Comcast Seeks Dismissal or Stay of Nexstar’s Retransmission Fee Case

Comcast Cable Communications LLC has hit back at allegations that it breached a contract with Nexstar Media Inc. concerning the retransmission of New York television station WPIX. According to Wednesday’s motion to dismiss, prior to the filing of the suit, Comcast submitted a petition to the Federal Communications Commission (FCC) alleging that Nexstar violated the FCC’s national ownership cap for broadcast stations and the FCC’s own prior orders concerning WPIX ownership.

At the outset of this week’s filing, Comcast explains that the case involves “complex, highly factual, and policy-driven questions concerning the application of FCC regulations, policies, and prior orders.” The defendant states that Nexstar’s only claim is that Comcast breached the parties’ agreement by failing to pay Nexstar fees for the multichannel video programming distributor’s retransmission of the broadcast television station WPIX.

The motion asks the court to either stay the case or dismiss it without prejudice as threshold questions raised by Comcast are best answered by the expert agency it has already queried, the FCC. Specifically, the defendant asserts that Nexstar exercises “de facto control” over WPIX, and therefore has an “attributable ownership interest” in the station that causes Nexstar to violate the cap limiting broadcast stations to reach a maximum of 39% of households nationwide, among other FCC pronouncements.

If the FCC agrees with Comcast about questions of Nexstar’s control and compliance, the plaintiff no longer has a viable claim in the instant suit, the motion says. The defendant urges the court to hold off making any decisions until these issues are resolved by the FCC, and that it can do so on one of two bases: either pursuant to the primary jurisdiction doctrine or through an exercise of the court’s discretion. Comcast has requested oral argument in the matter.

Nexstar is represented by Covington & Burling LLP and Comcast by Davis Polk & Wardwell LLP.