Mediacom chairman Rocco Commisso has written to Senate
Commerce Committee chairman Jay Rockefeller (D-W. Va.) and ranking member John Thune (R-S.D.) asking them to secure commitments from a new
FCC chairman and commissioner that they will "promptly address the broken
video programming marketplace."
Their
committee holds the nomination hearings for new commissioners.
FCC
chairman Julius Genachowski is likely presiding over his last meeting on
Thursday and Republican Robert McDowell has recused himself from decisions as
both prepare to exit in the next few weeks.
Commisso
argues that Genachowski and his predecessor, Kevin Martin, both dodged the
issue by contending the FCC lacked authority.
"In
our view, the Commission has used its assertion that it lacks the authority to
take effective action as an excuse for doing nothing," Commisso wrote.
Commisso
pointed to commission inaction on a pair of proceedings, calling it an
unconscionable disservice to consumers.
"It
has been over five years since chairman Martin initiated a proceeding regarding
the programming industry's bundling practices," he said. "It has been
three years since chairman Genachowski first solicited comment on petitions
seeking reform of the retransmission consent rules."
Commisso
contends he has hired good lawyers who argue that the FCC does have the
authority, and pointed in the letter to statements from the late Senators
Daniel Inouye and Ted Stevens, former chairs of Senate Commerce, that the FCC
had the power under the 1992 Cable Act to take action to protect consumers in
retrans battles.
Commisso
was referring to a letter the Senators sent to the FCC in 2007 duringa retrans impasse between Mediacom and Sinclair in which they said that the
FCC had the authority to mandate arbitration. They "strongly" urged
the FCC to step in, at least to mandate carriage during the impasse. The
commission did not, and under Genachowski has also indicated it lacked the
authority to step in to mandate carriage or arbitration.
The
FCC's attorneys have maintained that their authority is limited to enforcing
good faith negotiations, and under Genachowski proposed to better define what
those are. But no action was taken on that open item. But the chairman has made
clear that the FCC is reluctant to insert itself in what he sees as free market
negotiations. Cable operators like Commisso see them as tilted toward
broadcasters given the must-carry/retrans regime and the ability of
broadcasters to negotiate payments for multiple stations in the market via
joint operating agreements.
Commisso said the FCC has done nothing in the
face of "unchecked increases in sports programming fees, extortionate
demands for retransmission consent payments, and coercive wholesale bundling
tactics."
