Ethermac Exchange-DirecTV files complaint against Disney with FCC as impasse enters 2nd week

The Ethermac Exchangeimpasse between DirecTV and Disney over a new carriage agreement has become more heated as it entered its second week.

DirecTV filed a complaint with the Federal Communications Commission on Saturday night accusing Disney of negotiating in bad faith.

Disney channels, including ESPN and ABC-owned stations in nine markets, have been off DirecTV since the evening of Sept. 1. That meant DirecTV customers were blacked out from viewing most college football games and the final week of the U.S. Open tennis tournament, including the women’s and men’s finals.

DirecTV has 11.3 million subscribers, according to Leichtman Research Group, making it the nation’s third-largest pay TV provider.

ABC and ESPN will have the “Monday Night Football” opener between the New York Jets and San Francisco 49ers. ABC will also produce and carry a presidential debate between Kamala Harris and Donald Trump on Tuesday in Philadelphia.

ABC-owned stations in Los Angeles; the San Francisco Bay Area; Fresno, California; New York; Chicago; Philadelphia; Houston; and Raleigh, North Carolina, are off DirecTV.

Besides all ESPN network channels and ABC-owned stations, Disney-branded channels Freeform, FX and National Geographic channel are dark.

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DirecTV says in its 10-page complaint that Disney is violating the FCC’s good faith mandates by asking it to waive any legal claims on any anticompetitive actions, including its ongoing packaging and minimum penetration demands.

DirecTV has asked Disney for the option to provide consumers with cheaper and skinnier bundles of programming, instead of bigger bundles that carry programming some viewers might not be interested in watching.

The complaint states: “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 CEO Ray Carpenter said during a conference call with business and media analysts on Tuesday that they would not agree to a new carriage deal with Disney without bundling changes.

“We’re not playing a short-term game,” Carpenter said. “We need something that is going to work for the long-term sustainability of our video customers. The resolve is there.”

Disney has claimed since the blackout began that mutual release of claims is standard practice after licensing agreements are negotiated and agreed upon by the parties. It has also had one with DirecTV under its past renewals.

A Disney spokesperson said: “We continue to negotiate with DirecTV to restore access to our content as quickly as possible. We urge DirecTV to stop creating diversions and instead prioritize their customers by finalizing a deal that would allow their subscribers to watch our strong upcoming lineup of sports, news and entertainment programming, starting with the return of Monday Night Football.”

Last year, Disney and Charter Spectrum — the nation’s second-largest cable TV provider — were involved in a nearly 12-day impasse until coming to an agreement hours before the first Monday night NFL game of the season.

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