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Markey Asks FCC to Retain Ban On Exclusive Contracts - Broadcasting & Cable

Markey Asks FCC to Retain Ban On Exclusive Contracts

Tells Genachowski that rules are still needed to prevent withholding of must-have sports and entertainment programming
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Rep. Ed Markey (D-Mass.) has asked the FCC to
extend the program access rules, which are slated to sunset Oct. 5, unless the
FCC renews them.

According
to a draft order circulated two weeks ago, FCC Chairman Julius Genachowski is
proposing to allow the access rules, which ban exclusive contracts between
distributors and their vertically integrated networks, to sunset, handling
those complaints via case-by-case application of a rule against unfair or
deceptive practices that will remain on the books.

But
Markey, in a letter to Genachowski Tuesday, says not extending that ban is
still needed, that the largest cable operators remain powerful players, and
that sunsetting the ban would be consumer unfriendly, pointing to the
"costly and time-consuming litigation that would ensue in case-by-case
adjudication of disputes in lieu of the current rules.

The
FCC is expected to vote on the proposal Wednesday or Thursday.

"The
largest vertically integrated cable companies remain powerful players in the
marketplace, and recent mergers have depended their programming
resources," he writes, pointing out that he was the "principal
author" of the act.

"The
sunset of the program access rules could lead to a new dawn of less choice and
higher prices for consumers," said Markey. "If we do not extend the program
access rules, the largest cable companies could withhold popular sports and
entertainment programming from their competitors, reducing the competition and
choice that has benefited consumers. I urge Chairman Genachowski and the FCC
Commissioners to extend the program access rules that have helped to level the
playing field in the paid television marketplace."

Far
from having outlived their usefulness, says Markey, "they remain a
foundation for competition, and conditions in today's video marketplace
necessitate their continuance.

Markey
said that if the rules sunset, a vertically integrated company could deny
competitors must-have sports programming. The FCC proposal is said to presume
that withholding co-owned regional sports net programming would be
presumptively in violation of that fair and deceptive rule, while the American
Cable Association has suggested that should extend to national must-have sports
programming as well.

But
Markey says that a case-by-case enforcement regime would not only invite
time-consuming litigation, but might compel consumers to subscribe to big cable
companies in order to get must-see sports and entertainment. "By the time
these disputes conclude," he says, "competitors without access to
such programming will have lost potential customers, frustrating competition
and harming consumers. Instead," he said, "the far better approach is
to maintain the current rules that require a vertically integrated cable
company to demonstrate why the public interest would be served by an exclusive
arrangement."

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