Wealth TV Cautions FCC Against Trumping Statute

FCC Chairman Kevin Martin plans to put Cablevision proposal out for comment at Dec. 18 meeting
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Multichannel video programmer Wealth TV says that if the FCC wants to give cable operators more control over channel positioning of networks, it cannot come at the expense of the statutory prohibition on operators from discriminating in favor of their own affiliated channels.

Cablevision has proposed to the FCC that it change its rules to prohibit cable programmers, as well as broadcasters in retransmission consent negotiations, from conditioning those carriage agreements on which programming tier they would be placed on or how many subs they could reach, arguing that flexibility for operators could lead to lower prices for consumers.

FCC Chairman Kevin Martin, who misses no opportunity to hammer cable over rates he says have more than doubled in the past 10 years, plans to put that proposal out for comment in a Notice of Proposed Rulemaking at the commission's Dec. 18 public meeting. Martin has been looking for a way to untie bundled programming at the wholesale level as a way to lower cable bills and give viewers more control over their basic cable lineups.

Wealth TV, which has a program carriage complaint against several operators pending before an administrative law judge, told the FCC that "any obligations imposed by a new rule must be subordinate to the statute, saying "if the Cablevision proposal or something like it were adopted, a cable operator could not move an independent network to a low-penetration programming tier if, at the same time, it discriminatorily maintained its affiliated, competing network on a higher-penetration tier."

If the FCC winds up putting the Cablevision proposal out for comment, says Wealth TV, it must make it clear that the new rule would not trump that existing prohibition.

In a press conference on the Dec. 18 agenda, Martin told reporters that the proposal would not change the fact that programmers could still file program carriage complaints if there was evidence of discrimination. The issue in those complaints is not just that networks aren't getting carried, he said, "it was that they were being discriminated against vis a vis programming that was owned [by the operator]."

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