The charge was made by a senior Nexstar attorney in a letter sent to the Federal Communications Commission (FCC) last month, and comes as the broadcaster is at the center of an ongoing dispute over programming-related fees charged to DirecTV for the privilege of carrying its local and national channels.
In July, DirecTV was forced to pull around 160 local channels owned by Nexstar after the two sides failed to reach a new carriage deal. DirecTV said Nexstar wanted more money for the channels; Nexstar did not dispute this, saying it was only demanding what it felt was fair.
Things escalated a few weeks later when Nexstar demanded DirecTV stop streaming CW Network programming offered by Sinclair Broadcast Group-owned affiliates. DirecTV ultimately complied with the request.
The situation involving the CW Network affiliates became public knowledge when DirecTV sent the FCC a letter about it. The letter was filed in a public docket concerning whether the FCC should re-classify some streaming cable replacements as “multi-video programming distributors,” or MVPDs, which would require those services to negotiate directly with broadcasters like Nexstar for programming rights.
The same week DirecTV sent its letter, Nexstar’s Senior Vice President and Associate General Counsel Mark Boyes filed a response, saying DirecTV’s complaint was an “abuse of process” that had nothing to do with what the FCC was investigation. Boyes also said DirecTV’s complaint “mischaracterized the circumstances around its unlawful carriage of CW programming on its streaming platform.”
Nexstar acquired a 75 percent stake in the CW last October, giving it majority ownership and control of the broadcast network. Boyes says DirecTV’s agreement to distribute CW Network programming expired one month later, but the company continued offering CW Network shows and live sports through its streaming service for months without an agreement in place.
“As a sophisticated industry participant, DirecTV knew that Sinclair could not authorize it to stream CW programs in the absence of a CW Network agreement,” Boyes wrote. “Nonetheless, DirecTV Stream continued to stream CW programming without the appropriate copyright license for the next eight months, until the CW became aware of the infringement and took steps to cause it to stop, as is its legal right.”
Boyes hinted Nexstar may take DirecTV to court over the alleged copyright infringement, saying “any remedies related to DirecTV’s infringement would need to be addressed in the appropriate judicial venue.”
“DirecTV is not the wronged party here — it is the lawbreaker,” Boyes concluded.
Document: Read Nexstar’s letter to the FCC (PDF download)
When asked about the letter, a DirecTV spokesperson told The Desk that it had a legal agreement in place to offer CW Network programming well before Nexstar acquired its stake in the network, and denied any accusations of copyright infringement.
“As we stated in the letter, Nexstar’s behavior underscores the widely adopted position that the [FCC] should not extend the retransmission consent regime to online providers,” the DirecTV spokesperson said. “DirecTV was carrying those CW [affiliates] through our valid agreement with that station group, an agreement that pre-dated Nexstar’s acquisition of the national CW network.”
It wasn’t immediately clear if Nexstar intended to take legal action against DirecTV over its purported copyright infringement. Nexstar’s senior communications executive, Gary Weitman, does not return messages from The Desk seeking comment.
The two sides are already locked in a legal battle over Nexstar’s operational control of television stations owned by other companies. In March, DirecTV filed an antitrust lawsuit alleging Nexstar’s shared services agreements with Mission Broadcasting and White Knight Broadcasting allowed it to sidestep federal rules that limit one company’s ability to “reach” more than 38 percent of the American television viewing audience at one time.
Earlier this month, DirecTV told The Desk it opposed efforts by Mission Broadcasting to buy a low-rated, family-owned television station in Detroit, restating many of the concerns it made in its lawsuit against Nexstar.