FCC Launches Review of Program Access Rules

Rules generally require cable operators to sell their satellite-delivered networks to satellite-TV firms, telco providers and other competing pay TV services
Author:
Publish date:

The FCC Commissioners has launched the proposed
rulemaking on what changes, if any, to make to its program access rules.

Those
rules generally require cable operators to sell their satellite-delivered
networks to satellite-TV firms, telco providers and other competing pay TV
services. The prohibition on exclusive contracts sunsets in October unless the
FCC acts to renew it. At a Free State Foundation event in Washington Tuesday, Comcast/NBCU
Washington President Kyle McSlarrow said program access rules no longer made
sense.

The
item had been scheduled for a vote at the March 21 meeting, but was deleted
Tuesday with the note that it had been voted on circulation. When the chairman
circulated the item, that meant it had his vote, so Commissioners McDowell and
Clyburn have now voted. Although it is a proposed rulemaking, it simply begins
the process of comment and reaction to various FCC proposals in the item.

The vote was unanimous.

As
Multichannel News has reported,
according to sources that includes options for dropping the outright ban but
retaining access mandates for satellite-delivered regional sports nets and
other unique programming for which the FCC decides there is no substitute.

Even
if the prohibition on exclusive contracts were to be scrapped, terrestrially
delivered RSNs would still likely have to be made available anyway. In voting
to end the so-called "terrestrial exemption" -- which allowed cable firms to
deny competitors access to networks not delivered via satellite -- from access
rules, the agency concluded that cable operators who do not share
terrestrially-delivered RSNs with their competitors would be presumed to be in
violation of FCC rules against unfair acts or practices, a separate portion of
the rules that does not sunset.

The
other option would be essentially a market-by-market waiver approach, in which
cable operators could seek to lift the prohibition by making a case for
competition in individual markets. That is similar to the FCC's approach to the
ban on newspaper-broadcast cross-ownership, where it allows for case-by-case
consideration in some markets, though few such waivers have been granted.

The
NPRM also seeks comment on whether the rules "adequately" address
"potentially discriminatory" volume discounts and uniform price
increases.

The
item also proposes extending the deadline for replying to complaints from 20
days to 45 days.

The
key provision in the Program Access notice offers these alternatives to
preserving access to programming in the event the commission decides not to
simply renew the requirement that cable operators make their co-owned program
networks available to competitors on reasonable terms and conditions. "To the
extent that the data do not support retaining the exclusive contract
prohibition as it exists today, the NPRM seeks comment on whether the
commission can preserve and protect competition in the video distribution
market by either:

1)
"Sunsetting the exclusive contract prohibition in its entirety and instead
relying solely on existing protections by the program access rules that will
not sunset. The case-by-case consideration of exclusive contracts pursuant to
628B. 2. The prohibition on discrimination in 628c2b. 3. The prohibition on
undue or improper influence in 628c2a.

2)
"Relaxing the exclusive contract prohibition by: 1. Establishing a process
whereby a cable operator or satellite-delivered cable affi liated programmer
can seek to remove the prohibition on a market-by-market basis based on the extent
of competition in the market; 2. Retaining the prohibition only for
satellite-delivered cable-affiliated RSNs or any other satellite delivered
cable-affiliated programming that the record establishes as being important to
competition and nonreplicable and having no good substitutes and/or; 3. Other
ways commenters have proposed."

Related