Cable, Leased Access Interests Urge FCC Changes to Rules
Cable leased access is either an anachronism in need of changes beyond what the FCC is contemplating or hampered by cable operators and at least some of rules in the in-limbo 2008 leased access order should be adopted. Those were competing narratives in docket 07-42 filings due Monday after the FCC in June approved a Further NPRM on a cable leased access rules update that included rescinding the 2008 order that never took effect (see 1806070021). Replies are due Aug. 13.
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The FCC should recommend to Congress a repeal of the leased access provisions of the Communications Act, NCTA said. It said beyond the steps suggested in the FNPRM, the agency should revisit its part-time leased access rules, ending the requirement cable operators calculate the maximum permissible leased access rates pursuant to a rate-making formula. If the agency keeps that formula, it should give operators the option of establishing regional or national leased access rates, NCTA said. It said cable operators should be able to charge a 60-day security deposit or two-month prepayment by lessees and a surcharge to part-time users to compensate for unused time on the leased access channel and defray administrative costs.
Demand for leased access capacity "has slowed to a trickle" due to online video distribution, but the regulatory burdens on cable operators for leased access requests "have remained relatively static," the American Cable Association said. It said the agency should go further than the FNPRM by adopting a uniform, nondiscriminatory “safe harbor” per channel rate that operators can use instead of calculating an individualized rate. ACA recommended the FCC change what information an operator must provide in response to a request for information from a potential lessee, such as letting the operator first confirm there's enough capacity instead of having to say the total amount of available leased access set-aside capacity. It said the FCC should end the requirement cable operators provide rates associated with technical and studio costs since very few leased access programmers rely on cable operators to provide studio resources.
The current rate formula is "a de facto barrier" to many indie programmers and trying to approximate a cable operator's profit margin should be replaced with one that gives more indies access to carriage, American Independent Media said. It said any fees and deposits should be equal to lowest dollar amounts required in other contexts.
Leased access programmer Small Business Network said operators should have to respond to only bona fide requests for information, but programmers need certain information first, such as price per channel or channel day part. It said extending the time operators have for responding to a request doesn't serve any cable operator need, and even supposedly nominal application fees or deposits will add "another layer of bureaucracy [and] engender deal-killing controversies over what fees and deposits are 'nominal.'" It backed a per-subscriber cap on rates and for adopting the program guide rules from the 2008 order.
Operators want to have to respond to only bona fide requests but a programmer doesn't know contract term, time slots and start date for carriage before it knows costs or time slots available, said Leased Access Programmers Association President Charles Stogner.
LAPA Vice President Duane Polich said the FCC needs to resolve the stayed 2008 leased access order, but it's "not ... absolutely necessary to throw the baby out with the bathwater and vacate the entire order." He said it's not an undue burden to maintain on cable company websites contact information for leased access requests, the number and location and time periods available for each leased access channel, rates associated with technical and studio costs, electronic guide availability and information about launch dates. He said the agency should ax the requirement a complainant alleging an unreasonable leased access rate first get a determination of the maximum permitted rate from an independent accountant.
Leased access programmers face "prohibitive pricing, lack of high definition choices [and] surcharges for services provided on cable," said leased access end user and programmer Baskin Jones, a Mississippi personal injury lawyer. Jones said that minus the, showing cable operators are inundated with leased access requests. He argued against the bona fide requirement, a longer time for operators to respond to requests, and instituting some nominal application fee or deposit.