With more than 40 years of experience, Braverman knows his way around a legal brief. These days, he’s invested in how shifts in technology are impacting MVPDs’ business. “All of this complicates negotiation of distribution and content rights deals, with each side trying to obtain or retain, as the case may be, more rights—even when they’re not quite sure what to do with them,” he says. The bottom line is that deal-making is more complex than ever, but Braverman is well equipped with a track record that includes litigating before the US Supreme Court.
What have been the most important legal issues in communications for you in the past year?
Rapid and game-changing technological advances (e.g., in STBs and app-based services) and shifting consumer preferences for accessing content (think TV Everywhere, OTT, ADMs) continue to have a disruptive impact on MVPDs’ video business, including the linear bundle, and networks’ and other content providers’ economic models. The commercial legal framework governing the relationship between the two camps is being retooled, deal by deal, to respond to these significant changes and to enable the industry to continue to nurture further evolution yet to be imagined. But all of this complicates negotiation of distribution and content rights deals, with each side trying to obtain or retain, as the case may be, more rights — even when they’re not quite sure what to do with them. In short, deal-making has grown more complex, and often more contentious, and requires parties to work harder to get to “yes”.
What is your golden rule for negotiating?
Be firm, be tough, but don’t forget to understand what underlies your adversary’s position and look for a path to a reasonable outcome for both parties.
If you could be remembered for just one case, which case would that be and why?
One of my first cases – TV Signal Company of Aberdeen v. AT&T and Northwestern Bell – an antitrust case in which we challenged AT&T’s policy of forcing cable operators (back then, known as CATV) to go lease-back instead of deploying their own facilities on telcos’ poles. After the district court dismissed our case on the ground that CATV systems (think 12 channels of retransmitted broadcast) don’t compete with telephone companies, we persuaded the U.S. Court of Appeals for the Eighth Circuit that cable systems and telcos were potential competitors who someday would be rivals both in ownership of communications infrastructure and provision of an array of services ranging from video to home security and more. The Court of Appeals agreed, reinstated our case, and we went on to not only try and win the case, but also to obtain the first holding that parent and subsidiary AT&T and Northwestern Bell could be found to have conspired among themselves and other Ma Bell affiliates (a “bathtub conspiracy”) to restrain competition in violation of the Sherman Antitrust Act. Not only was the case a significant precedential win, but it accurately predicted the future path of the cable industry when many thought our argument was pure “Blue Sky” gibberish!