Cable Lineup Notification Order Expected to Face Little FCC Resistance
Cable and broadcast lawyers anticipate a 5-0, noncontroversial approval to the FCC 30-day channel lineup notification rule on September's agenda (see 2009090048). Less clear is the significance of the commission's reversing its policy on who controls program carriage and retransmission consent negotiations in the last 30 days, so it's no longer automatically the cable companies.
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
Some lawyers said not much attention is often paid to the rule requiring notices 30 days in advance to subscribers and local franchise authorities (LFA) of channels leaving the lineup because of failed programming talks, because negotiations always go until the last day. A lawyer with cable clients said there was some surprise in the industry in 2018 when Northwest Broadcasting filed a complaint against Charter Communications (see 1802120044) and Starz against Altice (see 1801160058). Both were dropped when they reached new contracts.
The rule was more followed and enforced in the 1990s, typically for changes to must-carry channels, said broadcast lawyer Scott Flick of Pillsbury. Now, a programmer in negotiations with a cable operator is the one most likely to bring a 30-day notification complaint, rather than subscribers or LFAs, and there hasn't been much incentive to do so, he said.
The rule often ran contrary to content carriage contractual language that required confidentiality until shortly before the contract was to expire, said broadcast lawyer Dan Kirkpatrick of Fletcher Heald. He said even in contentious discussions, extensions often are granted, so it's nearly impossible to know when a channel is about to go dark.
Not everyone saw the rule as rarely in play or of little significance.
MVPD customers "are treated horribly," facing issues such as rate hikes and channel and package changes without warning, emailed Brian Brady, Northwest CEO. The rule change "will have no real effect on broadcasters however their subscribers will continue to be abused," he said. Brady has been a longtime broadcaster.
Aside from replacing the 30-day requirement with an "as soon as possible" time frame, the draft order ends the requirement that cable operators subject to effective competition provide 30 days’ advance notice to LFAs of rate or service changes. It requires that they still have to give LFAs 30-day notice of any proposed increase in basic service tier pricing. With effective competition meaning no LFA basic tier rate regulation, LFAs "have little practical use for this information," the draft says.
The negotiations control policy reversal doesn't seem to have any significance in good-faith complaints, said the lawyer with cable clients. Kirkpatrick said the policy reversal language seems pretty narrow and is unlikely to have broader implications. Flick could see lawyers trying to cite it as precedent in other contexts.