Hulu Can't Shake Privacy Suit

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United States Magistrate Judge Laurel Beeler last week denied a summary judgment motion by Hulu, LLC, to dismiss a putative class action invasion of privacy suit brought by users of the on-demand streaming video Web site, according to a Reuters wire service article.

The case, In re Hulu Privacy Litigation (Case No. 11-03764I), brought in the United States District Court for the Northern District of California, alleges that Hulu violated the Video Privacy Protection Act ("VPPA") [Pub. L. 100-618] when it purportedly allowed access to users' viewing history to Facebook, Inc. and comScore, Inc. without the users' permission.

Hulu's unsuccessful motion to scuttle the suit argued the plaintiffs were not aggrieved persons under the VPPA because they hadn't sustained actual damages. Additionally, Hulu contended certifying plaintiffs for a class action was untenable because a substantial number of its users employ fake identities.

Judge Beeler, however, without ruling on the merits of the suit, said VPPA merely "requires only injury in the form of a wrongful disclosure," in denying the summary judgment motion. VPPA was enacted in 1987 by Congress in a knee-jerk response to the Washington, D.C. City Paper publishing a record of video store movie rentals by then U.S. Supreme Court nominee Robert Bork.

The plaintiffs, whom the Reuters article reported are scattered among New York, Illinois and California, want $,2500 per alleged VPPA violation, along with punitive damages and costs. They allege Hulu sent their personal viewing histories to Scorecard Research, a market research component of comScore, Inc., and to Facebook, Inc., which allegedly linked the video selections to Facebook registration data, according to the Reuters article.

Hulu is a joint venture of News Corp., Walt Disney Co. and Comcast Corp. through Fox Broadcasting, ABC and NBC Universal, respectively. The venture is expected to generate $1 billion in revenues this year, according to Reuters.

Another motion to dismiss the case is slated to be heard in February, 2014, in which Hulu is expected to argue that it did not knowingly transmit allegedly protected data to marketing and social media outlets in violation of VPPA.

Comcast Completes NBC Universal Purchase a Year Early

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Philadelphia-based cable giant Comcast paid Fairfield, Conn.-based General Electric $16.7 billion this week to purchase the remaining 49 percent interest in NBC/Universal, a year ahead of the planned completion of the acquisition (see "TUOL" post 9/2/11), according to accounts by Bloomberg News, Mediabistro.com and others.

The deal, expected to be finalized by the end of March, fattens GE's bank account by $12 billion, includes a $4 billion debt guarantee from Comcast, $700k in preferred stock and another $1.4 billion to acquire real estate, including NBC's 30 Rockefeller Plaza building and CNBC's Englewood Cliffs, N.J., headquarters.

Comcast takes on the NBC broadcast network, cable networks Bravo, USA Network and MSNBC, as well as Universal Studios and the Universal theme parks. According to the Bloomberg News article, NBC Universal's enterprise value has jumped to $39.1 billion from $37.5 billion when Comcast initially gobbled up 51 percent of the entertainment company.

As a Comcast subscriber, "TUOL" may have something further to say about the merger in the future, on a weekday, between 9 a.m. and 2 p.m.

CNN Zucker-Punched

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Jeff Zucker, 47, is the incoming president of CNN Worldwide, a new chapter in a career that has included stints as executive producer of  NBC's Today Show at age 26, head of NBC Universal and executive producer and co-owner of "Katie," Katie Couric's talkfest syndicated by Disney.

Zucker will take the helm of CNN in January, succeeding Jim Walton, who completes a nine-year run in the position. CNN, CNN International and HNL are among the entities Zucker will oversee, according to accounts in the New York Post, Bloomberg News and CNN. CNN reaches a 100 million U.S. households, but its prime-time programming attracts fewer than a third of the viewers who watch Fox News. Zucker will disassociate himself from "Katie," though don't be surprised if he tries to lure Her Royal Perkiness to CNN's Prime-time schedule.

He is an accomplished broadcasting executive, though during his five-year reign as NBC Universal's Majordomo, NBC has finished fourth in network ratings, trailing CBS, ABC, FOX and just edging out the Emergency Broadcast Signal. When Donald Trump's Celebrity Apprentice is a bright light of one's oeuvre, it's ok to feel a bit jumpy if you're a CNN shareholder.

