FCC Denies AT&T Program Access Complaint

Commission says rulemaking process not adjudication is the right place to correct loophole
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The FCC has denied a program access complaint by AT&T against a Cox terrestrially delivered news and sports network. AT&T had complained that Cox was withholding sports programming. which the FCC considers must-have programming, from AT&T in the San Diego market. The FCC denied the complaint, saying that the rulemaking process, not adjudication, is the right place to correct the so-called "terrestrial loophole."

AT&T had complained that Cox makes its Cox-4 news and sports net available, which has exclusive rights to regular season San Diego Padres games, available to other providers that do not directly compete with Cox, but not to AT&T's U-Verse multichannel video distribution platform, which does in San Diego.

While there are FCC rules "that requires cable operators to make satellite-delivered vertically-integrated programming available to competing MVPDs on reasonable and nondiscriminatory prices, terms and conditions," Cox-4 is delivered terrestrially, and so is not bound by that rule.

The FCC has found that withholding programming from competitors is of "significant concern," and can hurt that competition. But the FCC has not yet decided whether it has the authority to extend that provision to terrestrial networks, seeking comment in a 2007 notice of proposed rulemaking.

In the meantime, the FCC said Monday, "under existing precedent, there is no basis for us to grant the relief requested by AT&T in its Complaint." The FCC said AT&T was free to re-file the complaint after the commission decides that rulemaking, but the company isn't waiting for that decision. "We will expeditiously appeal today's decision to the full Commission for review," said AT&T Senior VP, federal regulatory, Robert Quinn.

"We are disappointed that FCC staff dismissed this complaint instead of allowing the Commissioners to address the complaint on the merits," he said. "Unfortunately, with today's action, Cox continues to violate the law by selling access to San Diego Padres baseball games only to video providers that do not directly compete with it, depriving consumers in San Diego of real competitive alternatives."

"Cox was confident that the FCC Media Bureau would resolve AT&T's program access complaint in our favor, and we are pleased with their adherence to existing law and precedent," said the company in a statement. "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."

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