Program Access FNPRM Asks About Sports Programming on National Networks
The FCC released a further notice of proposed rulemaking (http://xrl.us/bnsshn) Friday seeking comment on a series of questions about its program access rules. The notice was part of a broader rulemaking in which the commission let a ban on exclusive contracts between cable operators and the networks they own expire. In its place, the order adopted a case-by-case framework under Section 628(b) of the Communications Act for evaluating whether such arrangements hurt competition, with a rebuttable presumption that exclusive deals involving regional sports networks are considered unfair, industry and FCC officials said.
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The agency had been expected to let the program access rules, last extended for five years, expire (CD Sept 17 p2). “The FCC is focused on promoting competition and protecting consumers in the evolving video market,” Chairman Julius Genachowski said in an emailed statement. “Today’s unanimous decision enables the FCC to continue preventing anticompetitive video distribution arrangements through a legally sustainable, expeditious case-by-case review.”
None of the five commissioners dissented to the item. Commissioner Robert McDowell, though, said in a statement that he had significant concerns about the FNPRM undercutting the sunset of the exclusivity ban by asking whether the commission should set up “a series of rebuttable presumptions that would apply to certain exclusive contracts challenged under our remaining program access rules.” Among the questions are whether such rebuttable presumptions should apply to obtaining a standstill agreement while contracts are challenged, he said. “Is this the beginning of a back-handed attempt to resurrect the ban for certain exclusive contracts using the remaining program access rules and rebuttable presumptions,” McDowell asked. He also raised concerns about extending those rebuttable presumptions to cable-affiliated national sports networks. “In the absence of a bona fide market analysis and resulting evidence of market failure, we should avoid ex ante regulation and its unpredictable and unintended costs,” McDowell said.
Commissioner Mignon Clyburn said a six-month shot clock for resolving program access disputes will help resolve them quickly and efficiently. “It is my hope that such a timeline will get rid of the uncertainty, expense and frustration that comes with prolonged litigation before this agency,” she said. She praised the FNPRM for asking questions about whether the rebuttable presumptions should be extended to national networks that carry sports programming.
The further notice also seeks comments on a proposal by the American Cable Association (ACA) that would give more program access rights to buying groups such as the National Cable TV Cooperative, industry attorneys said. The notice tentatively concludes that the definition of a buying group proposed by the ACA is appropriate, they said.
Senate Commerce Committee Chairman Jay Rockefeller, D-W.Va., is reviewing the order closely, he said. “The program access rules were an integral part of Congress’s attempt to promote competition and consumer choice in the 1992 Cable Act,” he said. “I appreciate the FCC has put into place a process by which individual complaints can be brought against cable operators that lock up their programming. But if this new process does not deter anticompetitive behavior, Congress will need to consider whether it should restore appropriate safeguards."
The American Cable Association, Free Press and USTelecom criticized the commission for letting the exclusivity ban expire. “While we appreciate the commission’s willingness to make some changes to this order, today’s action is likely to make it more difficult to build and operate networks, especially in rural communities,” said USTelecom President Walter McCormick.