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Extension Granted on Program Carriage Vote

According to FCC sources, Chairman Julius Genachowski has granted a 10-day extension to Republican Commissioner Robert McDowell to cast his vote on the FCC's program carriage order and Notice of Proposed Rulemaking

The item has been on circulation--for a vote outside of a public meeting--since early May, according to the chairman's office. While it has already been approved by the FCC's three Democrats, according to various sources, Republican Robert McDowell was still vetting it this week and has sought and received an extension for his final vote.

He now has 10 days to vote the item (until July 29) or he goes down as a nonparticipant and the vote is closed and the order and notice adopted.

McDowell is said to have problems with the standstill provision in the order, which provides for carriage during complaints or payments to programmers who win carriage complaints in an effort to "true up" what they should have been paid for the time they weren't being carried by an MVPD.

The National Cable & Telecommunications Association also has problems with the standstill, including arguing that the FCC did not give the public sufficient opportunity to comment on the proposal, citing the Third Circuit decision in Prometheus throwing out the newspaper-broadcast crossownership decision for insufficient opportunity for comment.

A staffer for one of the commissioners who has voted the item has said that since there is a standstill provision in the FCC's program access rules, and a standstill was talked about in the NPRM on order portion of the program carriage item, it is not unfair surprise or out of left field.

The extension was also said to be to allow some folks to come in and talk further with the chairman about the issue.

Without the McDowell vote, the item remains open and, at least theoretically, already-cast votes could still be changed, but that is highly unlikely.

As reported in Multichannel Newsback in May, the item sets up a regime for granting interim carriage during the adjudication of MVPD program-carriage complaints, and sets deadlines for dealing with those complaints.

The item combines an order and Notice of Proposed Rulemaking, with the order containing a framework and legal analysis for imposing temporary standstills on existing contracts while program-carriage complaints are pending or compensation for noncarriage -- for example, a channel complaining that it couldn't get a contract in the first place citing discrimination according to affiliation. If such a complaint were upheld, there would be some form of "true up" payment for what the cable operator would have been paying if it had agreed to carry the network.

Part of the impetus for the order and notice is to weed out complaints unlikely to pass muster, and speed the resolution of those that would. The FCC has been under long-standing pressure from Congress to speed the resolution of carriage complaints, some of which have taken years to decide.

The National Cable & Telecommunications Association has argued that the carriage rules, as well as program access and leased access rules, are no longer necessary at all given an increasingly competitive multichannel marketplace.