DirecTV files FCC complaint over Disney dispute

The ongoing carriage dispute between DirecTV and Disney (affecting ESPN networks, college conference networks, and ABC owned-and-operated affiliates on linear and all ABC affiliates on streaming) is going to a new level. That came Saturday night with DirecTV filing a good faith negotiation complaint to the Federal Communications Commission. Here’s the full PDF of that FCC complaint:

The overall point of this complaint , and the actions DTV is hoping for, come at the end of the first page and the start of the second page, where they both cite their proposals to offer skinnier bundles and their complaints over ways Disney won’t let them do that, but will offer skinnier options themselves (including with the currently-stalled Venu Sports).

The complaint says “The negotiations have stalled because Disney insists on bundling and penetration requirements that a federal district court judge in New York recently found in the context of the ‘Venu’ joint venture to be unlawful, anticompetitive, and ‘bad for consumers,'” then goes on to a discussion of Disney’s attempt to prevent further litigation:

“Along with these anticompetitive demands, Disney has also insisted that DIRECTV agree to a ‘clean slate’ provision and a covenant not to sue, both of which are intended to prevent DIRECTV from taking legal action regarding Disney’s anticompetitive demands, which would include filing good faith complaints at the Commission. Not three months ago, however, the Media Bureau made clear that such a demand itself constitutes bad faith. DIRECTV accordingly brings this Complaint asking the Commission to declare Disney’s clean slate and covenant not to sue demands to be in bad faith, and to take whatever other action it deems appropriate.”

Why bring this to the FCC? Well, a lot of that is about the broadcast TV element of this dispute. The FCC governs many forms of communications , and they do have some authority over cable and streaming options as well. But in the TV landscape, most of their action has been about broadcast networks . And as noted in point four there (on the third page), what’s “most relevant to this Complaint” is the eight ABC owned-and-operated affiliates.

Those affiliates, in New York, Chicago, Los Angeles, San Francisco, Philadelphia, Houston, Raleigh-Durham-Fayetteville, and Fresno, are currently off all DTV packages. (ABC affiliates owned by other companies are off DirecTV Stream packages and DirecTV’s streaming app, as ABC negotiates its streaming deals nationally, but they’re still viewable on linear DTV packages.) That’s already been a problem on some fronts, including with missed US Open finals and college football, but it’s about to become a bigger one this week.

This week’s ABC content includes the Monday Night Football Jets-49ers clash, featuring Aaron Rodgers and Gang Green taking on the reigning NFC champions. That game’s on ESPN, but it’s one of four ABC simulcasts this season, along with three exclusive games), and marks a key potential point many thought this dispute might end by . And not being able to air Monday Night Football is a massive problem for DTV, given how many of their residential and business customers subscribe largely because of their sports offerings (an element they’ve emphasized over and over in marketing).

Of course, there are other ways to watch a game on ABC. Those include antennas, other multichannel video programming distributors (DirecTV even made the bold and unusual move of offering customers a credit to sign up for Sling or Fubo to minimize the pain of lost games), and the NFL’s own NFL+ (but only for mobile devices). But for those who are used to watching MNF on DTV, this is going to be a pain point.

And MNF is not the only big event at risk this week. Tuesday will feature the ABC News-hosted presidential debate between former U.S. president Donald Trump and current vice-president Kamala Harris. Yes, there will be a ton of other ways to watch that debate; it will be syndicated across broadcast networks CBS, Fox, and NBC, to say nothing of cable news networks and Disney’s streaming options (including free advertising-supported television channel ABC News Live and subscription streaming services Hulu and Disney+). But ABC’s surrounding coverage will only be viewable on their network and the Disney platforms mentioned above, with the syndicated coverage on other networks featuring analysis from their own teams. So for those who want analysis from the ABC team hosting it, that’s going to be tougher if they can’t watch ABC.

There are further ABC challenges ahead, too. Another big one comes Saturday when they have significant college football action. That includes No. 16 LSU at South Carolina (the College GameDay game) at noon Eastern, Texas A&M at Florida in the famed 3:30 p.m. ET window and No. 1 Georgia at Kentucky in the 7:30 p.m. nightcap. (And that’s to say nothing of all the CFB games on ESPN and other Disney networks.) If the DirecTV dispute isn’t wrapped up by then, that adds to all the games customers will miss.

The specific legal argument here revolves around 1999 congressional regulation requiring broadcasters to negotiate with MVPDs in “good faith,” a requirement made mutual in 2004. “Good faith” is sometimes thrown around as just a complaint about tactics, but those regulations and rulings spell it out in a specific way for these purposes. (This has come up with DTV before, including a FCC ruling in their favor in 2022 against broadcast station ownership groups in retransmission negotiations.) With broadcast TV negotiations in particular, there are certain ways both MVPDs and station owners are supposed to act, and DTV is claiming that Disney is violating that (especially with demands for DTV to waive rights to pursue legal remedies after an agreement, which is quite notable given the Venu situation and also given some other recent discussion about Disney’s pushes for those kinds of waivers ).

Will the FCC look into this, and will they agree with DTV’s arguments? That all remains to be seen, and it’s not necessarily certain, with some past FCC comments putting more onus on MVPDs than networks around broadcast network blackouts. But this is a notable move from DTV, and it also suggests that they don’t seem to see a resolution to this carriage dispute coming soon. So that may be bad news for those looking to watch MNF and more on DTV platforms this week.

[DirecTV Disney complaint on Scribd ]

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