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MAP, PK Call for Major Program Carriage Changes - Broadcasting & Cable

MAP, PK Call for Major Program Carriage Changes

Commission should adopt baseball-style arbitration for disputes; shot clock for action on complaints
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In joint comments filed at the FCC Monday, Media Access Project and Public Knowledge said the commission should adopt baseball-style arbitration for program carriage disputes, as well as a shot clock for action on complaints, expedited discovery, putting the burden on complaint defendants to "establish a non-discriminatory reason for its carriage decision" -- per program access rules -- and applying the rules to online video delivery.

That came in comments -- due by end of day Monday (Nov. 28) -- on the FCC's proposed changes to its program carriage rules, which included providing for standstills during program carriage disputes and price "true ups" for the winners of complaints about non-carriage, as well as a number of other changes.

"[L]ax and delayed enforcement of the rules added to the growing sentiment among video programming vendors that pursuing a program carriage complaint would be a moot point," said the groups in their filing. "The recent revisions of the program carriage rules, combined with the proposals in the NPRM, do much to reconcile the rules regime with Congressional intent."

In August, the FCC issued an order and Notice of Proposed Rulemaking. The first included codifying what constitutes a prima facie case of violation, giving the defendant 60 days to respond (currently it is 30 days), establishing deadlines for action by the bureau and judges, and establishing the procedures for seeking a standstill for contract renewals at issue.

The NPRM teed up various proposals including awarding damages, baseball style arbitration, and that retaliation against a complaint is itself a form of discrimination.

The National Cable & Telecommunications Association has major issues with the FCC order and NPRM, calling them at the time "an unfortunate trifecta: a flawed process that the FCC stubbornly refused to correct, substantive policy discussions that show little regard for the limits of agency authority or constitutional rights, and a disturbing lack of appreciation of the potential impact of government intervention on consumers or the marketplace."

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