Draft FCC Program Access Order Retains Section 628(b) Complaint Process
Pay-TV providers wanting to carry networks owned by cable operators that aren’t being licensed to competitors may still bring complaints to the FCC after Oct. 5, when the agency’s ban on exclusive contracts among vertically integrated cable programmers expires, industry and commission officials said Monday. They said a draft order allowing the ban to sunset that circulated last week (CD Sept 17 p2) lays out a way, similar to the FCC’s 2010 “terrestrial loophole” order, which would let aggrieved distributors bring complaints to the commission under Section 628(b) of the Communications Act. An FCC spokesman declined to comment.
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Exclusive contracts between regional sports networks (RSNs) and their commonly-owned cable distributors would be presumed to be an “unfair act” under the statute, placing the burden on the withholding party to show why that’s not the case, the officials said. That largely mirrors how disputes involving terrestrially delivered programming are handled, they said. “This would put satellite delivered RSNs on the same footing,” an industry attorney said. The program access conditions Comcast agreed to when it acquired control of NBCUniversal last year would remain in effect under the draft order, industry and FCC officials said. The FCC asked whether it should adopt such a framework, in a notice of proposed rulemaking earlier this year.
Meanwhile, attorneys for DirecTV continued to press FCC officials to extend the outright ban on such exclusive deals, ex parte filings show. “This proceeding is not about whether to put in place a case-by-case process,” DirecTV’s outside counsel wrote in a letter disclosing Sept. 14 meetings between company lawyers and aides to Commissioners Mignon Clyburn and Jessica Rosenworcel (http://xrl.us/bnp6xg).
"Rather, it is about whether the burden should remain on cable operators -- the dominant incumbents who control timing of their proposals and the information relevant thereto -- or be shifted to competing MVPDs -- who can only seek relief after the fact, at which point the harm imposed by withholding of programming is compounded by higher costs and inevitable delay of litigation,” the letter said.