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FCC Affirms Media Bureau Decision Against MSG In Program Access Complaints

The FCC has denied a request by Madison Square Garden and Cablevision to review a Media Bureau decision that it must make high-definition feeds of its MSG and MSG-Plus regional sports nets available to AT&T and Southern New England Telephone Company in Connecticut, and Verizon in the New York and Buffalo markets.

The commission affirmed that original order and refused a request to stay its effective date, though it found that "in order to provide sufficient time for compliance," it would give them 15 days from the Nov. 10 order release date to provide the programming.

That came a day after the Second Circuit Court of Appeals -- Cablevision/MSG has sued the FCC over the decisions -- denied their request that the court stay the FCC decisions until it had resolved the court case. The court also denied a request by AT&T, which intervened on behalf of the FCC in the suit, to move the case to the D.C. Circuit.

The Media Bureau had initially said the feeds had to be provided by Nov. 14, while a deal had to be struck on reaonsable terms and conditions by Oct. 22. They now have until Nov. 25 to make the feeds available.

The Media Bureau had ruled that Cablevision/Madison Square Garden Network violated FCC program access rules by withholding HD versions of the RSNs.

The FCC said that it was an "unfair act" that "had the effect" of "significantly hindering the companies from providing a competing video service." The commission reaffirmed that finding Thursday, saying the bureau's decision was reasoned and proper, that it did not disregard evidence, and that "the Bureau's conclusion that Defendants' conduct here was, on balance, 'unfair' was based on a careful weighing of the evidence presented in this case..."

The decisions follow the FCC's move to close the so-called terrestrial loophole/exemption that had prevented access complaints against withholding of affiliated terrestrially-delivered networks. The FCC gave AT&T/SNET and Verizon a chance to re-file their complaints under a new standard of unfairness, which they did.

Cablevision said in a statement that it was considering all its options but said the FCC continues to "disregard the facts."

"The evidence on record clearly demonstrates that there has been no competitive harm to the nation's two largest phone companies as a result of not having two HD channels they already receive in SD," the company said in a statement. " In markets like New York with as many as five video providers, the only thing this decision does is discourage companies from investing and innovating, which hurts both fair competition and consumers. Instead of competing on the merits of the products, Verizon and AT&T are manipulating federal law to gain an unfair advantage."

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.