Satellite carriers and cable overbuilders complain that a loophole in the program access rules allows cable companies to unjustly deny them access to some local sports coverage. So far, however, the multichannel upstarts are getting little sympathy from the FCC.
RCN of New York, an overbuilder fighting Cablevision over the right to add FOX Sports Net-New York and the Madison Square Garden Network to its lineup, has asked the agency's five commissioners to overrule three separate rulings by Cable Bureau staffers backing incumbent cable providers that are shielding content from the program-access rules simply by transmitting it to cable systems via terrestrial fiber lines rather than conventional satellite feeds.
Aides to the commissioners won't say how the issue is playing out among their bosses, but staffers in the bureau are likely to urge them to stick with the current policy, according to sources familiar with the issue. The commission may decide in September whether to hold a hearing on RCN's complaint.
In the last two years the cable bureau has rejected RCN's complaints as well as similar protests against Comcast by direct broadcast carriers DirecTV and EchoStar.
At the heart of the issue is the 1992 law forbidding programmers from entering exclusive carriage deals with any affiliated cable systems. The catch, however, is that the prohibition applies only when the programming is transmitted to cable distributors via satellite.
RCN and the DBS providers say there's no good reason to exclude fiber-transmitted programming and that the drafters of the law never guessed that content would be delivered to cable systems in any way other than satellite feeds.
The bureau, on the other hand, says cable systems rarely rely on terrestrial transmission. So, without a widespread threat to the program access rules, there's no reason for the FCC to diverge from a strict reading of the law.