Can't see sports, Oscars without channel-bundle subscription you don't want? Let regulators know

Gencraft

I filed a comment today with the Antitrust Division of the U.S. Department of Justice regarding the Disney-Fox-Warner sport streaming deal, and more generally, the anticompetitive practice of streaming television sales with channel-bundling leverage and opt-out subscriptions.

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9 March 2024

Dear sir or madam at the Antitrust Division of the U.S. Department of Justice:

I understand you are scrutinizing the Disney-Fox-Warner sport bundling agreement, and you no doubt are sensitive to the situation in televised sport since the recent congressional hearings on sport media rights.

I draw your attention to two of this weekend's top offerings in sport and entertainment, because they are demonstrative of the problem now in the streaming industry—which is to say, for our times, in the television industry.

In sports, this weekend will see a meeting of the top two, closely matched soccer teams in the world contending for the Premier League championship, Manchester City and Liverpool.  NBC owns U.S. TV rights to Premier League matches in the United States.  NBC's practice is to break up matches horizontally, across its many media properties and contractual arrangements, compelling consumers to have to pay for multiple services to follow a single team in a single sport.

The practice is worse still: high-interest matches such as Sunday's are available only with the purchase of subscription bundles to channel packages consumers do not want.  Yes, the match is available from multiple electronic packages, but each is an expensive bundle: Fubo, Sling, DirecTV, and USA on cable television.  There is no one-off purchase option, nor even a one-channel purchase option.  The price of one month on one of these services far exceeds the market value of one match, or even four weekly matches.

This leveraged bundling, compelling consumers to buy what they do not want to get what they do want, especially in a billing format of opt-out subscription renewal, is an anticompetitive practice. It is ironic that Fubo has sued in private antitrust enforcement to stop the Disney-Fox-Warner agreement. Fubo's position seems to be that it wishes to profit in the vertical market from bundling leverage, but does not want providers to profit from the same model in a horizontal arrangement. In entertainment, the Oscars air on ABC Sunday night.  Like NBC in sports, ABC is making this popular program available only through bundled channel services such as Fubo, Sling, YouTube Live, Hulu Live, DirecTV, and ABC on cable television. Again, there is no one-off purchase option, nor even a one-channel purchase option. 

Again, consumers must buy access to content they do not want, again in a billing format of opt-out subscription renewal.  Media watchers such as Vulture advise consumers to purchase a television antenna to see the Oscars on ABC broadcast.  Is it not plain evidence of ABC's anticompetitive practice that in this day and age consumers would have to regress technologically to over-the-air broadcast to avoid paying for what they do not want?  Never mind the fact that old-fashioned broadcasters have substantially dampened their signal power, so that over-the-air reception is not feasible for many Americans, even on the fringes of large markets.

Disney-Fox-Warner argue that they must forge an agreement to meet consumer demand, so their agreement is in the public interest.  They are not wrong.  However, they are right only insofar as you already have permitted an anticompetitive market to exist.  For a player in this market to succeed, it must grow bigger, must exploit horizontal and vertical integration.

The fundamental problem is that the market already is dysfunctional.  Market actors are trying to replicate the cable model in a streaming world. But the cable model came about as a function of technological limitations, not market forces.

Is it not self evident that in a free market, consumers would be able to buy what they want and not buy what they do not want?

I entreat you not to approve of the creation of another integrated market player. At the same time, I entreat you, start taking a hard look at the anticompetitive practices that already are tolerated in existing horizontal and vertical integrations, especially through the strategy of channel-bundling leverage and opt-out subscription sales.

Sincerely,

Rick J. Peltz-Steele

(for information only:)
Attorney, Washington, D.C.
Chancellor Professor, UMass Law School

'Gripping' Ugandan documentary makes Oscar cut

Uganda has its first ever Oscar-nominated film, a documentary about political persecution and daring resistance to the Museveni regime.

Bobi Wine: The People's President tells the story of musician Bobi Wine's transition from pop culture to political activist running for the presidency of Uganda against entrenched incumbent Yoweri Museveni. En route, Wine is arrested many times, brutally beaten, and effectively exiled from his homeland.

Here is the trailer.

For On the Media, Brooke Gladstone has a compelling interview with Wine himself and director Moses Bwayo.

In following Bobi Wine for the film, the film crew was itself in peril. If behind the scenes was as breathtaking as Bwayo described, I can't imagine how unnerving the end product must be. Wine briefly spoke on OTM of his torture by Ugandan authorities, and it's not easy to hear, before he himself stopped and said he could not talk it about it more.

It happens that my all-time favorite documentary to date is Call Me Kuchu (2012), which deals with the detestable persecution of the LGBTQ community in Uganda. Call Me Kuchu is hard to watch, but I come away from it every time thinking it should be required viewing for humanity: a lesson in immorality, the horror that results when the great commandment of Matthew 22:39 is disregarded. 

I note that it's not clear Wine himself, for all his persecution, quite gets the takeaway on the LGBTQ question. But he might have come around, and he's probably right that the Museveni regime leverages past transgressions against him.

Anyway, I am keen to see Bobi Wine, which is streaming in the United States on Hulu and Disney+, where the film is touted as "gripping." Fortunately, the film can be seen in Africa and even has been screened in Uganda. Wine told OTM that National Geographic has made the film available for streaming throughout the continent.

Shockingly, Wine told OTM that he is intent on returning to Uganda. Much as I would like to see change for Uganda—I've traveled there, and it's a magnificent country—I hope Wine takes to heart the lesson of Alexei Navalny and well considers his timing.

UPDATE, Mar. 4: I've since seen the film. Two thumbs up, and prayer for Uganda.