NCTA said in FCC filing that Congress and Commission never intend...

access issue was Tues. NPRM asked whether exclusivity ban still was necessary to promote diversity and competition in marketplace and whether ban should be extended after Oct. 5, 2002, or be allowed to sunset. Cablevision, in its filing, contended that forcing it to sell its programming with DBS or others it competed with would violate its First Amendment rights. It said burdens on protected speech by cable operators and cable programmers was permissible only to “further an important and substantial government interest” and if it was absolutely essential to that cause. Cablevision said robust competition in multichannel video marketplace ruled out that standard. It said ban raised 5th Amendment concerns because it would force cable operators to give up exclusive rights to their own property and turn it over to others. NCTA contended that eliminating ban would increase competition and diversity. Specifically, it said exclusive contracts could spur other investments in content creation and allow cable operators to differentiate themselves from their competitors. “The exclusivity ban is a relic of a bygone chapter in cable regulation,” NCTA said. However, American Cable Assn., which represents more than 900 independent cable companies, said if provision were allowed to sunset, small cable companies could lose access to more than 1/3 of their satellite programming services and would “raise serious questions concerning the continuing viability of many small cable businesses.” EchoStar, which competes against cable, said that in 10 years since system was enacted, strides had been made toward fully competitive marketplace, but full benefits of competition “have yet to be realized by most consumers.” In urging continuation of ban, EchoStar said cable continued to dominate market.