Zucker will be right at home at CNN, which currently languishes in third place behind cable rivals Fox and MSNBC. It remains to be seen whether moves such as enlisting chef Anthony Bourdain to host a program will reverse CNN's recent series of missteps, that include Piers Morgan and  Parker & Spitzer.

UPDATE: 'Bruno' as Hard as 'Borat' to Defeat in Court

Cover of Brüno [Blu-ray]English actor/comic Sacha Baron Cohen was engaged in protected First Amendment speech when an improvised scene involving his film character "Bruno" disrupted a charity Bingo game and sparked a lawsuit by a woman who blamed the actor for injuries she sustained, according to reports by Associated Press and The Hollywood Reporter's law blog, THR, Esq.

California's 2nd District Court of Appeal in Los Angeles said an 11-count complaint brought by Richelle Olson and her spouse Lance Olson against Cohen, NBC Universal, Cold Stream Productions, LLC and others two years ago should be dismissed (see "TUOL" post 6/8/09). Mrs. Olson, the former executive director of Desert Valley Charities that staged the Bingo game, sued for assault and negligence, among other claims, alleging Cohen was responsible for injuries she suffered when she fell and struck her head shortly after grappling with the actor as she tried to regain the microphone he was using to call a ribald version of Bingo.

Olson originally had consented to allow Cohen to film the Bingo game in May 2007, as part of  the movie Bruno that focused on a gay Austrian fashion designer, but objected when the actor graphically linked the numbers he was calling to homosexual relationships in which his character had been involved. The unscripted scene was not included in the final version of the comedy film.

The defendants filed an anti-SLAPP (Strategic Law Against Public Participation) against the plaintiffs, asserting that Cohen's zany conduct advanced free speech.  The appellate court agreed, saying Cohen was offering commentary on homophobia and gay stereotypes during the scene at issue, which is protected  speech under the First Amendment.

The plaintiffs are likely to be socked with the defendants' legal costs.

UPDATE: Federal Judge Okays Comcast NBC Purchase, Retains Oversight

Image via WikipediaIn U.S. v. Comcast (Case No. 11-cv-00106), U.S. District Court for the District of Columbia Judge Richard J. Leon this week approved the cable giant's acquisition of NBC Universal, Bloomberg News reports, but the federal court will retain oversight to monitor arbitration actions by video distributors.

In giving the thumbs up to the purchase that the FCC okayed by a 4-1 vote last January (see "TUOL" post 1/18/11), Judge Leon, cognizant of online video distributors' fears that the merger would freeze them out of NBC content and concerned the proposed arbitration process would squelch appeals, plans to convene annual hearings for at least two years at which Justice Department attorneys will present data on the number of arbitration requests by video distributors and whether the requests were approved or refused. Judge Leon also wants information on how many arbitration denials wind up before the FCC. Neutral arbitrators would oversee any such distributor dispute.

The Court's final judgment is set to expire in seven years.

FCC Cmr. Baker Takes the Cake in New Role as Comcast Veep

Image by Getty Images via @daylifeMeredith Atwell Baker, one of two Republican commissioners on the FCC who voted in the 4-1 majority to allow Comcast to purchase NBC Universal (see "TUOL" post 1/18/11), is leaving the regulatory agency at the end of June to become senior vice president for government affairs for Comcast, The Washington Post reported today.

Baker, who served in the Commerce Dept. during the Bush Administration, will be barred forever from lobbying any executive agency, including the FCC, which was one of the conditions for approval of the Comcast/NBC union. Likewise, having signed the Obama Administration's ethics pledge in 2009, she had already agreed not to lobby any FCC personnel for two years after she left the agency.

She can, however, immediately on assuming her new position, focus her efforts on lobbying members of Congress--the best and the brightest public officials money can buy--on the cable giant's behalf. The rules permit regulatory federal government agency members to go to work for companies in industries in which their former agencies are supposed to serve as watchdogs, which is why true reform in Washington, D.C., like the reception Comcast subscribers in certain parts of the country experience, is hard to come by.

UPDATE: FCC Blesses Comcast & NBC Universal Marriage

Image via CrunchBaseThe FCC today voted 4-1 to approve cable giant Comcast's purchase of NBC Universal from General Electric, which is expected to be finalized later this month, marking the first time a broadcast network will be cable owned (see "TUOL" post 12/04/09).

