Smaller cable operators and independent programmers have been pushing for stronger program access rules for years, with the FCC, whether Republican or Democrat, exhibiting no interest in diving in. But the stars may finally be aligning more closely in their favor.
While access action would seem more likely in a Democratic administration, President Donald Trump has changed the equation of political calculations, showing a willingness to attack big media companies for both their size and their news operations.
Add to this a Justice Department antitrust chief who has issues with access to must-have programming, along with a preference for not regulating by condition, and Democrats and the smaller, independent cable operators represented by the American Cable Association have been emboldened to press the issue.
In filing suit against Time Warner’s proposed acquisition of AT&T, the Justice Department pointed to the potential control of regional sports networks and other must-have programming. The DOJ said the combined company would have the incentive and ability to withhold programming to favor its own distribution platform or raise its rivals’ costs and, by extension, the monthly bills of their subscribers. It was particularly focused on the potential for established multichannel video programming distributors to prevent access by over-the-top providers.
This being the case, the Justice Department has shown it is concerned about access to programming, and its top official, Makan Delrahim, has said an ad hoc approach to resolving those concerns — imposing conditions and trusting to enforcement — is not the best way to go.
That has provided an opening for advocates of program access reform to renew their push for action, tied to the sunset of the 2011 program-access deal conditions in Comcast’s acquisition of NBCUniversal, which included mandatory access by third parties at reasonable terms and conditions and third party arbitration for complaints.
The ACA wants the program-access conditions on the Comcast-NBCU deal — Comcast is the nation’s largest cable- TV operator — extended (now reimposed since they have sunset). Better yet, it would like conditions like third-party arbitration and standstill provisions to be added to the program-access rules.
Push in D.C.
Sen. Richard Blumenthal (D-Conn.) and Democratic FCC member Mignon Clyburn have also teamed up to push for the government to get tougher on program access.
While Blumenthal and Clyburn conceded that the video marketplace has changed a lot since the 2011 Comcast-NBCU deal with the rise of Netflix, Hulu, Amazon and Sling TV and others providing access to video, Comcast still “can give its own video service an unfair advantage by withholding from the other services NBC’s broadcast television stations or Comcast’s regional sports networks.”
Comcast has maintained there is no reason to extend the access conditions. FCC chairman Ajit Pai declined comment.
