Verizon, AT&T Allowed to Support Program-Access Rules in Appeals Court
A federal appeals court allowed Verizon and AT&T to support the FCC defense against Cablevision, which has asked the court to review a commission order extending by five years some of its program-access rules, filings at the U.S. Court of Appeals for the District of Columbia Circuit show. Verizon and AT&T also had lobbied in favor of extending the FCC ban on exclusive contracts for carriage of networks owned by cable operators. In October, Cablevision appealed Sept. 11 FCC order as exceeding commission authority and violating the 1934 Communications Act, the Administrative Procedure Act and the U.S. Constitution. “Congress did not intend for the program access rules to last for decades,” a Cablevision spokeswoman said. “Now, with three to five video competitors in many markets, a blanket application of these rules is no longer appropriate.”
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The NCTA hasn’t decided whether to intervene on Cablevision’s side, a spokesman said. No other cable company has stepped forward to do so. They have until Dec. 8 to decide, according to the court order granting Verizon and AT&T permission to file briefs. Cablevision -- whose Rainbow Media programming subsidiary was involved in a drawn-out program access dispute with AT&T’s U-verse IPTV service this year -- probably has industry support, a communications lawyer said. “My guess is this was sort of a ‘Who'll volunteer?’ situation,” the lawyer said. “It seems like NCTA didn’t want to be the petitioner on everything.”
It’s not surprising that a cable operator appealed the program access order, the attorney said. “At this point, my impression is everything [FCC Chairman Kevin] Martin does will get appealed by the cable industry,” the lawyer said. “They're certainly not getting anywhere with him, so they'll see where they can get with the courts.”
Cablevision hadn’t completely opposed extending the ban on exclusive programming contracts. It wanted the FCC to limit its renewal to three years and provide a way for cable operators to escape the rule in markets where enough pay-TV competition existed, a Sept. 10 ex parte filing shows. “Given the strength and accelerating pace of competition for MVPD subscribers… it makes little sense to retain legacy regulations like the exclusivity ban for a lengthy period of time,” the company had said. Had the rule not been extended, Cablevision occasionally would want to enter into the type of exclusive arrangements that it bans, said the company’s first filing in the appeals court.