AT&T Asks FCC to Reconsider Dismissal in Cox Program Access Complaint

Company says Media Bureau erred in dismissing complaint; cite last week's MDU exclusive contract ban

By John Eggerton -- Broadcasting & Cable, 6/2/2009 4:26:53 PM

AT&T has asked the FCC to reconsider its summary dismissal of a program access complaint against Cox in San Diego, citing the court's decision last week upholding the FCC ban on exclusive contracts between multichannel video programming providers and multiple dwelling units such as apartments and condos.

"In light of the court's decision," AT&T said in a letter to the commission, "there can be no doubt that the Media Bureau erred in summarily dismissing AT&T's complaint. Given the broad scope of Section 628(b), the Bureau was required to grapple with the factual evidence AT&T submitted and determine whether Cox's withholding of Padres programming significantly hinders AT&T's ability to provide a competing video service to consumers in San Diego. The Commission should promptly remedy the Bureau's error and apply the standard set out in Section 628(b) and the D.C. Circuit's decision to the facts of this case."

The FCC had dismissed the complaint against Cox for not giving it access to a terrestrially-delivered Cox network that carried the game. The commission had pointed out that the FCC had an open inquiry into whether to close the so-called "terrestrial loophole."

But AT&T has argued that its legal point was not access to terrestrial vs. satellite-delivered programming, but instead a separate provision of law that prohibits cable from engaging in anti-competitive behavior, a point it says was supported by the court, and initially upheld in the FCC's unanimous decision on banning exclusive MDU contracts.

"Cox has been operating completely within its rights under the law to differentiate our services through the exclusive programming we deliver via Channel 4 San Diego which we own and operate," said the company in a statement. "AT&T is looking for shortcuts instead of building its own competitive service with compelling local content in San Diego."