Sky Angel Turns to Courts to Spur FCC Action on Program Access Complaint
Sky Angel petitioned a federal appeals court for a writ of mandamus, its latest step in long-lingering program access dispute against Discovery Communications. IPTV distributor Sky Angel complained to the FCC in March 2010 that Discovery had withdrawn its distribution agreement over concerns with Sky Angel’s distribution technology. Outside of a June 2010 order from the Media Bureau denying Sky Angel’s standstill petition, the FCC hasn’t acted on the complaint. A writ of mandamus, considered a judicial rarity, would require the FCC to issue a final order one way or the other. An FCC spokesman declined to comment.
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Sky Angel’s is not the first program access complaint brought by an IP video distributor the commission failed to act quickly on. Virtual Digital Cable (VDC) sought access to some Turner programming in 2007, but that complaint outlived VDC and is still pending. “Perhaps the FCC hopes for a similar result with respect to Sky Angel,” Sky Angel’s mandamus petition (docket number 12-1119) before the U.S. Court of Appeals for the D.C. Circuit said.
The commission has handled, often quite quickly, other program access complaints brought by major telecom companies, the petition said. And during an October 2011 status conference for Sky Angel, Discovery and the FCC, commission staff “indicated that the FCC had, what it considered to be, more important matters before it than Sky Angel’s Complaint,” and didn’t expect the commission to publish an order soon, the petition said.
That conversation led Sky Angel and its attorneys to consider seeking the mandamus writ, said Charlie Naftalin, an attorney with Holland & Knight who represents Sky Angel. “We have no realistic hope the commission will do its statutory duty here without inquiry from the court,” Naftalin said. “Sky Angel is out of options. … We're hoping the court will ask the commission to respond to our pleading and explain why it’s not doing its duty."
Moreover, the FCC’s hold-up has slowed other proceedings, Sky Angel’s petition said, citing a letter from DirecTV’s counsel to the FCC in the AllVid proceeding that said an FCC decision on whether Sky Angel qualified as a multichannel video programming distributor (MVPD) would have consequences for AllVid rules. Its inaction has also stymied the FCC’s reports to Congress on the state of competition in the video market and “undermines its asserted authority in the highly controversial net neutrality rules,” the petition said.
A spokeswoman for Discovery declined to comment. But Discovery CEO David Zaslav told investors Tuesday that his company has taken a conservative approach to distributing its content online. So far, it hasn’t granted any “TV Everywhere” rights despite strong interest from traditional pay-TV distributors, he said during a Deutsche Bank investor conference. “We have to keep our eye on it,” he said. “If people start consuming content that way, we may not have a choice but to go with it,” he said of TV Everywhere.