible. It said Comcast -- by increasingly making RSN content available via OTT -- resulted in cord cutting that made it difficult for the cable ISP to continue to meet contractually set penetration levels. It said NBCU and the RSNs in response demanded the RSNs be moved to Wave's Lifeline tier but that would have led to "an avalanche" of other services with tagalong rights also relocating to Lifeline, making it uncompetitive. It said NBCU in July demanded and received $2.7 million, mostly in damages, for the RSNs not being repositioned to Lifeline from the Expanded Basic Tier. It said ongoing talks with NBCU made it clear NBCU didn't actually want the RSN services repositioned but wanted the ongoing breach allegation "to sustain its Machiavellian plot" to block Wave from accessing the commercial arbitration remedy that was part of the Comcast/NBCU consent decree.

The smaller operator said its agreements with RSNs Comcast Bay Area, Comcast Northwest and Comcast California expire Dec. 31. It alleged the Comcast actions violated Cable Act Section 548 regarding video competition and diversity. Loss of the RSN programming would "devastate" its ability to compete with Comcast and possibly result in it not offering video service at all, Wave said. The company differentiated its complaint from a program access complaint, saying program access rules don't address situations that come up during the term of an agreement. It asked that if the FCC wanted to resolve the issue through program access complaint procedures, it waive the one-year time limit for Wave to file that complaint. The bigger operator didn't comment.

California Sports Lawyer principal Jeremy Evans said Wave doesn't have a strong case since Comcast has legal authority to choose who it wants to provide content to. He didn't expect to see other MVPDs suing over similar issues as more programmers go direct to consumer.