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AT&T Fires Back In Access Complaint

AT&T has followed up its program access complaint against Cox with a study it says shows that it is competitively disadvantaged by not having access to the San Diego Padres baseball games.

According to an FCC filing from AT&T in response to a Cox filing, AT&T said it had conducted an independent study showing that 14% of respondents said that whether AT&T's U-verse service offered the Padres affected their interest in taking the service.

AT&T filed the complaint in September

alleging that Cox is denying it access to the cable operator's regional sports network in San Diego and the must-have programming -- San Diego Padres Major League Baseball games, in particular -- on that network.

Cox conceded it is not making the programming available to AT&T, but it said it is within its rights and the phone company is trying to take a short-cut to proprietary content in order to boost its relatively recent multichannel-video offering.

When AT&T first filed the complaint, Cox countered that charges of unfair competition were "unjustified and directly contradict the marketplace reality of fair competition." That reality, says Cox, is that video providers are allowed to compete on production differentiation. It cited the example of DirecTV, which has exclusive rights to the NFL Sunday Ticket package of games, or, more close to home pointed out that "AT&T is the exclusive carrier of Apple’s iPhone, which prohibits other wireless carriers to offer the iPhone.”

A key to the dispute is the so-called terrestrial loophole. The FCC rules require programmers to provide undiscriminatory access to regional sports networks, but only those delivered via satellite. Cox's is delivered terrestrially. The FCC has asked for input on whether to change the definition to include the latter, but has not done so.

AT&T argues that the controlling issue is not that definition, however, but its assertion that Cox is being noncompetitive, which the FCC has the power to police generally. AT&T argues that not having access does implicate satellite delivered programming, since it impedes AT&T's ability to deliver such programming.

The commission pays special attention to sports programming, wich the FCC treats as "must-have" content for which there is no clear substitution. For instance, in Washington, access to New York Jets would not be considereed comparable to access to the games of the Redskins.