Reaction was swift around Washington to the news that a D.C. Federal
Appeals Court had declined to overturn the FCC's decision to re-authorize the
program access rules, which had been challenged by Cablevision and Comcast.
Critics of Comcast's proposed joint venture with NBCU were
quick to argue the FCC victory was far from a laurel to rest on.
The American Cable Association, for one, said that it was
glad the court didn't throw out the rules, but that the bigger problem is that
even those rules are not sufficient to curb price discrimination.
"While we are pleased that the court recognized today
that the FCC had substantial evidence to conclude that vertically integrated
cable companies have the ability and incentive to withhold â€˜must-have'
programming from competitors, we maintain that the current program access rules
are demonstrably ineffective for competitive pay-TV content buyers because they
permit rampant, unjustified price discrimination," said ACA President Matt
Polka in a statement. "Moreover, the rules fail to provide for an
automatic right to continued carriage during the pendency of a complaint and do
not offer any rate-setting mechanisms. For these reasons, ACA asserts that
program access rules will not alleviate the substantial harms that would result
from the Comcast-NBCU merger, and that structural or behavioral remedies must
be put in place by the Federal Communications Commission and the Department of
Justice before that deal is approved."
Free Press Policy Counsel Corie Wright called the win a
"short-lived" one. "If Comcast acquires NBC-Universal, the
conditions of market concentration that prompted the FCC to extend this rule
will be substantially worsened and warrant even greater scrutiny," said
Wright. "The program access rules are flawed, but they are better than
nothing. The FCC should consider extending the exclusive contract ban once it
The rules expire in 2012. The court majority, while finding
the FCC had not been arbitrary and capricious in deciding to extend them
for another five years back in 2007, said it thought it likely the rules would
no longer be necessary the next time around, given the growing
competition in the multichannel video marketplace.