Washington -- A prominent Washington cable attorney said in
a short essay that program-access rules, which represent an unhealthy government intrusion
into the free market, should be allowed to die as scheduled in 2002.
Robert Corn-Revere -- whose client list includes A&E
Television Networks and Playboy Entertainment Group -- also argued that Congress and the
Federal Communications Commission should resist the drumbeat for new rules and tougher
enforcement of existing ones based on claims that current FCC policies are broken.
"No such showing has been made by the advocates of
increased regulation, either from an antitrust perspective or that of public-interest
regulation," Corn-Revere said.
Corn-Revere is closely associated with FCC program-access
policies, as he held a senior cable-staff position with then-acting FCC chairman James
Quello at the time when the original rules were adopted. He's now a partner in law firm
Hogan & Hartson.
His 28-page essay was published last week by The Media
Institute, a First Amendment policy group funded by an array of phone, cable and
entertainment companies.
Since 1992, cable networks owned by cable operators have
been forced to sell to cable competitors. The rules apply only to satellite-delivered
programming. The rules, by law, are to sunset in 2002, but the FCC is authorized to extend
them.
While various groups have called for changes in
program-access laws and FCC rules, only one industry has been successful in the endeavor:
the cable industry. In a lobbying effort not mentioned in Corn-Revere's text, the cable
industry won changes in 1996 ensuring that programming owned by phone companies acting as
video distributors be made available to unaffiliated vendors.
Corn-Revere's essay is timely because program access is one
of the most important regulatory -- and, possibly, legislative -- issues facing the cable
industry this year.
At the urging of Ameritech Corp., the FCC is considering
fining cable programmers or awarding damages to program-access plaintiffs; broadening
plaintiffs' discovery rights; and accelerating consideration of valid complaints.
On Capitol Hill, cable competitors like DirecTv Inc. and
EchoStar Communications Corp. are urging a slew of reforms. Among them are a ban on
exclusive contracts; an expansion of the law to include non-vertically integrated
programmers; and an expansion to include programming transmitted by means other than
satellite.
"Program access should encompass all delivery
methods," EchoStar chairman and CEO Charlie Ergen said in remarks March 13 to an
investment forum sponsored by Legg Mason's The Precursor Group.
"The newest, latest loophole of the cable industry is
to take the signal off the satellite and broadcast it terrestrially, and then evade
program-access laws."
Corn-Revere pointed out that program-access rules have
worked to promote competition with cable, with minimal regulatory refereeing by the FCC.
Citing the FCC's latest competition study, Corn-Revere said
cable's market share has dropped in each of the last three years -- it now stands at 87
percent -- while direct-broadcast satellite is growing at a galloping pace, thanks, he
said, to DBS' unfettered access to the top 20 cable networks. Since 1994, DBS companies
have gone from no subscribers to 6.6 million.
Since 1993, the FCC has had to handle just 39
program-access cases. On just three occasions, Corn-Revere said, has the FCC ruled in
favor of the plaintiff.
"This does not represent the sort of widespread
noncompliance that might justify an expansion of the rules," Corn-Revere added.
Andrew Kreig, president of the Wireless Cable Association,
which supports expanding the law to cover non-satellite-delivered and non-vertically
integrated programming, said Corn-Revere's analysis was wrong but predictable.
"It's absolutely expected that a cable attorney would
write an advocacy piece articulating why the cable industry should be able to exploit the
loopholes in the current law," Kreig said.
Corn-Revere favored the sunset of program-access rules on
the grounds that the government has trampled on copyright protections that cable
programmers deserve and that the industry needs to spur creativity, and on the grounds
that programmers that are forced to sell to all outlets have lost a First Amendment right
to select speaking outlets.
"The expansion of such rules would be more likely to
stifle competition and diversity rather than to promote such values," Corn-Revere
said.