The combined media conglomerate will boast more than 16.5 million  broadband subscribers, 23 million cable viewers and a bevy of familiar cable channels, including Bravo, MSNBC and USA, according to a story in today's Washington Post.

Although the FCC found the purchase to be in the "public interest," it did impose certain requirements on the new media monolith. Comcast/NBC was allowed to retain its stake in Hulu, which Walt Disney Co. owns, along with NBC  and News Corp.  Comcast, however, will have to offer its content on the Internet to online video distributors at the same rate and under the same conditions as offered to cable and satellite providers, and must also boost its diversity programming for Spanish-speaking viewers, among other conditions.

Ex-Model Sues NBC Universal for Using Pin-up in Movie Sex Act

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Former model turned makeup artist Irina Krupnik has filed a $10 million lawsuit in the New York Supreme Court in Manhattan against NBC Universal and Universal Pictures, makers of the film Couples Retreat (2009), over a scene in which her pin-up is used by a character performing a sex act.

Krupnik signed a release allowing the picture of her clad in a bikini to be sold to photo stock companies, and NBC Universal contends it has the right to use the photo.  Couples Retreat, a comedy starring Vince Vaughan, Jason Bateman, Kristen Bell, Jon Favreau, Jean Reno and Kristen Davis, involves four couples vacationing on an island. In the scene that forms the basis of the lawsuit, Favreau's character allegedly masturbates to Krupnik's photo that he finds in a brochure. The film is rated PG-13.

"TUOL" has not reviewed Krupnik's complaint, but suggests that moviegoers who shelled out $10 to see the movie may have grounds for bringing an action for intentional infliction of emotional distress and breach of contract against NBC Universal for advertising a comedy but delivering a product devoid of laughs.

Drowning NBC Grabs Hold of Cable

Comcast Corp., the larguest cable operator in the U.S., this week reached agreement to purchase NBC Universal from General Electric.

The deal results in a joint venture in which the Philadelphia-based Comcast owns 51 percent and GE 49 percent. GE will receive roughly $6.5 billion from Comcast, which also is providing cable channels to the venture, including E!, the Golf Channel and Versus.  NBC's cable channels, including SyFy, Bravo, USA, MSNBC and CNBC, are what sparked Comcast's interest in the acquisition. NBC Universal honcho Jeff Zucker keeps his job, but will report to Comcast bigwig Steve Burke.

"The Biggest Loser," is not only one of NBC's few hit shows, but also an apt description of the faltering network, which ranks fourth in viewers among ABC, CBS and Fox.

No 'Bravo' to Lauer for Today Show Salahi Interview

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Tareq and Michaele Salahi may be America's most shameless, unpopular party guests--they attended a White House dinner uninvited and didn't even bring baked goods or flowers--but it's The Today Show host Matt Lauer and NBC Universal honchos who should be feeling at least as embarrassed as the Secret Service who failed to block the Salahis' path to cocktails and samosas.

Lauer interviewed the Salahi schnorrers on Tuesday's edition of Today without disclosing that the party crashers were being filmed by Bravo (with whom the Salahis are under contract) for possible airing on its inexplicably popular "The Real Housewives of D.C." reality show.  Lauer's exclusive first interview of the couple was a journalistic coup; the Salahis had cancelled an appearance on "The Larry King Show" and were much sought after by news outlets that otherwise would have nothing on which to report except for the Afghanistan troop deployment, health care reform and Tiger Woods' marital woes. Ah, but here's the rub: Bravo and The Today Show's home, NBC, are both owned by NBC Universal, so Lauer's failure to disclose the corporate link either during Tuesday's interview or the post-interview discussion on Wednesday's Today edition raises journalistic hackles, the most painful kind of hackles extant.


NBC Nightly News did note the corporate connection in its Tuesday broadcast on a related story involving Emails allegedly exchanged between the Salahis and a Pentagon employee, and, for the "Six Degrees of Kevin Bacon" players out there, anchor Brian Williams, along with NBC Universal's parent General Electric CEO Jeffrey Immelt, were at the White House  dinner with the Salahis, but didn't break bread with the social-climbing duo.

Apparently, NBC Universal is so mortified by its ethical lapse in not disclosing the Bravo/NBC connection that it allowed itself to be purchased by cable giant Comcast, but that's the stuff of a future "TUOL" post.