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FCC Circulating Order Okaying Comcast Access to OVD Contracts

Acting FCC chairwoman Mignon Clyburn's office has circulated an order affirming a Media Bureau decision that a Comcast representative should be able to get access to programming contracts under the Comcast/NBCU benchmark deal condition on access to content by online providers, according to a source familiar with the document.

It was not clear if any other commissioner had voted the item yet.

The benchmark condition requires that a Comcast/NBCU programmer "provide a requesting OVD with [programming] if the OVD has an agreement for comparable programming with a peer programmer. The programming that a C-NBCU programmer is required to provide to the OVD must be on terms that are economic[ally] equivalent" to the terms the OVD has received from the peer programmer.

Comcast has said benchmark means its lawyers should be able to review the terms of those contracts so they know what "equivalent" means.

In a decision last December, the bureau agreed, saying: "OVDs that invoke the Benchmark Condition must disclose the terms of comparable peer programming agreements to the extent necessary to enable C-NBCU to carry out its obligations under the condition."

That decision had been in response to Comcast's request for clarification that if it were to provide similar terms, it would have to know what the other terms were to avoid de fact lengthy arbitration in every case. While Comcast had asked that the info be made available to Comcast employees, the bureau decided that it should only go to an outside entity, which the order circulated to the commissioners this week also supports.

Programmers including CBS, News Corp., Sony, Time Warner, Viacom and Disney asked the bureau to stay the decision.

The bureau actually dismissed that request, and Comcast's opposition, and last March stayed the decision on its own motion.

A spokesperson for the acting chairwoman was not available for comment at press time.