The FCC has gotten an earful in the past couple of weeks on its consideration of whether to extend program-access rules for another five years. The agency must decide by October, and while the Democrat-led FCC is likely to extend those rules, a federal appeals court could get the last word.
The program-access rules require that cable operator-owned programming networks be made available to satellite and wired competitors. Along with the programcarriage rule, the access rules are 1992-era regulations of what was then, essentially, the only multichannel game in town.
Major cable operators, represented by the National Cable & Telecommunications Association, say the game has changed, and the rules need to be gone.
The American Cable Association, whose members are typically the independents seeking access to unaffiliated programming, has been strongly defending the rules and asked the FCC in a recent filing to expand its view of programming deals. In a letter to the FCC two weeks ago, CBS and Fox said that would make every programming contract a potential target for FCC discovery.
The ACA suggests the broadcasters’ response is an overreaction. “The programmers have expressed concern that ACA’s proposal will permit operators to file program-access complaints so they can engage in ‘fishing expeditions’ by seeking contracts of unaffiliated programmers and other MVPDs through document discovery,” Matt Polka, ACA president, told B&C. “ACA never asked the FCC to expand the scope of its programaccess discovery rules to cover third-party contracts, and expects the FCC to continue to limit the ability of parties to request documents to those that are both relevant and under the control of one of the parties to the dispute.”
The FCC voted in 2007 to extend the rules five more years, with the deadline for renewal coming up in October. Without that renewal, the rules sunset per congressional directive.
In 2010, the U.S. Court of Appeals for the D.C. Circuit denied a Cablevision challenge to the rules, saying the FCC had not been arbitrary and capricious in renewing them. But the Court also said that by 2012, it might be time for the ban on exclusive contracts to end.
That is certainly the NCTA’s take on the subject. In meetings two weeks ago with FCC Media Bureau staffers, NCTA attorneys said the appeals court had made it clear it did not think Congress had meant for the rules to last “for as long as there was some hypothetical risk of anticompetitive conduct.”
The D.C. Court of Appeals essentially overruled the FCC in August when it stayed enforcement of the Tennis Channel decision while the court reviews that ruling. If the FCC extends the program-access rules, given the court’s signal in the Cablevision case, cable operators opposed to the rules could file suit against the FCC decision. An NCTA representative said it was too early to make that call.
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